Proximate Cause to Accidents Case Digest (1) 2

Proximate CauseIssue: WON Manila Electric Co., is gulity of negligence. De Bataclan vs Medina Facts: Pass-midnight in September 1952, Juan Bataclan rode a bus owned by Mariano Medina from Cavite to Pasay. While on its way, the driver of the bus was driving fast and when he applied the brakes it cause the bus to be overturned. The driver, the conductor, and some passengers were able to free themselves from the bus except Bataclan and 3 others. The passengers called the help of the villagers and as it was dark, the villagers brought torch with them. The driver and the conductor failed to warn the would-be helpers of the fact that gasoline has spilled from the overturned bus so a huge fire ensued which engulfed the bus thereby killing the 4 passengers trapped inside. It was also found later in trial that the tires of the bus were old. ISSUE: Whether or not the proximate cause of the death of Bataclan et al was their burning by reason of the torches which ignited the gasoline. HELD: No. The proximate cause was the overturning of the bus which was caused by the negligence of the driver because he was speeding and also he was already advised by Medina to change the tires yet he did not. Such negligence resulted to the overturning of the bus. The torches carried by the would-be helpers are not to be blamed. It is just but natural for the villagers to respond to the call for help from the passengers and since it is a rural area which did not have flashlights, torches are the natural source of lighting. Further, the smell of gas could have been all over the place yet the driver and the conductor failed to provide warning about said fact to the villagers. WHAT IS “PROXIMATE CAUSE”? Proximate cause is 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. MANILA ELECTRIC CO. vs. REMOQUILLO, et als. Facts: Efren Magno went to repair a ¨media agua¨ of the house pf his brother-in-law. Whilw making the repair, a galvanized iron roofing which was holding came into contact with the electric wire of the petitioner Manila Electric Co. strung parallel to the edge of the ¨media agua¨ and 2 1/2 feet from it. He was electrocuted and died as a result thereof. In an action for damages brought by the heirs of Magno against manila Electric Co. the CA awarded damages to the heirs of Magno and that the company was at fault and guilty of negligence because although the electric wire had been installed long before the construction of the house the electric company did not exercise due diligence. Hence, this petition. Ruling : Decision of the CA reversed. Ratio: A prior and remote cause cannot be made the basis of an action if such remote cause did nothing more than furnish the condition or give rise to the occassion 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 of the injury, even though such injury would not have happened but for such condition or occassion. Calalas v CA (Torts) FACTS: At 10 o'clock in the morning of August 23, 1989, private respondent Eliza Jujeurche G. Sunga, then a college freshman majoring in Physical Education at the Siliman University, took a passenger jeepney owned and operated by petitioner Vicente Calalas. As the jeepney was filled to capacity of about 24 passengers, Sunga was given by the conductor an "extension seat," a wooden stool at the back of the door at the rear end of the vehicle. On the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to let a passenger off. As she was seated at the rear of the vehicle, Sunga gave way to the outgoing passenger. Just as she was doing so, an Isuzu truck driven by Iglecerio Verena and owned by Francisco Salva bumped the left rear portion of the jeepney. As a result, Sunga was injured. On October 9, 1989, Sunga filed a complaint for damages against Calalas, alleging violation of the contract of carriage by the former in failing to exercise the diligence required of him as a common carrier. Calalas, on the other hand, filed a third-party complaint against Francisco Salva, the owner of the Isuzu truck. DECISION OF LOWER COURTS: 1. RTC – Dumaguete – rendered judgment against Salva holding that the driver of the Isuzu truck was responsible It took cognizance of another case (Civil Case No. 3490), filed by Calalas against Salva and Verena, for quasi-delict, in which Branch 37 of the same court held Salva and his driver Verena jointly liable to Calalas for the damage to his jeepney. 2. CA – reversed the RTC, awarding damages instead to Sunga as plaintiff in an action for breach of contract of carriage since the cause of action was based on such and not quasi delict. Hence, current petition for review on certiorari. ISSUE: Whether (per ruling in Civil Case) negligence of Verena was the proximate cause of the accident negates his liability and that to rule otherwise would be to make the common carrier an insurer of the safety of its passengers In relation thereto, does the principle of res judicata apply?  RULING: No. The issue in Civil Case No. 3490 was whether Salva and his driver Verena were liable for quasi-delict for the damage caused to petitioner's jeepney. On the other hand, the issue in this case is whether petitioner is liable on his contract of carriage. Quasi-delict / culpa aquiliana / culpa extra contractual  1. Has as its source the negligence of the tortfeasor 2. negligence or fault should be clearly established because it is the basis of the action 3. doctrine of proximate cause is applicable 1. premised upon the negligence in the performance of a contractual obligation 2. action can be prosecuted merely by proving the existence of the contract and the fact that the obligor (here, the common carrier) failed to transport his passenger safely to his destination 3. not available; it is the parties themselves who create the obligation and the function of the law is merely to regulate the relation thus created In case of death or injuries to passengers, Art. 1756 of the Civil Code provides that common carriers are presumed to have been at fault or to have acted negligently unless they prove that they observed extraordinary diligence as defined in Arts. 1733 and 1755 of the Code. This provision necessarily shifts to the common carrier the burden of proof. Hence, Vicente Calalas (operator) is liable since he did not exercise utmost diligence. 1. Jeepney was not properly parked; 2. Overloading of passengers. Fernando vs CA FACTS:  November 7, 1975: Bibiano Morta, market master of the Agdao Public Market filed a requisition request with the Chief of Property of the City Treasurer's Office for the re-emptying of the septic tank in Agdao wherein Bascon won  The bodies were removed by a fireman.  The body of Joselito Garcia, was taken out by his uncle, Danilo Garcia and taken to the Regional Hospital but he expired there. The City Engineer's office investigated the case and learned they entered the septic tank without clearance from it nor with the knowledge and consent of the market master.  Since the septic tank was found to be almost empty, they were presumed to be the ones who did the re-emptying.  Dr. Juan Abear of the City Health Office found them to have died from "asphyxia" - diminution of oxygen supply in the body and intake of toxic gas  November 26, 1975: Bascon signed the purchase order  RTC: Dismissed the case  CA: Reversed - law intended to protect the plight of the poor and the needy, the ignorant and the indigent (device for imputing liability to a person where there is no relation between him and another party, obligation is created by law itself) Breach of contract / culpa contractual November 22, 1975: bidder Bertulano with four other companions namely Joselito Garcia, William Liagoso, Alberto Fernando and Jose Fajardo, Jr. were found dead inside the septic tank. ISSUE: W/N Davao city is negligent and its negligence is the proximate cause therefore can be liable for damages HELD: NO. CA affirmed.   test by which to determine the existence of negligence in a particular case:  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 1 standard supposed to be supplied by the imaginary conduct of the discreet pater familias of the Roman law 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 warrant his foregoing the conduct or guarding against its consequences  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  Reasonable foresight of harm, followed by the ignoring of the suggestion born of this provision, is always necessary before negligence can be held to exist  Distinction must be made between the accident and the injury       Li: 55 kph - self serving and uncorraborated  Rogelio Rodriguez, the owner-operator of an establishment located just across the scene of the accident: Valenzuela’s car parked parallel and very near the sidewalk and Li was driving on a very fast speed and there was only a drizzle (NOT heavy rain) ISSUE: proximate and immediate cause of the death of the victims was due to their own negligence. Consequently, the petitioners cannot demand damages from the public respondent. 3. W/N Alexander Commercial, Inc. as Li's employer should be held liable - YES 4. W/N the awarding of damages is proper. - YES. FACTS: June 24, 1990 2 am: While driving from her restaurant at Araneta avenue towards the direction of Manila, Ma. Lourdes Valenzuela noticed that she had a flat tire so she parked along the sidewalk about 1 1/2 feet away, place her emergency lights and seeked help   CA: there was ample evidence that the car was parked at the side but absolved Li's employer Considering the nature of the task of emptying a septic tank especially one which has not been cleaned for years, an ordinarily prudent person should undoubtedly be aware of the attendant risks. The victims are no exception; more so with Mr. Bertulano, an old hand in this kind of service, who is presumed to know the hazards of the job. His failure, therefore, and that of his men to take precautionary measures for their safety was the proximate cause of the accident. Valenzuela vs CA   accident such as toxic gas leakage from the septic tank is unlikely to happen unless one removes its covers Emergency Rule  RTC: Richard Li guilty of gross negligence and liable for damages under Article 2176 of the Civil Code. Alexander Commercial, Inc., Li’s employer, jointly and severally liable for damages pursuant to Article 2180 P41,840 actual damages, P37,500 unrealized profits because of the stoppage of plaintiffs Bistro La Conga restaurant 3 weeks after the accident on June 24, 1990, P20,000 a month as unrealized profits of Bistro La Conga restaurant, from August, 1990 until the date of this judgment, P30,000.00, a month, for unrealized profits in 2 Beauty salons, P1,000,000 in moral damages, P50,000, as exemplary damages, P60,000, as reasonable attorney’s fees and costs. 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 While the construction of these public facilities demands utmost compliance with safety and sanitary requirements, the putting up of warning signs is not one of those requirements Her expenses totalled 147, 000 [120,000 php (confinement) + 27, 000 (aritificial leg)]  Toilets and septic tanks are not nuisances per se as defined in Article 694 of the New Civil Code which would necessitate warning signs for the protection of the public   Where he contributes to the principal occurrence, as one of its determining factors, he can not recover  1. W/N Li was driving at 55 kph - NO 2. W/N Valenzuela was guilty of contributory negligence - NO HELD: CA modified with reinstating the RTC decision 1. NO  If Li was running at only about 55 kph then despite the wet and slippery road, he could have avoided hitting the Valenzuela by the mere expedient or applying his brakes at the proper time and distance  it was not even necessary for him to swerve a little to the right in order to safely avoid a collision with the on-coming car since there is plenty of space for both cars, since Valenzuela car was running at the right lane going towards Manila and the on-coming car was also on its right lane going to Cubao She was with her companion Cecilia Ramon While she was pointing her tools to the man who will help her fixed the tires, she was suddenly hit by another Mitsubishi Lancer driven by Richard Li who was intoxicated and she slammed accross his windshield and fell to the ground She was sent to UERM where she stayed for 20 days and her leg was amputated and was replaced with an artificial one. 2. NO.  Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection  emergency rule  an individual who suddenly finds himself in a situation of danger and is required to act without much time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence if he fails to undertake what subsequently and upon reflection may appear to be a better solution, unless the emergency was brought by his own negligence 1 She is not expected to run the entire boulevard in search for a parking zone or turn on a dark Street or alley where she would likely find no one to help her 2 She stopped at a lighted place where there were people, to verify whether she had a flat tire and to solicit help if needed 3 she parked along the sidewalk, about 1½ feet away, behind a Toyota Corona Car 3. YES.   Not the principle of respondeat superior, which holds the master liable for acts of the servant (must be in the course of business), but that of pater familias, in which the liability ultimately falls upon the employer, for his failure to exercise the diligence of a good father of the family in the selection and supervision of his employees Ordinarily, evidence demonstrating that the employer has exercised diligent supervision of its employee during the performance of the latter‘s assigned tasks would be enough to relieve him of the liability imposed by Article 2180 in relation to Article 2176 of the Civil Code.    situation is of a different character, involving a practice utilized by large companies with either their employees of managerial rank or their representatives. Moreover, Li’s claim that he happened to be on the road on the night of the accident because he was coming from a social visit with an officemate in Parañaque was a bare allegation which was never corroborated in the court below. It was obviously self-serving. Assuming he really came from his officemate’s place, the same could give rise to speculation that he and his officemate had just been from a work-related function, or they were together to discuss sales and other work related strategies. Alexander Commercial, Inc. has not demonstrated, to our satisfaction, that it exercised the care and diligence of a good father of the family in entrusting its company car to Li 4. YES.  As the amount of moral damages are subject to this Court’s discretion, we are of the opinion that the amount of P1,000,000.00 granted by the trial court is in greater accord with the extent and nature of the injury -. physical and psychological - suffered by Valenzuela as a result of Li’s grossly negligent driving of his Mitsubishi Lancer in the early morning hours of the accident.  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. George Mckee and Araceli Koh Mckee vs. IAC , Jaime Tayag and Rosalinda FACTS • Between 9 and 10 o'clock in the morning of 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, owned by Tayag and Manalo, driven by Galang, and a Ford Escort car driven by Jose Koh, resulting 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 • Immediately before the collision, the cargo truck, which was loaded with 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 Ford Escort was about 10 meters away from the southern approach of the bridge, 2 boys suddenly darted from the right side of the road and into the lane of the car 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. But 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 • As a result of the accident, 2 civil cases were filed for damages for the death and physical injuries sustained by the victims boarding the Ford Escort; as well as a criminal case against Galang • During the trial, evidence were presented showing that the driver of the Truck was speeding resulting in the skid marks it caused in the scene of the accident • The lower court found Galang guilty in the criminal case, but the civil cases were dismissed • On appeal, the CA affirmed the conviction of Galang, and reversed the decision in the civil cases, ordering the payment of damages for the death and physical injuries of the McKee family • On MR, the CA reversed its previous decision and ruled in favor of the owners of the truck ISSUES & ARGUMENTS • W/N the owner and driver of the Truck were responsible for the collision HOLDING & RATIO DECIDENDI THE PROXIMATE CAUSE OF THE COLLISION WAS THE OVER SPEEDING OF THE TRUCK SHOWING ITS NEGLIGENCE • 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" • Considering the sudden intrusion of the 2 boys into the lane of the car, the Court finds 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. Galang'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 person driving a vehicle is presumed negligent if at the time of the mishap, he was violating any traffic regulation • 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 • Applying the foregoing doctrine, it is not difficult to 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, Tayag and Manalo are, under Article 2180 of the Civil Code, directly and primarily liable for the resulting damages. The presumption that they are negligent flows from the negligence of their employee. That presumption, however, is only juris tantum, not juris et de jure. Their only possible defense is that they exercised all the diligence of a good father of a family to prevent the damage, which they failed to do Petition GRANTED. Resolution SET ASIDE and previous DECISION REINSTATED. Hedy Gan y Yu vs CA Facts: In the morning of 4 July 1972, the accused Hedy Gan was driving along North Bay Boulevard, Tondo, Manila. There were two vehicles parked on one side of the road, one following the other. As the car driven by Gan approached the place where the two vehicles were parked, there was a vehicle coming from the opposite direction, followed by another which tried to overtake the one in front of it thereby encroaching the lane of the car driven by Gan. To avoid a head-on collision, Gan swerved to the right and as a consequence, hit an old man who was about to cross the street, pinning him against the rear of one of the parked vehicles. The force of the impact caused the parked vehicle to move forward hitting the other parked vehicle in front of it. The pedestrian was injured, Gan's car and the two parked vehicle suffered damages. The pedestrian was pronounced dead on arrival at the hospital. Gan was convicted of Homicide thru reckless imprudence. On appeal, CA modified the trial court's decision convicting Gan of Homicide thru simple imprudence. Issue: WON CA erred in convicting petitioner Gan for Homicide thru simple imprudence. Ruling: SC reversed CA's decision, acquitting petitioner. Under the emergency rule, one who suddenly fonds himself in a place of danger, and is required to act w/o tme 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. Applying the above test to the case at bar, the SC finds the petitioner not guilty of the crime of simple imprudence resulting in Homicide. Delsan Transport vs C&A Construction Facts: C & A construction, construct a deflector wall at the Vitas reclamation Area in Tondo, Manila it was not formally turnover to National Housing Authority though it was completed in 1994. On 12:00 midnight of October 20, 1994 Captain Demetrio T. Jusep of M/V Delsan Express receive a report that that a typhoon was going to hit Manila after eight (8) hours. At 8:35 a.m. he tried to seek shelter but it was already congested. At 10:00 a.m. Capt. Jusep drop the anchor at the vicinity of Vitas mouth, the waves were already reaching 8 to 10 feet. The ship was dragged by the wind toward the Napocor power barge Capt. Jusep ordered a full stop of the vessel to avoid the collision but when the engine was re-started, it hit the deflector wall constructed by the respondent. P456,198.24 was the damaged cause by the incident. C & A construction demanded payment of the damages from Capt. Jusep but the latter refused to pay due to the cause of the incident was by a fortuitous event. The trial court ruled that Captain Jusep was not guilty of negligence in applying the “emergency rule” because it had taken necessary precautions to avoid accident. The Court of Appeals reversed & set aside the decision of the trial court. Captain Jusep was found guilty of negligence in transferring the vessel only at 8:35 a.m. of October 21,1994 and held liable for damages in waiting until 8:35 a.m. before transfering the vessel to sought shelter. Issues: (1) Whether or not Capt. Jusep was negligent. (2) Whether or not the petitioner is solidarily liable under Art. 2180 of the Civil Code for Quasi-Delict. Held: absence of the explanation, that the injury arose from defendant’s want of care.” The gasoline station, with all its appliances, equipment and employees, was under the control of Caltex and Boquiren. A fire occurred therein and spread to and burned the neighboring houses. The persons who knew or could have known how the fire started were Boquiren, Caltex and their employees, but they gave no explanation thereof whatsoever. It is a fair and reasonable inference that the incident happened because of want of care. (1) The court finds Captain Jusep is guilty of negligence, the failure to take immediate and appropriate action under the circumstances, despite the knowledge that there is typhoon but he waited for the lapse of eight (8) hours instead. Captain Jusep showed an inexcusable lack of care and caution which an ordinary prudent person would have observed in the same situation. The trial court erred in applying the emergency rule because the danger where Captain Jusep found himself was caused by his own negligence. Note that ordinarily, he who charges negligence shall prove it. However, res ipsa loquitur is the exception because the burden of proof is shifted to the party charged of negligence as the latter is the one who had exclusive control of the thing that caused the injury complained of. (2) The court finds the petitioner liable for the negligent act of Capt. Jusep. Whenever an employee’s negligence causes damage to another, it instantly arise a presumption that the employer failed to exercise the care and diligence of supervision of his employee. In Fabre ,jr. v Court of Appeals held that due diligence requires consistent compliance of rules & regulation for the guidance and actual implementation of rules. But the petitioner fails to give any evidence that its rule are strictly implemented and monitored in compliance therewith petitioner is therefore liable for the negligent act of Capt. Jusep. The amount of P 456, 198.27 due earn 6% interest per annum from October 3, 1995 until the finality of the decision. FACTS Res Ipsa Loquitor Africa vs Caltex In March 1948, in Rizal Avenue, Manila, a tank truck was hosing gasoline into the underground storage of Caltex. Apparently, a fire broke out from the gasoline stationand the fire spread and burned several houses including the house of Spouses Bernabe and Soledad Africa. Allegedly, someone (a passerby) threw a cigarette while gasoline was being transferred which caused the fire. But there was no evidence presented to prove this theory and no other explanation can be had as to the real reason for the fire. Apparently also, Caltex and the branch owner (Mateo Boquiren) failed to install a concrete firewall to contain fire if in case one happens. F.F. Cruz vs. CA| Cortes G.R. No. L-52732 August 29, 1988 |SCRA o The furniture manufacturing shop of F.F. Cruz in Caloocan City was situated adjacent to the residence of the Mables. o Sometime in August 1971, private respondent Gregorio Mable first approached Eric Cruz, petitioner's plant manager, to request that a firewall be constructed between the shop and Mable’s residence. The request was repeated several times but they fell on deaf ears. o In the early morning of September 6, 1974, fire broke out in Cruz’s shop. Cruz’s employees, who slept in the shop premises, tried to put out the fire, but their efforts proved futile. The fire spread to the Mables’ house. Both the shop and the house were razed to the ground. o The Mables collected P35,000.00 on the insurance on their house and the contents thereof. o The Mables filed an action for damages against the Cruz’s. o The TC ruled in favor of the Mables. CA affirmed but reduced the award of damages. ISSUES & ARGUMENTS W/N the doctrine of res ipsa loquitor is applicable to the case. ISSUE: Whether or not Caltex and Boquiren are liable to pay for damages. HELD: Yes. This is pursuant to the application on the principle of res ipsa loquitur (“the transaction speaks for itself”) which states: “where the thing which caused injury, without fault of the injured person, is under the exclusive control of the defendant and the injury is such as in the ordinary course of things does not occur if he having such control use proper care, it affords reasonable evidence, in the HOLDING & RATIO DECIDENDI Yes. The doctrine of res ipsa loquitor is applicable to the case. The CA, therefore, had basis to find Cruz liable for the loss sustained by the Mables’. o The doctrine of res ipsa loquitur, may be stated as follows: o Where the thing which caused the injury complained of is shown to be under the management of the defendant or his servants and the accident is such as in the 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 want of care. [Africa v. Caltex (Phil.), Inc., G.R. No. L-12986, March 31, 1966, 16 SCRA 448.] o The facts of the case likewise call for the application of the doctrine, considering that in the normal course of operations of a furniture manufacturing shop, combustible material such as wood chips, sawdust, paint, varnish and fuel and lubricants for machinery may be found thereon. alleged that plaintiff parked his truck in a manner which occupied a part of the highway and he did not even put a warning sign. Subsequently, a third-party complaint was filed by the defendant against his insurer, the Travellers Multi Indemnity Corporation; that the third-party plaintiff [Isidro], without admitting his liability to the plaintiff, claimed that the third-party defendant [Travellers] is liable to the former for contribution, indemnity and subrogation by virtue of their insurance contract which covers the insurer's liability for damages arising from death, bodily injuries and damage to property. The Insurance company argued that it is only liable for the amount agreed in the policy and the complaint was premature since no claim was made to it. o It must also be noted that negligence or want of care on the part of petitioner or its employees was not merely presumed. o Cruz failed to construct a firewall between its shop and the residence of the Mables as required by a city ordinance o that the fire could have been caused by a heated motor or a lit cigarette o that gasoline and alcohol were used and stored in the shop; and o that workers sometimes smoked inside the shop o Even without applying the doctrine of res ipsa loquitur, Cruz's failure to construct a firewall in accordance with city ordinances would suffice to support a finding of negligence. o Even then the fire possibly would not have spread to the neighboring houses were it not for another negligent omission on the part of defendants, namely, their failure to provide a concrete wall high enough to prevent the flames from leaping over it. Defendant's negligence, therefore, was not only with respect to the cause of the fire but also with respect to the spread thereof to the neighboring houses. o In the instant case, with more reason should petitioner be found guilty of negligence since it had failed to construct a firewall between its property and private respondents' residence which sufficiently complies with the pertinent city ordinances. The failure to comply with an ordinance providing for safety regulations had been ruled by the Court as an act of negligence [Teague v. Fernandez, G.R. No. L-29745, June 4, 1973, 51 SCRA 181.] Layugan vs IAC Facts: Pedro T. Layugan filed an action for damages against Godofredo Isidro, alleging that while at Baretbet, Bagabag, Nueva Vizcaya, the Plaintiff and a companion were repairing the tire of their cargo truck which was parked along the right side of the National Highway; that defendant's truck, driven recklessly by Daniel Serrano bumped the plaintiff, that as a result, plaintiff was injured and hospitalized where he incurred and will incur more expenses as he recuperates from said injuries; Plaintiff's right leg was amputated and that because of said injuries he would be deprived of a lifetime income. To free themselves from liability, defendants Isidro [owner] and Serrano [driver] averred that he knows his responsibilities as a driver and further contends that it was the negligence of plaintiff that was the proximate cause of the accident. They The RTC ruled in favor of the Petitioners. The CA reversed the decision, stating that it is the petitioners who were negligent since they did not exercise caution by putting warning signs that their truck is park on the shoulder of the highway. Issue: Whether or not Isidro is liable as employer of Serrano. Ruling: Yes! The SC held that the CA erroneously appreciated the evidence. It was proven that the petitioner placed a warning sign within 3 to 4 meters from their truck in the form of a lighted kerosene lamp. The existence of this warning sings was corroborated by Serrano, respondent's driver, and further stated that when he saw a parked truck, he kept on stepping on the brake pedal but it did not function. Thus despite this warning signs, the truck recklessly driven by Serrano and owned by Respondent Isidro bumped the truck of petitioner. The private respondent is sued under Art. 2176 in relation to Art. 2180, paragraph 5, of the Civil Code. In the latter, when an injury is caused by the negligence of a servant or employee there instantly arises a presumption of law that there was negligence on the part of the master or employer either in the selection of the servant or employee, or in supervision over him after selection, or both. Such presumption is juris tantum and not juris et de jure and consequently, may be rebutted. If follows necessarily that if the employer shows to the satisfaction of the court that in the selection and in the supervision he has exercised the care and diligence of a good father of a family, the presumption is overcome and he is relieved from liability. In disclaiming liability for the incident, the private respondent stresses that the negligence of his employee has already been adequately overcome by his driver's statement that he knew his responsibilities as a driver and that the truck owner used to instruct him to be careful in driving. We do not agree with the private respondent in his submission. In the first place, it is clear that the driver did not know his responsibilities because he apparently did not check his vehicle before he took it on the road. If he did he could have discovered earlier that the brake fluid pipe on the right was cut, and could have repaired it and thus the accident could have been avoided. Moveover, to our mind, the fact that the private respondent used to intruct his driver to be careful in his driving, that the driver was licensed, and the fact that he had no record of any accident, as found by the respondent court, are not sufficient to destroy the finding of negligence of the Regional Trial Court given the facts established at the trial. The private respondent or his mechanic, who must be competent, should have conducted a thorough inspection of his vehicle before allowing his driver to drive it. Issue: 1. WON CSEW had “management and supervisory control“ of the ship at the time the fire broke out 2. WON the doctrine of res ipsa loquitur applies against the crew In the light of the circumstances obtaining in the case, we hold that Isidro failed to prove that the diligence of a good father of a family in the supervision of his employees which would exculpate him from solidary liability with his driver to the petitioner. But even if we concede that the diligence of a good father of a family was observed by Isidro in the supervision of his driver, there is not an iota of evidence on record of the observance by Isidro of the same quantum of diligence in the supervision of his mechanic, if any, who would be directly in charge in maintaining the road worthiness of his (Isidro's) truck. But that is not all. There is paucity of proof that Isidro exercised the diligence of a good father of a family in the selection of his driver, Daniel Serrano, as well as in the selection of his mechanic, if any, in order to insure the safe operation of his truck and thus prevent damage to others. Accordingly, the responsibility of Isidro as employer treated in Article 2180, paragraph 5, of the Civil Code has not ceased. Cebu Shipyard v William G.R. No. 132607. May 5, 1999 Facts: Cebu Shipyard and Engineering Works, Inc. repaired marine vessels while the Prudential is in the non-life insurance business. William Lines, Inc., the owner of M/V Manila City, a luxury passenger-cargo vessel, which caught fire and sank. At the time of the incident, subject vessel was insured with Prudential for P45M for hull and machinery. CSEW was insured for only Php 10 million for the shiprepairer’s liability policy. They entered into a contract where negligence was the only factor that could make CSEW liable for damages. Moreover, liability of CSEW was limited to only Php 1million for damages. The Hull Policy included an “Additional Perils (INCHMAREE)” Clause covering loss of or damage to the vessel through the negligence of, among others, ship repairmen. William brought Manila City to the dry dock of CSEW for repairs. The officers and cabin crew stayed at the ship while it was being repaired. After the vessel was transferred to the dockingquay, it caught fire and sank, resulting to its total loss. William brought suit against CSEW alleging that it was through the latter’s negligence that the ship caught fire and sank. Prudential was impleaded as coplaintiff after it had paid the value of insured items. It was subrogated to 45 million, or the value it claimed to indemnify. The trial court brought judgment against CSEW 45 million for the ship indemnity, 65 million for loss of income, and more than 13 million in other damages. The CA affirmed the TC decision. CSEW contended that the cause of the fire was due to William’s hotworks on the said portion of the ship which they didn’t ask CSEW permission for. Prudential, on the other hand, blamed the negligence of the CSEW workers in the instance when they didn’t mind rubber insulation wire coming out of the airconditioning unit that was already burning. Hence this MFR. 3. WON Prudential has the right of subrogation against its own insured 4. WON the provisions limiting CSEW’s liability for negligence to a maximum of Php 1 million are valid Held: Yes. Yes. Yes. No. Petition denied. Ratio: 1. The that factual findings by the CA are conclusive on the parties and are not reviewable by this Court. They are entitled to great weight and respect when the CA affirmed the factual findings arrived at by the trial court. The CA and the Cebu RTC are agreed that the fire which caused the total loss of subject M/V Manila City was due to the negligence of the employees and workers of CSEW. Furthermore, in petitions for review on certiorari, only questions of law may be put into issue. Questions of fact cannot be entertained. 2. For the doctrine of res ipsa loquitur to apply to a given situation, the following conditions must concur: (1) the accident was of a kind which does not ordinarily occur unless someone is negligent; and (2) that the instrumentality or agency which caused the injury was under the exclusive control of the person charged with negligence. The facts and evidence reveal the presence of these conditions. First, the fire would not have happened in the ordinary course of things if reasonable care and diligence had been exercised. Second, the agency charged with negligence, as found by the trial court and the CA and as shown by the records, is CSEW, which had control over subject vessel when it was docked for annual repairs. What is more, in the present case the trial court found direct evidence to prove that the workers didn’t exercise due diligence in the care of subject vessel. The direct evidence substantiates the conclusion that CSEW was really negligent even without applying such doctrine. 3. Petitioner contends that Prudential is not entitled to be subrogated to the rights of William Lines, Inc., theorizing that (1) the fire which gutted M/V Manila City was an excluded risk and (2) it is a co-assured under the Marine Hull Insurance Policy. This was wrong. The one who caused the fire has already been adjudicated by the courts as CSEW. Upon proof of payment by Prudential to William Lines, Inc., the former was subrogated to the right of the latter to indemnification from CSEW. As aptly ruled by the Court of Appeals, the law says: Art. 2207. If the plaintiff’s property has been insured, and he has received indemnity from theinsurance company for the injury or loss arising out of the wrong or breach of contract complained of, the insurance company shall be subrogated to the rights of the insured against the wrongdoer or the person who has violated the contract. If the amount paid by the insurancecompany does not fully cover the injury or loss, the aggrieved party shall be entitled to recover the deficiency from the person causing the loss or injury. When Prudential paid the latter the total amount covered by its insurance policy, it was subrogated to the right of the latter to recover the insured loss from the liable party, CSEW. economical salvage and repair. The evaluation of the average adjuster also reported a constructive total loss. The said claim of William Lines, Inc., was then found to be valid and compensable such that Prudential paid the latter the total value of its insurance claim. Furthermore, it was ascertained that the replacement cost of the vessel, amounts to P55M. Considering the circumstances, it would unfair to limit the liability of petitioner to One Million Pesos only. To allow CSEW to limit its liability to P1M notwithstanding the fact that the total loss suffered by the assured and paid for by Prudential amounted to P45M would sanction the exercise of a degree of diligence short of what is ordinarily required because, then, it would not be difficult for petitioner to escape liability by the simple expedient of paying an amount very much lower than the actual damage suffered by William. Attractive Nuisance Petitioner theorizes further that there can be no right of subrogation as it is deemed a co-assured under the subject insurance policy with reliance on Clause 20 of the Work Order which states: HIDALGO ENTERPRISES, INC. vs. BALANDAN, et al.- Attractive Nuisance Doctrine 20. The insurance on the vessel should be maintained by the customer and/or owner of the vessel during the period the contract is in effect. Attractive nuisance doctrine generally is not applicable to bodies of water, artificial (e.g. water tanks) as well as natural, in the absence of some unusual condition or artificial feature other than the mere water and its location. Clause 20 of the Work Order in question is clear in the sense that it requires William Lines to maintain insurance on the vessel during the period of dry-docking or repair. However, the fact that CSEW benefits from the said stipulation does not automatically make it as a co-assured of William Lines. The intention of the parties to make each other a co-assured under an insurancepolicy is to be read from the insurance contract or policy itself and not from any other contract or agreement because the insurance policy denominates the beneficiaries of the insurance. The hull and machinery insurance procured by William Lines, Inc. from Prudential named only “William Lines, Inc.” as the assured. There was no manifestation of any intention of William Lines, Inc. to constitute CSEW as a co-assured under subject policy. The claim of CSEW that it is a co-assured is unfounded. Then too, in the Additional Perils Clause of the same Marine Insurance Policy, it is provided that this insurance also covers loss of or damage to vessel directly caused by the negligence of charterers and repairers who are not assured. FACTS: Guillermo Balandan and his wife is claiming damages in the sum of P2,000 for the death of their son, Mario. Petitioner was the owner of an Ice plant, who had in their premises 2 tanks filled of water, 9 feet deep. The factory was fenced but Ingress and egress was easily made because the gates were always open and there was no guard assigned in the said gate. Also the tanks didn’t have any barricade or fence. One day when Mario was playing with his friend, they saw the tank inside the factory and began playing and swimming inside it. While bathing, Mario sank to the bottom of the tank, only to be fished out later, already as a cadaver, having died of ‘asphyxia secondary to drowning.’ The lower decided in the favor of the parents saying that the petitioner is liable for damages due to the doctrine of attractive nuisance. ISSUE: Whether or not the doctrine of attractive nuisance is applicable in this case? As correctly pointed out by respondent Prudential, if CSEW were deemed a coassured under the policy, it would nullify any claim of William Lines, Inc. from Prudential for any loss or damage caused by the negligence of CSEW. Certainly, no shipowner would agree to make a shiprepairer a co-assured under such insurance policy; otherwise, any claim for loss or damage under the policy would be invalidated. 4. Although in this jurisdiction, contracts of adhesion have been consistently upheld as valid per se; as binding as an ordinary contract, the Court recognizes instances when reliance on such contracts cannot be favored especially where the facts and circumstances warrant that subject stipulations be disregarded. Thus, in ruling on the validity and applicability of the stipulation limiting the liability of CSEW for negligence to P1M only, the facts and circumstances vis-a-vis the nature of the provision sought to be enforced should be considered, bearing in mind the principles of equity and fair play. It is worthy to note that M/V Manila City was insured with Prudential for P45M. Upon thorough investigation by its hull surveyor, M/V Manila City was found to be beyond RULING: NO. The doctrine of attractive nuisance states that “One who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children in play, and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child of tender years who is injured thereby, even if the child is technically a trespasser in the premises. American Jurisprudence shows us that the attractive nuisance doctrine generally is not applicable to bodies of water, artificial as well as natural, in the absence of some unusual condition or artificial feature other than the mere water and its location. In the case bar, the tanks themselves cannot fall under such doctrine thus the petitioners cannot be held liable for Mario’s death. Ylarde vs. Aquino FACTS: Private respondent Mariano Soriano was the principal of the Gabaldon Primary School in Pangasinan. Defendant Edgardo Aquino was a teacher therein. During that time, the school had several concrete blocks which were remnants of the old school shop destroyed in World War II. Defendant decided to help clear the area so he gathered 18 of his male students and ordered them to dig beside a one ton concrete block in making a hole where the stone can be buried. It was left unfinished so the following day he called 4 of the 18 students including the Novelito Ylarde to complete the excavation. Defendant left the children to level the loose soil while he went to see Banez for the key to the school workroom where he can get some rope. It was alleged that before leaving, he told the children “not to touch the stone”. After he left, the children playfully jumped into the pit when suddenly the concrete block slide down. Unfortunately, Novelito Ylarde was pinned to the wall causing serious physical injuries which as a consequence led to his death, 3 days thereafter. The parents of the victim, herein petitioners, filed a suit for damages against both Aquino and Soriano. ISSUE: WON both Soriano and Aquino can be held liable for damages. • When the Ford Escort was about 10 meters away from the southern approach of the bridge, 2 boys suddenly darted from the right side of the road and into the lane of the car 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. But 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 • As a result of the accident, 2 civil cases were filed for damages for the death and physical injuries sustained by the victims boarding the Ford Escort; as well as a criminal case against Galang • During the trial, evidence were presented showing that the driver of the Truck was speeding resulting in the skid marks it caused in the scene of the accident HELD: As held in Amadora vs CA, “it is only the teacher and not the head of an academic school who should be answerable for torts committed by their students”. 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, this is the general rule. However, in casea 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. Hence, Soriano as principal cannot be held liable for the reason that the school he heads is an academic school and he did not give any instruction regarding the digging. • The lower court found Galang guilty in the criminal case, but the civil cases were dismissed A teacher who stands in loco parentis to his tudents should make sure that the children are protected from all harm. The excavation instructed clearly exposed the students to risk and should not be placed under the category of Work Education such as school gardening, planting trees etc. Aquino acted with fault and gross negligence where instead of availing himself of adult manual laborers he instead utilized his students. Furthermore, the warning given is not sufficient to cast away all serious danger that the concrete block adjacent to the excavation would present to the children. He is therefore ordered to pay damages to the petitioners. • W/N the owner and driver of the Truck were responsible for the collision HOLDING & RATIO DECIDENDI THE PROXIMATE CAUSE OF THE COLLISION WAS THE OVER SPEEDING OF THE TRUCK SHOWING ITS NEGLIGENCE Last Clear Chance George Mckee and Araceli Koh Mckee vs. IAC , Jaime Tayag and Rosalinda FACTS • Between 9 and 10 o'clock in the morning of 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, owned by Tayag and Manalo, driven by Galang, and a Ford Escort car driven by Jose Koh, resulting 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 • Immediately before the collision, the cargo truck, which was loaded with 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 • On appeal, the CA affirmed the conviction of Galang, and reversed the decision in the civil cases, ordering the payment of damages for the death and physical injuries of the McKee family • On MR, the CA reversed its previous decision and ruled in favor of the owners of the truck ISSUES & ARGUMENTS • 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" • Considering the sudden intrusion of the 2 boys into the lane of the car, the Court finds 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. Galang'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 person driving a vehicle is presumed negligent if at the time of the mishap, he was violating any traffic regulation • 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 • Applying the foregoing doctrine, it is not difficult to 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, Tayag and Manalo are, under Article 2180 of the Civil Code, directly and primarily liable for the resulting damages. The presumption that they are negligent flows from the negligence of their employee. That presumption, however, is only juris tantum, not juris et de jure. Their only possible defense is that they exercised all the diligence of a good father of a family to prevent the damage, which they failed to do Petition GRANTED. Resolution SET ASIDE and previous DECISION REINSTATED. LADECO vs. ANGALA FACTS: On May 4, 1993, at about 2:45 p.m., a Datsun crewcab with plate no. PEC-93 was driven by Apolonio Deocampo bumped into a 1958 Chevy pick-up with plate no. MAM-475 owned by Michael Raymond Angala and driven by Bernulfo Borres. Lapanday Agricultural Development Corporation (LADECO) owned the crewcab which was assigned to its manager Manuel Mendez. Deocampo was the driver and bodyguard of Mendez. Both vehicles were running along Rafael Castillo St., Agdao, Davao City heading north towards Lanang, Davao City. The left door, front left fender, and part of the front bumper of the pick-up were damaged. Respondent Angala filed an action for Quasi-Delict, Damages, and Attorney’s fees against LADECO, its administrative officer Henry Berenguel and Deocampo. Respondent alleged that his pick-up was slowing down to about five to ten kilometers per hour (kph) and was making a left turn preparatory to turning south when it was bumped from behind by the crewcab which was running at around 60 to 70 kph. The crewcab stopped 21 meters from the point of impact. Respondent alleged that he heard a screeching sound before the impact. Respondent was seated beside the driver and was looking at the speedometer when the accident took place. Respondent testified that Borres made a signal because he noticed a blinking light while looking at the speedometer. Respondent sent a demand letter to LADEDO for the payment of the damages he incurred because of the accident but he did not receive any reply. Thus, respondent filed the case against LADECO, Berenguel, and Deocampo. In its March 3, 1995 Decision, the Regional Trial Court of Davao City, Branch 15 ruled in favor of defendant and ordered LADECO and Deocampo to solidarily pay the damages. The trial court found that Berenguel was not liable because he was not the owner of the crewcab. LADECO and Deocampo filed a motion for reconsideration but the same was denied on June 13, 1995. Petitioner filed an appeal before the Court of Appeals. However, the appellate court affirmed in toto the trial court’s decision. Petitioners filed a motion for reconsideration. In its March 11, 2002 Resolution, the Court of Appeals denied the motion for lack of merit. Hence, the present petition was filed before the Supreme Court. ISSUE: Whether or not the doctrine of last clear chance applies in the case at bar. RULING: Yes. Since both parties are at fault in this case, the doctrine of last clear chance applies The doctrine of last clear chance states that where both parties are negligent but the negligent act of one is appreciably later than that of the other, or where it is impossible to determine whose fault or negligence caused the loss, the one who has the last clear opportunity to avoid the loss but failed to do so is chargeable with the loss. In this case, Deocampo had the last clear chance to avoid the collision. Since Deocampo was driving the rear vehicle, he had full control of the situation since he was in a position to observe the vehicle in front of him. Deocampo had the responsibility of avoiding bumping the vehicle in front of him. A U-turn is done at a much slower speed to avoid skidding and overturning, compared to running straight ahead. Deocampo could have avoided the vehicle if he was not driving very fast while following the pick-up. Deocampo was not only driving fast, he also admitted that he did not step on the brakes even upon seeing the pick-up. He only stepped on the brakes after the collision. Pantranco vs Baesa FACTS:  Spouses Baesa, their 4 children, the Ico spouses and their son and 7 other people boarded a passenger jeep driven by David Ico to go to a picnic in Isabela, to celebrate the 5th wedding anniversary of the Baesa spouses  While they were proceeding towards Malalam River at a speed of about 20 kph, a speeding PANTRANCO bus from Aparri, on a route to Manila, encroached on the jeepney’s lane while negotiating a curve, and collided with it.  As a result, the entire Baesa family, except for their daughter Maricar Baesa, as well as David Ico, died, and the rest suffered from injuries. Maricar Baesa, through her guardian filed separate actions for damages arising from quasi-delict against PANTRANCO.  PANTRANCO: alleged David Ico's negligence as a proximate cause of the accident and invoked the defense of due diligence in the selection and supervision of its driver.  CA upheld RTC: favor of Baesa ISSUE: W/N the last clear chance applies thereby making David Ico who had the chance to avoid the collision negligent in failing to utilize with reasonable care and competence HELD: NO.    Generally, the last clear change 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 for damages For the last clear chance doctrine to apply, it is necessary to show that the person who allegedly has the last opportunity to avert the accident was aware of the existence of the peril, or should, with exercise of due care, have been aware of it  there is nothing to show that the jeepney driver David Ico knew of the impending danger 1 When he saw at a distance that the approaching bus was encroaching on his lane, he did not immediately swerve the jeepney to the dirt shoulder on his right since he must have assumed that the bus driver will return the bus to its own lane upon seeing the jeepney approaching form the opposite direction 2 Even assuming that the jeepney driver perceived the danger a few seconds before the actual collision, he had no opportunity to avoid it last clear chance doctrine can never apply where the party charged is required to act instantaneously, and if the injury cannot be avoided by the application of all means at hand after the peril is or should have been discovered Consolidated bank vs CA Facts: Private respondent L.C. Diaz instructed his employee, Calapre, to deposit in his savings account in petitioner bank. Calapre left the passbook of L.C. Diaz to the teller of the petitioner bank because it was taking time to accomplish the transaction and he had to go to another bank. When he returned, the teller told him that somebody got it. The following day, an impostor succeeded in withdrawing P300,000.00 by using said passbook and a falsified withdrawal slip. Private respondent sued the bank for the amount withdrawn by the impostor. The trial court dismissed the complaint but the CA reversed the decision of the trial court and held the bank liable. Issue: Whether or not petitioner bank is liable solely for the amount withdrawn by the impostor. Held: No. The bank is liable for breach of contract due to negligence or culpa contractual. The contract between the bank and its depositor is governed by the provisions of the Civil Code on simple loan. Article 1172 of the Civil Code provides that “responsibility arising from negligence in the performance of every kind of obligation is demandable”. The bank is liable to its depositor for breach of the savings deposit agreement due to negligence or culpa contractual. “The bank is under obligation to treat the accounts of its depositors with meticulous care, always having in mind the fiduciary nature of their relationship (Simex International vs. CA)”. The tellers know, or should know, that the rules on savings account provide that any person in possession of the passbook is presumptively its owner. If the tellers give the passbook to the wrong person, they would be clothing that person presumptive ownership of the passbook, facilitating unauthorized withdrawals by that person. The doctrine of last clear chance states that where both parties are negligent but the negligent act of one is appreciably later than that of the other, or where it is impossible to determine whose fault or negligence caused the loss, the one who had the last clear opportunity to avoid the loss but failed to do so, is chargeable with the loss. This doctrine is not applicable to the present case. The contributory negligence of the private respondent or his last clear chance to avoid the loss would not exonerate the petitioner from liability. However, it serves to reduce the recovery of damages by the private respondent. Under Article 1172, “the liability may be regulated by the courts, according to the circumstances”. In this case, respondent L.C. Diaz was guilty of contributory negligence in allowing a withdrawal slip signed by its authorized signatories to fall into the hands of an impostor. Thus, the liability of petitioner bank should be reduced. In PHILIPPINE BANK OF COMMERCE VS. CA, the Supreme Court allocated the damages between the depositor who is guilty of contributory negligence and the bank on a 40-60 ratio. The same ruling was applied to this case. Petitioner bank must pay only 60% of the actual damages. Contributory Negligence Valenzuela vs CA FACTS:  June 24, 1990 2 am: While driving from her restaurant at Araneta avenue towards the direction of Manila, Ma. Lourdes Valenzuela noticed that she had a flat tire so she parked along the sidewalk about 1 1/2 feet away, place her emergency lights and seeked help  She was with her companion Cecilia Ramon  While she was pointing her tools to the man who will help her fixed the tires, she was suddenly hit by another Mitsubishi Lancer driven by Richard Li who was intoxicated and she slammed accross his windshield and fell to the ground  She was sent to UERM where she stayed for 20 days and her leg was amputated and was replaced with an artificial one.    Her expenses totalled 147, 000 [120,000 php (confinement) + 27, 000 (aritificial leg)]  RTC: Richard Li guilty of gross negligence and liable for damages under Article 2176 of the Civil Code. Alexander Commercial, Inc., Li’s employer, jointly and severally liable for damages pursuant to Article 2180 P41,840 actual damages, P37,500 unrealized profits because of the stoppage of plaintiffs Bistro La Conga restaurant 3 weeks after the accident on June 24, 1990, P20,000 a month as unrealized profits of Bistro La Conga restaurant, from August, 1990 until the date of this judgment, P30,000.00, a month, for unrealized profits in 2 Beauty salons, P1,000,000 in moral damages, P50,000, as exemplary damages, P60,000, as reasonable attorney’s fees and costs.  Li: 55 kph - self serving and uncorraborated  Rogelio Rodriguez, the owner-operator of an establishment located just across the scene of the accident: Valenzuela’s car parked parallel and very near the sidewalk and Li was driving on a very fast speed and there was only a drizzle (NOT heavy rain) NO. Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection emergency rule  1 an individual who suddenly finds himself in a situation of danger and is required to act without much time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence if he fails to undertake what subsequently and upon reflection may appear to be a better solution, unless the emergency was brought by his own negligence She is not expected to run the entire boulevard in search for a parking zone or turn on a dark Street or alley where she would likely find no one to help her 2 She stopped at a lighted place where there were people, to verify whether she had a flat tire and to solicit help if needed 3 she parked along the sidewalk, about 1½ feet away, behind a Toyota Corona Car Isaac vs A.L. Ammen FACTS: Before reaching his destination, a pick-up car at full speed and was running outside of its proper lane came from the opposite direction 1 The driver of the bus swerved the bus to the very extreme right of the road until its front and rear wheels have gone over the pile of stones or gravel situated on the rampart of the road. 2 The bus could not bus farther right and run over a greater portion of the pile of gravel, the peak of which was about 3 feet high, without endangering the safety of his passengers. 3 Despite efforts, the rear left side of the bus was hit by the pick-up car  He was rushed to a hospital in Iriga, Camarines Sur where he was given bloodtransfusion to save his life  After 4 days, he was transferred to another hospital in Tabaco, Albay, where he under went treatment for 3 months  Later, he was moved to the Orthopedic Hospital where he was operated on and stayed for another 2 months.  He incurred expenses of P623.40, excluding medical fees which were paid by A.L. Ammen Trans. Co.  Trial Court: Dismissed the complaint - collision occurred due to the negligence of the driver of the pick-up car HELD: CA modified with reinstating the RTC decision   CA: there was ample evidence that the car was parked at the side but absolved Li's employer ISSUE: W/N Valenzuela was guilty of contributory negligence - NO  May 31, 1951: Cesar Isaac boarded Bus No. 31 from Ligao, Albay bound for Pili, Camarines Sur and seated himself on the left side resting his left arm on the window sill but with his left elbow outside the window ISSUE: W/N if there is no negligence on the part of the common carrier but that the accident resulting in injuries is due to causes which are inevitable and which could not have been avoided or anticipated notwithstanding the exercise of that high degree of care and skill which the carrier is bound to exercise for the safety of his passengers neither the common carrier nor the driver is liable therefor HELD: YES. Appealed decision is AFFIRMED. ART. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to observe extra ordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them according to all the circumstances of each case. Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734, 1735, and 1745, Nos. 5, 6, and 7, while the extraordinary diligence for the safety of the passengers is further set forth in articles 1755 and 1756 Ooom. ART. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances. ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as prescribed in articles 1733 and 1755.  principles governing the liability of a common carrier: 1. the liability of a carrier is contractual and arises upon breach of its obligation. There is breach if it fails to exert extraordinary diligence according to all circumstances of each case 2. a carrier is obliged to carry its passenger with the utmost diligence of a very cautious person, having due regard for all the circumstances 3. a carrier is presumed to be at fault or to have acted negligently in case of death of, or injury to, passengers, it being its duty to prove that it exercised extraordinary diligence 4. the carrier is not an insurer against all risks of travel  where a carrier's employee is confronted with a sudden emergency, the fact that he is obliged to act quickly and without a chance for deliberation must be taken into account, and he is held to the some degree of care that he would otherwise be required to exercise in the absence of such emergency but must exercise only such care as any ordinary prudent person would exercise under like circumstances and conditions, and the failure on his part to exercise the best judgment the case renders possible does not establish lack of care and skill on his part   Considering all the circumstances, we are persuaded to conclude that the driver of the bus has done what a prudent man could have done to avoid the collision It is true that Isaac's contributory negligence cannot relieve A.L. Ammen of its liability but will only entitle it to a reduction of the amount of damage caused (Article 1762, new Civil Code), but this is a circumstance which further militates against the position taken by Isaac Cusi v. PNR| Guerrero J. FACTS • Spouses Cusi attended a birthday party in Paranaque, Rizal. After the party which broke up at about 11 o'clock that evening, the spouses proceeded home in their Vauxhall car with Victorino Cusi at the wheel. Upon reaching the railroad tracks, finding that the level crossing bar was raised and seeing that there was no flashing red light, and hearing no whistle from any coming train, Cusi merely slack ened his speed and proceeded to cross the tracks. At the same time, a train bound for Lucena traversed the crossing, resulting in a collision between the two. • This accident caused the spouses to suffer deformities and to lose the earnings they used to enjoy as successful career people. • The defense is centered on the proposition that the gross negligence of Victorino Cusi was the proximate cause of the collision; that had he made a full stop before traversing the crossing as required by section 56(a) of Act 3992 (Motor Vehicle Law), he could have seen and heard the approach of the train, and thus, there would have been no collision. ISSUES & ARGUMENTS W/N Victorino Cusi was negligent and such was the proximate cause of the collision HOLDING & RATIO DECIDENDI No. • Negligence has been defined by Judge Cooley in his work on Torts as "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." • All that the law requires is that it is always incumbent upon a person to use that care and diligence expected of reasonable men under similar circumstances. • Undisputably, the warning devices installed at the railroad crossing were manually operated; there were only 2 shifts of guards provided for the operation thereof — one, the 7:00 A.M. to 3:00 P. M. shift, and the other, the 3:00 P.M. to 11:00 P.M. shift. On the night of the accident, the train for Lucena was on an unscheduled trip after 11:00 P.M. During that precise hour, the warning devices were not operating for no one attended to them. Also, as observed by the lower court, the locomotive driver did not blow his whistle, thus: "... he simply sped on without taking an extra precaution of blowing his whistle. That the train was running at full speed is attested to by the fact that notwithstanding the application of the emergency brakes, the train did not stop until it reached a distance of around 100 meters." • Victorino Cusi had exercised all the necessary precautions required of him as to avoid injury to -himself and to others. We find no need for him to have made a full stop; relying on his faculties of sight and hearing, Victorino Cusi had no reason to anticipate the impending danger • The record shows that the spouses Cusi previously knew of the existence of the railroad crossing, having stopped at the guardhouse to ask for directions before proceeding to the party. At the crossing, they found the level bar raised, no warning lights flashing nor warning bells ringing, nor whistle from an oncoming train. They safely traversed the crossing. On their return home, the situation at the crossing did not in the least change, except for the absence of the guard or flagman. Hence, on the same impression that the crossing was safe for passage as before, plaintiffappellee Victorino Cusi merely slackened his speed and proceeded to cross the tracks, driving at the proper rate of speed for going over railroad crossings TABACALERA vs. NORTH FRONT SHIPPING SERVICES FACTS: Petitioners are insurers of a shipment of sacks of corn grains consigned to Republic Flour Mills Corporation in Manila. The cargo was shipped by North Front Shipping Services, Inc. The consignee was advised of its arrival but the unloading was delayed for six days for unknown reason, and the merchandise was already moldy, rancid and deteriorating. The moisture content and the wetting was due to contact with salt water but the mold growth was only incipient and not sufficient to make the corn grains toxic and unfit for consumption. In fact the mold growth could still be arrested by drying. However, Republic Flour rejected the entire cargo which therefore forced the petitioners to pay the former. Now, as subrogees, they lodged a complaint for damages against respondents claiming that the loss was exclusively attributable to the fault and negligence of the carrier. The Marine Cargo Adjusters hired by the insurance companies conducted a survey and found cracks in the bodega of the barge and heavy concentration of molds on the tarpaulins and wooden boards. They did not notice any seals in the hatches. The tarpaulins were not brand new as there were patches on them, contrary to the claim of North Front Shipping Services, Inc., thus making it possible for water to seep in. They also discovered that the bulkhead of the barge was rusty. The trial court dismissed the complaint and ruled that the contract entered into between North Front Shipping Services, Inc., and Republic Flour Mills Corporation was a charter-party agreement. As such, only ordinary diligence in the care of goods was required. On the other hand, the Court of Appeals ruled that as a common carrier required to observe a higher degree of diligence North Front 777 satisfactorily complied with all the requirements hence was issued a Permit to Sail after proper inspection. Ma-ao Sugar Central Co., Inc. vs Court of Appeals FACTS • On March 22, 1980, Famoso was riding with a co-employee in the caboose or "carbonera" of Plymouth No. 12, a cargo train of the petitioner, when the locomotive was suddenly derailed. He and his companion jumped off to escape injury, but the train fell on its side, caught his legs by its wheels and pinned him down. He was declared dead on the spot. • The claims for death and other benefits having been denied by the petitioner, the herein private respondent filed suit in the Regional Trial Court of Bago City. Judge Marietta Hobilla-Alinio ruled in her favor but deducted from the total damages awarded 25% thereof for the decedent's contributory negligence and the total pension of P41,367.60 private respondent and her children would be receiving from the SSS for the next five years • The widow appealed, claiming that the deductions were illegal. So did the petitioner, but on the ground that it was not negligent and therefore not liable at all. • In its own decision, the Court of Appeals 2 sustained the rulings of the trial court except as to the contributory negligence of the deceased and disallowed the deductions protested by the private respondent. ISSUES & ARGUMENTS ISSUE: Whether or not a charter-party agreement between P and R requires extraordinary diligence. • W/N the respondent court is at fault for finding the petitioner guilty of negligence notwithstanding its defense of due diligence under Article 2176 of the Civil Code and for disallowing the deductions made by the trial court. HELD: Yes. The charter-party agreement between North Front Shipping Services, Inc., and Republic Flour Mills Corporation did not in any way convert the common carrier into a private carrier. HOLDING & RATIO DECIDENDI xxx To say the least, the Court views with regret the adamant refusal of petitioner Ma-ao Sugar Central to recompense the private respondent for the death of Julio Famoso, their main source of support, who was killed in line of duty while in its employ. It is not only a matter of law but also of compassion on which we are called upon to rule today. We shall state at the outset that on both counts the petition must fail. North Front Shipping Services, Inc., is a corporation engaged in the business of transporting cargo and offers its services indiscriminately to the public. It is without doubt a common carrier. As such it is required to observe extraordinary diligence in its vigilance over the goods it transports. When goods placed in its care are lost or damaged, the carrier is presumed to have been at fault or to have acted negligently. North Front Shipping Services, Inc., therefore has the burden of proving that it observed extraordinary diligence in order to avoid responsibility for the lost cargo. • Investigation of the accident revealed that the derailment of the locomotive was caused by protruding rails which had come loose because they were not connected and fixed in place by fish plates. Fish plates are described as strips of iron 8" to 12" long and 3 1/2" thick which are attached to the rails by 4 bolts, two on each side, to keep the rails aligned. Although they could be removed only with special equipment, the fish plates that should have kept the rails aligned could not be found at the scene of the accident. However, we cannot attribute the destruction, loss or deterioration of the cargo solely to the carrier. We find the consignee Republic Flour Mills Corporation guilty of contributory negligence. It was seasonably notified of the arrival of the barge but did not immediately start the unloading operations. No explanation was proffered by the consignee as to why there was a delay of six (6) days. Had the unloading been commenced immediately the loss could have been completely avoided or at least minimized. As testified to by the chemist who analyzed the corn samples, the mold growth was only at its incipient stage and could still be arrested by drying. The corn grains were not yet toxic or unfit for consumption. • There is no question that the maintenance of the rails, for the purpose inter alia of preventing derailments, was the responsibility of the petitioner, and that this responsibility was not discharged. According to Jose Treyes, its own witness, who was in charge of the control and supervision of its train operations, cases of derailment in the milling district were frequent and there were even times when such derailments were reported every hour. The petitioner should therefore have taken more prudent steps to prevent such accidents instead of waiting until a life was finally lost because of its negligence. • The argument that no one had been hurt before because of such derailments is of course not acceptable. And neither are we impressed by the claim that the brakemen and the conductors were required to report any defect in the condition of the railways and to fill out prescribed forms for the purpose. For what is important is that the petitioner should act on these reports and not merely receive and file them. The fact that it is not easy to detect if the fish plates are missing is no excuse either. Subsequently, on June 3, 1983, petitioner was dismissed for gross negligence. On June 21, 1983, she filed a complaint for illegal dismissal with reinstatement and backwages. Indeed, it should stress all the more the need for the responsible employees of the petitioner to make periodic checks and actually go down to the railroad tracks and see if the fish plates were in place. On January 31, 1984, Labor Arbiter Bienvenido Hermogenes rendered a decision dismissing the complaint as well as the counterclaim but without prejudice as to the latter. 1 Petitioner's appeal to the NLRC was dismissed for lack of merit 2 and her motion for reconsideration was denied. 3 Hence, this petition. • It is argued that the locomotive that was derailed was on its way back and that it had passed the same rails earlier without accident. The suggestion is that the rails were properly aligned then, but that does not necessarily mean they were still aligned afterwards. It is possible that the fish plates were loosened and detached during its first trip and the rails were as a result already mis-aligned during the return trip. But the Court feels that even this was unlikely, for, as earlier noted, the fish plates were supposed to have been bolted to the rails and could be removed only with special tools. The fact that the fish plates were not found later at the scene of the mishap may show they were never there at all to begin with or had been removed long before. • At any rate, the absence of the fish plates – whatever the cause or reason – is by itself alone proof of the negligence of the petitioner. Res ipsa loquitur. The doctrine was described recently in Layugan v. Intermediate Appellate Court, thus: Where the thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care. Fuentes vs NLRC Petitioner Maria Linda Fuentes seeks to set aside the resolution dated November 28, 1985 of the National Labor Relations Commission (NLRC for brevity) affirming the Labor Arbiter's dismissal of her complaint for illegal dismissal against private respondent Philippine Banking Corporation (Philbanking for brevity). Petitioner was employed as a teller at the Philbanking's office at Ayala Avenue, Makati, Metro Manila. On May 28, 1982, at about 10:30 a.m., petitioner, who was acting as an overnight teller, received a cash deposit of P200,000.00. She counted the money with the assistance of a co-teller, finishing the task at 10:40 a.m. or ten (10) minutes after her closing time. Before she could start balancing her transactions, the Chief Teller handed her several payroll checks for validation. Finding the checks to be incomplete, petitioner left her cage to get other checks, without, however, bothering to put the P200,000.00 cash on her counter inside her drawer. When she returned to her cubicle after three (3) to five (5) minutes, she found that the checks for validation were still lacking, so she went out of her cubicle again to get the rest of the checks. On her way to a co-teller's cubicle, she noticed that the P200,000.00 pile on her counter had been re-arranged. She thus returned to her cage, counted the money and discovered that one (1) big bundle worth P50,000.00 was missing therefrom. She immediately asked her co-teller about it and getting a negative reply, she reported the matter to the Chief Teller. A search for the P50,000.00 having proved unavailing, petitioner was asked to explain why she should not be held liable for the loss. She submitted her explanation on June 24, 1982. Private respondent bank seasonably filed an answer with counterclaim that petitioner be ordered to restitute the amount of P50,000. The issue in this case is whether petitioner's dismissal on the ground of gross negligence was justified under Art. 282 of the Labor Code. Upon a thorough consideration of the facts of this case, the Court finds no cogent reason for reversing the conclusion of the Labor Arbiter and the NLRC that petitioner was grossly negligent in the performance of her duties as a teller, which negligence resulted in the loss of P50,000.00. Applying the test of negligence, we ask: did the petitioner in doing the alleged negligent act use reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, she is guilty of negligence. The circumstances surrounding the loss in question lend us no sympathy for petitioner. It was established that petitioner simply left the pile of money within easy reach of the crowd milling in front of her cage, instead of putting it in drawer as required under the private respondent bank's General Memorandum 211 (Teller's Manual of Operations) which she was expected to know heart. 4 Moreover, she left the P200,000.00 on two occasions. 5 the the her No. by Her irresponsibility is nowhere made apparent than in her response to the following question: Q Noong lumabas ka sa iyong cage para pumunta sa iyong Chief Teller, hindi ba ipinagbilin itong pera sa iyong kasamahan? A Hindi ko na ho ipinagbilin kasi masyadong maraming tao noon, at iyong aking teller's counter ay nilagyan ko ng sign na nakasulat ng 'next teller please' na ang ibig sabihin ay kung meron mang mga cliente doon sa akin ay doon muna sila makipagtransact ng negosyo sa kabilang teller o kung sino man ang bakante kasi busy ako. 6 As a teller, petitioner must realize that the amount of care demanded by reasonable conduct is that proportionate to the apparent risk. Since it was payday and depositors were milling around, petitioner should have been extra cautious. At no time than the occasion under consideration was the need to be extra careful more obvious. It was certainly not the time to breach the standard operating procedure of keeping one's cash in the drawer as a precautionary and security measure. "A teller's relationship with the bank is necessarily one of trust and confidence. The teller as a trustee is expected to possess a high degree of fidelity to trust and must exercise utmost diligence and care in handling cash. A teller cannot afford to relax vigilance in the performance of his duties." 7 Petitioner argues that there was contributor negligence on the part of private respondent bank consisting in its failure to conduct an investigation minutes after the loss. We do not agree with petitioner. The failure of private respondent bank to conduct an investigation minutes after the loss was totally distinct and independent of, as well as remotely related to the fact of loss itself. the law in protecting the rights of the employee/laborer authorizes neither oppression nor self-destruction of the employer. 10 Petitioner Fuentes cannot invoke private respondent's alleged contributory negligence as there was no direct causal connection between the negligence of the bank in not conducting the investigation and the loss complained of. In a legal sense, negligence is contributory only when it contributes proximately to the injury, and not simply a condition for its occurrence. Gutierrez, Jr., Feliciano, Bidin and Cortes, JJ., concur. In the case at bar, the bank's inaction merely created a condition under which the loss was sustained. Regardless of whether there was a failure to investigate, the fact is that the money was lost in the first place due to petitioner's gross negligence. Such gross negligence was the immediate and determining factor in the loss. CARSON, J.: Besides, the petitioner's position is anathema to banking operations. By conducting an instant search on its depositors for every loss that occurs, management holds suspect each depositor within its premises. Considering that currency in the form of money bills bears no distinct earmarks which would distinguish it from other similar bills of similar denominations except as to its serial numbers, any innocent depositor with P50,000 in his possession would be a likely suspect. Such act would do violence to the fiduciary relationship between a bank and its depositors. Ultimately it will result in the loss of valued depositors. The information alleges: "That on or about the 13th day of September, 1912, in the city of Manila, Philippine Islands, the said E. M. Knight, being then and there a chauffeur driving automobile truck No. 774, as registered by the Bureau of Public Works, and No. 4 of the quartermaster department, through Calle Isaac Peral of this city, willfully, unlawfully, with reckless imprudence, and in violation of regulations, conducted and drove aid automobile truck a greater speed than was reasonable and proper, without regard to the state of traffic and other conditions of the said street and of the atmosphere and weather, and without sounding a horn or ringing a bell, or attracting in any other way the attention of the passers-by, or keeping to the lefthand side of the road, according to the direction he was going, thereby permitting the said and auto truck, through his inexcusable recklessness and carelessness, as aforesaid, to run over one Joe Prestuosa, fracturing his skull and thereby causing his instantaneous death; that if the acts committed by the defendant had been done with malice, he would have been guilty of the grave crime of homicide: contrary to law." Petitioner argues further that the NLRC failed to consider that petitioner left her cage at the instance of the Chief Teller. Again we are not persuaded. The findings of the NLRC are clear. Petitioner left at her own volition to approach her Chief Teller to ask for the remaining checks to ascertain their authenticity and completeness. Besides, irrespective of who summoned her, her responsibility over the cash entrusted to her remained. Although petitioner's infraction was not habitual, we took into account the substantial amount lost. Since the deposit slip for P200,000.00 had already been validated prior to the loss, the act of depositing had already been complete and from thereon, the bank had already assumed the deposit as a liability to its depositors. Cash deposits are not assets to banks but are recognized as current liabilities in its balance sheet. It would be most unfair to compel the bank to continue employing petitioner. In Galsim v. PNB, 8 we upheld the dismissal of a bank teller who was found to have given money to a co-employee in violation of bank rules and regulations. Said act, which caused prejudice to the bank, was a justifiable basis for the bank to lose confidence in the employee. Similarly, in the case at bar, petitioner, as aforesaid, violated private respondent bank's General Memorandum, No. 211 (Teller's Manual of Operations) which strictly says: Cash should never be left exposed. The coins and currencies should be kept in drawers where they are not accessible to someone through the windows with the aid of a stick or other devices. 9 An employer cannot legally be compelled to continue with the employment of a person admittedly guilty of gross negligence in the performance of his duties and whose continuance in his office is patently inimical to the employer's interest. "For WHEREFORE, the instant petition is hereby DISMISSED. The assailed decision dated November 28,1985 of the National Labor Relations Commission is affirmed in toto. Accidents / Caso Fortuito US. Vs E.M. Knight This is an appeal from a judgment of the Court of First Instance of Manila convicting the defendant and appellant of reckless negligence resulting in homicide. The trial court found the defendant guilty of reckless negligence resulting in homicide as defined and penalized in article 568 of the Penal Code, and sentenced him to one year and one day of prision correccional, to pay an indemnity in the sum of P500 to the heirs of the deceased, and to the payment of the costs. The undisputed facts as developed by the evidence of record may be briefly summarized as follows: About 3.30 in the afternoon of the 13th of September, 1912, the defendant, a chauffeur in the employ of the quartermaster's department of the United States Army, was proceeding in charge of a heavily loaded automobile truck along Calle Isaac Peral toward the bay. Except for a steam road roller, which was slowly making its way in the same direction, in advance of the truck, the street was wholly unoccupied at that time. Just as the truck was passing the slow-moving road roller, a boy about 10 or 12 years of age jumped from the step or sideboard of the road roller directly in front of the truck, was knocked down, run over, and instantly killed. Giving the accused the benefit of any doubt which might arise upon a review of all the testimony, it further appears that while the truck was still a considerable way behind the road roller, the boy, who had been running alongside the road roller, jumped on the step or sideboard to take a ride; that the truck was running at the rate of about 8 miles an hour as it came up with the road roller; that at a distance of about 45 or 50 feet from the road roller, and while on or approaching a small bridge near the Columbia Club, the defendant sounded his horn twice and then began to turn to the right in order to pass the road roller, which was on the left side of the street; that at that point the street was about 14 meters wide, and that except for the road roller and those riding upon it the street was wholly unoccupied and clear of all obstruction. Basing our conclusions on these facts we agree with the Solicitor-General that the prosecution failed to establish its charge of reckless negligence. In reviewing the conduct of the defendant, in order to determine whether or not he was recklessly negligent on the occasion when the accident occurred, it will be well to have in mind the following sections of Act No. 2159, which quite clearly prescribe the course which it was his duty to pursue under all the circumstances. SEC. 24. No person shall operate a motor vehicle on any highway in these Islands recklessly or at a rate of speed greater than is reasonable and proper, having regard to the width, traffic, grades, crossing, curvatures, and other conditions of the atmosphere and weather, or so as to endanger the property of the safety or rights of any person or so as to cause excessive or unreasonable damage to the highway. No person shall unreasonably obstruct or impede the passage or right of travel of any motor vehicle or operator thereof and no operator shall unreasonably obstruct the passage of any other vehicle or person on any highway. Every person found guilty of violating the provisions of this section shall be punished by a fine of not less than five nor more than fifty pesos or by imprisonment of not more than six months or by both such fine and imprisonment. SEC. 25. Every person operating a motor vehicle on a highway shall turn to the left when meeting persons or vehicles coming toward him, and to the right when overtaking persons or vehicles going in the same direction, unless a different course of action is required in the interests of the safety and security of the safety and security of life, person, or property. xxx xxx xxx SEC. 31. When meeting or overtaking persons or vehicles every operator of a motor vehicle shall give timely notice and warning of his proximity by sounding his horn. Such warning should be sounded when the operator, having regard to the speed at which he is traveling, is still a safe distance from the person or vehicle about to be met or overtaken and before the motor vehicle has drawn opposite to or abreast of such person or vehicle, the intent of this provision being the requirement of a warning within such a distance that the same will be clearly heard and not within such short distance that, owing to its nearness and suddenness, it is likely to cause fright or startle the person, horse or other animal which is being met or overtaken. As pointed out by counsel for the appellant, in his very interesting brief, the charge of reckless negligence in this case cannot be sustained unless the evidence be deemed sufficient to establish either that the accident was due to the fact that, when it occurred defendant was on the wrong side of the street; or that he was running at an excessive speed; or that he had failed to give timely notice of his approach to those who were riding on the road roller by sounding his horn. As to the contention that the defendant was on the wrong side of the street when the accident occurred, it is sufficient to say that on the broad unobstructed street, wholly unoccupied except for the slow-moving road roller, he was clearly within his rights in attempting to pass to the right, as the evidence shows that he did; and indeed, it will be seen that in doing so he was proceeding strictly in conformity with the provisions of section 25 of Act No. 2159, above cited. One person is not compelled to travel behind another on the highway, and one has not the exclusive right to precede another. The traveler may pass to the front when he can do so in safety. (Clifford vs. Tyman, 61 N. H., 508, 510; Law of Automobiles, Berry, 113.) The contention as to alleged excessive speed at which the accused was running and his failure to give timely warning of his intention to pass would seem to be sufficiently disposed of by our findings that, at the time of the accident, he was running at the rate of about 8 miles an hour, and that he blew his horn twice at a distance of between 45 and 50 feet from the road roller. There is some conflict in the record upon these points, but we think that the clear weight of the evidence sustains our findings in this regard, and the Solicitor-General practically concedes both these contentions to the defendant. Certain it is that the evidence does not sustain findings to the contrary beyond a reasonable doubt, and this being a criminal prosecution, the benefit of any doubts which may arise from an examination of the testimony should be given to the accused. In the absence of some exceptional circumstance, a speed of 8 miles an hour maintained by an automobile or automobile truck on a wide, obstructed, and unoccupied street, in broad daylight, cannot be said to be excessive; and the accused having sounded his horn twice before he came up with the road roller, and before he turned out in the road in the attempt to pass, must be held to have complied with the regulations in that regard. (See section 31 of Act No. 2159, above cited.) The Solicitor-General in concluding his brief recommends that the judgment of the lower court be reversed, but that the appellant be convicted of the offense defined and penalized in the second paragraph of article 568 of the Penal Code. In support of this contention he says: The first paragraph of article 568 under which the defendant was sentenced reads thus: "Any person who by reckless imprudence . . . ." From the evidence it is plain that the defendant was not guilty of 'reckless imprudence,' and should not have been sentenced under that paragraph. It seems certain, however, that the defendant has violated section 24 of Act No. 2159, in that he operated his motor vehicle in such a way as to endanger life and cause the death of Jose Prestuosa, and should have been punished according to the second paragraph of article 568 of the Penal Code, which reads: "Any person who, while violating any regulation, shall, by any act of imprudence or negligence not amounting to reckless imprudence, commit an offense, shall suffer the penalty of arresto mayor in its medium and maximum degrees." The Solicitor-General's argument would seem to be that proof that a fatal automobile accident occurred is conclusive proof of a violation of the above cited section 24 of Act No. 2159, and that while the defendant was not shown to be guilty of reckless negligence he was guilty of negligence not amounting to reckless negligence in two respects: First, in passing a playing boy at a speed, which, however slow it may have been, was still too fast to avoid the accident; and, second, granting that the horn was blown at a distance of 40 or 50 feet from the boy, the defendant was negligent in not continuing to sound the horn until he had passed the child. We cannot agree with the Solicitor-General in these contentions. They would seem, in their last analysis, to rest on the theory that when one is injured or killed by an automobile it may always be presumed that there was some negligence on the part of the chauffeur and a violation of the above cited section 24 of Act No. 2159, prohibiting the operation of a motor vehicle on any highway recklessly or so as to endanger the property or the safety or rights of any person. Stated in this form the contention is manifestly untenable. Automobile accidents may happen and do happen for which the persons operating the machines are in no wise responsible. In the case of United States vs. Tayongtong (21 Phil. Rep., 476), wherein we reversed a judgment of conviction of a chauffeur charged with reckless negligence in running down and killing a foot passenger, we said that: . . . Where death is due to the negligence of the decedent himself and not to the negligence of the driver of automobile, the latter cannot be held for homicide. In this case the death of the deceased was due entirely to his own negligence. There is not sufficient reliable proof in the record to establish negligence on the part of the accused. There being no negligence, he is not responsible, no matter what the result of the accident may have been. So, in the case of United States vs. Bacho (10 Phil. Rep., 574), we said: ". . . In the general experience of mankind, accidents apparently unavoidable and often inexplicable are unfortunately too frequent to permit us to conclude that some one must be criminally liable for negligence in every case where an accident occurs. It is the duty of the prosecution in each case to prove by competent evidence not only the existence of criminal negligence, but that the accused was guilty thereof." In support of his claim that there was some negligence on the part of the defendant and that his conduct amounted to a violation of Act No. 2159, the Solicitor-General contends that while "a prudent man under the same conditions might not have taken any greater precaution" then did the defendant, nevertheless the defendant was negligent in that he did not take extraordinary precautions when he saw the boy riding on the road roller. The Solicitor-General insists that he should have reduced his speed lower than the comparatively slow rate of 8 miles an hour at which he was running, and that he should have continued to sound his horn from the moment he saw the boy until he passed him. We think, however, that we would not be justified in holding the drivers of motor vehicles to such extraordinary precautions. The employment of an automobile on the highway as a means of transportation is a lawful use of the road, and if it results in an injury to one traveling by another mode the driver of the automobile cannot be held liable for injury, unless it is made to appear that he used the machine at a time, or in manner, or under circumstances inconsistent with a proper regard for the rights of others. (McIntyre vs. Ames (Ind.), 8-1087.) So long as motor vehicles are not used at a time or in a manner or under circumstances inconsistent with the rights of others, or in violation of the regulations, their owners are entitled to all the advantages afforded by a commodious and speedy means or transportation. While those who undertake to drive high-power motor vehicles over the public highways may be, and should be required to exercise great care and skill in the management and control of their machines so as to avoid inflicting injury upon others, still, they should not be required to exercise such extraordinary precautions as would be necessary to avoid all possibility that others may be injured in person or property as a result of their own negligence or of unforseen contingencies which a prudent and skillful driver could not be expected to anticipate and provide against. It is true that the statute penalizes the operation of a motor vehicle recklessly or an excessive rate of speed, "or so as to endanger the property or safety or rights of any person;" but this does not mean that in any case where an accident occurs it can be presumed that there was a violation of the provisions of the statute. If it appears that the machine was being operated carefully, prudently, and skillfully at the time when the accident occurred, having regard to all the surrounding circumstances, it cannot fairly be said to have been operated "so as to endanger the property, safety, or rights of any person." Whatever may have been the cause of the accident, if it cannot be attributed to the misconduct or the negligence of the operator in the management of the machine, he cannot be held liable either civilly or criminally.1awphi1.net To hold otherwise would be to place an intolerable burden on the use and enjoyment of a class of vehicles of known and admitted utility, and would be a violation of the sound legal principles on which the doctrine of criminal liability as well as that of civil liability for personal injuries have their basis. Had the lad who was run over and killed been a little child below "the age of understanding," or as it is sometimes expressed "below the thinking age," there would be much ground for the contention of the Solicitor-General that the accused was guilty of a violation of the ordinance; indeed, under the doctrine laid down in United States vs. Clemente (24 Phil. Rep., 178), there can be little doubt that had the lad been a child under the age of understanding, the failure of the accused to have the truck under such perfect control that the accident could have been avoided would have rendered him subject to conviction of the crime of homicide by reckless negligence with which he was charged. In that case we said, in the language of the syllabus prepared by the writer of the opinion:lawphil.net Duty of all drivers of vehicles and street cars; children in the streets. — It is the duty of any person driving a vehicle, and especially a street car, in the public thoroughfares to reduce the same to control ready to be stopped at any moment if he sees a child below the age of understanding in such a place that it can, by any reasonable chance, place itself in a dangerous position with respect to the vehicle. In such case the vehicle must be under such control that, if the child, by some sudden or unusual movement, places itself in the way of the vehicle, it can stopped in time to avert injury. Vehicles are not permitted to be driven in the public streets in such a way as to endanger the life of child below the thinking age who may have strayed upon the streets in search of its mother or who may be there for any other purpose; the child having no judgment of its own, the drivers of vehicles must substitute theirs; not having the intelligence to direct itself, men who drive cars of vehicles must exercise their intelligence on its behalf. Seeing such child in the street in front of his vehicle, the driver thereof must reduce the vehicle to such control that, if the child by a sudden dart places itself in front of the vehicle, the driver may save it from injury by stopping his vehicle. In the case at bar, however, the evidence clearly discloses that the boy who was killed was a lad 10 or 12 years of age. Boys 10 or 12 years of age, unattended by their parents or guardians, are always to be found on the streets and bypaths of our cities and villages, and no one questions their right to be there. A driver of a vehicle seeing a boy of that age on the street or side path may fairly assume that he has sufficient "intelligence to direct" himself under ordinary conditions. Indeed boys of that age are often more wide awake and alert in avoiding danger than are their elders, as anyone who has ever watched a crowd of lively newsboys playing their trade will readily agree. Manifestly, it would place an intolerable burden on all wheeled traffic on our streets and highways, to rule that the drivers of all vehicles, when they see boys 10 or 12 years of age on the street or side path or riding on other vehicles, unattended by their parents or guardians, must reduced their vehicles to such control that, if one of these boys "by a sudden dart" places himself in front of vehicle, "the driver may save him from injury by stopping his vehicle." Boys 10 or 12 years of age, who are permitted to go about unattended, may fairly be presumed to have sense enough to take care of themselves from the ordinary and usual dangers of street traffic. The accused in the case at bar cannot be said to have been negligent in the management of his machine, merely because he did not anticipate that the boy, 10 or 12 years of age, who was riding on the slow-moving road roller, would jump down directly in front of him at the moment when he turned his machine out into the open street in an effort to pass by. And it appearing that in all other respects he operated his machine carefully, prudently, and skillfully at the time when the accident occurred, having regard to all the surrounding circumstances, he must be acquitted of all criminal liability arising out of the unfortunate accident which resulted in the death of the boy.  The spouses were busy atching TV when they heard 2 loud explosions, smelt of gasoline and fire burned all their belongings  city fire marshall investigated and concluded that the fire was accidental  Spouses filed a complaint against Pascual for gross negligence and Perla for lacking the required diligence in the selection and supervision of its employee.  RTC: Pascual and Perla liable jointly and solidarily   Pascual was held liable under the doctrine of res ipsa loquitur CA: affirmed but modified the amount of damages The judgment of the lower court convicting and sentencing the appellant should be and is hereby reversed, and he should be and is hereby acquitted of the offense with which he is charged, with the costs of both instances de oficio. ISSUE: Arellano, C.J., Torres, Moreland and Trent, JJ., concur. 1. W/N the doctrine of res ipsa loquitur is applicable - YES Perla Compania De Seguros, Inc., Et Al. V. Sps. Gaudencio And Primitiva Sarangaya (2005) 2. W/N Perla lacked the required diligence in the selection and supervision of its employee. - NO FACTS: HELD: DENIED  1986: Spouses Gaudencio Sarangaya III and Primitiva Sarangaya erected Super A Building, a semi-concrete, semi-narra, one-storey commercial building fronting the provincial road of Santiago, Isabela 1. YES.  Res ipsa loquitur  It has three doors which were leased out  Latin phrase which literally means “the thing or the transaction speaks for itself.  The two-storey residence of the Sarangayas was behind the second and third doors of the building  It relates to the fact of an injury that sets out an inference to the cause thereof or establishes the plaintiff’s prima facie case  On the left side of the commercial building stood the office of the Matsushita Electric Philippine Corporation (Matsushita)  The doctrine rests on inference and not on presumption  1988: Perla Compania de Seguros, Inc. through its branch manager Bienvenido Pascual, entered into a contract of lease of the first door beside the Matsushita office  facts of the occurrence warrant the supposition of negligence and they furnish circumstantial evidence of negligence when direct evidence is lacking It was converted into a two door so he had a garage where he parked a company car 1981 model 4-door Ford Cortina which he used to supervise different towns  based on the theory that the defendant either knows the cause of the accident or has the best opportunity of ascertaining it and the plaintiff, having no knowledge thereof, is compelled to allege negligence in general terms   July 7, 1988: Pascual went to San Fernando, Pampanga leaving the car   3 days later: When he returned and warmed up the car, it made an odd sound. On the second try, there was again an odd sound and a small flames came out of its engine so he was startled, stopped the car, went out and pushed it out of the garage plaintiff relies on proof of the happening of the accident alone to establish negligence  provides a means by which a plaintiff can pin liability on a defendant who, if innocent, should be able to explain the care he exercised to prevent the incident complained of Soon, fire spewed out of its rear compartment and burned the whole garage where he was trapped so he suffered burns in the face, legs and arms 1 defendant’s responsibility to show that there was no negligence on his part   Requisites of Res Ipsa Loquitur  1  1) the accident is of a kind which does not ordinarily occur unless someone is negligent “Ordinary” refers to the usual course of events 1 Flames spewing out of a car engine, when it is switched on, is obviously not a normal event. Neither does an explosion usually occur when a car engine is revved. 2 Pascual, as the caretaker of the car, failed to submit any proof that he had it periodically checked - negligence  2) the cause of the injury was under the exclusive control of the person in charge and  3) the injury suffered must not have been due to any voluntary action or contribution on the part of the person injured. When there is caso fortuito:  (a) the cause of the unforeseen and unexpected occurrence was independent of the human will 1 human agency must be entirely excluded as the proximate cause or contributory cause of the injury or loss -Not because car not maintained  (b) it was impossible to foresee the event which constituted the caso fortuito or, if it could be foreseen, it was impossible to avoid NOT under the control of pascual  (c) the occurrence must be such as to render it impossible to perform an obligation in a normal manner - Spouses had no access nor obligation for the maintenance  (d) the person tasked to perform the obligation must not have participated in any course of conduct that aggravated the accident 2. YES.  Perla did not include any rule or regulation that Pascual should have observed in performing his functions  There was no guidelines for the maintenance and upkeep of company property like the vehicle that caught fire  Did not require periodic reports on or inventories of its properties  Article 2180 of the Civil Code states that employers shall be liable for the damage caused by their employees. The liability is imposed on all those who by their industry, profession or other enterprise have other persons in their service or supervision  Nowhere does it state that the liability is limited to employers in the transportation business. People vs Mat-an This an appeal from a decision 1 dated March 7, 1989 of Regional Trial Court of Baguio City, Branch 5 in Criminal Case No. 4230 wherein accused-appellant Pacalso Mat-an y Kutbing or Kutubing was found guilty beyond reasonable doubt of the crime of PARRICIDE in an information filed on January 19, 1987 which reads: The undersigned accuses PACALSO MAT-AN y KUTBING or KATUBING of the crime of the PARRICIDE, committed as follows: That on or about the 24th day of December, 1986, in the City of Baguio, Philippines and within the jurisdiction of this Honorable Court , the above named accused, with intent to kill, did them and there willfully, unlawfully and feloniously attack, assault and strike his mother, Martha Mat-an, with a branch of pine tree, hitting the latter on the head, thereby inflicting upon the victim neurogenic shock secondary to contrecoup injuries of the brain, subdural hemorrhage and basal skull fracture all due to application of physical violence of the head, which injuries directly caused the death of said Martha K. Mat-an. 2 Upon arraignment, accused-appellant pleaded "NOT GUILTY" to the offense charged after due trial, the court a quo rendered a judgment against him, the dispositive portion of which reads as follows: WHEREFORE, the Court finds and declares the accused PACALSO MAT-AN y "KATUBING" or "KUTBING" guilty beyond reasonable doubt of the crime of parricide as charged, and hereby sentences him to suffer reclusion perpetua; to indemnify the heirs of the deceased Martha Katubing y Mat-an in the amounts of: P30,000.00 for the latter's death and P30,869.75 as consequential damages, representing the burial expenses; and to pay the costs. In the service of his sentence, the accused shall be credited with his preventive imprisonment under the terms and conditions prescribed in Article 29 of the Revised Penal Code, as amended. 3 It appears on record that at around 6 p.m. of December 24, 1986, David Mat-an, youngest brother of the accused-appellant, was walking towards a nearby store with his four (4) friends when he met accused-appellant, Pacalso Mat-an. Accused-appellant told David that he was going to talk to their sister, Brenda, and upon noticing that the former was holding a long piece of wood, drunk and only in his briefs, the latter decided to follow accused-appellant who is known to make trouble whenever he is drunk and had, in fact, killed their brother, Witty, in 1968. When accused-appellant reached the compound of the house of his sister, the former confronted the latter about the spilled water at his residence and told her to pay for one-half (1/2) of his water bill to which his sister readily agreed. Inspite of his, accused-appellant hit his sister's right jaw and left arm with the pine tree branch he was holding causing the latter to fall down on the ground. David, who followed accused-appellant and witnessed the incident tried to pacify the latter and told him to go home but accused-appellant, instead, hit his mother on the head with another piece of wood after arguing with her about an indebtedness involving money. To prevent the accused-appellant from inflicting further harm on their mother, David got an axe and hit the chest of the accused-appellant with it and the latter fled. Thereafter, David called his friends to help him bring his mother to Baguio Medical Center where the latter was pronounced dead on arrival. On the following day or on December 25, 1986, accused-appellant was arrested and a pine tree branch (Exhibit "A") used by the accused-appellant in hitting his mother was recovered from the scene of the crime. An autopsy conducted on the body of the victim by Dr. Emmanuel N. Fernandez, the medico-legal officer of the Baguio Health Department on the evening of December 25, 1986 reveal the following per his report, to wit: AUTOPSY FINDINGS: 1. Body of a female; medium built; height of 4' 7" and weight of about 90 lbs. 2. Rigor mortis beginning to disappear; postmortem lividity fully developed on the neck, back and buttocks; cornea cloudy; pupils dilated; pinkish conjunctive. 3. Presence of the following external injuries; a) Contusion-hematoma on the left malar region of the face. b) Contusion-hematoma on the right forearm, lateral aspect. c) Contusion on the medial aspect of the left knee. 4. INTERNAL FINDINGS: a) Presence of a subdural hemorrhage located over the left cocipital lobe and the left cerebellar hemisphere. b) Presence of a basal skull fracture on the left middle cranial vault. c) The rest of the internal organs are within normal limits. CAUSE OF DEATH Neurogenic shock secondary to contrecoup injuries of the brain, subdural hemorrhage and basal skull fracture due to application of physical violence on the head. 4 On the other hand, accused-appellant testified that at around 6 p.m. of December 24, 1986, he went to the house of his sister to advice the latter not to connect her water hose to his water hose as the connection was causing water to spill since his water hose does not have a gate valve. After informing his sister of said situation, his sister got mad and started cursing him causing accused-appellant to get mad that he slapped his sister causing the latter to fall down on the ground unconscious. Striken by a guilt complex, accused-appellant was about to help his sister when his brother David suddenly lunged at him and hit his left clavicle with an axe causing him to fall on the ground. As he was struggling to get up from the ground, he saw David about to hit him again with the axe and, in order to save himself from further injury, he picked up a piece of wood and swang the same towards David but instead hit his mother Martha who was about to embrace David to prevent the latter from hitting accused-appellant. Thereafter, accused-appellant ran away and proceeded to the Dr. Efrain Montemayor Medical Center for the treatment of his wound. Accused-appellant further denied that he was drunk when he went to his sister's house, although he admitted to have previously drunk a bottle of beer before proceeding to her house. The appeal is devoid of merit. It is well settled that appellate courts will generally not disturb the conclusions and findings of fact of the trial court considering that it is in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial, unless the court has plainly overlooked certain facts of substance and value that, if considered, might affect the result of the case. The conflicting testimonies of the accused-appellant and the prosecution witnesses with regards to the chain of events that occurred on that fateful day were properly assessed by the trial court in its decision which states that: The Court finds more credible the version of the prosecution that Pacalso deliberately struck his mother Martha with a piece of wood after picking up a quarrel with her over an indebtedness which he was insisting to be still subsisting but which Martha claimed to have already been paid. From all appearances, when Pacalso went to confront Brenda, with whom Martha was living, about Brenda's use of his water supply, he was ready for trouble. He went there only in his briefs and was holding a piece of wood. He even imbibed of liquor to embolden himself. In fact, he admitted to slapping Brenda although the latter asserted that he hit her with a piece of wood. His violent temper even towards his next of kin is amply shown by his having already killed his own brother, Witty, an attribution which he did not bother to deny. xxx xxx xxx Otherwise stated, it is more probable that David hit Pacalso with the axe only after the latter had struck Martha with a piece of wood in order to prevent Pacalso from inflicting further harm on Martha. This explains why Pacalso has not seen it right to complain against David up to the present time. 6 Furthermore, the testimonies of the prosecution witnesses were rendered in a direct, simple and consistent manner and there is no showing of any improper motive on their part to testify falsely against the accused-appellant. Besides, the injury sustained by the accused-appellant makes his claim of self-defense highly improbable since the wound inflicted upon him was such as to immobilize the latter's usage of his arms immediately after he was hit by his brother David. Thus, defense witness Dr. Samuel Lachica, resident physician of Dr. Efrain Montemayor Medical Center who treated accused-appellant's wound, testified that: Q. Now, what would happen to the person if hit by an axe? A. Due to this fracture and this wound, the first problem of the patient would be, of course, the limitation of range of motion over the left shoulder due to pain and there will be massive bleeding. Not only will it cause massive bleeding but it would also affect the neuro-vascular structures in which the patient cannot move the extremities, not even a little range of motion. 7 (Emphasis supplied) There is no doubt that accused-appellant killed his mother when he hit the latter with a piece of wood. His contention that her death was accidental and without any criminal intent as he was only defending himself from the unlawful attack of his brother is unavailing since it was accused-appellant himself who started the unlawful agrression when he slapped his sister which led to the untimely death of their mother. For the exempting circumstance of accident to be properly appreciated in accusedappellant's favor, the following requisites must concur: (1) that the accused person was performing a lawful act with due care; (2) that the injury is caused by mere accident; and (3) that there was no fault or intent of causing the injury (Paragraph 4, Article 12 of the Revised Penal Code). In the case at bar, accused-appellant is liable for his unlawful act even if he never intended to hit his mother since his act of hitting his mother was not done in the performance of a lawful act as required by the aforementioned Article. WHEREFORE, finding no error in the decision appealed from, the same is hereby AFFIRMED but with MODIFICATION that the civil indemnity to be awarded to the heirs of the victim be increased to P50,000.00 in accordance with our present jurisprudence. SO ORDERED Narvasa, C.J., (chairman), Feliciano, Regalado and Campos, JJ., concur.