GEORGE MCKEE and ARACELI KOH MCKEE,

petitioners,
vs.
INTERMEDIATE APPELLATE COURT, JAIME
TAYAG and ROSALINDA MANALO,
respondents.
G.R. No. L-68102 July 16, 1992



Driver Ruben Galang

Owners Jaime Tayag and
Rosalinda Manal0
Driver : Jose Koh

Passengers:
Kim Koh McKee
Loida Bondoc
George McKee
Christopher McKee
Araceli McKee
As a consequence of the collision, two (2) cases, Civil Case
No. 4477 and No. 4478, were filed on 31 January 1977 before the
then Court of First Instance of Pampanga.


G
.
R
.

N
o
.

6
8
1
0
3

(
C
C

4
4
7
7
)

JOSE KOH
P12,000 for the death of
Jose Koh
P150,000 for moral
damages
P60,000 as exemplary
damages
P10,000 for litigation
expenses
P6,000 for burial
expenses
P3,650 for burial lot
P9,500 for the tomb
Attorneys fees

G
.
R
.

N
o
.

6
8
1
0
2

(
C
C

4
4
7
8
)

KIM KOH
P12,000 deat benefit
P3,150 funeral expenses
P3,650 cemetery lot
P3,000 for the tomb
P50,000 moral damages
P10,000 exemplary
damages
P2,000 miscellaneous
damages

ARACELI KOH MCKEE
P100,000 moral
damages
P20,000 exemplary
damages

P12,000 loss of
earnings
P5,000 Hospitalization

GEORGE MCKEE
P50,000 moral
damages
P20,000 exemplary
damages
P3,400 Medical Center
P3,500 St. Francis
Med. Center
P5,175 Clark Airbase
Hosp.
P5,000 Miscellaneous
25% of the award as
travel & hotel Exp.
On 1 March 1977, an Information charging Ruben Galang with
the crime of "Reckless Imprudence Resulting to (sic) Multiple Homicide
and Physical Injuries and Damage to Property" was filed with the trial
court and was raffled to Branch V of the court, the same Branch where
Civil Case No. 4478 was assigned.

In their Answer with Counterclaim in Civil Case No. 4477, private
respondents asserted that it was the Ford Escort car which "invaded
and bumped (sic) the lane of the truck driven by Ruben Galang and, as
counterclaim, prayed for the award of damages. In Civil Case No. 4478,
private respondents first filed a motion to dismiss on grounds of
pendency of another action (Civil Case No. 4477) and failure to implead
an indispensable party, Ruben Galang, the truck driver; they also filed a
motion to consolidate the case with Civil Case No. 4477.

Both motions were denied



The Civil Case No. 4478 be consolidated with Civil Case No.
4477.

The court in the criminal case rendered a decisiom finding
the accused Ruben Galang guilty beyond reasonable doubt of the
crime charged in the information.

The judge which heard the civil cases dismissed the 2
complaints and awarded the private respondents moral damages,
exemplary damages and attorney's fees.

Accused Ruben Galang appealed the judgment of
conviction to the Court of Appeals but the CA affirmed the
conviction of Galang. A petition for its review was filed with SC
which was subsequently denied. A motion for its reconsideration
was denied with finality.
Plaintiffs in Civil Cases Nos. 4477 and 4478 likewise
separately appealed the decision of the court, and the IAC
rendered a decision reversing and setting aside the appealed
decision and ordered the defendants to pay for damages. The
decision is anchored principally on the respondent Court's
findings that it was Ruben Galang's inattentiveness or reckless
imprudence which caused the accident. The appellate court
further said that the law presumes negligence on the part of the
private respondents, as employers of Galang, in the selection and
supervision of the latter.

A motion for reconsideration alleging improper
appreciation of the facts was subsequently filed by private
respondents which the respondent Court reconsidered and set
aside its decision and affirmed in toto the trial court's judgment of
12 November 1980.


WON Galang was negligent?

WON the petitioners are entitled to the award of
damages?
ISSUE:
There is merit in the petition.

Civil Cases Nos. 4477 and 4478, which were for the recovery of
civil liability arising from a quasi-delict under Article 2176 in relation to
Article 2180 of the Civil Code, were filed ahead of Criminal Case. Civil
Case No. 4478 was eventually consolidated with Civil Case No. 4477 for
joint trial.

In the assailed resolution, the respondent Court held that the
fact that the car improperly invaded the lane of the truck and that the
collision occurred in said lane gave rise to the presumption that the
driver of the car, Jose Koh, was negligent. On the basis of this presumed
negligence, the appellate court immediately concluded that it was Jose
Koh's negligence that was the immediate and proximate cause of the
collision. This is an unwarranted deduction as the evidence for the
petitioners convincingly shows that the car swerved into the truck's lane
because as it approached the southern end of the bridge, 2boys darted
across the road from the right sidewalk into the lane of the car.
Jose Koh's entry into the lane of the truck was necessary in
order to avoid what was, in his mind at that time, a greater peril that
might result to the death or injury to the two boys. Such act can hardly
be classified as negligent.

In Picart vs. Smith, the SC held that 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 person would
have used in the same situation? If not, then he is guilty of negligence.

In Corliss vs. Manila Railroad Company, the SC defined egligence
as want of the care required by the circumstances. It is a relative or
comparative, not an absolute, term and its application depends upon
the situation of the parties and the degree of care and vigilance which
the circumstances reasonably require. Where the danger is great, a high
degree of care is necessary, and the failure to observe it is a want of
ordinary care under the circumstances.
On the basis of the foregoing definition, no negligence
could be imputed to Jose Koh. Any reasonable and ordinary
prudent man would have tried to avoid running over the two boys
by swerving the car away from where they were even if this
would mean entering the opposite lane. Avoiding such immediate
peril would be the natural course to take particularly where the
vehicle in the opposite lane would be several meters away and
could very well slow down, move to the side of the road and give
way to the oncoming car.

Under what is known as the EMRGENCY RULE, "one who
suddenly finds himself in a place of danger, and is required to act
without time to consider the best means that may be adopted to
avoid the impending danger, is not guilty of negligence, if he fails
to adopt what subsequently and upon reflection may appear to
have been a better method, unless the emergency in which he
finds himself is brought about by his own negligence."
Although it may be said that the act of Jose Koh is
negligent, was the initial act in the chain of events, it cannot be
said that the same caused the eventual injuries and deaths
because of the occurrence of a sufficient intervening event, the
negligent act of the truck driver, which was the actual cause of
the tragedy. The entry of the car into the lane of the truck would
not have resulted in the collision had the latter heeded the
emergency signals given by the former to slow down and give the
car an opportunity to go back into its proper lane. Instead of
slowing down and swerving to the far right of the road, which
was the proper precautionary measure under the given
circumstances, the truck driver continued at full speed towards
the car. The truck driver's negligence becomes more apparent in
view of the fact that the road is 7.50 meters wide while the car
measures 1.5 meters and the truck, 2.3 meters, in width. This
would mean that both car and truck could pass side by side with a
clearance of 3.661 meters to spare.
Clearly, therefore, it was the truck driver's
subsequent negligence in failing to take the proper measures and
degree of care necessary to avoid the collision which was the
proximate cause of the resulting accident. Even if Jose Koh was
indeed negligent, the doctrine of last clear chance finds
application here.
Therefore it was the truck driver's negligence in failing to
exert ordinary care to avoid the collision which was, in law, the
proximate cause of the collision. As employers of the truck driver,
the private respondents are, under Article 2180 of the Civil Code,
directly and primarily liable for the resulting damages. The
presumption that they are negligent flows from the negligence of
their employee. That presumption, however, is only juris
tantum, not juris et de jure. Their only possible defense is that they
exercised all the diligence of a good father of a family to prevent
the damage.
The respondent Court was then correct in its Decision in
reversing the decision of the trial court which dismissed Civil
Cases Nos. 4477 and 4478. In the light of recent decisions of this
Court, the indemnity for death must, however, be increased from
P12,000.00 to P50,000.00.

WHEREFORE, the instant petition is GRANTED.