[G.R. No. 6092. March 8, 1912.

]
TAN CHIONG SIAN, Plaintiff-Appellee, v. INCHAUSTI & Co., Defendant-Appellant.
Haussermann, Cohn & Fisher, for Appellant.
OBrien & DeWitt, for Appellee.
SYLLABUS
1. COMMON CARRIERS; LOSS OF SHIP AND CARGO; FORCE MAJEURE. Loss of a ship and of its cargo, in a
wreck due to accident or force majeure must, as a general rule, fall upon their respective owners, except in
cases where the wrecking or stranding of the vessel occurred through malice, carelessness or lack of skill on
the part of the captain and in the remaining cases indicated in article 841 of the Code of Commerce.
2. ID.; ID.; ID.;-EXEMPTION FROM LIABILITY. Under article the Code of Commerce transportation of
merchandise is for account, risk and hazard of the shipper, unless the contrary has been expressly stipulated.
The carrier is exempt from liability if he prove, as it is incumbent upon him to do, that the loss or destruction
of the merchandise was due to accident and force majeure and not to fraud, fault, or negligence on the part
of the captain or owners of the ship.

DECISION

TORRES, J. :

This is an appeal through bill of exceptions, by counsel for the firm of Inchausti & Co., from a judgment
rendered by the Honorable A. S. Crossfield, judge.
On January 11, 1909, the Chinaman, Tan Chiong Sian or Tan Chinto, filed a written complaint, which was
amended on the 28th of the same month and again amended on October 27 of the same year, against the
said firm, wherein he alleged, among other things, as a cause of action: That, on or about November 25,
1908, the plaintiff delivered to the defendant 205 bundles or cases of general merchandise belonging to him,
which Inchausti & Co., upon receiving, bound themselves to deliver in the pueblo of Catarman, Province of
Samar, to the Chinaman, Ong Bieng Sip, and in consideration of the obligations contracted by the defendant
party, the plaintiff obligated himself to pay to the latter the sum of P250 Philippine currency, which payment
should be made upon the delivery of the said merchandise in the said pueblo of Catarman; but that the
defendant company neither carried nor delivered the aforementioned merchandise to the said Ong Bieng
Sip, in Catarman, but unjustly and negligently failed to do so, with the result that the said merchandise was
almost totally lost; that, had the defendant party complied well and faithfully with its obligation, according
to the agreement made, the merchandise concerned would have had a value of P20,000 in the said pueblo
of Catarman on the date when it should have been delivered there, wherefore the defendant party owed the
plaintiff the said sum of P20,000, which it had not paid him, or any part thereof, notwithstanding the many
demands of the plaintiff; therefore the latter prayed for judgment against the defendant for the said sum,
together with legal interest thereon from November 25, 1908, and the costs of the suit.
Counsel for the defendant company, in his answer, set forth that he admitted the allegations of paragraphs 1

and 2 of the complaint, amended for the second time, and denied those of paragraphs 3, 4, 5, 6, and 7 of the
same. As his first special defense, he alleged that on or about November 28, 1908, his client, the said firm,
received in Manila from Ong Bieng Sip 205 bundles, bales, or cases of merchandise to be placed on board the
steamer Sorsogon, belonging to the defendant, for shipment to the port of Gubat, Province of Sorsogon, to
be in the said port transshipped into another of the defendants vessels for transportation to the port of
Catarman, Samar, and delivered to the aforesaid Chinaman, Ong Bieng Sip; that the defendant company,
upon receiving the said merchandise from the latter, Ong Bieng Sip, and on its entering into a contract of
maritime transportation with him did not know and was not notified that the plaintiff, Tan Chiong Sian, had
any interest whatever in the said merchandise and had made with the plaintiff no contract relative to the
transportation of such goods, for, on receiving the latter from the said Ong Bieng Sip, for transportation,
there were made out and delivered to him three bills of lading, Nos. 38, 39, and 76, which contained a list of
the goods received and, printed on the back thereof were the terms of the maritime transportation contract
entered into by and between the plaintiff and the defendant company, copies of which bills of lading and
contract, marked as Exhibits A, B, and C, are of record, attached to and made an integral part of the said
answer; that Ong Bieng Sip accepted the said bills of lading and the contract extended on the backs thereof;
that the merchandise mentioned was put on board the steamer Sorsogon and carried to the port of Gubat,
Province of Sorsogon, where this vessel arrived on November 28, 1908, on which date the lorcha Pilar, into
which the said merchandise was to be transshipped for carriage to Catarman, was not at Gubat, and
therefore the goods had to be unloaded and stored in the defendant companys warehouses at Gubat; that,
on the 4th of December of the same year, the lorcha Pilar arrived at Gubat and, after the termination of
certain necessary work, the goods received from the Chinaman, Ong Bieng Sip, were taken aboard the same,
together with other merchandise belonging to the defendant party, for the purpose of transportation to the
port of Catarman; that, before the said lorcha could leave for its destination, a strong wind arose which in
the course of the day increased in force until, early in the morning of the following day, the lorcha was
dragged and driven, by the force of the storm, upon the shore, despite the means employed by the crew to
avoid the accident, and notwithstanding the five anchors that held the craft, which was thus wrecked and
completely destroyed and the merchandise with which it was laden, including the 205 bundles or packages
taken aboard for the said Chinaman, was scattered on the shore; that, on that occasion, the lorcha Pilar was
in good condition, provided with all the proper and necessary equipment and accessories and carried a crew
of sufficient number in command of a skillful patron or master, wherefore the wreck of the said craft was
solely due to the irresistible force of the elements and of the storm which drove it upon the shore; that the
defendant company, with the greatest possible diligence, gathered up the said shipwrecked goods that had
been shipped by the Chinaman, Ong Bieng Sip, but, owing to the damage they had suffered, it was
impossible to preserve them, so, after having offered to deliver them to him, the defendant proceeded, in
the presence of a notary, to sell them at public auction and realized from the sale thereof P1,693.67, the
reasonable value of the same in the condition in which they were after they had been gathered up and
salved from the wreck of the lorcha Pilar; that the expenses occasioned by such salvage and sale of the said
goods amounted to P151.35, which were paid by the defendant party; that the latter offered to the Chinese
shipper, the plaintiff, the amount realized from the sale of the said merchandise, less P151.35, the amount of
the expenses, and the sum of P250, the amount of the freight stipulated, and is still willing to pay such
products of the said sale to the aforementioned Ong Bieng Sip or to any other person who should establish
his subrogation to the rights of the Chinaman, Ong Bieng Sip, with respect to the said amount; that, as his
clients second special defense, the defendant company alleged that one of the conditions of the shipping
contract executed between it and the Chinaman, Ong Bieng Sip, relative to the transportation of the said
merchandise, was that the said firm should not be held liable for more than P25 for any bundle or package,
unless the value of its contents should be stated in the bill of lading, and that the shipper, the Chinaman, Ong
Bieng Sip, did not state in the bill of lading the value of any of the bundles or packages in which the goods
shipped by him were packed. Counsel for the defendant company, therefore, prayed the court to absolve his
client from the complaint, with the costs against the plaintiff.

After the hearing of the case and the introduction of testimony by the parties, judgment was rendered, on
March 18, 1910, in favor of the plaintiff, Tan Chiong Sian or Tan Chinto, against the defendant Inchausti & Co.,
for the sum of P14,642.63, with interest at the rate of 6 per cent per annum from January 11, 1909, and for
the costs of the trial. The defendant party appealed from this judgment.
This suit was brought for the purpose of collecting a certain sum which it is alleged the defendant firm owes
the plaintiff for losses and damages suffered by the latter as a result of the formers noncompliance with the
terms of an agreement or contract to transport certain merchandise by sea from this city to the pueblo of
Catarman, Island of Samar, for the sum of P250.
The principal question to be determined is whether the defendant is liable for the loss of the merchandise
and for failure to deliver the same at the place of destination, or whether he is relieved from responsibility
on the ground of force majeure.
Article 1601 of the Civil Code prescribes:
"Carriers of goods by land or by water shall be subject with regard to the keeping and preservation of the
things entrusted to them, to the same obligations as determined for innkeepers by articles 1783 and 1784.
"The provisions of this article shall be understood without prejudice to what is prescribed by the Code of
Commerce with regard to transportation by sea and land.
Article 1602 reads:
"Carriers are also liable for the loss of and damage to the things which they receive, unless they prove that
the loss or damage arose from a fortuitous event or force majeure." virtua1aw library
The articles aforecited are as follows:
"ART. 1783. The depositum of goods made by travelers in inns or hostelries shall also be considered a
necessary one. The keepers of inns and hostelries are liable for them as such bailees, provided that notice
thereof may have been given to them or to their employees, and that the travelers on their part take the
precautions which said innkeepers or their substitutes may have advised them concerning the care and
vigilance of said goods.
"ART. 1784. The liability referred to in the preceding article shall include damages to the goods of the
travelers caused by servants or employees of the keepers of inns or hostelries as well as by strangers, but
not those arising from robbery or which may be caused by any other case of force majeure." virtua1aw
library
Article 361 of the Code of Commerce provides:
"Merchandise shall be transported at the risk and venture of the shipper, unless the contrary was expressly
stipulated.
"Therefore, all damages and impairment suffered by the goods in transportation, by reason of accident,
force majeure, or by virtue of the nature or defect of the articles, shall be for the account and risk of the
shipper.

"The proof of these accidents is incumbent on the carrier.

"ART. 362. The carrier, however, shall be liable for the losses and damages arising from the causes
mentioned in the foregoing article if it is proved that they occurred on account of his negligence or because
he did not take the precautions usually adopted by careful persons, unless the shipper committed fraud in
the bill of lading, stating that the goods were of a class or quality different from what they really were.
"If, notwithstanding the precaution referred to in this article, the goods transported run the risk of being
lost on account of the nature or by reason of an unavoidable accident, without there being time for the
owners of the same to dispose thereof, the carrier shall proceed to their sale placing them for this purpose
at the disposal of the Judicial authority or of the officials determined by special provisions.
"ART. 363. With the exception of the cases prescribed in the second paragraph of article 361, the carrier shall
be obliged to deliver the goods transported in the same condition in which, according to the bill of lading,
they were at the time of their receipt, without any detriment or impairment, and should he not do so, he
shall be obliged to pay the value of the goods not delivered at the point where they should have been and at
the time the delivery should have taken place.
"If part of the goods transported should be delivered the consignee may refuse to receive them, when he
proves that he can not make use thereof without the others."cralaw virtua1aw library
On November 25, 1908, Inchausti & Co. received in Manila from the Chinaman, Ong Bieng Sip, 205 bundles,
bales or cases of goods to be conveyed by the steamer Sorsogon to the port of Gubat, Province of Sorsogon,
where they were to be transshipped to another vessel belonging to the defendant company and by the
latter transported to the pueblo of Catarman, Island of Samar, there to be delivered to the Chinese shipper
with whom the defendant party made the shipping contract. To this end three bills of lading were executed,
Nos. 38, 39, and 76, copies of which, marked as Exhibits A, B, and C, are found on pages 13, 14, and 15 of the
record.
The steamer Sorsogon, which carried the goods, arrived at the port of Gubat on the 28th of that month and
as the lorcha Pilar, to which the merchandise was to be transshipped for its transportation to Catarman, was
not yet there, the cargo was unloaded and stored in the defendant companys warehouses at that port.
Several days later, the lorcha just mentioned arrived at Gubat and, after the cargo it carried had been
unloaded, the merchandise belonging to the Chinaman, Ong Bieng Sip, together with other goods owned by
the defendant Inchausti & Co., was taken aboard to be transported to Catarman; but on December 5, 1908,
before the Pilar could leave for its destination, towed by the launch Texas, there arose a storm, which,
coming from the Pacific, passed over Gubat and, as a result of the strong wind and heavy sea, the lorcha was
driven upon the shore and wrecked, and its cargo, including the Chinese shippers 205 packages of goods,
scattered on the beach. Laborers or workmen of the defendant company, by its order, then proceeded to
gather up the plaintiffs merchandise and, as it was impossible to preserve it after it was salved from the
wreck of the lorcha, it was sold at public auction before a notary for the sum of P1,693.67.
The contract entered into between the Chinese shipper, Ong Bieng Sip, and the firm of Inchausti & Co.,
provided that transportation should be furnished from Manila to Catarman, although the merchandise taken
aboard the steamer Sorsogon was to be transshipped at Gubat to another vessel which was to convey it
from that port to Catarman; it was not stipulated in the said contract that the Sorsogon should convey the
goods to their final destination, nor that the vessel into which they were to be transshipped, should be a

steamer. The shipper, Ong Bieng Sip, therefore assented to these arrangements and made no protest when
his 205 packages of merchandise were unloaded from the ship and, on account of the absence of the lorcha
Pilar, stored in the warehouses at Gubat nor did he offer any objection to the lading of his merchandise on to
this lorcha as soon as it arrived and was prepared to receive cargo; moreover, he knew that to reach the port
of Catarman with promptness and dispatch, the lorcha had to be towed by some vessel like the launch
Texas, which the defendant company had been steadily using for similar operations in those waters.
Hence the shipper, Ong Bieng Sip, made no protest or objection to the methods adopted by the agents of
the defendant for the transportation of his goods to the port of their destination, and the record does not
show that in Gubat the defendant possessed any other means for the conveyance and transportation of
merchandise, at least for Catarman, than the lorcha Pilar, towed by the said launch and exposed during its
passage to all sorts of accidents and perils from the nature and seafaring qualities of a lorcha, from the
circumstances then present and the winds prevailing on the Pacific Ocean during the months of November
and December.
It is to be noted that a lorcha is not easily managed or steered when traveling, for, out at sea, it can only be
moved by wind and sails; and along the coast near the shore and in the estuaries where it customarily
travels, it can only move by poling. For this reason, in order to arrive at the pueblo of Catarman with
promptness and dispatch, the lorcha was usually towed by the launch Texas.
The record does not show that, from the afternoon of the 4th of December, 1908, until the morning of the
following day, the 5th, the patron or master of the lorcha which was anchored in the cove of Gubat, received
any notice from the captain of the steamer Ton Yek, also anchored near by, of the near approach of a storm.
The said captain, Juan Domingo Alberdi, makes no reference in his sworn testimony of having given any such
notice to the patron of the lorcha, nor did the latter, Mariano Gadvilao, testify that he received such notice
from the captain of the Ton Yek or from the person in charge of the Government observatory. Gadvilao, the
patron, testified that only between 10 and 11 oclock of Saturday morning, the 5th of December, was he
informed by Inchausti & Co.s agent in Gubat that a baguio was approaching; that thereupon, on account of
the condition of the sea, he dropped the four anchors that the lorcha had on board and immediately went
ashore to get another anchor and a new cable in order more securely to hold the boat in view of the
predicted storm. This testimony was corroborated by the said representative, Melchor Muoz. So the lorcha,
when the storm broke upon it, was held fast by five anchors and was, as testified by the defendant without
contradiction or evidence to the contrary, well found and provided with all proper and necessary equipment
and had a sufficient crew for its management and preservation.
The patron of the lorcha testified specifically that at Gubat or in its immediate vicinity there is no port
whatever adequate for the shelter and refuge of vessels in cases of danger, and that, even though there
were, on being advised between 10 and 11 oclock of the morning of the 5th, of the approach of a storm from
the eastern Pacific, it would have been impossible to spread any sails or weigh anchor on the lorcha without
being dragged or driven against the reefs by the force of the wind. As the craft was not provided with steam
or other motive power, it would not have been possible for it to change its anchorage, nor move from the
place where it lay, even several hours before the notice was received by its patron. A lorcha can not be
compared with a steamer which does not need the help or assistance of any other vessel in its movements.
Due importance must be given to the testimony of the weather observer, Antonio Rocha, that the notice
received from the Manila Observatory on the afternoon of December 4, with regard to a storm traveling
from the east of the Pelew Islands toward the northwest, was not made known to the people of Gubat and
that he merely left a memorandum notice on the desk of the station, intending to give explanations thereof
to any person who should request them of him. So the notice of the storm sent by the Manila Observatory

was only known to the said observer, and he did not apprise the public of the approach of the storm until he
received another notice from Manila at 20 minutes past 8 oclock on Saturday morning, December 5. Then he
made a public announcement and advised the authorities of the storm that was coming.
The patron of the lorcha Pilar is charged with gross negligence for not having endeavored to remove his
craft to a safe place in the Sabang River, about half a mile from where it was anchored.
In order to find out whether there was or was not such negligence on the part of the patron, it becomes
necessary to determine, first, whether the lorcha, on the morning of December 5, could be moved by its own
power and without being towed by any steamboat, since it had no steam engine of its own; second, whether
the lorcha, on account of its draft and the shallowness of the mouth of the said river, could have entered the
latter before the storm broke.
The patron, Mariano Gadvilao, stated under oath that the weather during the night of December 4 was not
threatening and he did not believe there would be a storm; that he knew the Sabang River; and that the
lorcha Pilar, when loaded, could not enter as there was not sufficient water in its channel; that, according to
an official chart of the port of Gubat, the bar of the Sabang River was covered by only a foot and a half of
water at ordinary low tide and the lorcha Pilar, when loaded, drew 6 feet and a half; that aside from the fact
that the condition of the sea would not have permitted the lorcha to take shelter in the said river, even could
it have relied upon the assistance of a towboat, at half past 8 oclock in the morning the tide was still low;
there was but little water in the river and still less over the bar.
It was proven by the said official chart of the port of Gubat, that the depth of water over the bar or entrance
of the Sabang River is only one foot and a half at ordinary low tide; that the rise and fall of the tide is about
4 feet, the highest tide being at 2 oclock in the afternoon of every day; and at that hour, on the 5th of
December, the hurricane had already made its appearance and the wind was blowing with all its fury and
raising great waves.
The lorcha Pilar, loaded as it had been from the afternoon of December 4, even though it could have been
moved by means of poles, without being towed, evidently could not have entered the Sabang River on the
morning of the 5th, when the wind began to increase and the sea to become rough, on account of the low
tide, the shallowness of the channel, and the boats draft.
The facts stated in the foregoing paragraph were proved by the said chart which was exhibited in evidence
and not rejected or assailed by the plaintiff. They were also supported by the sworn testimony of the patron
of the lorcha, unrebutted by any oral evidence on the part of the plaintiff such as might disprove the
certainty of the facts related, and, according to section 275 of the Code of Civil Procedure, the natural
phenomenon of the tides, mentioned in the official hydrographic map, Exhibit 7, which is prima facie
evidence on the subject, of the hours of its occurrence and of the conditions and circumstances of the port
of Gubat, shall be judicially recognized without the introduction of proof, unless facts to the contrary be
proven, which was not done by the plaintiff, nor was it proven that between the hours of 10 and 11 oclock of
the morning of December 5, 1908, there did not prevail a state of low tide in the port of Gubat.
The oral evidence adduced by the plaintiff with respect to the depth of the Sabang River, was unable to
overcome that introduced by the defendant, especially the said chart. According to section 320 of the Code
of Civil Procedure, such a chart is prima facie evidence of particulars of general notoriety and interest, such
as the existence of shoals of varying depths in the bar and mouth of the Sabang River and which obstruct
the entrance into the same; the distance, length, and number of the said shoals, with other details
apparently well known to the patron of the lorcha Pilar, to judge from his testimony.

Vessels of considerable draft, larger than the said lorcha, might have entered the Sabang River some seven
or nine years before, according to the testimony of the Chinaman, Antonio B. Yap Cunco, though he did not
state whether they did so at high tide; but, since 1901, or previous years, until 1908, changes may have taken
place in the bed of the river, its mouth and its bar. More shoals may have formed or those in existence may
have increased in extent by the constant action of the sea. This is the reason why the patron, Gadvilao, who
was acquainted with the conditions of the port and cove of Gubat, positively declared that the lorcha Pilar
could not, on account of her draft, enter the Sabang River, on account of low water.
The patron of the lorcha, after stating (p. 58) that at Gubat or in its vicinity there is no port that affords
shelter, affirmed that it was impossible to hoist the sails or weigh the anchors on the morning of the 5th of
December, owing to the force of the wind and because the boat would immediately have been dragged or
driven upon the shoals; that furthermore the lorcha was anchored in a channel some 300 brazas wide, but,
notwithstanding this width, the Pilar was, for want of motive power, unable to move without being exposed
to be dashed against the coast by the strong wind and the heavy sea then prevailing. The testimony of this
witness was neither impugned nor offset by any evidence whatever; he was a patron of long years of service
and of much practice in seafaring, especially in the port of Gubat and its vicinity, who had commanded or
been intrusted with the command of other crafts similar to the lorcha Pilar and his testimony was absolutely
uncontradicted.
The patron Gadvilao, being cognizant of the duties imposed upon him by rules 14 and 15 of article 612, and
others, of the Code of Commerce, remained with his sailors, during the time the hurricane was raging, on
board the lorcha from the morning of December 5 until early the following morning, the 6th, without
abandoning the boat, notwithstanding the imminent peril to which he was exposed, and kept to his post
until after the wreck and the lorcha had been dashed against the rocks. Then he solicited help from the
captain of the steamer Ton Yek, and, thanks to the relief afforded by a small boat sent by the latter officer,
Gadvilao with his crew succeeded in reaching land and immediately reported the occurrence to the
representative of Inchausti & Co. and to the public official from whom he obtained the document of protest,
Exhibit 1. By such procedure, he showed that, as a patron skilled in the exercise of his vocation, he
performed the duties imposed by law in cases of shipwreck brought about by force majeure.
Treating of shipwrecks, article 840 of the Code of Commerce prescribes:jgc:chanrobles.com.ph
"The losses and damages suffered by a vessel and he cargo by reason of shipwreck or stranding shall be
individually for the account of the owners, the part of the wreck which may be saved belonging to them in
the same proportion."cralaw virtua1aw library
And article 841 of the same code reads:jgc:chanrobles.com.ph
"If the wreck or stranding should arise through the malice, negligence, or lack of skill of the captain, or
because the vessel put to sea insufficiently repaired and supplied, the owner or the freighters may demand
indemnity of the captain for the damages caused to the vessel or cargo by the accident, in accordance with
the provisions contained in articles 610, 612, 614 and 621."cralaw virtua1aw library
The general rule established in the first of the foregoing articles is that the loss of the vessel and of its cargo,
as the result of shipwreck, shall fall upon the respective owners thereof, save for the exceptions specified in
the second of the said articles.
These legal provisions are in harmony with those of articles 361 and 362 of the Code of Commerce, and are

applicable whenever it is proved that the loss of, or damage to, the goods was the result of a fortuitous
event or of force majeure; but the carrier shall be liable for the loss or the damage arising from the causes
aforementioned, if it shall have been proven that they occurred through his own fault or negligence or by his
failure to take the same precautions usually adopted by diligent and careful persons.
In the contract made and entered into by and between the owner of the goods and the defendant, no term
was fixed within which the said merchandise should be delivered to the former at Catarman, nor was it
proved that there was any delay in loading the goods and transporting them to their destination. From the
28th of November, when the steamer Sorsogon arrived at Gubat and landed the said goods belonging to
Ong Bieng Sip to await the lorcha Pilar which was to convey them to Catarman, as agreed upon, no vessel
carrying merchandise made the voyage from Gubat to the said pueblo of the Island of Samar, and with Ong
Bieng Sips merchandise there were also to be shipped goods belonging to the defendant company, which
goods were actually taken on board the said lorcha and suffered the same damage as those belonging to the
Chinaman. So that there was no negligence, abandonment, or delay in the shipment of Ong Bieng Sips
merchandise, and all that was done by the carrier, Inchausti & Co., was what it regularly and usually did in the
transportation by sea from Manila to Catarman of all classes of merchandise. No attempt has been made to
prove that any course other than the foregoing was pursued by that firm on this occasion; therefore the
defendant party is not liable for the damage occasioned as a result of the wreck or stranding of the lorcha
Pilar because of the hurricane that overtook this craft while it was anchored in the port of Gubat, on
December 5, 1908, ready to be conveyed to that of Catarman.
It is a fact not disputed, and admitted by the plaintiff, that the lorcha Pilar was stranded and wrecked on the
coast of Gubat during the night of the 5th or early in the morning of the 6th of December, 1908, as the result
of a violent storm that came from the Pacific Ocean, and, consequently, it is a proven fact that the loss or
damage of the goods shipped on the said lorcha was due to the force majeure which caused the wreck of
the said craft.
According to the aforecited article 361 of the Code of Commerce, merchandise shall be transported at the
risk and venture of the shipper, unless the contrary be expressly stipulated. No such stipulation appears of
record, therefore, all damages and impairment suffered by the goods in transportation, by reason of
accident, force majeure, or by virtue of the nature or defect of the articles, are for the account and risk of the
shipper.
A final clause of this same article adds that the burden of proof of these accidents is upon the carrier; the
trial record fully discloses that the loss and damage of the goods shipped by the Chinaman, Ong Bieng Sip,
was due to the stranding and wreck of the lorcha Pilar in the heavy storm or hurricane aforementioned; this
the plaintiff did not deny, and admitted that it took place between the afternoon of the 5th and early in the
morning of the 6th of December, 1908, so it is evident that the defendant is exempt from the obligation
imposed by the law to prove the occurrence of the said storm, hurricane, or cyclone in the port of Gubat,
and, therefore, if the said goods were lost or damaged and could not be delivered in Catarman, it was due to
a fortuitous event and a superior, irresistible natural force, or force majeure, which completely disabled the
lorcha intended for their transportation to the said port of the Island of Samar.
The record bears no proof that the said loss or damage caused by the stranding or wreck of the lorcha Pilar
as a result of the storm mentioned, occurred through carelessness or negligence on the part of the
defendant company, its agents or the patron of the said lorcha, or because they did not take the precautions
usually adopted by careful and diligent persons, as required by article 362 of the Code of Commerce; the
defendant company, as well as its agents and the patron of the lorcha, had a natural interest in preserving
the craft and its own goods laden therein an interest equal to that of the Chinese shipper in preserving his

own which were on board the said lorcha and, in fact, the defendant, his agents and the patron did take
the measures which they deemed necessary and proper in order to save the lorcha and its cargo from the
impending danger; accordingly, the patron, as soon as he was informed that a storm was approaching,
proceeded to clear the boat of all gear which might offer resistance to the wind, dropped the four anchors
he had, and even procured an extra anchor from the land, together with a new cable, and cast it into the
water, thereby adding, in so far as possible, to the stability and security of the craft, in anticipation of what
might occur, as presaged by the violence of the wind and the heavy sea; and Inchausti & Companys agent
furnished the articles requested by the patron of the lorcha for the purpose of preventing the loss of the
boat; thus did they all display all the diligence and care such as might have been employed by anyone in
similar circumstances, especially the patron who was responsible for the lorcha under his charge; nor is it
possible to believe that the latter failed to adopt all the measures that were necessary to save his own life
and those of the crew and to free himself from the imminent peril of shipwreck.
In view of the fact that the lorcha Pilar had no means of changing its anchorage, even supposing that there
was a better one, and was unable to accept help from any steamer that might have towed it to another
point, as wherever it might have anchored, it would continually have been exposed to the lashing of the
waves and to the fury of the hurricane, for the port of Gubat is a cove or open roadstead with no shelter
whatever from the winds that sweep over it from the Pacific Ocean, and in view of the circumstance that it
was impossible for the said lorcha, loaded as it then was, to have entered the Sabang River, even though
there had been a steamer to tow it, not only because of an insufficient depth of water in its channel, but also
on account of the very high bar at the entrance of the said river, it is incontrovertible that the stranding and
wreck of the lorcha Pilar was due to a fortuitous event or to force majeure and not to the fault and
negligence of the defendant company and its agents or of the patron, Mariano Gadvilao, inasmuch as the
record discloses it to have been duly proved that the latter, in the difficult situation in which unfortunately
the boat under his charge was placed, took all the precautions that any diligent man should have taken
whose duty it was to save the boat and its cargo, and, by the instinct of self-preservation, his own life and
those of the crew of the lorcha; therefore, considering the conduct of the patron of the lorcha and that of
the defendants agent in Gubat, during the time of the occurrence of the disaster, the defendant company
has not incurred any liability whatever for the loss of the goods, the value of which is demanded by the
plaintiff; it must, besides, be taken into account that the defendant itself also lost goods of its own and the
lorcha too.
From the moment that it is held that the loss of the said lorcha was due to force majeure, a fortuitous event,
with no conclusive proof of negligence or of the failure to take the precautions such as diligent and careful
persons usually adopt to avoid the loss of the boat and its cargo, it is neither just nor proper to attribute the
loss or damage of the goods in question to any fault, carelessness, or negligence on the part of the
defendant company and its agents and, especially, the patron of the lorcha Pilar.
Moreover, it is to be noted that, subsequent to the wreck, the defendant companys agent took all the
requisite measures for the salvage of such of the goods as could be recovered after the accident, which he
did with the knowledge of the shipper, Ong Bieng Sip, and, in effecting their sale, he endeavored to secure
all possible advantage to the Chinese shipper; in all these proceedings, as shown by the record, he acted in
obedience to the law.
From all the foregoing it is concluded that the defendant is not liable for the loss and damage of the goods
shipped on the lorcha Pilar by the Chinaman, Ong Bieng Sip, inasmuch as such loss and damage were the
result of a fortuitous event or force majeure, and there was no negligence or lack of care and diligence on
the part of the defendant company or its agents.

Therefore, we hold it proper to reverse the judgment appealed from, and to absolve, as we hereby do, the
defendant, Inchausti & Co., without special finding as to costs.
Arellano, C.J., Mapa and Johnson, JJ., concur.
Carson and Trent, JJ., dissent.
Separate Opinions

MORELAND, J., dissenting:chanrob1es virtual 1aw library

In my opinion the decision of the court below, which this court reverses, is clearly in accordance with law and
in strict conformity with equity and justice. The defendant, a shipowner, agreed with the plaintiff to
transport P14,000 worth of property from Manila to Catarman, Province of Samar. The defendant never
fulfilled its contract. Instead of delivering the property at Catarman, Province of Samar, it left it on board of a
lorcha in the waters of Gubat, a port in the southern part of the Island of Luzon, where, during a storm, the
lorcha foundered and the property was lost.
This court holds that the Chinaman must lose his property. This is the manner in which the defendant lost the
goods of the plaintiff:chanrob1es virtual 1aw library
The Sorsogon, on which the goods were loaded at Manila, arrived at Gubat about the 28th of November,
1908. A few days later the lorcha Pilar arrived at Gubat, towed by the tug Texas. The lorcha was without
means of locomotion of its own, except its sails, which, from the record, appear never to have been used
and were substantially useless, and could move about and protect itself from the weather only by being
towed or "poled." The only boat on the coast owned by the defendant which could tow the lorcha was the
tug Texas. Sometime before the 5th of December, at least one day before the storm broke, the goods
belonging to the plaintiff were loaded on this lorcha. The tug Texas, under the orders of the defendant, left
the locality where the lorcha was loaded and did not return until after it was wrecked.
Let us see what were the conditions at the time the defendant voluntarily and unnecessarily placed the
property of the plaintiff on the lorcha Pilar:chanrob1es virtual 1aw library
(1) It must be remembered that Gubat is located on the Pacific coast. The waters of Gubat are not protected
waters; they are not inclosed; they are not in the form of a bay; they are directly open to the winds from the
Pacific Ocean, without protection or shelter of any kind, except possibly the mouth of the river, a matter
here in dispute and which will be referred to later. They are likewise open to the full sweep of the waves of
the Pacific coming from its widest reaches.
(2) At the time the plaintiffs goods were loaded upon the lorcha Pilar it was the height of the typhoon
season in that locality. The prevailing winds were from the Pacific. Destructive baguios might reasonably be
expected at any time. It was only with the exercise of diligence and prudence that shipping could be
protected therefrom.
(3) As I have before indicated, the lorcha Pilar had substantially no means of locomotion of its own and
depended for its protection in stormy weather entirely upon the steam tug Texas or being "poled" into the
mouth of the river by its crew. At the time of the storm which destroyed the lorcha, and for some time prior
thereto and for some days thereafter, the Texas was at the port of Barcelona, on the coast several miles

south of Gubat, having been sent by order of the defendant, its owner.
Summarizing, then, we have the defendant voluntarily placing the property of the plaintiff upon the kind of
craft above described, dispatching to a distant port substantially the only means of locomotion and
protection which that craft had, except, as we have said, by being poled, placing that lorcha in waters
directly exposed to the winds and waves of the Pacific and at the mercy of every baguio that blew; and this
during a season of the year when winds were generally high and destructive baguios might be expected at
any time, and with full knowledge that if a typhoon came while the agents of the defendant were
unprepared the property of the plaintiff would in all probability be lost.
Having these facts in mind, let us see what the agents of the defendant did to protect the property of the
plaintiff which they had voluntarily placed in a situation of such peril.
(4) At the time of the destruction of the lorcha there was a Government weather observatory at Gubat
which received advices many hours in advance of the approach of a typhoon toward that locality. It had
been there for some years. The purpose of that observatory was to furnish information to the public
concerning the formation and approach of typhoons from the Pacific and of warning the people with
exposed shipping to take such precautions as were necessary for its protection. This was known to the
defendants agents at Gubat. They knew that the observatory had a public office, open to anybody who
cared to visit it, in which would be found all of the latest information relating to storms and baguios coming
from the Pacific Ocean. They knew that the officials of said observatory were there for the express purpose
of giving such information. The defendants agents had at Gubat a barometer and all the other instruments
usually kept by seamen and navigators for forecasting the weather.
(5) As we have said, the storm occurred on the 5th of December. It wrought its greatest havoc late in the
afternoon and the early part of the night. At about 2 oclock on the day before the storm, that is, on the 4th
of December, the observatory at Gubat received notice from the Manila observatory that a baguio was
forming in the Pacific Ocean. At about the same time at Barcelona, only 10 miles south of Gubat, the
barometer on board the Texas dropped so rupidly as to indicate such dangerous weather probabilities that
the captain of the Texas deemed it unsafe to venture out of the harbor. On the same afternoon the
barometer on board the only steam vessel near Gubat, the Ton Yek, also went down. Although it does not
expressly appear in the evidence, yet it is an inference entirely fair from the record, and against which
nothing whatever can be urged, that the barometer in the possession of the agents of the defendant also
dropped with the same rapidity. In all human probability this could not be otherwise in view of the rapid and
decisive fall of the barometer on board the Texas, only 10 miles away, and the fact that the typhoon broke
over both places equally. At the same time, and more pronounced a little later, every symptom which men
who have to deal with the sea could and would readily observe, and which the captain of the Ton Yek did
observe as a matter of fact, indicated the approach of a heavy storm. These evidences were heeded by the
captain of the Ton Yek, who, early on the morning of the 5th, without waiting for the appearance of a storm
signal at the observatory, sent; a messenger to the observatory for the purpose of ascertaining with more
accuracy what was going to happen. In spite of all of these things, most of which occurred on the afternoon
or evening of the day preceding the storm, the agents of the defendant did absolutely nothing to inform
themselves as to the prospective weather conditions or as to whether or not a baguio was approaching, and
did absolutely nothing to preserve or protect the property which they had placed in so exposed and
dangerous a place.
(6) The morning of the 5th arrived. As we have already stated, all of the signs which men who have to do
with the sea so readily read indicated unquestionably and decisively the approach of the storm which the
advices received by the observatory at 2 oclock on the afternoon before told the inhabitants of that locality

was probably coming. Still the agents of the defendant did nothing. The captain of the Ton Yek, although his
vessel was a steam vessel and was able to take care of itself by reason of its machinery, judging these signs
and portents, found it advisable to consult with the observatory early on the morning of the 5th. The
approach of a storm was apparent to him and he took precautions accordingly. Yet the agents of the
defendant did nothing. Although the lorcha on which they had put the property of the plaintiff was,
according to their own admissions, utterly unprotected, and although P14,000 worth of goods intrusted to
their care was in great danger of being lost, still they did absolutely nothing, either by anticipation or
otherwise, to protect that property therefrom.
(7) On the morning of the 5th at about 8.20 or 8.30 oclock the observatory ran up the first danger signal.
Still the agents of the defendant noted nothing, did nothing. They paid absolutely no attention to it, as they
had paid no attention whatever to the other indications. They left the lorcha to its fate without lifting a
finger to save it. At 9 oclock the wind had risen and the waves had commenced to roll. Still nothing was
done. At 9.30 the winds were still stronger and the waves higher. Still nothing was done. At 10.30 the
increase in the strength of the wind and of the height of the waves continued. And yet the agents of the
defendant did nothing. It was well toward 11 oclock before they began to move. At that time it was too late.
The wind and waves were so high that, with the means at hand, the lorcha could not be moved from the
exposed position in which it was, even if it be conceded that there was any safer place within those waters.
The lorcha was prevented from dashing itself immediately upon the rocks only by virtue of its anchor. At
between 10.30 and 11 oclock the captain of the lorcha came ashore to secure additional anchors. At that
time, however, as we have observed, it was too late to unload the goods and too late to remove the lorcha
to a safe place within the mouth of the river, even if that were possible. The agents of the defendant, having
done absolutely nothing up to this time now found, after they had awakened from their lethargy, that it was
too late to do more than stand by and see the property, which had been intrusted to their care and for the
carrying of which they had been paid, dashed to pieces on the rock and swallowed up by the sea.
(8) For nearly eighteen hours prior to the disaster the information that the disaster was coming lay under the
very noses of the agents of the defendant. For nearly eighteen hours the barometer had been dropping
steadily, so much so that their own vessel dared not leave a port only 10 miles distant on the afternoon
before. For eighteen hours every warning which nature could give, indicating the disaster which
subsequently came, had been repeatedly thrust upon them. Yet they did nothing. Having placed the goods
of the plaintiff in an exposed and dangerous position, in waters open to the winds and waves of the Pacific
Ocean, at the height of the typhoon season, in a vessel which had no motive power of its own, and having
sent away that which they themselves substantially admit was its only protection, the agents of the
defendant exercised no care or precaution whatever to the end that they might protect the goods which
they themselves had so recklessly exposed.
Yet this court, under such circumstances, holds that the defendant may go in peace and that the plaintiff is
the one who must bear the burden of such negligence.
With that decision I can not agree.
An act of God can not be urged for the protection of a person who has been guilty of gross negligence in not
trying to avert its results. One who has accepted responsibility for pay Can not weakly fold his hands and say
that he was prevented from meeting that responsibility by an act of God, when the exercise of ordinary care
end prudence would have averted the results flowing from that act. One who has placed the property of
another, instructed to his care, in an unseaworthy craft, upon dangerous waters, cannot absolve himself by
crying, "an act of God," when every effect which a typhoon produced upon that property could have been
avoided by the exercise of common care and prudence. When the negligence of the carrier concurs with an

act of God in producing a loss, the carrier is not exempted from liability by showing that the immediate cause
of the damage was the act of God; or, as it has been expressed, "when the loss is caused by the act of God, if
the negligence of the carrier mingles with it as an active and cooperative cause, he is still liable." The loss and
damage to perishable articles in consequence of the weather will not excuse the carrier if it could have been
prevented by due care and diligence. The carrier must not only show that it did all that was usual, but all that
was necessary to be done under the circumstances. (Wing v. New York, etc., Ry. Co., 1 Hilt. (N. Y.) , 235;
Philleo v. Sanford, 17 Tex., 228.) To be exempt from liability for loss because of an act of God, the common
carrier must be free from any previous negligence or misconduct by which that loss or damage may have
been occasioned. For, although the immediate or proximate cause of a loss in any given instance may have
been what is termed an act of God, yet if the carrier unnecessarily exposed the property to such accident by
any culpable act or omission of his own, he is not excused. (Mcgraw v. Baltimore and Ohio Ry. Co., 41 Am.
Rep., 696.) In the case of Wolf v. American Express Co., 43 Mo., 421, Wagner, J., said:
"The act of God which excuses the carrier must not only be the proximate cause of the loss, but the better
opinion is that it must be the sole cause. And where the loss is caused by the act of God, if the negligence of
the carrier mingles with it as an active and cooperative cause, he is still responsible. (Amies v. Stevens, 1
Stra., 128.)"
Where perishable property, such as potatoes, is received by a common carrier at a season when a very low
temperature may reasonably be apprehended, great diligence should be used in forwarding such property
with dispatch and haste; and where, by a delay of two or three days, the property is damaged by freezing,
the carrier may be held liable for the damage. (Hewett v. The Chicago, B. & Q. Ry. Co., 63 Ia., 611.) A carrier is
bound to provide a vessel in all respects adequate to the purpose, with a captain and crew of requisite skill
or ability; and, failing in these particulars, though the loss be occasioned by an act of God, the carrier may not
set up a providential calamity to protect himself against what may have arisen from his own folly. (Hart v.
Allen and Grant, 2 Watts (Pa.) , 114.)
This doctrine is fully supported by the Spanish authorities on the subject.
Manresa in his commentaries to section 1105 of the Civil Code-of Spain, volume 8, page 91, says:om.ph
"Elucidation of article 1105 and the idea of accident is interesting under the following aspects: Relation
between it and the blame; enumeration of the requisites that must be present; proof of the event and
characterization thereof; and the consequences it produces. Let us, examine them.
"Even when the distinction is simple and reasonable between blame for some exempting circumstance
(because it may not be serious enough to involve such blame, under the law or the obligation) and accident,
since the former admits an imputation which the latter excludes, even when the former may not be the basis
for legal responsibility, and therefore it can not be said that where no responsible blame exists there the
accident commences, yet the latter is undeniably characterized by unexpectedness and inevitability,
circumstances susceptible of relative interpretation, and so whatever relates to the blame must be taken
into account, because, as we shall see, it is in a certain sense, especially in practical application, connected
with the matter under consideration.
"Aside from this statement of ideas, there may be another of consequences, for in the complexity of facts, in
the same obligation, there may be present blame enough to involve such and also accident. When both
causes are present, with separation of time and effects, for partial breach due to one of them may be
possible and then the other may operate to aggravate or complete these consequences, the distinction is
easy and to each cause may be assigned its own effect for the corresponding result, as neither exemption,

on account of accident, can be extended to what may be imputed nor to what in any way depends upon it by
basing responsibility arising from blame on the fact that the damage is the result thereof.
"The problem becomes more difficult when both causes concur to produce the same effect or when, even
though the effect may be due to accident, the obligor has not exercised necessary diligence, however
blameless he was for the results arising from the breach. In the first of the last two suppositions, the solution
is plain, because when the obligor incurs the blame of actually producing the result, even when it is not the
only cause, or even the principal one, there is still sufficient connection between it and the consequences to
cause them to be imputed to him and, as a voluntary element exists in the causes, there is lacking the
circumstance indispensable to exemption on account of accident. The second supposition presents a very
difficult problem of proof, which rests upon the obligor, and calls for a careful analysis of the origin of the
breach. The difficulty in this case consists in that the blame, in addition to its subjective aspect for imputing
the consequences to the obligor, has an objective aspect, to wit, that these consequences may arise, that
the damage which must be repaired is caused, in such manner that due diligence may be lacking and yet not
extend to the point of involving responsibility, because it produces no results. Now then, if an accident
occurs under these conditions, absolutely independent of the negligence that may have existed, it may have
occurred with or without negligence and therefore any derivation of consequences was lacking, then it can
not be said that responsibility arises therefrom; but to reach this conclusion there first rests with the obligor
proof so difficult that, in addition to overcoming the presumption of existence of blame, it involves the very
fine distinction of the origin of the breach and perfectly reveals the occurrence of the accident, joined by
their coexistence, and demonstrating absolute lack of consequences and influence of blame.
"In connection with this question, a judgment of November 22, 1904, declares that there are some events
which, independent of the will of the obligor, hinder the fulfillment of the obligation, and yet do not
constitute cases of force majeure for the purposes of such fulfillment, because the possibility that they
would occur could have been foreseen, articles 1101 and 1104 being applicable and not article 1105, since
negligence or blame is also present from not informing the obligee, either at first or later on, of the state of
affairs and the situation, so as to avoid the consequent damage. This was the case of a bull fight that could
not be held because the ring was not completed in time for reasons beyond the control of the contractor,
but the fact that the contract did not state that the ring was unconstructed and the possibility that it would
not be at the time specified, reveals, in the opinion of the court, the lack of foresight or the negligence which
makes article 1105 inapplicable.
"In an essentially analogous way, judgments were pronounced on June 12, 1899 (Tribunal Contencioso
administrativo), and on October 27, 1905 (Sala tercera), against the company leasing the tobacco monopoly,
for losses caused by theft and fire. It was further decided in these cases that the company and not the State
must bear the losses, for while accidental fire in a tobacco factory and theft of stamped goods stored in a
branch house may constitute accidents, yet they do not deserve this characterization when they occur
through omission, neglect or lack of care which imply breach of the contract.
"According to the text of article 1105, which agrees with the rational idea of accident, it is sufficient for the
event to constitute such that it have any of the two characteristics enumerated; if it is foreseen, it is of little
import that it be unavoidable; and if it is unavoidable it does not matter that it may have been foreseen. The
first supposition requires some explanation: an event may be wholly unforeseen, but, after it has occurred,
be very slow in producing effects, and in such case. although it could not have been foreseen, as there is
time before it produces its effects, the latter must be considered.
"Besides this special supposition, in which, if carefully considered, the two characteristics do not concur,
since the idea of unexpectedness, as is seen, is relative, it will be sufficient that one or the other be present.

The possibility of foresight must be weighed rationally with consideration of all the circumstances, but this
general rule has, strictly speaking, an exception when the event, although in a general way very difficult,
almost impossible to be foreseen, should for some reason be known to the obligor in due time.
"The condition of inevitability can not be understood in so absolute a sense that it should take away the
character of accident from many that are strictly such, because they are undoubtedly causes, however
powerful they may be, whose injurious effects might have been avoided by exercising a number of
precautions, so exaggerated and so out of proportion to the importance of the trouble anticipated, that
they would be unreasonable and not required in law. In such cases, if the means which can and must
rationally be employed are not effective, it will be held to have been unavoidable. So we see demonstrated
how the idea of diligence is related, somewhat in the nature of limitation, to the accident.
"Such was the doctrine established in our ancient law regarding the obligor; the reasons whereof are
theoretically set forth further on; and as a written provision, law 20, title 13, partida 5, which expressly laid
down this principle in connection with pawn-broking contracts, and which was, by analogy, made the basis
for extending a similar provision to the remaining cases.
"That the Civil Code is inspired by the same idea is clearly expressed in article 1183 thereof, the commentary
on which should be consulted. Still such solution depends upon the nature of the proof and of the accident,
since its existence as an abnormal event hindering the fulfillment of the obligation must be proved and not
presumed, and the burden of this proof rests upon the obligor, and not upon the obligee, whose proof
would have to be negative. Moreover since an accident is the basis for exemption from responsibility, it
must be proved by him who will benefit thereby and who objects to the requirement that he fulfill his
obligations. To these reasons are joined those above set forth in connection with the proof of contractual
blame, since they are, according to the same article, 1183, above cited, closely related questions, so much so
that they become two phases of one question presumption against the existence of accident and of what
tends to establish presumption of blame, in the absence of proof to overcome it.
"Proof of accident must include these points: the occurrence of the event, the bearing it has upon breach of
the obligation, and the concurrence of unexpectedness and inevitability. In connection with the first two
points, the proof resting upon the obligor must be specific and exact; but as for the last, although it may be
admitted as a general proposition that, in addition to proving the event, he must also demonstrate that it
involves the condition required to make it an accident, there are some of such magnitude and, by their
nature, of almost impossible prevision, that proof of their occurrence demonstrates their condition.
Undoubtedly, and differently from proof of the accident, the exceptional circumstance that the event (which
should as a general proposition be regarded as unforeseen) was known to the obligor for some special
reason, must be proven by the obligee who asserts it, since the obligation of proof resting upon the former
is fulfilled in this regard by demonstrating that the event ought rationally to be held to have been
unforeseen.
"Since proof of the accident is related to proof of the blame, it is evident that the obligor must also prove, so
far as he is concerned, that he is not to blame for breach of the obligation.
"Exemption from responsibility in accidents established by article 1105 has, according to its text, two
exceptions, whereby an event may be plainly proven, and be unforeseen and unavoidable and still not
produce such exemption, viz, when the exception is either stipulated in the obligation or is expressly
mentioned by the law. The basis for these exceptions rests, according to the cases, either upon the freedom
of contracts, which is opposed to prohibition of a compact, wherein, without immorality, there is merely an
emphasized stipulation, which is meant to guarantee in every case an interest and indirectly to secure careful

and special diligence in the fulfillment of the obligation; or upon the nature of the obligations when risk is an
essential element therein; or finally upon cases whose circumstances, as happens with that provided for by
the last paragraph of article 1096, justify the special strictness of the law.
"In conclusion, we shall point out that in order to relieve the obligor from his obligation, it must be
remembered that the occurrence of the event does not suffice, but that the impossibility of fulfilling the
obligation must be the direct consequence of the accident, so that when it can be fulfilled it will subsist,
even if only in part, and therefore, in order to see whether or not the accident produces this result the
nature of the obligation must be considered, and according to whether it be specific or general, etc., it will or
will not be extinguished." virtua1aw library
To hold the carrier responsible in the case at bar, it is not necessary to go so far as the authorities just cited.
The negligence is so clear that it is not necessary to strain doctrines or even press them to their limits.
I do not here argue the assertion of the plaintiff denied by the defendant, that, at any time before nine
oclock of the day of the destruction of the lorcha, the defendants agents could have placed the lorcha in
the mouth of the river out of harms way. I believe that a fair preponderance of the evidence shows that this
could have been done. The defendant denies this, asserting that the water was too shallow. Nevertheless,
fourteen days after the storm, the foundered lorcha, water-logged and undoubtedly containing water, was"
poled" by its crew from the place where it went on the rocks to a place of safety inside the mouth of the
river. It is more than probable that this could have been done at any time before the storm became too high.
At least common prudence would have required the unloading of the lorcha, which could easily have been
accomplished before the storm if the agents of the defendant had awakened themselves to their duty.

DOCTRINE OF LAST CLEAR CHANCE

G.R. No. 166869 : February 16, 2010

PHILIPPINE HAWK CORPORATION, Petitioner, v. VIVIAN TAN LEE, Respondent.
DECISION
PERALTA, J.:

This is a Petition for Review on Certiorari 1cralaw of the Decision of the Court of Appeals in CA-G.R. CV No.
70860, promulgated on August 17, 2004, affirming with modification the Decision of the Regional Trial Court
(RTC) of Quezon City, Branch 102, dated March 16, 2001, in Civil Case No. Q-91-9191, ordering petitioner
Philippine Hawk Corporation and Margarito Avila to jointly and severally pay respondent Vivian Tan Lee
damages as a result of a vehicular accident.
The facts are as follows:
On March 15, 2005, respondent Vivian Tan Lee filed before the RTC of Quezon City a Complaint2cralaw
against petitioner Philippine Hawk Corporation and defendant Margarito Avila for damages based on quasidelict, arising from a vehicular accident that occurred on March 17, 1991 in Barangay Buensoceso, Gumaca,
Quezon. The accident resulted in the death of respondent's husband, Silvino Tan, and caused respondent
physical injuries.
On June 18, 1992, respondent filed an Amended Complaint,3cralaw in her own behalf and in behalf of her
children, in the civil case for damages against petitioner. Respondent sought the payment of indemnity for
the death of Silvino Tan, moral and exemplary damages, funeral and interment expenses, medical and
hospitalization expenses, the cost of the motorcycle's repair, attorney's fees, and other just and equitable
reliefs.
The accident involved a motorcycle, a passenger jeep, and a bus with Body No. 119. The bus was owned by
petitioner Philippine Hawk Corporation, and was then being driven by Margarito Avila.
In its Answer,4cralaw petitioner denied liability for the vehicular accident, alleging that the immediate and
proximate cause of the accident was the recklessness or lack of caution of Silvino Tan. Petitioner asserted
that it exercised the diligence of a good father of the family in the selection and supervision of its
employees, including Margarito Avila.
On March 25, 1993, the trial court issued a Pre-trial Order5cralaw stating that the parties manifested that
there was no possibility of amicable settlement between them. However, they agreed to stipulate on the
following facts:
1. On March 17, 1991, in Bgy. Buensoceso, Gumaca, Quezon, plaintiff Vivian Lee Tan and her husband Silvino
Tan, while on board a motorcycle with [P] late No. DA-5480 driven by the latter, and a Metro Bus with [P]
late No. NXR-262 driven by Margarito Avila, were involved in an accident;
2. As a result of the accident, Silvino Tan died on the spot while plaintiff Vivian Lee Tan suffered physical
injuries which necessitated medical attention and hospitalization;
3. The deceased Silvino Tan is survived by his wife, plaintiff Vivian Lee Tan and four children, three of whom
are now residents of the United States; and
4. Defendant Margarito Avila is an employee of defendant Philippine Hawk.6cralaw
The parties also agreed on the following issues:
1. Whether or not the proximate cause of the accident causing physical injuries upon the plaintiff Vivian Lee
Tan and resulting in the death of the latter's husband was the recklessness and negligence of Margarito Avila
or the deceased Silvino Tan; and

2. Whether or not defendant Philippine Hawk Transport Corporation exercised the diligence of a good father
of the family in the selection and supervision of its driver Margarito Avila.7cralaw
Respondent testified that on March 17, 1991, she was riding on their motorcycle in tandem with her husband,
who was on the wheel, at a place after a Caltex gasoline station in Barangay Buensoceso, Gumaca, Quezon
on the way to Lopez, Quezon. They came from the Pasumbal Machine Shop, where they inquired about the
repair of their tanker. They were on a stop position at the side of the highway; and when they were about to
make a turn, she saw a bus running at fast speed coming toward them, and then the bus hit a jeep parked on
the roadside, and their motorcycle as well. She lost consciousness and was brought to the hospital in
Gumaca, Quezon, where she was confined for a week. She was later transferred to St. Luke's Hospital in
Quezon City, Manila. She suffered a fracture on her left chest, her left arm became swollen, she felt pain in
her bones, and had high blood pressure.8cralaw
Respondent's husband died due to the vehicular accident. The immediate cause of his death was massive
cerebral hemorrhage.9cralaw
Respondent further testified that her husband was leasing10cralaw and operating a Caltex gasoline station in
Gumaca, Quezon that yielded one million pesos a year in revenue. They also had a copra business, which
gave them an income of P3,000.00 a month or P36,000.00 a year.11cralaw
Ernest Ovial, the driver of the passenger jeep involved in the accident, testified that in the afternoon of
March 17, 1991, his jeep was parked on the left side of the highway near the Pasumbal Machine Shop. He did
not notice the motorcycle before the accident. But he saw the bus dragging the motorcycle along the
highway, and then the bus bumped his jeep and sped away.12cralaw
For the defense, Margarito Avila, the driver of petitioner's bus, testified that on March 17, 1999, at about 4:30
p.m., he was driving his bus at 60 kilometers per hour on the Maharlika Highway. When they were at
Barangay Buensoceso, Gumaca, Quezon, a motorcycle ran from his left side of the highway, and as the bus
came near, the motorcycle crossed the path of the bus, and so he turned the bus to the right. He heard a
loud banging sound. From his side mirror, he saw that the motorcycle turned turtle ("bumaliktad"). He did
not stop to help out of fear for his life, but drove on and surrendered to the police. He denied that he
bumped the motorcycle.13cralaw
Avila further testified that he had previously been involved in sideswiping incidents, but he forgot how many
times.14cralaw
Rodolfo Ilagan, the bus conductor, testified that the motorcycle bumped the left side of the bus that was
running at 40 kilometers per hour.15cralaw
Domingo S. Sisperes, operations officer of petitioner, testified that, like their other drivers, Avila was
subjected to and passed the following requirements:
(1) Submission of NBI clearance;
(2) Certification from his previous employer that he had no bad record;
(3) Physical examination to determine his fitness to drive;
(4) Test of his driving ability, particularly his defensive skill; and

(5) Review of his driving skill every six months.16cralaw

Efren Delantar, a Barangay Kagawad in Buensoceso, Gumaca, Quezon, testified that the bus was running on
the highway on a straight path when a motorcycle, with a woman behind its driver, suddenly emerged from
the left side of the road from a machine shop. The motorcycle crossed the highway in a zigzag manner and
bumped the side of the bus.17cralaw
In its Decision dated March 16, 2001, the trial court rendered judgment against petitioner and defendant
Margarito Avila, the dispositive portion of which reads:
ACCORDINGLY, MARGARITO AVILA is adjudged guilty of simple negligence, and judgment is hereby
rendered in favor of the plaintiff Vivian Lee Tan and h[er] husband's heirs ordering the defendants Philippine
Hawk Corporation and Margarito Avila to pay them jointly and solidarily the sum of P745,575.00 representing
loss of earnings and actual damages plus P50,000.00 as moral damages.18cralaw
The trial court found that before the collision, the motorcycle was on the left side of the road, just as the
passenger jeep was. Prior to the accident, the motorcycle was in a running position moving toward the right
side of the highway. The trial court agreed with the bus driver that the motorcycle was moving ahead of the
bus from the left side of the road toward the right side of the road, but disagreed that the motorcycle
crossed the path of the bus while the bus was running on the right side of the road.19cralaw
The trial court held that if the bus were on the right side of the highway, and Margarito Avila turned his bus
to the right in an attempt to avoid hitting the motorcyle, then the bus would not have hit the passenger
jeep, which was then parked on the left side of the road. The fact that the bus also hit the passenger jeep
showed that the bus must have been running from the right lane to the left lane of the highway, which
caused the collision with the motorcycle and the passenger jeep parked on the left side of the road. The trial
court stated that since Avila saw the motorcycle before the collision, he should have stepped on the brakes
and slowed down, but he just maintained his speed and veered to the left.20cralaw The trial court found
Margarito Avila guilty of simple negligence.
The trial court held petitioner bus company liable for failing to exercise the diligence of a good father of the
family in the selection and supervision of Avila, having failed to sufficiently inculcate in him discipline and
correct behavior on the road.21cralaw
On appeal, the Court of Appeals affirmed the decision of the trial court with modification in the award of
damages. The dispositive portion of the decision reads:
WHEREFORE, foregoing premises considered, the appeal is DENIED. The assailed decision dated March 16,
2001 is hereby AFFIRMED with MODIFICATION. Appellants Philippine Hawk and Avila are hereby ordered to
pay jointly and severally appellee the following amount: (a) P168,019.55 as actual damages; (b) P10,000.00 as
temperate damages; (c) P100,000.00 as moral damages; (d) P590,000.00 as unearned income; and (e)
P50,000.00 as civil indemnity.22cralaw
Petitioner filed this petition, raising the following issues:
1) The Court of Appeals committed grave abuse of discretion amounting to lack of jurisdiction in passing
upon an issue, which had not been raised on appeal, and which had, therefore, attained finality, in total
disregard of the doctrine laid down by this Court in Abubakar v. Abubakar, G.R. No. 134622, October 22, 1999.
2) The Court of Appeals committed reversible error in its finding that the petitioner's bus driver saw the

motorcycle of private respondent executing a U-turn on the highway "about fifteen (15) meters away" and
thereafter held that the Doctrine of Last Clear was applicable to the instant case. This was a palpable error
for the simple reason that the aforesaid distance was the distance of the witness to the bus and not the
distance of the bus to the respondent's motorcycle, as clearly borne out by the records.
3) The Court of Appeals committed reversible error in awarding damages in total disregard of the
established doctrine laid down in Danao v. Court of Appeals, 154 SCRA 447 and Viron Transportation Co., Inc.
v. Delos Santos, G.R. No. 138296, November 22, 2000.23cralaw
In short, the issues raised by petitioner are: (1) whether or not negligence may be attributed to petitioner's
driver, and whether negligence on his part was the proximate cause of the accident, resulting in the death of
Silvino Tan and causing physical injuries to respondent; (2) whether or not petitioner is liable to respondent
for damages; and (3) whether or not the damages awarded by respondent Court of Appeals are proper.
Petitioner seeks a review of the factual findings of the trial court, which were sustained by the Court of
Appeals, that petitioner's driver was negligent in driving the bus, which caused physical injuries to
respondent and the death of respondent's husband.
The rule is settled that the findings of the trial court, especially when affirmed by the Court of Appeals, are
conclusive on this Court when supported by the evidence on record.24cralaw The Court has carefully
reviewed the records of this case, and found no cogent reason to disturb the findings of the trial court, thus:
The Court agree[s] with the bus driver Margarito that the motorcycle was moving ahead of the bus towards
the right side from the left side of the road, but disagrees with him that it crossed the path of the bus while
the bus was running on the right side of the highway.
If the bus were on the right side of the highway and Margarito turned his bus to the right in an attempt to
avoid hitting it, then the bus would not have hit the passenger jeep vehicle which was then parked on the
left side of the road. The fact that the bus hit the jeep too, shows that the bus must have been running to
the left lane of the highway from right to the left, that the collision between it and the parked jeep and the
moving rightways cycle became inevitable. Besides, Margarito said he saw the motorcycle before the
collision ahead of the bus; that being so, an extra-cautious public utility driver should have stepped on his
brakes and slowed down. Here, the bus never slowed down, it simply maintained its highway speed and
veered to the left. This is negligence indeed.25cralaw
Petitioner contends that the Court of Appeals was mistaken in stating that the bus driver saw respondent's
motorcycle "about 15 meters away" before the collision, because the said distance, as testified to by its
witness Efren Delantar Ong, was Ong's distance from the bus, and not the distance of the bus from the
motorcycle. Petitioner asserts that this mistaken assumption of the Court of Appeals made it conclude that
the bus driver, Margarito Avila, had the last clear chance to avoid the accident, which was the basis for the
conclusion that Avila was guilty of simple negligence.
A review of the records showed that it was petitioner's witness, Efren Delantar Ong, who was about 15
meters away from the bus when he saw the vehicular accident.26cralaw Nevertheless, this fact does not
affect the finding of the trial court that petitioner's bus driver, Margarito Avila, was guilty of simple
negligence as affirmed by the appellate court. Foreseeability is the fundamental test of negligence.27cralaw
To be negligent, a defendant must have acted or failed to act in such a way that an ordinary reasonable man
would have realized that certain interests of certain persons were unreasonably subjected to a general but
definite class of risks.28cralaw

In this case, the bus driver, who was driving on the right side of the road, already saw the motorcycle on the
left side of the road before the collision. However, he did not take the necessary precaution to slow down,
but drove on and bumped the motorcycle, and also the passenger jeep parked on the left side of the road,
showing that the bus was negligent in veering to the left lane, causing it to hit the motorcycle and the
passenger jeep.
Whenever an employee's negligence causes damage or injury to another, there instantly arises a
presumption that the employer failed to exercise the due diligence of a good father of the family in the
selection or supervision of its employees.29cTo avoid liability for a quasi-delict committed by his employee, an
employer must overcome the presumption by presenting convincing proof that he exercised the care and
diligence of a good father of a family in the selection and supervision of his employee.30cralaw
The Court upholds the finding of the trial court and the Court of Appeals that petitioner is liable to
respondent, since it failed to exercise the diligence of a good father of the family in the selection and
supervision of its bus driver, Margarito Avila, for having failed to sufficiently inculcate in him discipline and
correct behavior on the road. Indeed, petitioner's tests were concentrated on the ability to drive and
physical fitness to do so. It also did not know that Avila had been previously involved in sideswiping
incidents.
As regards the issue on the damages awarded, petitioner contends that it was the only one that appealed
the decision of the trial court with respect to the award of actual and moral damages; hence, the Court of
Appeals erred in awarding other kinds of damages in favor of respondent, who did not appeal from the trial
court's decision.
Petitioner's contention is unmeritorious.
Section 8, Rule 51 of the 1997 Rules of Civil Procedure provides:
SEC. 8. Questions that may be decided . -- No error which does not affect the jurisdiction over the subject
matter or the validity of the judgment appealed from or the proceedings therein will be considered unless
stated in the assignment of errors, or closely related to or dependent on an assigned error and properly
argued in the brief, save as the court pass upon plain errors and clerical errors.
Philippine National Bank v. Rabat31cralaw cited the book32cralaw of Justice Florenz D. Regalado to explain
the section above, thus:
In his book, Mr. Justice Florenz D. Regalado commented on this section, thus:
1. Sec. 8, which is an amendment of the former Sec. 7 of this Rule, now includes some substantial changes in
the rules on assignment of errors. The basic procedural rule is that only errors claimed and assigned by a
party will be considered by the court, except errors affecting its jurisdiction over the subject matter. To this
exception has now been added errors affecting the validity of the judgment appealed from or the
proceedings therein.
Also, even if the error complained of by a party is not expressly stated in his assignment of errors but the
same is closely related to or dependent on an assigned error and properly argued in his brief, such error may
now be considered by the court. These changes are of jurisprudential origin.
2. The procedure in the Supreme Court being generally the same as that in the Court of Appeals, unless
otherwise indicated (see Secs. 2 and 4, Rule 56), it has been held that the latter is clothed with ample

authority to review matters, even if they are not assigned as errors on appeal, if it finds that their
consideration is necessary in arriving at a just decision of the case. Also, an unassigned error closely related
to an error properly assigned (PCIB vs. CA, et al., L-34931, Mar. 18, 1988), or upon which the determination of
the question raised by error properly assigned is dependent, will be considered by the appellate court
notwithstanding the failure to assign it as error (Ortigas, Jr. vs. Lufthansa German Airlines, L-28773, June 30,
1975; Soco vs. Militante, et al., G.R. No. 58961, June 28, 1983).
It may also be observed that under Sec. 8 of this Rule, the appellate court is authorized to consider a plain
error, although it was not specifically assigned by the appellant (Dilag vs. Heirs of Resurreccion, 76 Phil. 649),
otherwise it would be sacrificing substance for technicalities.33cralaw
In this case for damages based on quasi-delict, the trial court awarded respondent the sum of P745,575.00,
representing loss of earning capacity (P590,000.00) and actual damages (P155,575.00 for funeral expenses),
plus P50,000.00 as moral damages. On appeal to the Court of Appeals, petitioner assigned as error the
award of damages by the trial court on the ground that it was based merely on suppositions and surmises,
not the admissions made by respondent during the trial.
In its Decision, the Court of Appeals sustained the award by the trial court for loss of earning capacity of the
deceased Silvino Tan, moral damages for his death, and actual damages, although the amount of the latter
award was modified.
The indemnity for loss of earning capacity of the deceased is provided for by Article 2206 of the Civil
Code.34cralaw Compensation of this nature is awarded not for loss of earnings, but for loss of capacity to
earn money.35cralaw
As a rule, documentary evidence should be presented to substantiate the claim for damages for loss of
earning capacity.36cralaw By way of exception, damages for loss of earning capacity may be awarded despite
the absence of documentary evidence when: (1) the deceased is self-employed and earning less than the
minimum wage under current labor laws, in which case, judicial notice may be taken of the fact that in the
deceased's line of work no documentary evidence is available; or (2) the deceased is employed as a daily
wage worker earning less than the minimum wage under current labor laws.37cralaw
In this case, the records show that respondent's husband was leasing and operating a Caltex gasoline station
in Gumaca, Quezon. Respondent testified that her husband earned an annual income of one million pesos.
Respondent presented in evidence a Certificate of Creditable Income Tax Withheld at Source for the Year
1990,38cralaw which showed that respondent's husband earned a gross income of P950,988.43 in 1990. It is
reasonable to use the Certificate and respondent's testimony as bases for fixing the gross annual income of
the deceased at one million pesos before respondent's husband died on March 17, 1999. However, no
documentary evidence was presented regarding the income derived from their copra business; hence, the
testimony of respondent as regards such income cannot be considered.
In the computation of loss of earning capacity, only net earnings, not gross earnings, are to be considered;
that is, the total of the earnings less expenses necessary for the creation of such earnings or income, less
living and other incidental expenses.39cralaw In the absence of documentary evidence, it is reasonable to
peg necessary expenses for the lease and operation of the gasoline station at 80 percent of the gross
income, and peg living expenses at 50 percent of the net income (gross income less necessary expenses).
In this case, the computation for loss of earning capacity is as follows:
Net Earning Capacity

= Life Expectancy

Gross Annual Income

Reasonable and

X
X

[2/3 (80-age at the time of

death)]
= [2/3 (80-65)]
= 2/3 (15)

(GAI)
x
x

P1,000,000.00
P200,000.00

X
X

= 30/3
= 10

x
x

P100,000.00
P100,000.00

= P1,000,000.00

Necessary Expenses
(80% of GAI)
P800,000.00
P100,000.00(Living
Expenses)

The Court of Appeals also awarded actual damages for the expenses incurred in connection with the death,
wake, and interment of respondent's husband in the amount of P154,575.30, and the medical expenses of
respondent in the amount of P168,019.55.
Actual damages must be substantiated by documentary evidence, such as receipts, in order to prove
expenses incurred as a result of the death of the victim40cralaw or the physical injuries sustained by the
victim. A review of the valid receipts submitted in evidence showed that the funeral and related expenses
amounted only to P114,948.60, while the medical expenses of respondent amounted only to P12,244.25,
yielding a total of P127,192.85 in actual damages.
Moreover, the Court of Appeals correctly sustained the award of moral damages in the amount of
P50,000.00 for the death of respondent's husband. Moral damages are not intended to enrich a plaintiff at
the expense of the defendant.41cralaw They are awarded to allow the plaintiff to obtain means, diversions or
amusements that will serve to alleviate the moral suffering he/she has undergone due to the defendant's
culpable action and must, perforce, be proportional to the suffering inflicted.42cralaw
In addition, the Court of Appeals correctly awarded temperate damages in the amount of P10,000.00 for the
damage caused on respondent's motorcycle. Under Art. 2224 of the Civil Code, temperate damages "may be
recovered when the court finds that some pecuniary loss has been suffered but its amount cannot, from the
nature of the case, be proved with certainty." The cost of the repair of the motorcycle was prayed for by
respondent in her Complaint. However, the evidence presented was merely a job estimate43cralaw of the
cost of the motorcycle's repair amounting to P17, 829.00. The Court of Appeals aptly held that there was no
doubt that the damage caused on the motorcycle was due to the negligence of petitioner's driver. In the
absence of competent proof of the actual damage caused on the motorcycle or the actual cost of its repair,
the award of temperate damages by the appellate court in the amount of P10,000.00 was reasonable under
the circumstances.44cralaw
The Court of Appeals also correctly awarded respondent moral damages for the physical injuries she
sustained due to the vehicular accident. Under Art. 2219 of the Civil Code,45cralaw moral damages may be
recovered in quasi-delicts causing physical injuries. However, the award of P50,000.00 should be reduced to
P30,000.00 in accordance with prevailing jurisprudence.46cralaw
Further, the Court of Appeals correctly awarded respondent civil indemnity for the death of her husband,
which has been fixed by current jurisprudence at P50,000.00.47cralaw The award is proper under Art. 2206 of
the Civil Code.48cralaw
In fine, the Court of Appeals correctly awarded civil indemnity for the death of respondent's husband,
temperate damages, and moral damages for the physical injuries sustained by respondent in addition to the
damages granted by the trial court to respondent. The trial court overlooked awarding the additional
damages, which were prayed for by respondent in her Amended Complaint. The appellate court is clothed

with ample authority to review matters, even if they are not assigned as errors in the appeal, if it finds that
their consideration is necessary in arriving at a just decision of the case.49cralaw
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated August 17, 2004 in CA-G.R.
CV No. 70860 is hereby AFFIRMED with MODIFICATION. Petitioner Philippine Hawk Corporation and
Margarito Avila are hereby ordered to pay jointly and severally respondent Vivian Lee Tan: (a) civil indemnity
in the amount of Fifty Thousand Pesos (P50,000.00); (b) actual damages in the amount of One Hundred
Twenty-Seven Thousand One Hundred Ninety-Two Pesos and Eighty-Five Centavos ( P127,192.85); (c) moral
damages in the amount of Eighty Thousand Pesos (P80,000.00); (d) indemnity for loss of earning capacity in
the amount of One Million Pesos (P1,000,000.00); and (e) temperate damages in the amount of Ten
Thousand Pesos (P10,000.00).
Costs against petitioner.
SO ORDERED.

ROGELIO ENGADA,
G.R. No. 140698
June 20, 2003

Petitioner,

-versus-

HON. COURT OF APPEALS, FORMER FOURTEENTH

DIVISION, MANILA, AND PEOPLE OF THE PHILIPPINES,

Respondents.

DECISION
QUISUMBING, J.:
This Petition for Review seeks the reversal of the Decision [1] dated May 31, 1999 of the Court of Appeals in
CA-G.R. CR No. 18358, which affirmed with modification the judgment [2] dated August 25, 1994, of the
Regional Trial Court of Iloilo City, Branch 29, in Criminal Case No. 36223. The RTC found petitioner guilty
beyond reasonable doubt of simple imprudence resulting in physical injuries and damage to property, and
sentenced him to (a) suffer imprisonment for one month and one day of arresto mayor, (b) pay private
complainant, Mrs. Sheila Seyan, the amount of fifty one thousand pesos (P51,000) for the total destruction
of the Toyota Tamaraw jeepney, and one hundred ten thousand pesos (P110,000) for her hospital and
medical expenses, and (c) pay the costs of suit. The CA increased the prison term imposed on petitioner to
four months of arresto mayor.
The facts culled from the records are as follows:
On November 29, 1989, at about 1:30 in the afternoon, Edwin Iran was driving a blue Toyota Tamaraw
jeepney bound for Iloilo City. On board was Sheila Seyan, the registered owner of the Tamaraw. While
traversing the road along Barangay Acquit, Barotac Nuevo, the Tamaraw passengers allegedly saw from the
opposite direction a speeding Isuzu pick-up, driven by petitioner Rogelio Engada. The pick-up had just
negotiated a hilly gradient on the highway. When it was just a few meters away from the Tamaraw, the Isuzu
pick-ups right signal light flashed, at the same time, it swerved to its left, encroaching upon the lane of the
Tamaraw and headed towards a head-on collision course with it. Seyan shouted at Iran to avoid the pick-up.
Iran swerved to his left but the pick-up also swerved to its right. Thus, the pick-up collided with the Tamaraw,
hitting the latter at its right front passenger side. The impact caused the head and chassis of the Tamaraw to
separate from its body. Seyan was thrown out of the Tamaraw and landed on a ricefield. The pick-up
stopped diagonally astride the center of the road.
Seyan and Iran were brought to Barotac Nuevo Medicare Hospital. [3] Seyan was profusely bleeding from
her nose and was in a state of shock with her eyes closed. In the afternoon of the same day, November 29,
1989, she was transferred to St. Pauls Hospital in Iloilo City where she was confined. Her medical certificate
revealed that she suffered a fracture on the right femur, lacerated wound on the right foot, multiple
contusions, abrasions, blunt abdominal injury, and lacerations of the upper-lower pole of the right kidney.
[4] She was discharged from the hospital only on January 15, 1990.cralaw
Seyan incurred P130,000 in medical expenses. The Toyota Tamaraw jeepney ended up in the junk heap. Its
total loss was computed at P80,000.

A criminal complaint for damage to property through reckless imprudence with serious physical injuries was
filed with the Municipal Trial Court of Barotac Nuevo against petitioner Rogelio Engada and Edwin Iran. [5]
Probable cause was found against petitioner, while the complaint against Iran was dismissed. [6]
Consequently, an Information was filed against petitioner charging him with serious physical injuries and
damage to property through reckless imprudence, thus:
That on or about November 29, 1989, in the Municipality of Barotac Nuevo, Province of Iloilo, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused Rogelio Engada driving an
Isuzu Pick-up with Plate No. SAR 117 owned by the Land Bank of the Philippines, did then and there wilfully,

unlawfully and with reckless imprudence drive said pick-up in a careless, reckless and imprudent manner
with disregard of traffic laws and regulations, and as a result of such negligent and reckless driving the Isuzu
Pick-up driven by the accused bumped a Toyota Tamaraw jeep with Plate No. FBF 601 owned by Joelito and
Sheila Seyan and driven by Edwin Iran thereby causing damage to the Toyota Tamaraw in the amount of
P80,000.00 and serious physical injuries to Mrs. Sheila Seyan who was riding said vehicle, the injuries barring
complications will heal in more than 30 days.
CONTRARY TO LAW. [7]
After trial, the court rendered on August 25, 1994 a decision, disposing as follows:
WHEREFORE, the Court, finding the accused guilty beyond reasonable doubt of Simple Imprudence resulting
[in] physical injuries and damage to property defined and penalized in Article 263, paragraph 4 and in relation
with Article 365, paragraph 2 of the Revised Penal Code, hereby sentences the accused Rogelio Engada to
suffer imprisonment of ONE (1) MONTH and ONE (1) DAY of arresto mayor.
Accused is further ordered to pay complainant Mrs. Sheila Seyan the amount of P51,000.00 for the total
destruction of the Toyota Tamaraw Jeepney and P110,000.00 for indemnification of hospital and medical
expenses, and to pay the cost of the suit.
SO ORDERED. [8]
Petitioner appealed to the Court of Appeals. On May 31, 1999, the CA dismissed the appeal and affirmed
with modification the trial courts decision, thus:
WHEREFORE, the instant appeal is hereby DISMISSED. Accordingly, the appealed decision is hereby
AFFIRMED with modification as to the penalty imposed upon the accused who is hereby sentenced to suffer
imprisonment of FOUR (4) MONTHS of arresto mayor.
SO ORDERED. [9]
Petitioner filed a motion for reconsideration, but it was denied. Hence, the instant petition, wherein
petitioner raises the issue of:
WHETHER OR NOT THE FINDINGS OF RESPONDENT COURT OF APPEALS ARE SUPPORTED BY THE EVIDENCE
OR BASED ON A MISAPPREHENSION OF FACTS RESULTING IN A MANIFESTLY MISTAKEN INFERENCE
SPECIFICALLY ON WHAT WAS THE PROXIMATE CAUSE OF THE ACCIDENT AND WHOSE ACT WAS IT. [10]
Petitioner claims innocence and seeks acquittal. He contends that in this case we should relax the rule that
only legal questions can be raised in a petition for review under Rule 45 of the Rules of Court. According to
him, the Court of Appeals misapprehended the facts, and erred in its conclusion as to the proximate cause of
the collision. He insists that the Court of Appeals erred when it found him negligent for occupying the lane of
the Tamaraw jeepney, and then failing to return to his original lane at the safest and earliest opportunity.
Petitioner further contends that the CA failed to consider that he already relayed his intention to go back to
his lane by flashing the pick-ups right signal light. He submits that at that moment Iran, the driver of the
Tamaraw, had no more reason to swerve to his left. Had Iran not swerved to the left, according to petitioner,
the collision would have been avoided. It was Iran who was clearly negligent, says petitioner. Citing our
ruling in McKee v. Intermediate Appellate Court, [11] petitioner avers that although his act of occupying the
Tamaraws lane was the initial act in the chain of events, Irans swerving to the left after petitioner flashed
his right turn signal, constituted a sufficient intervening event, which proximately caused the eventual
injuries and damages to private complainant.
Petitioner also claims that the Court of Appeals erred when it found that the pick-up approached the

Tamaraw at a fast speed. He maintains that this was not borne by the evidence on record.
The Office of the Solicitor General, as counsel for the state, counters that the Court of Appeals did not err in
convicting the accused, now petitioner herein. Petitioners negligence was the proximate cause of the
accident, according to the OSG, for the following reasons: First, petitioner for no justifiable reason occupied
the opposite lane. Second, while on the wrong lane, petitioner was driving the Isuzu pick-up fast, and he
returned to his own lane only at the last minute. This left Iran, the driver of the Tamaraw, with no
opportunity to reflect on the safest way to avoid the accident. Irans swerving to the left was his reaction to
petitioners wrongful act, which appropriately calls for the application of the emergency rule. The rationale
of this rule is that a person who is confronted with a sudden emergency might have no time for thought, and
he must make a prompt decision based largely upon impulse or instinct. Thus, he cannot be held to the
same standard of conduct as one who had an opportunity to reflect, even though it later appears that he
made the wrong decision. Clearly, under the emergency rule petitioner cannot shift the blame to Iran,
concludes the OSG.
As to petitioners claim that there was no evidence showing that the pick-up was running very fast, the OSG
avers that this is rebutted by the testimony of Seyan and Iran who both testified that petitioner drove the
pick-up at a fast speed when it encroached on their lane immediately before the collision.
Did the Court of Appeals err in finding that the action of petitioner, Rogelio Engada, was the proximate
cause of the collision? This is the crux of the present petition.
In our view, petitioners attempt to pin the blame on Edwin Iran, the driver of the Tamaraw, for the vehicular
collision is unfounded. Iran swerved to the left only to avoid petitioners pick-up, which was already on a
head to head position going against Irans Tamaraw jeepney immediately before the vehicles collided. This
fact has been established by the evidence on record. No convincing proof was adduced by petitioner that
the driver of the Tamaraw, Iran, could have avoided a head-on collision.
We note that petitioner admitted his Isuzu pick-up intruded into the lane of the Tamaraw
jeepney. Prosecution witness Nelson Alobin, one of those who went to the scene of the incident
immediately, testified that when he arrived at the place where the collision took place, he saw the pick-up
positioned diagonally at the center of the road. [12] Its head was towards the direction of Barotac Nuevo and
the rear tires were just a few inches beyond the center of the lane. [13] Moving backwards facing Barotac
Nuevo, at two arms length away from the pick-up, Alobin also saw a tire mark, 12 inches long and located at
the left side of the center line going to the right side. [14]
The above circumstance corroborates the testimony of both Seyan and Iran that, immediately before the
collision, the pick-up was not on its proper lane but on the other lane (the left lane rather than the right)
directly on collision course with the Tamaraw jeepney. The tire mark reveals the short distance between the
two vehicles when the Isuzu pick-up attempted to return to its proper lane.
It is a settled rule that a driver abandoning his proper lane for the purpose of overtaking another vehicle in
an ordinary situation has the duty to see to it that the road is clear and he should not proceed if he cannot do
so in safety. [15] This rule is consistent with Section 41, paragraph (a) of R.A. 4136 as amended, otherwise
known as The Land Transportation and Traffic Code, which provides:
Sec. 41. Restrictions on overtaking and passing. - (a) The driver of a vehicle shall not drive to the left side of
the center line of a highway in overtaking or passing another vehicle proceeding in the same direction,
unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit
such overtaking or passing to be made in safety.

In the present case, there was only a distance of 30 meters from the Tamaraw jeepney when the Isuzu pickup abandoned its lane and swerved to the left of the center line. [16] In addition, petitioner was running at a
fast clip while traversing this lane. This was testified to by Seyan and Iran, unrebutted by petitioner. The
resulting damage to the Tamaraw jeepney, at the point where the head and chassis were separated from the
body, bolsters this conclusion that petitioner was speeding. In our view, petitioner was negligent in several
ways, and his negligence was the proximate cause of the collision. In abandoning his lane, he did not see to
it first that the opposite lane was free of oncoming traffic and was available for a safe passage. Further, after
seeing the Tamaraw jeepney ahead, petitioner did not slow down, contrary to the rule set in Batangas
Laguna Tayabas Bus Co. v. IAC, [17] thus:
x x xor if, after attempting to pass, the driver of the overtaking vehicle finds that he cannot make the
passage in safety, the latter must slacken his speed so as to avoid the danger of a collision, even bringing his
car to a stop if necessary.
For failing to observe the duty of diligence and care imposed on drivers of vehicles abandoning their lane,
petitioner must be held liable.
Iran could not be faulted when in his attempt to avoid the pick-up, he swerved to his left. Petitioners acts
had put Iran in an emergency situation which forced him to act quickly. 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. [18]
Petitioner tries to extricate himself from liability by invoking the doctrine of last clear chance. He avers that
between him and Iran, the latter had the last clear chance to avoid the collision, hence Iran must be held
liable.
The doctrine of last clear chance states that a person who has the last clear chance or opportunity of
avoiding an accident, notwithstanding the negligent acts of his opponent, is considered in law solely
responsible for the consequences of the accident. [19] But as already stated on this point, no convincing
evidence was adduced by petitioner to support his invocation of the abovecited doctrine. Instead, what has
been shown is the presence of an emergency and the proper application of the emergency rule. Petitioners
act of swerving to the Tamaraws lane at a distance of 30 meters from it and driving the Isuzu pick-up at a
fast speed as it approached the Tamaraw, denied Iran time and opportunity to ponder the situation at all.
There was no clear chance to speak of. Accordingly, the Court of Appeals did not err in holding petitioner
responsible for the vehicular collision and the resulting damages, including the injuries suffered by Mrs.
Sheila Seyan and the total loss of the Tamaraw jeepney. It also did not err in imposing on petitioner the
sentence of four (4) months of arresto mayor. [20]
WHEREFORE, the instant petition is DENIED for lack of merit. The assailed decision of the Court of Appeals in
CA-G.R. CR No. 18358 is AFFIRMED. Costs against petitioner.
SO ORDERED.
Bellosillo, J., (Chairman), and Callejo, Sr., JJ., concur. Austria-Martinez, J., on official leave.
____________________________
Endnotes:

[1] Rollo, pp. 26-34.

[2] Records, pp. 374-381.
[3] TSN, 6 September 1991, p. 9. However in the testimony of Seyan dated 7 October 1991, p. 6, it was Barotac
Rural Health Center.
[4] Records, p.16.
[5] Id. at 6.
[6] Id. at 31.
[7] Id. at 1.
[8] Id. at 381.
[9] Rollo, p. 33.
[10] Id. at 18.
[11] G.R. No. 68102, 16 July 1992, 211 SCRA 517.
[12] TSN, 13 September 1991, pp. 6-7.
[13] Id. at 15.
[14] Id. at 7.
[15] Mallari, Sr. v. Court of Appeals, G.R. No. 128607, 31 January 2000, 324 SCRA 147, 153.
[16] TSN, 6 September 1991, pp. 5 & 12.
[17] G.R. Nos. L-74387-90, 14 November 1988, 167 SCRA 379, 384.
[18] Valenzuela v. Court of Appeals, 323 Phil. 374, 389 (1996).
[19] Bustamante v. Court of Appeals, G.R. No. 89880, 6 February 1991, 193 SCRA 603, 611.
[20] ART. 365. Imprudence and negligence. - Any person who, by reckless imprudence, shall commit any act
which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in its
maximum period to prision correccional in its medium period; if it would have constituted a less grave felony,
the penalty of arresto mayor in its minimum and medium periods shall be imposed; if it would have constituted
a light-felony, the penalty of arresto menor in its maximum period shall be imposed.
Any person who, by simple imprudence or negligence, shall commit an act which would otherwise constitute a
grave felony, shall suffer the penalty of arresto mayor in its medium and maximum periods, if it would have
constituted a less serious felony, the penalty of arresto mayor in its minimum period shall be imposed.

x x xROGELIO ENGADA,
G.R. No. 140698
June 20, 2003

Petitioner,

-versus-

HON. COURT OF APPEALS, FORMER FOURTEENTH

DIVISION, MANILA, AND PEOPLE OF THE PHILIPPINES,

Respondents.

DECISION
QUISUMBING, J.:

This Petition for Review seeks the reversal of the Decision [1] dated May 31, 1999 of the Court of Appeals in
CA-G.R. CR No. 18358, which affirmed with modification the judgment [2] dated August 25, 1994, of the
Regional Trial Court of Iloilo City, Branch 29, in Criminal Case No. 36223. The RTC found petitioner guilty
beyond reasonable doubt of simple imprudence resulting in physical injuries and damage to property, and
sentenced him to (a) suffer imprisonment for one month and one day of arresto mayor, (b) pay private
complainant, Mrs. Sheila Seyan, the amount of fifty one thousand pesos (P51,000) for the total destruction
of the Toyota Tamaraw jeepney, and one hundred ten thousand pesos (P110,000) for her hospital and
medical expenses, and (c) pay the costs of suit. The CA increased the prison term imposed on petitioner to
four months of arresto mayor.
The facts culled from the records are as follows:
On November 29, 1989, at about 1:30 in the afternoon, Edwin Iran was driving a blue Toyota Tamaraw
jeepney bound for Iloilo City. On board was Sheila Seyan, the registered owner of the Tamaraw. While
traversing the road along Barangay Acquit, Barotac Nuevo, the Tamaraw passengers allegedly saw from the
opposite direction a speeding Isuzu pick-up, driven by petitioner Rogelio Engada. The pick-up had just
negotiated a hilly gradient on the highway. When it was just a few meters away from the Tamaraw, the Isuzu
pick-ups right signal light flashed, at the same time, it swerved to its left, encroaching upon the lane of the
Tamaraw and headed towards a head-on collision course with it. Seyan shouted at Iran to avoid the pick-up.
Iran swerved to his left but the pick-up also swerved to its right. Thus, the pick-up collided with the Tamaraw,
hitting the latter at its right front passenger side. The impact caused the head and chassis of the Tamaraw to
separate from its body. Seyan was thrown out of the Tamaraw and landed on a ricefield. The pick-up
stopped diagonally astride the center of the road.
Seyan and Iran were brought to Barotac Nuevo Medicare Hospital. [3] Seyan was profusely bleeding from
her nose and was in a state of shock with her eyes closed. In the afternoon of the same day, November 29,
1989, she was transferred to St. Pauls Hospital in Iloilo City where she was confined. Her medical certificate
revealed that she suffered a fracture on the right femur, lacerated wound on the right foot, multiple
contusions, abrasions, blunt abdominal injury, and lacerations of the upper-lower pole of the right kidney.
[4] She was discharged from the hospital only on January 15, 1990.
Seyan incurred P130,000 in medical expenses. The Toyota Tamaraw jeepney ended up in the junk heap. Its
total loss was computed at P80,000.
A criminal complaint for damage to property through reckless imprudence with serious physical injuries was
filed with the Municipal Trial Court of Barotac Nuevo against petitioner Rogelio Engada and Edwin Iran. [5]
Probable cause was found against petitioner, while the complaint against Iran was dismissed. [6]
Consequently, an Information was filed against petitioner charging him with serious physical injuries and
damage to property through reckless imprudence, thus:
That on or about November 29, 1989, in the Municipality of Barotac Nuevo, Province of Iloilo, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused Rogelio Engada driving an

Isuzu Pick-up with Plate No. SAR 117 owned by the Land Bank of the Philippines, did then and there wilfully,
unlawfully and with reckless imprudence drive said pick-up in a careless, reckless and imprudent manner
with disregard of traffic laws and regulations, and as a result of such negligent and reckless driving the Isuzu
Pick-up driven by the accused bumped a Toyota Tamaraw jeep with Plate No. FBF 601 owned by Joelito and
Sheila Seyan and driven by Edwin Iran thereby causing damage to the Toyota Tamaraw in the amount of
P80,000.00 and serious physical injuries to Mrs. Sheila Seyan who was riding said vehicle, the injuries barring
complications will heal in more than 30 days.
CONTRARY TO LAW. [7]
After trial, the court rendered on August 25, 1994 a decision, disposing as follows:
WHEREFORE, the Court, finding the accused guilty beyond reasonable doubt of Simple Imprudence resulting
[in] physical injuries and damage to property defined and penalized in Article 263, paragraph 4 and in relation
with Article 365, paragraph 2 of the Revised Penal Code, hereby sentences the accused Rogelio Engada to
suffer imprisonment of ONE (1) MONTH and ONE (1) DAY of arresto mayor.
Accused is further ordered to pay complainant Mrs. Sheila Seyan the amount of P51,000.00 for the total
destruction of the Toyota Tamaraw Jeepney and P110,000.00 for indemnification of hospital and medical
expenses, and to pay the cost of the suit.
SO ORDERED. [8]
Petitioner appealed to the Court of Appeals. On May 31, 1999, the CA dismissed the appeal and affirmed
with modification the trial courts decision, thus:
WHEREFORE, the instant appeal is hereby DISMISSED. Accordingly, the appealed decision is hereby
AFFIRMED with modification as to the penalty imposed upon the accused who is hereby sentenced to suffer
imprisonment of FOUR (4) MONTHS of arresto mayor.
SO ORDERED. [9]
Petitioner filed a motion for reconsideration, but it was denied. Hence, the instant petition, wherein
petitioner raises the issue of:
WHETHER OR NOT THE FINDINGS OF RESPONDENT COURT OF APPEALS ARE SUPPORTED BY THE EVIDENCE
OR BASED ON A MISAPPREHENSION OF FACTS RESULTING IN A MANIFESTLY MISTAKEN INFERENCE
SPECIFICALLY ON WHAT WAS THE PROXIMATE CAUSE OF THE ACCIDENT AND WHOSE ACT WAS IT. [10]
Petitioner claims innocence and seeks acquittal. He contends that in this case we should relax the rule that
only legal questions can be raised in a petition for review under Rule 45 of the Rules of Court. According to
him, the Court of Appeals misapprehended the facts, and erred in its conclusion as to the proximate cause of
the collision. He insists that the Court of Appeals erred when it found him negligent for occupying the lane of
the Tamaraw jeepney, and then failing to return to his original lane at the safest and earliest opportunity.
Petitioner further contends that the CA failed to consider that he already relayed his intention to go back to
his lane by flashing the pick-ups right signal light. He submits that at that moment Iran, the driver of the
Tamaraw, had no more reason to swerve to his left. Had Iran not swerved to the left, according to petitioner,
the collision would have been avoided. It was Iran who was clearly negligent, says petitioner. Citing our
ruling in McKee v. Intermediate Appellate Court, [11] petitioner avers that although his act of occupying the
Tamaraws lane was the initial act in the chain of events, Irans swerving to the left after petitioner flashed
his right turn signal, constituted a sufficient intervening event, which proximately caused the eventual
injuries and damages to private complainant.

Petitioner also claims that the Court of Appeals erred when it found that the pick-up approached the
Tamaraw at a fast speed. He maintains that this was not borne by the evidence on record.
The Office of the Solicitor General, as counsel for the state, counters that the Court of Appeals did not err in
convicting the accused, now petitioner herein. Petitioners negligence was the proximate cause of the
accident, according to the OSG, for the following reasons: First, petitioner for no justifiable reason occupied
the opposite lane. Second, while on the wrong lane, petitioner was driving the Isuzu pick-up fast, and he
returned to his own lane only at the last minute. This left Iran, the driver of the Tamaraw, with no
opportunity to reflect on the safest way to avoid the accident. Irans swerving to the left was his reaction to
petitioners wrongful act, which appropriately calls for the application of the emergency rule. The rationale
of this rule is that a person who is confronted with a sudden emergency might have no time for thought, and
he must make a prompt decision based largely upon impulse or instinct. Thus, he cannot be held to the
same standard of conduct as one who had an opportunity to reflect, even though it later appears that he
made the wrong decision. Clearly, under the emergency rule petitioner cannot shift the blame to Iran,
concludes the OSG.
As to petitioners claim that there was no evidence showing that the pick-up was running very fast, the OSG
avers that this is rebutted by the testimony of Seyan and Iran who both testified that petitioner drove the
pick-up at a fast speed when it encroached on their lane immediately before the collision.
Did the Court of Appeals err in finding that the action of petitioner, Rogelio Engada, was the proximate
cause of the collision? This is the crux of the present petition.
In our view, petitioners attempt to pin the blame on Edwin Iran, the driver of the Tamaraw, for the vehicular
collision is unfounded. Iran swerved to the left only to avoid petitioners pick-up, which was already on a
head to head position going against Irans Tamaraw jeepney immediately before the vehicles collided. This
fact has been established by the evidence on record. No convincing proof was adduced by petitioner that
the driver of the Tamaraw, Iran, could have avoided a head-on collision.
We note that petitioner admitted his Isuzu pick-up intruded into the lane of the Tamaraw
jeepney. Prosecution witness Nelson Alobin, one of those who went to the scene of the incident
immediately, testified that when he arrived at the place where the collision took place, he saw the pick-up
positioned diagonally at the center of the road. [12] Its head was towards the direction of Barotac Nuevo and
the rear tires were just a few inches beyond the center of the lane. [13] Moving backwards facing Barotac
Nuevo, at two arms length away from the pick-up, Alobin also saw a tire mark, 12 inches long and located at
the left side of the center line going to the right side. [14]
The above circumstance corroborates the testimony of both Seyan and Iran that, immediately before the
collision, the pick-up was not on its proper lane but on the other lane (the left lane rather than the right)
directly on collision course with the Tamaraw jeepney. The tire mark reveals the short distance between the
two vehicles when the Isuzu pick-up attempted to return to its proper lane.
It is a settled rule that a driver abandoning his proper lane for the purpose of overtaking another vehicle in
an ordinary situation has the duty to see to it that the road is clear and he should not proceed if he cannot do
so in safety. [15] This rule is consistent with Section 41, paragraph (a) of R.A. 4136 as amended, otherwise
known as The Land Transportation and Traffic Code, which provides:
Sec. 41. Restrictions on overtaking and passing. - (a) The driver of a vehicle shall not drive to the left side of
the center line of a highway in overtaking or passing another vehicle proceeding in the same direction,

unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit
such overtaking or passing to be made in safety.
In the present case, there was only a distance of 30 meters from the Tamaraw jeepney when the Isuzu pickup abandoned its lane and swerved to the left of the center line. [16] In addition, petitioner was running at a
fast clip while traversing this lane. This was testified to by Seyan and Iran, unrebutted by petitioner. The
resulting damage to the Tamaraw jeepney, at the point where the head and chassis were separated from the
body, bolsters this conclusion that petitioner was speeding. In our view, petitioner was negligent in several
ways, and his negligence was the proximate cause of the collision. In abandoning his lane, he did not see to
it first that the opposite lane was free of oncoming traffic and was available for a safe passage. Further, after
seeing the Tamaraw jeepney ahead, petitioner did not slow down, contrary to the rule set in Batangas
Laguna Tayabas Bus Co. v. IAC, [17] thus
x x xor if, after attempting to pass, the driver of the overtaking vehicle finds that he cannot make the
passage in safety, the latter must slacken his speed so as to avoid the danger of a collision, even bringing his
car to a stop if necessary.
For failing to observe the duty of diligence and care imposed on drivers of vehicles abandoning their lane,
petitioner must be held liable.
Iran could not be faulted when in his attempt to avoid the pick-up, he swerved to his left. Petitioners acts
had put Iran in an emergency situation which forced him to act quickly. 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. [18]
Petitioner tries to extricate himself from liability by invoking the doctrine of last clear chance. He avers that
between him and Iran, the latter had the last clear chance to avoid the collision, hence Iran must be held
liable.
The doctrine of last clear chance states that a person who has the last clear chance or opportunity of
avoiding an accident, notwithstanding the negligent acts of his opponent, is considered in law solely
responsible for the consequences of the accident. [19] But as already stated on this point, no convincing
evidence was adduced by petitioner to support his invocation of the abovecited doctrine. Instead, what has
been shown is the presence of an emergency and the proper application of the emergency rule. Petitioners
act of swerving to the Tamaraws lane at a distance of 30 meters from it and driving the Isuzu pick-up at a
fast speed as it approached the Tamaraw, denied Iran time and opportunity to ponder the situation at all.
There was no clear chance to speak of. Accordingly, the Court of Appeals did not err in holding petitioner
responsible for the vehicular collision and the resulting damages, including the injuries suffered by Mrs.
Sheila Seyan and the total loss of the Tamaraw jeepney. It also did not err in imposing on petitioner the
sentence of four (4) months of arresto mayor. [20]
WHEREFORE, the instant petition is DENIED for lack of merit. The assailed decision of the Court of Appeals in
CA-G.R. CR No. 18358 is AFFIRMED. Costs against petitioner.cralaw
SO ORDERED.cralaw
Bellosillo, J., (Chairman), and Callejo, Sr., JJ., concur. Austria-Martinez, J., on official leave.
____________________________
Endnotes:
[1] Rollo, pp. 26-34.

[2] Records, pp. 374-381. chanrobles virtual law library

[3] TSN, 6 September 1991, p. 9. However in the testimony of Seyan dated 7 October 1991, p. 6, it was Barotac
Rural Health Center.
[4] Records, p.16. chanrobles virtual law library
[5] Id. at 6. chanrobles virtual law library
[6] Id. at 31.
[7] Id. at 1.
[8] Id. at 381.
[9] Rollo, p. 33.
[10] Id. at 18. chanrobles virtual law library
[11] G.R. No. 68102, 16 July 1992, 211 SCRA 517.
[12] TSN, 13 September 1991, pp. 6-7. chanrobles virtual law library
[13] Id. at 15. chanrobles virtual law library
[14] Id. at 7. chanrobles virtual law library
[15] Mallari, Sr. v. Court of Appeals, G.R. No. 128607, 31 January 2000, 324 SCRA 147, 153.
[16] TSN, 6 September 1991, pp. 5 & 12. chanrobles virtual law library
[17] G.R. Nos. L-74387-90, 14 November 1988, 167 SCRA 379, 384.
[18] Valenzuela v. Court of Appeals, 323 Phil. 374, 389 (1996). chanrobles virtual law library
[19] Bustamante v. Court of Appeals, G.R. No. 89880, 6 February 1991, 193 SCRA 603, 611. chanrobles virtual law
library
[20] ART. 365. Imprudence and negligence. - Any person who, by reckless imprudence, shall commit any act
which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in its
maximum period to prision correccional in its medium period; if it would have constituted a less grave felony,
the penalty of arresto mayor in its minimum and medium periods shall be imposed; if it would have constituted
a light-felony, the penalty of arresto menor in its maximum period shall be imposed. chanrobles virtual law
library
Any person who, by simple imprudence or negligence, shall commit an act which would otherwise constitute a
grave felony, shall suffer the penalty of arresto mayor in its medium and maximum periods, if it would have
constituted a less serious felony, the penalty of arresto mayor in its minimum period shall be imposed.
chanrobles virtual law library
x x x

ROGELIO ENGADA,
G.R. No. 140698
June 20, 2003

Petitioner,

-versus-

HON. COURT OF APPEALS, FORMER FOURTEENTH

DIVISION, MANILA, AND PEOPLE OF THE PHILIPPINES,
Respondents.

DECISION
QUISUMBING, J.:chanroblesvirtuallawlibrary

This Petition for Review seeks the reversal of the Decision [1] dated May 31, 1999 of the Court of Appeals in
CA-G.R. CR No. 18358, which affirmed with modification the judgment [2] dated August 25, 1994, of the
Regional Trial Court of Iloilo City, Branch 29, in Criminal Case No. 36223. The RTC found petitioner guilty
beyond reasonable doubt of simple imprudence resulting in physical injuries and damage to property, and
sentenced him to (a) suffer imprisonment for one month and one day of arresto mayor, (b) pay private
complainant, Mrs. Sheila Seyan, the amount of fifty one thousand pesos (P51,000) for the total destruction
of the Toyota Tamaraw jeepney, and one hundred ten thousand pesos (P110,000) for her hospital and
medical expenses, and (c) pay the costs of suit. The CA increased the prison term imposed on petitioner to
four months of arresto mayor.
The facts culled from the records are as follows: chanrobles virtual law library
On November 29, 1989, at about 1:30 in the afternoon, Edwin Iran was driving a blue Toyota Tamaraw
jeepney bound for Iloilo City. On board was Sheila Seyan, the registered owner of the Tamaraw. While
traversing the road along Barangay Acquit, Barotac Nuevo, the Tamaraw passengers allegedly saw from the
opposite direction a speeding Isuzu pick-up, driven by petitioner Rogelio Engada. The pick-up had just
negotiated a hilly gradient on the highway. When it was just a few meters away from the Tamaraw, the Isuzu
pick-ups right signal light flashed, at the same time, it swerved to its left, encroaching upon the lane of the
Tamaraw and headed towards a head-on collision course with it. Seyan shouted at Iran to avoid the pick-up.
Iran swerved to his left but the pick-up also swerved to its right. Thus, the pick-up collided with the Tamaraw,
hitting the latter at its right front passenger side. The impact caused the head and chassis of the Tamaraw to
separate from its body. Seyan was thrown out of the Tamaraw and landed on a ricefield. The pick-up
stopped diagonally astride the center of the road.cralaw
Seyan and Iran were brought to Barotac Nuevo Medicare Hospital. [3] Seyan was profusely bleeding from
her nose and was in a state of shock with her eyes closed. In the afternoon of the same day, November 29,
1989, she was transferred to St. Pauls Hospital in Iloilo City where she was confined. Her medical certificate
revealed that she suffered a fracture on the right femur, lacerated wound on the right foot, multiple
contusions, abrasions, blunt abdominal injury, and lacerations of the upper-lower pole of the right kidney.
[4] She was discharged from the hospital only on January 15, 1990.cralaw
Seyan incurred P130,000 in medical expenses. The Toyota Tamaraw jeepney ended up in the junk heap. Its
total loss was computed at P80,000.cralaw
A criminal complaint for damage to property through reckless imprudence with serious physical injuries was
filed with the Municipal Trial Court of Barotac Nuevo against petitioner Rogelio Engada and Edwin Iran. [5]
Probable cause was found against petitioner, while the complaint against Iran was dismissed. [6]
Consequently, an Information was filed against petitioner charging him with serious physical injuries and
damage to property through reckless imprudence, thus:
That on or about November 29, 1989, in the Municipality of Barotac Nuevo, Province of Iloilo, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused Rogelio Engada driving an
Isuzu Pick-up with Plate No. SAR 117 owned by the Land Bank of the Philippines, did then and there wilfully,
unlawfully and with reckless imprudence drive said pick-up in a careless, reckless and imprudent manner
with disregard of traffic laws and regulations, and as a result of such negligent and reckless driving the Isuzu
Pick-up driven by the accused bumped a Toyota Tamaraw jeep with Plate No. FBF 601 owned by Joelito and
Sheila Seyan and driven by Edwin Iran thereby causing damage to the Toyota Tamaraw in the amount of
P80,000.00 and serious physical injuries to Mrs. Sheila Seyan who was riding said vehicle, the injuries barring
complications will heal in more than 30 days. chanrobles virtual law library
CONTRARY TO LAW. [7]
After trial, the court rendered on August 25, 1994 a decision, disposing as follows:
WHEREFORE, the Court, finding the accused guilty beyond reasonable doubt of Simple Imprudence resulting
[in] physical injuries and damage to property defined and penalized in Article 263, paragraph 4 and in relation
with Article 365, paragraph 2 of the Revised Penal Code, hereby sentences the accused Rogelio Engada to

suffer imprisonment of ONE (1) MONTH and ONE (1) DAY of arresto mayor.
Accused is further ordered to pay complainant Mrs. Sheila Seyan the amount of P51,000.00 for the total
destruction of the Toyota Tamaraw Jeepney and P110,000.00 for indemnification of hospital and medical
expenses, and to pay the cost of the suit.
SO ORDERED. [8]
Petitioner appealed to the Court of Appeals. On May 31, 1999, the CA dismissed the appeal and affirmed
with modification the trial courts decision, thus:
WHEREFORE, the instant appeal is hereby DISMISSED. Accordingly, the appealed decision is hereby
AFFIRMED with modification as to the penalty imposed upon the accused who is hereby sentenced to suffer
imprisonment of FOUR (4) MONTHS of arresto mayor. chanrobles virtual law library
SO ORDERED. [9]
Petitioner filed a motion for reconsideration, but it was denied. Hence, the instant petition, wherein
petitioner raises the issue of:
WHETHER OR NOT THE FINDINGS OF RESPONDENT COURT OF APPEALS ARE SUPPORTED BY THE EVIDENCE
OR BASED ON A MISAPPREHENSION OF FACTS RESULTING IN A MANIFESTLY MISTAKEN INFERENCE
SPECIFICALLY ON WHAT WAS THE PROXIMATE CAUSE OF THE ACCIDENT AND WHOSE ACT WAS IT. [10]
Petitioner claims innocence and seeks acquittal. He contends that in this case we should relax the rule that
only legal questions can be raised in a petition for review under Rule 45 of the Rules of Court. According to
him, the Court of Appeals misapprehended the facts, and erred in its conclusion as to the proximate cause of
the collision. He insists that the Court of Appeals erred when it found him negligent for occupying the lane of
the Tamaraw jeepney, and then failing to return to his original lane at the safest and earliest
opportunity.cralaw
Petitioner further contends that the CA failed to consider that he already relayed his intention to go back to
his lane by flashing the pick-ups right signal light. He submits that at that moment Iran, the driver of the
Tamaraw, had no more reason to swerve to his left. Had Iran not swerved to the left, according to petitioner,
the collision would have been avoided. It was Iran who was clearly negligent, says petitioner. Citing our
ruling in McKee v. Intermediate Appellate Court, [11] petitioner avers that although his act of occupying the
Tamaraws lane was the initial act in the chain of events, Irans swerving to the left after petitioner flashed
his right turn signal, constituted a sufficient intervening event, which proximately caused the eventual
injuries and damages to private complainant.cralaw
Petitioner also claims that the Court of Appeals erred when it found that the pick-up approached the
Tamaraw at a fast speed. He maintains that this was not borne by the evidence on record. chanrobles virtual
law library
The Office of the Solicitor General, as counsel for the state, counters that the Court of Appeals did not err in
convicting the accused, now petitioner herein. Petitioners negligence was the proximate cause of the
accident, according to the OSG, for the following reasons: First, petitioner for no justifiable reason occupied
the opposite lane. Second, while on the wrong lane, petitioner was driving the Isuzu pick-up fast, and he
returned to his own lane only at the last minute. This left Iran, the driver of the Tamaraw, with no
opportunity to reflect on the safest way to avoid the accident. Irans swerving to the left was his reaction to
petitioners wrongful act, which appropriately calls for the application of the emergency rule. The rationale
of this rule is that a person who is confronted with a sudden emergency might have no time for thought, and
he must make a prompt decision based largely upon impulse or instinct. Thus, he cannot be held to the
same standard of conduct as one who had an opportunity to reflect, even though it later appears that he
made the wrong decision. Clearly, under the emergency rule petitioner cannot shift the blame to Iran,
concludes the OSG.cralaw
As to petitioners claim that there was no evidence showing that the pick-up was running very fast, the OSG
avers that this is rebutted by the testimony of Seyan and Iran who both testified that petitioner drove the

pick-up at a fast speed when it encroached on their lane immediately before the collision.cralaw
Did the Court of Appeals err in finding that the action of petitioner, Rogelio Engada, was the proximate
cause of the collision? This is the crux of the present petition.cralaw
In our view, petitioners attempt to pin the blame on Edwin Iran, the driver of the Tamaraw, for the vehicular
collision is unfounded. Iran swerved to the left only to avoid petitioners pick-up, which was already on a
head to head position going against Irans Tamaraw jeepney immediately before the vehicles collided. This
fact has been established by the evidence on record. No convincing proof was adduced by petitioner that
the driver of the Tamaraw, Iran, could have avoided a head-on collision.cralaw
We note that petitioner admitted his Isuzu pick-up intruded into the lane of the Tamaraw
jeepney. Prosecution witness Nelson Alobin, one of those who went to the scene of the incident
immediately, testified that when he arrived at the place where the collision took place, he saw the pick-up
positioned diagonally at the center of the road. [12] Its head was towards the direction of Barotac Nuevo and
the rear tires were just a few inches beyond the center of the lane. [13] Moving backwards facing Barotac
Nuevo, at two arms length away from the pick-up, Alobin also saw a tire mark, 12 inches long and located at
the left side of the center line going to the right side. [14] chanrobles virtual law library
The above circumstance corroborates the testimony of both Seyan and Iran that, immediately before the
collision, the pick-up was not on its proper lane but on the other lane (the left lane rather than the right)
directly on collision course with the Tamaraw jeepney. The tire mark reveals the short distance between the
two vehicles when the Isuzu pick-up attempted to return to its proper lane.cralaw
It is a settled rule that a driver abandoning his proper lane for the purpose of overtaking another vehicle in
an ordinary situation has the duty to see to it that the road is clear and he should not proceed if he cannot do
so in safety. [15] This rule is consistent with Section 41, paragraph (a) of R.A. 4136 as amended, otherwise
known as The Land Transportation and Traffic Code, which provides:
Sec. 41. Restrictions on overtaking and passing. - (a) The driver of a vehicle shall not drive to the left side of
the center line of a highway in overtaking or passing another vehicle proceeding in the same direction,
unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit
such overtaking or passing to be made in safety.cralaw
In the present case, there was only a distance of 30 meters from the Tamaraw jeepney when the Isuzu pickup abandoned its lane and swerved to the left of the center line. [16] In addition, petitioner was running at a
fast clip while traversing this lane. This was testified to by Seyan and Iran, unrebutted by petitioner. The
resulting damage to the Tamaraw jeepney, at the point where the head and chassis were separated from the
body, bolsters this conclusion that petitioner was speeding. In our view, petitioner was negligent in several
ways, and his negligence was the proximate cause of the collision. In abandoning his lane, he did not see to
it first that the opposite lane was free of oncoming traffic and was available for a safe passage. Further, after
seeing the Tamaraw jeepney ahead, petitioner did not slow down, contrary to the rule set in Batangas
Laguna Tayabas Bus Co. v. IAC, [17] thus: chanrobles virtual law library
x x xor if, after attempting to pass, the driver of the overtaking vehicle finds that he cannot make the
passage in safety, the latter must slacken his speed so as to avoid the danger of a collision, even bringing his
car to a stop if necessary.cralaw
For failing to observe the duty of diligence and care imposed on drivers of vehicles abandoning their lane,
petitioner must be held liable.cralaw
Iran could not be faulted when in his attempt to avoid the pick-up, he swerved to his left. Petitioners acts
had put Iran in an emergency situation which forced him to act quickly. 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. [18]
Petitioner tries to extricate himself from liability by invoking the doctrine of last clear chance. He avers that
between him and Iran, the latter had the last clear chance to avoid the collision, hence Iran must be held

liable. chanrobles virtual law library

The doctrine of last clear chance states that a person who has the last clear chance or opportunity of
avoiding an accident, notwithstanding the negligent acts of his opponent, is considered in law solely
responsible for the consequences of the accident. [19] But as already stated on this point, no convincing
evidence was adduced by petitioner to support his invocation of the abovecited doctrine. Instead, what has
been shown is the presence of an emergency and the proper application of the emergency rule. Petitioners
act of swerving to the Tamaraws lane at a distance of 30 meters from it and driving the Isuzu pick-up at a
fast speed as it approached the Tamaraw, denied Iran time and opportunity to ponder the situation at all.
There was no clear chance to speak of. Accordingly, the Court of Appeals did not err in holding petitioner
responsible for the vehicular collision and the resulting damages, including the injuries suffered by Mrs.
Sheila Seyan and the total loss of the Tamaraw jeepney. It also did not err in imposing on petitioner the
sentence of four (4) months of arresto mayor. [20]
WHEREFORE, the instant petition is DENIED for lack of merit. The assailed decision of the Court of Appeals in
CA-G.R. CR No. 18358 is AFFIRMED. Costs against petitioner.cralaw
SO ORDERED.cralaw
Bellosillo, J., (Chairman), and Callejo, Sr., JJ., concur. Austria-Martinez, J., on official leave.
____________________________
Endnotes:
[1] Rollo, pp. 26-34.
[2] Records, pp. 374-381. chanrobles virtual law library
[3] TSN, 6 September 1991, p. 9. However in the testimony of Seyan dated 7 October 1991, p. 6, it was Barotac
Rural Health Center.
[4] Records, p.16. chanrobles virtual law library
[5] Id. at 6. chanrobles virtual law library
[6] Id. at 31.
[7] Id. at 1.
[8] Id. at 381.
[9] Rollo, p. 33.
[10] Id. at 18. chanrobles virtual law library
[11] G.R. No. 68102, 16 July 1992, 211 SCRA 517.
[12] TSN, 13 September 1991, pp. 6-7. chanrobles virtual law library
[13] Id. at 15. chanrobles virtual law library
[14] Id. at 7. chanrobles virtual law library
[15] Mallari, Sr. v. Court of Appeals, G.R. No. 128607, 31 January 2000, 324 SCRA 147, 153.
[16] TSN, 6 September 1991, pp. 5 & 12. chanrobles virtual law library
[17] G.R. Nos. L-74387-90, 14 November 1988, 167 SCRA 379, 384.
[18] Valenzuela v. Court of Appeals, 323 Phil. 374, 389 (1996). chanrobles virtual law library
[19] Bustamante v. Court of Appeals, G.R. No. 89880, 6 February 1991, 193 SCRA 603, 611. chanrobles virtual law
library
[20] ART. 365. Imprudence and negligence. - Any person who, by reckless imprudence, shall commit any act
which, had it been intentional, would constitute a grave felony, shall suffer the penalty of arresto mayor in its
maximum period to prision correccional in its medium period; if it would have constituted a less grave felony,
the penalty of arresto mayor in its minimum and medium periods shall be imposed; if it would have constituted
a light-felony, the penalty of arresto menor in its maximum period shall be imposed. chanrobles virtual law
library
Any person who, by simple imprudence or negligence, shall commit an act which would otherwise constitute a
grave felony, shall suffer the penalty of arresto mayor in its medium and maximum periods, if it would have
constituted a less serious felony, the penalty of arresto mayor in its minimum period shall be imposed.
chanrobles virtual law library

x x x
[G.R. No. 188363, February 27, 2013]
ALLIED BANKING CORPORATION, Petitioner, v. BANK OF THE PHILIPPINE ISLANDS, Respondents.
DECISION
VILLARAMA, JR., J.:

A collecting bank is guilty of contributory negligence when it accepted for deposit a post-dated check
notwithstanding that said check had been cleared by the drawee bank which failed to return the check
within the 24-hour reglementary period.
Petitioner Allied Banking Corporation appeals the Decision1 dated March 19, 2009 of the Court of Appeals
(CA) in CA-G.R. SP No. 97604 which set aside the Decision2 dated December 13, 2005 of the Regional Trial
Court (RTC) of Makati City, Branch 57 in Civil Case No. 05-418.
The factual antecedents:
On October 10, 2002, a check in the amount of P1,000,000.00 payable to Mateo Mgt. Group International
(MMGI) was presented for deposit and accepted at petitioners Kawit Branch. The check, post-dated Oct. 9,
2003, was drawn against the account of Marciano Silva, Jr. (Silva) with respondent Bank of the Philippine
Islands (BPI) Bel-Air Branch. Upon receipt, petitioner sent the check for clearing to respondent through the
Philippine Clearing House Corporation (PCHC).3
The check was cleared by respondent and petitioner credited the account of MMGI with P1,000,000.00. On
October 22, 2002, MMGIs account was closed and all the funds therein were withdrawn. A month later, Silva
discovered the debit of P1,000,000.00 from his account. In response to Silvas complaint, respondent
credited his account with the aforesaid sum.4
On March 21, 2003, respondent returned a photocopy of the check to petitioner for the reason: Postdated.
Petitioner, however, refused to accept and sent back to respondent a photocopy of the check. Thereafter,
the check, or more accurately, the Charge Slip, was tossed several times from petitioner to respondent, and
back to petitioner, until on May 6, 2003, respondent requested the PCHC to take custody of the check.
Acting on the request, PCHC directed the respondent to deliver the original check and informed it of PCHCs
authority under Clearing House Operating Memo (CHOM) No. 279 dated 06 September 1996 to split 50/50
the amount of the check subject of a Ping-Pong controversy which shall be implemented thru the issuance
of Debit Adjustment Tickets against the outward demands of the banks involved. PCHC likewise encouraged
respondent to submit the controversy for resolution thru the PCHC Arbitration Mechanism.5
However, it was petitioner who filed a complaint6 before the Arbitration Committee, asserting that
respondent should solely bear the entire face value of the check due to its negligence in failing to return the
check to petitioner within the 24-hour reglementary period as provided in Section 20.17 of the Clearing
House Rules and Regulations8 (CHRR) 2000. Petitioner prayed that respondent be ordered to reimburse the
sum of P500,000.00 with 12% interest per annum, and to pay attorneys fees and other arbitration expenses.
In its Answer with Counterclaims,9 respondent charged petitioner with gross negligence for accepting the

post-dated check in the first place. It contended that petitioners admitted negligence was the sole and
proximate cause of the loss.
On December 8, 2004, the Arbitration Committee rendered its Decision10 in favor of petitioner and against
the respondent. First, it ruled that the situation of the parties does not involve a Ping-Pong controversy
since the subject check was neither returned within the reglementary time or through the PCHC return
window, nor coursed through the clearing facilities of the PCHC.
As to respondents direct presentation of a photocopy of the subject check, it was declared to be without
legal basis because Section 21.111 of the CHRR 2000 does not apply to post-dated checks. The Arbitration
Committee further noted that respondent not only failed to return the check within the 24-hour
reglementary period, it also failed to institute any formal complaint within the contemplation of Section
20.312 and it appears that respondent was already contented with the 50-50 split initially implemented by
the PCHC. Finding both parties negligent in the performance of their duties, the Committee applied the
doctrine of Last Clear Chance and ruled that the loss should be shouldered by respondent alone, thus:
WHEREFORE, premises considered, judgment is hereby rendered in favor of plaintiff Allied Banking
Corporation and against defendant Bank of the Philippine Islands, ordering the latter to pay the former the
following:
(a) The sum of P500,000.00, plus interest thereon at the rate of 12% per annum counted from the date of
filing of the complaint;
(b) Attorneys fees in the amount of P25,000.00;
(c) The sum of P2,090.00 as and by way of reimbursement of filing fees, plus the cost of suit.
SO ORDERED.13
Respondent filed a motion for reconsideration14 but it was denied by the PCHC Board of Directors under
Board Resolution No. 10-200515 dated April 22, 2005. The Board pointed out that what actually transpired
was a ping-pong not of a check but of a Charge Slip (CS) enclosed in a carrier envelope that went back
and forth through the clearing system in apparent reaction by [petitioner] to the wrongful return via the
PCHC clearing system. Respondents conduct was held as a gross and unmistakably deliberate violation
of Section 20.2,16 in relation to Section 20.1(e) of the CHRR 2000.17
On May 13, 2005, respondent filed a petition for review18 in the RTC claiming that PCHC erred in constricting
the return of a post-dated check to Section 20.1, overlooking the fact that Section 20.3 is also applicable
which provision necessarily contemplates defects that are referred to in Section 20.1 as both sections are
subsumed under the general provision (Section 20) on the return of regular items. Respondent also argued
that assuming it to be liable, the PCHC erred in holding it solely responsible and should bear entirely the
consequent loss considering that while respondent may have the last opportunity in proximity, it was
petitioner which had the longest, fairest and clearest chance to discover the mistake and avoid the
happening of the loss. Lastly, respondent assailed the award of attorneys fees, arguing that PCHCs
perception of malice against it and misuse of the clearing machinery is clearly baseless and unfounded.
In its Decision dated December 13, 2005, the RTC affirmed with modification the Arbitration Committees
decision by deleting the award of attorneys fees. The RTC found no merit in respondents stance that
through inadvertence it failed to discover that the check was post-dated and that confirmation within 24

hours is often elusive if not outright impossible because a drawee bank receives hundreds if not
thousands of checks in an ordinary clearing day. Thus:
Petitioner admitted par. 4 in its Answer with Counterclaim and in its Memorandum, further adding that upon
receipt of the subject check through inadvertence, it did not notice that the check was postdated, hence,
petitioner did not return the same to respondent.
These contradict petitioners belated contention that it discovered the defect only after the lapse of the
reglementary period. What the evidence on record discloses is that petitioner received the check on October
10, 2002, that it was promptly sent for clearing, that through inadvertence, it did not notice that the check
was postdated. Petitioner did not even state when it discovered the defect in the subject check.
Likewise, petitioners contention that its discovery of the defect was a non-issue in view of the admissions
made in its Answer is unavailing. The Court has noted the fact that the PCHC Arbitration Committee
conducted a clarificatory hearing during which petitioner admitted that its standard operating procedure as
regards confirmation of checks was not followed. No less than petitioners witness admitted that BPI tried to
call up the drawer of the check, as their procedure dictates when it comes to checks in large amounts.
However, having initially failed to contact the drawer, no follow up calls were made nor other actions taken.
Despite these, petitioner cleared the check. Having admitted making said calls, it is simply impossible for
petitioner to have missed the fact that the check was postdated.19 (Emphasis supplied)
With the denial of its motion for partial reconsideration, respondent elevated the case to the CA by filing a
petition for review under Rule 42 of the 1997 Rules of Civil Procedure, as amended.
By Decision dated March 19, 2009, the CA set aside the RTC judgment and ruled for a 60-40 sharing of the
loss as it found petitioner guilty of contributory negligence in accepting what is clearly a post-dated check.
The CA found that petitioners failure to notice the irregularity on the face of the check was a breach of its
duty to the public and a telling sign of its lack of due diligence in handling checks coursed through it. While
the CA conceded that the drawee bank has a bigger responsibility in the clearing of checks, it declared that
the presenting bank cannot take lightly its obligation to make sure that only valid checks are introduced into
the clearing system. According to the CA, considerations of public policy and substantial justice will be
served by allocating the damage on a 60-40 ratio, as it thus decreed:
WHEREFORE, the decision of the Regional Trial Court of Makati City (Branch 57) dated December 13, 2005 is
ANNULLED and SET ASIDE and judgment is rendered ordering petitioner to pay respondent Allied Banking
Corporation the sum of P100,000.00 plus interest thereon at the rate of 6% from July 10, 2003, which shall
become 12% per annum from finality hereof, until fully paid, aside from costs.
SO ORDERED.20
Its motion for reconsideration having been denied by the CA, petitioner is now before the Court seeking a
partial reversal of the CAs decision and affirmance of the December 13, 2005 Decision of the RTC.
Essentially, the two issues for resolution are: (1) whether the doctrine of last clear chance applies in this case;
and (2) whether the 60-40 apportionment of loss ordered by the CA was justified.
As well established by the records, both petitioner and respondent were admittedly negligent in the
encashment of a check post-dated one year from its presentment.

Petitioner argues that the CA should have sustained PCHCs finding that despite the antecedent negligence
of petitioner in accepting the post-dated check for deposit, respondent, by exercising reasonable care and
prudence, might have avoided injurious consequences had it not negligently cleared the check in question. It
pointed out that in applying the doctrine of last clear chance, the PCHC cited the case of Philippine Bank of
Commerce v. Court of Appeals21 which ruled that assuming the banks depositor, private respondent, was
negligent in entrusting cash to a dishonest employee, thus providing the latter with the opportunity to
defraud the company, it cannot be denied that petitioner bank had the last clear opportunity to avert the
injury incurred by its client, simply by faithfully observing their self-imposed validation procedure.
Petitioner underscores respondents failure to observe clearing house rules and its own standard operating
procedure which, the PCHC said constitute further negligence so much so that respondent should be solely
liable for the loss. Specifically, respondent failed to return the subject check within the 24-hour reglementary
period under Section 20.1 and to institute any formal complaint within the contemplation of Section 20.3 of
the CHRR 2000. The PCHC likewise faulted respondent for not making follow-up calls or taking any other
action after it initially attempted, without success, to contact by telephone the drawer of the check, and
clearing the check despite such lack of confirmation from its depositor in violation of its own standard
procedure for checks involving large amounts.
The doctrine of last clear chance, stated broadly, is that the negligence of the plaintiff does not preclude a
recovery for the negligence of the defendant where it appears that the defendant, by exercising reasonable
care and prudence, might have avoided injurious consequences to the plaintiff notwithstanding the
plaintiffs negligence.22 The doctrine necessarily assumes negligence on the part of the defendant and
contributory negligence on the part of the plaintiff, and does not apply except upon that assumption.23
Stated differently, the antecedent negligence of the plaintiff does not preclude him from recovering
damages caused by the supervening negligence of the defendant, who had the last fair chance to prevent
the impending harm by the exercise of due diligence.24 Moreover, in situations where the doctrine has been
applied, it was defendants failure to exercise such ordinary care, having the last clear chance to avoid loss or
injury, which was the proximate cause of the occurrence of such loss or injury.25
In this case, the evidence clearly shows that the proximate cause of the unwarranted encashment of the
subject check was the negligence of respondent who cleared a post-dated check sent to it thru the PCHC
clearing facility without observing its own verification procedure. As correctly found by the PCHC and upheld
by the RTC, if only respondent exercised ordinary care in the clearing process, it could have easily noticed the
glaring defect upon seeing the date written on the face of the check Oct. 9, 2003. Respondent could have
then promptly returned the check and with the check thus dishonored, petitioner would have not credited
the amount thereof to the payees account. Thus, notwithstanding the antecedent negligence of the
petitioner in accepting the post-dated check for deposit, it can seek reimbursement from respondent the
amount credited to the payees account covering the check.
What petitioner omitted to mention is that in the cited case of Philippine Bank of Commerce v. Court of
Appeals,26 while the Court found petitioner bank as the culpable party under the doctrine of last clear
chance since it had, thru its teller, the last opportunity to avert the injury incurred by its client simply by
faithfully observing its own validation procedure, it nevertheless ruled that the plaintiff depositor (private
respondent) must share in the loss on account of its contributory negligence. Thus:
The foregoing notwithstanding, it cannot be denied that, indeed, private respondent was likewise negligent
in not checking its monthly statements of account. Had it done so, the company would have been alerted to
the series of frauds being committed against RMC by its secretary. The damage would definitely not have
ballooned to such an amount if only RMC, particularly Romeo Lipana, had exercised even a little vigilance in

their financial affairs. This omission by RMC amounts to contributory negligence which shall mitigate the
damages that may be awarded to the private respondent under Article 2179 of the New Civil Code, to wit:
x x x. When the plaintiffs own negligence was the immediate and proximate cause of his injury, he cannot
recover damages. But if his negligence was only contributory, the immediate and proximate cause of the
injury being the defendant's lack of due care, the plaintiff may recover damages, but the courts shall mitigate
the damages to be awarded.
In view of this, we believe that the demands of substantial justice are satisfied by allocating the damage on a
60-40 ratio. Thus, 40% of the damage awarded by the respondent appellate court, except the award of
P25,000.00 attorneys fees, shall be borne by private respondent RMC; only the balance of 60% needs to be
paid by the petitioners. The award of attorneys fees shall be borne exclusively by the petitioners.27 (Italics
in the original; emphasis supplied)
In another earlier case,28 the Court refused to hold petitioner bank solely liable for the loss notwithstanding
the finding that the proximate cause of the loss was due to its negligence. Since the employees of private
respondent bank were likewise found negligent, its claim for damages is subject to mitigation by the courts.
Thus:
Both banks were negligent in the selection and supervision of their employees resulting in the encashment
of the forged checks by an impostor. Both banks were not able to overcome the presumption of negligence
in the selection and supervision of their employees. It was the gross negligence of the employees of both
banks which resulted in the fraud and the subsequent loss. While it is true that petitioner BPIs negligence
may have been the proximate cause of the loss, respondent CBCs negligence contributed equally to the
success of the impostor in encashing the proceeds of the forged checks. Under these circumstances, we
apply Article 2179 of the Civil Code to the effect that while respondent CBC may recover its losses, such
losses are subject to mitigation by the courts. x x x
Considering the comparative negligence of the two (2) banks, we rule that the demands of substantial
justice are satisfied by allocating the loss of P2,413,215.16 and the costs of the arbitration proceedings in the
amount of P7,250.00 and the costs of litigation on a 60-40 ratio. Conformably with this ruling, no interests
and attorneys fees can be awarded to either of the parties.29 (Emphasis supplied)
Apportionment of damages between parties who are both negligent was followed in subsequent cases
involving banking transactions notwithstanding the courts finding that one of them had the last clear
opportunity to avoid the occurrence of the loss.
In Bank of America NT & SA v. Philippine Racing Club,30 the Court ruled:
In the case at bar, petitioner cannot evade responsibility for the loss by attributing negligence on the part of
respondent because, even if we concur that the latter was indeed negligent in pre-signing blank checks, the
former had the last clear chance to avoid the loss. To reiterate, petitioners own operations manager
admitted that they could have called up the client for verification or confirmation before honoring the
dubious checks. Verily, petitioner had the final opportunity to avert the injury that befell the respondent. x x
x Petitioners negligence has been undoubtedly established and, thus, pursuant to Art. 1170 of the NCC, it
must suffer the consequence of said negligence.
In the interest of fairness, however, we believe it is proper to consider respondents own negligence to
mitigate petitioners liability. Article 2179 of the Civil Code provides:
xxxx

Explaining this provision in Lambert v. Heirs of Ray Castillon, the Court held:
The underlying precept on contributory negligence is that a plaintiff who is partly responsible for his own
injury should not be entitled to recover damages in full but must bear the consequences of his own
negligence. The defendant must thus be held liable only for the damages actually caused by his negligence.
xxx xxx xxx
xxxx
Following established jurisprudential precedents, we believe the allocation of sixty percent (60%) of the
actual damages involved in this case (represented by the amount of the checks with legal interest) to
petitioner is proper under the premises. Respondent should, in light of its contributory negligence, bear
forty percent (40%) of its own loss.31 (Emphasis supplied)
In Philippine National Bank v. F.F. Cruz and Co., Inc.,32 the Court made a similar disposition, thus:
Given the foregoing, we find no reversible error in the findings of the appellate court that PNB was negligent
in the handling of FFCCIs combo account, specifically, with respect to PNBs failure to detect the forgeries in
the subject applications for managers check which could have prevented the loss. x x x PNB failed to meet
the high standard of diligence required by the circumstances to prevent the fraud. In Philippine Bank of
Commerce v. Court of Appeals and The Consolidated Bank & Trust Corporation v. Court of Appeals, where the
banks negligence is the proximate cause of the loss and the depositor is guilty of contributory negligence,
we allocated the damages between the bank and the depositor on a 60-40 ratio. We apply the same ruling in
this case considering that, as shown above, PNBs negligence is the proximate cause of the loss while the
issue as to FFCCIs contributory negligence has been settled with finality in G.R. No. 173278. Thus, the
appellate court properly adjudged PNB to bear the greater part of the loss consistent with these rulings.33
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.34 Admittedly, petitioners acceptance of the subject check for deposit despite the one year
postdate written on its face was a clear violation of established banking regulations and practices. In such
instances, payment should be refused by the drawee bank and returned through the PCHC within the 24hour reglementary period. As aptly observed by the CA, petitioners failure to comply with this basic policy
regarding post-dated checks was a telling sign of its lack of due diligence in handling checks coursed
through it.35
It bears stressing that the diligence required of banks is more than that of a Roman pater familias or a good
father of a family. The highest degree of diligence is expected,36 considering the nature of the banking
business that is imbued with public interest. While it is true that respondents liability for its negligent
clearing of the check is greater, petitioner cannot take lightly its own violation of the long-standing rule
against encashment of post-dated checks and the injurious consequences of allowing such checks into the
clearing system.
Petitioner repeatedly harps on respondents transgression of clearing house rules when the latter resorted
to direct presentment way beyond the reglementary period but glosses over its own negligent act that
clearly fell short of the conduct expected of it as a collecting bank. Petitioner must bear the consequences of
its omission to exercise extraordinary diligence in scrutinizing checks presented by its depositors.

Assessing the facts and in the light of the cited precedents, the Court thus finds no error committed by the
CA in allocating the resulting loss from the wrongful encashment of the subject check on a 60-40 ratio.
WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated March 19, 2009 of the Court
of Appeals in CA-G.R. SP No. 97604 is hereby AFFIRMED.
No pronouncement as to costs.