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.

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.

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.
 SECOND DIVISION
[ G.R. No. 206184. December 06, 2017 ]
SPOUSES ED DANTE LATONIO AND MARY ANN LATONIO AND THE MINOR
ED CHRISTIAN LATONIO, PETITIONERS, V. MCGEORGE FOOD INDUSTRIES
INC., CEBU GOLDEN FOODS INDUSTRIES, INC., AND TYKE PHILIP
LOMIBAO, RESPONDENTS.

DECISION
PERALTA, J.:
Before this Court is a petition for review[1] via Rule 45 of the Rules of Court assailing the
Decision[2] dated September 28, 2012 and Resolution[3] dated January 31, 2013 of the
Court of Appeals (CA), Cebu City in CA-G.R. CV No. 03079, which reversed and set aside the
Decision[4] of the Regional Trial Court (RTC) Branch 22, Cebu City and denied the motion
for reconsideration, respectively.
The facts are as follows:

On September 17, 2000, the petitioners, spouses Ed Dante (Ed) and Mary Ann Latonio
(Mary Ann): accompanied their eight-month-old child Ed Christian to a birthday party at the
McDonald's Restaurant, Ayala Center, Cebu City.
During the party and as part of the birthday package, McDonald's presented two mascots-
"Birdie" and "Grimace" to entertain and dance for the guests. Respondent Tyke Philip
Lomibao (Lomibao)[5] was the person inside the "Birdie" mascot suit.
After the mascots danced, guests had their pictures taken with them. Intending to have
her child's photo taken with the mascots, Mary Ann placed Ed Christian on a chair in front
of the mascot "Birdie." The mascot positioned itself behind the child and extended its
"wings" to give a good pose for the camera.

As photos were about to be taken, Mary Ann released her hold of Ed Christian. Seconds
later, the child fell head first from the chair onto the floor.

Several guests attended to Ed Christian. Meanwhile, the employees of respondent

McDonald's Cebu Golden Food[6] (Cebu Golden Food) assisted petitioners in giving first aid
treatment to Ed Christian. Petitioners, nevertheless, remained and continued with the
party and left only after the party was over.
At about 9:30 in the evening of the same day, Mary Ann called up Cebu Golden Food to
inform them that their doctor advised them to get an x-ray examination on Ed Christian.
Cebu Golden Food then assured her that they were willing to shoulder the expenses for the
x-ray examination of Ed Christian. Later, McDonald's reimbursed Mary Ann for the
expenses incurred relative to the x-ray examination. It further offered to pay the expenses
for the CT scan to be conducted on Ed Christian.

For some time, nothing was heard from petitioners. Nonetheless, a staff of Cebu Golden
Food visited the Latonios in their residence to follow up the results of the CT scan test.
The staff was met by the brother of Mary Ann, who allegedly repeatedly shouted at them
saying that they would file a case against Cebu Golden Food. Thus, Cebu Golden Food
reported the incident to their licensor, McGeorge Food Industries, Inc.

Sometime in October 2000, McGeorge received a Letter from the lawyer of the Latonios
regarding the September 17, 2000 incident. In its reply, McGeorge immediately assured the
Latonios that the health and safety of all McDonald's customers is its utmost concern and
that the best medical and hospital care would be made available to Ed Christian.
McGeorge also sent its Field Service Director, together with its lawyer, to meet with the
Latonios and their lawyers to assure them that McDonald's was ready to assist in whatever
medical attention would be required of Ed Christian.

During the meeting, McGeorge agreed to contact a neurologist for consultation to ensure
Ed Christian's health. McGeorge conferred and consulted with two neurosurgeons at the
St. Luke's Medical Center and the Makati Medical Center, who both recommended to first
study the x-ray results and CT scan to determine the extent of the injury sustained by the
baby.

Thereafter, McGeorge relayed the doctor's requirement to the Latonios who initially agreed
to give McGeorge copies of the x-ray and CT scan results. However, the Latonios had a
change of heart and informed McGeorge that they had decided against lending them the x-
ray and CT scan results and other related medical records.

Instead, the Latonios sent a Letter to McGeorge demanding for compensation in the
amount of Fifteen Million Pesos (P15,000,000.00).

As their demand remained unheeded, the Latonios caused the publication of the accident
in the local newspaper, Sun Star Cebu on February 8, 2001 with a headline " Food outlet
sued for P9 M damages". Simultaneously, the Latonios also instituted a complaint for
damages and attorney's fees against McGeorge.
On March 3, 2009, the RTC, in Civil Case No. CEB-26126, issued a Decision, [7] the
dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiffs
and against defendants Tyke Philip Lomibao and Cebu Golden Foods, Inc., finding
defendant Tyke Philip Lomibao liable for acts of negligence causing the fall of baby Ed
Christian Latonia and correspondingly, finding defendant Cebu Golden Foods, Inc. liable
solidarity with defendant Tyke Philip Lomibao, pursuant to Article 2180 of the New Civil
Code inasmuch as defendant Cebu Golden Foods, Inc. was the employer of defendant Tyke
Philip Lomibao.

Accordingly, defendants Tyke Philip Lomibao and Cebu Golden Foods, Incorporated, are
hereby ordered to pay to the plaintiffs the following:

1. P900,000.00 as Moral Damages;

2. P50,000.00 as Exemplary Damages, and
3. P300,000.00 as Attorney's fees.
The case against defendant McGeorge Food Industries Inc., is hereby dismissed for lack of
evidence.

SO ORDERED.

Aggrieved, Cebu Golden Food and Lomibao filed an appeal before the Court of Appeals-
Cebu City.

On September 28, 2012, in its assailed Decision, the Court of Appeals reversed the trial
court's decision and said that the trial court overlooked substantial facts and
circumstances which, if properly considered, would justify a different conclusion and alter
the results of the case. The dispositive portion of the decision reads, thus:

WHEREFORE, the appeal is GRANTED. The Decision dated 03 March 2009 of the Regional
Trial Court, Branch 22, Cebu City is REVERSED and SET ASIDE. Civil Case No. CEB-26126
is DISMISSED for lack of merit. The compulsory counterclaims of defendants-appellants
are DENIED. No costs.
SO ORDERED.[8]
Thus, the instant petition for review under Rule 45 of the Rules of Court brought before this
Court raising the sole issue of: Whether the Court of Appeals erred in ruling that the
proximate cause of Ed Christian's fall was the negligence of petitioner Mary Ann Latonia .[9]
The trial court held Cebu Golden Food is liable because the proximate cause of Ed
Christian's fall is the negligence of their employee, Lomibao. On the other hand, the Court
of Appeals reversed the trial court's decision and held that Ed Christian's mother, Mary
Ann, is liable because the proximate cause of the child's fall was Mary Ann's act of leaving
her eight-month-old child, Ed Christian, in the "hands" of Lomibao who was at the time
wearing the Birdie mascot costume.

We find no merit on this instant petition.

The principle is well-established that this Court is not a trier of facts. Therefore, in an
appeal by certiorari under Rule 45 of the Rules of Court, only questions of law may be
raised. The resolution of factual issues is the function of the lower courts whose findings
on these matters are received with respect and are, as a rule, binding on this Court. [10]
However, this rule is subject to certain exceptions. One of these is when the findings of
the appellate court are contrary to those of the trial court. [11] It is also settled that 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.
Nevertheless, 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,[12] as what happened in the
instant case.
In the instant case, there is no dispute that petitioners suffered damages because of Ed
Christian's fall. However, as to the issues on negligence and proximate cause, the Court of
Appeals and the trial court gave contradicting findings.

As the action is predicated on negligence, the relevant law is Article 2176 of the Civil
Code, which states that —

Whoever by act or omission causes damage to another, there being fault or negligence, is
obliged to pay for the damage done. Such fault or negligence, if there was no pre-existing
contractual relation between the parties, is called quasi-delict and is governed by the
provisions of this chapter.

The trial court held that the proximate cause of Ed Christian's fall and the resulting injury
was Lomibao's act of holding the baby during the party which was purportedly prohibited
under the rules and policy of the establishment.

We disagree.

Indeed, the testimony of Mary Ann herself on cross-examination is telling. Thus:

xxxx

Q. And when you said that you informed the mascot, what exact words did you use?
A. I tap (sic) him on his side and then I called him that I am going to have the taking of
pictures with my baby.
xxxx

Q. Now did you wait for the mascots to make a reply?

A. He was looking at me and he look (sic) at my face.
Q. Did he make a reply?
A. No, Ma'am.
Q. Did you see his eyes looking at you?
A. No, Ma'am.
x x x.[13]
ATTY. ABELLA

xxxx

Q. And at the time you already observed that the person was wearing a thick leather suit?
A. Yes.
Q. Did you actually see the body of the person who lift (sic) your baby then?
A. No.
Q. Did you see the hands inside the costume?
A. Of course, I cannot see the hands.
Q. Did you see the arms of the person inside the mascot?
A. I cannot because he is (sic) wearing a costume.[14]
COURT

Q. You were not sure that when you handed the baby it was firmly held by the mascot?
A. I placed the baby in front of the mascot.
Q. You were not aware about the hands when you turned over the baby because it was a
mascot?
A. I was sure because I can feel the hands and my baby was standing in front of him; and
he is doing like this (witness demonstrating).[15]
ATTY. ABELLA

Q. Did you see the eyes of the person inside the mascot costume?
A. No.
Q. Were you aware if there were openings for the eyes of the person inside the mascot?
A. Yes, I was aware.
Q. The eyes in this mascot costume actually had no opening?
A. Yes, no opening. [16]
COURT

Q. You entrusted the baby even if there was no opening of the eyes?
A. There was an opening of the costume near the mouth. If the mascot cannot see, then
how can he play with the kids?
Q. You said that you told the mascot that you were leaving the baby to him?
A. I pat (sic) him.
Q. Did you see the ears of the person inside the mascot?
A. No.
Q. Did you even know if there was an opening for the ears at the person wearing the
mascot costume?
A. No, but I was nearer the mascot.
x x x.[17]
We agree with the appellate court that despite Mary Ann's insistence that she made sure
that her baby was safe and secured before she released her grasp on Ed Christian, her own
testimony revealed that she had, in fact, acted negligently and carelessly, to wit:

Q. Now when you said that you made sure that the mascot was holding your baby, what
action did you do to insure that?
A. When I saw that the mascot was holding my baby so I make (sic) a motion to my
husband for the picture taking so I left beside. I backed off a little bit.
xxxx.
Q. I will not risk my baby if I am not sure that the mascot was not inserting his hands over
my baby when I left the scene. The (sic) I am sure that the baby was already safe in the
hands of the mascot.

Q. When you say that you make (sic) sure you just relied on your sight?
A. Yes, ma'am.[18]
xxxx

Q: Did you check what part of your child's body was in contact in any part of the mascot's
body? A: Partly it was here on the waist of the child until (sic) the armpit.

Q: Now you said that you move (sic) further to the side from where your baby was standing,
is that your testimony?
A: Yes, ma'am.
Q: Can you tell us or can you give us any reason why you move (sic) to the side?
A: Because I motioned my husband already that he would take a picture of the baby and
the mascot before I left and I am so sure that the baby is securely (sic) with the mascot
holding the baby.[19]
xxxx

Q: And your child at that time was eight (8) months old?
A: Yes, ma'am.
Q: He cannot stand on his own?
A: He can stand but he has to have support.
Q: He cannot walk on his own at that time?
A: At that time with support."
x x x.[20]
More telling is the ratiocination of the Court of Appeals, which we quote with approval:

Indeed, it is irresponsible for a mother to entrust the safety, even momentarily, of her
eight-month-old child to a mascot, not to mention a bird mascot in thick leather suit that
had no arms to hold the child and whose diminished ability to see, hear, feel, and move
freely was readily apparent. Moreover, by merely tapping the mascot and saying ''papicture
ta", Mary Ann Latonio cannot be said to have "told, informed and instructed the mascot
that she was letting the mascot hold the baby momentarily." Releasing her grasp of the
baby without waiting for any indication that the mascot heard and understood her is just
plain negligence on the part of Mary Ann.
To Our mind, what is more in accord with human experience and dictates of reason is that
a diligent mother would naturally ensure first and foremost the safety of her child before
releasing her hold on him. Such is not the case here. Mary Ann Latonio, in placing Ed
Christian on a chair and expecting a bird mascot to ensure the child's safety, utterly failed
to observe the degree of diligence expected of her as a mother of an eight month-old baby.
[21]

Clearly, based on the foregoing, Mary Ann's negligence was the proximate cause of Ed
Christian's fall which caused him injury. Proximate cause is defined as -

that cause, which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the result would not have
occurred. And more comprehensively, the proximate legal cause is that acting first and
producing the injury, either immediately or by setting other events in motion, all
constituting a natural and continuous chain of events, each having a close causal
connection with its immediate predecessor, the final event in the chain immediately
effecting the injury as a natural and probable result of the cause which first acted, under
such circumstances that the person responsible for the first event should, as an ordinary
prudent and intelligent person, have reasonable ground to expect at the moment of his act
or default that an injury to some person might probably result therefrom. [22]
Here, it is beyond dispute that the cause of Ed Christian's fall is traceable to the negligent
act of Mary Ann of leaving him in the "hands" of Lomibao who was wearing the Birdie
mascot suit. We noted that "hands" and "wings" were used interchangeably during the
testimonies of the witnesses, thus, causing confusion. However, it must be stressed that
while indeed Lomibao has hands of his own, at the time of the incident he was wearing the
Birdie mascot suit. Suffice it to say that the Birdie mascot suit have no hands but instead
have wings. Lomibao cannot possibly hold or grasp anything while wearing the thick Birdie
mascot suit. In fact, even if he wanted to hold Ed Christian or anything, he could not
possibly do so because he was wearing the Birdie mascot suit which do not even have
hands or fingers to be able to hold or grasp firmly.

Notably, while the CA and the trial court made conflicting rulings on the negligence of
Cebu Golden Food and Lomibao, they, however, concur on Mary Ann's own negligence. The
trial court's summation of Mary Ann's own negligence is as follows:

xxxx

A review of their testimonies would reveal that although we ascribe negligence of

defendant Lomibao we, likewise, unraveled that plaintiff herself was not entirely
blameless. Therefore, plaintiff Mary Ann Latonia was likewise negligent. Why was she
negligent can be traced to the fact as established that she left her eight-month-old baby on
top of a chair to the temporary custody of a mascot. Even if the baby was only left for a
few seconds or minutes that could already spell a disaster, in fact, it really happened. The
baby fell from the chair and went straight into the floor head first. Even if she already
informed and told the mascot that she was leaving the baby to his hold she should not
have let go of her grip because as a mother she ought to exercise the commensurate
prudence and case.
x x x."[23]
Thus, all the aforementioned circumstances lead us to no other conclusion than that the
proximate cause of the injury sustained by Ed Christian was due to Mary Ann's own
negligence.

All told, in the absence of negligence on the part of respondents Cebu Golden Foods and
Lomibao, as well as their management and staff, they cannot be made liable to pay for the
damages prayed for by the petitioners.

To warrant the recovery of damages, there must be both a right of action for a legal wrong
inflicted by the defendant, and damage resulting to the plaintiff therefrom. Wrong without
damage, or damage without wrong, does not constitute a cause of action, since damages
are merely part of the remedy allowed for the injury caused by a breach or wrong. [24]
Many accidents occur and many injuries are inflicted by acts or omissions which cause
damage or loss to another but which violate no legal duty to such other person, and
consequently create no cause of action in his favour. In such cases, the consequences
must be borne by the injured person alone. The law affords no remedy resulting from an act
which does not amount to a legal injury or wrong.[25]
WHEREFORE, premises considered, the Decision dated September 28, 2012 and Resolution
dated January 31, 2013 of the Court of Appeals in CA-G.R. CV No. 03079 are
hereby AFFIRMED.
SO ORDERED.

G.R. No. L-68102 July 16, 1992

GEORGE MCKEE and ARACELI KOH MCKEE, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA
MANALO, respondents.

G.R. No. L-68103 July 16, 1992

CARMEN DAYRIT KOH, LETICIA KOH, JULIETA KOH TUQUERO, ARACELI KOH MCKEE,
ANTONIO KOH and ELIZABETH KOH TURLA, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA
MANALO, respondents.

DAVIDE, JR., J.:

Petitioners urge this Court to review and reverse the Resolution of the Court of Appeals in C.A.-
G.R. CV Nos. 69040-41, promulgated on 3 April 1984, which set aside its previous Decision
dated 29 November 1983 reversing the Decision of the trial court which dismissed petitioners'
complaints in Civil Case No. 4477 and Civil Case No. 4478 of the then Court of First Instance
(now Regional Trial Court) of Pampanga entitled "Carmen Dayrit Koh, Leticia Koh, Julieta Koh
Tuquero, Araceli Koh McKee and Elizabeth Koh Turla vs. Jaime Tayag and Rosalinda Manalo,"
and "George McKee and Araceli Koh McKee vs. Jaime Tayag and Rosalinda Manalo,"
respectively, and granted the private respondents' counterclaim for moral damages, attorney's
fees and litigation expenses.

The said civil cases for damages based on quasi-delict were filed as a result of a vehicular
accident which led to the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc and caused
physical injuries to George Koh McKee, Christopher Koh McKee and petitioner Araceli Koh
McKee.

Petitioners in G.R. No. 68102, parents of the minors George Koh McKee, Christopher Koh
McKee and the deceased Kim Koh McKee, were the plaintiffs in Civil Case No. 4478, while
petitioner Carmen Dayrit Koh and her co-petitioners in G.R. No. 68103, who are the wife and
children, respectively, of the late Jose Koh, were the plaintiffs in Civil Case No. 4477. Upon the
other hand, private respondents are the owners of the cargo truck which figured in the mishap; a
certain Ruben Galang was the driver of the truck at the time of the accident.

The antecedent facts are not disputed.

Between nine and ten o'clock in the morning of 8 January 1977, in Pulong Pulo Bridge along
MacArthur Highway, between Angeles City and San Fernando, Pampanga, a head-on-collision
took place between an International cargo truck, Loadstar, with Plate No. RF912-T Philippines
'76 owned by private respondents, and driven by Ruben Galang, and a Ford Escort car bearing
Plate No. S2-850 Pampanga '76 driven by Jose Koh. The collision resulted in the deaths of Jose
Koh, Kim Koh McKee and Loida Bondoc, and physical injuries to George Koh McKee,
Christopher Koh McKee and Araceli Koh McKee, all passengers of the Ford Escort.

Jose Koh was the father of petitioner Araceli Koh McKee, the mother of minors George,
Christopher and Kim Koh McKee. Loida Bondoc, on the other hand, was the baby sitter of one
and a half year old Kim. At the time of the collision, Kim was seated on the lap of Loida Bondoc
who was at the front passenger's seat of the car while Araceli and her two (2) sons were seated
at the car's back seat.
Immediately before the collision, the cargo truck, which was loaded with two hundred (200)
cavans of rice weighing about 10,000 kilos, was traveling southward from Angeles City to San
Fernando Pampanga, and was bound for Manila. The Ford Escort, on the other hand, was on its
way to Angeles City from San Fernando. When the northbound car was about (10) meters away
from the southern approach of the bridge, two (2) boys suddenly darted from the right side of the
road and into the lane of the car. The boys were moving back and forth, unsure of whether to
cross all the way to the other side or turn back. Jose Koh blew the horn of the car, swerved to the
left and entered the lane of the truck; he then switched on the headlights of the car, applied the
brakes and thereafter attempted to return to his lane. Before he could do so, his car collided with
the truck. The collision occurred in the lane of the truck, which was the opposite lane, on the said
bridge.

The incident was immediately reported to the police station in Angeles City; consequently, a
team of police officers was forthwith dispatched to conduct an on the spot investigation. In the
sketch prepared by the investigating officers, the bridge is described to be sixty (60) "footsteps"
1

long and fourteen (14) "footsteps" wide — seven (7) "footsteps" from the center line to the inner
edge of the side walk on both sides. Pulong Pulo Bridge, which spans a dry brook, is made of
2

concrete with soft shoulders and concrete railings on both sides about three (3) feet high.

The sketch of the investigating officer discloses that the right rear portion of the cargo truck was
two (2) "footsteps" from the edge of the right sidewalk, while its left front portion was touching the
center line of the bridge, with the smashed front side of the car resting on its front bumper. The
truck was about sixteen (16) "footsteps" away from the northern end of the bridge while the car
was about thirty-six (36) "footsteps" from the opposite end. Skid marks produced by the right
front tire of the truck measured nine (9) "footsteps", while skid marks produced by the left front
tire measured five (5) "footsteps." The two (2) rear tires of the truck, however, produced no skid
marks.

In his statement to the investigating police officers immediately after the accident, Galang
admitted that he was traveling at thirty (30) miles (48 kilometers) per hour.

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 and were raffled to
Branch III and Branch V of the said court, respectively. In the first, herein petitioners in G.R. No.
68103 prayed for the award of P12,000.00 as indemnity for the death of Jose Koh, P150,000.00
as moral damages, P60,000.00 as exemplary damages, P10,000.00 for litigation expenses,
P6,000.00 for burial expenses, P3,650.00 for the burial lot and P9,500.00 for the tomb, plus
attorney's fees. In the second case, petitioners in G.R. No. 68102 prayed for the following: (a) in
3

connection with the death of Kim McKee, the sum of P12,000.00 as death benefit, P3,150.00 for
funeral services, P3,650.00 for the cemetery lot, P3,000.00 for the tomb, P50,000.00 as moral
damages, P10,000.00 as exemplary damages and P2,000.00 as miscellaneous damages; (b) in
the case of Araceli Koh McKee, in connection with the serious physical injuries suffered, the sum
of P100,000.00 as moral damages, P20,000.00 as exemplary damages, P12,000.00 for loss of
earnings, P5,000.00 for the hospitalization expenses up to the date of the filing of the complaint;
and (c) with respect to George McKee, Jr., in connection with the serious physical injuries
suffered, the sum of P50,000.00 as moral damages, P20,000.00 as exemplary damages and the
following medical expenses: P3,400 payable to the Medical Center, P3,500.00 payable to the St.
Francis Medical Center, P5,175.00 payable to the Clark Air Base Hospital, and miscellaneous
expenses amounting to P5,000.00. They also sought an award of attorney's fees amounting to
25% of the total award plus traveling and hotel expenses, with costs. 4

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. It was docketed as Criminal Case No. 3751 and was raffled to
Branch V of the court, the same Branch where Civil Case No. 4478 was assigned. 5
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 P15,000.00 as attorney's fees, P20,000.00
as actual and liquidated damages, P100,000.00 as moral damages and P30,000.00 as business
losses. In Civil Case No. 4478, private respondents first filed a motion to dismiss on grounds of
6

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 pending before Branch III of the same court, which was opposed by the plaintiffs. Both 7

motions were denied by Branch V, then presided over by Judge Ignacio Capulong. Thereupon,
private respondents filed their Answer with Counter-claim 8 wherein they alleged that Jose Koh was the person
"at fault having approached the lane of the truck driven by Ruben Galang, . . . which was on the right lane going towards Manila and at
a moderate speed observing all traffic rules and regulations applicable under the circumstances then prevailing;" in their counterclaim,
they prayed for an award of damages as may be determined by the court after due hearing, and the sums of P10,000.00 as attorney's
fees and P5,000.00 as expenses of litigation.

Petitioners filed their Answers to the Counterclaims in both cases.

To expedite the proceedings, the plaintiffs in Civil Case No. 4478 filed on 27 March 1978 a
motion to adopt the testimonies of witnesses taken during the hearing of Criminal Case No.
3751, which private respondents opposed and which the court denied. Petitioners subsequently 9

moved to reconsider the order denying the motion for consolidation, which Judge Capulong 10

granted in the Order of 5 September 1978; he then directed that Civil Case No. 4478 be
consolidated with Civil Case No. 4477 in Branch III of the court then presided over by Judge
Mario Castañeda, Jr.

Left then with Branch V of the trial court was Criminal Case No. 3751.

In the civil cases, the plaintiffs presented as witnesses Araceli Koh McKee, Fernando Nuñag,
Col. Robert Fitzgerald, Primitivo Parel, Eugenio Tanhueco, Carmen Koh and Antonio Koh, and 11

offered several documentary exhibits. Upon the other hand, private respondents presented as
witnesses Ruben Galang, Zenaida Soliman, Jaime Tayag and Roman Dayrit. 12

In the criminal case, the prosecution presented as witnesses Mrs. Araceli McKee, Salud Samia,
Pfc. Fernando Nuñag, Dr. Ramon Panlilio, Dr. Robert Fitzgerald, Dr. Roberto Yuson, Dr. Hector,
Ulanday, Pfc. Benigno de Leon, Marina Bolos, Primitivo Parel, Rogelio Pineda, Benito Caraan
and Eugenio Tanhueco, and offered several documentary exhibits. Upon the other hand, the 13

defense presented the accused Ruben Galang, Luciano Punzalan, Zenaida Soliman and Roman
Dayrit, and offered documentary exhibits. 14

On 1 October 1980, Judge Capulong rendered a decision against the accused Ruben Galang in
the aforesaid criminal case. The dispositive portion of the decision reads as follows:

WHEREFORE, in view of the foregoing, judgment is hereby rendered finding the

accused Ruben Galang guilty beyond reasonable doubt of the crime charged in
the information and after applying the provisions of Article 365 of the Revised
Penal Code and indeterminate sentence law, this Court, imposes upon said
accused Ruben Galang the penalty of six (6) months of arresto mayor as
minimum to two (2) years, four (4) months and one (1) day of prision
correccional as maximum; the accused is further sentenced to pay and indemnify
the heirs of Loida Bondoc the amount of P12,000.00 as indemnity for her death;
to reimburse the heirs of Loida Bondoc the amount of P2,000.00 representing the
funeral expenses; to pay the heirs of Loida Bondoc the amount of P20,000.00
representing her loss of income; to indemnify and pay the heirs of the deceased
Jose Koh the value of the car in the amount of P53,910.95, and to pay the
costs. 15
The aforecited decision was promulgated only on 17 November 1980; on the same day, counsel
for petitioners filed with Branch III of the court — where the two (2) civil cases were pending — a
manifestation to that effect and attached thereto a copy of the decision. 16

Upon the other hand, Judge Mario Castañeda, Jr. dismissed the two (2) civil cases on 12
November 1980 and awarded the private respondents moral damages, exemplary damages and
attorney's fees. The dispositive portion of the said decision reads as follows:
17

WHEREFORE, finding the preponderance of evidence to be in favor of the

defendants and against the plaintiffs, these cases are hereby ordered
DISMISSED with costs against the plaintiffs. The defendants had proven their
counter-claim, thru evidences (sic) presented and unrebutted. Hence, they are
hereby awarded moral and exemplary damages in the amount of P100,000.00
plus attorney's fee of P15,000.00 and litigation expenses for (sic) P2,000.00. The
actual damages claimed for (sic) by the defendants is (sic) hereby dismissing for
lack of proof to that effect (sic).
18

A copy of the decision was sent by registered mail to the petitioners on 28 November 1980 and
was received on 2 December 1980. 19

Accused Ruben Galang appealed the judgment of conviction to the Court of Appeals. The appeal
was docketed as C.A.-G.R. Blg. 24764-CR and was assigned to the court's Third Division.
Plaintiffs in Civil Cases Nos. 4477 and 4478 likewise separately appealed the 12 November 1980
decision to the appellate court. The appeals were docketed as C.A.-G.R. No. 69041-R and C.A.-
G.R. No. 69040-R, respectively, and were assigned to the Fourth Civil Cases Division.

On 4 October 1982, the respondent Court promulgated its decision in C.A.-G.R. Blg. 24764-CR
20

affirming the conviction of Galang. The dispositive portion of the decision reads:
21

DAHIL DITO, ang hatol na paksa ng naritong paghahabol ay Aming pinagtitibay

sa kanyang kabuuan. Ang naghahabol pa rin ang pinagbabayad ng gugol ng
paghahabol.

A motion for reconsideration of the decision was denied by the respondent Court in
its Kapasiyahan promulgated on 25 November 1982. A petition for its review was filed with
22 23

this Court; said petition was subsequently denied. A motion for its reconsideration was denied
with finality in the Resolution of 20 April 1983.
24

On 29 November 1983, respondent Court, by then known as the Intermediate Appellate Court,
promulgated its consolidated decision in A.C.-G.R. CV Nos. 69040 and 69041, the dispositive
25

portion of which reads:

WHEREFORE, the decision appealed from it hereby reversed and set aside and
another one is rendered, ordering defendants-appellees to pay plaintiffs-
appellants as follows:

For the death of Jose Koh:

P 50,000.00 as moral damages

P 12,000.00 as death indemnity
P 16,000.00 for the lot and tomb (Exhs. U and U-1)
P 4,000.00 expenses for holding a wake (p. 9, tsn April 19, 1979)
P 950.00 for the casket (Exh. M)
P 375.00 for the vault services (Exhs. V and V-1)
 For the death of Kim Koh McKee:

P 50,000.00 as moral damages

P 12,000.00 as death indemnity
P 1,000.00 for the purchase of the burial lot (Exh. M)
P 950.00 for funeral services (Exh. M-1)
P 375.00 for vault services (Exhs. V and V-1)

For the physical injuries suffered by George Koh McKee:

P 25,000.00 as moral damages

P 672.00 for Clark Field Hospital (Exh. E)
P 4,384.00 paid to Angeles Medical Clinic (Exhs. D, D-1 and
D-2)
P 1,555.00 paid to St. Francis Medical Center (Exhs. B and B-1)

For the physical injuries suffered by Araceli Koh McKee:

P 25,000.00 as moral damages

P 1,055.00 paid to St. Francis Medical Center (Exhs. G and
G-1)
P 75.00 paid to St. Francis Medical Center (Exhs. G-2 and G-3)
P 428.00 to Carmelite General Hospital (Exh. F)
P 114.20 to Muñoz Clinic (Exh. MM)

For the physical injuries suffered by Christopher Koh McKee:

P 10,000.00 as moral damages

P 1,231.10 to St. Francis Medical Center (Exhs. L and L-1)
P 321.95 to F.C.E.A. Hospital (Exhs. G and D-1)

In addition, We award P10,000.00 as counsel (sic) fees in Civil Case No. 4477
and another P10,000.00; as counsel (sic) fees in Civil Case No. 4478.

No pronouncement as to costs.

SO ORDERED. 26

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 defendants (private
respondents), as employers of Galang, in the selection and supervision of the latter; it was
further asserted that these defendants did not allege in their Answers the defense of having
exercised the diligence of a good father of a family in selecting and supervising the said
employee. This conclusion of reckless imprudence is based on the following findings of fact:
27

In the face of these diametrically opposed judicial positions, the determinative

issue in this appeal is posited in the fourth assigned error as follows:

IV

THE TRIAL COURT ERRED WHEN IT HELD THE (sic) DRIVER OF THE
TRUCK STOPPED HIS TRUCK BLEW HIS HORN SWITCHED ON HIS
HEADLIGHTS AND COULD NOT SWERVE TO THE RIGHT.
Supportive of plaintiffs' version, principal witness Araceli Koh McKee testified thus:

Q What happened after that, as you approached the bridge?

A When we were approaching the bridge, two (2) boys tried to

cross the right lane on the right side of the highway going to San
Fernando. My father, who is (sic) the driver of the car tried to
avoid the two (2) boys who were crossing, he blew his horn and
swerved to the left to avoid hitting the two (2) boys. We noticed
the truck, he switched on the headlights to warn the truck driver,
to slow down to give us the right of way to come back to our right
lane.

Q Did the truck slow down?

A No, sir, it did not, just (sic) continued on its way.

Q What happened after that?

A After avoiding the two (2) boys, the car tried to go back to the
right lane since the truck is (sic) coming, my father stepped on the
brakes and all what (sic) I heard is the sound of impact (sic), sir.
(tsn, pp. 5-6, July 22, 1977); or (Exhibit "O" in these Civil Cases).

xxx xxx xxx

Q Mrs. how did you know that the truck driven by the herein
accused, Ruben Galang did not reduce its speed before the
actual impact of collision (sic) as you narrated in this Exhibit "1,"
how did you know (sic)?

A It just kept on coming, sir. If only he reduced his speed, we

could have got (sic) back to our right lane on side (sic) of the
highway, sir. (tsn. pp. 33-34 July 22, 1977) or (Exhibit "O" in these
Civil Cases) (pp. 30-31, Appellants' Brief).

Plaintiffs' version was successfully corroborated to Our satisfaction by the following facts and
circumstances:

1. An impartial eye-witness to the mishap, Eugenio Tanhueco, declared that the

truck stopped only when it had already collided with the car:

xxx xxx xxx

Tanhueco repeated the same testimony during the hearing in the criminal case:

xxx xxx xxx

Tanhueco could (sic) not be tagged as an accommodation witness because he

was one of the first to arrive at the scene of the accident. As a matter of fact, he
brought one of the injured passengers to the hospital.

We are not prepared to accord faith and credit to defendants' witnesses, Zenaida
Soliman, a passenger of the truck, and Roman Dayrit, who supposedly lived
across the street.
Regarding Soliman, experience has shown that in the ordinary course of events
people usually take the side of the person with whom they are associated at the
time of the accident, because, as a general rule, they do not wish to be identified
with the person who was at fault. Thus an imaginary bond is unconsciously
created among the several persons within the same group (People vs. Vivencio,
CA-G.R. No. 00310-CR, Jan. 31, 1962).

With respect to Dayrit, We can not help suspecting (sic) that he is an

accommodation witness. He did not go to the succor of the injured persons. He
said he wanted to call the police authorities about the mishap, but his phone had
no dial tone. Be this (sic) as it may, the trial court in the criminal case acted
correctly in refusing to believe Dayrit.

2. Exhibit 2, the statement of Galang, does not include the claim that Galang
stopped his truck at a safe distance from the car, according to plaintiffs (p. 25,
Appellants' Brief). This contention of appellants was completely passed sub-
silencio or was not refuted by appellees in their brief. Exhibit 2 is one of the
exhibits not included in the record. According to the Table of Contents submitted
by the court below, said Exhibit 2 was not submitted by defendants-appellees. In
this light, it is not far-fetched to surmise that Galang's claim that he stopped was
an eleventh-hour desperate attempt to exculpate himself from imprisonment and
damages.

3. Galang divulged that he stopped after seeing the car about 10 meters away:

ATTY. SOTTO:

Q Do I understand from your testimony that inspite of the fact that

you admitted that the road is straight and you may be able to (sic)
see 500-1000 meters away from you any vehicle, you first saw
that car only about ten (10) meters away from you for the first
time?

xxx xxx xxx

A I noticed it, sir, that it was about ten (10) meters away.

ATTY. SOTTO:

Q So, for clarification, you clarify and state under your oath that
you have (sic) not noticed it before that ten (10) meters? (Tsn. 3
to 5, Sept. 18, 1979). (p. 16, Appellants' Brief)

Galang's testimony substantiate (sic) Tanhueco's statement that Galang stopped

only because of the impact. At ten (10) meters away, with the truck running at 30
miles per hour, as revealed in Galang's affidavit (Exh. 2; p. 25, Appellants' brief),
it is well-nigh impossible to avoid a collision on a bridge.

5. Galang's truck stopped because of the collision, and not because he waited for
Jose Koh to return to his proper lane. The police investigator, Pfc. Fernando L.
Nuñag, stated that he found skid marks under the truck but there were not (sic)
skid marks behind the truck (pp. 19-20, t.s.n., Nov. 3, 1978). The presence of
skid marks show (sic) that the truck was speeding. Since the skid marks were
found under the truck and none were found at the rear of the truck, the
reasonable conclusion is that the skid marks under the truck were caused by the
 truck's front wheels when the trucks (sic) suddenly stopped seconds before the
mishap in an endeavor to avoid the same. But, as aforesaid, Galang saw the car
at barely 10 meters away, a very short distance to avoid a collision, and in his
futile endeavor to avoid the collision he abruptly stepped on his brakes but the
smashup happened just the same.

For the inattentiveness or reckless imprudence of Galang, the law presumes

negligence on the part of the defendants in the selection of their driver or in the
supervision over him. Appellees did not allege such defense of having exercised
the duties of a good father of a family in the selection and supervision of their
employees in their answers. They did not even adduce evidence that they did in
fact have methods of selection and programs of supervision. The inattentiveness
or negligence of Galang was the proximate cause of the mishap. If Galang's
attention was on the highway, he would have sighted the car earlier or at a very
safe distance than (sic) 10 meters. He proceeded to cross the bridge, and tried to
stop when a collision was already inevitable, because at the time that he entered
the bridge his attention was not riveted to the road in front of him.

On the question of damages, the claims of appellants were amply proven, but the
items must be reduced. 28

A motion for reconsideration alleging improper appreciation of the facts was subsequently filed
by private respondents on the basis of which the respondent Court, in its Resolution of 3 April
1984, reconsidered and set aside its 29 November 1983 decision and affirmed in toto the trial
29

court's judgment of 12 November 1980. A motion to reconsider this Resolution was denied by the
respondent Court on 4 July 1984. 30

Hence, this petition.

Petitioners allege that respondent Court:

. . . COMMITTED A VERY SERIOUS AND GRAVE ERROR WHEN IT TOTALLY

REVERSED ITS DECISION BY MERELY BASING IT FROM (sic) A MERE
"PRESUMPTION," TOTALLY DISREGARDING THE PRIVATE RESPONDENTS'
DRIVER'S ADMISSIONS AND CONFESSIONS, WHO EXCLUSIVELY
COMMITTED THE PROXIMATE CAUSE OF THE ACCIDENT (sic), FURTHER,
IT ALSO DISREGARDED THE EVIDENCE ADDUCED AND FOUND IN THE
RECORDS; THEREFORE, RESPONDENT COURT'S RESOLUTIONS
(ANNEXES A and B, PETITION) ARE CLEARLY ERRONEOUS, PURELY
BASED ON SPECULATIONS, CONJECTURES AND WITHOUT SURE
FOUNDATION IN THE EVIDENCE.

II

. . . GRAVELY ABUSED ITS DISCRETION AND ERRED WHEN IN EFFECT IT

DISREGARDED A DOCTRINE LAID DOWN BY THIS HONORABLE COURT BY
STATING AMONG OTHERS, "IT CANNOT CATEGORICALLY ADOPT THE
FINDINGS OF GUILT IN THE CRIMINAL CASE WHERE THE DRIVER OF THE
TRUCK INVOLVED IN THE ACCIDENT WAS INDICTED.

III
 . . . PATENTLY COMMITTED GRAVE ABUSE OF DISCRETION AND MADE A
MISLEADING PRONOUNCEMENT, WHEN IT HELD: "IT IS THUS INCUMBENT
UPON THE PLAINTIFFS-APPELLANTS (APPELLEES WRONGLY MENTIONED
IN THE RESOLUTION) TO PROVE THEIR ALLEGATIONS THAT THE
PROXIMATE CAUSE OF THE ACCIDENT WAS THE NEGLIGENCE OF
PRIVATE RESPONDENTS' DRIVER.

IV

. . . COMMITTED ANOTHER GRIEVIOUS (sic) ERROR; COMMITTED GRAVE

ABUSE OF DISCRETION AND CITED ANOTHER CASE WHICH IS CLEARLY
INAPPLICABLE TO THESE CASES.

. . . COMMITTED A PATENT ERROR AND GRAVELY ABUSED ITS

DISCRETION IN ADOPTING THE FINDINGS OF THE TRIAL COURT WHICH
ARE CLEARLY ERRONEOUS AND CONTRARY TO THE EVIDENCE FOUND
IN THE RECORDS, SPECIALLY THEY (sic) ARE CONTRARY TO THE
ADMITTED FACTS AND JUDICIAL ADMISSIONS MADE BY THE PRIVATE
RESPONDENTS' DRIVER.

VI

. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF

DISCRETION AND GRAVELY ERRED WHEN IT AWARDED DAMAGES TO
THE PRIVATE RESPONDENTS WHEN SAID AWARD IS NOT SUPPORTED BY
EVIDENCE, IN THE RECORDS, AND SAID AWARD IS NOT ALLOWED BY
LAW AND THE CONSISTENT DECISIONS OF THIS HONORABLE COURT.

VII

. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF

DISCRETION AND GRAVELY ERRED WHEN IT ERRONEOUSLY SET ASIDE
ITS DECISION AWARDING DAMAGES TO PETITIONERS WHICH IS CLEARLY
IN ACCORDANCE WITH THE EVIDENCE, THE LAW AND JURISPRUDENCE
RELATIVE TO THE AWARD OF DAMAGES. 31

In the Resolution of 12 September 1984, We required private respondents to Comment on the

petition. After the said Comment was filed, petitioners submitted a Reply thereto; this Court
32 33 34

then gave due course to the instant petitions and required petitioners to file their Brief, which
35

they accordingly complied with.

There is merit in the petition. Before We take on the main task of dissecting the arguments and
counter-arguments, some observations on the procedural vicissitudes of these cases are in
order.

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 No. 3751. Civil Case No. 4478 was eventually consolidated with Civil Case No. 4477 for
joint trial in Branch III of the trial court. The records do not indicate any attempt on the part of the
parties, and it may therefore be reasonably concluded that none was made, to consolidate
Criminal Case No. 3751 with the civil cases, or vice-versa. The parties may have then believed,
and understandably so, since by then no specific provision of law or ruling of this Court expressly
allowed such a consolidation, that an independent civil action, authorized under Article 33 in
relation to Article 2177 of the Civil Code, such as the civil cases in this case, cannot be
consolidated with the criminal case. Indeed, such consolidation could have been farthest from
their minds as Article 33 itself expressly provides that the "civil action shall proceed
independently of the criminal prosecution, and shall require only a preponderance of evidence."
Be that as it may, there was then no legal impediment against such consolidation. Section 1,
Rule 31 of the Rules of Court, which seeks to avoid a multiplicity of suits, guard against
oppression and abuse, prevent delays, clear congested dockets to simplify the work of the trial
court, or in short, attain justice with the least expense to the parties litigants, would have easily
36

sustained a consolidation, thereby preventing the unseeming, if no ludicrous, spectacle of two (2)
judges appreciating, according to their respective orientation, perception and perhaps even
prejudice, the same facts differently, and thereafter rendering conflicting decisions. Such was
what happened in this case. It should not, hopefully, happen anymore. In the recent case
of Cojuangco vs. Court or Appeals, this Court held that the present provisions of Rule 111 of
37

the Revised Rules of Court allow a consolidation of an independent civil action for the recovery of
civil liability authorized under Articles 32, 33, 34 or 2176 of the Civil Code with the criminal action
subject, however, to the condition that no final judgment has been rendered in that criminal case.

Let it be stressed, however, that the judgment in Criminal Case No. 3751 finding Galang guilty of
reckless imprudence, although already final by virtue of the denial by no less than this Court of
his last attempt to set aside the respondent Court's affirmance of the verdict of conviction, has no
relevance or importance to this case.

As We held in Dionisio vs. Alvendia, the responsibility arising from fault or negligence in
38

a quasi-delict is entirely separate and distinct from the civil liability arising from negligence under
the Penal Code. And, as more concretely stated in the concurring opinion of Justice J.B.L.
Reyes, "in the case of independent civil actions under the new Civil Code, the result of the
criminal case, whether acquittal or conviction, would be entirely irrelevant to the civil
action." In Salta vs. De Veyra and PNB vs. Purisima, this Court stated:
39 40

. . . It seems perfectly reasonable to conclude that the civil actions mentioned in

Article 33, permitted in the same manner to be filed separately from the criminal
case, may proceed similarly regardless of the result of the criminal case.

Indeed, when the law has allowed a civil case related to a criminal case, to be
filed separately and to proceed independently even during the pendency of the
latter case, the intention is patent to make the court's disposition of the criminal
case of no effect whatsoever on the separate civil case. This must be so because
the offenses specified in Article 33 are of such a nature, unlike other offenses not
mentioned, that they may be made the subject of a separate civil action because
of the distinct separability of their respective juridical cause or basis of action . . . .

What remains to be the most important consideration as to why the decision in the criminal case
should not be considered in this appeal is the fact that private respondents were not parties
therein. It would have been entirely different if the petitioners' cause of action was for damages
arising from a delict, in which case private respondents' liability could only be subsidiary pursuant
to Article 103 of the Revised Penal Code. In the absence of any collusion, the judgment of
conviction in the criminal case against Galang would have been conclusive in the civil cases for
the subsidiary liability of the private respondents. 41

And now to the merits of the petition.

It is readily apparent from the pleadings that the principal issue raised in this petition is whether
or not respondent Court's findings in its challenged resolution are supported by evidence or are
based on mere speculations, conjectures and presumptions.
The principle is well-established that this Court is not a trier of facts. Therefore, in an appeal
by certiorari under Rule 45 of the Revised Rules of Court, only questions of law may be raised.
The resolution of factual issues is the function of the lower courts whose findings on these
matters are received with respect and are, as a rule, binding on this Court. 42

The foregoing rule, however, is not without exceptions. Findings of facts of the trial courts and
the Court of Appeals may be set aside when such findings are not supported by the evidence or
when the trial court failed to consider the material facts which would have led to a conclusion
different from what was stated in its judgment. The same is true where the appellate court's
43

conclusions are grounded entirely on conjectures, speculations and surmises or where the44

conclusions of the lower courts are based on a misapprehension of facts. 45

It is at once obvious to this Court that the instant case qualifies as one of the aforementioned
exceptions as the findings and conclusions of the trial court and the respondent Court in its
challenged resolution are not supported by the evidence, are based on an misapprehension of
facts and the inferences made therefrom are manifestly mistaken. The respondent Court's
decision of 29 November 1983 makes the correct findings of fact.

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, two (2) boys darted across the road from the right
sidewalk into the lane of the car. As testified to by petitioner Araceli Koh McKee:

Q What happened after that, as you approached the bridge?

A When we were approaching the bridge, two (2) boys tried to

cross the right lane on the right side of the highway going to San
Fernando. My father, who is (sic) the driver of the car tried to
avoid the two (2) boys who were crossing, he blew his horn and
swerved to the left to avoid hitting the two (2) boys. We noticed
the truck, he switched on the headlights to warn the truck driver,
to slow down to give us the right of way to come back to our right
lane.

Q Did the truck slow down?

A No sir, it did not, just (sic) continued on its way.

Q What happened after that?

A After avoiding the two (2) boys, the car tried to go back to the
right lane since the truck is (sic) coming, my father stepped on the
brakes and all what (sic) I heard is the sound of impact (sic), sir. 46

Her credibility and testimony remained intact even during cross examination. 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 — death or injury to the two (2) boys. Such act can hardly be classified as negligent.

Negligence was defined and described by this Court in Layugan vs. Intermediate Appellate
Court, thus:
47
 . . . 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 (Black's Law Dictionary, Fifth Edition, 930), or as Judge Cooley defines it,
"(T)he failure to observe for the protection of the interests of another person, that
degree of care, precaution, and vigilance which the circumstances justly demand,
whereby such other person suffers injury." (Cooley on Torts, Fourth Edition, vol.
3, 265)

In Picart vs. Smith (37 Phil 809, 813), decided more than seventy years ago but
still a sound rule, (W)e held:

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. The
law here in effect adopts the standard supposed to be supplied by
the imaginary conduct of the discreet paterfamilias of the Roman
law. . . .

In Corliss vs. Manila Railroad Company, 48

We held:

. . . Negligence is 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. (citing Ahern v. Oregon Telephone Co., 35 Pac. 549 (1894).

On the basis of the foregoing definition, the test of negligence and the facts obtaining in this
case, it is manifest that 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. Moreover, under what is known as the emergency 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." 49

Considering the sudden intrusion of the two (2) boys into the lane of the car, We find that Jose
Koh adopted the best means possible in the given situation to avoid hitting them. Applying the
above test, therefore, it is clear that he was not guilty of negligence.

In any case, assuming, arguendo that Jose Koh is negligent, it cannot be said that his negligence
was the proximate cause of the collision. Proximate cause has been defined as:

. . . that cause, which, in natural and continuous sequence, unbroken by any

efficient intervening cause, produces the injury, and without which the result
would not have occurred. And more comprehensively, the proximate legal cause
is that acting first and producing the injury, either immediately or by setting other
events in motion, all constituting a natural and continuous chain of events, each
having a close causal connection with its immediate predecessor, the final event
 in the chain immediately effecting the injury as a natural and probable result of
the cause which first acted, under such circumstances that the person
responsible for the first event should, as an ordinary prudent and intelligent
person, have reasonable ground to expect at the moment of his act or default that
an injury to some person might probably result therefrom. 50

Applying the above definition, although it may be said that the act of Jose Koh, if at all 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 1.598 meters and the truck, 2.286 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. Furthermore, the bridge has a level sidewalk which could have partially
51

accommodated the truck. Any reasonable man finding himself in the given situation would have
tried to avoid the car instead of meeting it head-on.

The truck driver's negligence is apparent in the records. He himself said that his truck was
running at 30 miles (48 kilometers) per hour along the bridge while the maximum speed allowed
by law on a bridge is only 30 kilometers per hour. Under Article 2185 of the Civil Code, a
52

person driving a vehicle is presumed negligent if at the time of the mishap, he was violating any
traffic regulation. We cannot give credence to private respondents' claim that there was an error
in the translation by the investigating officer of the truck driver's response in Pampango as to
whether the speed cited was in kilometers per hour or miles per hour. The law presumes that
official duty has been regularly performed; unless there is proof to the contrary, this
53

presumption holds. In the instant case, private respondents' claim is based on mere conjecture.

The truck driver's negligence was likewise duly established through the earlier quoted testimony
of petitioner Araceli Koh McKee which was duly corroborated by the testimony of Eugenio
Tanhueco, an impartial eyewitness to the mishap.

Araceli Koh McKee testified further, thus:

xxx xxx xxx

Q Mrs. how did you know that the truck driven by the herein
accused, Ruben Galang did not reduce its speed before the
actual impact of collision as you narrated in this Exhibit "1," how
did you know?

A It just kept on coming, sir. If only he reduced his speed, we

could have got (sic) back to our right lane on side (sic) of the
highway, sir. (tsn, pp. 33-34, July 22, 1977) or (Exhibit; "O" in
these Civil Cases) (pp. 30-31, Appellants' Brief) 54

while Eugenio Tanhueco testified thus:

Q When you saw the truck, how was it moving?

A It was moving 50 to 60 kilometers per hour, sir.

 Q Immediately after you saw this truck, do you know what
happened?

A I saw the truck and a car collided (sic), sir, and I went to the
place to help the victims. (tsn. 28, April 19, 1979)

xxx xxx xxx

Q From the time you saw the truck to the time of the impact, will
you tell us if the said truck ever stopped?

A I saw it stopped (sic) when it has (sic) already collided with the
car and it was already motionless. (tsn. 31, April 19, 1979;
Emphasis Supplied). (p. 27, Appellants' Brief). 55

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.
Last clear chance is a doctrine in the law of torts which states that the contributory negligence of
the party injured will not defeat the claim for damages if it is shown that the defendant might, by
the exercise of reasonable care and prudence, have avoided the consequences of the
negligence of the injured party. In such cases, the person who had the last clear chance to avoid
the mishap is considered in law solely responsible for the consequences thereof. 56

In Bustamante vs. Court of Appeals, We held:

57

The respondent court adopted the doctrine of "last clear chance." The doctrine,
stated broadly, is that the negligence of the plaintiff does not preclude a recovery
for the negligence of the defendant where it appears that the defendant, by
exercising reasonable care and prudence, might have avoided injurious
consequences to the plaintiff notwithstanding the plaintiff's negligence. In other
words, the doctrine of last clear chance means that even though a person's own
acts may have placed him in a position of peril, and an injury results, the injured
person is entitled to recovery (sic). As the doctrine is usually stated, a person
who has the last clear chance or opportunity of avoiding an accident,
notwithstanding the negligent acts of his opponent or that of a third person
imputed to the opponent is considered in law solely responsible for the
consequences of the accident. (Sangco, Torts and Damages, 4th Ed., 1986, p.
165).

The practical import of the doctrine is that a negligent defendant is held liable to a
negligent plaintiff, or even to a plaintiff who has been grossly negligent in placing
himself in peril, if he, aware of the plaintiff's peril, or according to some
authorities, should have been aware of it in the reasonable exercise of due care,
had in fact an opportunity later than that of the plaintiff to avoid an accident (57
Am. Jur., 2d, pp. 798-799).

In Pantranco North Express, Inc., vs. Baesa, We ruled:

58

The doctrine of last clear chance was defined by this Court in the case of Ong v.
Metropolitan Water District, 104 Phil. 397 (1958), in this wise:
 The doctrine of the last clear chance simply, means that the
negligence of a claimant does not preclude a recovery for the
negligence of defendant where it appears that the latter, by
exercising reasonable care and prudence, might have avoided
injurious consequences to claimant notwithstanding his
negligence.

The doctrine applies only in a situation where the plaintiff was guilty of prior or
antecedent negligence but the defendant, who had the last fair chance to avoid
the impending harm and failed to do so, is made liable for all the consequences
of the accident notwithstanding the prior negligence of the plaintiff [Picart v.
Smith, 37 Phil. 809 (1918); Glan People's Lumber and Hardware, et al. vs.
Intermediate Appellate Court, Cecilia Alferez Vda. de Calibo, et al., G.R. No.
70493, May, 18, 1989]. The subsequent negligence of the defendant in failing to
exercise ordinary care to avoid injury to plaintiff becomes the immediate or
proximate cause of the accident which intervenes between the accident and the
more remote negligence of the plaintiff, thus making the defendant liable to the
plaintiff [Picart v. Smith, supra].

Generally, the last clear chance doctrine is invoked for the purpose of making a
defendant liable to a plaintiff who was guilty of prior or antecedent negligence,
although it may also be raised as a defense to defeat claim (sic) for damages.

Applying the foregoing doctrine, it is not difficult to rule, as We now rule, that 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
59

that they exercised all the diligence of a good father of a family to prevent the damage. Article
2180 reads as follows:

The obligation imposed by Article 2176 is demandable not only for one's own acts
or omissions, but also for those of persons for whom one is responsible.

xxx xxx xxx

Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even though
the former are not engaged in any business or industry.

xxx xxx xxx

The responsibility treated of in this article shall cease when the persons herein
mentioned prove that they observed all the diligence of a good father of a family
to prevent damage.

The diligence of a good father referred to means the diligence in the selection and supervision of
employees. The answers of the private respondents in Civil Cases Nos. 4477 and 4478 did not
60

interpose this defense. Neither did they attempt to prove it.

The respondent Court was then correct in its Decision of 29 November 1983 in reversing the
decision of the trial court which dismissed Civil Cases Nos. 4477 and 4478. Its assailed
Resolution of 3 April 1984 finds no sufficient legal and factual moorings.
In the light of recent decisions of this Court, the indemnity for death must, however, be
61

increased from P12,000.00 to P50,000.00.

WHEREFORE, the instant petition is GRANTED. The assailed Resolution of the respondent
Court of 3 April 1984 is SET ASIDE while its Decision of 29 November 1983 in C.A.-G.R. CV
Nos. 69040-41 is REINSTATED, subject to the modification that the indemnity for death is
increased from P12,000.00 to P50,000.00 each for the death of Jose Koh and Kim Koh McKee.

Costs against private respondents.

SO ORDERED.

G.R. No. L-22995 June 29, 1967

WILLIAM ADDENBROOK Y BARKER, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

Ross, Selph and Carrascoso for petitioner.

Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General A. A. Torres and
Solicitor J. M. Lantin for respondent.

REYES, J.B.L., J.:

Petition for certiorari to review the decision of the Court of Appeals affirming a conviction by the
Court of First Instance of Manila for homicide through reckless imprudence upon the petitioner
William Addenbrook Y Barker.

The appellate court's decision depicts the facts as follows:

. . . about 3:15 in the afternoon of 9 January 1960, the front bumper of the Stanvac
Service Truck with Plate No. 2740, Manila, 960, while travelling southward along
Marquez de Comillas being driven then by accused William Addenbrook, and in front of
House No. 1010, came into contact with the body of a pedestrian Wenceslao Risaldo
with the result that the latter fell and was taken to the Philippine General Hospital by
accused and his helper in the truck named Amando Valeriano, but was dead on arrival, it
having been found that he had received abrasions on the left forehead, and contusions
with lacerations on the face, left arm, right thigh, knee joints, and right buttocks and waist
and fracture of the skull, Exh. B, so that the Fiscal filed the present criminal case for
homicide thru reckless imprudence against accused resulting in his conviction. . . .

Upon impact of the van against the victim, the latter fell and rolled to a distance of fifteen (15)
paces, as shown by two (2) sets of bloodstains observed by patrolman Emilio Guzman in his
ocular investigation immediately after the occurrence of the incident. From these facts, the
appellate court found it difficult to believe that the van was travelling at a slow and reasonable
speed. Considering further that as postulated by the accused himself, his view of the street was
partly blocked by a parked car in front of house No. 1010, Marquez de Comillas, from behind
which the deceased tried to cross the street; and with the added fact that the appellant did not
blow his horn despite the visual obstruction by the parked car, the Court of Appeals concluded
that he failed to observe that reasonable care required of a driver of a motor vehicle.

Appellant insists that such conclusion is error, and assails the credibility and competency of
witness Guzman.
Credibility of witnesses is a question of fact (Rumbaoa vs. Arzaga, 84 Phil. 812; Lim vs.
Calaguas, 83 Phil. 796) and, therefore, not reviewable by the Supreme Court. (Abeto vs. People,
90 Phil. 581). The objection to patrolman Guzman's competency because he was not presented
as an expert witness, nor did he see the incident actually happen, is untenable. What Guzman
testified to are what he saw in his ocular investigation, such as the two (2) sets of bloodstains
and the 15 paces distance between them, that were facts derived from his own perception. 1äwphï1.ñët

The Court of Appeals gave no credence to the claim that the deceased suddenly darted from
behind the parked car. Neither did the trial court do so, considering the lack of corroboration of
petitioner's version, and the circumstance that the victim, being a grown-up man, and not a child,
would not have ignored the noise of the oncoming vehicle, there being no reason shown for his
disregarding the obvious danger.

At any rate, that the accident could not be avoided because the victim was so close to the truck
when he, as alleged by appellant, suddenly darted across the street, does not exculpate the
accused, since the latter was driving at excessive speed.

The fact that a pedestrian came into the path of the car suddenly and so close that the
driver could not stop and avoid striking him will not excuse the driver, where the car was
being driven at an unreasonable rate of speed under the circumstances. (5 Am. Jur. p.
612, sec. 195).

While the general rule is that a driver is not held accountable just because he failed to take the
wisest choice in a sudden emergency, the rule does not apply where the emergency is of the
driver's own creation or devising.

The other assigned errors raise questions of fact and credibility which this Court is not at liberty
to revise.

We, therefore, find no error in the appealed decision, and the same is hereby affirmed. Costs
against appellant, William Addenbrook y Barker. So ordered.

Concepcion, C.J., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ., concur.

G.R. No. 164749

ROMULO ABROGAR and ERLINDA ABROGAR, Petitioners

vs
COSMOS BOTTLING COMPANY and INTERGAMES, INC., Respondents

DECISION

BERSAMIN, J.:

This case involves a claim for damages arising from the negligence causing the death of a
participant in an organized marathon bumped by a passenger jeepney on the route of the race.
The issues revolve on whether the organizer and the sponsor of the marathon were guilty of
negligence, and, if so, was their negligence the proximate cause of the death of the participant;
on whether the negligence of the driver of the passenger jeepney was an efficient intervening
cause; on whether the doctrine of assumption of risk was applicable to the fatality; and on
whether the heirs of the fatality can recover damages for loss of earning capacity of the latter
who, being then a minor, had no gainful employment.

The Case
By this appeal, the parents of the late Rommel Abrogar (Rommel), a marathon runner, seek the
review and reversal of the decision promulgated on March l 0, 2004, whereby the Court of
1

Appeals (CA) reversed and set aside the judgment rendered in their favor on May 10, 1991 by
the Regional Trial Court (RTC), Branch 83, in Quezon City finding and declaring respondents
2

Cosmos Bottling Company (Cosmos), a domestic soft-drinks company whose products included
Pop Cola, and Intergames, Inc. (Intergames), also a domestic corporation organizing and
supervising the 1st Pop Cola Junior Marathon" held on June 15, 1980 in Quezon City, solidarily
liable for damages arising from the untimely death of Rommel, then a minor 18 years of
age, after being bumped by a recklessly driven passenger jeepney along the route of the
3

marathon.

Antecedents

The CA narrated the antecedents in the assailed judgment, viz.: 4

[T]o promote the sales of "Pop Cola", defendant Cosmos, jointly with Intergames, organized an
endurance running contest billed as the "1st Pop Cola Junior Marathon" scheduled to be held on
June 15, 1980. The organizers plotted a 10-kilometer course starting from the premises of the
Interim Batasang Pambansa (IBP for brevity), through public roads and streets, to end at the
Quezon Memorial Circle. Plaintiffs' son Rommel applied with the defendants to be allowed to
participate in the contest and after complying with defendants' requirements, his application was
accepted and he was given an official number. Consequently, on June 15, 1980 at the
designated time of the marathon, Rommel joined the other participants and ran the course
plotted by the defendants. As it turned out, the plaintiffs' (sic) further alleged, the defendants
failed to provide adequate safety and precautionary measures and to exercise the diligence
required of them by the nature of their undertaking, in that they failed to insulate and protect the
participants of the marathon from the vehicular and other dangers along the marathon route.
Rommel was bumped by a jeepney that was then running along the route of the marathon on
Don Mariano Marcos A venue (DMMA for brevity), and in spite of medical treatment given to him
at the Ospital ng Bagong Lipunan, he died later that same day due to severe head injuries.

On October 28, 1980, the petitioners sued the respondents in the then Court of First Instance of
Rizal (Quezon City) to recover various damages for the untimely death of Rommel (i.e., actual
and compensatory damages, loss of earning capacity, moral damages, exemplary damages,
attorney's fees and expenses oflitigation). 5

Cosmos denied liability, insisting that it had not been the organizer of the marathon, but only its
sponsor; that its participation had been limited to providing financial assistance to
Intergames; that the financial assistance it had extended to Intergames, the sole organizer of the
6

marathon, had been in answer to the Government's call to the private sector to help promote
sports development and physical fitness; that the petitioners had no cause of action against it
7

because there was no privity of contract between the participants in the marathon and Cosmos;
and that it had nothing to do with the organization, operation and running of the event. 8

As counterclaim, Cosmos sought attorney's fees and expenses of litigation from the petitioners
for their being unwarrantedly included as a defendant in the case. It averred a cross-claim
against Intergames, stating that the latter had guaranteed to hold Cosmos "completely free and
harmless from any claim or action for liability for any injuries or bodily harm which may be
sustained by any of the entries in the '1st Pop Cola Junior Marathon' or for any damage to the
property or properties of third parties, which may likewise arise in the course of the race." Thus,
9

Cosmos sought to hold Intergames solely liable should the claim of the petitioners prosper. 10

On its part, Intergames asserted that Rommel's death had been an accident exclusively caused
by the negligence of the jeepney driver; that it was not responsible for the accident; that as the
marathon organizer, it did not assume the responsibilities of an insurer of the safety of the
participants; that it nevertheless caused the participants to be covered with accident insurance,
but the petitioners refused to accept the proceeds thereof; that there could be no cause of
11

action against it because the acceptance and approval of Rommel's application to join the
marathon had been conditioned on his waiver of all rights and causes of action arising from his
participation in the marathon; that it exercised due diligence in the conduct of the race that the
12

circumstances called for and was appropriate, it having availed of all its know-how and expertise,
including the adoption and implementation of all known and possible safety and precautionary
measures in order to protect the participants from injuries arising from vehicular and other forms
of accidents; and, accordingly, the complaint should be dismissed.
13

In their reply and answer to counterclaim, the petitioners averred that contrary to its claims,
Intergames did not provide adequate measures for the safety and protection of the race
participants, considering that motor vehicles were traversing the race route and the participants
were made to run along the flow of traffic, instead of against it; that Intergames did not provide
adequate traffic marshals to secure the safety and protection of the participants; that Intergames
14

could not limit its liability on the basis of the accident insurance policies it had secured to cover
the race participants; that the waiver signed by Rommel could not be a basis for denying liability
because the same was null and void for being contrary to law, morals, customs and public
policy; that their complaint sufficiently stated a cause of action because in no way could they be
15

held liable for attorney's fees, litigation expenses or any other relief due to their having abided by
the law and having acted honestly, fairly, in good faith by according to Intergames its due, as
demanded by the facts and circumstances. 16

At the pre-trial held on April 12, 1981, the parties agreed that the principal issue was whether or
not Cosmos and lntergames were liable for the death of Rommel because of negligence in
conducting the marathon. 17

Judgment of the RTC

In its decision dated May 10, 1991, the RTC ruled as follows:
18

WHEREFORE, judgment is hereby rendered in favor of plaintiffs-spouses Romulo Abrogar and

Erlinda Abrogar and against defendants Cosmos Bottling Company, Inc. and Intergames, Inc.,
ordering both defendants, jointly and severally, to pay and deliver to the plaintiffs the amounts of
Twenty Eight Thousand Sixty One Pesos and Sixty Three Centavos (₱28,061.63) as actual
damages; One Hundred Thousand Pesos (₱100,000.00) as moral damages; Fifty Thousand
Pesos (₱50,000.00) as exemplary damages and Ten Percent (10%) of the total amount of One
Hundred Seventy Eight Thousand Sixty One Pesos and Sixty Three Centavos (₱178,061,63) or
Seventeen Thousand Eight Hundred Six Pesos and Sixteen Centavos (₱17,806.16) as attorney's
fees.

On the cross-claim of defendant Cosmos Bottling Company, Inc., defendant Intergames, Inc, is
hereby ordered to reimburse to the former any and all amounts which may be recovered by the
plaintiffs from it by virtue of this Decision.

SO ORDERED.

The RTC observed that the safeguards allegedly instituted by Intergames in conducting the
marathon had fallen short of the yardstick to satisfy the requirements of due diligence as called
for by and appropriate under the circumstances; that the accident had happened because of
inadequate preparation and Intergames' failure to exercise due diligence; that the respondents
19

could not be excused from liability by hiding behind the waiver executed by Rommel and the
permission given to him by his parents because the waiver could only be effective for risks
inherent in the marathon, such a:s stumbling, heat stroke, heart attack during the race, severe
exhaustion and similar occurrences; that the liability of the respondents towards the participants
20

and third persons was solidary, because Cosmos, the sponsor of the event, had been the
principal mover of the event, and, as such, had derived benefits from the marathon that in turn
had carried responsibilities towards the participants and the public; that the respondents'
agreement to free Cosmos from any liability had been an agreement binding only between them,
and did not bind third persons; and that Cosmos had a cause of action against Intergames for
whatever could be recovered by the petitioners from Cosmos. 21

Decision of the CA

All the parties appealed to the CA.

The petitioners contended that the RTC erred in not awarding damages for loss of earning
capacity on the part of Rommel for the reason that such damages were not recoverable due to
Rommel not yet having finished his schooling; and that it would be premature to award such
damages upon the assumption that he would finish college and be gainfully employed. 22

On their part, Cosmos and Intergames separately raised essentially similar errors on the part of
the RTC, to wit: (1) in holding them liable for the death of Rommel; (2) in finding them negligent
in conducting the marathon; (3) in holding that Rommel and his parents did not assume the risks
of the marathon; (4) in not holding that the sole and proximate cause of the death of Rommel
was the negligence of the jeepney driver; and (5) in making them liable, jointly and solidarily, for
damages, attorney's fees and expenses of litigation. 23

The CA reduced the issues to four, namely:

1. Whether or not appellant Intergames was negligent in its conduct of the "1st Pop Cola Junior
Marathon" held on June 15, 1980 and if so, whether its negligence was the proximate cause of
the death of Rommel Abrogar.

2. Whether or not appellant Cosmos can be held jointly and solidarily liable with appellant
Intergames for the death of Rommel Abrogar, assuming that appellant Intergames is found to
have been negligent in the conduct of the Pop Cola marathon and such negligence was the
proximate cause of the death of Rommel Abrogar.

3. Whether or not the appellants Abrogar are entitled to be compensated for the "loss of earning
capacity" of their son Rommel.

4. Whether or not the appellants Abrogar are entitled to the actual, moral, and exemplary
damages granted to them by the Trial Court. 24

In its assailed judgment promulgated on March 10, 2004, the CA ruled as follows:
25

As to the first issue, this Court finds that appellant Intergames was not negligent in organizing the
said marathon.

Negligence is the omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct to human affairs, would do, or doing
something which a prudent and reasonable man would not do.

The whole theory of negligence presuppose some uniform standard of behavior which must be
an external and objective one, rather than the individual judgment good or bad, of the particular
actor; it must be, as far as possible, the same for all persons; and at the same time make proper
allowance for the risk apparent to the actor for his capacity to meet it, and for the circumstances
under which he must act.
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 of the acts involved in the
particular case.

In the case at bar, the trial court erred in finding that the appellant Intergames failed to satisfy the
requirements of due diligence in the conduct of the race.

The trial court in its decision said that the accident in question could have been avoided if the
route of the marathon was blocked off from the regular traffic, instead of allowing the runners to
run together with the flow of traffic. Thus, the said court considered the appellant Intergames at
fault for proceeding with the marathon despite the fact that the Northern Police District, MPF,
Quezon City did not allow the road to be blocked off from traffic.

This Court finds that the standard of conduct used by the trial court is not the ordinary conduct of
a prudent man in such a given situation. According to the said court, the only way to conduct a
safe road race is to block off the traffic for the duration of the event and direct the cars and public
utilities to take alternative routes in the meantime that the marathon event is being held. Such
standard is too high and is even inapplicable in the case at bar because, there is no alternative
route from IBP to Don Mariano Marcos to Quezon City Hall.

The Civil Code provides that if the law or contract does not state the diligence which is to be
observed in the performance of an obligation that which is expected of a good father of the family
shall only be required. Accordingly, appellant Intergames is only bound to exercise the degree of
care that would be exercised by an ordinarily careful and prudent man in the same position and
circumstances and not that of the cautious man of more than average prudence. Hence,
appellant Intergames is only expected to observe ordinary diligence and not extraordinary
diligence.

In this case, the marathon was allowed by the Northern Police District, MPF, Quezon City on the
condition that the road should not be blocked off from traffic. Appellant Intergames had no
choice. It had to comply with it or else the said marathon would not be allowed at all.

The trial court erred in contending that appellant Intergames should have looked for alternative
places in Metro Manila given the condition set by the Northern Police District, MPF, Quezon City;
precisely because as Mr. Jose Castro has testified the said route was found to be the best route
after a careful study and consideration of all the factors involved. Having conducted several
marathon events in said route, appellant Intergames as well as the volunteer groups and the
other agencies involved were in fact familiar with the said route. And assuming that there was an
alternative place suitable for the said race, the question is would they be allowed to block off the
said road from traffic?

Also, the trial court erred in stating that there was no adequate number of marshals, police
officers and personnel to man the race so as to prevent injury to the participants.

The general rule is that the party who relies on negligence for his cause of action has the burden
of proving the existence of the same, otherwise his action fails.

Here, the appellants-spouses failed to prove that there was inadequate number of marshals,
police officers, and personnel because they failed to prove what number is considered adequate.

This court considers that seven (7) traffic operatives, five (5) motorcycle policemen, fifteen (15)
patrolmen deployed along the route, fifteen (15) boyscouts, twelve (12) CA Ts, twenty (20)
barangay tanods, three (3) ambulances and three (3) medical teams were sufficient to stage a
safe marathon.
Moreover, the failure of Mr. Jose R. Castro, Jr. to produce records of the lists of those
constituting the volunteer help during the marathon is not fatal to the case considering that one of
the volunteers, Victor Landingin of the Citizens Traffic Action (CTA) testified in court that CTA
fielded five units on June 15, 1980, assigned as follows: (1) at the sphere head; (2) at the finish
line; (3) tail ender; (4) & (5) roving.

The trial court again erred in concluding that the admission of P/Lt. Jesus Lipana, head of the
traffic policemen assigned at the marathon, that he showed up only at the finish line means that
he did not bother to check on his men and did not give them appropriate instructions. P/Lt.
Lipana in his testimony explained that he did not need to be in the start of the race because he
had predesignated another capable police officer to start the race.

In addition, this Court finds that the precautionary measures and preparations adopted by
appellant Intergames were sufficient considering the circumstances surrounding the case.

Appellant Intergames, using its previous experiences in conducting safe and successful road
races, took all the necessary precautions and made all the preparations for the race. The initial
preparations included: determination of the route to be taken; and an ocular inspection of the
same to see if it was well-paved, whether it had less corners for easy communication and
coordination, and whether it was wide enough to accommodate runners and transportation.
Appellant Intergames choose the Don Mariano Marcos Avenue primarily because it was well-
paved; had wide lanes to accommodate runners and vehicular traffic; had less corners thus
facilitating easy communication and coordination among the organizers and cooperating
agencies; and was familiar to the race organizers and operating agencies. The race covered a
ten-kilometer course from the IBP lane to the Quezon City Hall Compound passing through the
Don Mariano Marcos A venue, which constituted the main stretch of the route. Appellant
Intergames scheduled the marathon on a Sunday morning, when traffic along the route was at its
lightest. Permission was sought from the then Quezon City Mayor Adelina Rodriguez for the use
of the Quezon City Hall Grandstand and the street fronting it as the finish line. Police assistance
was also obtained to control and supervise the traffic. The Quezon City Traffic Detachment took
charge of traffic control by assigning policemen to the traffic route. The particular unit assigned
during the race underwent extensive training and had been involved in past marathons, including
marathons in highly crowded areas. The Philippine Boy Scouts tasked to assist the police and
monitor the progress of the race; and Citizens Traffic Action Group tasked with the monitoring of
the race, which assigned five units consisting of ten operatives, to provide communication and
assistance were likewise obtained. Finally, medical equipments and personnel were also
requested from Camp Aguinaldo, the Philippine Red Cross and the Hospital ng Bagong Lipunan.

Neither does this Court find the appellant Intergames' conduct of the marathon the proximate
cause of the death of Rommel Abrogar. Proximate cause has been defined as that which, in
natural and continuous sequence, unbroken by any efficient intervening cause, produces injury,
and without which the result would not have occurred.

It appears that Rommel Abrogar, while running on Don Mariano Marcos A venue and after
passing the Philippine Atomic Energy Commission Building, was bumped by a jeepney which
apparently was racing against a minibus and the two vehicles were trying to crowd each other. In
fact, a criminal case was filed against the jeepney driver by reason of his having killed Rommel
Abrogar.

This proves that the death of Rommel Abrogar was caused by the negligence of the jeepney
driver. Rommel Abrogar cannot be faulted because he was performing a legal act; the marathon
was conducted with the permission and approval of all the city officials involved. He had the right
to be there. Neither can the appellant Intergames be faulted, as the organizer of the said
marathon, because it was not negligent in conducting the marathon.
Given the facts of this case, We believe that no amount of precaution can prevent such an
accident. Even if there were fences or barriers to separate the lanes for the runners and for the
vehicles, it would not prevent such an accident in the event that a negligent driver loses control of
his vehicle. And even if the road was blocked off from traffic, it would still not prevent such an
accident, if a jeepney driver on the other side of the road races with another vehicle loses control
of his wheel and as a result hits a person on the other side of the road. Another way of saying
this is: A defendant's tort cannot be considered a legal cause of plaintiffs damage if that damage
would have occurred just the same even though the defendant's tort had not been committed.

This Court also finds the doctrine of assumption of risk applicable in the case at bar. As
explained by a well-known authority on torts:

"The general principle underlying the defense of assumption of risk is that a plaintiff who
voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the
defendant cannot recover for such harm. The defense may arise where a plaintiff, by contract or
otherwise, expressly agrees to accept a risk or harm arising from the defendant's conduct, or
where a plaintiff who fully understands a risk or harm caused by the defendant's conduct, or by a
condition created by the defendant, voluntarily chooses to enter or remain, or to permit his
property to enter or remain, within the area of such risk, under circumstances manifesting his
willingness to accept the risk.

xxxx

"Assumption of the risk in its primary sense arises by assuming through contract, which may be
implied, the risk of a known danger. Its essence is venturousness. It implies intentional exposure
to a known danger; It embraces a mental state of willingness; It pertains to the preliminary
conduct of getting into a dangerous employment or relationship, it means voluntary incurring the
risk of an accident, which may or may not occur, and which the person assuming the risk may be
careful to avoid; and it defeats recovery because it is a previous abandonment of the right to
complain if an accident occurs.

"Of course, if the defense is predicated upon an express agreement the agreement must be
valid, and in the light of this qualification the rule has been stated that a plaintiff who, by contract
or otherwise, expressly agreed to accept a risk of harm arising from the defendant's negligent or
reckless conduct, cannot recover for such harm unless the agreement is invalid as contrary to
public policy.

xxxx

"The defense of assumption of risk presupposes: (1) that the plaintiff had actual knowledge of the
danger; (2) that he understood and appreciated the risk from the danger; and (3) that he
voluntarily exposed himself to such risk. x x x

"The term 'risk' as used in this connection applies to known dangers, and not to things from
which danger may possibly flow. The risk referred to is the particular risk, or one of the risks,
which the plaintiff accepted within the context of the situation in which he placed himself and the
question is whether the specific conduct or condition which caused the injury was such a risk."

In this case, appellant Romulo Abrogar himself admitted that his son, Rommel Abrogar, surveyed
the route of the marathon and even attended a briefing before the race. Consequently, he was
aware that the marathon would pass through a national road and that the said road would not be
blocked off from traffic. And considering that he was already eighteen years of age, had
voluntarily participated in the marathon, with his parents' consent, and was well aware of the
traffic hazards along the route, he thereby assumed all the risks of the race. This is precisely why
permission from the participant's parents, submission of a medical certificate and a waiver of all
rights and causes of action arising from the participation in the marathon which the participant or
his heirs may have against appellant Intergames were required as conditions in joining the
marathon.

In the decision of the trial court, it stated that the risk mentioned in the waiver signed by Rommel
Abrogar only involved risks such as stumbling, suffering heatstroke, heart attack and other
similar risks. It did not consider vehicular accident as one of the risks included in the said waiver.

This Court does not agree. With respect to voluntary participation in a sport, the doctrine of
assumption of risk applies to any facet of the activity inherent in it and to any open and obvious
condition of the place where it is carried on. We believe that the waiver included vehicular
accidents for the simple reason that it was a road race run on public roads used by vehicles.
Thus, it cannot be denied that vehicular accidents are involved. It was not a track race which is
held on an oval and insulated from vehicular traffic. In a road race, there is always the risk of
runners being hit by motor vehicles while they train or compete. That risk is inherent in the sport
and known to runners. It is a risk they assume every time they voluntarily engage in their sport.

Furthermore, where a person voluntarily participates in a lawful game or contest, he assumes the
ordinary risks of such game or contest so as to preclude recovery from the promoter or operator
of the game or contest for injury or death resulting therefrom. Proprietors of amusements or of
places where sports and games are played are not insurers of safety of the public nor of their
patrons.

In McLeod Store v. Vinson 213 Ky 667, 281 SW 799 (1926), it was held that a boy, seventeen
years of age, of ordinary intelligence and physique, who entered a race conducted by a
department store, the purpose of which was to secure guinea fowl which could be turned in for
cash prizes, had assumed the ordinary risks incident thereto and was barred from recovering
against the department store for injuries suffered when, within catching distance, he stopped to
catch a guinea, and was tripped or stumbled and fell to the pavement, six or eight others falling
upon him. The court further said: "In this (the race) he was a voluntary participant. xxx The
anticipated danger was as obvious to him as it was to appellant (the department store). While not
an adult, he was practically 17 years of age, of ordinary intelligence, and perfectly able to
determine the risks ordinarily incident to such games. An ordinary boy of that age is practically as
well advised as to the hazards of baseball, basketball, football, foot races and other games of
skill and endurance as is an adult

x x x."

In the case at bar, the "1st Pop Cola Junior Marathon" held on June 15, 1980 was a race the
winner of which was to represent the country in the annual Spirit of Pheidippides Marathon
Classic in Greece, if he equals or breaks the 29-minute mark for the 10-km. race. Thus, Rommel
Abrogar having voluntarily participated in the race, with his parents' consent, assumed all the
risks of the race.

Anent the second issue, this Court finds that appellant Cosmos must also be absolved from any
liability in the instant case.

This Court finds that the trial court erred in holding appellant Cosmos liable for being the principal
mover and resultant beneficiary of the event.

In its decision it said that in view of the fact that appellant Cosmos will be deriving certain
benefits from the marathon event, it has the responsibility to ensure the safety of all the
participants and the public. It further said that the stipulations in the contract entered into by the
two appellants, Cosmos and Intergames, relieving the former from any liability does not bind third
persons.
This Court does not agree with the reasoning of the trial court. The sponsorship contract entered
between appellant Cosmos and appellant Intergames specifically states that:

1. COSMOS BOTTLING CORPORATION shall pay INTERGAMES the amount of FIFTY FIVE
THOUSAND PESOS (₱55,000.00) representing full sponsorship fee and in consideration
thereof, INTERGAMES shall organize and stage a marathon race to be called '1st POP COLA
JUNIOR MARATHON.

xxxx

3. INTER GAMES shall draw up all the rules of the marathon race, eligibility requirements of
participants as well as provide all the staff required in the organization and actual staging of the
race. It is understood that all said staff shall be considered under the direct employ of
INTERGAMES which shall have full control over them.

xxxx

5. INTERGAMES shall secure all the necessary permits, clearances, traffic and police assistance
in all the areas covered by the entire route of the '1st POP COLA JUNIOR MARATHON.

12. INTERGAMES shall hold COSMOS BOTTLING CORPORATION, completely free and
harmless from any claim or action for liability for any injuries or bodily harm which may be
sustained by any of the entries in the '1st POP COLA JUNIOR MARATHON', or for any damages
to the property or properties of third parties, which may likewise arise in the course of the race.

From the foregoing, it is crystal clear that the role of the appellant Cosmos was limited to
providing financial assistance in the form of sponsorship. Appellant Cosmos' sponsorship was
merely in pursuance to the company's commitment for spo1is development of the youth as well
as for advertising purposes. The use of the name Cosmos was done for advertising purposes
only; it did not mean that it was an organizer of the said marathon. As pointed out by Intergames'
President, Jose Castro Jr., appellant Cosmos did not even have the right to suggest the location
and the number of runners.

To hold a defendant liable for torts, it must be clearly shown that he is the proximate cause of the
harm done to the plaintiff. The nexus or connection of the cause and effect, between a negligent
act and the damage done, must be established by competent evidence.

In this case, appellant Cosmos was not negligent in entering into a contract with the appellant
Intergames considering that the record of the latter was clean and that it has conducted at least
thirty (30) road races.

Also there is no direct or immediate causal connection between the financial sponsorship and the
death of Rommel Abrogar. The singular act of providing financial assistance without participating
in any manner in the conduct of the marathon cannot be palmed off as such proximate cause. In
fact, the appellant spouses never relied on any representation that Cosmos organized the race. It
was not even a factor considered by the appellants-spouses in allowing their son to join said
marathon.

In view of the fact that both defendants are not liable for the death of Rommel Abrogar,
appellants-spouses are not entitled to actual, moral, exemplary damages as well as for the "loss
of earning capacity" of their son. The third and fourth issues are thus moot and academic.

UPON THE VIEW WE TAKE OF THIS CASE, THUS, the judgment appealed from must be, as it
hereby is, REVERSED and SET ASIDE, and another entered DISMISSING the complaint a quo.
The appellants shall bear their respective costs.
SO ORDERED. 26

Issues

In this appeal, the petitioners submit that the CA gravely erred:

A.

x x x in reversing the RTC Decision, (and) in holding that respondent Intergames was not
negligent considering that:

1. Respondent Intergames failed to exercise the diligence of a good father of the family in the
conduct of the marathon in that it did not block off from traffic the marathon route; and

2. Respondent Intergames' preparations for the race, including the number of marshal during the
marathon, were glaringly inadequate to prevent the happening of the injury to its participants.

B.

x x x in reversing the RTC Decision, (and) in holding that the doctrine of assumption of risk finds
application to the case at bar even though getting hit or run over by a vehicle is not an inherent
risk in a marathon race. Even assuming arguendo that deceased Abrogar made such waiver as
claimed, still there can be no valid waiver of one's right to life and limb for being against public
policy.

C.

x x x in reversing the RTC Decision, (and) in absolving respondent Cosmos from liability to
petitioners on the sole ground that respondent Cosmos' contract with respondent Intergames
contained a stipulation exempting the former from liability.

D.

x x x m reversing the RTC Decision and consequently holding respondents free from liability,
(and) in not awarding petitioners with actual, moral and exemplary damages for the death of their
child, Rommel Abrogar. 27

Ruling of the Court

The appeal is partly meritorious.

Review of factual issues is allowed because of

the conflict between the findings of fact
by the RTC and the CA on the issue of negligence

The petitioners contend that Intergames was negligent; that Cosmos as the sponsor and
Intergames as the organizer of the marathon both had the obligation to provide a reasonably
safe place for the conduct of the race byblocking the route of the race from vehicular traffic and
by providing adequate manpower and personnel to ensure the safety of the participants; and that
Intergames had foreseen the harm posed by the situation but had not exercised the diligence of
a good father of a family to avoid the risk; hence, for such omission, Intergames was negligent.
28 29
Refuting, Cosmos and Intergames submit that the latter as the organizer was not negligent
because it had undertaken all the precautionary measures to ensure the safety of the race; and
that there was no duty on the part of the latter as the organizer to keep a racecourse "free and
clear from reasonably avoidable elements that would [occasion] or have the probable tendency,
to occasion injury."
30

The issue of whether one or both defendants were negligent is a mixed issue of fact and law.
Does this not restrict the Court against reviewing the records in this appeal on certiorari in order
to settle the issue?

The Court can proceed to review the factual findings of the CA as an exception to the general
rule that it should not review issues of fact on appeal on certiorari. We have recognized
exceptions to the rule that the findings of fact of the CA are conclusive and binding in the
following instances: (1) when the findings are grounded entirely on speculation, surmises or
conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when
there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of
facts; (5) when the findings of facts are conflicting; (6) when in making its findings the CA went
beyond the issues of the case, or its findings are contrary to the admissions of both the appellant
and the appellee; (7) when the findings are contrary to the trial court; (8) when the findings are
conclusions without citation of specific evidence on which they are based; (9) when the facts set
forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the
respondent; (10) when the findings of fact are premised on the supposed absence of evidence
and contradicted by the evidence on record; and (11) when the CA manifestly overlooked certain
relevant facts not disputed by the parties, which, if properly considered, would justify a different
conclusion. Considering that the CA arrived at factual findings contrary to those of the trial court,
31

our review of the records in this appeal should have to be made.

Negligence is the failure to observe for the protection of the interests of another person that
degree of care, precaution, and vigilance which the circumstances justly demand, whereby such
other person suffers injury. Under Article 1173 of the Civil Code, it consists of the "omission of
32

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." The Civil Code makes liability for
33

negligence clear under Article 2176, and Article 20.

34 35

To determine the existence of negligence, the following time-honored test has been set in Picart
v. Smith:36

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. 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 speculation 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 the 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 the conduct or guarding against its consequences. (bold underscoring supplied for
37

emphasis)

A careful review of the evidence presented, particularly the testimonies of the relevant witnesses,
in accordance with the foregoing guidelines reasonably leads to the conclusion that the safety
and precautionary measures undertaken by Intergames were short of the diligence demanded by
the circumstances of persons, time and place under consideration. Hence, Intergames as the
organizer was guilty of negligence.

The race organized by Intergames was a junior marathon participated in by young persons aged
14 to 18 years. It was plotted to cover a distance of 10 kilometers, starting from the IBP
Lane, then going towards the Batasang Pambansa, and on to the circular route towards the Don
38

Mariano Marcos Highway, and then all the way back to the Quezon City Hall compound where
39

the finish line had been set. In staging the event, Intergames had no employees of its own to
40

man the race, and relied only on the "cooperating agencies" and volunteers who had worked
41

with it in previous races. The cooperating agencies included the Quezon City police,
42

barangay tanods, volunteers from the Boy Scouts of the Philippines, the Philippine National Red
Cross, the Citizens Traffic Action Group, and the medical teams of doctors and nurses coming
from the Office of the Surgeon General and the Ospital ng Bagong Lipunan. According to Jose
43

R. Castro, Jr., the President of Intergames, the preparations for the event included conducting an
ocular inspection of the route of the race, sending out letters to the various cooperating
44

agencies, securing permits from proper authorities, putting up directional signs, and setting up
45 46 47

the water stations. 48

We consider the "safeguards" employed and adopted by Intergames not adequate to meet the
requirement of due diligence.

For one, the police authorities specifically prohibited Intergames from blocking Don Mariano
Marcos Highway in order not to impair road accessibility to the residential villages located
beyond the IBP Lanc. 49

However, contrary to the findings of the CA, Intergames had a choice on where to stage the
50

marathon, considering its admission of the sole responsibility for the conduct of the event,
including the choice of location.

Moreover, the CA had no basis for holding that "the said route was found to be the best route
after a careful study and consideration of all the factors involved." Castro, Jr. himself attested
51

that the route had been the best one only within the vicinity of the Batasan Pambansa, to wit:

COURT

q Was there any specific reason from ... Was there any specific reason why you used this route
from Batasan to City Hall? Was there any special reason?

a We have, your Honor, conducted for example the Milo Marathon in that area in the Batasan
Pambansa and we found it to be relatively safer than any other areas within the vicinity. As a
matter of fact, we had more runners in the Milo Marathon at that time and nothing happened,
your Honor. 52

The chosen route (IBP Lane, on to Don Mariano Marcos Highway, and then to Quezon City Hall)
was not the only route appropriate for the marathon. In fact, Intergames came under no
obligation to use such route especially considering that the participants, who were young and
inexperienced runners, would be running alongside moving vehicles.
Intergames further conceded that the marathon could have been staged on a blocked-off route
like Roxas Boulevard in Manila where runners could run against the flow of vehicular
traffic. Castro, Jr. stated in that regard:
53

COURT TO WITNESS

q What law are you talking about when you say I cannot violate the law?

a The police authority, your Honor, would not grant us permit because that is one of the
conditions that if we are to conduct a race we should run the race in accordance with the flow of
traffic.

q Did you not inform the police this is in accordance with the standard safety measures for a
marathon race?

a I believed we argued along that line but but (sic) again, if we insist the police again would not
grant us any permit like ... except in the case of Roxas Boulevard when it is normally closed
from 8 a.m. when you can run against the flow of traffic.

q You were aware for a runner to run on the same route of the traffic would be risky because he
would not know what is coming behind him?

a I believed we talked of the risk, your Honor when the risk has been minimized to a certain level.
Yes, there is greater risk when you run with the traffic than when you run against the traffic to a
certain level, it is correct but most of the races in Manila or elsewhere are being run in
accordance with the flow of the traffic.

xxxx

ATTY. VINLUAN

q Following the observation of the Court, considering the local condition, you will agree with me
the risks here are greater than in the United States where drivers on the whole follow traffic
rules?

a That is correct.

q And because of that fact, it is with all the more reason that you should take all necessary
precautions to insure the safety of the runners?

a That is correct. 54

xxxx

COURT:

xxxx

Q In your case in all the marathons that you had managed, how many cases have you
encountered where the routes are blocked off for vehicular traffic?

A These are the International Marathon, Philippines Third World Marathon and the Milo
Marathon. We are blocking them to a certain length of time.
Q What was the purpose of blocking the routes? Is it for the safety of the runners or just a matter
of convenience?

A In blocking off the route, Your Honor, it is light easier for the runners to run without
impediments to be rendered by the people or by vehicles and at the same time it would be also
advantageous if the road will be blocked off for vehicle traffic permitted to us by the traffic
authorities.

Q So, in this case, you actually requested for the traffic authorities to block off the route?

A As far as I remember we asked Sgt. Pascual to block off the route but considering that it is the
main artery to Fairview Village, it would not be possible to block off the route since it will cause a
lot of inconvenience for the other people in those areas and jeepney drivers.

Q In other words, if you have your way you would have opted to block off the route.

A Yes, Your Honor.

Q But the fact is that the people did not agree.

A Yes, Your Honor, and it is stated in the permit given to us. 55

Based on the foregoing testimony of Castro, Jr., Intergames had full awareness of the higher
risks involved in staging the race alongside running vehicles, and had the option to hold the race
in a route where such risks could be minimized, if not eliminated. But it did not heed the danger
already foreseen, if not expected, and went ahead with staging the race along the plotted route
on Don Mariano Marcos Highway on the basis of its supposedly familiarity with the route. Such
familiarity of the organizer with the route and the fact that previous races had been conducted
therein without any untoward incident were not in themselves sufficient safeguards. The
56

standards for avoidance of injury through negligence further required Intergames to establish that
it did take adequate measures to avert the foreseen danger, but it failed to do so.

Another failing on the part of Intergames was the patent inadequacy of the personnel to man the
route. As borne by the records, Intergames had no personnel of its own for that purpose, and
relied exclusively on the assistance of volunteers, that is, "seven (7) traffic operatives, five (5)
motorcycle policemen, fifteen (15) patrolmen deployed along the route, fifteen (15) boy scouts,
twelve (12) CATs, twenty (20) barangay tanods, three (3) ambulances and three (3) medical
teams" to ensure the safety of the young runners who would be running alongside moving
57

vehicular traffic, to make the event safe and well coordinated.

Although the party relying on negligence as his cause of action had the burden of proving the
existence of the same, Intergames' coordination and supervision of the personnel sourced from
the cooperating agencies did not satisfy the diligence required by the relevant circumstances. In
this regard, it can be pointed out that the number of deployed personnel, albeit sufficient to stage
the marathon, did not per se ensure the safe conduct of the race without proof that such
deployed volunteers had been properly coordinated and instructed on their tasks.

That the proper coordination and instruction were crucial elements for the safe conduct of the
race was well known to Intergames. Castro, Jr. stated as much, to wit:

ATTY. LOMBOS:

xxxx
Q You also said that if you block off one side of the road, it is possible that it would be more
convenient to hold the race in that matter. Will you tell the Honorable Court if it is possible also to
hold a race safely if the road is not blocked off?

A Yes, sir.

Q How is it done.

A You can still run a race safely even if it is partially blocked off as long as you have the
necessary cooperation with the police authorities, and the police assigned along the route of the
race and the police assigned would be there, this will contribute the safety of the participants,
and also the vehicular division, as long as there are substantial publicities in the newspapers,
normally they will take the precautions in the use of the particular route of the race.

Q Let me clarify this. Did you say that it is possible to hold a marathon safely if you have this
traffic assistance or coordination even if the route is blocked or not blocked?

A It is preferable to have the route blocked but in some cases, it would be impossible for the
portions of the road to be blocked totally. The route of the race could still be safe for runners if a
proper coordination or the agencies are notified especially police detailees to man the particular
stage.58

Sadly, Intergames' own evidence did not establish the conduct of proper coordination and
instruction. Castro, Jr. described the action plan adopted by Intergames in the preparation for the
race, as follows:

COURT

a Did you have any rehearsal let us say the race was conducted on June 15, now before June 15
you call a meeting of all these runners so you can have more or less a map-up and you would
indicate or who will be stationed in their places etc. Did you have such a rehearsal?

WITNESS

a It is not being done, your honor, but you have to specify them. You meet with the group and
you tell them that you wanted them to be placed in their particular areas which we pointed out to
them for example in the case of the Barangay Tanod, I specifically assigned them in the areas
and we sat down and we met.

COURT

q Did you have any action, plan or brochure which would indicate the assignment of each of the
participating group?

WITNESS

a Normally, sir, many of the races don't have that except when they called them to meeting either
as a whole group or the entire cooperating agency or meet them per group.

COURT

q Did you have a check list of the activities that would have to be entered before the actual
marathon some kind of system where you will indicate this particular activity has to be checked
etc. You did not have that?
WITNESS

q Are you asking, your honor, as a race director of I will check this because if I do that, I won't
have a race because that is not being done by any race director anywhere in the world?

COURT

I am interested in your planning activities.

q In other words, what planning activities did you perform before the actual marathon?

a The planning activities we had, your honor, was to coordinate with the different agencies
involved informing them where they would be more or less placed.

COURT

q Let us go to ... Who was supposed to be coordinating with you as to the citizens action group
who was your ... you were referring to a person who was supposed to be manning these people
and who was the person whom you coordinate with the Traffic Action Group?

WITNESS

a I can only remember his name ... his family name is Esguerra.

q How about with the Tanods?

a With the Tanods his name is Pedring Serrano.

q And with the Boys Scouts? (sic)

a And with the Boys Scouts of the Phils. (sic) it is Mr. Greg Panelo.

COURT

q When did you last meet rather how many times did you meet with Esguerra before the
marathon on June 15?

WITNESS

a The Citizens Traffic Action Group, your honor, had been with me m previous races.

COURT

q I am asking you a specific question. I am not interested in the Citizen Traffic Action Group. The
marathon was on June 15, did you meet with him on June 14, June 13 or June 12?

a We met once, your honor, I cannot remember the date.

q You don't recall how many days before?

a I cannot recall at the moment.

q How about with Mr. Serrano, how many times did you meet with him before the race?
a If my mind does not fail me, your honor, I met him twice because he lives just within our area
and we always see each other.

q How about with Panelo, how many times did you meet him?

a With Mr. Panelo, I did not meet with them, your honor.

q Was there an occasion where before the race you met with these three people together since
you did not meet with Panelo anytime? Was there anytime where you met with Serrano and
Esguerra together?

WITNESS

a No, your honor.

COURT

g When you met once with Esguerra, where did you meet? What place?

a I cannot recall at the moment, your honor, since it was already been almost six years ago.

g How about Serrano, where did you meet him?

a We met in my place.

q From your house? He went in your house?

a Yes, your honor.

q So you did not have let us say a ... you don't have records of your meetings with these people?

WITNESS

a With the Citizens Traffic Action, your honor?

COURT

a Yes.

WITNESS

a I don't have, your honor.

COURT

q Because you are familiar, I was just thinking this is an activity which requires planning etc.,
what I was thinking when you said this was never done in any part of the world but all activities it
has to be planned. There must be some planning, now are you saying that in this particular case
you had no written plan or check list of activities what activities have to be implemented on a
certain point and time, who are the persons whom you must meet in a certain point and time.

WITNESS
a Normally, we did not have that, your honor, except the check list of all the things that should be
ready at a particular time prior to the race and the people to be involved and we have a check list
to see to it that everything would be in order before the start of the race.

COURT

Proceed.

ATTY. VINLUAN

q Following the question of the Court Mr. Castro, did you meet with Lt. Depano of the Police
Department who were supposed to supervise the police officers assigned to help during the
race?

a I did not meet with him, sir.

q You did not meet with him?

a I did not meet with him.

q In fact, ever before or during the race you had no occasion to talk to Lt. Depano. Is that
correct?

a That is correct, sir.

ATTY. VINLUAN

Based on the question of the Court and your answer to the question of the Court, are you trying
to say that this planning before any race of all these groups who have committed to help in the
race, this is not done in any part of the world?

WITNESS

a In the latter years when your race became bigger and bigger, this is being done now slowly.

ATTY. VINLUAN

q But for this particular race you will admit that you failed to do it when you have to coordinate
and even have a dry run of the race you failed to do all of that in this particular race, yes or no?

a Because there was ...

COURT

It was already answered by him when I asked him. The Court has ... Everybody has a copy how
of this time planner. Any activity or even meeting a girlfriend or most people plan.

A TTY. F .M. LOMBOS

If your honor please, before we proceed ...

WITNESS
In the latter years, your honor, when your race became bigger and bigger, this is being done now
slowly.

q For this particular race you will admit that you failed to do it?

a Because there was no need, sir. 59

Probably sensing that he might have thereby contradicted himself, Castro, Jr. clarified on re-
direct examination:

ATTY. LOMBOS

Q Now, you also responded to a question during the same hearing and this appears on page 26
of the transcript that you did not hold any rehearsal or dry run for this particular marathon. Could
you tell the Court why you did not hold any such rehearsal or dry run?

A Because I believe there was no need for us to do that since we have been doing this for many
years and we have been the same people, same organization with us for so many years
conducting several races including some races in that area consisting of longer distances and
consisting of more runners, a lot more runners in that areay (sic) so these people, they know
exactly what to do and there was no need for us to have a rehearsal. I believe this rehearsal
would only be applicable if I am new and these people are new then, we have to rehearse.

ATTY. LOMBOS

q You also stated Mr. Castro that you did not have any action plan or brochure which you would
indicate, an assignment of each of the participating group as to what to do during the race. Will
you please explain what you meant when you said you have no action plan or brochure?

WITNESS

a What I mean of action plan, I did not have any written action plan but I was fully aware of what
to do. I mean, those people did not just go there out of nowhere. Obviously, there was an action
on my part because I have to communicate with them previously and to tell them exactly what
the race is all about; where to start; where it would end, and that is the reason why we have the
ambulances, we have the Boy Scouts, we have the CT A, we have the police, so it was very
obvious that there was a plan of action but not written because I know pretty well exactly what to
do. I was dealing with people who have been doing this for a long period of time. 60

While the level of trust Intergames had on its volunteers was admirable, the coordination among
the cooperating agencies was predicated on circumstances unilaterally assumed by Intergames.
It was obvious that Intergames' inaction had been impelled by its belief that it did not need any
action plan because it had been dealing with people who had been manning similar races for a
long period of time.

The evidence presented undoubtedly established that Intergames' notion of coordination only
involved informing the cooperating agencies of the date of the race, the starting and ending
points of the route, and the places along the route to man. Intergames did not conduct any
general assembly with all of them, being content with holding a few sporadic meetings with the
leaders of the coordinating agencies. It held no briefings of any kind on the actual duties to be
performed by each group of volunteers prior to the race. It did not instruct the volunteers on how
to minimize, if not avert, the risks of danger in manning the race, despite such being precisely
why their assistance had been obtained in the first place.
Intergames had no right to assume that the volunteers had already been aware of what exactly
they would be doing during the race. It had the responsibility and duty to give to them the proper
instructions despite their experience from the past races it had organized considering that the
particular race related to runners of a different level of experience, and involved different weather
and environmental conditions, and traffic situations. It should have remembered that the
personnel manning the race were not its own employees paid to perform their tasks, but
volunteers whose nature of work was remotely associated with the safe conduct of road races.
Verily, that the volunteers showed up and assumed their proper places or that they were
sufficient in number was not really enough. It is worthy to stress that proper coordination in the
context of the event did not consist in the mere presence of the volunteers, but included making
sure that they had been properly instructed on their duties and tasks in order to ensure the safety
of the young runners.

It is relevant to note that the participants of the 1st Pop Cola Junior Marathon were mostly minors
aged 14 to 18 years joining a race of that kind for the first time. The combined factors of their
youth, eagerness and inexperience ought to have put a reasonably prudent organizer on higher
guard as to their safety and security needs during the race, especially considering Intergames'
awareness of the risks already foreseen and of other risks already known to it as of similar
events in the past organizer. There was no question at all that a higher degree of diligence was
required given that practically all of the participants were children or minors like Rommel; and
that the law imposes a duty of care towards children and minors even if ordinarily there was no
such duty under the same circumstances had the persons involved been adults of sufficient
discretion. In that respect, Intergames did not observe the degree of care necessary as the
61

organizer, rendering it liable for negligence. As the Court has emphasized in Corliss v. The
Manila Railroad Company, where the danger is great, a high degree of care is necessary, and
62

the failure to observe it is a want of ordinary care under the circumstances. 63

The circumstances of the persons, time and place required far more than what Intergames
undertook in staging the race. Due diligence would have made a reasonably prudent organizer of
the race participated in by young, inexperienced or beginner runners to conduct the race in a
route suitably blocked off from vehicular traffic for the safety and security not only of the
participants but the motoring public as well. Since the marathon would be run alongside moving
vehicular traffic, at the very least, Intergames ought to have seen to the constant and closer
coordination among the personnel manning the route to prevent the foreseen risks from befalling
the participants. But this it sadly failed to do.

II

The negligence of Intergames as the organizer

was the proximate cause of the death of Rommel

As earlier mentioned, the CA found that Rommel, while running the marathon on Don Mariano
Marcos A venue and after passing the Philippine Atomic Energy Commission Building, was
bumped by a passenger jeepney that was racing with a minibus and two other vehicles as if
trying to crowd each other out. As such, the death of Rommel was caused by the negligence of
the jeepney driver.

Intergames staunchly insists that it was not liable, maintaining that even assuming arguendo that
it was negligent, the negligence of the jeepney driver was the proximate cause of the death of
Rommel; hence, it should not be held liable.

Did the negligence of Intergames give rise to its liability for the death of ommel notwithstanding
the negligence of the jeepney driver?
In order for liability from negligence to arise, there must be not only proof of damage and
negligence, but also proof that the damage was the consequence of the negligence. The Court
has said in Vda. de Gregorio v. Go Chong Bing: 64

x x x Negligence as a source of obligation both under the civil law and in American cases was
carefully considered and it was held:

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." (Taylor vs.
Manila Electric Railroad and Light Co., supra, p. 15.)

In accordance with the decision of the Supreme Court of Spain, in order that a person may be
held guilty for damage through negligence, it is necessary that there be an act or omission on the
part of the person who is to be charged with the liability and that damage is produced by the said
act or omission. (Emphasis supplied)
65

We hold that the negligence of Intergames was the proximate cause despite the intervening
negligence of the jeepney driver.

Proximate cause is "that which, in natural and continuous sequence, unbroken by any new
cause, produces an event, and without which the event would not have occurred." In Vda. de
66

Bataclan, et al. v. Medina, the Court, borrowing from American Jurisprudence, has more
67

extensively defined proximate cause thusly:

"* * * 'that cause, which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury and without which the result would not have occurred.'
And more comprehensively, 'the proximate legal cause is that acting first and producing the
injury, either immediately or by setting other events in motion, all constituting a natural and
continuous chain of events, each having a close causal connection with its immediate
predecessor, the final event in the chain immediately effecting the injury as a natural and
probable result of the cause which first acted, under such circumstances that the person
responsible for the first event should, as an ordinarily prudent and intelligent person, have
reasonable ground to expect at the moment of his act or default that an injury to some person
might probably result therefrom." 68

To be considered the proximate cause of the injury, the negligence need not be the event closest
in time to the injury; a cause is still proximate, although farther in time in relation to the injury, if
the happening of it set other foreseeable events into motion resulting ultimately in the
damage. According to an authority on civil law: "A prior and remote cause cannot be made the
69 70

basis of an action, if such remote cause did nothing more than furnish the condition or give rise
to the occasion by which the injury was made possible, if there intervened between such prior or
remote cause and the injury a distinct, successive, unrelated and efficient cause, even though
such injury would not have happened but for such condition or occasion. If no damage exists in
the condition except because of the independent cause, such condition was not the proximate
cause. And if an independent negligent act or defective condition sets into operation the
circumstances which result in injury because of the prior defective condition, such act or
condition is the proximate cause."
Bouvier adds:

In many cases important questions arise as to which, in the chain of acts tending to the
production of a given state of things, is to be considered the responsible cause. It is not merely
distance of place or of causation that renders a cause remote. The cause nearest in the order of
causation, without any efficient concurring cause to produce the result, may be considered the
direct cause. In the course of decisions of cases in which it is necessary to determine which of
several causes is so far responsible for the happening of the act or injury complained of, what is
known as the doctrine of proximate cause is constantly resorted to in order to ascertain whether
the act, omission, or negligence of the person whom it is sought to hold liable was in law and in
fact responsible for the result which is the foundation of the action.71

xxxx

The question of proximate cause is said to be determined, not by the existence or non-existence
of intervening events, but by their character and the natural connection between the original act
or omission and the injurious consequences. When the intervening cause is set in operation by
the original negligence, such negligence is still the proximate cause; x x x If the party guilty of the
first act of negligence might have anticipated the intervening cause, the connection is not broken;
x x x. Any number of causes and effects may intervene, and if they arc such as might with
reasonable diligence have been foreseen, the last result is to be considered as the proximate
result. But whenever a new cause intervenes, which is not a consequence of the first wrongful
cause, which is not under control of the wrongdoer, which could not have been foreseen by the
exercise of reasonable diligence, and except for which the final injurious consequence could not
have happened, then such injurious consequence must be deemed too remote; x x x. (bold 72

underscoring supplied for emphasis)

An examination of the records in accordance with the foregoing concepts supports the
conclusions that the negligence of Intergames was the proximate cause of the death of Rommel;
and that the negligence of the jeepney driver was not an efficient intervening cause.

First of all, Intergames' negligence in not conducting the race in a road blocked off from vehicular
traffic, and in not properly coordinating the volunteer personnel manning the marathon route
effectively set the stage for the injury complained of. The submission that Intergames had
previously conducted numerous safe races did not persuasively demonstrate that it had
exercised due diligence because, as the trial court pointedly observed, "[t]hey were only lucky
that no accident occurred during the previous marathon races but still the danger was there." 73

Secondly, injury to the participants arising from an unfortunate vehicular accident on the route
was an event known to and foreseeable by Intergames, which could then have been avoided if
only Intergames had acted with due diligence by undertaking the race on a blocked-off road, and
if only Intergames had enforced and adopted more efficient supervision of the race through its
volunteers.

And, thirdly, the negligence of the jeepney driver, albeit an intervening cause, was not efficient
enough to break the chain of connection between the negligence of Intergames and the injurious
consequence suffered by Rommel. An intervening cause, to be considered efficient, must
be "one not produced by a wrongful act or omission, but independent of it, and adequate to bring
the injurious results. Any cause intervening between the first wrongful cause and the final injury
which might reasonably have been foreseen or anticipated by the original wrongdoer is not such
an efficient intervening cause as will relieve the original wrong of its character as the proximate
cause of the final injury."
74

In fine, it was the duty of Intergames to guard Rommel against the foreseen risk, but it failed to
do so.
 III

The doctrine of assumption of risk

had no application to Rommel

Unlike the R TC, the CA ruled that the doctrine of assumption of risk applied herein; hence, it
declared Intergames and Cosmos not liable. The CA rendered the following rationalization to
buttress its ruling, to wit:

In this case, appellant Romulo Abrogar himself admitted that his son, Rommel Abrogar, surveyed
the route of the marathon and even attended a briefing before the race. Consequently, he was
aware that the marathon would pass through a national road and that the said road would not be
blocked off from traffic. And considering that he was already eighteen years of age, had
voluntarily participated in the marathon, with his parents' consent, and was well aware of the
traffic hazards along the route, he thereby assumed all the risks of the race. This is precisely why
permission from the participant's parents, submission of a medical certificate and a waiver of all
rights and causes of action arising from the participation in the marathon which the participant or
his heirs may have against appellant Intergames were required as conditions in joining the
marathon.

In the decision of the trial court, it stated that the risk mentioned in the waiver signed by Rommel
Abrogar only involved risks such as stumbling, suffering heatstroke, heart attack and other
similar risks. It did not consider vehicular accident as one of the risks included in the said waiver.

This Court does not agree. With respect to voluntary participation in a sport, the doctrine of
assumption of risk applies to any facet of the activity inherent in it and to any open and obvious
condition of the place where it is carried on. We believe that the waiver included vehicular
accidents for the simple reason that it was a road race run on public roads used by vehicles.
Thus, it cannot be denied that vehicular accidents are involved. It was not a track race which is
held on an oval and insulated from vehicular traffic. In a road race, there is always the risk of
runners being hit by motor vehicles while they train or compete. That risk is inherent in the sport
and known to runners. It is a risk they assume every time they voluntarily engage in their sport.

Furthermore, where a person voluntarily participates in a lawful game or contest, he assumes the
ordinary risks of such game or contest so as to preclude recovery from the promoter or operator
of the game or contest for injury or death resulting therefrom. Proprietors of amusements or of
places where sports and games are played are not insurers of safety of the public nor of their
patrons.

In Mc Leod Store v. Vinson 213 Ky 667, 281 SW 799 (1926), it was held that a boy, seventeen
years of age, of ordinary intelligence and physique, who entered a race conducted by a
department store, the purpose of which was to secure guinea fowl which could be turned in for
cash prizes, had assumed the ordinary risks incident thereto and was barred from recovering
against the department store for injuries suffered when, within catching distance, he stopped to
catch a guinea, and was tripped or stumbled and fell to the pavement, six or eight others falling
upon him. The comi further said: "In this (the race) he was a voluntary participant. x x x The
anticipated danger was as obvious to him as it was to appellant (the department store). While not
an adult, he was practically 17 years of age, of ordinary intelligence, and perfectly able to
determine the risks ordinarily incident to such games. An ordinary boy of that age is practically as
well advised as to the hazards of baseball, basketball, football, foot races and other games of
skill and endurance as is an adult

x x x."

In the case at bar, the "1st Pop Cola Junior Marathon" held on June 15, 1980 was a race the
winner of which was to represent the country in the annual Spirit of Pheidippides Marathon
Classic in Greece, if he equals or breaks the 29-minute mark for the 19-km. race. Thus, Rommel
Abrogar having voluntarily participated in the race, with his parents' consent, assumed all the
risks of the race. 75

The doctrine of assumption of risk means that one who voluntarily exposes himself to an
obvious, known and appreciated danger assumes the risk of injury that may result therefrom. It 76

rests on the fact that the person injured has consented to relieve the defendant of an obligation
of conduct toward him and to take his chance of injury from a known risk, and whether the former
has exercised proper caution or not is immaterial. In other words, it is based on voluntary
77

consent, express or implied, to accept danger of a known and appreciated risk; it may sometimes
include acceptance of risk arising from the defendant's negligence, but one does not ordinarily
assume risk of any negligence which he does not know and appreciate.78 As a defense in
negligence cases, therefore, the doctrine requires the concurrence of three elements, namely: (1)
the plaintiff must know that the risk is present; (2) he must further understand its nature; and (3)
his choice to incur it must be free and voluntary. According to Prosser: "Knowledge of the risk
79 80

is the watchword of assumption of risk."

Contrary to the notion of the CA, the concurrence of the three elements was not shown to exist.
Rommel could not have assumed the risk of death when he participated in the race because
death was neither a known nor normal risk incident to running a race. Although he had surveyed
the route prior to the race and should be presumed to know that he would be running the race
alongside moving vehicular traffic, such knowledge of the general danger was not enough, for
some authorities have required that the knowledge must be of the specific risk that caused the
harm to him. In theory, the standard to be applied is a subjective one, and should be geared to
81

the particular plaintiff and his situation, rather than that of the reasonable person of ordinary
prudence who appears in contributory negligence. He could not have appreciated the risk of
82

being fatally struck by any moving vehicle while running the race. Instead, he had every reason
to believe that the organizer had taken adequate measures to guard all participants against any
danger from the fact that he was participating in an organized marathon. Stated differently,
nobody in his right mind, including minors like him, would have joined the marathon if he had
known of or appreciated the risk of harm or even death from vehicular accident while running in
the organized running event. Without question, a marathon route safe and free from foreseeable
risks was the reasonable expectation of every runner participating in an organized running event.

Neither was the waiver by Rommel, then a minor, an effective form of express or implied consent
in the context of the doctrine of assumption of risk. There is ample authority, cited in Prosser, to
83

the effect that a person does not comprehend the risk involved in a known situation because of
his youth, or lack of information or experience, and thus will not be taken to consent to assume
84 85

the risk.

Clearly, the doctrine of assumption of risk does not apply to bar recovery by the petitioners.

IV

Cosmos is not liable for the negligence

of Intergames as the organizer

Nonetheless, the CA did not err in absolving Cosmos from liability.

The sponsorship of the marathon by Cosmos was limited to financing the race. Cosmos did
nothing beyond that, and did not involve itself at all in the preparations for the actual conduct of
the race. This verity was expressly confirmed by Intergames, through Castro, Jr., who declared
as follows:

COURT
q Do you discuss all your preparation with Cosmos Bottling Company?

a As far as the Cosmos Bottling Company (sic) was a sponsor as to the actual conduct of the
race, it is my responsibility. The conduct of the race is my responsibility. The sponsor has nothing
to do as well as its code of the race because they are not the ones running. I was the one
running. The responsibility of Cosmos was just to provide the sponsor's money.

COURT

q They have no right to who (sic) suggest the location, the number of runners, you decide these
yourself without consulting them?

a Yes, your honor. 86

We uphold the finding by the CA that the role of Cosmos was to pursue its corporate commitment
to sports development of the youth as well as to serve the need for advertising its business. In
the absence of evidence showing that Cosmos had a hand in the organization of the race, and
took part in the determination of the route for the race and the adoption of the action plan,
including the safety and security measures for the benefit of the runners, we cannot but conclude
that the requirement for the direct or immediate causal connection between the financial
sponsorship of Cosmos and the death of Rommel simply did not exist. Indeed, Cosmos' mere
sponsorship of the race was, legally speaking, too remote to be the efficient and proximate cause
of the injurious consequences.

Damages

Article 2202 of the Civil Code lists the damages that the plaintiffs in a suit upon crimes and
quasi-delicts can recover from the defendant, viz.:

Art. 2202. In crimes and quasi-delicts, the defendant shall be liable for all damages which are the
natural and probable consequences of the act or omission complained of. It is not necessary that
such damages have been foreseen or could have reasonably been foreseen by the defendant.

Accordingly, Intergames was liable for all damages that were the natural and probable
consequences of its negligence. In its judgment, the RTC explained the award of damages in
favor of the petitioners, as follows:

As borne by the evidence on record, the plaintiffs incurred medical, hospitalization and burial
expenses for their son in this aggregate amount of ₱28,061.65 (Exhibits "D'', "D-1" and "D-2"). In
instituting this case, they have paid their lawyer ₱5,000 as initial deposit, their arrangement being
that they would pay attorney's fees to the extent of 10% of whatever amount would be awarded
to them in this case.

For the loss of a son, it is unquestionable that plaintiffs suffered untold grief which should entitle
them to recover moral damages, and this Court believes that if only to assuage somehow their
untold grief but not necessarily to compensate them to the fullest, the nominal amount of
₱l00,00.00 should be paid by the defendants.

For failure to adopt elementary and basic precautionary measure to insure the safety of the
participants so that sponsors and organizers of sports events should exercise utmost diligence in
preventing injury to the participants and the public as well, exemplary damages should also be
paid by the defendants and this Court considers the amount of ₱50,000.00
as reasonable. 87

Although we will not disturb the foregoing findings and determinations, we need to add to the
justification for the grant of exemplary damages. Article 2231 of the Civil Code stipulates that
exemplary damages are to be awarded in cases of quasi-delict if the defendant acted with gross
negligence. The foregoing characterization by the RTC indicated that Intergames' negligence
was gross. We agree with the characterization. Gross negligence, according to Mendoza v.
Spouses Gomez, is the absence of care or diligence as to amount to a reckless disregard of the
88

safety of persons or property; it evinces a thoughtless disregard of consequences without

exerting any effort to avoid them. Indeed, the failure of Intergames to adopt the basic
precautionary measures for the safety of the minor participants like Rommel was in reckless
disregard of their safety. Conduct is reckless when it is an extreme departure from ordinary care,
in a situation in which a high degree of danger is apparent; it must be more than any mere
mistake resulting from inexperience, excitement, or confusion, and more than mere
thoughtlessness or inadvertence, or simple inattention. The RTC did not recognize the right of
89

the petitioners to recover the loss of earning capacity of Rommel. It should have, for doing so
would have conformed to jurisprudence whereby the Court has unhesitatingly allowed such
recovery in respect of children, students and other non-working or still unemployed victims. The
legal basis for doing so is Article 2206 (l) of the Civil Code, which stipulates that the
defendant "shall be liable for the loss of the earning capacity of the deceased, and the indemnity
shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and
awarded by the court, unless the deceased on account of permanent physical disability not
caused by the defendant, had no earning capacity at the time of his death."

Indeed, damages for loss of earning capacity may be awarded to the heirs of a deceased non-
working victim simply because earning capacity, not necessarily actual earning, may be lost.

In Metro Manila Transit Corporation v. Court of Appeals, damages for loss of earning capacity
90

were granted to the heirs of a third-year high school student of the University of the Philippines
Integrated School who had been killed when she was hit and run over by the petitioner's
passenger bus as she crossed Katipunan Avenue in Quezon City. The Court justified the grant in
this wise:

Compensation of this nature is awarded not for loss of earnings but for loss of capacity to earn
money. Evidence must be presented that the victim, if not yet employed at the time of death, was
reasonably certain to complete training for a specific profession. In People v. Teehankee, no
award of compensation for loss of earning capacity was granted to the heirs of a college
freshman because there was no sufficient evidence on record to show that the victim would
eventually become a professional pilot. But compensation should be allowed for loss of earning
capacity resulting from the death of a minor who has not yet commenced employment or training
for a specific profession if sufficient evidence is presented to establish the amount thereor. (bold
91

underscoring supplied for emphasis)

In People v. Sanchez, damages for loss of earning capacity was also allowed to the heirs of the
92

victims of rape with homicide despite the lack of sufficient evidence to establish what they would
have earned had they not been killed. The Court rationalized its judgment with the following
observations:

Both Sarmenta and Gomez were senior agriculture students at UPLB, the country's leading
educational institution in agriculture. As reasonably assumed by the trial court, both victims
1âwphi1

would have graduated in due course. Undeniably, their untimely death deprived them of their
future time and earning capacity. For these deprivation, their heirs are entitled to compensation.
xxxx. However, considering that Sarmenta and Gomez would have graduated in due time from a
reputable university, it would not be unreasonable to assume that in 1993 they would have
earned more than the minimum wage. All factors considered, the Court believes that it is fair and
reasonable to fix the monthly income that the two would have earned in 1993 at ₱8,000.000 per
month (or ₱96,000.00/year) and their deductible living and other incidental expenses at
₱3,000.00 per month (or ₱36,000.00/year). (bold underscoring supplied for emphasis)
93

In Perena v. Zarate, the Court fixed damages for loss of earning capacity to be paid to the heirs
94

of the 15-year-old high school student of Don Bosco Technical Institute killed when a moving
train hit the school van ferrying him to school while it was traversing the railroad tracks. The RTC
and the CA had awarded damages for loss of earning capacity computed on the basis of the
minimum wage in effect at the time of his death. Upholding said findings, the Court opined:

x x x, the fact that Aaron was then without a history of earnings should not be taken against his
parents and in favor of the defendants whose negligence not only cost Aaron his life and his right
to work and earn money, but also deprived his parents of their right to his presence and his
services as well. x x x. Accordingly, we emphatically hold in favor of the indemnification for
Aaron's loss of earning capacity despite him having been unemployed, because compensation of
this nature is awarded not for loss of time or earnings but for loss of the deceased's power or
ability to earn money.

The petitioners sufficiently showed that Rommel was, at the time of his untimely but much
lamented death, able-bodied, in good physical and mental state, and a student in good
standing. It should be reasonable to assume that Rommel would have finished his schooling
95

and would turn out to be a useful and productive person had he not died. Under the foregoing
jurisprudence, the petitioners should be compensated for losing Rommel's power or ability to
earn. The basis for the computation of earning capacity is not what he would have become or
what he would have wanted to be if not for his untimely death, but the minimum wage in effect at
the time of his death. The formula for this purpose is:

Net Earning Capacity = Life Expectancy x [Gross Annual Income less Necessary Living
Expenses ] 96

Life expectancy is equivalent to 2/3 multiplied by the difference of 80 and the age of the
deceased. Since Rommel was 18 years of age at the time of his death, his life expectancy was
41 years. His projected gross annual income, computed based on the minimum wage for workers
in the non-agricultural sector in effect at the time of his death, then fixed at ₱l4.00/day, is
97

₱5,535.83. Allowing for necessary living expenses of 50% of his projected gross annual income,
his total net earning capacity is ₱l13,484.52.

Article 2211 of the Civil Code expressly provides that interest, as a part of damages, may be
awarded in crimes and quasi-delicts at the discretion of the court. The rate of interest provided
under Article 2209 of the Civil Code is 6% per annum in the absence of stipulation to the
contrary. The legal interest rate of 6% per annum is to be imposed upon the total amounts herein
awarded from the time of the judgment of the RTC on May 10, 1991 until finality of
judgment. Moreover, pursuant to Article 2212 of the Civil Code, the legal interest rate of
98 99

6o/o per annum is to be further imposed on the interest earned up to the time this judgment of
the Court becomes final and executory until its full satisfaction. 100

Article 2208 of the Civil Code expressly allows the recovery of attorney's fees and expenses of
litigation when exemplary damages have been awarded. Thus, we uphold the RTC's allocation
1âwphi1

of attorney's fees in favor of the petitioners equivalent to 10% of the total amount to be
recovered, inclusive of the damages for loss of earning capacity and interests, which we consider
to be reasonable under the circumstances.

WHEREFORE, the Court PARTLY AFFIRMS the decision promulgated on March 10, 2004 to
the extent that it absolved COSMOS BOTTLING COMPANY, INC. from
liability; REVERSES and SETS ASIDE the decision as to INTERGAMES,
INC., and REINSTATES as to it the judgment rendered on May 10, 1991 by the Regional Trial
Court, Branch 83, in Quezon City subject to the MODIFICATIONS that INTERGAMES, INC. is
ORDERED TO PAY to the petitioners, in addition to the aw3:rds thereby allowed: (a) the sum of
₱l13,484.52 as damages for the loss of Rommel Abrogar's earning capacity; (b) interest of
6% per annum on the actual damages, moral damages, exemplary damages and loss of earning
capacity reckoned from May 10, 1991 until full payment; (c) compounded interest of 6% per
annum from the finality of this decision until full payment; and (d) costs of suit.

SO ORDERED.

G.R. No. L-57079 September 29, 1989

PHILIPPINE LONG DISTANCE TELEPHONE CO., INC., petitioner,

vs.
COURT OF APPEALS and SPOUSES ANTONIO ESTEBAN and GLORIA
ESTEBAN, respondents.

REGALADO, J.:

This case had its inception in an action for damages instituted in the former Court of First
Instance of Negros Occidental by private respondent spouses against petitioner Philippine Long
1

Distance Telephone Company (PLDT, for brevity) for the injuries they sustained in the evening of
July 30, 1968 when their jeep ran over a mound of earth and fell into an open trench, an
excavation allegedly undertaken by PLDT for the installation of its underground conduit system.
The complaint alleged that respondent Antonio Esteban failed to notice the open trench which
was left uncovered because of the creeping darkness and the lack of any warning light or signs.
As a result of the accident, respondent Gloria Esteban allegedly sustained injuries on her arms,
legs and face, leaving a permanent scar on her cheek, while the respondent husband suffered
cut lips. In addition, the windshield of the jeep was shattered.
2

PLDT, in its answer, denies liability on the contention that the injuries sustained by respondent
spouses were the result of their own negligence and that the entity which should be held
responsible, if at all, is L.R. Barte and Company (Barte, for short), an independent contractor
which undertook the construction of the manhole and the conduit system. Accordingly, PLDT
3

filed a third-party complaint against Barte alleging that, under the terms of their agreement, PLDT
should in no manner be answerable for any accident or injuries arising from the negligence or
carelessness of Barte or any of its employees. In answer thereto, Barte claimed that it was not
4

aware nor was it notified of the accident involving respondent spouses and that it had complied
with the terms of its contract with PLDT by installing the necessary and appropriate standard
signs in the vicinity of the work site, with barricades at both ends of the excavation and with red
lights at night along the excavated area to warn the traveling public of the presence of
excavations.5

On October 1, 1974, the trial court rendered a decision in favor of private respondents, the
decretal part of which reads:

IN VIEW OF THE FOREGOING considerations the defendant Philippine Long

Distance Telephone Company is hereby ordered (A) to pay the plaintiff Gloria
Esteban the sum of P20,000.00 as moral damages and P5,000.00 exemplary
damages; to plaintiff Antonio Esteban the sum of P2,000.00 as moral damages
and P500.00 as exemplary damages, with legal rate of interest from the date of
 the filing of the complaint until fully paid. The defendant is hereby ordered to pay
the plaintiff the sum of P3,000.00 as attorney's fees.

(B) The third-party defendant is hereby ordered to reimburse whatever amount

the defendant-third party plaintiff has paid to the plaintiff. With costs against the
defendant. 6

From this decision both PLDT and private respondents appealed, the latter appealing only as to
the amount of damages. Third-party defendant Barte did not appeal.

On September 25, 1979, the Special Second Division of the Court of Appeals rendered a
decision in said appealed case, with Justice Corazon Juliano Agrava as ponente, reversing the
decision of the lower court and dismissing the complaint of respondent spouses. It held that
respondent Esteban spouses were negligent and consequently absolved petitioner PLDT from
the claim for damages. A copy of this decision was received by private respondents on October
7

10, 1979. On October 25, 1979, said respondents filed a motion for reconsideration dated
8

October 24, 1979. On January 24, 1980, the Special Ninth Division of the Court of Appeals
9

denied said motion for reconsideration. This resolution was received by respondent spouses on
10

February 22, 1980. 11

On February 29, 1980, respondent Court of Appeals received private respondents' motion for
leave of court to file a second motion for reconsideration, dated February 27, 1980. On March 12

11, 1980, respondent court, in a resolution likewise penned by Justice Agrava, allowed
respondents to file a second motion for reconsideration, within ten (10) days from notice
thereof. Said resolution was received by private respondents on April 1, 1980 but prior thereto,
13

private respondents had already filed their second motion for reconsideration on March 7,
1980. 14

On April 30,1980 petitioner PLDT filed an opposition to and/or motion to dismiss said second
motion for reconsideration. The Court of Appeals, in view of the divergent opinions on the
15

resolution of the second motion for reconsideration, designated two additional justices to form a
division of five. On September 3, 1980, said division of five promulgated its resolution, penned
16

by Justice Mariano A. Zosa, setting aside the decision dated September 25, 1979, as well as the
resolution dated, January 24,1980, and affirming in toto the decision of the lower court. 17

On September 19, 1980, petitioner PLDT filed a motion to set aside and/or for reconsideration of
the resolution of September 3, 1980, contending that the second motion for reconsideration of
private respondent spouses was filed out of time and that the decision of September 25, 1979
penned by Justice Agrava was already final. It further submitted therein that the relationship of
Barte and petitioner PLDT should be viewed in the light of the contract between them and, under
the independent contractor rule, PLDT is not liable for the acts of an independent contractor. On 18

May 11, 1981, respondent Court of Appeals promulgated its resolution denying said motion to set
aside and/or for reconsideration and affirming in toto the decision of the lower court dated
October 1, 1974. 19

Coming to this Court on a petition for review on certiorari, petitioner assigns the following errors:

1. Respondent Court of Appeals erred in not denying private respondents' second motion for
reconsideration on the ground that the decision of the Special Second Division, dated September
25, 1979, and the resolution of the Special Ninth Division, dated January 24, 1980, are already
final, and on the additional ground that said second motion for reconsideration is pro forma.

2. Respondent court erred in reversing the aforesaid decision and resolution and in misapplying
the independent contractor rule in holding PLDT liable to respondent Esteban spouses.
A convenient resume of the relevant proceedings in the respondent court, as shown by the
records and admitted by both parties, may be graphically presented as follows:

(a) September 25, 1979, a decision was rendered by the Court of Appeals with
Justice Agrava as ponente;

(b) October 10, 1979, a copy of said decision was received by private
respondents;

(c) October 25, 1979, a motion for reconsideration was filed by private
respondents;

(d) January 24, 1980, a resolution was issued denying said motion for
reconsideration;

(e) February 22, 1980, a copy of said denial resolution was received by private
respondents;

(f) February 29, 1980, a motion for leave to file a second motion for
reconsideration was filed by private respondents

(g) March 7, 1980, a second motion for reconsideration was filed by private
respondents;

(h) March 11, 1980, a resolution was issued allowing respondents to file a second
motion for reconsideration within ten (10) days from receipt; and

(i) September 3, 1980, a resolution was issued, penned by Justice Zosa,

reversing the original decision dated September 25, 1979 and setting aside the
resolution dated January 24, 1980.

From the foregoing chronology, we are convinced that both the motion for leave to file a second
motion for reconsideration and, consequently, said second motion for reconsideration itself were
filed out of time.

Section 1, Rule 52 of the Rules of Court, which had procedural governance at the time, provided
that a second motion for reconsideration may be presented within fifteen (15) days from notice of
the order or judgment deducting the time in which the first motion has been pending. Private
20

respondents having filed their first motion for reconsideration on the last day of the reglementary
period of fifteen (15) days within which to do so, they had only one (1) day from receipt of the
order denying said motion to file, with leave of court, a second motion for reconsideration. In
21

the present case, after their receipt on February 22, 1980 of the resolution denying their first
motion for reconsideration, private respondents had two remedial options. On February 23, 1980,
the remaining one (1) day of the aforesaid reglementary period, they could have filed a motion for
leave of court to file a second motion for reconsideration, conceivably with a prayer for the
extension of the period within which to do so. On the other hand, they could have appealed
through a petition for review on certiorari to this Court within fifteen (15) days from February 23,
1980. Instead, they filed a motion for leave to file a second motion 'for reconsideration on
22

February 29, 1980, and said second motion for reconsideration on March 7, 1980, both of which
motions were by then time-barred.

Consequently, after the expiration on February 24, 1980 of the original fifteen (15) day period,
the running of which was suspended during the pendency of the first motion for reconsideration,
the Court of Appeals could no longer validly take further proceedings on the merits of the case,
much less to alter, modify or reconsider its aforesaid decision and/or resolution. The filing of the
motion for leave to file a second motion for reconsideration by herein respondents on February
29, 1980 and the subsequent filing of the motion itself on March 7, 1980, after the expiration of
the reglementary period to file the same, produced no legal effects. Only a motion for re-hearing
or reconsideration filed in time shall stay the final order or judgment sought to be re-examined. 23

The consequential result is that the resolution of respondent court of March 11, 1980 granting
private respondents' aforesaid motion for leave and, giving them an extension of ten (10) days to
file a second motion for reconsideration, is null and void. The period for filing a second motion for
reconsideration had already expired when private respondents sought leave to file the same, and
respondent court no longer had the power to entertain or grant the said motion. The aforesaid
extension of ten (10) days for private respondents to file their second motion for reconsideration
was of no legal consequence since it was given when there was no more period to extend. It is
an elementary rule that an application for extension of time must be filed prior to the expiration of
the period sought to be extended. Necessarily, the discretion of respondent court to grant said
24

extension for filing a second motion for reconsideration is conditioned upon the timeliness of the
motion seeking the same.

No appeal having been taken seasonably, the respondent court's decision, dated September 25,
1979, became final and executory on March 9, 1980. The subsequent resolutions of respondent
court, dated March 11, 1980 and September 3, 1980, allowing private respondents to file a
second motion for reconsideration and reversing the original decision are null and void and
cannot disturb the finality of the judgment nor restore jurisdiction to respondent court. This is but
in line with the accepted rule that once a decision has become final and executory it is removed
from the power and jurisdiction of the court which rendered it to further alter or amend, much less
revoke it. The decision rendered anew is null and void. The court's inherent power to correct its
25 26

own errors should be exercised before the finality of the decision or order sought to be corrected,
otherwise litigation will be endless and no question could be considered finally settled. Although
the granting or denial of a motion for reconsideration involves the exercise of discretion, the
27

same should not be exercised whimsically, capriciously or arbitrarily, but prudently in conformity
with law, justice, reason and equity. 28

Prescinding from the aforesaid procedural lapses into the substantive merits of the case, we find
no error in the findings of the respondent court in its original decision that the accident which
befell private respondents was due to the lack of diligence of respondent Antonio Esteban and
was not imputable to negligent omission on the part of petitioner PLDT. Such findings were
reached after an exhaustive assessment and evaluation of the evidence on record, as evidenced
by the respondent court's resolution of January 24, 1980 which we quote with approval:

First. Plaintiff's jeep was running along the inside lane of Lacson Street. If it had
remained on that inside lane, it would not have hit the ACCIDENT MOUND.

Exhibit B shows, through the tiremarks, that the ACCIDENT MOUND was hit by
the jeep swerving from the left that is, swerving from the inside lane. What
caused the swerving is not disclosed; but, as the cause of the accident,
defendant cannot be made liable for the damages suffered by plaintiffs. The
accident was not due to the absence of warning signs, but to the unexplained
abrupt swerving of the jeep from the inside lane. That may explain plaintiff-
husband's insistence that he did not see the ACCIDENT MOUND for which
reason he ran into it.

Second. That plaintiff's jeep was on the inside lane before it swerved to hit the
ACCIDENT MOUND could have been corroborated by a picture showing Lacson
Street to the south of the ACCIDENT MOUND.

It has been stated that the ditches along Lacson Street had already been covered
except the 3 or 4 meters where the ACCIDENT MOUND was located. Exhibit B-1
 shows that the ditches on Lacson Street north of the ACCIDENT MOUND had
already been covered, but not in such a way as to allow the outer lane to be
freely and conveniently passable to vehicles. The situation could have been
worse to the south of the ACCIDENT MOUND for which reason no picture of the
ACCIDENT MOUND facing south was taken.

Third. Plaintiff's jeep was not running at 25 kilometers an hour as plaintiff-

husband claimed. At that speed, he could have braked the vehicle the moment it
struck the ACCIDENT MOUND. The jeep would not have climbed the ACCIDENT
MOUND several feet as indicated by the tiremarks in Exhibit B. The jeep must
have been running quite fast. If the jeep had been braked at 25 kilometers an
hour, plaintiff's would not have been thrown against the windshield and they
would not have suffered their injuries.

Fourth. If the accident did not happen because the jeep was running quite fast on
the inside lane and for some reason or other it had to swerve suddenly to the
right and had to climb over the ACCIDENT MOUND, then plaintiff-husband had
not exercised the diligence of a good father of a family to avoid the accident. With
the drizzle, he should not have run on dim lights, but should have put on his
regular lights which should have made him see the ACCIDENT MOUND in time.
If he was running on the outside lane at 25 kilometers an hour, even on dim
lights, his failure to see the ACCIDENT MOUND in time to brake the car was
negligence on his part. The ACCIDENT MOUND was relatively big and visible,
being 2 to 3 feet high and 1-1/2 feet wide. If he did not see the ACCIDENT
MOUND in time, he would not have seen any warning sign either. He knew of the
existence and location of the ACCIDENT MOUND, having seen it many previous
times. With ordinary precaution, he should have driven his jeep on the night of
the accident so as to avoid hitting the ACCIDENT MOUND. 29

The above findings clearly show that the negligence of respondent Antonio Esteban was not only
contributory to his injuries and those of his wife but goes to the very cause of the occurrence of
the accident, as one of its determining factors, and thereby precludes their right to recover
damages. The perils of the road were known to, hence appreciated and assumed by, private
30

respondents. By exercising reasonable care and prudence, respondent Antonio Esteban could
have avoided the injurious consequences of his act, even assuming arguendo that there was
some alleged negligence on the part of petitioner.

The presence of warning signs could not have completely prevented the accident; the only
purpose of said signs was to inform and warn the public of the presence of excavations on the
site. The private respondents already knew of the presence of said excavations. It was not the
lack of knowledge of these excavations which caused the jeep of respondents to fall into the
excavation but the unexplained sudden swerving of the jeep from the inside lane towards the
accident mound. As opined in some quarters, the omission to perform a duty, such as the placing
of warning signs on the site of the excavation, constitutes the proximate cause only when the
doing of the said omitted act would have prevented the injury. It is basic that private
31

respondents cannot charge PLDT for their injuries where their own failure to exercise due and
reasonable care was the cause thereof. It is both a societal norm and necessity that one should
exercise a reasonable degree of caution for his own protection. Furthermore, respondent Antonio
Esteban had the last clear chance or opportunity to avoid the accident, notwithstanding the
negligence he imputes to petitioner PLDT. As a resident of Lacson Street, he passed on that
street almost everyday and had knowledge of the presence and location of the excavations
there. It was his negligence that exposed him and his wife to danger, hence he is solely
responsible for the consequences of his imprudence.

Moreover, we also sustain the findings of respondent Court of Appeals in its original decision that
there was insufficient evidence to prove any negligence on the part of PLDT. We have for
consideration only the self-serving testimony of respondent Antonio Esteban and the unverified
photograph of merely a portion of the scene of the accident. The absence of a police report of
the incident and the non-submission of a medical report from the hospital where private
respondents were allegedly treated have not even been satisfactorily explained.

As aptly observed by respondent court in its aforecited extended resolution of January 24, 1980
—

(a) There was no third party eyewitness of the accident. As to how the accident
occurred, the Court can only rely on the testimonial evidence of plaintiffs
themselves, and such evidence should be very carefully evaluated, with
defendant, as the party being charged, being given the benefit of any doubt.
Definitely without ascribing the same motivation to plaintiffs, another person could
have deliberately engineered a similar accident in the hope and expectation that
the Court can grant him substantial moral and exemplary damages from the big
corporation that defendant is. The statement is made only to stress the
disadvantageous position of defendant which would have extreme difficulty in
contesting such person's claim. If there were no witness or record available from
the police department of Bacolod, defendant would not be able to determine for
itself which of the conflicting testimonies of plaintiffs is correct as to the report or
non-report of the accident to the police department. 32

A person claiming damages for the negligence of another has the burden of proving the
existence of such fault or negligence causative thereof. The facts constitutive of negligence must
be affirmatively established by competent evidence. Whosoever relies on negligence for his
33

cause of action has the burden in the first instance of proving the existence of the same if
contested, otherwise his action must fail.

WHEREFORE, the resolutions of respondent Court of Appeals, dated March 11, 1980 and
September 3,1980, are hereby SET ASIDE. Its original decision, promulgated on September
25,1979, is hereby REINSTATED and AFFIRMED.

SO ORDERED.

G.R. No. L-33722 July 29, 1988

FEDERICO YLARDE and ADELAIDA DORONIO petitioners,

vs.
EDGARDO AQUINO, MAURO SORIANO and COURT OF APPEALS, respondents.

Buenaventura C. Evangelista for petitioners.

Modesto V. Cabanela for respondent Edgardo Aquino.

Manuel P. Pastor for respondent Mauro Soriano.

GANCAYCO, J.:
In this petition for review on certiorari seeking the reversal of the decision of the Court of Appeals in CA-G.R. No. 36390-R entitled
"Federico Ylarde, et al. vs. Edgardo Aquino, et al.," a case which originated from the Court of First Instance of Pangasinan, We are
again caned upon determine the responsibility of the principals and teachers towards their students or pupils.

In 1963, private respondent Mariano Soriano was the principal of the Gabaldon Primary School,
a public educational institution located in Tayug, Pangasinan-Private respondent Edgardo
Aquino was a teacher therein. At that time, the school was fittered with several concrete blocks
which were remnants of the old school shop that was destroyed in World War II. Realizing that
the huge stones were serious hazards to the schoolchildren, another teacher by the name of
Sergio Banez started burying them one by one as early as 1962. In fact, he was able to bury ten
of these blocks all by himself.

Deciding to help his colleague, private respondent Edgardo Aquino gathered eighteen of his
male pupils, aged ten to eleven, after class dismissal on October 7, 1963. Being their teacher-in-
charge, he ordered them to dig beside a one-ton concrete block in order to make a hole wherein
the stone can be buried. The work was left unfinished. The following day, also after classes,
private respondent Aquino called four of the original eighteen pupils to continue the digging.
These four pupils — Reynaldo Alonso, Francisco Alcantara, Ismael Abaga and Novelito Ylarde,
dug until the excavation was one meter and forty centimeters deep. At this point, private
respondent Aquino alone continued digging while the pupils remained inside the pit throwing out
the loose soil that was brought about by the digging.

When the depth was right enough to accommodate the concrete block, private respondent
Aquino and his four pupils got out of the hole. Then, said private respondent left the children to
level the loose soil around the open hole while he went to see Banez who was about thirty
meters away. Private respondent wanted to borrow from Banez the key to the school workroom
where he could get some rope. Before leaving. , private respondent Aquino allegedly told the
children "not to touch the stone."

A few minutes after private respondent Aquino left, three of the four kids, Alonso, Alcantara and
Ylarde, playfully jumped into the pit. Then, without any warning at all, the remaining Abaga
jumped on top of the concrete block causing it to slide down towards the opening. Alonso and
Alcantara were able to scramble out of the excavation on time but unfortunately fo Ylarde, the
concrete block caught him before he could get out, pinning him to the wall in a standing position.
As a result thereof, Ylarde sustained the following injuries:

1. Contusion with hematoma, left inguinal region and suprapubic region.

2. Contusion with ecchymosis entire scrotal region.

3. Lacerated wound, left lateral aspect of penile skin with phimosis

4. Abrasion, gluteal region, bilateral.

5. Intraperitoneal and extrapertitoneal extravasation of blood and urine about 2

liters.

6. Fracture, simple, symphesis pubis

7. Ruptured (macerated) urinary bladder with body of bladder almost entirely

separated from its neck.

REMARKS:

1. Above were incurred by crushing injury.

 2. Prognosis very poor.

(Sgd.)
MELQUIADES A.
BRAVO

Phy
sici
an
on
Dut
y. 1

Three days later, Novelito Ylarde died.

Ylarde's parents, petitioners in this case, filed a suit for damages against both private
respondents Aquino and Soriano. The lower court dismissed the complaint on the following
grounds: (1) that the digging done by the pupils is in line with their course called Work Education;
(2) that Aquino exercised the utmost diligence of a very cautious person; and (3) that the demise
of Ylarde was due to his own reckless imprudence. 2

On appeal, the Court of Appeals affirmed the Decision of the lower court.

Petitioners base their action against private respondent Aquino on Article 2176 of the Civil Code
for his alleged negligence that caused their son's death while the complaint against respondent
Soriano as the head of school is founded on Article 2180 of the same Code.

Article 2176 of the Civil Code provides:

Art. 2176. Whoever by act or omission causes damage to another, there being
fault or negligence, is obliged to pay for the damage done. Such fault or
negligence, if there is no pre- existing contractual relation between the parties, is
called a quasi-delict and is governed by the provisions of this Chapter.

On the other hand, the applicable provision of Article 2180 states:

Art. 2180. x x x

xxx xxx xxx

Lastly, teachers or heads of establishments of arts and trades shall be liable for
damages caused by their pupils and students or apprentices, so long as they
remain in their custody. 3

The issue to be resolved is whether or not under the cited provisions, both private respondents
can be held liable for damages.

As regards the principal, We hold that he cannot be made responsible for the death of the child
Ylarde, he being the head of an academic school and not a school of arts and trades. This is in
line with Our ruling in Amadora vs. Court of Appeals, wherein this Court thoroughly discussed
4

the doctrine that under Article 2180 of the Civil Code, it is only the teacher and not the head of an
academic school who should be answerable for torts committed by their students. This Court
went on to say that in a school of arts and trades, it is only the head of the school who can be
held liable. In the same case, We explained:
 After an exhaustive examination of the problem, the Court has come to the
conclusion that the provision in question should apply to all schools, academic as
well as non-academic. Where the school is academic rather than technical or
vocational in nature, responsibility for the tort committed by the student will attach
to the teacher in charge of such student, following the first part of the provision.
This is the general rule. In the case of establishments of arts and trades, it is the
head thereof, and only he, who shall be held liable as an exception to the general
rule. In other words, teachers in general shall be liable for the acts of their
students except where the school is technical in nature, in which case it is the
head thereof who shall be answerable. Following the canon of reddendo singula
sinquilis 'teachers' should apply to the words "pupils and students' and 'heads of
establishments of arts and trades to the word "apprentices."

Hence, applying the said doctrine to this case, We rule that private respondent Soriano, as
principal, cannot be held liable for the reason that the school he heads is an academic school
and not a school of arts and trades. Besides, as clearly admitted by private respondent Aquino,
private respondent Soriano did not give any instruction regarding the digging.

From the foregoing, it can be easily seen that private respondent Aquino can be held liable under
Article 2180 of the Civil Code as the teacher-in-charge of the children for being negligent in his
supervision over them and his failure to take the necessary precautions to prevent any injury on
their persons. However, as earlier pointed out, petitioners base the alleged liability of private
respondent Aquino on Article 2176 which is separate and distinct from that provided for in Article
2180.

With this in mind, the question We need to answer is this: Were there acts and omissions on the
part of private respondent Aquino amounting to fault or negligence which have direct causal
relation to the death of his pupil Ylarde? Our answer is in the affirmative. He is liable for
damages.

From a review of the record of this case, it is very clear that private respondent Aquino acted with
fault and gross negligence when he: (1) failed to avail himself of services of adult manual
laborers and instead utilized his pupils aged ten to eleven to make an excavation near the one-
ton concrete stone which he knew to be a very hazardous task; (2) required the children to
remain inside the pit even after they had finished digging, knowing that the huge block was lying
nearby and could be easily pushed or kicked aside by any pupil who by chance may go to the
perilous area; (3) ordered them to level the soil around the excavation when it was so apparent
that the huge stone was at the brink of falling; (4) went to a place where he would not be able to
check on the children's safety; and (5) left the children close to the excavation, an obviously
attractive nuisance.

The negligent act of private respondent Aquino in leaving his pupils in such a dangerous site has
a direct causal connection to the death of the child Ylarde. Left by themselves, it was but natural
for the children to play around. Tired from the strenuous digging, they just had to amuse
themselves with whatever they found. Driven by their playful and adventurous instincts and not
knowing the risk they were facing three of them jumped into the hole while the other one jumped
on the stone. Since the stone was so heavy and the soil was loose from the digging, it was also a
natural consequence that the stone would fall into the hole beside it, causing injury on the
unfortunate child caught by its heavy weight. Everything that occurred was the natural and
probable effect of the negligent acts of private respondent Aquino. Needless to say, the child
Ylarde would not have died were it not for the unsafe situation created by private respondent
Aquino which exposed the lives of all the pupils concerned to real danger.

We cannot agree with the finding of the lower court that the injuries which resulted in the death of
the child Ylarde were caused by his own reckless imprudence, It should be remembered that he
was only ten years old at the time of the incident, As such, he is expected to be playful and
daring. His actuations were natural to a boy his age. Going back to the facts, it was not only him
but the three of them who jumped into the hole while the remaining boy jumped on the block.
From this, it is clear that he only did what any other ten-year old child would do in the same
situation.

In ruling that the child Ylarde was imprudent, it is evident that the lower court did not consider his
age and maturity. This should not be the case. The degree of care required to be exercised must
vary with the capacity of the person endangered to care for himself. A minor should not be held
to the same degree of care as an adult, but his conduct should be judged according to the
average conduct of persons of his age and experience. The standard of conduct to which a
5

child must conform for his own protection is that degree of care ordinarily exercised by children of
the same age, capacity, discretion, knowledge and experience under the same or similar
circumstances. Bearing this in mind, We cannot charge the child Ylarde with reckless
6

imprudence.

The court is not persuaded that the digging done by the pupils can pass as part of their Work
Education. A single glance at the picture showing the excavation and the huge concrete
block would reveal a dangerous site requiring the attendance of strong, mature laborers and not
7

ten-year old grade-four pupils. We cannot comprehend why the lower court saw it otherwise
when private respondent Aquino himself admitted that there were no instructions from the
principal requiring what the pupils were told to do. Nor was there any showing that it was
included in the lesson plan for their Work Education. Even the Court of Appeals made mention of
the fact that respondent Aquino decided all by himself to help his co-teacher Banez bury the
concrete remnants of the old school shop. Furthermore, the excavation should not be placed in
8

the category of school gardening, planting trees, and the like as these undertakings do not
expose the children to any risk that could result in death or physical injuries.

The contention that private respondent Aquino exercised the utmost diligence of a very cautious
person is certainly without cogent basis. A reasonably prudent person would have foreseen that
bringing children to an excavation site, and more so, leaving them there all by themselves, may
result in an accident. An ordinarily careful human being would not assume that a simple warning
"not to touch the stone" is sufficient to cast away all the serious danger that a huge concrete
block adjacent to an excavation would present to the children. Moreover, a teacher who stands
in loco parentis to his pupils would have made sure that the children are protected from all harm
in his company.

We close by categorically stating that a truly careful and cautious person would have acted in all
contrast to the way private respondent Aquino did. Were it not for his gross negligence, the
unfortunate incident would not have occurred and the child Ylarde would probably be alive today,
a grown- man of thirty-five. Due to his failure to take the necessary precautions to avoid the
hazard, Ylarde's parents suffered great anguish all these years.

WHEREFORE, in view of the foregoing, the petition is hereby GRANTED and the questioned
judgment of the respondent court is REVERSED and SET ASIDE and another judgment is
hereby rendered ordering private respondent Edagardo Aquino to pay petitioners the following:

(1) Indemnity for the death of Child Ylarde P30,000.00

(2) Exemplary damages 10,000.00

(3) Moral damages 20,000.00

SO ORDERED.
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.

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.

DAVIDE, JR., 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 decision of the Court of Appeals in C.A. G.R. No. CV 37937 and
1

the resolution denying their motion for reconsideration. The assailed decision set aside the 15
2

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 attorney's fees to private respondents
Conrado and Criselda (CRISELDA) Aguilar.
Petitioner Jarco Marketing Corporation is the owner of Syvel's Department Store, Makati City.
Petitioners Leonardo Kong, Jose Tiope and Elisa Panelo are the store's 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 Syvel's
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 store's 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. 3

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. 4

The cause of her death was attributed to the injuries she sustained. The provisional medical
certificate issued by ZHIENETH's attending doctor described the extent of her injuries:
5

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 expenses which they
6

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 attorney's 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 attorney's fees in their favor.

In its decision the trial court dismissed the complaint and counterclaim after finding that the
7

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 CRISELDA's negligence
contributed to ZHIENETH's 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. The counter was higher than ZHIENETH. It has been in existence for
8

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 ZHIENETH's 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 store's 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." Accordingly, Gonzales' testimony on ZHIENETH's
9

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 ZHIENETH's
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 ZHIENETH's 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 court's rejection of Gonzales'
testimony as unworthy of credence.

As to private respondent's 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 case for homicide through simple negligence filed by private
10

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 "L" with a top wider than the base.
11

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. It denied an award for funeral expenses for lack of proof to substantiate
12

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, thus:

13

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 attorney's fees;

and

5. Costs.

Private respondents sought a reconsideration of the decision but the same was denied in the
Court of Appeals' resolution of 16 July 1997.
14
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 ZHIENETH's act of clinging to the counter. This act in turn caused the counter to fall
on her. This and CRISELDA's 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 Syvel's 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 hospital's emergency room
should receive credence; and finally, ZHIENETH's 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. It is "a fortuitous circumstance, event or happening; an event happening without any
15

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." 16

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. Negligence is "the
17

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." 18

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. 19

The test in determining the existence of negligence is enunciated in the landmark case of Plicart
v. Smith, thus: Did the defendant in doing the alleged negligent act use that reasonable care
20

and caution which an ordinarily prudent person would have used in the same situation? If not,
then he is guilty of negligence.
21

We rule that the tragedy which befell ZHIENETH was no accident and that ZHIENETH's 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." 22

This testimony of Gonzales pertaining to ZHIENETH's 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. All that is required for their
23

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 counter's 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 not nailed and it was only standing on the
floor, it was shaky.

xxx xxx xxx

 Q Will you please describe the counter at 5:00 o'clock [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 xxx 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. [Emphasis supplied]
24

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 xxx 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 xxx 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 xxx xxx

Witness:

None, sir. They never nailed the counter. They only nailed the
counter after the accident happened. [Emphasis supplied]
25

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 store's 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
former's testimonies were biased and tainted with partiality. Therefore, the allegation that
Gonzales and Guevarra's 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. However, the rule admits of exceptions such as
26

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. In the instant
27

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, former Judge Cezar S. Sangco stated:
28

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 evidence on record reveal otherwise, i.e., it was not durable after all. Shaped
29

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. 30

CRISELDA too, should be absolved from any contributory negligence. Initially, ZHIENETH held
on to CRISELDA's waist, later to the latter's hand. CRISELDA momentarily released the child's
31

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. The time and distance were both
32

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.

G.R. No. 124354 December 29, 1999

ROGELIO E. RAMOS and ERLINDA RAMOS, in their own behalf and as natural guardians
of the minors, ROMMEL RAMOS, ROY RODERICK RAMOS and RON RAYMOND
RAMOS, petitioners,
vs.
COURT OF APPEALS, DELOS SANTOS MEDICAL CENTER, DR. ORLINO HOSAKA and
DRA. PERFECTA GUTIERREZ, respondents.

KAPUNAN, J.:

The Hippocratic Oath mandates physicians to give primordial consideration to the health and
welfare of their patients. If a doctor fails to live up to this precept, he is made accountable for his
acts. A mistake, through gross negligence or incompetence or plain human error, may spell the
difference between life and death. In this sense, the doctor plays God on his patient's fate. 1

In the case at bar, the Court is called upon to rule whether a surgeon, an anesthesiologist and a
hospital should be made liable for the unfortunate comatose condition of a patient scheduled for
cholecystectomy. 2

Petitioners seek the reversal of the decision of the Court of Appeals, dated 29 May 1995, which
3

overturned the decision of the Regional Trial Court, dated 30 January 1992, finding private
4

respondents liable for damages arising from negligence in the performance of their professional
duties towards petitioner Erlinda Ramos resulting in her comatose condition.

The antecedent facts as summarized by the trial court are reproduced hereunder:
Plaintiff Erlinda Ramos was, until the afternoon of June 17, 1985, a 47-year old
(Exh. "A") robust woman (TSN, October 19, 1989, p. 10). Except for occasional
complaints of discomfort due to pains allegedly caused by the presence of a
stone in her gall bladder (TSN, January 13, 1988, pp. 4-5), she was as normal as
any other woman. Married to Rogelio E. Ramos, an executive of Philippine Long
Distance Telephone Company, she has three children whose names are Rommel
Ramos, Roy Roderick Ramos and Ron Raymond Ramos (TSN, October 19,
1989, pp. 5-6).

Because the discomforts somehow interfered with her normal ways, she sought
professional advice. She was advised to undergo an operation for the removal of
a stone in her gall bladder (TSN, January 13, 1988, p. 5). She underwent a series
of examinations which included blood and urine tests (Exhs. "A" and "C") which
indicated she was fit for surgery.

Through the intercession of a mutual friend, Dr. Buenviaje (TSN, January 13,
1988, p. 7), she and her husband Rogelio met for the first time Dr. Orlino Hozaka
(should be Hosaka; see TSN, February 20, 1990, p. 3), one of the defendants in
this case, on June 10, 1985. They agreed that their date at the operating table at
the DLSMC (another defendant), would be on June 17, 1985 at 9:00 A.M.. Dr.
Hosaka decided that she should undergo a "cholecystectomy" operation after
examining the documents (findings from the Capitol Medical Center, FEU
Hospital and DLSMC) presented to him. Rogelio E. Ramos, however, asked Dr.
Hosaka to look for a good anesthesiologist. Dr. Hosaka, in turn, assured Rogelio
that he will get a good anesthesiologist. Dr. Hosaka charged a fee of P16,000.00,
which was to include the anesthesiologist's fee and which was to be paid after the
operation (TSN, October 19, 1989, pp. 14-15, 22-23, 31-33; TSN, February 27,
1990, p. 13; and TSN, November 9, 1989, pp. 3-4, 10, 17).

A day before the scheduled date of operation, she was admitted at one of the
rooms of the DLSMC, located along E. Rodriguez Avenue, Quezon City (TSN,
October 19,1989, p. 11).

At around 7:30 A.M. of June 17, 1985 and while still in her room, she was
prepared for the operation by the hospital staff. Her sister-in-law, Herminda Cruz,
who was the Dean of the College of Nursing at the Capitol Medical Center, was
also there for moral support. She reiterated her previous request for Herminda to
be with her even during the operation. After praying, she was given injections.
Her hands were held by Herminda as they went down from her room to the
operating room (TSN, January 13, 1988, pp. 9-11). Her husband, Rogelio, was
also with her (TSN, October 19, 1989, p. 18). At the operating room, Herminda
saw about two or three nurses and Dr. Perfecta Gutierrez, the other defendant,
who was to administer anesthesia. Although not a member of the hospital staff,
Herminda introduced herself as Dean of the College of Nursing at the Capitol
Medical Center who was to provide moral support to the patient, to them.
Herminda was allowed to stay inside the operating room.

At around 9:30 A.M., Dr. Gutierrez reached a nearby phone to look for Dr.
Hosaka who was not yet in (TSN, January 13, 1988, pp. 11-12). Dr. Gutierrez
thereafter informed Herminda Cruz about the prospect of a delay in the arrival of
Dr. Hosaka. Herminda then went back to the patient who asked, "Mindy, wala pa
ba ang Doctor"? The former replied, "Huwag kang mag-alaala, darating na iyon"
(Ibid.).

Thereafter, Herminda went out of the operating room and informed the patient's
husband, Rogelio, that the doctor was not yet around (id., p. 13). When she
returned to the operating room, the patient told her, "Mindy, inip na inip na ako,
ikuha mo ako ng ibang Doctor." So, she went out again and told Rogelio about
what the patient said (id., p. 15). Thereafter, she returned to the operating room.

At around 10:00 A.M., Rogelio E. Ramos was "already dying [and] waiting for the
arrival of the doctor" even as he did his best to find somebody who will allow him
to pull out his wife from the operating room (TSN, October 19, 1989, pp. 19-20).
He also thought of the feeling of his wife, who was inside the operating room
waiting for the doctor to arrive (ibid.). At almost 12:00 noon, he met Dr. Garcia
who remarked that he (Dr. Garcia) was also tired of waiting for Dr. Hosaka to
arrive (id., p. 21). While talking to Dr. Garcia at around 12:10 P.M., he came to
know that Dr. Hosaka arrived as a nurse remarked, "Nandiyan na si Dr. Hosaka,
dumating na raw." Upon hearing those words, he went down to the lobby and
waited for the operation to be completed (id., pp. 16, 29-30).

At about 12:15 P.M., Herminda Cruz, who was inside the operating room with the
patient, heard somebody say that "Dr. Hosaka is already here." She then saw
people inside the operating room "moving, doing this and that, [and] preparing the
patient for the operation" (TSN, January 13, 1988, p. 16). As she held the hand of
Erlinda Ramos, she then saw Dr. Gutierrez intubating the hapless patient. She
thereafter heard Dr. Gutierrez say, "ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan" (id., p. 17). Because of the remarks of Dra.
Gutierrez, she focused her attention on what Dr. Gutierrez was doing. She
thereafter noticed bluish discoloration of the nailbeds of the left hand of the
hapless Erlinda even as Dr. Hosaka approached her. She then heard Dr. Hosaka
issue an order for someone to call Dr. Calderon, another anesthesiologist (id., p.
19). After Dr. Calderon arrived at the operating room, she saw this
anesthesiologist trying to intubate the patient. The patient's nailbed became
bluish and the patient was placed in a trendelenburg position — a position where
the head of the patient is placed in a position lower than her feet which is an
indication that there is a decrease of blood supply to the patient's brain (Id., pp.
19-20). Immediately thereafter, she went out of the operating room, and she told
Rogelio E. Ramos "that something wrong was . . . happening" (Ibid.). Dr.
Calderon was then able to intubate the patient (TSN, July 25, 1991, p. 9).

Meanwhile, Rogelio, who was outside the operating room, saw a respiratory
machine being rushed towards the door of the operating room. He also saw
several doctors rushing towards the operating room. When informed by Herminda
Cruz that something wrong was happening, he told her (Herminda) to be back
with the patient inside the operating room (TSN, October 19, 1989, pp. 25-28).

Herminda Cruz immediately rushed back, and saw that the patient was still in
trendelenburg position (TSN, January 13, 1988, p. 20). At almost 3:00 P.M. of
that fateful day, she saw the patient taken to the Intensive Care Unit (ICU).

About two days thereafter, Rogelio E. Ramos was able to talk to Dr. Hosaka. The
latter informed the former that something went wrong during the intubation.
Reacting to what was told to him, Rogelio reminded the doctor that the condition
of his wife would not have happened, had he (Dr. Hosaka) looked for a good
anesthesiologist (TSN, October 19, 1989, p. 31).

Doctors Gutierrez and Hosaka were also asked by the hospital to explain what
happened to the patient. The doctors explained that the patient had
bronchospasm (TSN, November 15, 1990, pp. 26-27).
 Erlinda Ramos stayed at the ICU for a month. About four months thereafter or on
November 15, 1985, the patient was released from the hospital.

During the whole period of her confinement, she incurred hospital bills amounting
to P93,542.25 which is the subject of a promissory note and affidavit of
undertaking executed by Rogelio E. Ramos in favor of DLSMC. Since that fateful
afternoon of June 17, 1985, she has been in a comatose condition. She cannot
do anything. She cannot move any part of her body. She cannot see or hear. She
is living on mechanical means. She suffered brain damage as a result of the
absence of oxygen in her brain for four to five minutes (TSN, November 9, 1989,
pp. 21-22). After being discharged from the hospital, she has been staying in their
residence, still needing constant medical attention, with her husband Rogelio
incurring a monthly expense ranging from P8,000.00 to P10,000.00 (TSN,
October 19, 1989, pp. 32-34). She was also diagnosed to be suffering from
"diffuse cerebral parenchymal damage" (Exh. "G"; see also TSN, December 21,
1989,
p. 6).5

Thus, on 8 January 1986, petitioners filed a civil case for damages with the Regional Trial Court
6

of Quezon City against herein private respondents alleging negligence in the management and
care of Erlinda Ramos.

During the trial, both parties presented evidence as to the possible cause of Erlinda's injury.
Plaintiff presented the testimonies of Dean Herminda Cruz and Dr. Mariano Gavino to prove that
the sustained by Erlinda was due to lack of oxygen in her brain caused by the faulty
management of her airway by private respondents during the anesthesia phase. On the other
hand, private respondents primarily relied on the expert testimony of Dr. Eduardo Jamora, a
pulmonologist, to the effect that the cause of brain damage was Erlinda's allergic reaction to the
anesthetic agent, Thiopental Sodium (Pentothal).

After considering the evidence from both sides, the Regional Trial Court rendered judgment in
favor of petitioners, to wit:

After evaluating the evidence as shown in the finding of facts set forth earlier, and
applying the aforecited provisions of law and jurisprudence to the case at bar, this
Court finds and so holds that defendants are liable to plaintiffs for damages. The
defendants were guilty of, at the very least, negligence in the performance of their
duty to plaintiff-patient Erlinda Ramos.

On the part of Dr. Perfecta Gutierrez, this Court finds that she omitted to exercise
reasonable care in not only intubating the patient, but also in not repeating the
administration of atropine (TSN, August 20, 1991, pp. 5-10), without due regard
to the fact that the patient was inside the operating room for almost three (3)
hours. For after she committed a mistake in intubating [the] patient, the patient's
nailbed became bluish and the patient, thereafter, was placed in trendelenburg
position, because of the decrease of blood supply to the patient's brain. The
evidence further shows that the hapless patient suffered brain damage because
of the absence of oxygen in her (patient's) brain for approximately four to five
minutes which, in turn, caused the patient to become comatose.

On the part of Dr. Orlino Hosaka, this Court finds that he is liable for the acts of
Dr. Perfecta Gutierrez whom he had chosen to administer anesthesia on the
patient as part of his obligation to provide the patient a good anesthesiologist',
and for arriving for the scheduled operation almost three (3) hours late.
 On the part of DLSMC (the hospital), this Court finds that it is liable for the acts of
negligence of the doctors in their "practice of medicine" in the operating room.
Moreover, the hospital is liable for failing through its responsible officials, to
cancel the scheduled operation after Dr. Hosaka inexcusably failed to arrive on
time.

In having held thus, this Court rejects the defense raised by defendants that they
have acted with due care and prudence in rendering medical services to plaintiff-
patient. For if the patient was properly intubated as claimed by them, the patient
would not have become comatose. And, the fact that another anesthesiologist
was called to try to intubate the patient after her (the patient's) nailbed turned
bluish, belie their claim. Furthermore, the defendants should have rescheduled
the operation to a later date. This, they should have done, if defendants acted
with due care and prudence as the patient's case was an elective, not an
emergency case.

xxx xxx xxx

WHEREFORE, and in view of the foregoing, judgment is rendered in favor of the

plaintiffs and against the defendants. Accordingly, the latter are ordered to pay,
jointly and severally, the former the following sums of money, to wit:

1) the sum of P8,000.00 as actual monthly expenses for the

plaintiff Erlinda Ramos reckoned from November 15, 1985 or in
the total sum of P632,000.00 as of April 15, 1992, subject to its
being updated;

2) the sum of P100,000.00 as reasonable attorney's fees;

3) the sum of P800,000.00 by way of moral damages and the

further sum of P200,000,00 by way of exemplary damages; and,

4) the costs of the suit.

SO ORDERED. 7

Private respondents seasonably interposed an appeal to the Court of Appeals. The appellate
court rendered a Decision, dated 29 May 1995, reversing the findings of the trial court. The
decretal portion of the decision of the appellate court reads:

WHEREFORE, for the foregoing premises the appealed decision is hereby

REVERSED, and the complaint below against the appellants is hereby ordered
DISMISSED. The counterclaim of appellant De Los Santos Medical Center is
GRANTED but only insofar as appellees are hereby ordered to pay the unpaid
hospital bills amounting to P93,542.25, plus legal interest for justice must be
tempered with mercy.

SO ORDERED. 8

The decision of the Court of Appeals was received on 9 June 1995 by petitioner Rogelio Ramos
who was mistakenly addressed as "Atty. Rogelio Ramos." No copy of the decision, however, was
sent nor received by the Coronel Law Office, then counsel on record of petitioners. Rogelio
referred the decision of the appellate court to a new lawyer, Atty. Ligsay, only on 20 June 1995,
or four (4) days before the expiration of the reglementary period for filing a motion for
reconsideration. On the same day, Atty. Ligsay, filed with the appellate court a motion for
extension of time to file a motion for reconsideration. The motion for reconsideration was
submitted on 4 July 1995. However, the appellate court denied the motion for extension of time in
its Resolution dated 25 July 1995. Meanwhile, petitioners engaged the services of another
9

counsel, Atty. Sillano, to replace Atty. Ligsay. Atty. Sillano filed on 7 August 1995 a motion to
admit the motion for reconsideration contending that the period to file the appropriate pleading on
the assailed decision had not yet commenced to run as the Division Clerk of Court of the Court of
Appeals had not yet served a copy thereof to the counsel on record. Despite this explanation, the
appellate court still denied the motion to admit the motion for reconsideration of petitioners in its
Resolution, dated 29 March 1996, primarily on the ground that the fifteen-day (15) period for filing
a motion for reconsideration had already expired, to wit:

We said in our Resolution on July 25, 1995, that the filing of a Motion for
Reconsideration cannot be extended; precisely, the Motion for Extension (Rollo,
p. 12) was denied. It is, on the other hand, admitted in the latter Motion that
plaintiffs/appellees received a copy of the decision as early as June 9, 1995.
Computation wise, the period to file a Motion for Reconsideration expired on June
24. The Motion for Reconsideration, in turn, was received by the Court of Appeals
already on July 4, necessarily, the 15-day period already passed. For that alone,
the latter should be denied.

Even assuming admissibility of the Motion for the Reconsideration, but after
considering the Comment/Opposition, the former, for lack of merit, is hereby
DENIED.

SO ORDERED. 10

A copy of the above resolution was received by Atty. Sillano on 11 April 1996. The next day, or
on 12 April 1996, Atty. Sillano filed before this Court a motion for extension of time to file the
present petition for certiorari under Rule 45. The Court granted the motion for extension of time
and gave petitioners additional thirty (30) days after the expiration of the fifteen-day (15) period
counted from the receipt of the resolution of the Court of Appeals within which to submit the
petition. The due date fell on 27 May 1996. The petition was filed on 9 May 1996, well within the
extended period given by the Court.

Petitioners assail the decision of the Court of Appeals on the following grounds:

IN PUTTING MUCH RELIANCE ON THE TESTIMONIES OF RESPONDENTS

DRA. GUTIERREZ, DRA. CALDERON AND DR. JAMORA;

II

IN FINDING THAT THE NEGLIGENCE OF THE RESPONDENTS DID NOT

CAUSE THE UNFORTUNATE COMATOSE CONDITION OF PETITIONER
ERLINDA RAMOS;

III

IN NOT APPLYING THE DOCTRINE OF RES IPSA LOQUITUR. 11

Before we discuss the merits of the case, we shall first dispose of the procedural issue on the
timeliness of the petition in relation to the motion for reconsideration filed by petitioners with the
Court of Appeals. In their
Comment, private respondents contend that the petition should not be given due course since
12
the motion for reconsideration of the petitioners on the decision of the Court of Appeals was
validly dismissed by the appellate court for having been filed beyond the reglementary period.
We do not agree.

A careful review of the records reveals that the reason behind the delay in filing the motion for
reconsideration is attributable to the fact that the decision of the Court of Appeals was not sent to
then counsel on record of petitioners, the Coronel Law Office. In fact, a copy of the decision of
the appellate court was instead sent to and received by petitioner Rogelio Ramos on 9 June
1995 wherein he was mistakenly addressed as Atty. Rogelio Ramos. Based on the other
communications received by petitioner Rogelio Ramos, the appellate court apparently mistook
him for the counsel on record. Thus, no copy of the decision of the counsel on record. Petitioner,
not being a lawyer and unaware of the prescriptive period for filing a motion for reconsideration,
referred the same to a legal counsel only on 20 June 1995.

It is elementary that when a party is represented by counsel, all notices should be sent to the
party's lawyer at his given address. With a few exceptions, notice to a litigant without notice to his
counsel on record is no notice at all. In the present case, since a copy of the decision of the
appellate court was not sent to the counsel on record of petitioner, there can be no sufficient
notice to speak of. Hence, the delay in the filing of the motion for reconsideration cannot be taken
against petitioner. Moreover, since the Court of Appeals already issued a second Resolution,
dated 29 March 1996, which superseded the earlier resolution issued on 25 July 1995, and
denied the motion for reconsideration of petitioner, we believed that the receipt of the former
should be considered in determining the timeliness of the filing of the present petition. Based on
this, the petition before us was submitted on time.

After resolving the foregoing procedural issue, we shall now look into the merits of the case. For
a more logical presentation of the discussion we shall first consider the issue on the applicability
of the doctrine of res ipsa loquitur to the instant case. Thereafter, the first two assigned errors
shall be tackled in relation to the res ipsa loquitur doctrine.

Res ipsa loquitur is a Latin phrase which literally means "the thing or the transaction speaks for
itself." The phrase "res ipsa loquitur'' is a maxim for the rule that the fact of the occurrence of an
injury, taken with the surrounding circumstances, may permit an inference or raise a presumption
of negligence, or make out a plaintiff's prima facie case, and present a question of fact for
defendant to meet with an explanation. Where the thing which caused the injury complained of
13

is shown to be under the management of the defendant or his servants and the accident is such
as in ordinary course of things does not happen if those who have its management or control use
proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that
the accident arose from or was caused by the defendant's want of care. 14

The doctrine of res ipsa loquitur is simply a recognition of the postulate that, as a matter of
common knowledge and experience, the very nature of certain types of occurrences may justify
an inference of negligence on the part of the person who controls the instrumentality causing the
injury in the absence of some explanation by the defendant who is charged with negligence. It 15

is grounded in the superior logic of ordinary human experience and on the basis of such
experience or common knowledge, negligence may be deduced from the mere occurrence of the
accident itself. Hence, res ipsa loquitur is applied in conjunction with the doctrine of common
16

knowledge.

However, much has been said that res ipsa loquitur is not a rule of substantive law and, as such,
does not create or constitute an independent or separate ground of liability. Instead, it is
17

considered as merely evidentiary or in the nature of a procedural rule. It is regarded as a mode

18

of proof, or a mere procedural of convenience since it furnishes a substitute for, and relieves a
plaintiff of, the burden of producing specific proof of negligence. In other words, mere
19

invocation and application of the doctrine does not dispense with the requirement of proof of
negligence. It is simply a step in the process of such proof, permitting the plaintiff to present
along with the proof of the accident, enough of the attending circumstances to invoke the
doctrine, creating an inference or presumption of negligence, and to thereby place on the
defendant the burden of going forward with the proof. Still, before resort to the doctrine may be
20

allowed, the following requisites must be satisfactorily shown:

1. The accident is of a kind which ordinarily does not occur in the

absence of someone's negligence;

2. It is caused by an instrumentality within the exclusive control of

the defendant or defendants; and

3. The possibility of contributing conduct which would make the

plaintiff responsible is eliminated. 21

In the above requisites, the fundamental element is the "control of instrumentality" which caused
the damage. Such element of control must be shown to be within the dominion of the
22

defendant. In order to have the benefit of the rule, a plaintiff, in addition to proving injury or
damage, must show a situation where it is applicable, and must establish that the essential
elements of the doctrine were present in a particular incident. 23

Medical malpractice cases do not escape the application of this doctrine. Thus, res ipsa
24

loquitur has been applied when the circumstances attendant upon the harm are themselves of
such a character as to justify an inference of negligence as the cause of that harm. The 25

application of res ipsa loquitur in medical negligence cases presents a question of law since it is
a judicial function to determine whether a certain set of circumstances does, as a matter of law,
permit a given inference. 26

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a
physician has done a negligent act or that he has deviated from the standard medical procedure,
when the doctrine of res ipsa loquitur is availed by the plaintiff, the need for expert medical
testimony is dispensed with because the injury itself provides the proof of negligence. The 27

reason is that the general rule on the necessity of expert testimony applies only to such matters
clearly within the domain of medical science, and not to matters that are within the common
knowledge of mankind which may be testified to by anyone familiar with the facts. Ordinarily,28

only physicians and surgeons of skill and experience are competent to testify as to whether a
patient has been treated or operated upon with a reasonable degree of skill and care. However,
testimony as to the statements and acts of physicians and surgeons, external appearances, and
manifest conditions which are observable by any one may be given by non-expert
witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to
29

find a physician negligent upon proper proof of injury to the patient, without the aid of expert
testimony, where the court from its fund of common knowledge can determine the proper
standard of care. Where common knowledge and experience teach that a resulting injury would
30

not have occurred to the patient if due care had been exercised, an inference of negligence may
be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical
evidence, which is ordinarily required to show not only what occurred but how and why it
occurred. When the doctrine is appropriate, all that the patient must do is prove a nexus
31

between the particular act or omission complained of and the injury sustained while under the
custody and management of the defendant without need to produce expert medical testimony to
establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other
way, under usual and ordinary conditions, by which the patient can obtain redress for injury
suffered by him.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of
a foreign object in the body of the patient after an operation, injuries sustained on a healthy part
32

of the body which was not under, or in the area, of treatment, removal of the wrong part of the
33

body when another part was intended, knocking out a tooth while a patient's jaw was under
34
anesthetic for the removal of his tonsils, and loss of an eye while the patient plaintiff was under
35

the influence of anesthetic, during or following an operation for appendicitis, among others.
36

Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged,
it does not automatically apply to all cases of medical negligence as to mechanically shift the
burden of proof to the defendant to show that he is not guilty of the ascribed negligence. Res
ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be cautiously
applied, depending upon the circumstances of each case. It is generally restricted to situations in
malpractice cases where a layman is able to say, as a matter of common knowledge and
observation, that the consequences of professional care were not as such as would ordinarily
have followed if due care had been
exercised. A distinction must be made between the failure to secure results, and the
37

occurrence of something more unusual and not ordinarily found if the service or treatment
rendered followed the usual procedure of those skilled in that particular practice. It must be
conceded that the doctrine of res ipsa loquitur can have no application in a suit against a
physician or surgeon which involves the merits of a diagnosis or of a scientific treatment. The
38

physician or surgeon is not required at his peril to explain why any particular diagnosis was not
correct, or why any particular scientific treatment did not produce the desired result. Thus, res
39

ipsa loquitur is not available in a malpractice suit if the only showing is that the desired result of
an operation or treatment was not accomplished. The real question, therefore, is whether or not
40

in the process of the operation any extraordinary incident or unusual event outside of the routine
performance occurred which is beyond the regular scope of customary professional activity in
such operations, which, if unexplained would themselves reasonably speak to the average man
as the negligent cause or causes of the untoward consequence. If there was such extraneous
41

interventions, the doctrine of res ipsa loquitur may be utilized and the defendant is called upon to
explain the matter, by evidence of exculpation, if he could. 42

We find the doctrine of res ipsa loquitur appropriate in the case at bar. As will hereinafter be
explained, the damage sustained by Erlinda in her brain prior to a scheduled gall bladder
operation presents a case for the application of res ipsa loquitur.

A case strikingly similar to the one before us is Voss vs. Bridwell, where the Kansas Supreme
43

Court in applying the res ipsa loquitur stated:

The plaintiff herein submitted himself for a mastoid operation and delivered his
person over to the care, custody and control of his physician who had complete
and exclusive control over him, but the operation was never performed. At the
time of submission he was neurologically sound and physically fit in mind and
body, but he suffered irreparable damage and injury rendering him decerebrate
and totally incapacitated. The injury was one which does not ordinarily occur in
the process of a mastoid operation or in the absence of negligence in the
administration of an anesthetic, and in the use and employment of an
endoctracheal tube. Ordinarily a person being put under anesthesia is not
rendered decerebrate as a consequence of administering such anesthesia in the
absence of negligence. Upon these facts and under these circumstances a
layman would be able to say, as a matter of common knowledge and
observation, that the consequences of professional treatment were not as such
as would ordinarily have followed if due care had been exercised.

Here the plaintiff could not have been guilty of contributory negligence because
he was under the influence of anesthetics and unconscious, and the
circumstances are such that the true explanation of event is more accessible to
the defendants than to the plaintiff for they had the exclusive control of the
instrumentalities of anesthesia.
 Upon all the facts, conditions and circumstances alleged in Count II it is held that
a cause of action is stated under the doctrine of res ipsa loquitur.44

Indeed, the principles enunciated in the aforequoted case apply with equal force here. In the
present case, Erlinda submitted herself for cholecystectomy and expected a routine general
surgery to be performed on her gall bladder. On that fateful day she delivered her person over to
the care, custody and control of private respondents who exercised complete and exclusive
control over her. At the time of submission, Erlinda was neurologically sound and, except for a
few minor discomforts, was likewise physically fit in mind and body. However, during the
administration of anesthesia and prior to the performance of cholecystectomy she suffered
irreparable damage to her brain. Thus, without undergoing surgery, she went out of the operating
room already decerebrate and totally incapacitated. Obviously, brain damage, which Erlinda
sustained, is an injury which does not normally occur in the process of a gall bladder operation.
In fact, this kind of situation does not in the absence of negligence of someone in the
administration of anesthesia and in the use of endotracheal tube. Normally, a person being put
under anesthesia is not rendered decerebrate as a consequence of administering such
anesthesia if the proper procedure was followed. Furthermore, the instruments used in the
administration of anesthesia, including the endotracheal tube, were all under the exclusive
control of private respondents, who are the physicians-in-charge. Likewise, petitioner Erlinda
could not have been guilty of contributory negligence because she was under the influence of
anesthetics which rendered her unconscious.

Considering that a sound and unaffected member of the body (the brain) is injured or destroyed
while the patient is unconscious and under the immediate and exclusive control of the
physicians, we hold that a practical administration of justice dictates the application of res ipsa
loquitur. Upon these facts and under these circumstances the Court would be able to say, as a
matter of common knowledge and observation, if negligence attended the management and care
of the patient. Moreover, the liability of the physicians and the hospital in this case is not
predicated upon an alleged failure to secure the desired results of an operation nor on an alleged
lack of skill in the diagnosis or treatment as in fact no operation or treatment was ever performed
on Erlinda. Thus, upon all these initial determination a case is made out for the application of the
doctrine of res ipsa loquitur.

Nonetheless, in holding that res ipsa loquitur is available to the present case we are not saying
that the doctrine is applicable in any and all cases where injury occurs to a patient while under
anesthesia, or to any and all anesthesia cases. Each case must be viewed in its own light and
scrutinized in order to be within the res ipsa loquitur coverage.

Having in mind the applicability of the res ipsa loquitur doctrine and the presumption of
negligence allowed therein, the Court now comes to the issue of whether the Court of Appeals
erred in finding that private respondents were not negligent in the care of Erlinda during the
anesthesia phase of the operation and, if in the affirmative, whether the alleged negligence was
the proximate cause of Erlinda's comatose condition. Corollary thereto, we shall also determine if
the Court of Appeals erred in relying on the testimonies of the witnesses for the private
respondents.

In sustaining the position of private respondents, the Court of Appeals relied on the testimonies
of Dra. Gutierrez, Dra. Calderon and Dr. Jamora. In giving weight to the testimony of Dra.
Gutierrez, the Court of Appeals rationalized that she was candid enough to admit that she
experienced some difficulty in the endotracheal intubation of the patient and thus, cannot be
45

said to be covering her negligence with falsehood. The appellate court likewise opined that
private respondents were able to show that the brain damage sustained by Erlinda was not
caused by the alleged faulty intubation but was due to the allergic reaction of the patient to the
drug Thiopental Sodium (Pentothal), a short-acting barbiturate, as testified on by their expert
witness, Dr. Jamora. On the other hand, the appellate court rejected the testimony of Dean
Herminda Cruz offered in favor of petitioners that the cause of the brain injury was traceable to
the wrongful insertion of the tube since the latter, being a nurse, was allegedly not
knowledgeable in the process of intubation. In so holding, the appellate court returned a verdict
in favor of respondents physicians and hospital and absolved them of any liability towards Erlinda
and her family.

We disagree with the findings of the Court of Appeals. We hold that private respondents were
unable to disprove the presumption of negligence on their part in the care of Erlinda and their
negligence was the proximate cause of her piteous condition.

In the instant case, the records are helpful in furnishing not only the logical scientific evidence of
the pathogenesis of the injury but also in providing the Court the legal nexus upon which liability
is based. As will be shown hereinafter, private respondents' own testimonies which are reflected
in the transcript of stenographic notes are replete of signposts indicative of their negligence in the
care and management of Erlinda.

With regard to Dra. Gutierrez, we find her negligent in the care of Erlinda during the anesthesia
phase. As borne by the records, respondent Dra. Gutierrez failed to properly intubate the patient.
This fact was attested to by Prof. Herminda Cruz, Dean of the Capitol Medical Center School of
Nursing and petitioner's sister-in-law, who was in the operating room right beside the patient
when the tragic event occurred. Witness Cruz testified to this effect:

ATTY. PAJARES:

Q: In particular, what did Dra. Perfecta Gutierrez do, if any on the

patient?

A: In particular, I could see that she was intubating the patient.

Q: Do you know what happened to that intubation process

administered by Dra. Gutierrez?

ATTY. ALCERA:

She will be incompetent Your Honor.

COURT:

Witness may answer if she knows.

A: As have said, I was with the patient, I was beside the stretcher
holding the left hand of the patient and all of a sudden heard
some remarks coming from Dra. Perfecta Gutierrez herself. She
was saying "Ang hirap ma-intubate nito, mali yata ang
pagkakapasok. O lumalaki ang tiyan.

xxx xxx xxx

ATTY. PAJARES:

Q: From whom did you hear those words "lumalaki ang tiyan"?

A: From Dra. Perfecta Gutierrez.

xxx xxx xxx

 Q: After hearing the phrase "lumalaki ang tiyan," what did you
notice on the person of the patient?

A: I notice (sic) some bluish discoloration on the nailbeds of the

left hand where I was at.

Q: Where was Dr. Orlino Ho[s]aka then at that particular time?

A: I saw him approaching the patient during that time.

Q: When he approached the patient, what did he do, if any?

A: He made an order to call on the anesthesiologist in the person

of Dr. Calderon.

Q: Did Dr. Calderon, upon being called, arrive inside the operating
room?

A: Yes sir.

Q: What did [s]he do, if any?

A: [S]he tried to intubate the patient.

Q: What happened to the patient?

A: When Dr. Calderon try (sic) to intubate the patient, after a while
the patient's nailbed became bluish and I saw the patient was
placed in trendelenburg position.

xxx xxx xxx

Q: Do you know the reason why the patient was placed in that
trendelenburg position?

A: As far as I know, when a patient is in that position, there is a

decrease of blood supply to the brain. 46

xxx xxx xxx

The appellate court, however, disbelieved Dean Cruz's testimony in the trial court by declaring
that:

A perusal of the standard nursing curriculum in our country will show that
intubation is not taught as part of nursing procedures and techniques. Indeed, we
take judicial notice of the fact that nurses do not, and cannot, intubate. Even on
the assumption that she is fully capable of determining whether or not a patient is
properly intubated, witness Herminda Cruz, admittedly, did not peep into the
throat of the patient. (TSN, July 25, 1991, p. 13). More importantly, there is no
evidence that she ever auscultated the patient or that she conducted any type of
examination to check if the endotracheal tube was in its proper place, and to
determine the condition of the heart, lungs, and other organs. Thus, witness
Cruz's categorical statements that appellant Dra. Gutierrez failed to intubate the
appellee Erlinda Ramos and that it was Dra. Calderon who succeeded in doing
so clearly suffer from lack of sufficient factual bases. 47
In other words, what the Court of Appeals is trying to impress is that being a nurse, and
considered a layman in the process of intubation, witness Cruz is not competent to testify on
whether or not the intubation was a success.

We do not agree with the above reasoning of the appellate court. Although witness Cruz is not an
anesthesiologist, she can very well testify upon matters on which she is capable of observing
such as, the statements and acts of the physician and surgeon, external appearances, and
manifest conditions which are observable by any one. This is precisely allowed under the
48

doctrine of res ipsa loquitur where the testimony of expert witnesses is not required. It is the
accepted rule that expert testimony is not necessary for the proof of negligence in non-technical
matters or those of which an ordinary person may be expected to have knowledge, or where the
lack of skill or want of care is so obvious as to render expert testimony unnecessary. We take
49

judicial notice of the fact that anesthesia procedures have become so common, that even an
ordinary person can tell if it was administered properly. As such, it would not be too difficult to tell
if the tube was properly inserted. This kind of observation, we believe, does not require a medical
degree to be acceptable.

At any rate, without doubt, petitioner's witness, an experienced clinical nurse whose long
experience and scholarship led to her appointment as Dean of the Capitol Medical Center School
at Nursing, was fully capable of determining whether or not the intubation was a success. She
had extensive clinical experience starting as a staff nurse in Chicago, Illinois; staff nurse and
clinical instructor in a teaching hospital, the FEU-NRMF; Dean of the Laguna College of Nursing
in San Pablo City; and then Dean of the Capitol Medical Center School of Nursing. Reviewing
50

witness Cruz' statements, we find that the same were delivered in a straightforward manner, with
the kind of detail, clarity, consistency and spontaneity which would have been difficult to
fabricate. With her clinical background as a nurse, the Court is satisfied that she was able to
demonstrate through her testimony what truly transpired on that fateful day.

Most of all, her testimony was affirmed by no less than respondent Dra. Gutierrez who admitted
that she experienced difficulty in inserting the tube into Erlinda's trachea, to wit:

ATTY. LIGSAY:

Q: In this particular case, Doctora, while you were intubating at

your first attempt (sic), you did not immediately see the trachea?

DRA. GUTIERREZ:

A: Yes sir.

Q: Did you pull away the tube immediately?

A: You do not pull the . . .

Q: Did you or did you not?

A: I did not pull the tube.

Q: When you said "mahirap yata ito," what were you referring to?

A: "Mahirap yata itong i-intubate," that was the patient.

Q: So, you found some difficulty in inserting the tube?

 A: Yes, because of (sic) my first attempt, I did not see right
away. 51

Curiously in the case at bar, respondent Dra. Gutierrez made the haphazard defense that she
encountered hardship in the insertion of the tube in the trachea of Erlinda because it was
positioned more anteriorly (slightly deviated from the normal anatomy of a person) making it
52

harder to locate and, since Erlinda is obese and has a short neck and protruding teeth, it made
intubation even more difficult.

The argument does not convince us. If this was indeed observed, private respondents adduced
no evidence demonstrating that they proceeded to make a thorough assessment of Erlinda's
airway, prior to the induction of anesthesia, even if this would mean postponing the procedure.
From their testimonies, it appears that the observation was made only as an afterthought, as a
means of defense.

The pre-operative evaluation of a patient prior to the administration of anesthesia is universally

observed to lessen the possibility of anesthetic accidents. Pre-operative evaluation and
preparation for anesthesia begins when the anesthesiologist reviews the patient's medical
records and visits with the patient, traditionally, the day before elective surgery. It includes
53

taking the patient's medical history, review of current drug therapy, physical examination and
interpretation of laboratory data. The physical examination performed by the anesthesiologist is
54

directed primarily toward the central nervous system, cardiovascular system, lungs and upper
airway. A thorough analysis of the patient's airway normally involves investigating the following:
55

cervical spine mobility, temporomandibular mobility, prominent central incisors, diseased or

artificial teeth, ability to visualize uvula and the thyromental distance. Thus, physical
56

characteristics of the patient's upper airway that could make tracheal intubation difficult should be
studied. Where the need arises, as when initial assessment indicates possible problems (such
57

as the alleged short neck and protruding teeth of Erlinda) a thorough examination of the patient's
airway would go a long way towards decreasing patient morbidity and mortality.

In the case at bar, respondent Dra. Gutierrez admitted that she saw Erlinda for the first time on
the day of the operation itself, on 17 June 1985. Before this date, no prior consultations with, or
pre-operative evaluation of Erlinda was done by her. Until the day of the operation, respondent
Dra. Gutierrez was unaware of the physiological make-up and needs of Erlinda. She was
likewise not properly informed of the possible difficulties she would face during the administration
of anesthesia to Erlinda. Respondent Dra. Gutierrez' act of seeing her patient for the first time
only an hour before the scheduled operative procedure was, therefore, an act of exceptional
negligence and professional irresponsibility. The measures cautioning prudence and vigilance in
dealing with human lives lie at the core of the physician's centuries-old Hippocratic Oath. Her
failure to follow this medical procedure is, therefore, a clear indicia of her negligence.

Respondent Dra. Gutierrez, however, attempts to gloss over this omission by playing around with
the trial court's ignorance of clinical procedure, hoping that she could get away with it.
Respondent Dra. Gutierrez tried to muddle the difference between an elective surgery and an
emergency surgery just so her failure to perform the required pre-operative evaluation would
escape unnoticed. In her testimony she asserted:

ATTY. LIGSAY:

Q: Would you agree, Doctor, that it is good medical practice to

see the patient a day before so you can introduce yourself to
establish good doctor-patient relationship and gain the trust and
confidence of the patient?

DRA. GUTIERREZ:
 A: As I said in my previous statement, it depends on the operative
procedure of the anesthesiologist and in my case, with elective
cases and normal cardio-pulmonary clearance like that, I usually
don't do it except on emergency and on cases that have an
abnormalities (sic). 58

However, the exact opposite is true. In an emergency procedure, there is hardly enough time
available for the fastidious demands of pre-operative procedure so that an anesthesiologist is
able to see the patient only a few minutes before surgery, if at all. Elective procedures, on the
other hand, are operative procedures that can wait for days, weeks or even months. Hence, in
these cases, the anesthesiologist possesses the luxury of time to be at the patient's beside to do
a proper interview and clinical evaluation. There is ample time to explain the method of
anesthesia, the drugs to be used, and their possible hazards for purposes of informed consent.
Usually, the pre-operative assessment is conducted at least one day before the intended
surgery, when the patient is relaxed and cooperative.

Erlinda's case was elective and this was known to respondent Dra. Gutierrez. Thus, she had all
the time to make a thorough evaluation of Erlinda's case prior to the operation and prepare her
for anesthesia. However, she never saw the patient at the bedside. She herself admitted that she
had seen petitioner only in the operating room, and only on the actual date of the
cholecystectomy. She negligently failed to take advantage of this important opportunity. As such,
her attempt to exculpate herself must fail.

Having established that respondent Dra. Gutierrez failed to perform pre-operative evaluation of
the patient which, in turn, resulted to a wrongful intubation, we now determine if the faulty
intubation is truly the proximate cause of Erlinda's comatose condition.

Private respondents repeatedly hammered the view that the cerebral anoxia which led to
Erlinda's coma was due to bronchospasm mediated by her allergic response to the drug,
59

Thiopental Sodium, introduced into her system. Towards this end, they presented Dr. Jamora, a
Fellow of the Philippine College of Physicians and Diplomate of the Philippine Specialty Board of
Internal Medicine, who advanced private respondents' theory that the oxygen deprivation which
led to anoxic encephalopathy, was due to an unpredictable drug reaction to the short-acting
60

barbiturate. We find the theory of private respondents unacceptable.

First of all, Dr. Jamora cannot be considered an authority in the field of anesthesiology simply
because he is not an anesthesiologist. Since Dr. Jamora is a pulmonologist, he could not have
been capable of properly enlightening the court about anesthesia practice and procedure and
their complications. Dr. Jamora is likewise not an allergologist and could not therefore properly
advance expert opinion on allergic-mediated processes. Moreover, he is not a pharmacologist
and, as such, could not have been capable, as an expert would, of explaining to the court the
pharmacologic and toxic effects of the supposed culprit, Thiopental Sodium (Pentothal).

The inappropriateness and absurdity of accepting Dr. Jamora's testimony as an expert witness in
the anesthetic practice of Pentothal administration is further supported by his own admission that
he formulated his opinions on the drug not from the practical experience gained by a specialist or
expert in the administration and use of Sodium Pentothal on patients, but only from reading
certain references, to wit:

ATTY. LIGSAY:

Q: In your line of expertise on pulmonology, did you have any

occasion to use pentothal as a method of management?

DR. JAMORA:
 A: We do it in conjunction with the anesthesiologist when they
have to intubate our patient.

Q: But not in particular when you practice pulmonology?

A: No.

Q: In other words, your knowledge about pentothal is based only

on what you have read from books and not by your own personal
application of the medicine pentothal?

A: Based on my personal experience also on pentothal.

Q: How many times have you used pentothal?

A: They used it on me. I went into bronchospasm during my

appendectomy.

Q: And because they have used it on you and on account of your

own personal experience you feel that you can testify on
pentothal here with medical authority?

A: No. That is why I used references to support my claims. 61

An anesthetic accident caused by a rare drug-induced bronchospasm properly falls within the
fields of anesthesia, internal medicine-allergy, and clinical pharmacology. The resulting anoxic
encephalopathy belongs to the field of neurology. While admittedly, many bronchospastic-
mediated pulmonary diseases are within the expertise of pulmonary medicine, Dr. Jamora's field,
the anesthetic drug-induced, allergic mediated bronchospasm alleged in this case is within the
disciplines of anesthesiology, allergology and pharmacology. On the basis of the foregoing
transcript, in which the pulmonologist himself admitted that he could not testify about the drug
with medical authority, it is clear that the appellate court erred in giving weight to Dr. Jamora's
testimony as an expert in the administration of Thiopental Sodium.

The provision in the rules of evidence regarding expert witnesses states:

62

Sec. 49. Opinion of expert witness. — The opinion of a witness on a matter

requiring special knowledge, skill, experience or training which he is shown to
possess, may be received in evidence.

Generally, to qualify as an expert witness, one must have acquired special knowledge of the
subject matter about which he or she is to testify, either by the study of recognized authorities on
the subject or by practical experience. Clearly, Dr. Jamora does not qualify as an expert
63

witness based on the above standard since he lacks the necessary knowledge, skill, and training
in the field of anesthesiology. Oddly, apart from submitting testimony from a specialist in the
wrong field, private respondents' intentionally avoided providing testimony by competent and
independent experts in the proper areas.

Moreover, private respondents' theory, that Thiopental Sodium may have produced Erlinda's
coma by triggering an allergic mediated response, has no support in evidence. No evidence of
stridor, skin reactions, or wheezing — some of the more common accompanying signs of an
allergic reaction — appears on record. No laboratory data were ever presented to the court.

In any case, private respondents themselves admit that Thiopental induced, allergic-mediated
bronchospasm happens only very rarely. If courts were to accept private respondents' hypothesis
without supporting medical proof, and against the weight of available evidence, then every
anesthetic accident would be an act of God. Evidently, the Thiopental-allergy theory vigorously
asserted by private respondents was a mere afterthought. Such an explanation was advanced in
order to advanced in order to absolve them of any and all responsibility for the patient's
condition.

In view of the evidence at hand, we are inclined to believe petitioners' stand that it was the faulty
intubation which was the proximate cause of Erlinda's comatose condition.

Proximate cause has been defined as that which, in natural and continuous sequence, unbroken
by any efficient intervening cause, produces injury, and without which the result would not have
occurred. An injury or damage is proximately caused by an act or a failure to act, whenever it
64

appears from the evidence in the case, that the act or omission played a substantial part in
bringing about or actually causing the injury or damage; and that the injury or damage was either
a direct result or a reasonably probable consequence of the act or omission. It is the dominant,
65

moving or producing cause.

Applying the above definition in relation to the evidence at hand, faulty intubation is undeniably
the proximate cause which triggered the chain of events leading to Erlinda's brain damage and,
ultimately, her comatosed condition.

Private respondents themselves admitted in their testimony that the first intubation was a failure.
This fact was likewise observed by witness Cruz when she heard respondent Dra. Gutierrez
remarked, "Ang hirap ma-intubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan."
Thereafter, witness Cruz noticed abdominal distention on the body of Erlinda. The development
of abdominal distention, together with respiratory embarrassment indicates that the endotracheal
tube entered the esophagus instead of the respiratory tree. In other words, instead of the
intended endotracheal intubation what actually took place was an esophageal intubation. During
intubation, such distention indicates that air has entered the gastrointestinal tract through the
esophagus instead of the lungs through the trachea. Entry into the esophagus would certainly
cause some delay in oxygen delivery into the lungs as the tube which carries oxygen is in the
wrong place. That abdominal distention had been observed during the first intubation suggests
that the length of time utilized in inserting the endotracheal tube (up to the time the tube was
withdrawn for the second attempt) was fairly significant. Due to the delay in the delivery of
oxygen in her lungs Erlinda showed signs of cyanosis. As stated in the testimony of Dr.
66

Hosaka, the lack of oxygen became apparent only after he noticed that the nailbeds of Erlinda
were already blue. However, private respondents contend that a second intubation was
67

executed on Erlinda and this one was successfully done. We do not think so. No evidence exists
on record, beyond private respondents' bare claims, which supports the contention that the
second intubation was successful. Assuming that the endotracheal tube finally found its way into
the proper orifice of the trachea, the same gave no guarantee of oxygen delivery, the hallmark of
a successful intubation. In fact, cyanosis was again observed immediately after the second
intubation. Proceeding from this event (cyanosis), it could not be claimed, as private respondents
insist, that the second intubation was accomplished. Even granting that the tube was
successfully inserted during the second attempt, it was obviously too late. As aptly explained by
the trial court, Erlinda already suffered brain damage as a result of the inadequate oxygenation
of her brain for about four to five minutes.68

The above conclusion is not without basis. Scientific studies point out that intubation problems
are responsible for one-third (1/3) of deaths and serious injuries associated with
anesthesia. Nevertheless, ninety-eight percent (98%) or the vast majority of difficult intubations
69

may be anticipated by performing a thorough evaluation of the patient's airway prior to the
operation. As stated beforehand, respondent Dra. Gutierrez failed to observe the proper pre-
70

operative protocol which could have prevented this unfortunate incident. Had appropriate
diligence and reasonable care been used in the pre-operative evaluation, respondent physician
could have been much more prepared to meet the contingency brought about by the perceived
anatomic variations in the patient's neck and oral area, defects which would have been easily
overcome by a prior knowledge of those variations together with a change in technique. In 71

other words, an experienced anesthesiologist, adequately alerted by a thorough pre-operative

evaluation, would have had little difficulty going around the short neck and protruding
teeth. Having failed to observe common medical standards in pre-operative management and
72

intubation, respondent Dra. Gutierrez' negligence resulted in cerebral anoxia and eventual coma
of Erlinda.

We now determine the responsibility of respondent Dr. Orlino Hosaka as the head of the surgical
team. As the so-called "captain of the ship," it is the surgeon's responsibility to see to it that
73

those under him perform their task in the proper manner. Respondent Dr. Hosaka's negligence
can be found in his failure to exercise the proper authority (as the "captain" of the operative
team) in not determining if his anesthesiologist observed proper anesthesia protocols. In fact, no
evidence on record exists to show that respondent Dr. Hosaka verified if respondent Dra.
Gutierrez properly intubated the patient. Furthermore, it does not escape us that respondent Dr.
Hosaka had scheduled another procedure in a different hospital at the same time as Erlinda's
cholecystectomy, and was in fact over three hours late for the latter's operation. Because of this,
he had little or no time to confer with his anesthesiologist regarding the anesthesia delivery. This
indicates that he was remiss in his professional duties towards his patient. Thus, he shares equal
responsibility for the events which resulted in Erlinda's condition.

We now discuss the responsibility of the hospital in this particular incident. The unique practice
(among private hospitals) of filling up specialist staff with attending and visiting
"consultants," who are allegedly not hospital employees, presents problems in apportioning
74

responsibility for negligence in medical malpractice cases. However, the difficulty is only more
apparent than real.

In the first place, hospitals exercise significant control in the hiring and firing of consultants and in
the conduct of their work within the hospital premises. Doctors who apply for "consultant" slots,
visiting or attending, are required to submit proof of completion of residency, their educational
qualifications; generally, evidence of accreditation by the appropriate board (diplomate),
evidence of fellowship in most cases, and references. These requirements are carefully
scrutinized by members of the hospital administration or by a review committee set up by the
hospital who either accept or reject the application. This is particularly true with respondent
75

hospital.

After a physician is accepted, either as a visiting or attending consultant, he is normally required

to attend clinico-pathological conferences, conduct bedside rounds for clerks, interns and
residents, moderate grand rounds and patient audits and perform other tasks and
responsibilities, for the privilege of being able to maintain a clinic in the hospital, and/or for the
privilege of admitting patients into the hospital. In addition to these, the physician's performance
as a specialist is generally evaluated by a peer review committee on the basis of mortality and
morbidity statistics, and feedback from patients, nurses, interns and residents. A consultant
remiss in his duties, or a consultant who regularly falls short of the minimum standards
acceptable to the hospital or its peer review committee, is normally politely terminated.

In other words, private hospitals, hire, fire and exercise real control over their attending and
visiting "consultant" staff. While "consultants" are not, technically employees, a point which
respondent hospital asserts in denying all responsibility for the patient's condition, the control
exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an
employer-employee relationship, with the exception of the payment of wages. In assessing
whether such a relationship in fact exists, the control test is determining. Accordingly, on the
basis of the foregoing, we rule that for the purpose of allocating responsibility in medical
negligence cases, an employer-employee relationship in effect exists between hospitals and their
attending and visiting physicians. This being the case, the question now arises as to whether or
not respondent hospital is solidarily liable with respondent doctors for petitioner's condition. 76
The basis for holding an employer solidarily responsible for the negligence of its employee is
found in Article 2180 of the Civil Code which considers a person accountable not only for his own
acts but also for those of others based on the former's responsibility under a relationship
of patria potestas. Such responsibility ceases when the persons or entity concerned prove that
77

they have observed the diligence of a good father of the family to prevent damage. In other
78

words, while the burden of proving negligence rests on the plaintiffs, once negligence is shown,
the burden shifts to the respondents (parent, guardian, teacher or employer) who should prove
that they observed the diligence of a good father of a family to prevent damage.

In the instant case, respondent hospital, apart from a general denial of its responsibility over
respondent physicians, failed to adduce evidence showing that it exercised the diligence of a
good father of a family in the hiring and supervision of the latter. It failed to adduce evidence with
regard to the degree of supervision which it exercised over its physicians. In neglecting to offer
such proof, or proof of a similar nature, respondent hospital thereby failed to discharge its burden
under the last paragraph of Article 2180. Having failed to do this, respondent hospital is
consequently solidarily responsible with its physicians for Erlinda's condition.

Based on the foregoing, we hold that the Court of Appeals erred in accepting and relying on the
testimonies of the witnesses for the private respondents. Indeed, as shown by the above
discussions, private respondents were unable to rebut the presumption of negligence. Upon
these disquisitions we hold that private respondents are solidarily liable for damages under
Article 2176 of the Civil Code.
79

We now come to the amount of damages due petitioners. The trial court awarded a total of
P632,000.00 pesos (should be P616,000.00) in compensatory damages to the plaintiff, "subject
to its being updated" covering the period from 15 November 1985 up to 15 April 1992, based on
monthly expenses for the care of the patient estimated at P8,000.00.

At current levels, the P8000/monthly amount established by the trial court at the time of its
decision would be grossly inadequate to cover the actual costs of home-based care for a
comatose individual. The calculated amount was not even arrived at by looking at the actual cost
of proper hospice care for the patient. What it reflected were the actual expenses incurred and
proved by the petitioners after they were forced to bring home the patient to avoid mounting
hospital bills.

And yet ideally, a comatose patient should remain in a hospital or be transferred to a hospice
specializing in the care of the chronically ill for the purpose of providing a proper milieu adequate
to meet minimum standards of care. In the instant case for instance, Erlinda has to be constantly
turned from side to side to prevent bedsores and hypostatic pneumonia. Feeding is done by
nasogastric tube. Food preparation should be normally made by a dietitian to provide her with the
correct daily caloric requirements and vitamin supplements. Furthermore, she has to be seen on
a regular basis by a physical therapist to avoid muscle atrophy, and by a pulmonary therapist to
prevent the accumulation of secretions which can lead to respiratory complications.

Given these considerations, the amount of actual damages recoverable in suits arising from
negligence should at least reflect the correct minimum cost of proper care, not the cost of the
care the family is usually compelled to undertake at home to avoid bankruptcy. However, the
provisions of the Civil Code on actual or compensatory damages present us with some
difficulties.

Well-settled is the rule that actual damages which may be claimed by the plaintiff are those
suffered by him as he has duly proved. The Civil Code provides:

Art. 2199. — Except as provided by law or by stipulation, one is 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 or compensatory
damages.

Our rules on actual or compensatory damages generally assume that at the time of litigation, the
injury suffered as a consequence of an act of negligence has been completed and that the cost
can be liquidated. However, these provisions neglect to take into account those situations, as in
this case, where the resulting injury might be continuing and possible future complications
directly arising from the injury, while certain to occur, are difficult to predict.

In these cases, the amount of damages which should be awarded, if they are to adequately and
correctly respond to the injury caused, should be one which compensates for pecuniary loss
incurred and proved, up to the time of trial; and one which would meet pecuniary loss certain to
be suffered but which could not, from the nature of the case, be made with certainty. In other
80

words, temperate damages can and should be awarded on top of actual or compensatory
damages in instances where the injury is chronic and continuing. And because of the unique
nature of such cases, no incompatibility arises when both actual and temperate damages are
provided for. The reason is that these damages cover two distinct phases.

As it would not be equitable — and certainly not in the best interests of the administration of
justice — for the victim in such cases to constantly come before the courts and invoke their aid in
seeking adjustments to the compensatory damages previously awarded — temperate damages
are appropriate. The amount given as temperate damages, though to a certain extent
speculative, should take into account the cost of proper care.

In the instant case, petitioners were able to provide only home-based nursing care for a
comatose patient who has remained in that condition for over a decade. Having premised our
award for compensatory damages on the amount provided by petitioners at the onset of litigation,
it would be now much more in step with the interests of justice if the value awarded for temperate
damages would allow petitioners to provide optimal care for their loved one in a facility which
generally specializes in such care. They should not be compelled by dire circumstances to
provide substandard care at home without the aid of professionals, for anything less would be
grossly inadequate. Under the circumstances, an award of P1,500,000.00 in temperate damages
would therefore be reasonable. 81

In Valenzuela vs. Court of Appeals, this Court was confronted with a situation where the injury
82

suffered by the plaintiff would have led to expenses which were difficult to estimate because
while they would have been a direct result of the injury (amputation), and were certain to be
incurred by the plaintiff, they were likely to arise only in the future. We awarded P1,000,000.00 in
moral damages in that case.

Describing the nature of the injury, the Court therein stated:

As a result of the accident, Ma. Lourdes Valenzuela underwent a traumatic

amputation of her left lower extremity at the distal left thigh just above the knee.
Because of this, Valenzuela will forever be deprived of the full ambulatory
functions of her left extremity, even with the use of state of the art prosthetic
technology. Well beyond the period of hospitalization (which was paid for by Li),
she will be required to undergo adjustments in her prosthetic devise due to the
shrinkage of the stump from the process of healing.

These adjustments entail costs, prosthetic replacements and months of physical

and occupational rehabilitation and therapy. During the lifetime, the prosthetic
devise will have to be replaced and readjusted to changes in the size of her lower
limb effected by the biological changes of middle-age, menopause and aging.
Assuming she reaches menopause, for example, the prosthetic will have to be
adjusted to respond to the changes in bone resulting from a precipitate decrease
 in calcium levels observed in the bones of all post-menopausal women. In other
words, the damage done to her would not only be permanent and lasting, it would
also be permanently changing and adjusting to the physiologic changes which
her body would normally undergo through the years. The replacements, changes,
and adjustments will require corresponding adjustive physical and occupational
therapy. All of these adjustments, it has been documented, are painful.

xxx xxx xxx

A prosthetic devise, however technologically advanced, will only allow a

reasonable amount of functional restoration of the motor functions of the lower
limb. The sensory functions are forever lost. The resultant anxiety, sleeplessness,
psychological injury, mental and physical pain are inestimable. 83

The injury suffered by Erlinda as a consequence of private respondents' negligence is certainly

much more serious than the amputation in the Valenzuela case.

Petitioner Erlinda Ramos was in her mid-forties when the incident occurred. She has been in a
comatose state for over fourteen years now. The burden of care has so far been heroically
shouldered by her husband and children, who, in the intervening years have been deprived of
the love of a wife and a mother.

Meanwhile, the actual physical, emotional and financial cost of the care of petitioner would be
virtually impossible to quantify. Even the temperate damages herein awarded would be
inadequate if petitioner's condition remains unchanged for the next ten years.

We recognized, in Valenzuela that a discussion of the victim's actual injury would not even
scratch the surface of the resulting moral damage because it would be highly speculative to
estimate the amount of emotional and moral pain, psychological damage and injury suffered by
the victim or those actually affected by the victim's condition. The husband and the children, all
84

petitioners in this case, will have to live with the day to day uncertainty of the patient's illness,
knowing any hope of recovery is close to nil. They have fashioned their daily lives around the
nursing care of petitioner, altering their long term goals to take into account their life with a
comatose patient. They, not the respondents, are charged with the moral responsibility of the
care of the victim. The family's moral injury and suffering in this case is clearly a real one. For the
foregoing reasons, an award of P2,000,000.00 in moral damages would be appropriate.

Finally, by way of example, exemplary damages in the amount of P100,000.00 are hereby
awarded. Considering the length and nature of the instant suit we are of the opinion that
attorney's fees valued at P100,000.00 are likewise proper.

Our courts face unique difficulty in adjudicating medical negligence cases because physicians
are not insurers of life and, they rarely set out to intentionally cause injury or death to their
patients. However, intent is immaterial in negligence cases because where negligence exists and
is proven, the same automatically gives the injured a right to reparation for the damage caused.

Established medical procedures and practices, though in constant flux are devised for the
purpose of preventing complications. A physician's experience with his patients would sometimes
tempt him to deviate from established community practices, and he may end a distinguished
career using unorthodox methods without incident. However, when failure to follow established
procedure results in the evil precisely sought to be averted by observance of the procedure and a
nexus is made between the deviation and the injury or damage, the physician would necessarily
be called to account for it. In the case at bar, the failure to observe pre-operative assessment
protocol which would have influenced the intubation in a salutary way was fatal to private
respondents' case.
WHEREFORE, the decision and resolution of the appellate court appealed from are hereby
modified so as to award in favor of petitioners, and solidarily against private respondents the
following: 1) P1,352,000.00 as actual damages computed as of the date of promulgation of this
decision plus a monthly payment of P8,000.00 up to the time that petitioner Erlinda Ramos
expires or miraculously survives; 2) P2,000,000.00 as moral damages, 3) P1,500,000.00 as
temperate damages; 4) P100,000.00 each as exemplary damages and attorney's fees; and, 5)
the costs of the suit.

SO ORDERED.

Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.