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Art. 2179.

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 defendants
lack of due care, the plaintiff may recover damages, but the courts shall mitigate the
damages to be awarded. (n)
Art. 2214. In quasi-delicts, the contributory negligence of the plaintiff shall reduce the
damages that he may recover.
Art. 1174. Except in cases expressly specified by the law, or when it is otherwise
declared by stipulation, or when the nature of the obligation requires the assumption
of risk, no person shall be responsible for those events which could not be foreseen,
or which, though foreseen, were inevitable.
Art. 2181. Whoever pays for the damage caused by his dependents or employees may
recover from the latter what he has paid or delivered in satisfaction of the claim.
What Is "Assumption of Risk" in a Personal Injury Claim?
Assumption of Risk is a type of defense available for most personal injury
and negligencelawsuits. Assumption of risk arises when a plaintiff knowingly and
voluntarily assumes a risk of harm connected with the negligence of the defendant. If
the plaintiff has assumed such a risk, they cannot recover damages for any harm
resulting from the defendants conduct, even if the defendant was negligent or
reckless.
In order to prove the defense of assumption of risk, the defendant must show that:

The plaintiff had actual knowledge of the risk involved in the conduct or activity

The plaintiff voluntary accepted the risk, either expressly through agreement or
implied by their words and conduct (i.e., they cannot be forced to perform the
activity)
Also, it is usually necessary to prove that the danger was obvious, or that the nature
of the conduct was inherently dangerous. Assumption of risk is a common defense to
negligence, along withcontributory negligence and comparative negligence.

Can I Still Sue a Defendant for My Injuries If I Signed a Contract Stating I


Wouldnt Sue Them?
Generally not, as the purpose of assumption of the risk is to prevent defendant
liability, if not outright deter an injured party from bringing a lawsuit. However,
express assumption of risk is a defense based in contract law, and as such, as a few
critical weak points:

The contract cannot be in violation of public policy. Public policy can be defined
by public necessity or accessibility. Emergency medical care and mandatory education
are usually areas of public policy.

The contract cannot cover intentional acts. If a racecar track owner intentionally
leaves a wheel in the road with the intention of hurting the plaintiff, the assumption
defense will not work.

Plaintiff did not have the capacity to understand the contract. A plaintiff who is
barely conscious or mentally ill cannot sign a contract waiving the right to sue a
doctor or hospital. Likewise, a minor may not have the ability to waiver the right to
sue when skydiving (this will depend on the minors exact age).
What Is Express Assumption of Risk?
One of the elements for proving assumption of risk is that the plaintiff must accept
the risk involved. Acceptance of the risk can either be Express (i.e. an agreement

between the parties), or Implied (i.e., determined by the plaintiffs words or


conduct).
Express assumption of risk usually takes the form of a written agreement between
the plaintiff and defendant. An example of this is where the plaintiff engages in an
ultrahazardous activity like skydiving. They may be required to sign a waiver stating
that they are assuming all the risks associated with skydiving, and are will not pursue
litigation if injured.
Whats Implied Assumption of Risk?
In comparison, implied assumption of risk doesnt involve a written agreement.
Instead, it may take the form of oral statements or conduct by the plaintiff. For
example, suppose a property owner told the plaintiff, That part of my yard is filled
with sinkholes.
Suppose then that the plaintiff says, Sure, nods his head, then proceeds to walk in
the area indicated and falls into a sinkhole. Here, the plaintiffs knowledge of the risk
may be implied from their verbal response and head nod. Implied assumption of risk
usually has to do with the plaintiffs response after they receive information about
the risk.
Thus, when proving assumption of risk, it is necessary to examine all the facts
surrounding the injury in order to determine whether the plaintiff had express or
implied acceptance of the risk.
What Statements or Conduct Cant the Plaintiff Waive Through Implied
Assumption of Risk?
Although implied assumption can be quite broad as long as the assumption is
voluntary and understood by all parties, there are some forms of conduct that cannot
be waivered. Such conduct includes:

Criminal behavior against the plaintiff.

Voluntary behavior which is actually involuntary due to the circumstances.


Accepting a ride with a drunk driver can be held involuntary if the weather is terrible
and the plaintiff is far from home.

Behavior which is completely unforeseeable. A plaintiff may foresee and assume


the risk of getting hit by a baseball when sitting in the front row of a baseball stadium
during the game. Plaintiff may not foresee and assume the risk of a deadly shooting
while watching the latest batman movie in a theater.
What Types of Cases Commonly Involve Assumption of Risk?
One example of assumption of risk is where the plaintiff entered an area littered with
toxic materials. Suppose the plaintiff had read signs that were posted around the
area marked, Danger- hazardous materials- enter at your own risk. If the plaintiff
still entered the area even after reading the signs (i.e., they had knowledge of the
risk), they might not be able to recover damages from the property owner, since they
assumed the risk of injury.
Assumption of risk is commonly raised as a defense in cases involving:

Activities where the danger is obvious or nature of the activity is inherently


dangerous (cannot be performed without some risk of injury)

Premises Liability (Enter at your own risk sign will usually suffice)

Sports activities, especially contact sports

Ultrahazardous Activities and Extreme Sports activities like skydiving and


paragliding

Waivers and Release Clause disputes- these documents often include language
addressing assumption of risk

[G.R. No. 107735. February 1, 1996]


PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RICARDO SAN GABRIEL y
ORTIZ, defendant-appellant.
RICARDO O. SAN GABRIEL was charged with murder in an Information alleging that on 26
November 1989, armed with a bladed weapon, in conspiracy with Ramon Doe, with treachery,
evident premeditation and intent to kill, he assaulted and stabbed to death Jaime A. Tonog. [1]
The trial court convicted the accused as charged and sentenced him to life imprisonment
and to pay the heirs of Jaime Tonog the sum of P30,000, plus costs.[2]
The accused is now before us on appeal.
The evidence shows that at around seven oclock in the evening of 26 November 1989,
within the vicinity of Pier 14 at North Harbor alongMarcos Road, Manila, a fistfight ensued
between Jaime Tonog on one hand and the accused Ricardo San Gabriel together with Ramon
Doe on the other. The fight was eventually broken up when onlookers pacified the
protagonists. Ricardo and Ramon then hastened towards Marcos Road but in no time were back
with bladed weapons. They approached Tonog surreptitiously, surrounded him and
simultaneously stabbed him in the stomach and at the back, after which the assailants ran
towards the highway leaving Tonog behind on the ground. He was then brought
toMary Johnston Hospital where he was pronounced dead on arrival.
Dr. Marcial G. Cenido, Medico-Legal Officer of the Western Police District, autopsied the
cadaver of the victim and reported that it sustained two (2) penetrating stab wounds each
caused by a single-bladed instrument. He opined that both wounds were fatal. [3]
The accused has a different version. He testified that he saw Tonog drunk; Tonog even
attempted to box him but he parried his blow; Tonog continued walking but when he chanced
upon Ramon he suddenly and without provocation boxed and kicked Ramon; Ramon fought back
but was subdued by his bigger assailant so the former ran towards the highway; when Tonog met
a certain Mando he boxed the latter who however fought back despite his (accused) warning
not to; at this moment he saw Ramon return with a bolo on hand; he warned Ramon not to fight
but his advice went unheeded; instead, with bolo on hand Ramon struck Tonog on the belly;
when Mando saw what happened he (Mando) pulled out his knife and also stabbed Tonog at
the back; Ramon and Mando then fled towards the highway.
The accused further claimed that he even stayed with the victim and called out the latters
companions to bring him to the hospital; that prosecution witness Brenda Gonzales only arrived
at the crime scene after Tonog was already taken to the hospital; that Brenda even inquired from
him what happened and then prodded him to testify; that his refusal coupled with the fact that
he owed Gonzales some money earned him the ire of the latter and that was why he was
charged for the death of Tonog.
Accused-appellant claims in this appeal that the trial court erred: (a) in giving credence to
the testimonies of prosecution witnesses Brenda Gonzales and Pio Ochobillo, and for discrediting
his; (b) in finding that the killing was attended with evident premeditation; (c) in ruling that he
committed treachery and, (d) in convicting him of murder. [4]
We sustain the conviction of the accused for murder. It is settled that findings of fact of the
trial court are accorded greatest respect by the appellate court absent any abuse of discretion,
[5]
and none is perceivable in the case at bench; hence we affirm the factual findings of the trial
court.
The accused contends that the testimonies of the prosecution witnesses are incredible and
conflicting. We however find otherwise. Gonzales and Ochobillo, as observed by the trial court,
testified in a direct and candid manner. No evil motive is attributed to them as to testify falsely

against the accused. That Gonzales harbored a grudge against the accused because he owed
her some money, and even enticed her customers into patronizing another carinderia, can hardly
be believed. We are not convinced that Brenda Gonzales would testify against accused-appellant
for a crime so grave simply because he owed her a measly sum of P300.00. That he enticed the
customers of Gonzales into patronizing another carinderia is belied by the fact that on the night
of the incident he was, as he claimed, eating at the carinderia of Gonzales. If there be any
testimony that should be considered incredible and illogical it must be that of the accused. His
assertion that Mando stabbed the victim should not receive any evidentiary value when
weighed against the positive assertion of the prosecution witnesses that the accused was the
assailant of Jaime Tonog.
Quite interestingly, the accused did not offer any information regarding the person and
circumstances of Mando. Up to this date Mando remains a myth. Not a single witness was
presented by the defense to prove who Mando was, nor even a hint of his personal
circumstances. During the entire proceedings in the court below Mando was never mentioned
by the prosecution witnesses. Nobody ever implicated him except the accused. In fact, there
should have been no difficulty procuring witnesses to testify on the part of the accused as the
incident was viewed openly by a multitude of bystanders. His failure to present any witness
pointing to Mando as the perpetrator of the crime convinces us that Mando in fact existed
only as a figment of the mind.
The accused also asserts that Gonzales arrived at the crime scene only after the victim was
brought to the hospital and that she even inquired from him about what happened.
Again we are not persuaded. The statement contradicts the earlier version of the accused
that Gonzales was prejudiced against him as he owed her some money. For, granting that
Gonzales had a grudge against him it was not likely that she would inquire from him about the
incident as there were other persons then present who could shed light on the startling
occurrence.
Equally dubious is the avowal of the accused that Gonzales arrived at the crime scene only
after the victim was rushed to the hospital considering that the incident took place just in front of
her store. Besides, this claim was easily demolished by Gonzales detailed account of the fight.
The fact that the witnesses did not immediately report the incident to the police does not
necessarily discredit them. After all, reports were made albeit by different persons. The accused
banks on the apparent inconsistency as to why Gonzales failed to give immediately her account
of the killing to the authorities. But the discrepancy is so minor that it cannot undermine her
credibility nor detract from the truth that she personally witnessed the incident and positively
identified the accused.
The accused leans heavily on the Advance Information Sheet[6] prepared by Pat. Steve
Casimiro which did not mention him at all and named only Ramon Doe as the principal
suspect. Unfortunately this cannot defeat the positive and candid testimonies of the prosecution
witnesses. Entries in official records, as in the case of a police blotter, are only prima
facie evidence of the facts therein stated. They are not conclusive. The entry in the police
blotter is not necessarily entitled to full credit for it could be incomplete and inaccurate,
sometimes from either partial suggestions or for want of suggestions or inquiries, without the aid
of which the witness may be unable to recall the connected collateral circumstances necessary
for the correction of the first suggestion of his memory and for his accurate recollection of all
that pertain to the subject. It is understandable that the testimony during the trial would be more
lengthy and detailed than the matters stated in the police blotter. [7]Significantly, the Advance
Information Sheet was never formally offered by the defense during the proceedings in the court
below. Hence any reliance by the accused on the document must fail since the court cannot
consider any evidence which has not been formally offered. [8]
Parenthetically, the Advance Information Sheet was prepared by the police officer only after
interviewing Camba, an alleged eyewitness. The accused then could have compelled the

attendance of Camba as a witness. The failure to exert the slightest effort to present Camba on
the part of the accused should militate against his cause.
Entries in official records made in the performance of his duty by a public officer or by a
person in the performance of a duty specially enjoined by law are prima facie evidence of the
facts therein stated.[9] But to be admissible in evidence three (3) requisites must concur: (a) The
entry was made by a police officer or by another person specially enjoined by law to do so; (b) It
was made by the public officer in the performance of his duties or by such other person in the
performance of a duty specially enjoined by law; and, (c) The public officer or other person had
sufficient knowledge of the facts by him stated, which must have been acquired by him
personally or through official information.[10]
The Advance Information Sheet does not constitute an exception to the hearsay rule, hence,
inadmissible. The public officer who prepared the document had no sufficient and personal
knowledge of the stabbing incident. Any information possessed by him was acquired from
Camba which therefore could not be categorized as official information because in order to be
classified as such the persons who made the statements not only must have personal knowledge
of the facts stated but must have the duty to give such statements for the record. [11] In the case
of Camba, he was not legally so obliged to give such statements.
The accused enumerates discrepancies in the testimonies of the prosecution
witnesses. Thus, according to him, it was testified that the victim was stabbed by the accused at
the back but failed to point out its precise location. The stabbing admittedly occurred at
around seven oclock in the evening but the Advance Information Sheet reported 6:30 p.m.
One witness testified that the fistfight was only between the victim and Ramon Doe, while
another reported that it involved the victim, Ramon Doe and the accused. Further, it was not
accurately determined whether Ramon and the accused returned to the scene of the crime
within five (5) minutes or after the lapse thereof.
As previously stated, the discrepancies do not militate against the fact firmly established by
the prosecution that Tonog was stabbed at the back by the accused and by Ramon Doe in the
abdomen. Any discordance noted is so minor and insignificant that no further consideration is
essential. The most honest witnesses make mistakes sometimes, but such innocent lapses do
not necessarily impair their credibility. The testimony of a witness must be considered and
calibrated in its entirety and not by truncated portions thereof or isolated passages therein. [12]
The presence of the accused in the vicinity even after the commission of the crime does not
in any way extricate him from his dilemma. Certainly, it is no proof of his innocence.
The court a quo properly considered the aggravating circumstance of treachery in convicting
the accused of murder. Treachery is present when the offender commits any of the crimes
against person, employing means, methods or forms in the execution thereof which tend directly
and specially to insure its execution, without risk to himself arising from the defense which the
offended party might make.[13] Alevosia or treachery presumes an attack that is deliberate and
unexpected. There is no treachery when the victim is placed on guard, as when a heated
argument preceded the attack, especially when the victim was standing face to face with his
assailants, and the initial assault could not have been unforeseen. [14]
It is true that in the case at bench the attack was preceded by a fistfight. It was however
established that they were already pacified by onlookers when the accused and Ramon
returned. Lulled into complacency the victim simply stayed where he was before the fistfight
when after a brief moment the accused together with Ramon returned with bladed
weapons. Both approached the victim and circled him surreptitiously. The attack was sudden
and simultaneous that the victim was never given a chance to defend himself. As we have held
in People v. Balisteros,[15] where a victim was totally unprepared for the unexpected attack from
behind and had no weapon to resist it, the stabbing could not but be considered as
treacherous. The evidence proved that the victim was caught unaware by the sudden
assault. No weapon was found, nor even intimated to be, in his possession.

Conversely the court a quo should have disregarded evident premeditation. Evident
premeditation requires a showing that the execution of the criminal act was preceded by cool
thought and reflection upon the resolution to carry out the criminal intent during a space of time
sufficient to arrive at a calm judgment. [16] Evidence for the prosecution showed that after the
fight was broken up the accused and Ramon Doe proceeded towards the highway. They
returned only after a lapse of approximately five (5) minutes. From the foregoing we cannot
conclude that the accused had sufficient time within which to meditate on the consequences of
his acts. Meditation necessitates that it be evident and proven. Be that as it may, treachery as a
qualifying circumstance having attended the killing, the conviction of the accused for murder still
holds.
WHEREFORE,. the decision of the court a quo in Crim. Case No. 90-81744 dated 25 July
1991 convicting accused-appellant RICARDO SAN GABRIEL Y ORTIZ of murder is AFFIRMED. The
penalty of life imprisonment however is MODIFIED to reclusion perpetua,[17] while the award of
P30,000.00 as indemnity is INCREASED to P50,000.00 conformably with existing jurisprudence.
Costs against accused-appellant.
SO ORDERED.

G.R. No. L-39309

November 24, 1933

TEH LE KIM, plaintiff-appellant, vs. PHILIPPINE AERIAL TAXI CO., INC., defendant-appellee.
This is an appeal taken by the plaintiff Teh Le Kim from the judgment rendered by the Court of
First Instance of Manila, absolving the defendant Philippine Aerial Taxi Co., Inc., from the
complaint, which was dismissed, without special pronouncement as to costs.
In support of his appeal, the appellant assigns five alleged errors as committed by the trail court,
which we shall discuss in the course of this decision.
The following facts have been proven by a preponderance of evidence presented during the trial,
to wit:
On the Morning of September 4, 1931, the plaintiff herein bought, in Manila, a passenger ticket
for a flight to Iloilo in one of the defendant company's hydroplanes starting from Madrigal Field in
Pasay. Inasmuch as the engine of the plane Mabuhay, in which he was to take the flight, was not
working satisfactorily, the said plaintiff had to wait for some time. While the engine was being
tested, the plaintiff saw how it was started by turning the propeller repeatedly and how the man
who did it ran away from it each time in order not to be caught by the said propeller. Before the
plane Mabuhay was put in condition for the flight, the plane Taal arrived and it was decided to
have the plaintiff make the flight therein. The plaintiff and his companion were carefully carried
from the beach to the plane, entering the same by the rear or tail end, and were placed in their
seats to which they were strapped. Later, they were shown how the straps could be tightened or
loosened in case of accident and were instructed further not to touch anything in the plane. After
an uneventful flight, the plane landed on the waters of Guimaras Strait, in front of Iloilo, and
taxied toward the beach until its pontoons struck bottom, when the plane stopped. the pilot shut
off the gasoline feed pipe, permitting the engine, however, to continue to function until all the
gasoline was drained from the feed pipe and carburetor. This operation was necessary in
accordance with the established practice of aviation in order to avoid danger of fire which would
exist if the pipes and carburetor remained full of gasoline, and to prevent the sudden cooling of
the engine which might cause serious damage, especially to the valves.
When the pilot observed that a banca was approaching rapidly on the right hand side of the
plane, he arose signalled and shouted to the boatman to keep his banca at a distance from the
plane, inasmuch as there were waves and quite a strong current, and he feared that the banca,
which had a high prow, might collide with the plane and damage either the wing or the pontoon
thereof. While he was doing this, he heard the propeller strike something. He immediately turned
off the switch and, looking on the other side, he saw Bohn picking up the plaintiff out of the
water.
What really happened was that at the moment the pontoons touched bottom and while the pilot
was signalling to the banca, the plaintiff unfastened the straps around him and, not even waiting
to put on his hat, climbed over the door to the lower wing, went down the ladder to the pontoon
and walked along the pontoon toward the revolving propeller. The propeller first grazed his
forehead and, as he threw up his arm, it was caught by the revolving blades thereof and so
injured that it had be amputated.lawphil.net
Bohn and Garrett of Warner, Barnes & Co., consignees of the defendant in Iloilo, were on the
beach to meet the plane and to make arrangements for the disembarking of the passengers.
Upon seeing the plaintiff walking toward the propeller, they shouted frantically and motioned to
him to keep away from it, but the said plaintiff took no heed of them.
The usual procedure in discharging passengers from a hydroplane is to wait until the propeller
stops, then turn the plane around by hand so as to have the rear or tail and thereof towards the
beach, and then take the passengers to shore in a banca. The pilot in charge of the plane has
had fourteen years experience, having first learned to fly during the World War. He is duly
licensed by the Department of Commerce of the United States and by the Department of
Commerce and Communications of the Government of the Philippine Islands.

The only question to decide in this appeal, which is raised in the first assignment of error, is
whether or not the defendant entity has complied with its contractual obligation to carry the
plaintiff-appellant Teh Le Kim safe and sound to his destination.
The contract entered into by the plaintiff Teh Le Kim and the defendant entity Philippine Aerial
Taxi Co., Inc., was that upon payment of the price of the passage, which the carrier had received,
the latter would carry the former by air in one of its hydroplanes and put him, safe and sound, on
the beach at Iloilo. After an uneventful flight, the hydroplane, which carried the plaintiff and his
companion, arrived at the Iloilo beach, as usual, with nothing more left to do but to take the
plaintiff and his companion, safe and sound, ashore. In order to do this, it was necessary to wait
for the propeller to stop, turn the rear or tail end of the plane towards the shore, take the
passengers out by the aforesaid rear or tail end thereof, place them in a banca and take them
ashore. By sheer common sense, the plaintiff ought to know that a propeller, be it that of a ship
or of an aeroplane, is dangerous while in motion and that to approach it is to run the risk of being
caught and injured thereby. He ought to know furthermore that inasmuch as the plane was on
the water, he had to wait for a banca to take him ashore. Notwithstanding the shouts and
warning signals given him from the shore by the representatives of the consignee firm, the
plaintiff herein, not being a man of ordinary prudence, hastily left the cabin of the plane, walked
along one of the pontoons and directly into the revolving propeller, while the banca which was to
take him ashore was still some distance away and the pilot was instructing the boatman to keep
it at a safe distance from the plane. Under such circumstances, it is not difficult to understand
that the plaintiff-appellant acted with reckless negligence in approaching the propeller while it
was still in motion, and when the banca was not yet in a position to take him. That the plaintiffappellant's negligence alone was the direct cause of the accident, is so clear that it is not
necessary to cite authoritative opinions to support the conclusion that the injury to his right arm
and the subsequent amputation thereof were due entirely and exclusively to his own imprudence
and not to the slightest negligence attributable to the defendant entity or to its agents.
Therefore, he alone should suffer the consequences of his act.
Wherefore, not finding any error in the judgment appealed from, it is hereby affirmed in toto, with the costs against the
appellant. So ordered.

G.R. No. L-4977

March 22, 1910

DAVID TAYLOR, plaintiff-appellee, vs. THE MANILA ELECTRIC RAILROAD AND LIGHT
COMPANY, defendant-appellant.
An action to recover damages for the loss of an eye and other injuries, instituted by David Taylor,
a minor, by his father, his nearest relative.
The defendant is a foreign corporation engaged in the operation of a street railway and an
electric light system in the city of Manila. Its power plant is situated at the eastern end of a small
island in the Pasig River within the city of Manila, known as the Isla del Provisor. The power plant
may be reached by boat or by crossing a footbridge, impassable for vehicles, at the westerly end
of the island.
The plaintiff, David Taylor, was at the time when he received the injuries complained of, 15 years
of age, the son of a mechanical engineer, more mature than the average boy of his age, and
having considerable aptitude and training in mechanics.
On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about 12 years of
age, crossed the footbridge to the Isla del Provisor, for the purpose of visiting one Murphy, an
employee of the defendant, who and promised to make them a cylinder for a miniature engine.
Finding on inquiry that Mr. Murphy was not in his quarters, the boys, impelled apparently by
youthful curiosity and perhaps by the unusual interest which both seem to have taken in
machinery, spent some time in wandering about the company's premises. The visit was made on
a Sunday afternoon, and it does not appear that they saw or spoke to anyone after leaving the
power house where they had asked for Mr. Murphy.
After watching the operation of the travelling crane used in handling the defendant's coal, they
walked across the open space in the neighborhood of the place where the company dumped in
the cinders and ashes from its furnaces. Here they found some twenty or thirty brass fulminating
caps scattered on the ground. These caps are approximately of the size and appearance of small
pistol cartridges and each has attached to it two long thin wires by means of which it may be
discharged by the use of electricity. They are intended for use in the explosion of blasting
charges of dynamite, and have in themselves a considerable explosive power. After some
discussion as to the ownership of the caps, and their right to take them, the boys picked up all
they could find, hung them on stick, of which each took end, and carried them home. After
crossing the footbridge, they met a little girl named Jessie Adrian, less than 9 years old, and all
three went to the home of the boy Manuel. The boys then made a series of experiments with the
caps. They trust the ends of the wires into an electric light socket and obtained no result. They
next tried to break the cap with a stone and failed. Manuel looked for a hammer, but could not
find one. Then they opened one of the caps with a knife, and finding that it was filled with a
yellowish substance they got matches, and David held the cap while Manuel applied a lighted
match to the contents. An explosion followed, causing more or less serious injuries to all three.
Jessie, who when the boys proposed putting a match to the contents of the cap, became
frightened and started to run away, received a slight cut in the neck. Manuel had his hand
burned and wounded, and David was struck in the face by several particles of the metal capsule,
one of which injured his right eye to such an extent as to the necessitate its removal by the
surgeons who were called in to care for his wounds.
The evidence does definitely and conclusively disclose how the caps came to be on the
defendant's premises, nor how long they had been there when the boys found them. It appears,
however, that some months before the accident, during the construction of the defendant's
plant, detonating caps of the same size and kind as those found by the boys were used in sinking
a well at the power plant near the place where the caps were found; and it also appears that at
or about the time when these caps were found, similarly caps were in use in the construction of
an extension of defendant's street car line to Fort William McKinley. The caps when found
appeared to the boys who picked them up to have been lying for a considerable time, and from
the place where they were found would seem to have been discarded as detective or worthless
and fit only to be thrown upon the rubbish heap.

No measures seems to have been adopted by the defendant company to prohibit or prevent
visitors from entering and walking about its premises unattended, when they felt disposed so to
do. As admitted in defendant counsel's brief, "it is undoubtedly true that children in their play
sometimes crossed the foot bridge to the islands;" and, we may add, roamed about at will on the
uninclosed premises of the defendant, in the neighborhood of the place where the caps were
found. There is evidence that any effort ever was made to forbid these children from visiting the
defendant company's premises, although it must be assumed that the company or its employees
were aware of the fact that they not infrequently did so.
Two years before the accident, plaintiff spent four months at sea, as a cabin boy on one of the
interisland transports. Later he took up work in his father's office, learning mechanical drawing
and mechanical engineering. About a month after his accident he obtained employment as a
mechanical draftsman and continued in that employment for six months at a salary of P2.50 a
day; and it appears that he was a boy of more than average intelligence, taller and more mature
both mentally and physically than most boys of fifteen.
The facts set out in the foregoing statement are to our mind fully and conclusively established by
the evidence of record, and are substantially admitted by counsel. The only questions of fact
which are seriously disputed are plaintiff's allegations that the caps which were found by plaintiff
on defendant company's premises were the property of the defendant, or that they had come
from its possession and control, and that the company or some of its employees left them
exposed on its premises at the point where they were found.
The evidence in support of these allegations is meager, and the defendant company, apparently
relying on the rule of law which places the burden of proof of such allegations upon the plaintiff,
offered no evidence in rebuttal, and insists that plaintiff failed in his proof. We think, however,
that plaintiff's evidence is sufficient to sustain a finding in accord with his allegations in this
regard.
It was proven that caps, similar to those found by plaintiff, were used, more or less extensively,
on the McKinley extension of the defendant company's track; that some of these caps were used
in blasting a well on the company's premises a few months before the accident; that not far from
the place where the caps were found the company has a storehouse for the materials, supplies
and so forth, used by it in its operations as a street railway and a purveyor of electric light; and
that the place, in the neighborhood of which the caps were found, was being used by the
company as a sort of dumping ground for ashes and cinders. Fulminating caps or detonators for
the discharge by electricity of blasting charges by dynamite are not articles in common use by
the average citizen, and under all the circumstances, and in the absence of all evidence to the
contrary, we think that the discovery of twenty or thirty of these caps at the place where they
were found by the plaintiff on defendant's premises fairly justifies the inference that the
defendant company was either the owner of the caps in question or had the caps under its
possession and control. We think also that the evidence tends to disclose that these caps or
detonators were willfully and knowingly thrown by the company or its employees at the spot
where they were found, with the expectation that they would be buried out of the sight by the
ashes which it was engaged in dumping in that neighborhood, they being old and perhaps
defective; and, however this may be, we are satisfied that the evidence is sufficient to sustain a
finding that the company or some of its employees either willfully or through an oversight left
them exposed at a point on its premises which the general public, including children at play,
where not prohibited from visiting, and over which the company knew or ought to have known
that young boys were likely to roam about in pastime or in play.
Counsel for appellant endeavors to weaken or destroy the probative value of the facts on which
these conclusions are based by intimidating or rather assuming that the blasting work on the
company's well and on its McKinley extension was done by contractors. It was conclusively
proven, however, that while the workman employed in blasting the well was regularly employed
by J. G. White and Co., a firm of contractors, he did the work on the well directly and immediately
under the supervision and control of one of defendant company's foremen, and there is no proof
whatever in the record that the blasting on the McKinley extension was done by independent
contractors. Only one witness testified upon this point, and while he stated that he understood

that a part of this work was done by contract, he could not say so of his own knowledge, and
knew nothing of the terms and conditions of the alleged contract, or of the relations of the
alleged contractor to the defendant company. The fact having been proven that detonating caps
were more or less extensively employed on work done by the defendant company's directions
and on its behalf, we think that the company should have introduced the necessary evidence to
support its contention if it wished to avoid the not unreasonable inference that it was the owner
of the material used in these operations and that it was responsible for tortious or negligent acts
of the agents employed therein, on the ground that this work had been intrusted to independent
contractors as to whose acts the maxim respondent superior should not be applied. If the
company did not in fact own or make use of caps such as those found on its premises, as
intimated by counsel, it was a very simple matter for it to prove that fact, and in the absence of
such proof we think that the other evidence in the record sufficiently establishes the contrary,
and justifies the court in drawing the reasonable inference that the caps found on its premises
were its property, and were left where they were found by the company or some of its
employees.
Plaintiff appears to have rested his case, as did the trial judge his decision in plaintiff's favor,
upon the provisions of article 1089 of the Civil Code read together with articles 1902, 1903, and
1908 of that code.
ART. 1089 Obligations are created by law, by contracts, by quasi-contracts, and illicit acts
and omissions or by those in which any kind of fault or negligence occurs.
ART. 1902 A person who by an act or omission causes damage to another when there is
fault or negligence shall be obliged to repair the damage so done.
ART. 1903 The obligation imposed by the preceding article is demandable, not only for
personal acts and omissions, but also for those of the persons for whom they should be
responsible.
The father, and on his death or incapacity the mother, is liable for the damages caused by
the minors who live with them.
xxx

xxx

xxx

Owners or directors of an establishment or enterprise are equally liable for damages


caused by their employees in the service of the branches in which the latter may be
employed or on account of their duties.
xxx

xxx

xxx

The liability referred to in this article shall cease when the persons mentioned therein
prove that they employed all the diligence of a good father of a family to avoid the
damage.
ART. 1908 The owners shall also be liable for the damage caused
1 By the explosion of machines which may not have been cared for with due diligence, and
for kindling of explosive substances which may not have been placed in a safe and proper
place.
Counsel for the defendant and appellant rests his appeal strictly upon his contention that the
facts proven at the trial do not established the liability of the defendant company under the
provisions of these articles, and since we agree with this view of the case, it is not necessary for
us to consider the various questions as to form and the right of action (analogous to those raised
in the case of Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359), which would, perhaps, be
involved in a decision affirming the judgment of the court below.

We agree with counsel for appellant that under the Civil Code, as under the generally accepted
doctrine in the United States, the plaintiff in an action such as that under consideration, in order
to establish his right to a recovery, must establish by competent evidence:
(1) Damages to the plaintiff.
(2) Negligence by act or omission of which defendant personally, or some person for
whose acts it must respond, was guilty.
(3) The connection of cause and effect between the negligence and the damage.
These proposition are, of course, elementary, and do not admit of discussion, the real difficulty
arising in the application of these principles to the particular facts developed in the case under
consideration.
It is clear that the accident could not have happened and not the fulminating caps been left
exposed at the point where they were found, or if their owner had exercised due care in keeping
them in an appropriate place; but it is equally clear that plaintiff would not have been injured had
he not, for his own pleasure and convenience, entered upon the defendant's premises, and
strolled around thereon without the express permission of the defendant, and had he not picked
up and carried away the property of the defendant which he found on its premises, and had he
not thereafter deliberately cut open one of the caps and applied a match to its contents.
But counsel for plaintiff contends that because of plaintiff's youth and inexperience, his entry
upon defendant company's premises, and the intervention of his action between the negligent
act of defendant in leaving the caps exposed on its premises and the accident which resulted in
his injury should not be held to have contributed in any wise to the accident, which should be
deemed to be the direct result of defendant's negligence in leaving the caps exposed at the
place where they were found by the plaintiff, and this latter the proximate cause of the accident
which occasioned the injuries sustained by him.
In support of his contention, counsel for plaintiff relies on the doctrine laid down in many of the
courts of last resort in the United States in the cases known as the "Torpedo" and "Turntable"
cases, and the cases based thereon.
In a typical cases, the question involved has been whether a railroad company is liable for an
injury received by an infant of tender years, who from mere idle curiosity, or for the purposes of
amusement, enters upon the railroad company's premises, at a place where the railroad
company knew, or had good reason to suppose, children would be likely to come, and there
found explosive signal torpedoes left unexposed by the railroad company's employees, one of
which when carried away by the visitor, exploded and injured him; or where such infant found
upon the premises a dangerous machine, such as a turntable, left in such condition as to make it
probable that children in playing with it would be exposed to accident or injury therefrom and
where the infant did in fact suffer injury in playing with such machine.
In these, and in great variety of similar cases, the great weight of authority holds the owner of
the premises liable.
As laid down in Railroad Co. vs. Stout (17 Wall. (84 U. S.), 657), wherein the principal question
was whether a railroad company was liable for in injury received by an infant while upon its
premises, from idle curiosity, or for purposes of amusement, if such injury was, under
circumstances, attributable to the negligence of the company), the principles on which these
cases turn are that "while a railroad company is not bound to the same degree of care in regard
to mere strangers who are unlawfully upon its premises that it owes to passengers conveyed by
it, it is not exempt from responsibility to such strangers for injuries arising from its negligence or
from its tortious acts;" and that "the conduct of an infant of tender years is not to be judged by
the same rule which governs that of adult. While it is the general rule in regard to an adult that
to entitle him to recover damages for an injury resulting from the fault or negligence of another
he must himself have been free from fault, such is not the rule in regard to an infant of tender

years. The care and caution required of a child is according to his maturity and capacity only, and
this is to be determined in each case by the circumstances of the case."
The doctrine of the case of Railroad Company vs. Stout was vigorously controverted and sharply
criticized in several state courts, and the supreme court of Michigan in the case of Ryan vs.
Towar (128 Mich., 463) formally repudiated and disapproved the doctrine of the Turntable cases,
especially that laid down in Railroad Company vs. Stout, in a very able decision wherein it held,
in the language of the syllabus: (1) That the owner of the land is not liable to trespassers thereon
for injuries sustained by them, not due to his wanton or willful acts; (2) that no exception to this
rule exists in favor of children who are injured by dangerous machinery naturally calculated to
attract them to the premises; (3) that an invitation or license to cross the premises of another
can not be predicated on the mere fact that no steps have been taken to interfere with such
practice; (4) that there is no difference between children and adults as to the circumstances that
will warrant the inference of an invitation or a license to enter upon another's premises.
Similar criticisms of the opinion in the case of Railroad Company vs. Stout were indulged in by
the courts in Connecticut and Massachusetts. (Nolan vs. Railroad Co., 53 Conn., 461; 154 Mass.,
349). And the doctrine has been questioned in Wisconsin, Pennsylvania, New Hampshire, and
perhaps in other States.
On the other hand, many if not most of the courts of last resort in the United States, citing and
approving the doctrine laid down in England in the leading case of Lynch vs. Nurding (1 Q. B., 29,
35, 36), lay down the rule in these cases in accord with that announced in the Railroad Company
vs. Stout (supra), and the Supreme Court of the United States, in a unanimous opinion delivered
by Justice Harlan in the case of Union Pacific Railway Co. vs. McDonal and reconsidered the
doctrine laid down in Railroad Co. vs. Stout, and after an exhaustive and critical analysis and
review of many of the adjudged cases, both English and American, formally declared that it
adhered "to the principles announced in the case of Railroad Co. vs. Stout."
In the case of Union Pacific Railway Co. vs. MacDonald (supra) the facts were as follows: The
plaintiff, a boy 12 years of age, out of curiosity and for his own pleasure, entered upon and
visited the defendant's premises, without defendant's express permission or invitation, and while
there, was by accident injured by falling into a burning slack pile of whose existence he had no
knowledge, but which had been left by defendant on its premises without any fence around it or
anything to give warning of its dangerous condition, although defendant knew or had reason the
interest or curiosity of passers-by. On these facts the court held that the plaintiff could not be
regarded as a mere trespasser, for whose safety and protection while on the premises in
question, against the unseen danger referred to, the defendant was under no obligation to make
provision.
We quote at length from the discussion by the court of the application of the principles involved
to the facts in that case, because what is said there is strikingly applicable in the case at bar, and
would seem to dispose of defendant's contention that, the plaintiff in this case being a
trespasser, the defendant company owed him no duty, and in no case could be held liable for
injuries which would not have resulted but for the entry of plaintiff on defendant's premises.
We adhere to the principles announced in Railroad Co. vs. Stout (supra). Applied to the
case now before us, they require us to hold that the defendant was guilty of negligence in
leaving unguarded the slack pile, made by it in the vicinity of its depot building. It could
have forbidden all persons from coming to its coal mine for purposes merely of curiosity
and pleasure. But it did not do so. On the contrary, it permitted all, without regard to age,
to visit its mine, and witness its operation. It knew that the usual approach to the mine
was by a narrow path skirting its slack pit, close to its depot building, at which the people
of the village, old and young, would often assemble. It knew that children were in the habit
of frequenting that locality and playing around the shaft house in the immediate vicinity of
the slack pit. The slightest regard for the safety of these children would have suggested
that they were in danger from being so near a pit, beneath the surface of which was
concealed (except when snow, wind, or rain prevailed) a mass of burning coals into which
a child might accidentally fall and be burned to death. Under all the circumstances, the

railroad company ought not to be heard to say that the plaintiff, a mere lad, moved by
curiosity to see the mine, in the vicinity of the slack pit, was a trespasser, to whom it owed
no duty, or for whose protection it was under no obligation to make provisions.
In Townsend vs. Wathen (9 East, 277, 281) it was held that if a man dangerous traps,
baited with flesh, in his own ground, so near to a highway, or to the premises of another,
that dogs passing along the highway, or kept in his neighbors premises, would probably be
attracted by their instinct into the traps, and in consequence of such act his neighbor's
dogs be so attracted and thereby injured, an action on the case would lie. "What
difference," said Lord Ellenborough, C.J., "is there in reason between drawing the animal
into the trap by means of his instinct which he can not resist, and putting him there by
manual force?" What difference, in reason we may observe in this case, is there between
an express license to the children of this village to visit the defendant's coal mine, in the
vicinity of its slack pile, and an implied license, resulting from the habit of the defendant to
permit them, without objection or warning, to do so at will, for purposes of curiosity or
pleasure? Referring it the case of Townsend vs. Wathen, Judge Thompson, in his work on
the Law of Negligence, volume 1, page 305, note, well says: "It would be a barbarous rule
of law that would make the owner of land liable for setting a trap thereon, baited with
stinking meat, so that his neighbor's dog attracted by his natural instinct, might run into it
and be killed, and which would exempt him from liability for the consequence of leaving
exposed and unguarded on his land a dangerous machine, so that his neighbor's child
attracted to it and tempted to intermeddle with it by instincts equally strong, might
thereby be killed or maimed for life."
Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the case of Powers
vs. Harlow (53 Mich., 507), said that (p. 515):
Children, wherever they go, must be expected to act upon childlike instincts and impulses;
and others who are chargeable with a duty of care and caution toward them must
calculate upon this, and take precautions accordingly. If they leave exposed to the
observation of children anything which would be tempting to them, and which they in their
immature judgment might naturally suppose they were at liberty to handle or play with,
they should expect that liberty to be taken.
And the same eminent jurist in his treatise or torts, alluding to the doctrine of implied invitation
to visit the premises of another, says:
In the case of young children, and other persons not fully sui juris, an implied license
might sometimes arise when it would not on behalf of others. Thus leaving a tempting
thing for children to play with exposed, where they would be likely to gather for that
purpose, may be equivalent to an invitation to them to make use of it; and, perhaps, if one
were to throw away upon his premises, near the common way, things tempting to children,
the same implication should arise. (Chap. 10, p. 303.)
The reasoning which led the Supreme Court of the United States to its conclusion in the cases
of Railroad Co. vs. Stout (supra) and Union Pacific Railroad Co. vs. McDonald (supra) is not less
cogent and convincing in this jurisdiction than in that wherein those cases originated. Children
here are actuated by similar childish instincts and impulses. Drawn by curiosity and impelled by
the restless spirit of youth, boys here as well as there will usually be found whenever the public
is permitted to congregate. The movement of machinery, and indeed anything which arouses the
attention of the young and inquiring mind, will draw them to the neighborhood as inevitably as
does the magnet draw the iron which comes within the range of its magnetic influence. The
owners of premises, therefore, whereon things attractive to children are exposed, or upon which
the public are expressly or impliedly permitted to enter or upon which the owner knows or ought
to know children are likely to roam about for pastime and in play, " must calculate upon this, and
take precautions accordingly." In such cases the owner of the premises can not be heard to say
that because the child has entered upon his premises without his express permission he is a
trespasser to whom the owner owes no duty or obligation whatever. The owner's failure to take
reasonable precautions to prevent the child from entering his premises at a place where he

knows or ought to know that children are accustomed to roam about of to which their childish
instincts and impulses are likely to attract them is at least equivalent to an implied license to
enter, and where the child does enter under such conditions the owner's failure to take
reasonable precautions to guard the child against injury from unknown or unseen dangers,
placed upon such premises by the owner, is clearly a breach of duty, responsible, if the child is
actually injured, without other fault on its part than that it had entered on the premises of a
stranger without his express invitation or permission. To hold otherwise would be expose all the
children in the community to unknown perils and unnecessary danger at the whim of the owners
or occupants of land upon which they might naturally and reasonably be expected to enter.
This conclusion is founded on reason, justice, and necessity, and neither is contention that a man
has a right to do what will with his own property or that children should be kept under the care of
their parents or guardians, so as to prevent their entering on the premises of others is of
sufficient weight to put in doubt. In this jurisdiction as well as in the United States all private
property is acquired and held under the tacit condition that it shall not be so used as to injure the
equal rights and interests of the community (see U. S. vs. Toribio,1 No. 5060, decided January 26,
1910), and except as to infants of very tender years it would be absurd and unreasonable in a
community organized as is that in which we lived to hold that parents or guardian are guilty of
negligence or imprudence in every case wherein they permit growing boys and girls to leave the
parental roof unattended, even if in the event of accident to the child the negligence of the
parent could in any event be imputed to the child so as to deprive it a right to recover in such
cases a point which we neither discuss nor decide.
But while we hold that the entry of the plaintiff upon defendant's property without defendant's
express invitation or permission would not have relieved defendant from responsibility for
injuries incurred there by plaintiff, without other fault on his part, if such injury were attributable
to the negligence of the defendant, we are of opinion that under all the circumstances of this
case the negligence of the defendant in leaving the caps exposed on its premises was not the
proximate cause of the injury received by the plaintiff, which therefore was not, properly
speaking, "attributable to the negligence of the defendant," and, on the other hand, we are
satisfied that plaintiffs action in cutting open the detonating cap and putting match to its
contents was the proximate cause of the explosion and of the resultant injuries inflicted upon the
plaintiff, and that the defendant, therefore is not civilly responsible for the injuries thus incurred.
Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that because of
plaintiff's youth the intervention of his action between the negligent act of the defendant in
leaving the caps exposed on its premises and the explosion which resulted in his injury should
not be held to have contributed in any wise to the accident; and it is because we can not agree
with this proposition, although we accept the doctrine of the Turntable and Torpedo cases, that
we have thought proper to discuss and to consider that doctrine at length in this decision. As was
said in case of Railroad Co. vs. Stout (supra), "While it is the general rule in regard to an adult
that to entitle him to recover damages for an injury resulting from the fault or negligence of
another he must himself have been free from fault, such is not the rule in regard to an infant of
tender years. The care and caution required of a child is according to his maturity and capacity
only, and this is to be determined in each case by the circumstances of the case." As we think we
have shown, under the reasoning on which rests the doctrine of the Turntable and Torpedo cases,
no fault which would relieve defendant of responsibility for injuries resulting from its negligence
can be attributed to the plaintiff, a well-grown boy of 15 years of age, because of his entry upon
defendant's uninclosed premises without express permission or invitation' but it is wholly
different question whether such youth can be said to have been free from fault when he willfully
and deliberately cut open the detonating cap, and placed a match to the contents, knowing, as
he undoubtedly did, that his action would result in an explosion. On this point, which must be
determined by "the particular circumstances of this case," the doctrine laid down in the Turntable
and Torpedo cases lends us no direct aid, although it is worthy of observation that in all of the
"Torpedo" and analogous cases which our attention has been directed, the record discloses that
the plaintiffs, in whose favor judgments have been affirmed, were of such tender years that they
were held not to have the capacity to understand the nature or character of the explosive
instruments which fell into their hands.

In the case at bar, plaintiff at the time of the accident was a well-grown youth of 15, more
mature both mentally and physically than the average boy of his age; he had been to sea as a
cabin boy; was able to earn P2.50 a day as a mechanical draftsman thirty days after the injury
was incurred; and the record discloses throughout that he was exceptionally well qualified to take
care of himself. The evidence of record leaves no room for doubt that, despite his denials on the
witness stand, he well knew the explosive character of the cap with which he was amusing
himself. The series of experiments made by him in his attempt to produce an explosion, as
described by the little girl who was present, admit of no other explanation. His attempt to
discharge the cap by the use of electricity, followed by his efforts to explode it with a stone or a
hammer, and the final success of his endeavors brought about by the application of a match to
the contents of the caps, show clearly that he knew what he was about. Nor can there be any
reasonable doubt that he had reason to anticipate that the explosion might be dangerous, in
view of the fact that the little girl, 9 years of age, who was within him at the time when he put
the match to the contents of the cap, became frightened and ran away.
True, he may not have known and probably did not know the precise nature of the explosion
which might be expected from the ignition of the contents of the cap, and of course he did not
anticipate the resultant injuries which he incurred; but he well knew that a more or less
dangerous explosion might be expected from his act, and yet he willfully, recklessly, and
knowingly produced the explosion. It would be going far to say that "according to his maturity
and capacity" he exercised such and "care and caution" as might reasonably be required of him,
or that defendant or anyone else should be held civilly responsible for injuries incurred by him
under such circumstances.
The law fixes no arbitrary age at which a minor can be said to have the necessary capacity to
understand and appreciate the nature and consequences of his own acts, so as to make it
negligence on his part to fail to exercise due care and precaution in the commission of such acts;
and indeed it would be impracticable and perhaps impossible so to do, for in the very nature of
things the question of negligence necessarily depends on the ability of the minor to understand
the character of his own acts and their consequences; and the age at which a minor can be said
to have such ability will necessarily depends of his own acts and their consequences; and at the
age at which a minor can be said to have such ability will necessarily vary in accordance with the
varying nature of the infinite variety of acts which may be done by him. But some idea of the
presumed capacity of infants under the laws in force in these Islands may be gathered from an
examination of the varying ages fixed by our laws at which minors are conclusively presumed to
be capable of exercising certain rights and incurring certain responsibilities, though it can not be
said that these provisions of law are of much practical assistance in cases such as that at bar,
except so far as they illustrate the rule that the capacity of a minor to become responsible for his
own acts varies with the varying circumstances of each case. Under the provisions of the Penal
Code a minor over fifteen years of age is presumed to be capable of committing a crime and is to
held criminally responsible therefore, although the fact that he is less than eighteen years of age
will be taken into consideration as an extenuating circumstance (Penal Code, arts. 8 and 9). At 10
years of age a child may, under certain circumstances, choose which parent it prefers to live with
(Code of Civil Procedure, sec. 771). At 14 may petition for the appointment of a guardian (Id.,
sec. 551), and may consent or refuse to be adopted (Id., sec. 765). And males of 14 and females
of 12 are capable of contracting a legal marriage (Civil Code, art. 83; G. O., No. 68, sec. 1).
We are satisfied that the plaintiff in this case had sufficient capacity and understanding to be
sensible of the danger to which he exposed himself when he put the match to the contents of the
cap; that he was sui juris in the sense that his age and his experience qualified him to
understand and appreciate the necessity for the exercise of that degree of caution which would
have avoided the injury which resulted from his own deliberate act; and that the injury incurred
by him must be held to have been the direct and immediate result of his own willful and reckless
act, so that while it may be true that these injuries would not have been incurred but for the
negligence act of the defendant in leaving the caps exposed on its premises, nevertheless
plaintiff's own act was the proximate and principal cause of the accident which inflicted the
injury.

The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non intelligitur sentire.
(Digest, book 50, tit. 17 rule 203.)
The Patidas contain the following provisions:
The just thing is that a man should suffer the damage which comes to him through his own
fault, and that he can not demand reparation therefor from another. (Law 25, tit.
5, Partida 3.)
And they even said that when a man received an injury through his own acts the grievance
should be against himself and not against another. (Law 2, tit. 7, Partida 2.)
According to ancient sages, when a man received an injury through his own acts the
grievance should be against himself and not against another. (Law 2, tit. 7 Partida 2.)
And while there does not appear to be anything in the Civil Code which expressly lays down the
law touching contributory negligence in this jurisdiction, nevertheless, the interpretation placed
upon its provisions by the supreme court of Spain, and by this court in the case of Rakes vs.
Atlantic, Gulf and Pacific Co. (7 Phil. Rep., 359), clearly deny to the plaintiff in the case at bar the
right to recover damages from the defendant, in whole or in part, for the injuries sustained by
him.
The judgment of the supreme court of Spain of the 7th of March, 1902 (93 Jurisprudencia Civil,
391), is directly in point. In that case the court said:
According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence is
a source of obligation when between such negligence and the injury there exists the
relation of cause and effect; but if the injury produced should not be the result of acts or
omissions of a third party, the latter has no obligation to repair the same, although such
acts or omission were imprudent or unlawful, and much less when it is shown that the
immediate cause of the injury was the negligence of the injured party himself.
The same court, in its decision of June 12, 1900, said that "the existence of the alleged fault or
negligence is not sufficient without proof that it, and no other cause, gave rise to the damage."
See also judgment of October 21, 1903.
To similar effect Scaevola, the learned Spanish writer, writing under that title in
his Jurisprudencia del Codigo Civil (1902 Anuario, p. 455), commenting on the decision of
March 7, 1902 of the Civil Code, fault or negligence gives rise to an obligation when
between it and the damage there exists the relation of cause and effect; but if the damage
caused does not arise from the acts or omissions of a third person, there is no obligation to
make good upon the latter, even though such acts or omissions be imprudent or illegal,
and much less so when it is shown that the immediate cause of the damage has been the
recklessness of the injured party himself.
And again
In accordance with the fundamental principle of proof, that the burden thereof is upon the
plaintiff, it is apparent that it is duty of him who shall claim damages to establish their
existence. The decisions of April 9, 1896, and March 18, July, and September 27, 1898,
have especially supported the principle, the first setting forth in detail the necessary
points of the proof, which are two: An act or omission on the part of the person who is to
be charged with the liability, and the production of the damage by said act or omission.
This includes, by inference, the establishment of a relation of cause or effect between the
act or omission and the damage; the latter must be the direct result of one of the first two.
As the decision of March 22, 1881, said, it is necessary that the damages result

immediately and directly from an act performed culpably and wrongfully; "necessarily
presupposing a legal ground for imputability." (Decision of October 29, 1887.)
Negligence is not presumed, but must be proven by him who alleges it.
(Scavoela, Jurisprudencia del Codigo Civil, vol. 6, pp. 551-552.)
(Cf. decisions of supreme court of Spain of June 12, 1900, and June 23, 1900.)
Finally we think the doctrine in this jurisdiction applicable to the case at bar was definitely settled
in this court in the maturely considered case of Rakes vs. Atlantic, Gulf and Pacific Co. (supra),
wherein we held that while "There are many cases (personal injury cases) was exonerated," on
the ground that "the negligence of the plaintiff was the immediate cause of the casualty"
(decisions of the 15th of January, the 19th of February, and the 7th of March, 1902, stated in
Alcubilla's Index of that year); none of the cases decided by the supreme court of Spain "define
the effect to be given the negligence of its causes, though not the principal one, and we are left
to seek the theory of the civil law in the practice of other countries;" and in such cases we
declared that law in this jurisdiction to require the application of "the principle of proportional
damages," but expressly and definitely denied the right of recovery when the acts of the injured
party were the immediate causes of the accident.
The doctrine as laid down in that case is as follows:
Difficulty seems to be apprehended in deciding which acts of the injured party shall be
considered immediate causes of the accident. The test is simple. Distinction must be made
between the accident and the injury, between the event itself, without which there could
have been no accident, and those acts of the victim not entering into it, independent of it,
but contributing to his own proper hurt. For instance, the cause of the accident under
review was the displacement of the crosspiece or the failure to replace it. This produces
the event giving occasion for damagesthat is, the sinking of the track and the sliding of
the iron rails. To this event, the act of the plaintiff in walking by the side of the car did not
contribute, although it was an element of the damage which came to himself. Had the
crosspiece been out of place wholly or partly through his act or omission of duty, that
would have been one of the determining causes of the event or accident, for which he
would have been responsible. Where he contributes to the principal occurrence, as one of
its determining factors, he can not recover. Where, in conjunction with the occurrence, he
contributes only to his own injury, he may recover the amount that the defendant
responsible for the event should pay for such injury, less a sum deemed a suitable
equivalent for his own imprudence.
We think it is quite clear that under the doctrine thus stated, the immediate cause of the
explosion, the accident which resulted in plaintiff's injury, was in his own act in putting a match
to the contents of the cap, and that having "contributed to the principal occurrence, as one of its
determining factors, he can not recover."
We have not deemed it necessary to examine the effect of plaintiff's action in picking up upon
defendant's premises the detonating caps, the property of defendant, and carrying the relation of
cause and effect between the negligent act or omission of the defendant in leaving the caps
exposed on its premises and the injuries inflicted upon the plaintiff by the explosion of one of
these caps. Under the doctrine of the Torpedo cases, such action on the part of an infant of very
tender years would have no effect in relieving defendant of responsibility, but whether in view of
the well-known fact admitted in defendant's brief that "boys are snappers-up of unconsidered
trifles," a youth of the age and maturity of plaintiff should be deemed without fault in picking up
the caps in question under all the circumstances of this case, we neither discuss nor decide.
Twenty days after the date of this decision let judgment be entered reversing the judgment of the
court below, without costs to either party in this instance, and ten days thereafter let the record
be returned to the court wherein it originated, where the judgment will be entered in favor of the
defendant for the costs in first instance and the complaint dismissed without day. So ordered.

G.R. No. L-65295 March 10, 1987


PHOENIX CONSTRUCTION, INC. and ARMANDO U. CARBONEL, petitioners,
vs.
THE INTERMEDIATE APPELLATE COURT and LEONARDO DIONISIO, respondents.
In the early morning of 15 November 1975 at about 1:30 a.m. private respondent Leonardo
Dionisio was on his way home he lived in 1214-B Zamora Street, Bangkal, Makati from a
cocktails-and-dinner meeting with his boss, the general manager of a marketing corporation.
During the cocktails phase of the evening, Dionisio had taken "a shot or two" of liquor. Dionisio
was driving his Volkswagen car and had just crossed the intersection of General Lacuna and
General Santos Streets at Bangkal, Makati, not far from his home, and was proceeding down
General Lacuna Street, when his car headlights (in his allegation) suddenly failed. He switched
his headlights on "bright" and thereupon he saw a Ford dump truck looming some 2-1/2 meters
away from his car. The dump truck, owned by and registered in the name of petitioner Phoenix
Construction Inc. ("Phoenix"), was parked on the right hand side of General Lacuna Street (i.e.,
on the right hand side of a person facing in the same direction toward which Dionisio's car was
proceeding), facing the oncoming traffic. The dump truck was parked askew (not parallel to the
street curb) in such a manner as to stick out onto the street, partly blocking the way of oncoming
traffic. There were no lights nor any so-called "early warning" reflector devices set anywhere
near the dump truck, front or rear. The dump truck had earlier that evening been driven home by
petitioner Armando U. Carbonel, its regular driver, with the permission of his employer Phoenix,
in view of work scheduled to be carried out early the following morning, Dionisio claimed that he
tried to avoid a collision by swerving his car to the left but it was too late and his car smashed
into the dump truck. As a result of the collision, Dionisio suffered some physical injuries including
some permanent facial scars, a "nervous breakdown" and loss of two gold bridge dentures.
Dionisio commenced an action for damages in the Court of First Instance of Pampanga basically
claiming that the legal and proximate cause of his injuries was the negligent manner in which
Carbonel had parked the dump truck entrusted to him by his employer Phoenix. Phoenix and
Carbonel, on the other hand, countered that the proximate cause of Dionisio's injuries was his
own recklessness in driving fast at the time of the accident, while under the influence of liquor,
without his headlights on and without a curfew pass. Phoenix also sought to establish that it had
exercised due rare in the selection and supervision of the dump truck driver.
The trial court rendered judgment in favor of Dionisio and against Phoenix and Carbonel and
ordered the latter:
(1) To pay plaintiff jointly and severally the sum of P 15,000.00 for hospital bills and
the replacement of the lost dentures of plaintiff;
(2) To pay plaintiff jointly and severally the sum of P 1,50,000.-00 as loss of
expected income for plaintiff brought about the accident in controversy and which is
the result of the negligence of the defendants;
(3) To pay the plaintiff jointly and severally the sum of P 10,000. as moral damages
for the unexpected and sudden withdrawal of plaintiff from his lifetime career as a
marketing man; mental anguish, wounded feeling, serious anxiety, social
humiliation, besmirched reputation, feeling of economic insecurity, and the untold
sorrows and frustration in life experienced by plaintiff and his family since the
accident in controversy up to the present time;
(4) To pay plaintiff jointly and severally the sum of P 10,000.00 as damages for the
wanton disregard of defendants to settle amicably this case with the plaintiff before
the filing of this case in court for a smaller amount.
(5) To pay the plaintiff jointly and severally the sum of P 4,500.00 due as and for
attorney's fees; and

(6) The cost of suit. (Emphasis supplied)


Phoenix and Carbonel appealed to the Intermediate Appellate Court. That court in CA-G.R. No.
65476 affirmed the decision of the trial court but modified the award of damages to the following
extent:
1. The award of P15,000.00 as compensatory damages was reduced
to P6,460.71, the latter being the only amount that the appellate court
found the plaintiff to have proved as actually sustained by him;
2. The award of P150,000.00 as loss of expected income was reduced
to P100,000.00,basically because Dionisio had voluntarily resigned his
job such that, in the opinion of the appellate court, his loss of income
"was not solely attributable to the accident in question;" and
3. The award of P100,000.00 as moral damages was held by the
appellate court as excessive and unconscionable and hence reduced
to P50,000.00.
The award of P10,000.00 as exemplary damages and P4,500.00 as
attorney's fees and costs remained untouched.
This decision of the Intermediate Appellate Court is now before us on a petition for review.
Both the trial court and the appellate court had made fairly explicit findings of fact relating to the
manner in which the dump truck was parked along General Lacuna Street on the basis of which
both courts drew the inference that there was negligence on the part of Carbonel, the dump
truck driver, and that this negligence was the proximate cause of the accident and Dionisio's
injuries. We note, however, that both courts failed to pass upon the defense raised by Carbonel
and Phoenix that the true legal and proximate cause of the accident was not the way in which
the dump truck had been parked but rather the reckless way in which Dionisio had driven his car
that night when he smashed into the dump truck. The Intermediate Appellate Court in its
questioned decision casually conceded that Dionisio was "in some way, negligent" but apparently
failed to see the relevance of Dionisio's negligence and made no further mention of it. We have
examined the record both before the trial court and the Intermediate Appellate Court and we find
that both parties had placed into the record sufficient evidence on the basis of which the trial
court and the appellate court could have and should have made findings of fact relating to the
alleged reckless manner in which Dionisio drove his car that night. The petitioners Phoenix and
Carbonel contend that if there was negligence in the manner in which the dump truck was
parked, that negligence was merely a "passive and static condition" and that private respondent
Dionisio's recklessness constituted an intervening, efficient cause determinative of the accident
and the injuries he sustained. The need to administer substantial justice as between the parties
in this case, without having to remand it back to the trial court after eleven years, compels us to
address directly the contention put forward by the petitioners and to examine for ourselves the
record pertaining to Dionisio's alleged negligence which must bear upon the liability, or extent of
liability, of Phoenix and Carbonel.
There are four factual issues that need to be looked into: (a) whether or not private respondent
Dionisio had a curfew pass valid and effective for that eventful night; (b) whether Dionisio was
driving fast or speeding just before the collision with the dump truck; (c) whether Dionisio had
purposely turned off his car's headlights before contact with the dump truck or whether those
headlights accidentally malfunctioned moments before the collision; and (d) whether Dionisio
was intoxicated at the time of the accident.
As to the first issue relating to the curfew pass, it is clear that no curfew pass was found on the
person of Dionisio immediately after the accident nor was any found in his car. Phoenix's
evidence here consisted of the testimony of Patrolman Cuyno who had taken Dionisio,
unconscious, to the Makati Medical Center for emergency treatment immediately after the
accident. At the Makati Medical Center, a nurse took off Dionisio's clothes and examined them

along with the contents of pockets together with Patrolman Cuyno. 1 Private respondent Dionisio
was not able to produce any curfew pass during the trial. Instead, he offered the explanation that
his family may have misplaced his curfew pass. He also offered a certification (dated two years
after the accident) issued by one Major Benjamin N. Libarnes of the Zone Integrated Police
Intelligence Unit of Camp Olivas, San Fernando, Pampanga, which was said to have authority to
issue curfew passes for Pampanga and Metro Manila. This certification was to the effect that
private respondent Dionisio had a valid curfew pass. This certification did not, however, specify
any pass serial number or date or period of effectivity of the supposed curfew pass. We find that
private respondent Dionisio was unable to prove possession of a valid curfew pass during the
night of the accident and that the preponderance of evidence shows that he did not have such a
pass during that night. The relevance of possession or non-possession of a curfew pass that night
lies in the light it tends to shed on the other related issues: whether Dionisio was speeding home
and whether he had indeed purposely put out his headlights before the accident, in order to
avoid detection and possibly arrest by the police in the nearby police station for travelling after
the onset of curfew without a valid curfew pass.
On the second issue whether or not Dionisio was speeding home that night both the trial
court and the appellate court were completely silent.
The defendants in the trial court introduced the testimony of Patrolman Cuyno who was at the
scene of the accident almost immediately after it occurred, the police station where he was
based being barely 200 meters away. Patrolman Cuyno testified that people who had gathered at
the scene of the accident told him that Dionisio's car was "moving fast" and did not have its
headlights on. 2 Dionisio, on the other hand, claimed that he was travelling at a moderate speed
at 30 kilometers per hour and had just crossed the intersection of General Santos and General
Lacuna Streets and had started to accelerate when his headlights failed just before the collision
took place. 3
Private respondent Dionisio asserts that Patrolman Cuyno's testimony was hearsay and did not
fag within any of the recognized exceptions to the hearsay rule since the facts he testified to
were not acquired by him through official information and had not been given by the informants
pursuant to any duty to do so. Private respondent's objection fails to take account of the fact that
the testimony of Patrolman Cuyno is admissible not under the official records exception to the
hearsay rule 4 but rather as part of the res gestae. 5 Testimonial evidence under this exception to
the hearsay rule consists of excited utterances made on the occasion of an occurrence or event
sufficiently startling in nature so as to render inoperative the normal reflective thought processes
of the observer and hence made as a spontaneous reaction to the occurrence or event, and not
the result of reflective thought. 6
We think that an automobile speeding down a street and suddenly smashing into a stationary
object in the dead of night is a sufficiently startling event as to evoke spontaneous, rather than
reflective, reactions from observers who happened to be around at that time. The testimony of
Patrolman Cuyno was therefore admissible as part of theres gestae and should have been
considered by the trial court. Clearly, substantial weight should have been ascribed to such
testimony, even though it did not, as it could not, have purported to describe quantitatively the
precise velocity at winch Dionisio was travelling just before impact with the Phoenix dump truck.
A third related issue is whether Dionisio purposely turned off his headlights, or whether his
headlights accidentally malfunctioned, just moments before the accident. The Intermediate
Appellate Court expressly found that the headlights of Dionisio's car went off as he crossed the
intersection but was non-committal as to why they did so. It is the petitioners' contention that
Dionisio purposely shut off his headlights even before he reached the intersection so as not to be
detected by the police in the police precinct which he (being a resident in the area) knew was not
far away from the intersection. We believe that the petitioners' theory is a more credible
explanation than that offered by private respondent Dionisio i.e., that he had his headlights on
but that, at the crucial moment, these had in some mysterious if convenient way malfunctioned
and gone off, although he succeeded in switching his lights on again at "bright" split seconds
before contact with the dump truck.

A fourth and final issue relates to whether Dionisio was intoxicated at the time of the accident.
The evidence here consisted of the testimony of Patrolman Cuyno to the effect that private
respondent Dionisio smelled of liquor at the time he was taken from his smashed car and brought
to the Makati Medical Center in an unconscious condition. 7 This testimony has to be taken in
conjunction with the admission of Dionisio that he had taken "a shot or two" of liquor before
dinner with his boss that night. We do not believe that this evidence is sufficient to show that
Dionisio was so heavily under the influence of liquor as to constitute his driving a motor vehicle
per se an act of reckless imprudence. 8 There simply is not enough evidence to show how much
liquor he had in fact taken and the effects of that upon his physical faculties or upon his
judgment or mental alertness. We are also aware that "one shot or two" of hard liquor may affect
different people differently.
The conclusion we draw from the factual circumstances outlined above is that private respondent
Dionisio was negligent the night of the accident. He was hurrying home that night and driving
faster than he should have been. Worse, he extinguished his headlights at or near the
intersection of General Lacuna and General Santos Streets and thus did not see the dump truck
that was parked askew and sticking out onto the road lane.
Nonetheless, we agree with the Court of First Instance and the Intermediate Appellate Court that
the legal and proximate cause of the accident and of Dionisio's injuries was the wrongful or
negligent manner in which the dump truck was parked in other words, the negligence of
petitioner Carbonel. That there was a reasonable relationship between petitioner Carbonel's
negligence on the one hand and the accident and respondent's injuries on the other hand, is
quite clear. Put in a slightly different manner, the collision of Dionisio's car with the dump truck
was a natural and foreseeable consequence of the truck driver's negligence.
The petitioners, however, urge that the truck driver's negligence was merely a "passive and
static condition" and that private respondent Dionisio's negligence was an "efficient intervening
cause and that consequently Dionisio's negligence must be regarded as the legal and proximate
cause of the accident rather than the earlier negligence of Carbonel. We note that the
petitioners' arguments are drawn from a reading of some of the older cases in various
jurisdictions in the United States but we are unable to persuade ourselves that these arguments
have any validity for our jurisdiction. We note, firstly, that even in the United States, the
distinctions between "cause" and "condition" which the 'petitioners would have us adopt have
already been "almost entirely discredited." Professors and Keeton make this quite clear:
Cause and condition. Many courts have sought to distinguish between the active
"cause" of the harm and the existing "conditions" upon which that cause operated.
If the defendant has created only a passive static condition which made the damage
possible, the defendant is said not to be liable. But so far as the fact of causation is
concerned, in the sense of necessary antecedents which have played an important
part in producing the result it is quite impossible to distinguish between active
forces and passive situations, particularly since, as is invariably the case, the latter
are the result of other active forces which have gone before. The defendant who
spills gasoline about the premises creates a "condition," but the act may be
culpable because of the danger of fire. When a spark ignites the gasoline, the
condition has done quite as much to bring about the fire as the spark; and since
that is the very risk which the defendant has created, the defendant will not escape
responsibility. Even the lapse of a considerable time during which the "condition"
remains static will not necessarily affect liability; one who digs a trench in the
highway may still be liable to another who fans into it a month afterward. "Cause"
and "condition" still find occasional mention in the decisions; but the distinction is
now almost entirely discredited. So far as it has any validity at all, it must refer to
the type of case where the forces set in operation by the defendant have come to
rest in a position of apparent safety, and some new force intervenes. But even in
such cases, it is not the distinction between "cause" and "condition" which is
important but the nature of the risk and the character of the intervening cause. 9

We believe, secondly, that the truck driver's negligence far from being a "passive and static
condition" was rather an indispensable and efficient cause. The collision between the dump truck
and the private respondent's car would in an probability not have occurred had the dump truck
not been parked askew without any warning lights or reflector devices. The improper parking of
the dump truck created an unreasonable risk of injury for anyone driving down General Lacuna
Street and for having so created this risk, the truck driver must be held responsible. In our view,
Dionisio's negligence, although later in point of time than the truck driver's negligence and
therefore closer to the accident, was not an efficient intervening or independent cause. What the
Petitioners describe as an "intervening cause" was no more than a foreseeable consequent
manner which the truck driver had parked the dump truck. In other words, the petitioner truck
driver owed a duty to private respondent Dionisio and others similarly situated not to impose
upon them the very risk the truck driver had created. Dionisio's negligence was not of an
independent and overpowering nature as to cut, as it were, the chain of causation in fact
between the improper parking of the dump truck and the accident, nor to sever the juris
vinculum of liability. It is helpful to quote once more from Professor and Keeton:
Foreseeable Intervening Causes. If the intervening cause is one which in ordinary
human experience is reasonably to be anticipated or one which the defendant has
reason to anticipate under the particular circumstances, the defendant may be
negligence among other reasons, because of failure to guard against it; or the
defendant may be negligent only for that reason. Thus one who sets a fire may be
required to foresee that an ordinary, usual and customary wind arising later wig
spread it beyond the defendant's own property, and therefore to take precautions to
prevent that event. The person who leaves the combustible or explosive material
exposed in a public place may foresee the risk of fire from some independent
source. ... In all of these cases there is an intervening cause combining with the
defendant's conduct to produce the result and in each case the defendant's
negligence consists in failure to protect the plaintiff against that very risk.
Obviously the defendant cannot be relieved from liability by the fact that the risk or
a substantial and important part of the risk, to which the defendant has subjected
the plaintiff has indeed come to pass. Foreseeable intervening forces are within the
scope original risk, and hence of the defendant's negligence. The courts are quite
generally agreed that intervening causes which fall fairly in this category will not
supersede the defendant's responsibility.
Thus it has been held that a defendant will be required to anticipate the usual
weather of the vicinity, including all ordinary forces of nature such as usual wind or
rain, or snow or frost or fog or even lightning; that one who leaves an obstruction on
the road or a railroad track should foresee that a vehicle or a train will run into it; ...
The risk created by the defendant may include the intervention of the foreseeable
negligence of others. ... [The standard of reasonable conduct may require the
defendant to protect the plaintiff against 'that occasional negligence which is one of
the ordinary incidents of human life, and therefore to be anticipated.' Thus, a
defendant who blocks the sidewalk and forces the plaintiff to walk in a street where
the plaintiff will be exposed to the risks of heavy traffic becomes liable when the
plaintiff is run down by a car, even though the car is negligently driven; and one
who parks an automobile on the highway without lights at night is not relieved of
responsibility when another negligently drives into it. --- 10
We hold that private respondent Dionisio's negligence was "only contributory," that the
"immediate and proximate cause" of the injury remained the truck driver's "lack of due care" and
that consequently respondent Dionisio may recover damages though such damages are subject
to mitigation by the courts (Article 2179, Civil Code of the Philippines).
Petitioners also ask us to apply what they refer to as the "last clear chance" doctrine. The theory
here of petitioners is that while the petitioner truck driver was negligent, private respondent
Dionisio had the "last clear chance" of avoiding the accident and hence his injuries, and that

Dionisio having failed to take that "last clear chance" must bear his own injuries alone. The last
clear chance doctrine of the common law was imported into our jurisdiction by Picart vs.
Smith 11 but it is a matter for debate whether, or to what extent, it has found its way into the
Civil Code of the Philippines. The historical function of that doctrine in the common law was to
mitigate the harshness of another common law doctrine or rule that of contributory
negligence. 12 The common law rule of contributory negligence prevented any recovery at all by
a plaintiff who was also negligent, even if the plaintiff's negligence was relatively minor as
compared with the wrongful act or omission of the defendant. 13 The common law notion of last
clear chance permitted courts to grant recovery to a plaintiff who had also been negligent
provided that the defendant had the last clear chance to avoid the casualty and failed to do
so. 14 Accordingly, it is difficult to see what role, if any, the common law last clear chance
doctrine has to play in a jurisdiction where the common law concept of contributory negligence
as an absolute bar to recovery by the plaintiff, has itself been rejected, as it has been in Article
2179 of the Civil Code of the Philippines. 15
Is there perhaps a general concept of "last clear chance" that may be extracted from its common
law matrix and utilized as a general rule in negligence cases in a civil law jurisdiction like ours?
We do not believe so. Under Article 2179, the task of a court, in technical terms, is to determine
whose negligence the plaintiff's or the defendant's was the legal or proximate cause of the
injury. That task is not simply or even primarily an exercise in chronology or physics, as the
petitioners seem to imply by the use of terms like "last" or "intervening" or "immediate." The
relative location in the continuum of time of the plaintiff's and the defendant's negligent acts or
omissions, is only one of the relevant factors that may be taken into account. Of more
fundamental importance are the nature of the negligent act or omission of each party and the
character and gravity of the risks created by such act or omission for the rest of the community.
The petitioners urge that the truck driver (and therefore his employer) should be absolved from
responsibility for his own prior negligence because the unfortunate plaintiff failed to act with that
increased diligence which had become necessary to avoid the peril precisely created by the truck
driver's own wrongful act or omission. To accept this proposition is to come too close to wiping
out the fundamental principle of law that a man must respond for the forseeable consequences
of his own negligent act or omission. Our law on quasi-delicts seeks to reduce the risks and
burdens of living in society and to allocate them among the members of society. To accept the
petitioners' pro-position must tend to weaken the very bonds of society.
Petitioner Carbonel's proven negligence creates a presumption of negligence on the part of his
employer Phoenix16 in supervising its employees properly and adequately. The respondent
appellate court in effect found, correctly in our opinion, that Phoenix was not able to overcome
this presumption of negligence. The circumstance that Phoenix had allowed its truck driver to
bring the dump truck to his home whenever there was work to be done early the following
morning, when coupled with the failure to show any effort on the part of Phoenix to supervise the
manner in which the dump truck is parked when away from company premises, is an affirmative
showing of culpa in vigilando on the part of Phoenix.
Turning to the award of damages and taking into account the comparative negligence of private
respondent Dionisio on one hand and petitioners Carbonel and Phoenix upon the other
hand, 17 we believe that the demands of substantial justice are satisfied by allocating most of
the damages on a 20-80 ratio. Thus, 20% of the damages awarded by the respondent appellate
court, except the award of P10,000.00 as exemplary damages and P4,500.00 as attorney's fees
and costs, shall be borne by private respondent Dionisio; only the balance of 80% needs to be
paid by petitioners Carbonel and Phoenix who shall be solidarity liable therefor to the former. The
award of exemplary damages and attorney's fees and costs shall be borne exclusively by the
petitioners. Phoenix is of course entitled to reimbursement from Carbonel. 18 We see no
sufficient reason for disturbing the reduced award of damages made by the respondent appellate
court.
WHEREFORE, the decision of the respondent appellate court is modified by reducing the
aggregate amount of compensatory damages, loss of expected income and moral damages
private respondent Dionisio is entitled to by 20% of such amount. Costs against the petitioners.

SO ORDERED.

G.R. Nos. 103442-45 May 21, 1993


NATIONAL POWER CORPORATION, ET AL., petitioners,
vs.
THE COURT OF APPEALS, GAUDENCIO C. RAYO, ET AL., respondents.
This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court urging this
Court to set aside the 19 August 1991 consolidated Decision of the Court of Appeals in CA.-G.R.
CV Nos. 27290-93 1 which reversed the Decision of Branch 5 of the then Court of First Instance
(now Regional Trial Court) of Bulacan, and held petitioners National Power Corporation (NPC) and
Benjamin Chavez jointly and severally liable to the private respondents for actual and moral
damages, litigation expenses and attorney's fees.
This present controversy traces its beginnings to four (4) separate complaints 2 for damages filed
against the NPC and Benjamin Chavez before the trial court. The plaintiffs therein, now private
respondents, sought to recover actual and other damages for the loss of lives and the
destruction to property caused by the inundation of the town of Norzagaray, Bulacan on 26-27
October 1978. The flooding was purportedly caused by the negligent release by the defendants
of water through the spillways of the Angat Dam (Hydroelectric Plant). In said complaints, the
plaintiffs alleged, inter alia, that: 1) defendant NPC operated and maintained a multi-purpose
hydroelectric plant in the Angat River at Hilltop, Norzagaray, Bulacan; 2) defendant Benjamin
Chavez was the plant supervisor at the time of the incident in question; 3) despite the
defendants' knowledge, as early as 24 October 1978, of the impending entry of typhoon
"Kading," they failed to exercise due diligence in monitoring the water level at the dam; 4) when
the said water level went beyond the maximum allowable limit at the height of the typhoon, the
defendants suddenly, negligently and recklessly opened three (3) of the dam's spillways, thereby
releasing a large amount of water which inundated the banks of the Angat River; and 5) as a
consequence, members of the household of the plaintiffs, together with their animals, drowned,
and their properties were washed away in the evening of 26 October and the early hours of 27
October 1978. 3
In their Answers, the defendants, now petitioners, alleged that: 1) the NPC exercised due care,
diligence and prudence in the operation and maintenance of the hydroelectric plant; 2) the NPC
exercised the diligence of a good father in the selection of its employees; 3) written notices were
sent to the different municipalities of Bulacan warning the residents therein about the impending
release of a large volume of water with the onset of typhoon "Kading" and advise them to take
the necessary precautions; 4) the water released during the typhoon was needed to prevent the
collapse of the dam and avoid greater damage to people and property; 5) in spite of the
precautions undertaken and the diligence exercised, they could still not contain or control the
flood that resulted and; 6) the damages incurred by the private respondents were caused by a
fortuitous event or force majeure and are in the nature and character of damnum absque injuria.
By way of special affirmative defense, the defendants averred that the NPC cannot be sued
because it performs a purely governmental function. 4
Upon motion of the defendants, a preliminary hearing on the special defense was conducted. As
a result thereof, the trial court dismissed the complaints as against the NPC on the ground that
the provision of its charter allowing it to sue and be sued does not contemplate actions based on
tort. The parties do not, however, dispute the fact that this Court overruled the trial court and
ordered the reinstatement of the complaints as against the NPC. 5
Being closely interrelated, the cases were consolidated and trial thereafter ensued.
The lower court rendered its decision on 30 April 1990 dismissing the complaints "for lack of
sufficient and credible evidence." 6 Consequently, the private respondents seasonably appealed
therefrom to the respondent Court which then docketed the cases as CA-G.R. CV Nos. 27290-93.
In its joint decision promulgated on 19 August 1991, the Court of Appeals reversed the appealed
decision and awarded damages in favor of the private respondents. The dispositive portion of the
decision reads:

CONFORMABLY TO THE FOREGOING, the joint decision appealed from is hereby REVERSED and
SET ASIDE, and a new one is hereby rendered:
1. In Civil Case No. SM-950, ordering defendants-appellees to pay, jointly and severally, plaintiffsappellants, with legal interest from the date when this decision shall become final and executory,
the following:
A. Actual damages, to wit:
1) Gaudencio C. Rayo, Two Hundred Thirty One Thousand Two Hundred Sixty Pesos
(P231,260.00);
2) Bienvenido P. Pascual, Two Hundred Four Thousand Five Hundred Pesos (P204.500.00);
3) Tomas Manuel, One Hundred Fifty Five Thousand Pesos (P155,000.00);
4) Pedro C. Bartolome, One Hundred Forty Seven Thousand Pesos (P147,000.00);.
5) Bernardino Cruz, One Hundred Forty Three Thousand Five Hundred Fifty Two Pesos and Fifty
Centavos (P143,552.50);
6) Jose Palad, Fifty Seven Thousand Five Hundred Pesos (P57,500.00);
7) Mariano S. Cruz, Forty Thousand Pesos (P40,000.00);
8) Lucio Fajardo, Twenty nine Thousand Eighty Pesos (P29,080.00); and
B. Litigation expenses of Ten Thousand Pesos (P10,000.00);
2. In Civil case No. SM-951, ordering defendants-appellees to pay jointly and severally, plaintiffappellant, with legal interest from the date when this decision shall have become final and
executory, the following :
A. Actual damages of Five Hundred Twenty Thousand Pesos (P520,000.00);.
B. Moral damages of five hundred Thousand Pesos (P500,000.00); and.
C. Litigation expenses of Ten Thousand Pesos (P10,000.00);.
3. In Civil Case No. SM-953, ordering defendants-appellees to pay, jointly and severally, with
legal interest from the datewhen this decision shall have become final and executory;
A. Plaintiff-appellant Angel C. Torres:
1) Actual damages of One Hundred Ninety Nine Thousand One Hundred Twenty Pesos
(P199,120.00);
2) Moral Damages of One Hundred Fifty Thousand Pesos (P150,000.00);
B. Plaintiff-appellant Norberto Torres:
1) Actual damages of Fifty Thousand Pesos (P50,000.00);
2) Moral damages of Fifty Thousand Pesos (P50,000.00);
C. Plaintiff-appellant Rodelio Joaquin:
1) Actual damages of One Hundred Thousand Pesos (P100,000.00);
2) Moral damages of One Hundred Thousand Pesos (P100,000.00); and

D. Plaintifsf-appellants litigation expenses of Ten Thousand Pesos (P10,000.00);


4. In Civil case No. SM-1247, ordering defendants-appellees to pay, jointly and severally, with
legal interest from thedate when this decision shall have become final and executory :
A. Plaintiffs-appellants Presentacion Lorenzo and Clodualdo Lorenzo:
1) Actual damages of Two Hundred Fifty Six Thousand Six Hundred
Pesos (P256,600.00);
2) Moral damages of Fifty Thousand Pesos (P50,000.00);
B. Plaintiff-appellant Consolacion Guzman :
1) Actual damages of One Hundred forty Thousand Pesos
(P140,000.00);
2) Moral damages of Fifty Thousand Pesos (P50,000.00);
C. Plaintiff-appellant Virginia Guzman :
1) Actual damages of Two Hundred Five Hundred Twenty Pesos
(205,520.00); and
D. Plaintiffs-appellants litigation expenses of Ten Thousand Pesos (10,000.00).
In addition, in all the four (4) instant cases, ordering defendants-appellees to pay,
jointly and severally, plaintiffs-appellants attorney fees in an amount equivalent to
15% of the total amount awarded.
No pronouncement as to costs. 7
The foregoing judgment is based on the public respondent's conclusion that the petitioners were
guilty of:
. . . a patent gross and evident lack of foresight, imprudence and negligence . . . in
the management and operation of Angat Dam. The unholiness of the hour, the
extent of the opening of the spillways, And the magnitude of the water released, are
all but products of defendants-appellees' headlessness, slovenliness, and
carelessness. The resulting flash flood and inundation of even areas (sic) one (1)
kilometer away from the Angat River bank would have been avoided had
defendants-appellees prepared the Angat Dam by maintaining in the first place, a
water elevation which would allow room for the expected torrential rains. 8
This conclusion, in turn, is anchored on its findings of fact, to wit:
As early as October 21, 1978, defendants-appellees knew of the impending
onslaught of and imminent danger posed by typhoon "Kading". For as alleged by
defendants-appellees themselves, the coming of said super typhoon was bannered
by Bulletin Today, a newspaper of national circulation, on October 25, 1978, as
"Super Howler to hit R.P." The next day, October 26, 1978, said typhoon once again
merited a headline in said newspaper as "Kading's Big Blow expected this
afternoon" (Appellee's Brief, p. 6). Apart from the newspapers, defendants-appellees
learned of typhoon "Kading' through radio announcements (Civil Case No. SM-950,
TSN, Benjamin Chavez, December 4, 1984, pp. 7-9).
Defendants-appellees doubly knew that the Angat Dam can safely hold a normal
maximum headwater elevation of 217 meters (Appellee's brief, p. 12; Civil Case No.

SM-951, Exhibit "I-6"; Civil Case No. SM-953, Exhibit "J-6"; Civil Case No. SM-1247,
Exhibit "G-6").
Yet, despite such knowledge, defendants-appellees maintained a reservoir water
elevation even beyond its maximum and safe level, thereby giving no sufficient
allowance for the reservoir to contain the rain water that will inevitably be brought
by the coming typhoon.
On October 24, 1978, before typhoon "Kading" entered the Philippine area of
responsibility, water elevation ranged from 217.61 to 217.53, with very little
opening of the spillways, ranging from 1/2 to 1 meter. On October 25, 1978, when
typhoon "Kading" entered the Philippine area of responsibility, and public storm
signal number one was hoisted over Bulacan at 10:45 a.m., later raised to number
two at 4:45 p.m., and then to number three at 10:45 p.m., water elevation ranged
from 217.47 to 217.57, with very little opening of the spillways, ranging from 1/2 to
1 meter. On October 26, 1978, when public storm signal number three remained
hoisted over Bulacan, the water elevation still remained at its maximum level of
217.00 to 218.00 with very little opening of the spillways ranging from 1/2 to 2
meters, until at or about midnight, the spillways were suddenly opened at 5 meters,
then increasing swiftly to 8, 10, 12, 12.5, 13, 13.5, 14, 14.5 in the early morning
hours of October 27, 1978, releasing water at the rate of 4,500 cubic meters per
second, more or less. On October 27, 1978, water elevation remained at a range of
218.30 to 217.05 (Civil Case No. SM-950, Exhibits "D" and series, "L", "M", "N", and
"O" and Exhibits "3" and "4"; Civil Case No. SM-951, Exhibits "H" and "H-1"; Civil
Case No. SM-953, Exhibits "I" and "I-1"; Civil Case No. SM 1247, Exhibits "F" and "F1").
xxx xxx xxx
From the mass of evidence extant in the record, We are convinced, and so hold that
the flash flood on October 27, 1978, was caused not by rain waters (sic), but by
stored waters (sic) suddenly and simultaneously released from the Angat Dam by
defendants-appellees, particularly from midnight of October 26, 1978 up to the
morning hours of October 27,
1978. 9
The appellate court rejected the petitioners' defense that they had sent "early warning written
notices" to the towns of Norzagaray, Angat, Bustos, Plaridel, Baliwag and Calumpit dated 24
October 1978 which read:
TO ALL CONCERN (sic):
Please be informed that at present our reservoir (dam) is full and that we have been releasing
water intermittently for the past several days.With the coming of typhoon "Rita" (Kading) we
expect to release greater (sic) volume of water, if it pass (sic) over our place.In view of this kindly
advise people residing along Angat River to keep alert and stay in safe places.
because:
Said notice was delivered to the "towns of Bulacan" on October 26, 1978 by
defendants-appellees driver, Leonardo Nepomuceno (Civil Case No. SM-950, TSN,
Benjamin Chavez, December 4, 1984, pp. 7-11 and TSN, Leonardo Nepomuceno,
March 7, 1985, pp. 10-12).
Said notice is ineffectual, insufficient and inadequate for purposes of the opening of
the spillway gates at midnight of October 26, 1978 and on October 27, 1978. It did
not prepare or warn the persons so served, for the volume of water to be released,
which turned out to be of such magnitude, that residents near or along the Angat
River, even those one (1) kilometer away, should have been advised to evacuate.

Said notice, addressed "TO ALL CONCERN (sic)," was delivered to a policeman (Civil
Case No. SM-950, pp. 10-12 and Exhibit "2-A") for the municipality of Norzagaray.
Said notice was not thus addressed and delivered to the proper and responsible
officials who could have disseminated the warning to the residents directly affected.
As for the municipality of Sta. Maria, where plaintiffs-appellants in Civil Case No. SM1246 reside, said notice does not appear to have been served. 11
Relying on Juan F. Nakpil & Sons vs. Court of Appeals, 12 public respondent rejected the
petitioners' plea that the incident in question was caused by force majeure and that they are,
therefore, not liable to the private respondents for any kind of damage such damage being in
the nature of damnum absque injuria.
The motion for reconsideration filed by the petitioners, as well as the motion to modify judgment
filed by the public respondents, 13 were denied by the public respondent in its Resolution of 27
December 1991. 14
Petitioners thus filed the instant petition on 21 February 1992.
After the Comment to the petition was filed by the private respondents and the Reply thereto
was filed by the petitioners, We gave due course to the petition on 17 June 1992 and directed the
parties to submit their respective Memoranda, 15 which they subsequently complied with.
The petitioners raised the following errors allegedly committed by the respondent Court :
I. THE COURT OF APPEALS ERRED IN APPLYING THE RULING OF NAKPIL & SONS V.
COURT OF APPEALS AND HOLDING THAT PETITIONERS WERE GUILTY OF
NEGLIGENCE.
II. THE COURT OF APPEALS ERRED IN HOLDING THAT THE WRITTEN NOTICES OF
WARNING ISSUED BY PETITIONERS WERE INSUFFICIENT.
III. THE COURT OF APPEALS ERRED IN HOLDING THAT THE DAMAGE SUFFERED BY
PRIVATE RESPONDENTS WAS NOT DAMNUM ABSQUE INJURIA.
IV. THE COURT OF APPEALS ERRED IN NOT AWARDING THE COUNTERCLAIM OF
PETITIONERS FOR ATTORNEY'S FEES AND EXPENSES OF LITIGATION. 16
These same errors were raised by herein petitioners in G.R. No. 96410, entitled National Power
Corporation, et al., vs. Court of Appeals, et al., 17 which this Court decided on 3 July 1992. The
said case involved the very same incident subject of the instant petition. In no uncertain terms,
We declared therein that the proximate cause of the loss and damage sustained by the plaintiffs
therein who were similarly situated as the private respondents herein was the negligence of
the petitioners, and that the 24 October 1978 "early warning notice" supposedly sent to the
affected municipalities, the same notice involved in the case at bar, was insufficient. We thus
cannot now rule otherwise not only because such a decision binds this Court with respect to the
cause of the inundation of the town of Norzagaray, Bulacan on 26-27 October 1978 which
resulted in the loss of lives and the destruction to property in both cases, but also because of the
fact that on the basis of its meticulous analysis and evaluation of the evidence adduced by the
parties in the cases subject of CA-G.R. CV Nos. 27290-93, public respondent found as
conclusively established that indeed, the petitioners were guilty of "patent gross and evident
lack of foresight, imprudence and negligence in the management and operation of Angat Dam,"
and that "the extent of the opening of the spillways, and the magnitude of the water released,
are all but products of defendants-appellees' headlessness, slovenliness, and carelessness." 18 Its
findings and conclusions are biding upon Us, there being no showing of the existence of any of
the exceptions to the general rule that findings of fact of the Court of Appeals are conclusive
upon this Court. 19 Elsewise stated, the challenged decision can stand on its own merits
independently of Our decision in G.R. No. 96410. In any event, We reiterate here in Our
pronouncement in the latter case that Juan F. Nakpil & Sons vs. Court of Appeals 20 is still good

law as far as the concurrent liability of an obligor in the case of force majeure is concerned. In
theNakpil case, We held:
To exempt the obligor from liability under Article 1174 of the Civil Code, for a breach
of an obligation due to an "act of God," the following must concur: (a) the cause of
the breach of the obligation must be independent of the will of the debtor; (b) the
event must be either unforseeable or unavoidable; (c) the event must be such as to
render it impossible for the debtor to fulfill his obligation in a moral manner; and (d)
the debtor must be free from any participation in, or aggravation of the injury to the
creditor. (Vasquez v. Court of Appeals, 138 SCRA 553; Estrada v. Consolacion, 71
SCRA 423; Austria v. Court of Appeals, 39 SCRA 527; Republic of the Phil. v. Luzon
Stevedoring Corp., 21 SCRA 279; Lasam v. Smith, 45 Phil. 657).
Thus, if upon the happening of a fortuitous event or an act of God, there concurs a
corresponding fraud, negligence, delay or violation or contravention in any manner
of the tenor of the obligation as provided for in Article 1170 of the Civil Code, which
results in loss or damage, the obligor cannot escape liability.
The principle embodied in the act of God doctrine strictly requires that the act must
be one occasioned exclusively by the violence of nature and all human agencies are
to be excluded from creating or entering into the cause of the mischief. When the
effect, the cause of which is to be considered, is found to be in part the result of the
participation of man, whether it be from active intervention or neglect, or failure to
act, the whole occurrence is thereby humanized, as it were, and removed from the
rules applicable to the acts of God. (1 Corpus Juris, pp. 1174-1175).
Thus it has been held that when the negligence of a person concurs with an act of
God in producing a loss, such person is not exempt from liability by showing that the
immediate cause of the damage was the act of God. To be exempt from liability for
loss because of an act of God, he must be free from any previous negligence or
misconduct by which that loss or damage may have been occasioned. (Fish &
Elective Co. v. Phil. Motors, 55 Phil. 129; Tucker v. Milan, 49 O.G. 4379; Limpangco &
Sons v. Yangco Steamship Co., 34 Phil. 594, 604; Lasam v. Smith, 45 Phil. 657). 21
Accordingly, petitioners cannot be heard to invoke the act of God or force majeure to escape
liability for the loss or damage sustained by private respondents since they, the petitioners, were
guilty of negligence. The event then was not occasioned exclusively by an act of God or force
majeure; a human factor negligence or imprudence had intervened. The effect then of
the force majeure in question may be deemed to have, even if only partly, resulted from the
participation of man. Thus, the whole occurrence was thereby humanized, as it were, and
removed from the laws applicable to acts of God.
WHEREFORE, for want of merit, the instant petition is hereby DISMISSED and the Consolidated
Decision of the Court of Appeals in CA-G.R. CV Nos. 27290-93 is AFFIRMED, with costs against the
petitioners.
SO ORDERED.

[G.R. No. 126389. July 10, 1998]


SOUTHEASTERN COLLEGE, INC., petitioner, vs. COURT OF APPEALS, JUANITA DE JESUS
VDA. DE DIMAANO, EMERITA DIMAANO, REMEDIOS DIMAANO, CONSOLACION
DIMAANO and MILAGROS DIMAANO, respondents.
Petition for review under Rule 45 of the Rules of Court seeking to set aside the
Decision[1] promulgated on July 31, 1996, and Resolution [2]dated September 12, 1996 of the Court
of Appeals[3] in CA-G.R. No. 41422, entitled Juanita de Jesus vda. de Dimaano, et al. vs.
Southeastern College, Inc., which reduced the moral damages awarded below
from P1,000,000.00 to P200,000.00.[4] The Resolution under attack denied petitioners motion for
reconsideration.
Private respondents are owners of a house at 326 College Road, Pasay City, while petitioner
owns a four-storey school building along the same College Road. On October 11, 1989, at about
6:30 in the morning, a powerful typhoon Saling hit Metro Manila. Buffeted by very strong
winds, the roof of petitioners building was partly ripped off and blown away, landing on and
destroying portions of the roofing of private respondents house. After the typhoon had passed,
an ocular inspection of the destroyed buildings was conducted by a team of engineers headed by
the city building official, Engr. Jesus L. Reyna. Pertinent aspects of the latters Report [5] dated
October 18, 1989 stated, as follows:
5. One of the factors that may have led to this calamitous event is the formation of the
buildings in the area and the general direction of the wind. Situated in the peripheral lot is an
almost U-shaped formation of 4-storey building. Thus, with the strong winds having a westerly
direction, the general formation of the buildings becomes a big funnel-like structure, the one
situated along College Road, receiving the heaviest impact of the strong winds. Hence, there are
portions of the roofing, those located on both ends of the building, which remained intact after
the storm.
6. Another factor and perhaps the most likely reason for the dislodging of the roofings structural
trusses is the improper anchorage of the said trusses to the roof beams. The 1/2 diameter steel
bars embedded on the concrete roof beams which serve as truss anchorage are not bolted nor
nailed to the trusses. Still, there are other steel bars which were not even bent to the trusses,
thus, those trusses are not anchored at all to the roof beams.
It then recommended that to avoid any further loss and damage to lives, limbs and property of
persons living in the vicinity, the fourth floor of subject school building be declared as
a structural hazard.
In their Complaint[6] before the Regional Trial Court of Pasay City, Branch 117, for damages
based on culpa aquiliana, private respondents alleged that the damage to their house rendered
the same uninhabitable, forcing them to stay temporarily in others houses. And so they sought
to recover from petitioner P117,116.00, as actual damages, P1,000,000.00, as moral
damages, P300,000.00, as exemplary damages andP100,000.00, for and as attorneys fees; plus
costs.
In its Answer, petitioner averred that subject school building had withstood several
devastating typhoons and other calamities in the past, without its roofing or any portion thereof
giving way; that it has not been remiss in its responsibility to see to it that said school building,
which houses school children, faculty members, and employees, is in tip-top condition; and
furthermore, typhoon Saling was an act of God and therefore beyond human control such
that petitioner cannot be answerable for the damages wrought thereby, absent any negligence
on its part.
The trial court, giving credence to the ocular inspection report to the effect that subject
school building had a defective roofing structure, found that, while typhoon Saling was
accompanied by strong winds, the damage to private respondents house could have been

avoided if the construction of the roof of [petitioners] building was not faulty. The dispositive
portion of the lower courts decision[7] reads thus:
WHEREFORE, in view of the foregoing, the Court renders judgment (sic) in favor of the plaintiff
(sic) and against the defendants, (sic) ordering the latter to pay jointly and severally the former
as follows:
a) P117,116.00, as actual damages, plus litigation expenses;
b) P1,000,000.00 as moral damages;
c) P100,000.00 as attorneys fees;
d) Costs of the instant suit.
The claim for exemplary damages is denied for the reason that the defendants (sic) did not act
in a wanton fraudulent, reckless, oppressive or malevolent manner.
In its appeal to the Court of Appeals, petitioner assigned as errors, [8] that:
I
THE TRIAL COURT ERRED IN HOLDING THAT TYPHOON SALING, AS AN ACT OF GOD,
IS NOT THE SOLE AND ABSOLUTE REASON FOR THE RIPPING-OFF OF THE SMALL
PORTION OF THE ROOF OF SOUTHEASTERNS FOUR (4) STOREY SCHOOL BUILDING.
II
THE TRIAL COURT ERRED IN HOLDING THAT THE CONSTRUCTION OF THE ROOF OF
DEFENDANTS SCHOOL BUILDING WAS FAULTY NOTWITHSTANDING THE ADMISSION
THAT THERE WERE TYPHOONS BEFORE BUT NOT AS GRAVE AS TYPHOON SALING
WHICH IS THE DIRECT AND PROXIMATE CAUSE OF THE INCIDENT.
III
THE TRIAL COURT ERRED IN AWARDING ACTUAL AND MORAL DAMAGES AS WELL AS
ATTORNEYS FEES AND LITIGATION EXPENSES AND COSTS OF SUIT TO DIMAANOS WHEN
THEY HAVE NOT INCURRED ACTUAL DAMAGES AT ALL AS DIMAANOS HAVE ALREADY
SOLD THEIR PROPERTY, AN INTERVENING EVENT THAT RENDERS THIS CASE MOOT AND
ACADEMIC.
IV
THE TRIAL COURT ERRED IN ORDERING THE ISSUANCE OF THE WRIT OF EXECUTION
INSPITE OF THE PERFECTION OF SOUTHEASTERNS APPEAL WHEN THERE IS NO
COMPELLING REASON FOR THE ISSUANCE THERETO.
As mentioned earlier, respondent Court of Appeals affirmed with modification the trial courts
disposition by reducing the award of moral damages from P1,000,000.00 to P200,000.00. Hence,
petitioners resort to this Court, raising for resolution the issues of:
1. Whether or not the award of actual damage [sic] to respondent Dimaanos on the basis of
speculation or conjecture, without proof or receipts of actual damage,[sic] legally feasible or
justified.
2. Whether or not the award of moral damages to respondent Dimaanos, without the latter
having suffered, actual damage has legal basis.

3. Whether or not respondent Dimaanos who are no longer the owner of the property, subject
matter of the case, during its pendency, has the right to pursue their complaint against
petitioner when the case was already rendered moot and academic by the sale of the property to
third party.
4. Whether or not the award of attorneys fees when the case was already moot and
academic [sic] legally justified.
5. Whether or not petitioner is liable for damage caused to others by typhoon Saling being an
act of God.
6. Whether or not the issuance of a writ of execution pending appeal, ex-parte or without
hearing, has support in law.
The pivot of inquiry here, determinative of the other issues, is whether the damage on the
roof of the building of private respondents resulting from the impact of the falling portions of the
school buildings roof ripped off by the strong winds of typhoon Saling, was, within legal
contemplation, due to fortuitous event? If so, petitioner cannot be held liable for the damages
suffered by the private respondents. This conclusion finds support in Article 1174 of the
Civil Code, which provides:
Art 1174. Except in cases expressly specified by the law, or when it is otherwise declared by
stipulation, or when the nature of the obligation requires the assumption of risk, no person shall
be responsible for those events which could not be foreseen, or which, though foreseen, were
inevitable.
The antecedent of fortuitous event or caso fortuito is found in the Partidas which defines it as
an event which takes place by accident and could not have been foreseen. [9] Escriche
elaborates it as an unexpected event or act of God which could neither be foreseen nor
resisted.[10]Civilist Arturo M. Tolentino adds that [f]ortuitous events may be produced by two
general causes: (1) by nature, such as earthquakes, storms, floods, epidemics, fires, etc.
and (2) by the act of man, such as an armed invasion, attack by bandits, governmental
prohibitions, robbery, etc.[11]
In order that a fortuitous event may exempt a person from liability, it is necessary that he be
free from any previous negligence or misconduct by reason of which the loss may have been
occasioned.[12] An act of God cannot be invoked for the protection of a person who has been
guilty of gross negligence in not trying to forestall its possible adverse consequences. When a
persons negligence concurs with an act of God in producing damage or injury to another, such
person is not exempt from liability by showing that the immediate or proximate cause of the
damage or injury was a fortuitous event. When the effect is found to be partly the result of the
participation of man whether it be from active intervention, or neglect, or failure to act the
whole occurrence is hereby humanized, and removed from the rules applicable to acts of God. [13]
In the case under consideration, the lower court accorded full credence to the finding of the
investigating team that subject school buildings roofing had no sufficient anchorage to hold it in
position especially when battered by strong winds. Based on such finding, the trial court
imputed negligence to petitioner and adjudged it liable for damages to private respondents.
After a thorough study and evaluation of the evidence on record, this Court believes
otherwise, notwithstanding the general rule that factual findings by the trial court, especially
when affirmed by the appellate court, are binding and conclusive upon this Court. [14] After a
careful scrutiny of the records and the pleadings submitted by the parties, we find exception to
this rule and hold that the lower courts misappreciated the evidence proffered.
There is no question that a typhoon or storm is a fortuitous event, a natural occurrence which
may be foreseen but is unavoidable despite any amount of foresight, diligence or care. [15] In order
to be exempt from liability arising from any adverse consequence engendered thereby, there
should have been no human participation amounting to a negligent act. [16] In other words, the

person seeking exoneration from liability must not be guilty of negligence. Negligence, as
commonly understood, is conduct which naturally or reasonably creates undue risk or harm to
others. It may be the failure to observe that degree of care, precaution, and vigilance which the
circumstances justly demand,[17] or the omission to do something which a prudent and
reasonable man, guided by considerations which ordinarily regulate the conduct of human
affairs, would do.[18]From these premises, we proceed to determine whether petitioner was
negligent, such that if it were not, the damage caused to private respondents house could have
been avoided?
At the outset, it bears emphasizing that a person claiming damages for the negligence of
another has the burden of proving the existence of fault or negligence causative of his injury or
loss. The facts constitutive of negligence must be affirmatively established by competent
evidence,[19] not merely by presumptions and conclusions without basis in fact. Private
respondents, in establishing the culpability of petitioner, merely relied on the aforementioned
report submitted by a team which made an ocular inspection of petitioners school building after
the typhoon. As the term imparts, an ocular inspection is one by means of actual sight or
viewing.[20] What is visual to the eye though, is not always reflective of the real cause behind. For
instance, one who hears a gunshot and then sees a wounded person, cannot always definitely
conclude that a third person shot the victim. It could have been self-inflicted or caused
accidentally by a stray bullet. The relationship of cause and effect must be clearly shown.
In the present case, other than the said ocular inspection, no investigation was conducted to
determine the real cause of the partial unroofing of petitioners school building. Private
respondents did not even show that the plans, specifications and design of said school building
were deficient and defective. Neither did they prove any substantial deviation from the
approved plans and specifications. Nor did they conclusively establish that the construction of
such building was basically flawed.[21]
On the other hand, petitioner elicited from one of the witnesses of private respondents, city
building official Jesus Reyna, that the original plans and design of petitioners school building
were approved prior to its construction. Engr. Reyna admitted that it was a legal requirement
before the construction of any building to obtain a permit from the city building official (city
engineer, prior to the passage of the Building Act of 1977). In like manner, after construction of
the building, a certification must be secured from the same official attesting to the readiness for
occupancy of the edifice. Having obtained both building permit and certificate of occupancy,
these are, at the very least, prima facie evidence of the regular and proper construction of
subject school building.[22]
Furthermore, when part of its roof needed repairs of the damage inflicted by typhoon
Saling, the same city official gave the go-signal for such repairs without any deviation from
the original design and subsequently, authorized the use of the entire fourth floor of the same
building. These only prove that subject building suffers from no structural defect, contrary to the
report that its U-shaped form was structurally defective. Having given his
unqualified imprimatur, the city building official is presumed to have properly performed his
duties[23] in connection therewith.
In addition, petitioner presented its vice president for finance and administration who
testified that an annual maintenance inspection and repair of subject school building were
regularly undertaken. Petitioner was even willing to present its maintenance supervisor to attest
to the extent of such regular inspection but private respondents agreed to dispense with his
testimony and simply stipulated that it would be corroborative of the vice presidents narration.
Moreover, the city building official, who has been in the city government service since 1974,
admitted in open court that no complaint regarding any defect on the same structure has ever
been lodged before his office prior to the institution of the case at bench. It is a matter of judicial
notice that typhoons are common occurrences in this country. If subject school buildings roofing
was not firmly anchored to its trusses, obviously, it could not have withstood long years and
several typhoons even stronger than Saling.

In light of the foregoing, we find no clear and convincing evidence to sustain the judgment of
the appellate court. We thus hold that petitioner has not been shown negligent or at fault
regarding the construction and maintenance of its school building in question and that typhoon
Salingwas the proximate cause of the damage suffered by private respondents house.
With this disposition on the pivotal issue, private respondents claim for actual and moral
damages as well as attorneys fees must fail. [24]Petitioner cannot be made to answer for a purely
fortuitous event.[25] More so because no bad faith or willful act to cause damage was alleged and
proven to warrant moral damages.
Private respondents failed to adduce adequate and competent proof of the pecuniary loss
they actually incurred.[26] It is not enough that the damage be capable of proof but must be
actually proved with a reasonable degree of certainty, pointing out specific facts that afford a
basis for measuring whatever compensatory damages are borne. [27] Private respondents merely
submitted an estimated amount needed for the repair of the roof of their subject building. What
is more, whether the necessary repairs were caused ONLY by petitioners alleged negligence in
the maintenance of its school building, or included the ordinary wear and tear of the house itself,
is an essential question that remains indeterminable.
The Court deems unnecessary to resolve the other issues posed by petitioner.
As regards the sixth issue, however, the writ of execution issued on April 1, 1993 by the trial
court is hereby nullified and set aside. Private respondents are ordered to reimburse any amount
or return to petitioner any property which they may have received by virtue of the enforcement
of said writ.
WHEREFORE, the petition is GRANTED and the challenged Decision is REVERSED. The
complaint of private respondents in Civil Case No. 7314 before the trial court a quo is ordered
DISMISSED and the writ of execution issued on April 1, 1993 in said case is SET
ASIDE. Accordingly, private respondents are ORDERED to return to petitioner any amount or
property received by them by virtue of said writ. Costs against the private respondents.SO
ORDERED.