Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-12219 March 15, 1918

AMADO PICART, plaintiff-appellant,

vs.
FRANK SMITH, JR., defendant-appellee.

Alejo Mabanag for appellant.

G. E. Campbell for appellee.

STREET, J.:

In this action the plaintiff, Amado Picart, seeks to recover of the defendant, Frank Smith, jr., the sum
of P31,000, as damages alleged to have been caused by an automobile driven by the defendant. From
a judgment of the Court of First Instance of the Province of La Union absolving the defendant from
liability the plaintiff has appealed.

The occurrence which gave rise to the institution of this action took place on December 12, 1912, on
the Carlatan Bridge, at San Fernando, La Union. It appears that upon the occasion in question the
plaintiff was riding on his pony over said bridge. Before he had gotten half way across, the defendant
approached from the opposite direction in an automobile, going at the rate of about ten or twelve miles
per hour. As the defendant neared the bridge he saw a horseman on it and blew his horn to give
warning of his approach. He continued his course and after he had taken the bridge he gave two more
successive blasts, as it appeared to him that the man on horseback before him was not observing the
rule of the road.

The plaintiff, it appears, saw the automobile coming and heard the warning signals. However, being
perturbed by the novelty of the apparition or the rapidity of the approach, he pulled the pony closely
up against the railing on the right side of the bridge instead of going to the left. He says that the reason
he did this was that he thought he did not have sufficient time to get over to the other side. The bridge
is shown to have a length of about 75 meters and a width of 4.80 meters. As the automobile
approached, the defendant guided it toward his left, that being the proper side of the road for the
machine. In so doing the defendant assumed that the horseman would move to the other side. The
pony had not as yet exhibited fright, and the rider had made no sign for the automobile to stop. Seeing
that the pony was apparently quiet, the defendant, instead of veering to the right while yet some
distance away or slowing down, continued to approach directly toward the horse without diminution of
speed. When he had gotten quite near, there being then no possibility of the horse getting across to
the other side, the defendant quickly turned his car sufficiently to the right to escape hitting the horse
alongside of the railing where it as then standing; but in so doing the automobile passed in such close
proximity to the animal that it became frightened and turned its body across the bridge with its head
toward the railing. In so doing, it as struck on the hock of the left hind leg by the flange of the car and
the limb was broken. The horse fell and its rider was thrown off with some violence. From the evidence
adduced in the case we believe that when the accident occurred the free space where the pony stood
between the automobile and the railing of the bridge was probably less than one and one half meters.
As a result of its injuries the horse died. The plaintiff received contusions which caused temporary
unconsciousness and required medical attention for several days.

The question presented for decision is whether or not the defendant in maneuvering his car in the
manner above described was guilty of negligence such as gives rise to a civil obligation to repair the
damage done; and we are of the opinion that he is so liable. As the defendant started across the
bridge, he had the right to assume that the horse and the rider would pass over to the proper side; but
as he moved toward the center of the bridge it was demonstrated to his eyes that this would not be
done; and he must in a moment have perceived that it was too late for the horse to cross with safety
in front of the moving vehicle. In the nature of things this change of situation occurred while the
automobile was yet some distance away; and from this moment it was not longer within the power of
the plaintiff to escape being run down by going to a place of greater safety. The control of the situation
had then passed entirely to the defendant; and it was his duty either to bring his car to an immediate
stop or, seeing that there were no other persons on the bridge, to take the other side and pass
sufficiently far away from the horse to avoid the danger of collision. Instead of doing this, the defendant
ran straight on until he was almost upon the horse. He was, we think, deceived into doing this by the
fact that the horse had not yet exhibited fright. But in view of the known nature of horses, there was
an appreciable risk that, if the animal in question was unacquainted with automobiles, he might get
exited and jump under the conditions which here confronted him. When the defendant exposed the
horse and rider to this danger he was, in our opinion, negligent in the eye of the law.

The test by which to determine the existence of negligence in a particular case may be stated as
follows: Did the defendant in doing the alleged negligent act use that person would have used in the
same situation? If not, then he is guilty of negligence. The law here in effect adopts the standard
supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. The
existence of negligence in a given case is not determined by reference to the personal judgment of
the actor in the situation before him. The law considers what would be reckless, blameworthy, or
negligent in the man of ordinary intelligence and prudence and determines liability by that.

The question as to what would constitute the conduct of a prudent man in a given situation must of
course be always determined in the light of human experience and in view of the facts involved in the
particular case. Abstract speculations cannot here be of much value but this much can be profitably
said: Reasonable men govern their conduct by the circumstances which are before them or known to
them. They are not, and are not supposed to be, omniscient of the future. Hence they can be expected
to take care only when there is something before them to suggest or warn of danger. Could a prudent
man, in the case under consideration, foresee harm as a result of the course actually pursued? If so,
it was the duty of the actor to take precautions to guard against that harm. Reasonable foresight of
harm, followed by ignoring of the suggestion born of this prevision, is always necessary before
negligence can be held to exist. Stated in these terms, the proper criterion for determining the
existence of negligence in a given case is this: Conduct is said to be negligent when a prudent man in
the position of the tortfeasor would have foreseen that an effect harmful to another was sufficiently
probable to warrant his foregoing conduct or guarding against its consequences.

Applying this test to the conduct of the defendant in the present case we think that negligence is clearly
established. A prudent man, placed in the position of the defendant, would in our opinion, have
recognized that the course which he was pursuing was fraught with risk, and would therefore have
foreseen harm to the horse and the rider as reasonable consequence of that course. Under these
circumstances the law imposed on the defendant the duty to guard against the threatened harm.

It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent
negligence in planting himself on the wrong side of the road. But as we have already stated, the
defendant was also negligent; and in such case the problem always is to discover which agent is
immediately and directly responsible. It will be noted that the negligent acts of the two parties were not
contemporaneous, since the negligence of the defendant succeeded the negligence of the plaintiff by
an appreciable interval. Under these circumstances the law is that the person who has the last fair
chance to avoid the impending harm and fails to do so is chargeable with the consequences, without
reference to the prior negligence of the other party.

The decision in the case of Rkes vs. Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359) should perhaps
be mentioned in this connection. This Court there held that while contributory negligence on the part
of the person injured did not constitute a bar to recovery, it could be received in evidence to reduce
the damages which would otherwise have been assessed wholly against the other party. The
defendant company had there employed the plaintiff, as a laborer, to assist in transporting iron rails
from a barge in Manila harbor to the company's yards located not far away. The rails were conveyed
upon cars which were hauled along a narrow track. At certain spot near the water's edge the track
gave way by reason of the combined effect of the weight of the car and the insecurity of the road bed.
The car was in consequence upset; the rails slid off; and the plaintiff's leg was caught and broken. It
appeared in evidence that the accident was due to the effects of the typhoon which had dislodged one
of the supports of the track. The court found that the defendant company was negligent in having failed
to repair the bed of the track and also that the plaintiff was, at the moment of the accident, guilty of
contributory negligence in walking at the side of the car instead of being in front or behind. It was held
that while the defendant was liable to the plaintiff by reason of its negligence in having failed to keep
the track in proper repair nevertheless the amount of the damages should be reduced on account of
the contributory negligence in the plaintiff. As will be seen the defendant's negligence in that case
consisted in an omission only. The liability of the company arose from its responsibility for the
dangerous condition of its track. In a case like the one now before us, where the defendant was actually
present and operating the automobile which caused the damage, we do not feel constrained to attempt
to weigh the negligence of the respective parties in order to apportion the damage according to the
degree of their relative fault. It is enough to say that the negligence of the defendant was in this case
the immediate and determining cause of the accident and that the antecedent negligence of the plaintiff
was a more remote factor in the case.

A point of minor importance in the case is indicated in the special defense pleaded in the defendant's
answer, to the effect that the subject matter of the action had been previously adjudicated in the court
of a justice of the peace. In this connection it appears that soon after the accident in question occurred,
the plaintiff caused criminal proceedings to be instituted before a justice of the peace charging the
defendant with the infliction of serious injuries (lesiones graves). At the preliminary investigation the
defendant was discharged by the magistrate and the proceedings were dismissed. Conceding that the
acquittal of the defendant at the trial upon the merits in a criminal prosecution for the offense mentioned
would be res adjudicata upon the question of his civil liability arising from negligence -- a point upon
which it is unnecessary to express an opinion -- the action of the justice of the peace in dismissing the
criminal proceeding upon the preliminary hearing can have no effect. (See U. S. vs. Banzuela and
Banzuela, 31 Phil. Rep., 564.)

From what has been said it results that the judgment of the lower court must be reversed, and judgment
is her rendered that the plaintiff recover of the defendant the sum of two hundred pesos (P200), with
costs of other instances. The sum here awarded is estimated to include the value of the horse, medical
expenses of the plaintiff, the loss or damage occasioned to articles of his apparel, and lawful interest
on the whole to the date of this recovery. The other damages claimed by the plaintiff are remote or
otherwise of such character as not to be recoverable. So ordered.

Arellano, C.J., Torres, Carson, Araullo, Avanceña, and Fisher, JJ., concur.
Johnson, J., reserves his vote.

Separate Opinions

MALCOLM, J., concurring:

After mature deliberation, I have finally decided to concur with the judgment in this case. I do so
because of my understanding of the "last clear chance" rule of the law of negligence as particularly
applied to automobile accidents. This rule cannot be invoked where the negligence of the plaintiff is
concurrent with that of the defendant. Again, if a traveler when he reaches the point of collision is in a
situation to extricate himself and avoid injury, his negligence at that point will prevent a recovery. But
Justice Street finds as a fact that the negligent act of the interval of time, and that at the moment the
plaintiff had no opportunity to avoid the accident. Consequently, the "last clear chance" rule is
applicable. In other words, when a traveler has reached a point where he cannot extricate himself and
vigilance on his part will not avert the injury, his negligence in reaching that position becomes the
condition and not the proximate cause of the injury and will not preclude a recovery. (Note especially
Aiken vs. Metcalf [1917], 102 Atl., 330.)

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. L-51806 November 8, 1988

CIVIL AERONAUTICS ADMINISTRATION, petitioner,

vs.
COURT OF APPEALS and ERNEST E. SIMKE, respondents.

The Solicitor General for petitioner.

Ledesma, Guytingco, Veleasco & Associates for respondent Ernest E. Simke.

CORTES, J.:
Assailed in this petition for review on certiorari is the decision of the Court of Appeals affirming the
trial court decision which reads as follows:

WHEREFORE, judgment is hereby rendered ordering defendant to pay plaintiff the

amount of P15,589.55 as full reimbursement of his actual medical and hospital
expenses, with interest at the legal rate from the commencement of the suit; the
amount of P20,200.00 as consequential damages; the amount of P30,000.00 as
moral damages; the amount of P40,000.00 as exemplary damages; the further
amount of P20,000.00 as attorney's fees and the costs [Rollo, p. 24].

The facts of the case are as follows:

Private respondent is a naturalized Filipino citizen and at the time of the incident was the Honorary
Consul Geileral of Israel in the Philippines.

In the afternoon of December 13, 1968, private respondent with several other persons went to the
Manila International Airport to meet his future son-in-law. In order to get a better view of the
incoming passengers, he and his group proceeded to the viewing deck or terrace of the airport.

While walking on the terrace, then filled with other people, private respondent slipped over an
elevation about four (4) inches high at the far end of the terrace. As a result, private respondent fell
on his back and broke his thigh bone.

The next day, December 14, 1968, private respondent was operated on for about three hours.

Private respondent then filed an action for damages based on quasi-delict with the Court of First
Instance of Rizal, Branch VII against petitioner Civil Aeronautics Administration or CAA as the entity
empowered "to administer, operate, manage, control, maintain and develop the Manila International
Airport ... ." [Sec. 32 (24), R.A. 776].

Said claim for damages included, aside from the medical and hospital bills, consequential damages
for the expenses of two lawyers who had to go abroad in private respondent's stead to finalize
certain business transactions and for the publication of notices announcing the postponement of
private respondent's daughter's wedding which had to be cancelled because of his accident [Record
on Appeal, p. 5].

Judgment was rendered in private respondent's favor prompting petitioner to appeal to the Court of
Appeals. The latter affirmed the trial court's decision. Petitioner then filed with the same court a
Motion for, Reconsideration but this was denied.

Petitioner now comes before this Court raising the following assignment of errors:

1. The Court of Appeals gravely erred in not holding that the present the CAA is
really a suit against the Republic of the Philippines which cannot be sued without its
consent, which was not given in this case.

2. The Court of Appeals gravely erred in finding that the injuries of respondent Ernest
E. Simke were due to petitioner's negligence — although there was no substantial
evidence to support such finding; and that the inference that the hump or elevation
the surface of the floor area of the terrace of the fold) MIA building is dangerous just
because said respondent tripped over it is manifestly mistaken — circumstances that
justify a review by this Honorable Court of the said finding of fact of respondent
appellate court (Garcia v. Court of Appeals, 33 SCRA 622; Ramos v. CA, 63 SCRA
331.)

3. The Court of Appeals gravely erred in ordering petitioner to pay actual,

consequential, moral and exemplary damages, as well as attorney's fees to
respondent Simke — although there was no substantial and competent proof to
support said awards I Rollo, pp. 93-94 1.

I
Invoking the rule that the State cannot be sued without its consent, petitioner contends that being an
agency of the government, it cannot be made a party-defendant in this case.

This Court has already held otherwise in the case of National Airports Corporation v. Teodoro, Sr.
[91 Phil. 203 (1952)]. Petitioner contends that the said ruling does not apply in this case because:
First, in the Teodoro case, the CAA was sued only in a substituted capacity, the National Airports
Corporation being the original party. Second, in the Teodoro case, the cause of action was
contractual in nature while here, the cause of action is based on a quasi-delict. Third, there is no
specific provision in Republic Act No. 776, the law governing the CAA, which would justify the
conclusion that petitioner was organized for business and not for governmental purposes. [Rollo, pp.
94-97].

Such arguments are untenable.

First, the Teodoro case, far from stressing the point that the CAA was only substituted for the
National Airports Corporation, in fact treated the CAA as the real party in interest when it stated that:

xxx xxx xxx

... To all legal intents and practical purposes, the National Airports Corporation is
dead and the Civil Aeronautics Administration is its heir or legal representative,
acting by the law of its creation upon its own rights and in its own name. The better
practice there should have been to make the Civil Aeronautics Administration the
third party defendant instead of the National Airports Corporation. [National Airports
Corp. v. Teodoro, supra, p. 208.]

xxx xxx xxx

Second, the Teodoro case did not make any qualification or limitation as to whether or not the CAA's
power to sue and be sued applies only to contractual obligations. The Court in the Teodoro case
ruled that Sections 3 and 4 of Executive Order 365 confer upon the CAA, without any qualification,
the power to sue and be sued, albeit only by implication. Accordingly, this Court's pronouncement
that where such power to sue and be sued has been granted without any qualification, it can include
a claim based on tort or quasi-delict [Rayo v. Court of First Instance of Bulacan, G.R. Nos. 55273-
83, December 19,1981, 1 1 0 SCRA 4561 finds relevance and applicability to the present case.

Third, it has already been settled in the Teodoro case that the CAA as an agency is not immune
from suit, it being engaged in functions pertaining to a private entity.

xxx xxx xxx

The Civil Aeronautics Administration comes under the category of a private entity.
Although not a body corporate it was created, like the National Airports Corporation,
not to maintain a necessary function of government, but to run what is essentially a
business, even if revenues be not its prime objective but rather the promotion of
travel and the convenience of the travelling public. It is engaged in an enterprise
which, far from being the exclusive prerogative of state, may, more than the
construction of public roads, be undertaken by private concerns. [National Airports
Corp. v. Teodoro, supra, p. 207.]

xxx xxx xxx

True, the law prevailing in 1952 when the Teodoro case was promulgated was Exec. Order 365
(Reorganizing the Civil Aeronautics Administration and Abolishing the National Airports Corporation).
Republic Act No. 776 (Civil Aeronautics Act of the Philippines), subsequently enacted on June 20,
1952, did not alter the character of the CAA's objectives under Exec, Order 365. The pertinent
provisions cited in the Teodoro case, particularly Secs. 3 and 4 of Exec. Order 365, which led the
Court to consider the CAA in the category of a private entity were retained substantially in Republic
Act 776, Sec. 32 (24) and (25). Said Act provides:
<äre|| anº• 1àw>

Sec. 32. Powers and Duties of the Administrator. Subject to the general — control
and supervision of the Department Head, the Administrator shall have among others,
the following powers and duties:
 xxx xxx xxx

(24) To administer, operate, manage, control, maintain and develop the Manila
International Airport and all government-owned aerodromes except those controlled
or operated by the Armed Forces of the Philippines including such powers and duties
as: (a) to plan, design, construct, equip, expand, improve, repair or alter aerodromes
or such structures, improvement or air navigation facilities; (b) to enter into, make
and execute contracts of any kind with any person, firm, or public or private
corporation or entity; ... .

(25) To determine, fix, impose, collect and receive landing fees, parking space fees,
royalties on sales or deliveries, direct or indirect, to any aircraft for its use of aviation
gasoline, oil and lubricants, spare parts, accessories and supplies, tools, other
royalties, fees or rentals for the use of any of the property under its management and
control.

xxx xxx xxx

From the foregoing, it can be seen that the CAA is tasked with private or non-governmental functions
which operate to remove it from the purview of the rule on State immunity from suit. For the correct
rule as set forth in the Tedoro case states:

xxx xxx xxx

Not all government entities, whether corporate or non-corporate, are immune from
suits. Immunity functions suits is determined by the character of the objects for which
the entity was organized. The rule is thus stated in Corpus Juris:

Suits against State agencies with relation to matters in which they

have assumed to act in private or non-governmental capacity, and
various suits against certain corporations created by the state for
public purposes, but to engage in matters partaking more of the
nature of ordinary business rather than functions of a governmental
or political character, are not regarded as suits against the state. The
latter is true, although the state may own stock or property of such a
corporation for by engaging in business operations through a
corporation, the state divests itself so far of its sovereign character,
and by implication consents to suits against the corporation. (59 C.J.,
313) [National Airport Corporation v. Teodoro, supra, pp. 206-207;
Emphasis supplied.]

This doctrine has been reaffirmed in the recent case of Malong v. Philippine National Railways [G.R.
No. L-49930, August 7, 1985, 138 SCRA 631, where it was held that the Philippine National
Railways, although owned and operated by the government, was not immune from suit as it does not
exercise sovereign but purely proprietary and business functions. Accordingly, as the CAA was
created to undertake the management of airport operations which primarily involve proprietary
functions, it cannot avail of the immunity from suit accorded to government agencies performing
strictly governmental functions.

II

Petitioner tries to escape liability on the ground that there was no basis for a finding of negligence.
There can be no negligence on its part, it alleged, because the elevation in question "had a
legitimate purpose for being on the terrace and was never intended to trip down people and injure
them. It was there for no other purpose but to drain water on the floor area of the terrace" [Rollo, P.
99].

To determine whether or not the construction of the elevation was done in a negligent manner, the
trial court conducted an ocular inspection of the premises.

xxx xxx xxx

 ... This Court after its ocular inspection found the elevation shown in Exhs. A or 6-A
where plaintiff slipped to be a step, a dangerous sliding step, and the proximate
cause of plaintiffs injury...

xxx xxx xxx

This Court during its ocular inspection also observed the dangerous and defective
condition of the open terrace which has remained unrepaired through the years. It
has observed the lack of maintenance and upkeep of the MIA terrace, typical of
many government buildings and offices. Aside from the litter allowed to accumulate
in the terrace, pot holes cause by missing tiles remained unrepaired and unattented.
The several elevations shown in the exhibits presented were verified by this Court
during the ocular inspection it undertook. Among these elevations is the one (Exh. A)
where plaintiff slipped. This Court also observed the other hazard, the slanting or
sliding step (Exh. B) as one passes the entrance door leading to the terrace [Record
on Appeal, U.S., pp. 56 and 59; Emphasis supplied.]

The Court of Appeals further noted that:

The inclination itself is an architectural anomaly for as stated by the said witness, it is
neither a ramp because a ramp is an inclined surface in such a way that it will
prevent people or pedestrians from sliding. But if, it is a step then it will not serve its
purpose, for pedestrian purposes. (tsn, p. 35, Id.) [rollo, p. 29.]

These factual findings are binding and conclusive upon this Court. Hence, the CAA cannot disclaim
its liability for the negligent construction of the elevation since under Republic Act No. 776, it was
charged with the duty of planning, designing, constructing, equipping, expanding, improving,
repairing or altering aerodromes or such structures, improvements or air navigation facilities [Section
32, supra, R.A. 776]. In the discharge of this obligation, the CAA is duty-bound to exercise due
diligence in overseeing the construction and maintenance of the viewing deck or terrace of the
airport.

It must be borne in mind that pursuant to Article 1173 of the Civil Code, "(t)he fault or negligence of
the obligor consists in the omission of that diligence which is required by the nature of the obligation
and corresponds with the circumstances of the person, of the time and of the place." Here, the
obligation of the CAA in maintaining the viewing deck, a facility open to the public, requires that CAA
insure the safety of the viewers using it. As these people come to the viewing deck to watch the
planes and passengers, their tendency would be to look to where the planes and the incoming
passengers are and not to look down on the floor or pavement of the viewing deck. The CAA should
have thus made sure that no dangerous obstructions or elevations exist on the floor of the deck to
prevent any undue harm to the public.

The legal foundation of CAA's liability for quasi-delict can be found in Article 2176 of the Civil Code
which provides that "(w)hoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done... As the CAA knew of the existence of the
dangerous elevation which it claims though, was made precisely in accordance with the plans and
specifications of the building for proper drainage of the open terrace [See Record on Appeal, pp. 13
and 57; Rollo, p. 391, its failure to have it repaired or altered in order to eliminate the existing hazard
constitutes such negligence as to warrant a finding of liability based on quasi-delict upon CAA.

The Court finds the contention that private respondent was, at the very least, guilty of contributory
negligence, thus reducing the damages that plaintiff may recover, unmeritorious. Contributory
negligence under Article 2179 of the Civil Code contemplates a negligent act or omission on the part
of the plaintiff, which although not the proximate cause of his injury, contributed to his own damage,
the proximate cause of the plaintiffs own injury being the defendant's lack of due care. In the instant
case, no contributory negligence can be imputed to the private respondent, considering the following
test formulated in the early case of Picart v. Smith, 37 Phil. 809 (1918):

The test by which to determine the existence of negligence in a particular case may
be stated as follows: Did the defendant in doing the alleged negligent act use that
reasonable care and caution which an ordinarily prudent man would have used in the
same situation? If not, then he is guilty of negligence. The law here in effect adopts
the standard supposed to be supplied by the imaginary conduct of the discreet
paterfamilias of the Roman law. The existence of the negligence in a given case is
 not determined by reference to the personal judgment of the actor in the situation
before him. The law considers what would be reckless, blameworthy, or negligent in
the man of ordinary intelligence and prudence and determines liability by that.

The question as to what would constitute the conduct of a prudent man in a given
situation must of course be always determined in the light of human experience and
in view of the facts involved in the particular case. Abstract speculations cannot be
here of much value but this much can be profitably said: Reasonable men-overn their
conduct by the circumstances which are before them or known to them. They are
not, and are not supposed to be omniscient of the future. Hence they can be
expected to take care only when there is something before them to suggest or warn
of danger. Could a prudent man, in the case under consideration, foresee harm as a
result of the course actually pursued' If so, it was the duty of the actor to take
precautions to guard against that harm. Reasonable foresight of harm, followed by
the ignoring of the suggestion born of this prevision, is always necessary before
negligence can be held to exist.... [Picart v. Smith, supra, p. 813; Emphasis
supplied.]

The private respondent, who was the plaintiff in the case before the lower court, could not have
reasonably foreseen the harm that would befall him, considering the attendant factual
circumstances. Even if the private respondent had been looking where he was going, the step in
question could not easily be noticed because of its construction. As the trial court found:

In connection with the incident testified to, a sketch, Exhibit O, shows a section of the
floorings oil which plaintiff had tripped, This sketch reveals two pavements adjoining
each other, one being elevated by four and one-fourth inches than the other. From
the architectural standpoint the higher, pavement is a step. However, unlike a step
commonly seen around, the edge of the elevated pavement slanted outward as one
walks to one interior of the terrace. The length of the inclination between the edges of
the two pavements is three inches. Obviously, plaintiff had stepped on the inclination
because had his foot landed on the lower pavement he would not have lost his
balance. The same sketch shows that both pavements including the inclined portion
are tiled in red cement, and as shown by the photograph Exhibit A, the lines of the
tilings are continuous. It would therefore be difficult for a pedestrian to see the
inclination especially where there are plenty of persons in the terrace as was the
situation when plaintiff fell down. There was no warning sign to direct one's attention
to the change in the elevation of the floorings. [Rollo, pp. 2829.]

III

Finally, petitioner appeals to this Court the award of damages to private respondent. The liability of
CAA to answer for damages, whether actual, moral or exemplary, cannot be seriously doubted in
view of one conferment of the power to sue and be sued upon it, which, as held in the case of Rayo
v. Court of First Instance, supra, includes liability on a claim for quasi-dilict. In the aforestated case,
the liability of the National Power Corporation to answer for damages resulting from its act of
sudden, precipitate and simultaneous opening of the Angat Dam, which caused the death of several
residents of the area and the destruction of properties, was upheld since the o,rant of the power to
sue and be sued upon it necessarily implies that it can be held answerable for its tortious acts or any
wrongful act for that matter.

With respect to actual or compensatory damages, the law mandates that the same be proven.

Art. 2199. Except as provided by law or by stipulation, one are entitled to an

adequate compensation only for such pecuniary loss suffered by him as he has duly
proved. Such compensation is referred to as actual on compensatory damages [New
Civil Code].

Private respondent claims P15,589.55 representing medical and hospitalization bills. This Court
finds the same to have been duly proven through the testimony of Dr. Ambrosio Tangco, the
physician who attended to private respondent (Rollo, p. 26) and who Identified Exh. "H" which was
his bill for professional services [Rollo, p. 31].

Concerning the P20,200.00 alleged to have been spent for other expenses such as the
transportation of the two lawyers who had to represent private respondent abroad and the
publication of the postponement notices of the wedding, the Court holds that the same had also
been duly proven. Private respondent had adequately shown the existence of such losses and the
amount thereof in the testimonies before the trial court [CA decision, p. 81. At any rate, the findings
of the Court of Appeals with respect to this are findings of facts [One Heart Sporting Club, Inc. v.
Court of Appeals, G.R. Nos. 5379053972, Oct. 23, 1981, 108 SCRA 4161 which, as had been held
time and again, are, as a general rule, conclusive before this Court [Sese v. Intermediate Appellate
Court, G.R. No. 66186, July 31, 1987,152 SCRA 585].

With respect to the P30,000.00 awarded as moral damages, the Court holds private respondent
entitled thereto because of the physical suffering and physical injuries caused by the negligence of
the CAA [Arts. 2217 and 2219 (2), New Civil Code].

With respect to the award of exemplary damages, the Civil Code explicitly, states:

Art. 2229. Exemplary or corrective damages, are imposed, by way of example or

correction for the public good, in addition to the moral, liquidated or compensatory

Art. 2231. In quasi-delicts, exemplary damages may be granted if the defendant

acted with gross negligence.

Gross negligence which, according to the Court, is equivalent to the term "notorious negligence" and
consists in the failure to exercise even slight care [Caunan v. Compania General de Tabacos, 56
Phil. 542 (1932)] can be attributed to the CAA for its failure to remedy the dangerous condition of the
questioned elevation or to even post a warning sign directing the attention of the viewers to the
change in the elevation of the floorings notwithstanding its knowledge of the hazard posed by such
elevation [Rollo, pp. 28-29; Record oil Appeal, p. 57]. The wanton disregard by the CAA of the safety
of the people using the viewing deck, who are charged an admission fee, including the petitioner
who paid the entrance fees to get inside the vantage place [CA decision, p. 2; Rollo, p. 25] and are,
therefore, entitled to expect a facility that is properly and safely maintained — justifies the award of
exemplary damages against the CAA, as a deterrent and by way of example or correction for the
public good. The award of P40,000.00 by the trial court as exemplary damages appropriately
underscores the point that as an entity changed with providing service to the public, the CAA. like all
other entities serving the public. has the obligation to provide the public with reasonably safe service.

Finally, the award of attorney's fees is also upheld considering that under Art. 2208 (1) of the Civil
Code, the same may be awarded whenever exemplary damages are awarded, as in this case,
and,at any rate, under Art. 2208 (11), the Court has the discretion to grant the same when it is just
and equitable.

However, since the Manila International Airport Authority (MIAA) has taken over the management
and operations of the Manila International Airport [renamed Ninoy Aquino International Airport under
Republic Act No. 6639] pursuant to Executive Order No. 778 as amended by executive Orders Nos.
903 (1983), 909 (1983) and 298 (1987) and under Section 24 of the said Exec. Order 778, the MIAA
has assumed all the debts, liabilities and obligations of the now defunct Civil Aeronautics
Administration (CAA), the liabilities of the CAA have now been transferred to the MIAA.

WHEREFORE, finding no reversible error, the Petition for review on certiorari is DENIED and the
decision of the Court of Appeals in CA-G.R. No. 51172-R is AFFIRMED.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-4977 March 22, 1910

DAVID TAYLOR, plaintiff-appellee,

vs.
THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY, defendant-appellant.

W. H. Lawrence, for appellant.

W. L. Wright, for appellee.

CARSON, J.:

An action to recover damages for the loss of an eye and other injuries, instituted by David Taylor, a
minor, by his father, his nearest relative.

The defendant is a foreign corporation engaged in the operation of a street railway and an electric light
system in the city of Manila. Its power plant is situated at the eastern end of a small island in the Pasig
River within the city of Manila, known as the Isla del Provisor. The power plant may be reached by
boat or by crossing a footbridge, impassable for vehicles, at the westerly end of the island.

The plaintiff, David Taylor, was at the time when he received the injuries complained of, 15 years of
age, the son of a mechanical engineer, more mature than the average boy of his age, and having
considerable aptitude and training in mechanics.

On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about 12 years of age,
crossed the footbridge to the Isla del Provisor, for the purpose of visiting one Murphy, an employee of
the defendant, who and promised to make them a cylinder for a miniature engine. Finding on inquiry
that Mr. Murphy was not in his quarters, the boys, impelled apparently by youthful curiosity and
perhaps by the unusual interest which both seem to have taken in machinery, spent some time in
wandering about the company's premises. The visit was made on a Sunday afternoon, and it does not
appear that they saw or spoke to anyone after leaving the power house where they had asked for Mr.
Murphy.

After watching the operation of the travelling crane used in handling the defendant's coal, they walked
across the open space in the neighborhood of the place where the company dumped in the cinders
and ashes from its furnaces. Here they found some twenty or thirty brass fulminating caps scattered
on the ground. These caps are approximately of the size and appearance of small pistol cartridges
and each has attached to it two long thin wires by means of which it may be discharged by the use of
electricity. They are intended for use in the explosion of blasting charges of dynamite, and have in
themselves a considerable explosive power. After some discussion as to the ownership of the caps,
and their right to take them, the boys picked up all they could find, hung them on stick, of which each
took end, and carried them home. After crossing the footbridge, they met a little girl named Jessie
Adrian, less than 9 years old, and all three went to the home of the boy Manuel. The boys then made
a series of experiments with the caps. They trust the ends of the wires into an electric light socket and
obtained no result. They next tried to break the cap with a stone and failed. Manuel looked for a
hammer, but could not find one. Then they opened one of the caps with a knife, and finding that it was
filled with a yellowish substance they got matches, and David held the cap while Manuel applied a
lighted match to the contents. An explosion followed, causing more or less serious injuries to all three.
Jessie, who when the boys proposed putting a match to the contents of the cap, became frightened
and started to run away, received a slight cut in the neck. Manuel had his hand burned and wounded,
and David was struck in the face by several particles of the metal capsule, one of which injured his
right eye to such an extent as to the necessitate its removal by the surgeons who were called in to
care for his wounds.

The evidence does definitely and conclusively disclose how the caps came to be on the defendant's
premises, nor how long they had been there when the boys found them. It appears, however, that
some months before the accident, during the construction of the defendant's plant, detonating caps of
the same size and kind as those found by the boys were used in sinking a well at the power plant near
the place where the caps were found; and it also appears that at or about the time when these caps
were found, similarly caps were in use in the construction of an extension of defendant's street car line
to Fort William McKinley. The caps when found appeared to the boys who picked them up to have
been lying for a considerable time, and from the place where they were found would seem to have
been discarded as detective or worthless and fit only to be thrown upon the rubbish heap.

No measures seems to have been adopted by the defendant company to prohibit or prevent visitors
from entering and walking about its premises unattended, when they felt disposed so to do. As
admitted in defendant counsel's brief, "it is undoubtedly true that children in their play sometimes
crossed the foot bridge to the islands;" and, we may add, roamed about at will on the uninclosed
premises of the defendant, in the neighborhood of the place where the caps were found. There is
evidence that any effort ever was made to forbid these children from visiting the defendant company's
premises, although it must be assumed that the company or its employees were aware of the fact that
they not infrequently did so.

Two years before the accident, plaintiff spent four months at sea, as a cabin boy on one of the
interisland transports. Later he took up work in his father's office, learning mechanical drawing and
mechanical engineering. About a month after his accident he obtained employment as a mechanical
draftsman and continued in that employment for six months at a salary of P2.50 a day; and it appears
that he was a boy of more than average intelligence, taller and more mature both mentally and
physically than most boys of fifteen.

The facts set out in the foregoing statement are to our mind fully and conclusively established by the
evidence of record, and are substantially admitted by counsel. The only questions of fact which are
seriously disputed are plaintiff's allegations that the caps which were found by plaintiff on defendant
company's premises were the property of the defendant, or that they had come from its possession
and control, and that the company or some of its employees left them exposed on its premises at the
point where they were found.

The evidence in support of these allegations is meager, and the defendant company, apparently
relying on the rule of law which places the burden of proof of such allegations upon the plaintiff, offered
no evidence in rebuttal, and insists that plaintiff failed in his proof. We think, however, that plaintiff's
evidence is sufficient to sustain a finding in accord with his allegations in this regard.

It was proven that caps, similar to those found by plaintiff, were used, more or less extensively, on the
McKinley extension of the defendant company's track; that some of these caps were used in blasting
a well on the company's premises a few months before the accident; that not far from the place where
the caps were found the company has a storehouse for the materials, supplies and so forth, used by
it in its operations as a street railway and a purveyor of electric light; and that the place, in the
neighborhood of which the caps were found, was being used by the company as a sort of dumping
ground for ashes and cinders. Fulminating caps or detonators for the discharge by electricity of blasting
charges by dynamite are not articles in common use by the average citizen, and under all the
circumstances, and in the absence of all evidence to the contrary, we think that the discovery of twenty
or thirty of these caps at the place where they were found by the plaintiff on defendant's premises fairly
justifies the inference that the defendant company was either the owner of the caps in question or had
the caps under its possession and control. We think also that the evidence tends to disclose that these
caps or detonators were willfully and knowingly thrown by the company or its employees at the spot
where they were found, with the expectation that they would be buried out of the sight by the ashes
which it was engaged in dumping in that neighborhood, they being old and perhaps defective; and,
however this may be, we are satisfied that the evidence is sufficient to sustain a finding that the
company or some of its employees either willfully or through an oversight left them exposed at a point
on its premises which the general public, including children at play, where not prohibited from visiting,
and over which the company knew or ought to have known that young boys were likely to roam about
in pastime or in play.

Counsel for appellant endeavors to weaken or destroy the probative value of the facts on which these
conclusions are based by intimidating or rather assuming that the blasting work on the company's well
and on its McKinley extension was done by contractors. It was conclusively proven, however, that
while the workman employed in blasting the well was regularly employed by J. G. White and Co., a
firm of contractors, he did the work on the well directly and immediately under the supervision and
control of one of defendant company's foremen, and there is no proof whatever in the record that the
blasting on the McKinley extension was done by independent contractors. Only one witness testified
upon this point, and while he stated that he understood that a part of this work was done by contract,
he could not say so of his own knowledge, and knew nothing of the terms and conditions of the alleged
contract, or of the relations of the alleged contractor to the defendant company. The fact having been
proven that detonating caps were more or less extensively employed on work done by the defendant
company's directions and on its behalf, we think that the company should have introduced the
necessary evidence to support its contention if it wished to avoid the not unreasonable inference that
it was the owner of the material used in these operations and that it was responsible for tortious or
negligent acts of the agents employed therein, on the ground that this work had been intrusted to
independent contractors as to whose acts the maxim respondent superior should not be applied. If the
company did not in fact own or make use of caps such as those found on its premises, as intimated
by counsel, it was a very simple matter for it to prove that fact, and in the absence of such proof we
think that the other evidence in the record sufficiently establishes the contrary, and justifies the court
in drawing the reasonable inference that the caps found on its premises were its property, and were
left where they were found by the company or some of its employees.

Plaintiff appears to have rested his case, as did the trial judge his decision in plaintiff's favor, upon the
provisions of article 1089 of the Civil Code read together with articles 1902, 1903, and 1908 of that
code.

ART. 1089 Obligations are created by law, by contracts, by quasi-contracts, and illicit acts
and omissions or by those in which any kind of fault or negligence occurs.

ART. 1902 A person who by an act or omission causes damage to another when there is
fault or negligence shall be obliged to repair the damage so done.

ART. 1903 The obligation imposed by the preceding article is demandable, not only for
personal acts and omissions, but also for those of the persons for whom they should be
responsible.

The father, and on his death or incapacity the mother, is liable for the damages caused by
the minors who live with them.

xxx xxx xxx

Owners or directors of an establishment or enterprise are equally liable for damages caused
by their employees in the service of the branches in which the latter may be employed or on
account of their duties.

xxx xxx xxx

The liability referred to in this article shall cease when the persons mentioned therein prove
that they employed all the diligence of a good father of a family to avoid the damage.

ART. 1908 The owners shall also be liable for the damage caused —

1 By the explosion of machines which may not have been cared for with due diligence, and
for kindling of explosive substances which may not have been placed in a safe and proper
place.

Counsel for the defendant and appellant rests his appeal strictly upon his contention that the facts
proven at the trial do not established the liability of the defendant company under the provisions of
these articles, and since we agree with this view of the case, it is not necessary for us to consider the
various questions as to form and the right of action (analogous to those raised in the case of Rakes
vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359), which would, perhaps, be involved in a decision
affirming the judgment of the court below.

We agree with counsel for appellant that under the Civil Code, as under the generally accepted
doctrine in the United States, the plaintiff in an action such as that under consideration, in order to
establish his right to a recovery, must establish by competent evidence:

(1) Damages to the plaintiff.

(2) Negligence by act or omission of which defendant personally, or some person for whose
acts it must respond, was guilty.
 (3) The connection of cause and effect between the negligence and the damage.

These proposition are, of course, elementary, and do not admit of discussion, the real difficulty arising
in the application of these principles to the particular facts developed in the case under consideration.

It is clear that the accident could not have happened and not the fulminating caps been left exposed
at the point where they were found, or if their owner had exercised due care in keeping them in an
appropriate place; but it is equally clear that plaintiff would not have been injured had he not, for his
own pleasure and convenience, entered upon the defendant's premises, and strolled around thereon
without the express permission of the defendant, and had he not picked up and carried away the
property of the defendant which he found on its premises, and had he not thereafter deliberately cut
open one of the caps and applied a match to its contents.

But counsel for plaintiff contends that because of plaintiff's youth and inexperience, his entry upon
defendant company's premises, and the intervention of his action between the negligent act of
defendant in leaving the caps exposed on its premises and the accident which resulted in his injury
should not be held to have contributed in any wise to the accident, which should be deemed to be the
direct result of defendant's negligence in leaving the caps exposed at the place where they were found
by the plaintiff, and this latter the proximate cause of the accident which occasioned the injuries
sustained by him.

In support of his contention, counsel for plaintiff relies on the doctrine laid down in many of the courts
of last resort in the United States in the cases known as the "Torpedo" and "Turntable" cases, and the
cases based thereon.

In a typical cases, the question involved has been whether a railroad company is liable for an injury
received by an infant of tender years, who from mere idle curiosity, or for the purposes of amusement,
enters upon the railroad company's premises, at a place where the railroad company knew, or had
good reason to suppose, children would be likely to come, and there found explosive signal torpedoes
left unexposed by the railroad company's employees, one of which when carried away by the visitor,
exploded and injured him; or where such infant found upon the premises a dangerous machine, such
as a turntable, left in such condition as to make it probable that children in playing with it would be
exposed to accident or injury therefrom and where the infant did in fact suffer injury in playing with
such machine.

In these, and in great variety of similar cases, the great weight of authority holds the owner of the
premises liable.

As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657), wherein the principal question was
whether a railroad company was liable for in injury received by an infant while upon its premises, from
idle curiosity, or for purposes of amusement, if such injury was, under circumstances, attributable to
the negligence of the company), the principles on which these cases turn are that "while a railroad
company is not bound to the same degree of care in regard to mere strangers who are unlawfully upon
its premises that it owes to passengers conveyed by it, it is not exempt from responsibility to such
strangers for injuries arising from its negligence or from its tortious acts;" and that "the conduct of an
infant of tender years is not to be judged by the same rule which governs that of adult. While it is the
general rule in regard to an adult that to entitle him to recover damages for an injury resulting from the
fault or negligence of another he must himself have been free from fault, such is not the rule in regard
to an infant of tender years. The care and caution required of a child is according to his maturity and
capacity only, and this is to be determined in each case by the circumstances of the case."

The doctrine of the case of Railroad Company vs. Stout was vigorously controverted and sharply
criticized in several state courts, and the supreme court of Michigan in the case of Ryan vs. Towar
(128 Mich., 463) formally repudiated and disapproved the doctrine of the Turntable cases, especially
that laid down in Railroad Company vs. Stout, in a very able decision wherein it held, in the language
of the syllabus: (1) That the owner of the land is not liable to trespassers thereon for injuries sustained
by them, not due to his wanton or willful acts; (2) that no exception to this rule exists in favor of children
who are injured by dangerous machinery naturally calculated to attract them to the premises; (3) that
an invitation or license to cross the premises of another can not be predicated on the mere fact that
no steps have been taken to interfere with such practice; (4) that there is no difference between
children and adults as to the circumstances that will warrant the inference of an invitation or a license
to enter upon another's premises.
Similar criticisms of the opinion in the case of Railroad Company vs. Stout were indulged in by the
courts in Connecticut and Massachusetts. (Nolan vs. Railroad Co., 53 Conn., 461; 154 Mass., 349).
And the doctrine has been questioned in Wisconsin, Pennsylvania, New Hampshire, and perhaps in
other States.

On the other hand, many if not most of the courts of last resort in the United States, citing and
approving the doctrine laid down in England in the leading case of Lynch vs. Nurding (1 Q. B., 29, 35,
36), lay down the rule in these cases in accord with that announced in the Railroad Company vs. Stout
(supra), and the Supreme Court of the United States, in a unanimous opinion delivered by Justice
Harlan in the case of Union Pacific Railway Co. vs. McDonal and reconsidered the doctrine laid down
in Railroad Co. vs. Stout, and after an exhaustive and critical analysis and review of many of the
adjudged cases, both English and American, formally declared that it adhered "to the principles
announced in the case of Railroad Co. vs. Stout."

In the case of Union Pacific Railway Co. vs. MacDonald (supra) the facts were as follows: The plaintiff,
a boy 12 years of age, out of curiosity and for his own pleasure, entered upon and visited the
defendant's premises, without defendant's express permission or invitation, and while there, was by
accident injured by falling into a burning slack pile of whose existence he had no knowledge, but which
had been left by defendant on its premises without any fence around it or anything to give warning of
its dangerous condition, although defendant knew or had reason the interest or curiosity of passers-
by. On these facts the court held that the plaintiff could not be regarded as a mere trespasser, for
whose safety and protection while on the premises in question, against the unseen danger referred
to, the defendant was under no obligation to make provision.

We quote at length from the discussion by the court of the application of the principles involved to the
facts in that case, because what is said there is strikingly applicable in the case at bar, and would
seem to dispose of defendant's contention that, the plaintiff in this case being a trespasser, the
defendant company owed him no duty, and in no case could be held liable for injuries which would not
have resulted but for the entry of plaintiff on defendant's premises.

We adhere to the principles announced in Railroad Co. vs. Stout (supra). Applied to the case
now before us, they require us to hold that the defendant was guilty of negligence in leaving
unguarded the slack pile, made by it in the vicinity of its depot building. It could have
forbidden all persons from coming to its coal mine for purposes merely of curiosity and
pleasure. But it did not do so. On the contrary, it permitted all, without regard to age, to visit
its mine, and witness its operation. It knew that the usual approach to the mine was by a
narrow path skirting its slack pit, close to its depot building, at which the people of the village,
old and young, would often assemble. It knew that children were in the habit of frequenting
that locality and playing around the shaft house in the immediate vicinity of the slack pit. The
slightest regard for the safety of these children would have suggested that they were in
danger from being so near a pit, beneath the surface of which was concealed (except when
snow, wind, or rain prevailed) a mass of burning coals into which a child might accidentally
fall and be burned to death. Under all the circumstances, the railroad company ought not to
be heard to say that the plaintiff, a mere lad, moved by curiosity to see the mine, in the
vicinity of the slack pit, was a trespasser, to whom it owed no duty, or for whose protection it
was under no obligation to make provisions.

In Townsend vs. Wathen (9 East, 277, 281) it was held that if a man dangerous traps, baited
with flesh, in his own ground, so near to a highway, or to the premises of another, that dogs
passing along the highway, or kept in his neighbors premises, would probably be attracted
by their instinct into the traps, and in consequence of such act his neighbor's dogs be so
attracted and thereby injured, an action on the case would lie. "What difference," said Lord
Ellenborough, C.J., "is there in reason between drawing the animal into the trap by means of
his instinct which he can not resist, and putting him there by manual force?" What difference,
in reason we may observe in this case, is there between an express license to the children of
this village to visit the defendant's coal mine, in the vicinity of its slack pile, and an implied
license, resulting from the habit of the defendant to permit them, without objection or
warning, to do so at will, for purposes of curiosity or pleasure? Referring it the case of
Townsend vs. Wathen, Judge Thompson, in his work on the Law of Negligence, volume 1,
page 305, note, well says: "It would be a barbarous rule of law that would make the owner of
land liable for setting a trap thereon, baited with stinking meat, so that his neighbor's dog
attracted by his natural instinct, might run into it and be killed, and which would exempt him
from liability for the consequence of leaving exposed and unguarded on his land a
 dangerous machine, so that his neighbor's child attracted to it and tempted to intermeddle
with it by instincts equally strong, might thereby be killed or maimed for life."

Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the case of Powers vs.
Harlow (53 Mich., 507), said that (p. 515):

Children, wherever they go, must be expected to act upon childlike instincts and impulses;
and others who are chargeable with a duty of care and caution toward them must calculate
upon this, and take precautions accordingly. If they leave exposed to the observation of
children anything which would be tempting to them, and which they in their immature
judgment might naturally suppose they were at liberty to handle or play with, they should
expect that liberty to be taken.

And the same eminent jurist in his treatise or torts, alluding to the doctrine of implied invitation to visit
the premises of another, says:

In the case of young children, and other persons not fully sui juris, an implied license might
sometimes arise when it would not on behalf of others. Thus leaving a tempting thing for
children to play with exposed, where they would be likely to gather for that purpose, may be
equivalent to an invitation to them to make use of it; and, perhaps, if one were to throw away
upon his premises, near the common way, things tempting to children, the same implication
should arise. (Chap. 10, p. 303.)

The reasoning which led the Supreme Court of the United States to its conclusion in the cases of
Railroad Co. vs. Stout (supra) and Union Pacific Railroad Co. vs. McDonald (supra) is not less cogent
and convincing in this jurisdiction than in that wherein those cases originated. Children here are
actuated by similar childish instincts and impulses. Drawn by curiosity and impelled by the restless
spirit of youth, boys here as well as there will usually be found whenever the public is permitted to
congregate. The movement of machinery, and indeed anything which arouses the attention of the
young and inquiring mind, will draw them to the neighborhood as inevitably as does the magnet draw
the iron which comes within the range of its magnetic influence. The owners of premises, therefore,
whereon things attractive to children are exposed, or upon which the public are expressly or impliedly
permitted to enter or upon which the owner knows or ought to know children are likely to roam about
for pastime and in play, " must calculate upon this, and take precautions accordingly." In such cases
the owner of the premises can not be heard to say that because the child has entered upon his
premises without his express permission he is a trespasser to whom the owner owes no duty or
obligation whatever. The owner's failure to take reasonable precautions to prevent the child from
entering his premises at a place where he knows or ought to know that children are accustomed to
roam about of to which their childish instincts and impulses are likely to attract them is at least
equivalent to an implied license to enter, and where the child does enter under such conditions the
owner's failure to take reasonable precautions to guard the child against injury from unknown or
unseen dangers, placed upon such premises by the owner, is clearly a breach of duty, responsible, if
the child is actually injured, without other fault on its part than that it had entered on the premises of a
stranger without his express invitation or permission. To hold otherwise would be expose all the
children in the community to unknown perils and unnecessary danger at the whim of the owners or
occupants of land upon which they might naturally and reasonably be expected to enter.

This conclusion is founded on reason, justice, and necessity, and neither is contention that a man has
a right to do what will with his own property or that children should be kept under the care of their
parents or guardians, so as to prevent their entering on the premises of others is of sufficient weight
to put in doubt. In this jurisdiction as well as in the United States all private property is acquired and
held under the tacit condition that it shall not be so used as to injure the equal rights and interests of
the community (see U. S. vs. Toribio,1 No. 5060, decided January 26, 1910), and except as to infants
of very tender years it would be absurd and unreasonable in a community organized as is that in which
we lived to hold that parents or guardian are guilty of negligence or imprudence in every case wherein
they permit growing boys and girls to leave the parental roof unattended, even if in the event of
accident to the child the negligence of the parent could in any event be imputed to the child so as to
deprive it a right to recover in such cases — a point which we neither discuss nor decide.

But while we hold that the entry of the plaintiff upon defendant's property without defendant's express
invitation or permission would not have relieved defendant from responsibility for injuries incurred there
by plaintiff, without other fault on his part, if such injury were attributable to the negligence of the
defendant, we are of opinion that under all the circumstances of this case the negligence of the
defendant in leaving the caps exposed on its premises was not the proximate cause of the injury
received by the plaintiff, which therefore was not, properly speaking, "attributable to the negligence of
the defendant," and, on the other hand, we are satisfied that plaintiffs action in cutting open the
detonating cap and putting match to its contents was the proximate cause of the explosion and of the
resultant injuries inflicted upon the plaintiff, and that the defendant, therefore is not civilly responsible
for the injuries thus incurred.

Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that because of plaintiff's
youth the intervention of his action between the negligent act of the defendant in leaving the caps
exposed on its premises and the explosion which resulted in his injury should not be held to have
contributed in any wise to the accident; and it is because we can not agree with this proposition,
although we accept the doctrine of the Turntable and Torpedo cases, that we have thought proper to
discuss and to consider that doctrine at length in this decision. As was said in case of Railroad Co. vs.
Stout (supra), "While it is the general rule in regard to an adult that to entitle him to recover damages
for an injury resulting from the fault or negligence of another he must himself have been free from fault,
such is not the rule in regard to an infant of tender years. The care and caution required of a child is
according to his maturity and capacity only, and this is to be determined in each case by the
circumstances of the case." As we think we have shown, under the reasoning on which rests the
doctrine of the Turntable and Torpedo cases, no fault which would relieve defendant of responsibility
for injuries resulting from its negligence can be attributed to the plaintiff, a well-grown boy of 15 years
of age, because of his entry upon defendant's uninclosed premises without express permission or
invitation' but it is wholly different question whether such youth can be said to have been free from
fault when he willfully and deliberately cut open the detonating cap, and placed a match to the
contents, knowing, as he undoubtedly did, that his action would result in an explosion. On this point,
which must be determined by "the particular circumstances of this case," the doctrine laid down in the
Turntable and Torpedo cases lends us no direct aid, although it is worthy of observation that in all of
the "Torpedo" and analogous cases which our attention has been directed, the record discloses that
the plaintiffs, in whose favor judgments have been affirmed, were of such tender years that they were
held not to have the capacity to understand the nature or character of the explosive instruments which
fell into their hands.

In the case at bar, plaintiff at the time of the accident was a well-grown youth of 15, more mature both
mentally and physically than the average boy of his age; he had been to sea as a cabin boy; was able
to earn P2.50 a day as a mechanical draftsman thirty days after the injury was incurred; and the record
discloses throughout that he was exceptionally well qualified to take care of himself. The evidence of
record leaves no room for doubt that, despite his denials on the witness stand, he well knew the
explosive character of the cap with which he was amusing himself. The series of experiments made
by him in his attempt to produce an explosion, as described by the little girl who was present, admit of
no other explanation. His attempt to discharge the cap by the use of electricity, followed by his efforts
to explode it with a stone or a hammer, and the final success of his endeavors brought about by the
application of a match to the contents of the caps, show clearly that he knew what he was about. Nor
can there be any reasonable doubt that he had reason to anticipate that the explosion might be
dangerous, in view of the fact that the little girl, 9 years of age, who was within him at the time when
he put the match to the contents of the cap, became frightened and ran away.

True, he may not have known and probably did not know the precise nature of the explosion which
might be expected from the ignition of the contents of the cap, and of course he did not anticipate the
resultant injuries which he incurred; but he well knew that a more or less dangerous explosion might
be expected from his act, and yet he willfully, recklessly, and knowingly produced the explosion. It
would be going far to say that "according to his maturity and capacity" he exercised such and "care
and caution" as might reasonably be required of him, or that defendant or anyone else should be held
civilly responsible for injuries incurred by him under such circumstances.

The law fixes no arbitrary age at which a minor can be said to have the necessary capacity to
understand and appreciate the nature and consequences of his own acts, so as to make it negligence
on his part to fail to exercise due care and precaution in the commission of such acts; and indeed it
would be impracticable and perhaps impossible so to do, for in the very nature of things the question
of negligence necessarily depends on the ability of the minor to understand the character of his own
acts and their consequences; and the age at which a minor can be said to have such ability will
necessarily depends of his own acts and their consequences; and at the age at which a minor can be
said to have such ability will necessarily vary in accordance with the varying nature of the infinite
variety of acts which may be done by him. But some idea of the presumed capacity of infants under
the laws in force in these Islands may be gathered from an examination of the varying ages fixed by
our laws at which minors are conclusively presumed to be capable of exercising certain rights and
incurring certain responsibilities, though it can not be said that these provisions of law are of much
practical assistance in cases such as that at bar, except so far as they illustrate the rule that the
capacity of a minor to become responsible for his own acts varies with the varying circumstances of
each case. Under the provisions of the Penal Code a minor over fifteen years of age is presumed to
be capable of committing a crime and is to held criminally responsible therefore, although the fact that
he is less than eighteen years of age will be taken into consideration as an extenuating circumstance
(Penal Code, arts. 8 and 9). At 10 years of age a child may, under certain circumstances, choose
which parent it prefers to live with (Code of Civil Procedure, sec. 771). At 14 may petition for the
appointment of a guardian (Id., sec. 551), and may consent or refuse to be adopted (Id., sec. 765).
And males of 14 and females of 12 are capable of contracting a legal marriage (Civil Code, art. 83; G.
O., No. 68, sec. 1).

We are satisfied that the plaintiff in this case had sufficient capacity and understanding to be sensible
of the danger to which he exposed himself when he put the match to the contents of the cap; that he
was sui juris in the sense that his age and his experience qualified him to understand and appreciate
the necessity for the exercise of that degree of caution which would have avoided the injury which
resulted from his own deliberate act; and that the injury incurred by him must be held to have been the
direct and immediate result of his own willful and reckless act, so that while it may be true that these
injuries would not have been incurred but for the negligence act of the defendant in leaving the caps
exposed on its premises, nevertheless plaintiff's own act was the proximate and principal cause of the
accident which inflicted the injury.

The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non intelligitur sentire. (Digest,
book 50, tit. 17 rule 203.)

The Patidas contain the following provisions:

The just thing is that a man should suffer the damage which comes to him through his own
fault, and that he can not demand reparation therefor from another. (Law 25, tit. 5, Partida 3.)

And they even said that when a man received an injury through his own acts the grievance
should be against himself and not against another. (Law 2, tit. 7, Partida 2.)

According to ancient sages, when a man received an injury through his own acts the
grievance should be against himself and not against another. (Law 2, tit. 7 Partida 2.)

And while there does not appear to be anything in the Civil Code which expressly lays down the law
touching contributory negligence in this jurisdiction, nevertheless, the interpretation placed upon its
provisions by the supreme court of Spain, and by this court in the case of Rakes vs. Atlantic, Gulf and
Pacific Co. (7 Phil. Rep., 359), clearly deny to the plaintiff in the case at bar the right to recover
damages from the defendant, in whole or in part, for the injuries sustained by him.

The judgment of the supreme court of Spain of the 7th of March, 1902 (93 Jurisprudencia Civil, 391),
is directly in point. In that case the court said:

According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence is a
source of obligation when between such negligence and the injury there exists the relation of
cause and effect; but if the injury produced should not be the result of acts or omissions of a
third party, the latter has no obligation to repair the same, although such acts or omission
were imprudent or unlawful, and much less when it is shown that the immediate cause of the
injury was the negligence of the injured party himself.

The same court, in its decision of June 12, 1900, said that "the existence of the alleged fault or
negligence is not sufficient without proof that it, and no other cause, gave rise to the damage."

See also judgment of October 21, 1903.

To similar effect Scaevola, the learned Spanish writer, writing under that title in his
Jurisprudencia del Codigo Civil (1902 Anuario, p. 455), commenting on the decision of March
7, 1902 of the Civil Code, fault or negligence gives rise to an obligation when between it and
the damage there exists the relation of cause and effect; but if the damage caused does not
arise from the acts or omissions of a third person, there is no obligation to make good upon
the latter, even though such acts or omissions be imprudent or illegal, and much less so
 when it is shown that the immediate cause of the damage has been the recklessness of the
injured party himself.

And again —

In accordance with the fundamental principle of proof, that the burden thereof is upon the
plaintiff, it is apparent that it is duty of him who shall claim damages to establish their
existence. The decisions of April 9, 1896, and March 18, July, and September 27, 1898,
have especially supported the principle, the first setting forth in detail the necessary points of
the proof, which are two: An act or omission on the part of the person who is to be charged
with the liability, and the production of the damage by said act or omission.

This includes, by inference, the establishment of a relation of cause or effect between the act
or omission and the damage; the latter must be the direct result of one of the first two. As the
decision of March 22, 1881, said, it is necessary that the damages result immediately and
directly from an act performed culpably and wrongfully; "necessarily presupposing a legal
ground for imputability." (Decision of October 29, 1887.)

Negligence is not presumed, but must be proven by him who alleges it. (Scavoela,
Jurisprudencia del Codigo Civil, vol. 6, pp. 551-552.)

(Cf. decisions of supreme court of Spain of June 12, 1900, and June 23, 1900.)

Finally we think the doctrine in this jurisdiction applicable to the case at bar was definitely settled in
this court in the maturely considered case of Rakes vs. Atlantic, Gulf and Pacific Co. (supra), wherein
we held that while "There are many cases (personal injury cases) was exonerated," on the ground that
"the negligence of the plaintiff was the immediate cause of the casualty" (decisions of the 15th of
January, the 19th of February, and the 7th of March, 1902, stated in Alcubilla's Index of that year);
none of the cases decided by the supreme court of Spain "define the effect to be given the negligence
of its causes, though not the principal one, and we are left to seek the theory of the civil law in the
practice of other countries;" and in such cases we declared that law in this jurisdiction to require the
application of "the principle of proportional damages," but expressly and definitely denied the right of
recovery when the acts of the injured party were the immediate causes of the accident.

The doctrine as laid down in that case is as follows:

Difficulty seems to be apprehended in deciding which acts of the injured party shall be
considered immediate causes of the accident. The test is simple. Distinction must be made
between the accident and the injury, between the event itself, without which there could have
been no accident, and those acts of the victim not entering into it, independent of it, but
contributing to his own proper hurt. For instance, the cause of the accident under review was
the displacement of the crosspiece or the failure to replace it. This produces the event giving
occasion for damages—that is, the sinking of the track and the sliding of the iron rails. To this
event, the act of the plaintiff in walking by the side of the car did not contribute, although it
was an element of the damage which came to himself. Had the crosspiece been out of place
wholly or partly through his act or omission of duty, that would have been one of the
determining causes of the event or accident, for which he would have been responsible.
Where he contributes to the principal occurrence, as one of its determining factors, he can
not recover. Where, in conjunction with the occurrence, he contributes only to his own injury,
he may recover the amount that the defendant responsible for the event should pay for such
injury, less a sum deemed a suitable equivalent for his own imprudence.

We think it is quite clear that under the doctrine thus stated, the immediate cause of the explosion, the
accident which resulted in plaintiff's injury, was in his own act in putting a match to the contents of the
cap, and that having "contributed to the principal occurrence, as one of its determining factors, he can
not recover."

We have not deemed it necessary to examine the effect of plaintiff's action in picking up upon
defendant's premises the detonating caps, the property of defendant, and carrying the relation of
cause and effect between the negligent act or omission of the defendant in leaving the caps exposed
on its premises and the injuries inflicted upon the plaintiff by the explosion of one of these caps. Under
the doctrine of the Torpedo cases, such action on the part of an infant of very tender years would have
no effect in relieving defendant of responsibility, but whether in view of the well-known fact admitted
in defendant's brief that "boys are snappers-up of unconsidered trifles," a youth of the age and maturity
of plaintiff should be deemed without fault in picking up the caps in question under all the
circumstances of this case, we neither discuss nor decide.

Twenty days after the date of this decision let judgment be entered reversing the judgment of the court
below, without costs to either party in this instance, and ten days thereafter let the record be returned
to the court wherein it originated, where the judgment will be entered in favor of the defendant for the
costs in first instance and the complaint dismissed without day. So ordered.

Arellano, C.J., Torres and Moreland, JJ., concur.

Johnson, J., concurs in the result.

FIRST DIVISION

[G.R. No. 129792. December 21, 1999]

JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE

TIOPE and ELISA PANELO, petitioners, vs. HONORABLE COURT OF
APPEALS, CONRADO C. AGUILAR and CRISELDA R. AGUILAR,
respondents.

DECISION
DAVIDE, JR., C.J.:

In this petition for review on certiorari under Rule 45 of the Rules of Court, petitioners
seek the reversal of the 17 June 1996 decisioni of the Court of Appeals in C.A. G.R. No. CV
37937 and the resolutioniidenying their motion for reconsideration. The assailed decision set
aside the 15 January 1992 judgment of the Regional Trial Court (RTC), Makati City, Branch
60 in Civil Case No. 7119 and ordered petitioners to pay damages and attorneys fees to private
respondents Conrado and Criselda (CRISELDA) Aguilar.
Petitioner Jarco Marketing Corporation is the owner of Syvels Department Store, Makati
City. Petitioners Leonardo Kong, Jose Tiope and Elisa Panelo are the stores branch manager,
operations manager, and supervisor, respectively. Private respondents are spouses and the
parents of Zhieneth Aguilar (ZHIENETH).
In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the 2nd floor of
Syvels Department Store, Makati City. CRISELDA was signing her credit card slip at the
payment and verification counter when she felt a sudden gust of wind and heard a loud thud.
She looked behind her. She then beheld her daughter ZHIENETH on the floor, her young body
pinned by the bulk of the stores gift-wrapping counter/structure. ZHIENETH was crying and
screaming for help. Although shocked, CRISELDA was quick to ask the assistance of the
people around in lifting the counter and retrieving ZHIENETH from the floor.iii
ZHIENETH was quickly rushed to the Makati Medical Center where she was operated
on. The next day ZHIENETH lost her speech and thereafter communicated with CRISELDA
by writing on a magic slate. The injuries she sustained took their toil on her young body. She
died fourteen (14) days after the accident or on 22 May 1983, on the hospital bed. She was six
years old.iv
The cause of her death was attributed to the injuries she sustained. The provisional
medical certificatev issued by ZHIENETHs attending doctor described the extent of her
injuries:
Diagnoses:
 1. Shock, severe, sec. to intra-abdominal injuries due to blunt injury
2. Hemorrhage, massive, intraperitoneal sec. to laceration, (L) lobe liver
3. Rupture, stomach, anterior & posterior walls
4. Complete transection, 4th position, duodenum
5. Hematoma, extensive, retroperitoneal
6. Contusion, lungs, severe
CRITICAL
After the burial of their daughter, private respondents demanded upon petitioners the
reimbursement of the hospitalization, medical bills and wake and funeral expensesvi which
they had incurred. Petitioners refused to pay. Consequently, private respondents filed a
complaint for damages, docketed as Civil Case No. 7119 wherein they sought the payment of
P157,522.86 for actual damages, P300,000 for moral damages, P20,000 for attorneys fees and
an unspecified amount for loss of income and exemplary damages.
In their answer with counterclaim, petitioners denied any liability for the injuries and
consequent death of ZHIENETH. They claimed that CRISELDA was negligent in exercising
care and diligence over her daughter by allowing her to freely roam around in a store filled
with glassware and appliances. ZHIENETH too, was guilty of contributory negligence since
she climbed the counter, triggering its eventual collapse on her. Petitioners also emphasized
that the counter was made of sturdy wood with a strong support; it never fell nor collapsed for
the past fifteen years since its construction.
Additionally, petitioner Jarco Marketing Corporation maintained that it observed the
diligence of a good father of a family in the selection, supervision and control of its employees.
The other petitioners likewise raised due care and diligence in the performance of their duties
and countered that the complaint was malicious for which they suffered besmirched reputation
and mental anguish. They sought the dismissal of the complaint and an award of moral and
exemplary damages and attorneys fees in their favor.
In its decisionvii the trial court dismissed the complaint and counterclaim after finding that
the preponderance of the evidence favored petitioners. It ruled that the proximate cause of the
fall of the counter on ZHIENETH was her act of clinging to it. It believed petitioners witnesses
who testified that ZHIENETH clung to the counter, afterwhich the structure and the girl fell
with the structure falling on top of her, pinning her stomach. In contrast, none of private
respondents witnesses testified on how the counter fell. The trial court also held that
CRISELDAs negligence contributed to ZHIENETHs accident.
In absolving petitioners from any liability, the trial court reasoned that the counter was
situated at the end or corner of the 2nd floor as a precautionary measure hence, it could not be
considered as an attractive nuisance.viii The counter was higher than ZHIENETH. It has been
in existence for fifteen years. Its structure was safe and well-balanced. ZHIENETH, therefore,
had no business climbing on and clinging to it.
Private respondents appealed the decision, attributing as errors of the trial court its
findings that: (1) the proximate cause of the fall of the counter was ZHIENETHs misbehavior;
(2) CRISELDA was negligent in her care of ZHIENETH; (3) petitioners were not negligent
in the maintenance of the counter; and (4) petitioners were not liable for the death of
ZHIENETH.
Further, private respondents asserted that ZHIENETH should be entitled to the conclusive
presumption that a child below nine (9) years is incapable of contributory negligence. And
even if ZHIENETH, at six (6) years old, was already capable of contributory negligence, still
it was physically impossible for her to have propped herself on the counter. She had a small
frame (four feet high and seventy pounds) and the counter was much higher and heavier than
she was. Also, the testimony of one of the stores former employees, Gerardo Gonzales, who
accompanied ZHIENETH when she was brought to the emergency room of the Makati
Medical Center belied petitioners theory that ZHIENETH climbed the counter. Gonzales
claimed that when ZHIENETH was asked by the doctor what she did, ZHIENETH replied,
[N]othing, I did not come near the counter and the counter just fell on me.ix Accordingly,
Gonzales testimony on ZHIENETHs spontaneous declaration should not only be considered
as part of res gestae but also accorded credit.
Moreover, negligence could not be imputed to CRISELDA for it was reasonable for her
to have let go of ZHIENETH at the precise moment that she was signing the credit card slip.
Finally, private respondents vigorously maintained that the proximate cause of
ZHIENETHs death, was petitioners negligence in failing to institute measures to have the
counter permanently nailed.
On the other hand, petitioners argued that private respondents raised purely factual issues
which could no longer be disturbed. They explained that ZHIENETHs death while unfortunate
and tragic, was an accident for which neither CRISELDA nor even ZHIENETH could entirely
be held faultless and blameless. Further, petitioners adverted to the trial courts rejection of
Gonzales testimony as unworthy of credence.
As to private respondents claim that the counter should have been nailed to the ground,
petitioners justified that it was not necessary. The counter had been in existence for several
years without any prior accident and was deliberately placed at a corner to avoid such
accidents. Truth to tell, they acted without fault or negligence for they had exercised due
diligence on the matter. In fact, the criminal casex for homicide through simple negligence
filed by private respondents against the individual petitioners was dismissed; a verdict of
acquittal was rendered in their favor.
The Court of Appeals, however, decided in favor of private respondents and reversed the
appealed judgment. It found that petitioners were negligent in maintaining a structurally
dangerous counter. The counter was shaped like an inverted Lxi with a top wider than the base.
It was top heavy and the weight of the upper portion was neither evenly distributed nor
supported by its narrow base. Thus, the counter was defective, unstable and dangerous; a
downward pressure on the overhanging portion or a push from the front could cause the
counter to fall. Two former employees of petitioners had already previously brought to the
attention of the management the danger the counter could cause. But the latter ignored their
concern. The Court of Appeals faulted the petitioners for this omission, and concluded that
the incident that befell ZHIENETH could have been avoided had petitioners repaired the
defective counter. It was inconsequential that the counter had been in use for some time
without a prior incident.
The Court of Appeals declared that ZHIENETH, who was below seven (7) years old at
the time of the incident, was absolutely incapable of negligence or other tort. It reasoned that
since a child under nine (9) years could not be held liable even for an intentional wrong, then
the six-year old ZHIENETH could not be made to account for a mere mischief or reckless act.
It also absolved CRISELDA of any negligence, finding nothing wrong or out of the ordinary
in momentarily allowing ZHIENETH to walk while she signed the document at the nearby
counter.
The Court of Appeals also rejected the testimonies of the witnesses of petitioners. It found
them biased and prejudiced. It instead gave credit to the testimony of disinterested witness
Gonzales. The Court of Appeals then awarded P99,420.86 as actual damages, the amount
representing the hospitalization expenses incurred by private respondents as evidenced by the
hospital's statement of account.xii It denied an award for funeral expenses for lack of proof to
substantiate the same. Instead, a compensatory damage of P50,000 was awarded for the death
of ZHIENETH.
We quote the dispositive portion of the assailed decision,xiii thus:
WHEREFORE, premises considered, the judgment of the lower court is SET ASIDE and another
one is entered against [petitioners], ordering them to pay jointly and severally unto [private
respondents] the following:
1. P50,000.00 by way of compensatory damages for the death of Zhieneth Aguilar, with legal
 interest (6% p.a.) from 27 April 1984;
2. P99,420.86 as reimbursement for hospitalization expenses incurred; with legal interest (6%
p.a.) from 27 April 1984;
3. P100,000.00 as moral and exemplary damages;
4. P20,000.00 in the concept of attorneys fees; and
5. Costs.
Private respondents sought a reconsideration of the decision but the same was denied in
the Court of Appeals resolutionxiv of 16 July 1997.
Petitioners now seek the reversal of the Court of Appeals decision and the reinstatement
of the judgment of the trial court. Petitioners primarily argue that the Court of Appeals erred
in disregarding the factual findings and conclusions of the trial court. They stress that since
the action was based on tort, any finding of negligence on the part of the private respondents
would necessarily negate their claim for damages, where said negligence was the proximate
cause of the injury sustained. The injury in the instant case was the death of ZHIENETH. The
proximate cause was ZHIENETHs act of clinging to the counter. This act in turn caused the
counter to fall on her. This and CRISELDAs contributory negligence, through her failure to
provide the proper care and attention to her child while inside the store, nullified private
respondents claim for damages. It is also for these reasons that parents are made accountable
for the damage or injury inflicted on others by their minor children. Under these
circumstances, petitioners could not be held responsible for the accident that befell
ZHIENETH.
Petitioners also assail the credibility of Gonzales who was already separated from Syvels
at the time he testified; hence, his testimony might have been tarnished by ill-feelings against
them.
For their part, private respondents principally reiterated their arguments that neither
ZHIENETH nor CRISELDA was negligent at any time while inside the store; the findings
and conclusions of the Court of Appeals are substantiated by the evidence on record; the
testimony of Gonzales, who heard ZHIENETH comment on the incident while she was in the
hospitals emergency room should receive credence; and finally, ZHIENETHs part of the res
gestae declaration that she did nothing to cause the heavy structure to fall on her should be
considered as the correct version of the gruesome events.
We deny the petition.
The two issues to be resolved are: (1) whether the death of ZHIENETH was accidental or
attributable to negligence; and (2) in case of a finding of negligence, whether the same was
attributable to private respondents for maintaining a defective counter or to CRISELDA and
ZHIENETH for failing to exercise due and reasonable care while inside the store premises.
An accident pertains to an unforeseen event in which no fault or negligence attaches to
the defendant.xv It is a fortuitous circumstance, event or happening; an event happening
without any human agency, or if happening wholly or partly through human agency, an event
which under the circumstances is unusual or unexpected by the person to whom it happens.xvi
On the other hand, negligence is the omission to do something which a reasonable man,
guided by those considerations which ordinarily regulate the conduct of human affairs, would
do, or the doing of something which a prudent and reasonable man would not do.xvii Negligence
is the failure to observe, for the protection of the interest of another person, that degree of care,
precaution and vigilance which the circumstances justly demand, whereby such other person
suffers injury.xviii
Accident and negligence are intrinsically contradictory; one cannot exist with the other.
Accident occurs when the person concerned is exercising ordinary care, which is not caused
by fault of any person and which could not have been prevented by any means suggested by
common prudence.xix
 The test in determining the existence of negligence is enunciated in the landmark case of
Picart v. Smith,xx thus: Did the defendant in doing the alleged negligent act use that reasonable
care and caution which an ordinarily prudent person would have used in the same situation?
If not, then he is guilty of negligence.xxi
We rule that the tragedy which befell ZHIENETH was no accident and that ZHIENETHs
death could only be attributed to negligence.
We quote the testimony of Gerardo Gonzales who was at the scene of the incident and
accompanied CRISELDA and ZHIENETH to the hospital:
Q While at the Makati Medical Center, did you hear or notice anything while the child was being
treated?
A At the emergency room we were all surrounding the child. And when the doctor asked the
child what did you do, the child said nothing, I did not come near the counter and the counter
just fell on me.
Q (COURT TO ATTY. BELTRAN)
You want the words in Tagalog to be translated?
ATTY. BELTRAN
Yes, your Honor.
COURT
Granted. Intercalate wala po, hindi po ako lumapit doon. Basta bumagsak.xxii
This testimony of Gonzales pertaining to ZHIENETHs statement formed (and should be
admitted as) part of the res gestae under Section 42, Rule 130 of the Rules of Court, thus:
Part of res gestae. Statements made by a person while a startling occurrence is taking place or
immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in
evidence as part of the res gestae. So, also, statements accompanying an equivocal act material to the
issue, and giving it a legal significance, may be received as part of the res gestae.
It is axiomatic that matters relating to declarations of pain or suffering and statements
made to a physician are generally considered declarations and admissions.xxiii All that is
required for their admissibility as part of the res gestae is that they be made or uttered under
the influence of a startling event before the declarant had the time to think and concoct a
falsehood as witnessed by the person who testified in court. Under the circumstances thus
described, it is unthinkable for ZHIENETH, a child of such tender age and in extreme pain, to
have lied to a doctor whom she trusted with her life. We therefore accord credence to Gonzales
testimony on the matter, i.e., ZHIENETH performed no act that facilitated her tragic death.
Sadly, petitioners did, through their negligence or omission to secure or make stable the
counters base.
Gonzales earlier testimony on petitioners insistence to keep and maintain the structurally
unstable gift-wrapping counter proved their negligence, thus:
Q When you assumed the position as gift wrapper at the second floor, will you please describe
the gift wrapping counter, were you able to examine?
A Because every morning before I start working I used to clean that counter and since it is not
nailed and it was only standing on the floor, it was shaky.
xxx
Q Will you please describe the counter at 5:00 oclock [sic] in the afternoon on [sic] May 9 1983?
A At that hour on May 9, 1983, that counter was standing beside the verification counter. And
since the top of it was heavy and considering that it was not nailed, it can collapse at anytime,
since the top is heavy.
xxx
Q And what did you do?
 A I informed Mr. Maat about that counter which is [sic] shaky and since Mr. Maat is
fond of putting display decorations on tables, he even told me that I would put some
decorations. But since I told him that it not [sic] nailed and it is shaky he told me better
inform also the company about it. And since the company did not do anything about
the counter, so I also did not do anything about the counter.xxiv [Emphasis supplied]
Ramon Guevarra, another former employee, corroborated the testimony of Gonzales,
thus:
Q Will you please described [sic] to the honorable Court the counter where you were assigned in
January 1983?
xxx
A That counter assigned to me was when my supervisor ordered me to carry that counter to
another place. I told him that the counter needs nailing and it has to be nailed because it might
cause injury or accident to another since it was shaky.
Q When that gift wrapping counter was transferred at the second floor on February 12, 1983, will
you please describe that to the honorable Court?
A I told her that the counter wrapper [sic] is really in good [sic] condition; it was shaky. I told
her that we had to nail it.
Q When you said she, to whom are you referring to [sic]?
A I am referring to Ms. Panelo, sir.
Q And what was the answer of Ms. Panelo when you told her that the counter was shaky?
A She told me Why do you have to teach me. You are only my subordinate and you are to teach
me? And she even got angry at me when I told her that.
xxx
Q From February 12, 1983 up to May 9, 1983, what if any, did Ms. Panelo or any employee of
the management do to that (sic)
xxx
Witness:
None, sir. They never nailed the counter. They only nailed the counter after the
accident happened.xxv [Emphasis supplied]
Without doubt, petitioner Panelo and another store supervisor were personally informed
of the danger posed by the unstable counter. Yet, neither initiated any concrete action to
remedy the situation nor ensure the safety of the stores employees and patrons as a reasonable
and ordinary prudent man would have done. Thus, as confronted by the situation petitioners
miserably failed to discharge the due diligence required of a good father of a family.
On the issue of the credibility of Gonzales and Guevarra, petitioners failed to establish
that the formers testimonies were biased and tainted with partiality. Therefore, the allegation
that Gonzales and Guevarras testimonies were blemished by ill feelings against petitioners
since they (Gonzales and Guevarra) were already separated from the company at the time their
testimonies were offered in court was but mere speculation and deserved scant consideration.
It is settled that when the issue concerns the credibility of witnesses, the appellate courts
will not as a general rule disturb the findings of the trial court, which is in a better position to
determine the same. The trial court has the distinct advantage of actually hearing the testimony
of and observing the deportment of the witnesses.xxvi However, the rule admits of exceptions
such as when its evaluation was reached arbitrarily or it overlooked or failed to appreciate
some facts or circumstances of weight and substance which could affect the result of the
case.xxvii In the instant case, petitioners failed to bring their claim within the exception.
Anent the negligence imputed to ZHIENETH, we apply the conclusive presumption that
favors children below nine (9) years old in that they are incapable of contributory negligence.
In his book,xxviii former Judge Cezar S. Sangco stated:
In our jurisdiction, a person under nine years of age is conclusively presumed to have acted
without discernment, and is, on that account, exempt from criminal liability. The same presumption
and a like exemption from criminal liability obtains in a case of a person over nine and under fifteen
years of age, unless it is shown that he has acted with discernment. Since negligence may be a felony
and a quasi-delict and required discernment as a condition of liability, either criminal or civil, a child
under nine years of age is, by analogy, conclusively presumed to be incapable of negligence; and that
the presumption of lack of discernment or incapacity for negligence in the case of a child over nine but
under fifteen years of age is a rebuttable one, under our law. The rule, therefore, is that a child under
nine years of age must be conclusively presumed incapable of contributory negligence as a matter of
law. [Emphasis supplied]
Even if we attribute contributory negligence to ZHIENETH and assume that she climbed
over the counter, no injury should have occurred if we accept petitioners theory that the
counter was stable and sturdy. For if that was the truth, a frail six-year old could not have
caused the counter to collapse. The physical analysis of the counter by both the trial court and
Court of Appeals and a scrutiny of the evidencexxixon record reveal otherwise, i.e., it was not
durable after all. Shaped like an inverted L, the counter was heavy, huge, and its top laden
with formica. It protruded towards the customer waiting area and its base was not secured.xxx
CRISELDA too, should be absolved from any contributory negligence. Initially,
ZHIENETH held on to CRISELDAs waist, later to the latters hand.xxxi CRISELDA
momentarily released the childs hand from her clutch when she signed her credit card slip. At
this precise moment, it was reasonable and usual for CRISELDA to let go of her child. Further,
at the time ZHIENETH was pinned down by the counter, she was just a foot away from her
mother; and the gift-wrapping counter was just four meters away from CRISELDA. xxxii The
time and distance were both significant. ZHIENETH was near her mother and did not loiter
as petitioners would want to impress upon us. She even admitted to the doctor who treated her
at the hospital that she did not do anything; the counter just fell on her.
WHEREFORE, in view of all the foregoing, the instant petition is DENIED and the
challenged decision of the Court of Appeals of 17 June 1996 in C.A. G.R. No. CV 37937 is
hereby AFFIRMED.
Costs against petitioners.
SO ORDERED.
Puno, Kapunan, Pardo, and Ynares-Santiago, JJ., concur.

i
Annex A of Petition; Rollo, 36-47. Per Justice Godardo A. Jacinto, with Justices Salome A. Montoya and Maximiano
C. Asuncion, concurring.
ii
Annex B of Petition; Rollo, 49.
iii
TSN, 13 February 1985, 5, 6, 7-8, 21-22, 31.
iv
Id., 32, 36, 42, 52.
v
Original Record (OR), 8.
vi
Exhibit H.
vii
OR, 603-612. Per Judge Pedro N. Lagui.
viii
One who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children
in play, and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable
to a child of tender years who is injured thereby, even if the child is technically a tresspasser in the premises.
The principal reason for the doctrine is that the condition or appliance in question although its danger is apparent to
those of age, is so enticing or alluring to children of tender years as to induce them to approach, get on or use it, and
this attractiveness is an implied invitation to such children. (Hidalgo Enterprises, Inc. v. Balandan, et al., 488, 490
[1952].
ix
TSN, 10 September 1987, 12.
x
Criminal Case No. 118986 filed with the Makati Metropolitan Trial Court, Branch 61.
xi
Exhibit D.
xii
Exhibit F.
xiii
Supra note 1.
xiv
Supra note 2.
xv
See Novo & Co. v. Ainsworth, 26 Phil. 380, 387 [1913].
xvi
Blacks Law Dictionary, 5th ed. 1979, 14.
xvii
McKee v. Intermediate Appellate Court, 211 SCRA 517, 539 [1992] citing Blacks Law Dictionary, 5th ed., 1979,
930.
xviii
U.S. v. Barias, 23 Phil. 434, 437 [1912] citing Judge Cooley's work on Torts, 3rd ed., 1324.
xix
See Cavanaugh v. Jepson Iowa, 167 N.W.2d 616, 623 [1969]. See also Restatement, Second, Torts 8.
xx
37 Phil. 809 [1918].
xxi
Ibid, 813.
xxii
TSN, 10 September 1987, 12, 13.
xxiii
Ricardo J. Francisco, III Evidence, 1997, 591 citing Keefe v. State of Arizona, 60 Ariz. 293; Stukas v. Warfield,
Pratt, Howell Co., 175 N.W. 81, 85 [1919].
xxiv
TSN, 10 September 1987, 8, 9, 11.
xxv
TSN, 2 October 1987, 9, 11.
xxvi
See BPI Credit Corporation v. Court of Appeals, 204 SCRA 601, 608 [1991]; Geronimo v. Court of Appeals, 224
SCRA 494, 498 [1993].
xxvii
Borillo v. Court of Appeals, 209 SCRA 130, 140-141 [1992]; McKee v. Intermediate Appellate Court, supra note
16, 537; Salvador v. Court of Appeals, 243 SCRA 239, 253 [1995].
xxviii
I Philippine Law On Torts And Damages, 70-71 (1993).
xxix
Exhibit D.
xxx
Exhibits K, M, and N. The counter was made of heavy wood measuring about 4 to 5 meters in height; 1 meter in
length; and 2 to 3 meters in width; with four (4) square legs. Its top was made of 5 inch thick wood covered by formica
about inch thick.
xxxi
TSN, 13 February 15, 20.
xxxii
Ibid., 11, 22.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-10563 March 2, 1916

THE UNITED STATES, plaintiff-appellee,

vs.
ANTONIO BONIFACIO, defendant-appellant.

William A. Kincaid and Thomas L. Hartigan for appellant.

Acting Attorney-General Zaragoza for appellee.

CARSON, J.:

The appellant in this case was charged in the court below with homicidio por imprudencia temeraria
(homicide committed with reckless negligence), and was convicted of homicidio committed with simple
negligence and sentenced to four months and one day of arresto mayor and to pay the costs of the
proceedings.

The information charges the commission of the offense as follows:

On or about the 31st day of October of the present year, 1913, in the barrio of Santa Rita of
the municipality of Batangas, Batangas, the accused, being an engineer and while
conducting the freight train which was going to the municipality of Bauan, at about 10 o'clock
in the morning of the said day saw that Eligio Castillo, a deaf-mute, was traveling along the
railroad track, and as the said Castillo did not get off of the said track in spite of the whistle or
warnings given by the accused, the accused did maliciously and criminally cause the said
train to run over the said Castillo, thereby killing him instantly; an act committed with violation
of law.

On the 31st of October, 1913, Eligio Castillo, a deaf-mute, was run down and killed, while attempting
to cross the railroad track in the barrio of Santa Rita, Batangas, by an engine on which the accused
was employed as engineer. The deaf-mute stepped out on the track from an adjoining field shortly
before the accident, walked along one side of the track for some little distance and was killed as he
attempted, for some unknown reason, to cross over to the other side.

When the accused engineer first saw the deceased, he was walking near the track, in the same
direction as that in which the train was running. The train, a heavy freight train, had just rounded a
curve, and the man in front was about 175 meters ahead of the engine. The engineer immediately
blew his whistle twice, and noticing, a few moments afterwards, that the man in front did not respond
to the warning by stepping aside from the track, he tried to slow down the engine, but did not succeed
in stopping in time to avoid running down the pedestrian. He did not attempt to stop his engine when
he first saw the man walking along the side of the track; but he claims that he did all in his power to
slow down a few moments afterwards, that is to say after he had blown his whistle without apparently
attracting the attention of the pedestrian, who, about that time, turned and attempted to cross the track.

The only evidence as to the rate of speed at which the train was running at the time of the accident
was the testimony of the accused himself, who said that his indicator showed that he was travelling at
the rate of 35 kilometers an hour, the maximum speed permitted under the railroad regulations for
freight trains on that road.

There was a heavy decline in the track from the turn at the curve to a point some distance beyond the
place where the accident took place, and the undisputed evidence discloses that a heavy freight train
running at the rate of 35 miles an hour could not be brought to a stop on that decline in much less than
one hundred and fifty meters.

We think that the meter statement of facts, as disclosed by the undisputed evidence of record,
sufficiently and conclusive demonstrates that the death of the deaf-mute was the result of a regrettable
accident, which was unavoidable so far as this accused was concerned.

It has been suggested that, had the accused applied his brakes when he first saw the man walking
near the track, after his engine rounded the curve, he might have stopped the train in time to have
avoided the accident, as it is admitted that the distance from the curve to the point where the accident
occurred was about 175 meters.

But there is no obligation on an engine driver to stop, or even to slow down his engine, when he sees
an adult pedestrian standing or walking on or near the track, unless there is something in the
appearance or conduct of the person on foot which would cause a prudent man to anticipate the
possibility that such person could not, or would not avoid the possibility of danger by stepping aside.
Ordinarily, all that may properly be required of an engine driver under such circumstances is that he
give warning of his approach, by blowing his whistle or ringing his bell until he is assured that the
attention of the pedestrian has been attracted to the oncoming train.

Of course it is the duty of an engine driver to adopt every measure in his power to avoid the infliction
of injury upon any person who may happen to be on the track in front of his engine, and to slow down,
or stop altogether if that be necessary, should he have reason to believe that only by doing so can an
accident be averted.
But an engine driver may fairly assume that all persons walking or standing on or near the railroad
track, except children of tender years, are aware of the danger to which they are exposed; and that
they will take reasonable precautions to avoid accident, by looking and listening for the approach of
trains, and stepping out of the way of danger when their attention is directed to an oncoming train.

Any other rule would render it impracticable to operate railroads so as to secure the expeditious
transportation of passengers and freight which the public interest demands. If engine drivers were
required to slow down or stop their trains every time they see a pedestrian on or near the track of the
railroad it might well become impossible for them to maintain a reasonable rate of speed. As a result
the general traveling public would be exposed to great inconvenience and delay which may be, and is
readily avoided by requiring all persons approaching a railroad track, to take reasonable precautions
against danger from trains running at high speed.

There was nothing in the appearance or conduct of the victim of the accident in the cast at bar which
would have warned the accused engine driver that the man walking along the side of the tract was a
deaf-mute, and that despite the blowing of the whistle and the noise of the engine he was unconscious
of his danger. It was not until the pedestrian attempted to cross the track, just in front of the train, that
the accused had any reason to believe that his warning signals had not been heard, and by that time
it was too late to avoid the accident. Under all the circumstances, we are satisfied that the accused
was without fault; and that the accident must be attributed wholly to the reckless negligence of the
deaf-mute, in walking on the track without taking the necessary precautions to avoid danger from a
train approaching him from behind.

The trial judge, although he was satisfied that the accused was not guilty of reckless negligence, held
that he was guilty of homicide through simple negligence, accompanied by a breach of speed
regulations, and imposed the penalty prescribed for that offense in article 568 of the Penal Code.

The only evidence as to the speed at which the train was running at the time of the accident was the
testimony of the accused himself, who said that before the accident occurred his indicator showed that
he was running at the rate of 35 kilometers an hour, the maximum speed authorized under the railroad
regulations. From this statement of the accused, taken together with the evidence disclosing that the
train was running on a down grade at the time when the accident occurred, the trial judge inferred that
the train must have been running at more than 35 miles an hour at that moment, that is to say at a
speed in excess of that allowed under the railroad regulations.

We are of opinion, however, that the evidence does not sustain a finding, beyond a reasonable doubt,
that the train was running at more than 35 miles an hour at the time when the accident occurred. We
think that the statement of the accused engineer that the indicator or his engine showed that he was
running at 35 miles an hour before the accident referred to the time immediately preceding the
accident. Even if it were true, as the trial judge inferred from his evidence, that the accused looked at
the indicator several seconds before the accident, and before the train entered on the down-grade
some 175 yards from the place at which it occurred, it does not necessarily follow that the speed of
travel was increased thereafter beyond the limit prescribed by regulations. That would depend to some
extent on the steam pressure maintained on the engine, and perhaps upon other factors not developed
in the record.

Mere conjecture, and inferences unsupported by satisfactory evidence, are not sufficient to establish
a material finding of fact upon which a finding of guilt, beyond a reasonable doubt, can be sustained.

Moreover, even if it were true that the train was running at a speed slightly in excess of the limit
prescribed by regulations, just before the accident took place, that fact would not justify or require the
imposition of the penalty prescribed in article 568 of the Criminal Code, it affirmatively appearing that
the slight excess of speed had no possible causal relation to the accident.

Granting it to be true, as found by the trial judge, that the train had gained some small addition in
speed beyond the authorized rate of travel, as a result of the fact that it was running on down grade
for about one hundred meters before the accident occurred, it affirmatively appears from the statement
of facts set forth above, that, under all the circumstances, the accident must have taken place whether
the speed had been slightly under rather than slightly over the limit prescribed by regulation, and that
it was due wholly to the negligent conduct of the deceased. The provisions of article 568 of the Criminal
Code under which the accused was convicted are as follows:

xxx xxx xxx

 Any person who, while violating any regulation, shall, by any act of imprudence or negligence
not amounting to reckless imprudence, commit an offense, shall suffer the penalty of arresto
mayor in its medium and maximum degrees.

This does not mean that in every case in which one accidentally injures or kills another he is criminally
liable therefor, if at the moment he happens to be guilty of a violation of some petty regulation
(reglamento). The injury or death must have resulted from some "imprudence or negligence"
(imprudencia o negligencia) on his part. True it need only be slight negligence, if accompanied by a
violation of the regulations, but the relation of cause and effect must exist between the negligence or
imprudence of the accused and the injury inflicted. If it appears that the injury in no wise resulted from
the violation of the regulations, or the negligent conduct of the accused, he incurs no criminal liability
under the provisions of this article.

Viada, in his commentaries on this article of the Penal Code (vol. 3, p. 685), sets out the following
question and answer which clearly discloses that a conviction thereunder cannot be maintained,
unless there was culpable negligence in the violation of a duly prescribed regulation; and unless,
further, the latter was the proximate and immediate cause of the injury inflicted:

Question No. 17. — A pharmacist left his store forgetting and leaving behind the keys to the
case where the most powerful drugs were kept. During his absence his clerk filled a
prescription which he believed was duly made out by a physician but which, in fact, was
signed by an unauthorized person. The prescription called for certain substances which were
afterwards employed to procure an abortion. These substances, according to a medical
report, were of a poisonous and extremely powerful nature such as should be most carefully
safeguarded and only expended after ratification of the prescription in accordance with article
20 of the ordinance relating to the practice of pharmacy. Under these circumstances would it
be proper to consider the pharmacist as guilty of the offense of simple imprudence with
violation of the regulation of the said faculty? The Supreme Court has decided this question
in the negative on the ground that the fact of the pharmacist having forgotten and left behind,
during the short time he was out walking, the key of the closet in which in conformity with the
pharmacy ordinances, he kept the most powerful and active drugs, properly considered,
does not constitute the culpable negligence referred to in article 581 of the Penal Code, nor
was it the proximate and immediate cause of the said prescription being filled in his store
without being properly ratified by the physician who signed it, as required by the said
ordinances. The Court held, therefore, that the trial court committed an error of law in holding
the appellant liable. (Decision of December 23, 19881; Official Gazette of April 14, 1882.)

See also the recent decision of the Tribunal Supremo de España dated July 11, 1906, wherein the
doctrine is reaffirmed in a case involving the alleged negligence of certain railroad employees in
handling railroad cars.

Doubtless a presumption of negligence will frequently arise from the very fact that an accident occurred
at the time when the accused was violating a regulation; especially if the regulation has for its object
the avoidance of such an accident. But this presumption may, of course, be rebutted in criminal as
well as in civil cases by competent evidence. In the Federal Court of the United States the rule is
stated as follows:

Where a ship at the time of collision is in actual violation of a statutory rule intended to
prevent collisions the burden is upon her of showing that her fault could not have been a
contributory cause of the collision. (7 Cyc., 370 and numerous other cases there cited.)

The evidence of record in the case at bar clearly and satisfactorily discloses that even if the train was
running at a speed slightly in excess of the maximum speed prescribed in the regulations, that fact
had no causal relation to the accident and in no wise contributed to it.

The judgment convicting and sentencing the appellant in this case should be reversed, and the
accused acquitted of the offense with which he is charged in the information, and his bail bond
exonerated, with the costs of both instances de officio. So ordered.

Arellano, C. J., Johnson, Trent, and Araullo, JJ., concur.

Separate Opinions

TORRES, J., dissenting:

The writer is of the opinion that the defendant should be sentenced for the crime of reckless negligence
to eight months of prision correccional, the accessories, indemnity and costs with subsidiary
imprisonment.

SECOND DIVISION

ANTONIO FRANCISCO, substituted by G.R. No. 193577

his heirs: NELIA E.S. FRANCISCO,
EMILIA F. BERTIZ, REBECCA E.S.
FRANCISCO, ANTONIO E.S.
FRANCISCO, JR., SOCORRO F. Present:
FONTANILLA, and JOVITO E.S.
FRANCISCO,
CARPIO, J., Chairperson,
Petitioners,
BRION,

PERALTA,*

- versus - PEREZ, and

MENDOZA,** JJ.

CHEMICAL BULK CARRIERS,

INCORPORATED,
Promulgated:
Respondent.

September 7, 2011

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

CARPIO, J.:
 The Case

This is a petition for review1 of the 31 May 2010 Decision2 and 31 August 2010
Resolution3 of the Court of Appeals in CA G.R. CV No. 63591. In its 31 May 2010
Decision, the Court of Appeals set aside the 21 August 1998 Decision4 of the
Regional Trial of Pasig City, Branch 71 (trial court), and ordered petitioner Antonio
Francisco (Francisco) to pay respondent Chemical Bulk Carriers, Incorporated (CBCI)
P1,119,905 as actual damages. In its 31 August 2010 Resolution, the Court of Appeals
denied Franciscos motion for reconsideration.

The Facts

Since 1965, Francisco was the owner and manager of a Caltex station in Teresa, Rizal.
Sometime in March 1993, four persons, including Gregorio Bacsa (Bacsa), came to
Franciscos Caltex station and introduced themselves as employees of CBCI. Bacsa
offered to sell to Francisco a certain quantity of CBCIs diesel fuel.

After checking Bacsas identification card, Francisco agreed to purchase CBCIs diesel
fuel. Francisco imposed the following conditions for the purchase: (1) that Petron
Corporation (Petron) should deliver the diesel fuel to Francisco at his business address
which should be properly indicated in Petrons invoice; (2) that the delivery tank is
sealed; and (3) that Bacsa should issue a separate receipt to Francisco.

The deliveries started on 5 April 1993 and lasted for ten months, or up to 25 January
1994.5 There were 17 deliveries to Francisco and all his conditions were complied
with.

In February 1996, CBCI sent a demand letter to Francisco regarding the diesel fuel
delivered to him but which had been paid for by CBCI.6 CBCI demanded that
Francisco pay CBCI P1,053,527 for the diesel fuel or CBCI would file a complaint
against him in court. Francisco rejected CBCIs demand.

On 16 April 1996, CBCI filed a complaint for sum of money and damages against
Francisco and other unnamed defendants.7 According to CBCI, Petron, on various
dates, sold diesel fuel to CBCI but these were delivered to and received by Francisco.
Francisco then sold the diesel fuel to third persons from whom he received payment.
CBCI alleged that Francisco acquired possession of the diesel fuel without authority
from CBCI and deprived CBCI of the use of the diesel fuel it had paid for. CBCI
demanded payment from Francisco but he refused to pay. CBCI argued that Francisco
should have known that since only Petron, Shell and Caltex are authorized to sell and
distribute petroleum products in the Philippines, the diesel fuel came from
illegitimate, if not illegal or criminal, acts. CBCI asserted that Francisco violated
Articles 19,8 20,9 21,10 and 2211 of the Civil Code and that he should be held liable. In
the alternative, CBCI claimed that Francisco, in receiving CBCIs diesel fuel, entered
into an innominate contract of do ut des (I give and you give) with CBCI for which
Francisco is obligated to pay CBCI P1,119,905, the value of the diesel fuel. CBCI also
prayed for exemplary damages, attorneys fees and other expenses of litigation.

On 20 May 1996, Francisco filed a Motion to Dismiss on the ground of forum

shopping.12 CBCI filed its Opposition.13 In an Order dated 15 November 1996, the
trial court denied Franciscos motion.14

Thereafter, Francisco filed his Answer.15 Francisco explained that he operates the
Caltex station with the help of his family because, in February 1978, he completely
lost his eyesight due to sickness. Francisco claimed that he asked Jovito, his son, to
look into and verify the identity of Bacsa, who introduced himself as a radio operator
and confidential secretary of a certain Mr. Inawat (Inawat), CBCIs manager for
operations. Francisco said he was satisfied with the proof presented by Bacsa. When
asked to explain why CBCI was selling its fuel, Bacsa allegedly replied that CBCI
was in immediate need of cash for the salary of its daily paid workers and for petty
cash. Francisco maintained that Bacsa assured him that the diesel fuel was not stolen
property and that CBCI enjoyed a big credit line with Petron. Francisco agreed to
purchase the diesel fuel offered by Bacsa on the following conditions:

1) Defendant [Francisco] will not accept any delivery if it is not company (Petron)
delivered, with his name and address as shipping point properly printed and indicated in
the invoice of Petron, and that the product on the delivery tank is sealed; [and]

2) Although the original invoice is sufficient evidence of delivery and payment, under
ordinary course of business, defendant still required Mr. Bacsa to issue a separate receipt
duly signed by him acknowledging receipt of the amount stated in the invoice, for and in
behalf of CBCI.16

During the first delivery on 5 April 1993, Francisco asked one of his sons to verify
whether the delivery trucks tank was properly sealed and whether Petron issued the
invoice. Francisco said all his conditions were complied with. There were 17
deliveries made from 5 April 1993 to 25 January 1994 and each delivery was for
10,000 liters of diesel fuel at P65,865.17 Francisco maintained that he acquired the
diesel fuel in good faith and for value. Francisco also filed a counterclaim for
exemplary damages, moral damages and attorneys fees.
In its 21 August 1998 Decision, the trial court ruled in Franciscos favor and dismissed
CBCIs complaint. The dispositive portion of the trial courts 21 August 1998 Decision
reads:

WHEREFORE, Judgment is hereby rendered:

1. Dismissing the complaint dated March 13, 1996 with costs.

2. Ordering plaintiff (CBCI), on the counterclaim, to pay defendant the

amount of P100,000.00 as moral damages and P50,000.00 as and by way
of attorneys fees.

SO ORDERED.18

CBCI appealed to the Court of Appeals.19 CBCI argued that Francisco acquired the
diesel fuel from Petron without legal ground because Bacsa was not authorized to
deliver and sell CBCIs diesel fuel. CBCI added that Francisco acted in bad faith
because he should have inquired further whether Bacsas sale of CBCIs diesel fuel was
legitimate.

In its 31 May 2010 Decision, the Court of Appeals set aside the trial courts 21 August
1998 Decision and ruled in CBCIs favor. The dispositive portion of the Court of
Appeals 31 May 2010 Decision reads:

IN VIEW OF THE FOREGOING, the assailed decision is hereby REVERSED and SET
ASIDE. Antonio Francisco is ordered to pay Chemical Bulk Carriers, Incorporated the
amount of P1,119,905.00 as actual damages.

SO ORDERED.20

On 15 January 2001, Francisco died.21 Franciscos heirs, namely: Nelia E.S. Francisco,
Emilia F. Bertiz, Rebecca E.S. Francisco, Antonio E.S. Francisco, Jr., Socorro F.
Fontanilla, and Jovito E.S. Francisco (heirs of Francisco) filed a motion for
substitution.22 The heirs of Francisco also filed a motion for reconsideration.23 In its
31 August 2010 Resolution, the Court of Appeals granted the motion for substitution
but denied the motion for reconsideration.

Hence, this petition.

The Ruling of the Trial Court

The trial court ruled that Francisco was not liable for damages in favor of CBCI
because the 17 deliveries were covered by original and genuine invoices. The trial
court declared that Bacsa, as confidential secretary of Inawat, was CBCIs authorized
representative who received Franciscos full payment for the diesel fuel. The trial court
stated that if Bacsa was not authorized, CBCI should have sued Bacsa and not
Francisco. The trial court also considered Francisco a buyer in good faith who paid in
full for the merchandise without notice that some other person had a right to or
interest in such diesel fuel. The trial court pointed out that good faith affords
protection to a purchaser for value. Finally, since CBCI was bound by the acts of
Bacsa, the trial court ruled that CBCI is liable to pay damages to Francisco.

The Ruling of the Court of Appeals

The Court of Appeals set aside the trial courts 21 August 1998 Decision and ruled that
Bacsas act of selling the diesel fuel to Francisco was his personal act and, even if
Bacsa connived with Inawat, the sale does not bind CBCI.

The Court of Appeals declared that since Francisco had been in the business of selling
petroleum products for a considerable number of years, his blindness was not a
hindrance for him to transact business with other people. With his condition and
experience, Francisco should have verified whether CBCI was indeed selling diesel
fuel and if it had given Bacsa authority to do so. Moreover, the Court of Appeals
stated that Francisco cannot feign good faith since he had doubts as to the authority of
Bacsa yet he did not seek confirmation from CBCI and contented himself with an
improvised receipt. Franciscos failure to verify Bacsas authority showed that he had
an ulterior motive. The receipts issued by Bacsa also showed his lack of authority
because it was on a plain sheet of bond paper with no letterhead or any indication that
it came from CBCI. The Court of Appeals ruled that Francisco cannot invoke estoppel
because he was at fault for choosing to ignore the tell-tale signs of petroleum
diversion and for not exercising prudence.

The Court of Appeals also ruled that CBCI was unlawfully deprived of the diesel fuel
which, as indicated in the invoices, CBCI had already paid for. Therefore, CBCI had
the right to recover the diesel fuel or its value from Francisco. Since the diesel fuel
can no longer be returned, the Court of Appeals ordered Francisco to give back the
actual amount paid by CBCI for the diesel fuel.

The Issues

The heirs of Francisco raise the following issues:

 I. WHETHER THE COURT OF APPEALS ERRED IN NOT FINDING
THAT DEFENDANT ANTONIO FRANCISCO EXERCISED THE
REQUIRED DILIGENCE OF A BLIND PERSON IN THE CONDUCT
OF HIS BUSINESS; and

II. WHETHER ON THE BASIS OF THE FACTUAL FINDINGS OF

THE COURT OF APPEALS AND THE TRIAL COURT AND
ADMITTED FACTS, IT CAN BE CONCLUDED THAT THE
PLAINTIFF APPROVED EXPRESSLY OR TACITLY THE
TRANSACTIONS.24

The Ruling of the Court

The petition has no merit.

Required Diligence of a Blind Person

The heirs of Francisco argue that the Court of Appeals erred when it ruled that
Francisco was liable to CBCI because he failed to exercise the diligence of a good
father of a family when he bought the diesel fuel. They argue that since Francisco was
blind, the standard of conduct that was required of him was that of a reasonable
person under like disability. Moreover, they insist that Francisco exercised due care in
purchasing the diesel fuel by doing the following: (1) Francisco asked his son to check
the identity of Bacsa; (2) Francisco required direct delivery from Petron; (3) Francisco
required that he be named as the consignee in the invoice; and (4) Francisco required
separate receipts from Bacsa to evidence actual payment.

Standard of conduct is the level of expected conduct that is required by the nature of
the obligation and corresponding to the circumstances of the person, time and place.25
The most common standard of conduct is that of a good father of a family or that of a
reasonably prudent person.26 To determine the diligence which must be required of all
persons, we use as basis the abstract average standard corresponding to a normal
orderly person.27

However, one who is physically disabled is required to use the same degree of care
that a reasonably careful person who has the same physical disability would use.28
Physical handicaps and infirmities, such as blindness or deafness, are treated as part of
the circumstances under which a reasonable person must act. Thus, the standard of
conduct for a blind person becomes that of a reasonable person who is blind.

We note that Francisco, despite being blind, had been managing and operating the
Caltex station for 15 years and this was not a hindrance for him to transact business
until this time. In this instance, however, we rule that Francisco failed to exercise the
standard of conduct expected of a reasonable person who is blind. First, Francisco
merely relied on the identification card of Bacsa to determine if he was authorized by
CBCI. Francisco did not do any other background check on the identity and authority
of Bacsa. Second, Francisco already expressed his misgivings about the diesel fuel,
fearing that they might be stolen property,29 yet he did not verify with CBCI the
authority of Bacsa to sell the diesel fuel. Third, Francisco relied on the receipts issued
by Bacsa which were typewritten on a half sheet of plain bond paper.30 If Francisco
exercised reasonable diligence, he should have asked for an official receipt issued by
CBCI. Fourth, the delivery to Francisco, as indicated in Petrons invoice, does not
show that CBCI authorized Bacsa to sell the diesel fuel to Francisco. Clearly,
Francisco failed to exercise the standard of conduct expected of a reasonable person
who is blind.

Express or Tacit Approval of the Transaction

The heirs of Francisco argue that CBCI approved expressly or tacitly the transactions.
According to them, there was apparent authority for Bacsa to enter into the
transactions. They argue that even if the agent has exceeded his authority, the
principal is solidarily liable with the agent if the former allowed the later to act as
though he had full powers.31 They insist CBCI was not unlawfully deprived of its
property because Inawat gave Bacsa the authority to sell the diesel fuel and that CBCI
is bound by such action. Lastly, they argue that CBCI should be considered in
estoppel for failure to act during the ten month period that deliveries were being made
to Francisco.

The general principle is that a seller without title cannot transfer a better title than he
has.32 Only the owner of the goods or one authorized by the owner to sell can transfer
title to the buyer.33 Therefore, a person can sell only what he owns or is authorized to
sell and the buyer can, as a consequence, acquire no more than what the seller can
legally transfer.34

Moreover, the owner of the goods who has been unlawfully deprived of it may
recover it even from a purchaser in good faith.35 Thus, the purchaser of property
which has been stolen from the owner has been held to acquire no title to it even
though he purchased for value and in good faith.

The exception from the general principle is the doctrine of estoppel where the owner
of the goods is precluded from denying the sellers authority to sell.36 But in order that
there may be estoppel, the owner must, by word or conduct, have caused or allowed it
to appear that title or authority to sell is with the seller and the buyer must have been
misled to his damage.37

In this case, it is clear that Bacsa was not the owner of the diesel fuel. Francisco was
aware of this but he claimed that Bacsa was authorized by CBCI to sell the diesel fuel.
However, Franciscos claim that Bacsa was authorized is not supported by any
evidence except his self-serving testimony. First, Francisco did not even confirm with
CBCI if it was indeed selling its diesel fuel since it is not one of the oil companies
known in the market to be selling petroleum products. This fact alone should have put
Francisco on guard. Second, it does not appear that CBCI, by some direct and
equivocal act, has clothed Bacsa with the indicia of ownership or apparent authority to
sell CBCIs diesel fuel. Francisco did not state if the identification card presented by
Bacsa indicated that he was CBCIs agent or a mere employee. Third, the receipt
issued by Bacsa was typewritten on a half sheet of plain bond paper. There was no
letterhead or any indication that it came from CBCI. We agree with the Court of
Appeals that this was a personal receipt issued by Bacsa and not an official receipt
issued by CBCI. Consequently, CBCI is not precluded by its conduct from denying
Bacsas authority to sell. CBCI did not hold out Bacsa or allow Bacsa to appear as the
owner or one with apparent authority to dispose of the diesel fuel.

Clearly, Bacsa cannot transfer title to Francisco as Bacsa was not the owner of the
diesel fuel nor was he authorized by CBCI to sell its diesel fuel. CBCI did not commit
any act to clothe Bacsa with apparent authority to sell the diesel fuel that would have
misled Francisco. Francisco, therefore, did not acquire any title over the diesel fuel.
Since CBCI was unlawfully deprived of its property, it may recover from Francisco,
even if Francisco pleads good faith.

WHEREFORE, we DENY the petition. We AFFIRM the 31 May 2010 Decision

and 31 August 2010 Resolution of the Court of Appeals.

SO ORDERED.

Republic of the Philippines

Supreme Court
Manila

THIRD DIVISION

PHILIPPINE HAWK G.R. No. 166869

CORPORATION,
Petitioner, Present:

CORONA, J., Chairperson,

VELASCO, JR.,
NACHURA,
-versus- PERALTA, and
MENDOZA, JJ.

Promulgated:

VIVIAN TAN LEE, February 16, 2010

Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION
PERALTA, J.:

This is a Petition for Review on Certiorarixxxii of the Decision of the Court of

Appeals in CA-G.R. CV No. 70860, promulgated on August 17, 2004, affirming
with modification the Decision of the Regional Trial Court (RTC) of Quezon City,
Branch 102, dated March 16, 2001, in Civil Case No. Q-91-9191, ordering petitioner
Philippine Hawk Corporation and Margarito Avila to jointly and severally pay
respondent Vivian Tan Lee damages as a result of a vehicular accident.

The facts are as follows:

On March 15, 2005, respondent Vivian Tan Lee filed before the RTC of
Quezon City a Complaintxxxii against petitioner Philippine Hawk Corporation and
defendant Margarito Avila for damages based on quasi-delict, arising from a
vehicular accident that occurred on March 17, 1991 in Barangay Buensoceso,
Gumaca, Quezon. The accident resulted in the death of respondents husband, Silvino
Tan, and caused respondent physical injuries.

On June 18, 1992, respondent filed an Amended Complaint,xxxii in her own

behalf and in behalf of her children, in the civil case for damages against petitioner.
Respondent sought the payment of indemnity for the death of Silvino Tan, moral
and exemplary damages, funeral and interment expenses, medical and
hospitalization expenses, the cost of the motorcycles repair, attorneys fees, and other
just and equitable reliefs.

The accident involved a motorcycle, a passenger jeep, and a bus with Body
No. 119. The bus was owned by petitioner Philippine Hawk Corporation, and was
then being driven by Margarito Avila.

In its Answer,xxxii petitioner denied liability for the vehicular accident, alleging
that the immediate and proximate cause of the accident was the recklessness or lack
of caution of Silvino Tan. Petitioner asserted that it exercised the diligence of a good
father of the family in the selection and supervision of its employees, including
Margarito Avila.

On March 25, 1993, the trial court issued a Pre-trial Orderxxxii stating that the
parties manifested that there was no possibility of amicable settlement between
them. However, they agreed to stipulate on the following facts:

1. On March 17, 1991, in Bgy. Buensoceso, Gumaca, Quezon, plaintiff Vivian

Lee Tan and her husband Silvino Tan, while on board a motorcycle with [P]late
No. DA-5480 driven by the latter, and a Metro Bus with [P]late No. NXR-262
driven by Margarito Avila, were involved in an accident;
2. As a result of the accident, Silvino Tan died on the spot while plaintiff Vivian
Lee Tan suffered physical injuries which necessitated medical attention and
hospitalization;
3. The deceased Silvino Tan is survived by his wife, plaintiff Vivian Lee Tan and
four children, three of whom are now residents of the United States; and
4. Defendant Margarito Avila is an employee of defendant Philippine Hawk.xxxii

The parties also agreed on the following issues:

1. Whether or not the proximate cause of the accident causing physical injuries
upon the plaintiff Vivian Lee Tan and resulting in the death of the latters
husband was the recklessness and negligence of Margarito Avila or the
deceased Silvino Tan; and
2. Whether or not defendant Philippine Hawk Transport Corporation exercised the
diligence of a good father of the family in the selection and supervision of its
driver Margarito Avila.xxxii

Respondent testified that on March 17, 1991, she was riding on their
motorcycle in tandem with her husband, who was on the wheel, at a place after a
Caltex gasoline station in Barangay Buensoceso, Gumaca, Quezon on the way to
Lopez, Quezon. They came from the Pasumbal Machine Shop, where they inquired
about the repair of their tanker. They were on a stop position at the side of the
highway; and when they were about to make a turn, she saw a bus running at fast
speed coming toward them, and then the bus hit a jeep parked on the roadside, and
their motorcycle as well. She lost consciousness and was brought to the hospital in
Gumaca, Quezon, where she was confined for a week. She was later transferred to
St. Lukes Hospital in Quezon City, Manila. She suffered a fracture on her left chest,
her left arm became swollen, she felt pain in her bones, and had high blood
pressure.xxxii
Respondents husband died due to the vehicular accident. The immediate cause
of his death was massive cerebral hemorrhage.xxxii
Respondent further testified that her husband was leasingxxxii and operating a
Caltex gasoline station in Gumaca, Quezon that yielded one million pesos a year in
revenue. They also had a copra business, which gave them an income of P3,000.00
a month or P36,000.00 a year.xxxii
Ernest Ovial, the driver of the passenger jeep involved in the accident, testified
that in the afternoon of March 17, 1991, his jeep was parked on the left side of the
highway near the Pasumbal Machine Shop. He did not notice the motorcycle before
the accident. But he saw the bus dragging the motorcycle along the highway, and
then the bus bumped his jeep and sped away.xxxii
For the defense, Margarito Avila, the driver of petitioners bus, testified that
on March 17, 1999, at about 4:30 p.m., he was driving his bus at 60 kilometers per
hour on the Maharlika Highway. When they were at Barangay Buensoceso, Gumaca,
Quezon, a motorcycle ran from his left side of the highway, and as the bus came
near, the motorcycle crossed the path of the bus, and so he turned the bus to the right.
He heard a loud banging sound. From his side mirror, he saw that the motorcycle
turned turtle (bumaliktad). He did not stop to help out of fear for his life, but drove
on and surrendered to the police. He denied that he bumped the motorcycle.xxxii
Avila further testified that he had previously been involved in sideswiping
incidents, but he forgot how many times.xxxii
Rodolfo Ilagan, the bus conductor, testified that the motorcycle bumped the
left side of the bus that was running at 40 kilometers per hour.xxxii
Domingo S. Sisperes, operations officer of petitioner, testified that, like their
other drivers, Avila was subjected to and passed the following requirements:

(1) Submission of NBI clearance;

(2) Certification from his previous employer that he had no bad record;
(3) Physical examination to determine his fitness to drive;
(4) Test of his driving ability, particularly his defensive skill; and
(5) Review of his driving skill every six months.xxxii
 Efren Delantar, a Barangay Kagawad in Buensoceso, Gumaca, Quezon,
testified that the bus was running on the highway on a straight path when a
motorcycle, with a woman behind its driver, suddenly emerged from the left side of
the road from a machine shop. The motorcycle crossed the highway in a zigzag
manner and bumped the side of the bus.xxxii
In its Decision dated March 16, 2001, the trial court rendered judgment against
petitioner and defendant Margarito Avila, the dispositive portion of which reads:

ACCORDINGLY, MARGARITO AVILA is adjudged guilty of simple

negligence, and judgment is hereby rendered in favor of the plaintiff Vivian Lee
Tan and h[er] husbands heirs ordering the defendants Philippine Hawk Corporation
and Margarito Avila to pay them jointly and solidarily the sum of P745,575.00
representing loss of earnings and actual damages plus P50,000.00 as moral
damages.xxxii

The trial court found that before the collision, the motorcycle was on the left
side of the road, just as the passenger jeep was. Prior to the accident, the motorcycle
was in a running position moving toward the right side of the highway. The trial
court agreed with the bus driver that the motorcycle was moving ahead of the bus
from the left side of the road toward the right side of the road, but disagreed that the
motorcycle crossed the path of the bus while the bus was running on the right side
of the road.xxxii
The trial court held that if the bus were on the right side of the highway, and
Margarito Avila turned his bus to the right in an attempt to avoid hitting the
motorcyle, then the bus would not have hit the passenger jeep, which was then
parked on the left side of the road. The fact that the bus also hit the passenger jeep
showed that the bus must have been running from the right lane to the left lane of
the highway, which caused the collision with the motorcycle and the passenger jeep
parked on the left side of the road. The trial court stated that since Avila saw the
motorcycle before the collision, he should have stepped on the brakes and slowed
down, but he just maintained his speed and veered to the left.xxxii The trial court
found Margarito Avila guilty of simple negligence.

The trial court held petitioner bus company liable for failing to exercise the
diligence of a good father of the family in the selection and supervision of Avila,
having failed to sufficiently inculcate in him discipline and correct behavior on the
road.xxxii

On appeal, the Court of Appeals affirmed the decision of the trial court with
modification in the award of damages. The dispositive portion of the decision reads:

WHEREFORE, foregoing premises considered, the appeal is DENIED. The

assailed decision dated March 16, 2001 is hereby AFFIRMED with
MODIFICATION. Appellants Philippine Hawk and Avila are hereby ordered to
pay jointly and severally appellee the following amount: (a) P168,019.55 as actual
damages; (b) P10,000.00 as temperate damages; (c) P100,000.00 as moral
damages; (d) P590,000.00 as unearned income; and (e) P50,000.00 as civil
indemnity.xxxii

Petitioner filed this petition, raising the following issues:

1) The Court of Appeals committed grave abuse of discretion amounting to

lack of jurisdiction in passing upon an issue, which had not been raised on
appeal, and which had, therefore, attained finality, in total disregard of the
doctrine laid down by this Court in Abubakar v. Abubakar, G.R. No.
134622, October 22, 1999.

2) The Court of Appeals committed reversible error in its finding that the
petitioners bus driver saw the motorcycle of private respondent executing
a U-turn on the highway about fifteen (15) meters away and thereafter held
that the Doctrine of Last Clear was applicable to the instant case. This was
a palpable error for the simple reason that the aforesaid distance was the
distance of the witness to the bus and not the distance of the bus to the
respondents motorcycle, as clearly borne out by the records.

3) The Court of Appeals committed reversible error in awarding damages in

total disregard of the established doctrine laid down in Danao v. Court of
Appeals, 154 SCRA 447 and Viron Transportation Co., Inc. v. Delos
Santos, G.R. No. 138296, November 22, 2000.xxxii

In short, the issues raised by petitioner are: (1) whether or not negligence may
be attributed to petitioners driver, and whether negligence on his part was the
proximate cause of the accident, resulting in the death of Silvino Tan and causing
physical injuries to respondent; (2) whether or not petitioner is liable to respondent
for damages; and (3) whether or not the damages awarded by respondent Court of
Appeals are proper.
 Petitioner seeks a review of the factual findings of the trial court, which were
sustained by the Court of Appeals, that petitioners driver was negligent in driving
the bus, which caused physical injuries to respondent and the death of respondents
husband.
The rule is settled that the findings of the trial court, especially when affirmed
by the Court of Appeals, are conclusive on this Court when supported by the
evidence on record.xxxii The Court has carefully reviewed the records of this case,
and found no cogent reason to disturb the findings of the trial court, thus:

The Court agree[s] with the bus driver Margarito that the motorcycle was
moving ahead of the bus towards the right side from the left side of the road, but
disagrees with him that it crossed the path of the bus while the bus was running on
the right side of the highway.

If the bus were on the right side of the highway and Margarito turned his
bus to the right in an attempt to avoid hitting it, then the bus would not have hit the
passenger jeep vehicle which was then parked on the left side of the road. The fact
that the bus hit the jeep too, shows that the bus must have been running to the left
lane of the highway from right to the left, that the collision between it and the
parked jeep and the moving rightways cycle became inevitable. Besides, Margarito
said he saw the motorcycle before the collision ahead of the bus; that being so, an
extra-cautious public utility driver should have stepped on his brakes and slowed
down. Here, the bus never slowed down, it simply maintained its highway speed
and veered to the left. This is negligence indeed.xxxii

Petitioner contends that the Court of Appeals was mistaken in stating that the
bus driver saw respondents motorcycle about 15 meters away before the collision,
because the said distance, as testified to by its witness Efren Delantar Ong, was Ongs
distance from the bus, and not the distance of the bus from the motorcycle. Petitioner
asserts that this mistaken assumption of the Court of Appeals made it conclude that
the bus driver, Margarito Avila, had the last clear chance to avoid the accident, which
was the basis for the conclusion that Avila was guilty of simple negligence.

A review of the records showed that it was petitioners witness, Efren Delantar
Ong, who was about 15 meters away from the bus when he saw the vehicular
accident.xxxii Nevertheless, this fact does not affect the finding of the trial court that
petitioners bus driver, Margarito Avila, was guilty of simple negligence as affirmed
by the appellate court. Foreseeability is the fundamental test of negligence. xxxii To
be negligent, a defendant must have acted or failed to act in such a way that an
ordinary reasonable man would have realized that certain interests of certain persons
were unreasonably subjected to a general but definite class of risks.xxxii

In this case, the bus driver, who was driving on the right side of the road,
already saw the motorcycle on the left side of the road before the collision. However,
he did not take the necessary precaution to slow down, but drove on and bumped the
motorcycle, and also the passenger jeep parked on the left side of the road, showing
that the bus was negligent in veering to the left lane, causing it to hit the motorcycle
and the passenger jeep.

Whenever an employees negligence causes damage or injury to another, there

instantly arises a presumption that the employer failed to exercise the due diligence
of a good father of the family in the selection or supervision of its employees.xxxii To
avoid liability for a quasi-delict committed by his employee, an employer must
overcome the presumption by presenting convincing proof that he exercised the care
and diligence of a good father of a family in the selection and supervision of his
employee.xxxii

The Court upholds the finding of the trial court and the Court of Appeals that
petitioner is liable to respondent, since it failed to exercise the diligence of a good
father of the family in the selection and supervision of its bus driver, Margarito
Avila, for having failed to sufficiently inculcate in him discipline and correct
behavior on the road. Indeed, petitioners tests were concentrated on the ability to
drive and physical fitness to do so. It also did not know that Avila had been
previously involved in sideswiping incidents.
As regards the issue on the damages awarded, petitioner contends that it was
the only one that appealed the decision of the trial court with respect to the award of
actual and moral damages; hence, the Court of Appeals erred in awarding other kinds
of damages in favor of respondent, who did not appeal from the trial courts decision.

Petitioners contention is unmeritorious.

 Section 8, Rule 51 of the 1997 Rules of Civil Procedure provides:

SEC. 8. Questions that may be decided. -- No error which does not affect
the jurisdiction over the subject matter or the validity of the judgment appealed
from or the proceedings therein will be considered unless stated in the assignment
of errors, or closely related to or dependent on an assigned error and properly
argued in the brief, save as the court pass upon plain errors and clerical errors.

Philippine National Bank v. Rabatxxxii cited the bookxxxii of Justice Florenz D.

Regalado to explain the section above, thus:

In his book, Mr. Justice Florenz D. Regalado commented on this section,

thus:
1. Sec. 8, which is an amendment of the former Sec. 7 of this Rule, now
includes some substantial changes in the rules on assignment of errors. The basic
procedural rule is that only errors claimed and assigned by a party will be
considered by the court, except errors affecting its jurisdiction over the subject
matter. To this exception has now been added errors affecting the validity of the
judgment appealed from or the proceedings therein.
Also, even if the error complained of by a party is not expressly stated in
his assignment of errors but the same is closely related to or dependent on an
assigned error and properly argued in his brief, such error may now be considered
by the court. These changes are of jurisprudential origin.
2. The procedure in the Supreme Court being generally the same as
that in the Court of Appeals, unless otherwise indicated (see Secs. 2 and 4, Rule
56), it has been held that the latter is clothed with ample authority to review
matters, even if they are not assigned as errors on appeal, if it finds that their
consideration is necessary in arriving at a just decision of the case. Also, an
unassigned error closely related to an error properly assigned (PCIB vs. CA, et al.,
L-34931, Mar. 18, 1988), or upon which the determination of the question raised
by error properly assigned is dependent, will be considered by the appellate court
notwithstanding the failure to assign it as error (Ortigas, Jr. vs. Lufthansa German
Airlines, L-28773, June 30, 1975; Soco vs. Militante, et al., G.R. No. 58961, June
28, 1983).
It may also be observed that under Sec. 8 of this Rule, the appellate court is
authorized to consider a plain error, although it was not specifically assigned by the
appellant (Dilag vs. Heirs of Resurreccion, 76 Phil. 649), otherwise it would be
sacrificing substance for technicalities.xxxii

In this case for damages based on quasi-delict, the trial court awarded
respondent the sum of P745,575.00, representing loss of earning capacity
(P590,000.00) and actual damages (P155,575.00 for funeral expenses), plus
P50,000.00 as moral damages. On appeal to the Court of Appeals, petitioner
assigned as error the award of damages by the trial court on the ground that it was
based merely on suppositions and surmises, not the admissions made by respondent
during the trial.

In its Decision, the Court of Appeals sustained the award by the trial court for
loss of earning capacity of the deceased Silvino Tan, moral damages for his death,
and actual damages, although the amount of the latter award was modified.

The indemnity for loss of earning capacity of the deceased is provided for by
Article 2206 of the Civil Code.xxxii Compensation of this nature is awarded not for
loss of earnings, but for loss of capacity to earn money.xxxii

As a rule, documentary evidence should be presented to substantiate the claim

for damages for loss of earning capacity.xxxii By way of exception, damages for loss
of earning capacity may be awarded despite the absence of documentary evidence
when: (1) the deceased is self-employed and earning less than the minimum wage
under current labor laws, in which case, judicial notice may be taken of the fact that
in the deceased's line of work no documentary evidence is available; or (2) the
deceased is employed as a daily wage worker earning less than the minimum wage
under current labor laws.xxxii

In this case, the records show that respondents husband was leasing and
operating a Caltex gasoline station in Gumaca, Quezon. Respondent testified that
her husband earned an annual income of one million pesos. Respondent presented
in evidence a Certificate of Creditable Income Tax Withheld at Source for the Year
1990,xxxii which showed that respondents husband earned a gross income of
P950,988.43 in 1990. It is reasonable to use the Certificate and respondents
testimony as bases for fixing the gross annual income of the deceased at one million
pesos before respondents husband died on March 17, 1999. However, no
documentary evidence was presented regarding the income derived from their copra
business; hence, the testimony of respondent as regards such income cannot be
considered.

In the computation of loss of earning capacity, only net earnings, not gross
earnings, are to be considered; that is, the total of the earnings less expenses
necessary for the creation of such earnings or income, less living and other incidental
expenses.xxxii In the absence of documentary evidence, it is reasonable to peg
necessary expenses for the lease and operation of the gasoline station at 80 percent
of the gross income, and peg living expenses at 50 percent of the net income (gross
income less necessary expenses).

In this case, the computation for loss of earning capacity is as follows:

Net Earning = Life Expectancy x Gross Annual Income Reasonable and

Capacity [2/3 (80-age at the (GAI) Necessary
time of death)] Expenses
(80% of GAI)
X = [2/3 (80-65)] x P1,000,000.00 - P800,000.00
X = 2/3 (15) x P200,000.00 - P100,000.00
(Living Expenses)
X = 30/3 x P100,000.00

X = 10 x P100,000.00
X = P1,000,000.00

The Court of Appeals also awarded actual damages for the expenses incurred
in connection with the death, wake, and interment of respondents husband in the
amount of P154,575.30, and the medical expenses of respondent in the amount of
P168,019.55.

Actual damages must be substantiated by documentary evidence, such as

receipts, in order to prove expenses incurred as a result of the death of the victimxxxii
or the physical injuries sustained by the victim. A review of the valid receipts
submitted in evidence showed that the funeral and related expenses amounted only
to P114,948.60, while the medical expenses of respondent amounted only to
P12,244.25, yielding a total of P127,192.85 in actual damages.

Moreover, the Court of Appeals correctly sustained the award of moral

damages in the amount of P50,000.00 for the death of respondents husband. Moral
damages are not intended to enrich a plaintiff at the expense of the defendant. xxxii
They are awarded to allow the plaintiff to obtain means, diversions or amusements
that will serve to alleviate the moral suffering he/she has undergone due to the
defendants culpable action and must, perforce, be proportional to the suffering
inflicted.xxxii

In addition, the Court of Appeals correctly awarded temperate damages in the

amount of P10,000.00 for the damage caused on respondents motorcycle. Under Art.
2224 of the Civil Code, temperate damages may be recovered when the court finds
that some pecuniary loss has been suffered but its amount cannot, from the nature of
the case, be proved with certainty. The cost of the repair of the motorcycle was
prayed for by respondent in her Complaint. However, the evidence presented was
merely a job estimatexxxii of the cost of the motorcycles repair amounting to P17,
829.00. The Court of Appeals aptly held that there was no doubt that the damage
caused on the motorcycle was due to the negligence of petitioners driver. In the
absence of competent proof of the actual damage caused on the motorcycle or the
actual cost of its repair, the award of temperate damages by the appellate court in the
amount of P10,000.00 was reasonable under the circumstances.xxxii

The Court of Appeals also correctly awarded respondent moral damages for
the physical injuries she sustained due to the vehicular accident. Under Art. 2219 of
the Civil Code,xxxii moral damages may be recovered in quasi-delicts causing
physical injuries. However, the award of P50,000.00 should be reduced to
P30,000.00 in accordance with prevailing jurisprudence.xxxii

Further, the Court of Appeals correctly awarded respondent civil indemnity

for the death of her husband, which has been fixed by current jurisprudence at
P50,000.00.xxxii The award is proper under Art. 2206 of the Civil Code.xxxii

In fine, the Court of Appeals correctly awarded civil indemnity for the death
of respondents husband, temperate damages, and moral damages for the physical
injuries sustained by respondent in addition to the damages granted by the trial court
to respondent. The trial court overlooked awarding the additional damages, which
were prayed for by respondent in her Amended Complaint. The appellate court is
clothed with ample authority to review matters, even if they are not assigned as errors
in the appeal, if it finds that their consideration is necessary in arriving at a just
decision of the case.xxxii

WHEREFORE, the petition is DENIED. The Decision of the Court of

Appeals dated August 17, 2004 in CA-G.R. CV No. 70860 is hereby AFFIRMED
with MODIFICATION. Petitioner Philippine Hawk Corporation and Margarito
Avila are hereby ordered to pay jointly and severally respondent Vivian Lee Tan: (a)
civil indemnity in the amount of Fifty Thousand Pesos (P50,000.00); (b) actual
damages in the amount of One Hundred Twenty-Seven Thousand One Hundred
Ninety-Two Pesos and Eighty-Five Centavos ( P127,192.85); (c) moral damages in
the amount of Eighty Thousand Pesos (P80,000.00); (d) indemnity for loss of
earning capacity in the amount of One Million Pesos (P1,000,000.00); and (e)
temperate damages in the amount of Ten Thousand Pesos (P10,000.00).

Costs against petitioner.

SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-7760 October 1, 1914

E. M. WRIGHT, plaintiff-appellant,
vs.
MANILA ELECTRIC R.R. & LIGHT CO., defendant-appellant.

W. A. Kincaid, Thomas L. Hartigan, and Jose Robles Lahesa for plaintiff.

Bruce, Lawrence, Ross & Block for defendant.

MORELAND, J.:

This is an action brought to recover damages for injuries sustained in an accident which occurred in
Caloocan on the night of August 8, 1909.

The defendant is a corporation engaged in operating an electric street railway in the city of Manila and
its suburbs, including the municipality of Caloocan. The plaintiff's residence in Caloocan fronts on the
street along which defendant's tracks run, so that to enter his premises from the street plaintiff is
obliged to cross defendant's tracks. On the night mentioned plaintiff drove home in a calesa and in
crossing the tracks to enter his premises the horse stumbled, leaped forward, and fell, causing the
vehicle with the rails, resulting in a sudden stop, threw plaintiff from the vehicle and caused the injuries
complained of.

It is undisputed that at the point where plaintiff crossed the tracks on the night in question not only the
rails were above-ground, but that the ties upon which the rails rested projected from one-third to one-
half of their depth out of the ground, thus making the tops of the rails some 5 or 6 inches or more
above the level of the street.

It is admitted that the defendant was negligent in maintaining its tracks as described, but it is contended
that the plaintiff was also negligent in that he was intoxicated to such an extent at the time of the
accident that he was unable to take care of himself properly and that such intoxication was the primary
cause of the accident.

The trial court held that both parties were negligent, but that the plaintiff's negligence was not as great
as defendant's and under the authority of the case of Rakes vs. A. G. & P. Co. (7 Phil. Rep., 359)
apportioned the damages and awarded plaintiff a judgment of P1,000.

The question before us is stated by the defendant thus: "Accepting the findings of the trial court that
both plaintiff and defendant were guilty of negligence, the only question to be considered is whether
the negligence of plaintiff contributed t the 'principal occurrence' or 'only to his own injury.' If the former,
he cannot recover; if the latter, the trial court was correct in apportioning the damages."

The questioned as stated by plaintiff is as follows: "The main question at issue is whether or not the
plaintiff was negligent, and, if so, to what extent. If the negligence of the plaintiff was the primary cause
of the accident then, of course, he cannot recover; if his negligence had nothing to do with the accident
but contributed to his injury, then the court was right in apportioning the damages, but if there was no
negligence on the part of the plaintiff, then he should be awarded damages adequates to the injury
sustained."

In support of the defendant's contention counsel says: "Defendant's negligence was its failure properly
to maintain the track; plaintiff's negligence was his intoxication; the 'principal occurrence' was plaintiff's
fall from his calesa. It seems clear that plaintiff's intoxication contributed to the fall; if he had been
sober, it can hardly be doubted that he would have crossed the track safely, as he had done a hundred
times before."

While both parties appealed from the decision, the defendant on the ground that it was not liable and
the plaintiff on the ground that the damages were insufficient according to the evidence, and while the
plaintiff made a motion for a new trial upon the statutory grounds and took proper exception to the
denial thereof, thus conferring upon this court jurisdiction to determine the question of fact,
nevertheless, not all of the testimony taken on the trial, so far as can be gathered from the record, has
been brought to this court. There seems to have been two hearings, one on the 31st of August and
the other on the 28th of September. The evidence taken on the first hearing is here; that taken on the
second is not. Not all the evidence taken on the hearings being before the court, we must refuse,
under our rules, to consider even that evidence which is here; and, in the decision of this case, we
are, therefore, relegated to the facts stated in the opinion of the court and the pleadings filed.

A careful reading of the decision of the trial court leads us to the conclusion that there is nothing in the
opinion which sustains the conclusion of the court that the plaintiff was negligent with reference to the
accident which is the basis of this action. Mere intoxication establish a want of ordinary care. It is but
a circumstance to be considered with the other evidence tending to prove negligence. It is the general
rule that it is immaterial whether a man is drunk or sober if no want of ordinary care or prudence can
be imputed to him, and no greater degree of care is required than by a sober one. If one's conduct is
characterized by a proper degree of care and prudence, it is immaterial whether he is drunk or sober.
(Ward vs. Chicago etc., R. R. Co., 85 Wis., 601; H & T. C. R. Co. vs. Reason, 61 Tex., 613; Alger vs.
Lowell, 3 Allen, Mass., 402; Central R. R. Co. vs. Phinazee, 93 Ga., 488; Maguire vs. Middlesex R. R.
Co., 115 Mass., 239; Meyer vs. Pacific R. R. Co., 40 Mo., 151., Chicago & N. W. R. R. Co. vs. Drake,
33 Ill. App., 114.)

If intoxication is not in itself negligence, what are the facts found by the trial court and stated in its
opinion upon which may be predicated the finding that the plaintiff did not use ordinary care and
prudence and that the intoxication contributed to the injury complained of? After showing clearly and
forcibly the negligence of the defendant in leaving its tracks in the condition in which they were on the
night of the injury, the court has the following to say, and it is all that can be found in its opinion, with
reference to the negligence of the plaintiff: "With respect to the condition in which Mr. Wright was on
returning to his house on the night in question, the testimony of Doctor Kneedler, who was the
physician who attended him an hour after the accident, demonstrates that he was intoxicated. . . . .

If the defendant or its employees were negligent by reason of having left the rails and a part
of the ties uncovered in a street where there is a large amount of travel, the plaintiff was no
less negligent, he not having abstained from his custom of taking more wine than he could
carry without disturbing his judgment and his self-control, he knowing that he had to drive a
horse and wagon and to cross railroad tracks which were to a certain extent dangerous by
reason of the rails being elevated above the level of the street.

If the plaintiff had been prudent on the night in question and had not attempted to drive his
conveyance while in a drunken condition, he would certainly have avoided the damages
which he received, although the company, on its part, was negligent in maintaining its tracks
in a bad condition for travel.

Both parties, therefore, were negligent and both contributed to the damages resulting to the
plaintiff, although the plaintiff, in the judgment of the court, contributed in greater proportion
to the damages that did the defendant.

As is clear from reading the opinion, no facts are stated therein which warrant the conclusion that the
plaintiff was negligent. The conclusion that if he had been sober he would not have been injured is not
warranted by the facts as found. It is impossible to say that a sober man would not have fallen from
the vehicle under the conditions described. A horse crossing the railroad tracks with not only the rails
but a portion of the ties themselves aboveground, stumbling by reason of the unsure footing and falling,
the vehicle crashing against the rails with such force as to break a wheel, this might be sufficient to
throw a person from the vehicle no matter what his condition; and to conclude that, under such
circumstances, a sober man would not have fallen while a drunken man did, is to draw a conclusion
which enters the realm of speculation and guesswork.

It having been found that the plaintiff was not negligent, it is unnecessary to discuss the question
presented by the appellant company with reference to the applicability of the case of Rakes vs. A. G.
& P. Co., above; and we do not find facts in the opinion of the court below which justify a larger verdict
than the one found.

Arellano, C.J., Torres and Araullo, JJ., concur.

Separate Opinions

CARSON, J., dissenting:

I dissent. I think, in the first place, that before pronouncing judgment the parties should have an
opportunity, if they so desire, to correct the manifestly accidental omission from the record of a part of
the transcript of the record. It is very clear that when the case was submitted, and the brief filed, both
parties were under the mistaken impression that all the evidence was in the record.

I think, furthermore, that if the case is to be decided on the findings of fact by the trial judge, these
findings sufficiently establish the negligence of the plaintiff.
1awphil.net

The trail judge expressly found that —

If the plaintiff had been prudent on the night in question and had not attempted to drive his
conveyance while in a drunken condition, he would certainly have avoided the damages
which he received, although the company, on its part was negligent in maintaining its tracks
in a bad condition for travel.

This is a finding of fact — the fact of negligence — and I know of no rule which requires the trial court
to set forth not only the ultimate facts found by it, but also all the evidentiary facts on which such
conclusions are based. The finding is not in conflict with the other facts found by the trial judge, and
though it is not fully sustained thereby, we must assume, if we decline to examine the record, that
there were evidentiary facts disclosed at the trial which were sufficient to sustain the finding if
negligence. "The statement of facts must contain only those facts which are essential to a clear
understanding of the issues presented and the facts involved." (Act No. 190, sec. 133.)

The facts required to be found are the ultimate facts forming the issues presented by the
pleadings, and which constitute the fundation for a judgment, and not those that are merely
evidentiary facts, or to set forth and explain the means or processes by which he arrived at
such findings. Neither evidence, argument, nor comment has any legitimate place in findings
of facts. (Conlan vs. Grace, 36 Minn., 276, 282.)

Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-12191 October 14, 1918

JOSE CANGCO, plaintiff-appellant,

vs.
MANILA RAILROAD CO., defendant-appellee.

Ramon Sotelo for appellant.

Kincaid & Hartigan for appellee.

FISHER, J.:

At the time of the occurrence which gave rise to this litigation the plaintiff, Jose Cangco, was in the
employment of Manila Railroad Company in the capacity of clerk, with a monthly wage of P25. He
lived in the pueblo of San Mateo, in the province of Rizal, which is located upon the line of the
defendant railroad company; and in coming daily by train to the company's office in the city of Manila
where he worked, he used a pass, supplied by the company, which entitled him to ride upon the
company's trains free of charge. Upon the occasion in question, January 20, 1915, the plaintiff arose
from his seat in the second class-car where he was riding and, making, his exit through the door, took
his position upon the steps of the coach, seizing the upright guardrail with his right hand for support.

On the side of the train where passengers alight at the San Mateo station there is a cement platform
which begins to rise with a moderate gradient some distance away from the company's office and
extends along in front of said office for a distance sufficient to cover the length of several coaches. As
the train slowed down another passenger, named Emilio Zuñiga, also an employee of the railroad
company, got off the same car, alighting safely at the point where the platform begins to rise from the
level of the ground. When the train had proceeded a little farther the plaintiff Jose Cangco stepped off
also, but one or both of his feet came in contact with a sack of watermelons with the result that his feet
slipped from under him and he fell violently on the platform. His body at once rolled from the platform
and was drawn under the moving car, where his right arm was badly crushed and lacerated. It appears
that after the plaintiff alighted from the train the car moved forward possibly six meters before it came
to a full stop.

The accident occurred between 7 and 8 o'clock on a dark night, and as the railroad station was lighted
dimly by a single light located some distance away, objects on the platform where the accident
occurred were difficult to discern especially to a person emerging from a lighted car.

The explanation of the presence of a sack of melons on the platform where the plaintiff alighted is
found in the fact that it was the customary season for harvesting these melons and a large lot had
been brought to the station for the shipment to the market. They were contained in numerous sacks
which has been piled on the platform in a row one upon another. The testimony shows that this row of
sacks was so placed of melons and the edge of platform; and it is clear that the fall of the plaintiff was
due to the fact that his foot alighted upon one of these melons at the moment he stepped upon the
platform. His statement that he failed to see these objects in the darkness is readily to be credited.
The plaintiff was drawn from under the car in an unconscious condition, and it appeared that the
injuries which he had received were very serious. He was therefore brought at once to a certain
hospital in the city of Manila where an examination was made and his arm was amputated. The result
of this operation was unsatisfactory, and the plaintiff was then carried to another hospital where a
second operation was performed and the member was again amputated higher up near the shoulder.
It appears in evidence that the plaintiff expended the sum of P790.25 in the form of medical and
surgical fees and for other expenses in connection with the process of his curation.

Upon August 31, 1915, he instituted this proceeding in the Court of First Instance of the city of Manila
to recover damages of the defendant company, founding his action upon the negligence of the
servants and employees of the defendant in placing the sacks of melons upon the platform and leaving
them so placed as to be a menace to the security of passenger alighting from the company's trains.
At the hearing in the Court of First Instance, his Honor, the trial judge, found the facts substantially as
above stated, and drew therefrom his conclusion to the effect that, although negligence was
attributable to the defendant by reason of the fact that the sacks of melons were so placed as to
obstruct passengers passing to and from the cars, nevertheless, the plaintiff himself had failed to use
due caution in alighting from the coach and was therefore precluded form recovering. Judgment was
accordingly entered in favor of the defendant company, and the plaintiff appealed.

It can not be doubted that the employees of the railroad company were guilty of negligence in piling
these sacks on the platform in the manner above stated; that their presence caused the plaintiff to fall
as he alighted from the train; and that they therefore constituted an effective legal cause of the injuries
sustained by the plaintiff. It necessarily follows that the defendant company is liable for the damage
thereby occasioned unless recovery is barred by the plaintiff's own contributory negligence. In
resolving this problem it is necessary that each of these conceptions of liability, to-wit, the primary
responsibility of the defendant company and the contributory negligence of the plaintiff should be
separately examined.

It is important to note that the foundation of the legal liability of the defendant is the contract of carriage,
and that the obligation to respond for the damage which plaintiff has suffered arises, if at all, from the
breach of that contract by reason of the failure of defendant to exercise due care in its performance.
That is to say, its liability is direct and immediate, differing essentially, in legal viewpoint from that
presumptive responsibility for the negligence of its servants, imposed by article 1903 of the Civil Code,
which can be rebutted by proof of the exercise of due care in their selection and supervision. Article
1903 of the Civil Code is not applicable to obligations arising ex contractu, but only to extra-contractual
obligations — or to use the technical form of expression, that article relates only to culpa aquiliana and
not to culpa contractual.

Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104 of the Civil Code, clearly
points out this distinction, which was also recognized by this Court in its decision in the case of Rakes
vs. Atlantic, Gulf and Pacific Co. (7 Phil. rep., 359). In commenting upon article 1093 Manresa clearly
points out the difference between "culpa, substantive and independent, which of itself constitutes the
source of an obligation between persons not formerly connected by any legal tie" and culpa considered
as an accident in the performance of an obligation already existing . . . ."

In the Rakes case (supra) the decision of this court was made to rest squarely upon the proposition
that article 1903 of the Civil Code is not applicable to acts of negligence which constitute the breach
of a contract.

Upon this point the Court said:

The acts to which these articles [1902 and 1903 of the Civil Code] are applicable are
understood to be those not growing out of pre-existing duties of the parties to one another.
But where relations already formed give rise to duties, whether springing from contract or
quasi-contract, then breaches of those duties are subject to article 1101, 1103, and 1104 of
the same code. (Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359 at 365.)

This distinction is of the utmost importance. The liability, which, under the Spanish law, is, in certain
cases imposed upon employers with respect to damages occasioned by the negligence of their
employees to persons to whom they are not bound by contract, is not based, as in the English Common
Law, upon the principle of respondeat superior — if it were, the master would be liable in every case
and unconditionally — but upon the principle announced in article 1902 of the Civil Code, which
imposes upon all persons who by their fault or negligence, do injury to another, the obligation of making
good the damage caused. One who places a powerful automobile in the hands of a servant whom he
knows to be ignorant of the method of managing such a vehicle, is himself guilty of an act of negligence
which makes him liable for all the consequences of his imprudence. The obligation to make good the
damage arises at the very instant that the unskillful servant, while acting within the scope of his
employment causes the injury. The liability of the master is personal and direct. But, if the master has
not been guilty of any negligence whatever in the selection and direction of the servant, he is not liable
for the acts of the latter, whatever done within the scope of his employment or not, if the damage done
by the servant does not amount to a breach of the contract between the master and the person injured.

It is not accurate to say that proof of diligence and care in the selection and control of the servant
relieves the master from liability for the latter's acts — on the contrary, that proof shows that the
responsibility has never existed. As Manresa says (vol. 8, p. 68) the liability arising from extra-
contractual culpa is always based upon a voluntary act or omission which, without willful intent, but by
mere negligence or inattention, has caused damage to another. A master who exercises all possible
care in the selection of his servant, taking into consideration the qualifications they should possess for
the discharge of the duties which it is his purpose to confide to them, and directs them with equal
diligence, thereby performs his duty to third persons to whom he is bound by no contractual ties, and
he incurs no liability whatever if, by reason of the negligence of his servants, even within the scope of
their employment, such third person suffer damage. True it is that under article 1903 of the Civil Code
the law creates a presumption that he has been negligent in the selection or direction of his servant,
but the presumption is rebuttable and yield to proof of due care and diligence in this respect.

The supreme court of Porto Rico, in interpreting identical provisions, as found in the Porto Rico Code,
has held that these articles are applicable to cases of extra-contractual culpa exclusively. (Carmona
vs. Cuesta, 20 Porto Rico Reports, 215.)

This distinction was again made patent by this Court in its decision in the case of Bahia vs. Litonjua
and Leynes, (30 Phil. rep., 624), which was an action brought upon the theory of the extra-contractual
liability of the defendant to respond for the damage caused by the carelessness of his employee while
acting within the scope of his employment. The Court, after citing the last paragraph of article 1903 of
the Civil Code, said:

From this article two things are apparent: (1) That when an injury is caused by the
negligence of a servant or employee there instantly arises a presumption of law that there
was negligence on the part of the master or employer either in selection of the servant or
employee, or in supervision over him after the selection, or both; and (2) that that
presumption is juris tantum and not juris et de jure, and consequently, may be rebutted. It
follows necessarily that if the employer shows to the satisfaction of the court that in selection
and supervision he has exercised the care and diligence of a good father of a family, the
presumption is overcome and he is relieved from liability.

This theory bases the responsibility of the master ultimately on his own negligence and not
on that of his servant. This is the notable peculiarity of the Spanish law of negligence. It is, of
course, in striking contrast to the American doctrine that, in relations with strangers, the
negligence of the servant in conclusively the negligence of the master.

The opinion there expressed by this Court, to the effect that in case of extra-contractual culpa based
upon negligence, it is necessary that there shall have been some fault attributable to the defendant
personally, and that the last paragraph of article 1903 merely establishes a rebuttable presumption, is
in complete accord with the authoritative opinion of Manresa, who says (vol. 12, p. 611) that the liability
created by article 1903 is imposed by reason of the breach of the duties inherent in the special relations
of authority or superiority existing between the person called upon to repair the damage and the one
who, by his act or omission, was the cause of it.

On the other hand, the liability of masters and employers for the negligent acts or omissions of their
servants or agents, when such acts or omissions cause damages which amount to the breach of a
contact, is not based upon a mere presumption of the master's negligence in their selection or control,
and proof of exercise of the utmost diligence and care in this regard does not relieve the master of his
liability for the breach of his contract.

Every legal obligation must of necessity be extra-contractual or contractual. Extra-contractual

obligation has its source in the breach or omission of those mutual duties which civilized society
imposes upon it members, or which arise from these relations, other than contractual, of certain
members of society to others, generally embraced in the concept of status. The legal rights of each
member of society constitute the measure of the corresponding legal duties, mainly negative in
character, which the existence of those rights imposes upon all other members of society. The breach
of these general duties whether due to willful intent or to mere inattention, if productive of injury, give
rise to an obligation to indemnify the injured party. The fundamental distinction between obligations of
this character and those which arise from contract, rests upon the fact that in cases of non-contractual
obligation it is the wrongful or negligent act or omission itself which creates the vinculum juris, whereas
in contractual relations the vinculum exists independently of the breach of the voluntary duty assumed
by the parties when entering into the contractual relation.

With respect to extra-contractual obligation arising from negligence, whether of act or omission, it is
competent for the legislature to elect — and our Legislature has so elected — whom such an obligation
is imposed is morally culpable, or, on the contrary, for reasons of public policy, to extend that liability,
without regard to the lack of moral culpability, so as to include responsibility for the negligence of those
person who acts or mission are imputable, by a legal fiction, to others who are in a position to exercise
an absolute or limited control over them. The legislature which adopted our Civil Code has elected to
limit extra-contractual liability — with certain well-defined exceptions — to cases in which moral
culpability can be directly imputed to the persons to be charged. This moral responsibility may consist
in having failed to exercise due care in the selection and control of one's agents or servants, or in the
control of persons who, by reason of their status, occupy a position of dependency with respect to the
person made liable for their conduct.

The position of a natural or juridical person who has undertaken by contract to render service to
another, is wholly different from that to which article 1903 relates. When the sources of the obligation
upon which plaintiff's cause of action depends is a negligent act or omission, the burden of proof rests
upon plaintiff to prove the negligence — if he does not his action fails. But when the facts averred
show a contractual undertaking by defendant for the benefit of plaintiff, and it is alleged that plaintiff
has failed or refused to perform the contract, it is not necessary for plaintiff to specify in his pleadings
whether the breach of the contract is due to willful fault or to negligence on the part of the defendant,
or of his servants or agents. Proof of the contract and of its nonperformance is sufficient prima facie
to warrant a recovery.

As a general rule . . . it is logical that in case of extra-contractual culpa, a suing creditor

should assume the burden of proof of its existence, as the only fact upon which his action is
based; while on the contrary, in a case of negligence which presupposes the existence of a
contractual obligation, if the creditor shows that it exists and that it has been broken, it is not
necessary for him to prove negligence. (Manresa, vol. 8, p. 71 [1907 ed., p. 76]).

As it is not necessary for the plaintiff in an action for the breach of a contract to show that the breach
was due to the negligent conduct of defendant or of his servants, even though such be in fact the
actual cause of the breach, it is obvious that proof on the part of defendant that the negligence or
omission of his servants or agents caused the breach of the contract would not constitute a defense
to the action. If the negligence of servants or agents could be invoked as a means of discharging the
liability arising from contract, the anomalous result would be that person acting through the medium
of agents or servants in the performance of their contracts, would be in a better position than those
acting in person. If one delivers a valuable watch to watchmaker who contract to repair it, and the
bailee, by a personal negligent act causes its destruction, he is unquestionably liable. Would it be
logical to free him from his liability for the breach of his contract, which involves the duty to exercise
due care in the preservation of the watch, if he shows that it was his servant whose negligence caused
the injury? If such a theory could be accepted, juridical persons would enjoy practically complete
immunity from damages arising from the breach of their contracts if caused by negligent acts as such
juridical persons can of necessity only act through agents or servants, and it would no doubt be true
in most instances that reasonable care had been taken in selection and direction of such servants. If
one delivers securities to a banking corporation as collateral, and they are lost by reason of the
negligence of some clerk employed by the bank, would it be just and reasonable to permit the bank to
relieve itself of liability for the breach of its contract to return the collateral upon the payment of the
debt by proving that due care had been exercised in the selection and direction of the clerk?

This distinction between culpa aquiliana, as the source of an obligation, and culpa contractual as a
mere incident to the performance of a contract has frequently been recognized by the supreme court
of Spain. (Sentencias of June 27, 1894; November 20, 1896; and December 13, 1896.) In the
decisions of November 20, 1896, it appeared that plaintiff's action arose ex contractu, but that
defendant sought to avail himself of the provisions of article 1902 of the Civil Code as a defense. The
Spanish Supreme Court rejected defendant's contention, saying:
 These are not cases of injury caused, without any pre-existing obligation, by fault or
negligence, such as those to which article 1902 of the Civil Code relates, but of damages
caused by the defendant's failure to carry out the undertakings imposed by the contracts . . .
.

A brief review of the earlier decision of this court involving the liability of employers for damage done
by the negligent acts of their servants will show that in no case has the court ever decided that the
negligence of the defendant's servants has been held to constitute a defense to an action for damages
for breach of contract.

In the case of Johnson vs. David (5 Phil. Rep., 663), the court held that the owner of a carriage was
not liable for the damages caused by the negligence of his driver. In that case the court commented
on the fact that no evidence had been adduced in the trial court that the defendant had been negligent
in the employment of the driver, or that he had any knowledge of his lack of skill or carefulness.

In the case of Baer Senior & Co's Successors vs. Compania Maritima (6 Phil. Rep., 215), the plaintiff
sued the defendant for damages caused by the loss of a barge belonging to plaintiff which was allowed
to get adrift by the negligence of defendant's servants in the course of the performance of a contract
of towage. The court held, citing Manresa (vol. 8, pp. 29, 69) that if the "obligation of the defendant
grew out of a contract made between it and the plaintiff . . . we do not think that the provisions of
articles 1902 and 1903 are applicable to the case."

In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff sued the defendant to recover
damages for the personal injuries caused by the negligence of defendant's chauffeur while driving
defendant's automobile in which defendant was riding at the time. The court found that the damages
were caused by the negligence of the driver of the automobile, but held that the master was not liable,
although he was present at the time, saying:

. . . unless the negligent acts of the driver are continued for a length of time as to give the
owner a reasonable opportunity to observe them and to direct the driver to desist therefrom. .
. . The act complained of must be continued in the presence of the owner for such length of
time that the owner by his acquiescence, makes the driver's acts his own.

In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage & Taxicab Co. (33 Phil. Rep.,
8), it is true that the court rested its conclusion as to the liability of the defendant upon article 1903,
although the facts disclosed that the injury complaint of by plaintiff constituted a breach of the duty to
him arising out of the contract of transportation. The express ground of the decision in this case was
that article 1903, in dealing with the liability of a master for the negligent acts of his servants "makes
the distinction between private individuals and public enterprise;" that as to the latter the law creates
a rebuttable presumption of negligence in the selection or direction of servants; and that in the
particular case the presumption of negligence had not been overcome.

It is evident, therefore that in its decision Yamada case, the court treated plaintiff's action as though
founded in tort rather than as based upon the breach of the contract of carriage, and an examination
of the pleadings and of the briefs shows that the questions of law were in fact discussed upon this
theory. Viewed from the standpoint of the defendant the practical result must have been the same in
any event. The proof disclosed beyond doubt that the defendant's servant was grossly negligent and
that his negligence was the proximate cause of plaintiff's injury. It also affirmatively appeared that
defendant had been guilty of negligence in its failure to exercise proper discretion in the direction of
the servant. Defendant was, therefore, liable for the injury suffered by plaintiff, whether the breach of
the duty were to be regarded as constituting culpa aquiliana or culpa contractual. As Manresa points
out (vol. 8, pp. 29 and 69) whether negligence occurs an incident in the course of the performance of
a contractual undertaking or its itself the source of an extra-contractual undertaking obligation, its
essential characteristics are identical. There is always an act or omission productive of damage due
to carelessness or inattention on the part of the defendant. Consequently, when the court holds that a
defendant is liable in damages for having failed to exercise due care, either directly, or in failing to
exercise proper care in the selection and direction of his servants, the practical result is identical in
either case. Therefore, it follows that it is not to be inferred, because the court held in the Yamada
case that defendant was liable for the damages negligently caused by its servants to a person to whom
it was bound by contract, and made reference to the fact that the defendant was negligent in the
selection and control of its servants, that in such a case the court would have held that it would have
been a good defense to the action, if presented squarely upon the theory of the breach of the contract,
for defendant to have proved that it did in fact exercise care in the selection and control of the servant.
The true explanation of such cases is to be found by directing the attention to the relative spheres of
contractual and extra-contractual obligations. The field of non- contractual obligation is much more
broader than that of contractual obligations, comprising, as it does, the whole extent of juridical human
relations. These two fields, figuratively speaking, concentric; that is to say, the mere fact that a person
is bound to another by contract does not relieve him from extra-contractual liability to such person.
When such a contractual relation exists the obligor may break the contract under such conditions that
the same act which constitutes the source of an extra-contractual obligation had no contract existed
between the parties.

The contract of defendant to transport plaintiff carried with it, by implication, the duty to carry him in
safety and to provide safe means of entering and leaving its trains (civil code, article 1258). That duty,
being contractual, was direct and immediate, and its non-performance could not be excused by proof
that the fault was morally imputable to defendant's servants.

The railroad company's defense involves the assumption that even granting that the negligent conduct
of its servants in placing an obstruction upon the platform was a breach of its contractual obligation to
maintain safe means of approaching and leaving its trains, the direct and proximate cause of the injury
suffered by plaintiff was his own contributory negligence in failing to wait until the train had come to a
complete stop before alighting. Under the doctrine of comparative negligence announced in the Rakes
case (supra), if the accident was caused by plaintiff's own negligence, no liability is imposed upon
defendant's negligence and plaintiff's negligence merely contributed to his injury, the damages should
be apportioned. It is, therefore, important to ascertain if defendant was in fact guilty of negligence.

It may be admitted that had plaintiff waited until the train had come to a full stop before alighting, the
particular injury suffered by him could not have occurred. Defendant contends, and cites many
authorities in support of the contention, that it is negligence per se for a passenger to alight from a
moving train. We are not disposed to subscribe to this doctrine in its absolute form. We are of the
opinion that this proposition is too badly stated and is at variance with the experience of every-day life.
In this particular instance, that the train was barely moving when plaintiff alighted is shown conclusively
by the fact that it came to stop within six meters from the place where he stepped from it. Thousands
of person alight from trains under these conditions every day of the year, and sustain no injury where
the company has kept its platform free from dangerous obstructions. There is no reason to believe
that plaintiff would have suffered any injury whatever in alighting as he did had it not been for
defendant's negligent failure to perform its duty to provide a safe alighting place.

We are of the opinion that the correct doctrine relating to this subject is that expressed in Thompson's
work on Negligence (vol. 3, sec. 3010) as follows:

The test by which to determine whether the passenger has been guilty of negligence in
attempting to alight from a moving railway train, is that of ordinary or reasonable care. It is to
be considered whether an ordinarily prudent person, of the age, sex and condition of the
passenger, would have acted as the passenger acted under the circumstances disclosed by
the evidence. This care has been defined to be, not the care which may or should be used
by the prudent man generally, but the care which a man of ordinary prudence would use
under similar circumstances, to avoid injury." (Thompson, Commentaries on Negligence, vol.
3, sec. 3010.)

Or, it we prefer to adopt the mode of exposition used by this court in Picart vs. Smith (37 Phil. rep.,
809), we may say that the test is this; Was there anything in the circumstances surrounding the plaintiff
at the time he alighted from the train which would have admonished a person of average prudence
that to get off the train under the conditions then existing was dangerous? If so, the plaintiff should
have desisted from alighting; and his failure so to desist was contributory negligence. 1aw ph!l .net

As the case now before us presents itself, the only fact from which a conclusion can be drawn to the
effect that plaintiff was guilty of contributory negligence is that he stepped off the car without being
able to discern clearly the condition of the platform and while the train was yet slowly moving. In
considering the situation thus presented, it should not be overlooked that the plaintiff was, as we find,
ignorant of the fact that the obstruction which was caused by the sacks of melons piled on the platform
existed; and as the defendant was bound by reason of its duty as a public carrier to afford to its
passengers facilities for safe egress from its trains, the plaintiff had a right to assume, in the absence
of some circumstance to warn him to the contrary, that the platform was clear. The place, as we have
already stated, was dark, or dimly lighted, and this also is proof of a failure upon the part of the
defendant in the performance of a duty owing by it to the plaintiff; for if it were by any possibility
concede that it had right to pile these sacks in the path of alighting passengers, the placing of them
adequately so that their presence would be revealed.

As pertinent to the question of contributory negligence on the part of the plaintiff in this case the
following circumstances are to be noted: The company's platform was constructed upon a level higher
than that of the roadbed and the surrounding ground. The distance from the steps of the car to the
spot where the alighting passenger would place his feet on the platform was thus reduced, thereby
decreasing the risk incident to stepping off. The nature of the platform, constructed as it was of cement
material, also assured to the passenger a stable and even surface on which to alight. Furthermore,
the plaintiff was possessed of the vigor and agility of young manhood, and it was by no means so risky
for him to get off while the train was yet moving as the same act would have been in an aged or feeble
person. In determining the question of contributory negligence in performing such act — that is to say,
whether the passenger acted prudently or recklessly — the age, sex, and physical condition of the
passenger are circumstances necessarily affecting the safety of the passenger, and should be
considered. Women, it has been observed, as a general rule are less capable than men of alighting
with safety under such conditions, as the nature of their wearing apparel obstructs the free movement
of the limbs. Again, it may be noted that the place was perfectly familiar to the plaintiff as it was his
daily custom to get on and of the train at this station. There could, therefore, be no uncertainty in his
mind with regard either to the length of the step which he was required to take or the character of the
platform where he was alighting. Our conclusion is that the conduct of the plaintiff in undertaking to
alight while the train was yet slightly under way was not characterized by imprudence and that
therefore he was not guilty of contributory negligence.

The evidence shows that the plaintiff, at the time of the accident, was earning P25 a month as a copyist
clerk, and that the injuries he has suffered have permanently disabled him from continuing that
employment. Defendant has not shown that any other gainful occupation is open to plaintiff. His
expectancy of life, according to the standard mortality tables, is approximately thirty-three years. We
are of the opinion that a fair compensation for the damage suffered by him for his permanent disability
is the sum of P2,500, and that he is also entitled to recover of defendant the additional sum of P790.25
for medical attention, hospital services, and other incidental expenditures connected with the treatment
of his injuries.

The decision of lower court is reversed, and judgment is hereby rendered plaintiff for the sum of
P3,290.25, and for the costs of both instances. So ordered.

Arellano, C.J., Torres, Street and Avanceña, JJ., concur.

Separate Opinions

MALCOLM, J., dissenting:

With one sentence in the majority decision, we are of full accord, namely, "It may be admitted that had
plaintiff waited until the train had come to a full stop before alighting, the particular injury suffered by
him could not have occurred." With the general rule relative to a passenger's contributory negligence,
we are likewise in full accord, namely, "An attempt to alight from a moving train is negligence per se."
Adding these two points together, should be absolved from the complaint, and judgment affirmed.

Johnson, J., concur.