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G.R. No. 96781 October 1, 1993

EMILIANO MANUEL and SUPERLINES TRANSPORTATION O., IN., petitioners,vs.!ONORA"LE OURT O# APPEALS, ERNESTO A. RAMOS $%b$t&t%ted b' Go'ena(. Ra)o$, Grace, *a+&d, obet, Port&a and "an-o, a $%rna)ed RAMOS/ andGO0ENA (ANAROSARAMOS, 2or er$e2 and a$ G%ard&anAd Litem 2or te)&nor$ O"ET, "ANO, *A4I* and GRAE, a $%rna)ed RAMOS/ #ERNAN*OA"E*E, SR., 2or &)$e2 and a$ G%ard&anAd Litem2or )&nor #ERNAN*O G.A"E*E, R./ MIGUEL ERN( MAGO, a$ G%ard&anAd Litem 2or )&nor ARLEEN R.MAGO, and ANALETA . (ANAROSA, respondents.

Benito P. Fabie for petitioners.

Constante Banayos for private respondents.

5UIASON, J.:

This is an appeal by certiorariunder Rule 45 of the Revised Rules of Court from the

decision of the Court of Appeals in CA-G.R. CV o. !!"#$, and its Resolution dated%anuary #, !&&!, denyin' petitioner(s motion for reconsideration. The decision sub)ect ofthe appeal *as an affirmation of the )ud'ement of the Court of +irst nstance ofCamarines orte, in Civil Case o. $$ and *hose dispositive portion states/

0R12313 C31R1, )ud'ment is hereby rendered / 6!7 findin' thedefendant 1miliano 2anuel ne'li'ent, rec8less and imprudent in the operation of3uperlines 9us o. 4$:, *hich *as the pro;imate cause of the in)uries sufferedby the plaintiffs and dama'e of the 3cout Car in *hich they *ere ridin'< 67orderin' the said defendant, )ointly and solidarily, *ith the defendant 3uperlines9us Co., nc. to pay plaintiffs the amounts of 04&,&54,#:, as itemi=ed else*herein this decision and the costs.

t appearin' that the defendants 3uperlines Transportation Co., nc. is insured*ith the defendant 0erla Compania de 3e'uros, *hich has admitted suchinsurance, the latter is hereby ordered to pay the former the amounts so statedup to the e;tent of its insurance covera'e> 6Rollo, pp. "$-"!7.

The operative facts culled from the decision of the Court of Appeals are as follo*s/

0rivate respondents *ere passen'ers of an nternational ?arvester 3cout Car 63coutCar7 o*ned by respondent Ramos, *hich left 2anila for Camarines orte in themornin' of ecember ", !&"" *ith respondent +ernando Abcede, 3r. as the driver ofthe vehicle.

There *as a dri==le at about 4/!$ 0.2. *hen the 3cout car, *hich *as ne'otiatin' the=i'=a' road of 9o. 0araiso, 3ta. 1lena, Camarines orte, *as hit on its left side by abus. The bus *as o*ned by petitioner 1miliano 2anuel. ue to the impact, the 3coutcar *as thro*n bac8*ards a'ainst a protective railin'. @ere it not for the railin', the3cout car *ould have fallen into a deep ravine. All its ten occupants, *hich included fourchildren *ere in)ured, seven of the victims sustained serious physical in)uries 6 Rollo, p.#7.

1miliano 2anuel, the driver of the bus, *as prosecuted for multiple physical in)uries


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throu'h rec8less imprudence in the 2unicipal Court of 3ta. 1lena, Camarines orte. Ashe could not be found after he ceased reportin' for *or8 a fe* days follo*in' theincident, the private respondents filed the instant action for dama'es based on quasi-delict.

After trial, the court a quo rendered )ud'ment a'ainst petitioners and 0erla Compania

de 3e'uros, that covered the insurance of the bus. The court ordered them to pay,)ointly and severally, the amount of 04&,&54.#: in dama'es to respondents.

n appeal, the Court of Appeals, affirmed the decision of the trial court.

n their appeal before us, petitioners contend that it *as +ernando Abcede, %r., driver ofthe 3cout car, *ho *as at fault. 9esides, petitioners claim the +ernando Abcede, %r.,*ho *as only !&-years old at the time of the incident, did not have a driver(s license6Rollo, p. !$7.

0roof of this, accordin' to petitioners, *as that/

mmediately after the incident, the bus conductor Cesar 0ica and passen'ers,includin' 2a;imino %aro, ali'hted from the bus. A *oman passen'er of the ?3cout car, 2rs. Ramos, *as heard sayin'/ >yan na n'a ba an' sinasabi 8o,napa8ala8as n' loob,> referrin' to youn' man, +ernando Abcede, %r. *ho *asthe driver of the ? 3cout car 6tsn., p. 4, ovember !&, !&"&< tsn, p. -A.+ebruary ", !$7 . . . 6Rollo, p. "57.

i8e*ise, petitioner Buestioned the accuracy of the pictures and s8etches submitted byprivate respondents as evidence that the 3uperlines bus encroached on the lane of the3cout car. Accordin' to them, the s8etch made by the police investi'ator sho*in' thes8id mar8s of the bus, is inadmissible as evidence because it *as prepared the dayafter the incident and the alle'ed >tell-tale> s8id mar8s and other details had alreadybeen obliterated by the heavy do*npour *hich lasted for at least an hour after the

accident 6Rollo, p. #"7. i8e*ise, they claim that the policeman *ho prepared the s8etch*as not the police officer assi'ned to conduct the investi'ation 6Rollo, pp. ##-#&7.

@hile it may be accepted that some of the s8id mar8s may have been erased by the>heavy do*npour> on or about the time of the accident, it remains a possibility that notall s8id mar8s *ere *ashed a*ay. The stron' presumption of re'ularity in theperformance of official duty 6Rule !!, 3ec. 6m7, !& Rules on 1vidence7 erases, inthe absence of evidence to the contrary, any suspicions that the police investi'ator )ustinvented the s8id mar8s indicated in his report.

Grantin', ho*ever, that the s8id mar8s in the Buestioned s8etch *ere inaccurate,nonetheless, the findin' of the Court of Appeals that the collision too8 place *ithin thelane of the 3cout car *as supported by other conclusive evidence. >ndeed, a trail ofbro8en 'lass *hich *as scattered alon' the car(s side of the road, *hereas the bus lane*as entirely clear of debris 61;hibit >-!,> p. 4, Records, pp. 5:-:5< T3, 3ession of2arch !4, !&"&7> 6Rollo, p. !7.

+urthermore, the fact that the 3cout car *as found after the impact at rest a'ainst the'uard railin' sho*s that it must have been hit and thro*n bac8*ards by the bus 6 Rollo,p. !$7. The physical evidence do not sho* that the 3uperlines 9us *hile travelin' athi'h speed, usurped a portion of the lane occupied by the 3cout car before hittin' it on


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its left side. n collision, the impact due to the force e;erted by a heavier and bi''erpassen'er bus on the smaller and li'hter 3cout car, heavily dama'ed the latter andthre* it a'ainst the 'uard railin'.

0etitioner(s contention that the 3cout car must have been moved bac8*ards is not onlya speculation but is contrary to human e;perience. There *as no reason to move it

bac8*ards a'ainst the 'uard railin'. f the purpose *as to clear the road, all that *asdone *as to leave it *here it *as at the time of the collision, *hich *as *ell inside itsassi'ned lane. 9esides, even petitioners accept the fact that *hen the police arrived atthe scene of the accident, they found no one thereat 6 Rollo, p. !7. This further *ea8ensthe possibility that some persons moved the 3cout car to rest on the 'uard railin'.

The evidence *ith respect to the issue that +ernando Abcede, %r. *ho *as not dulylicensed, *as the one drivin' the 3cout car at the time of the accident, could not simplye;empt petitioner(s liability because they *ere parties at fault for encroachin' on the3cout car(s lane 6Rollo, pp. &-$7.

evertheless, the *itnesses presented by petitioners *ho alle'edly sa* >the youn'er

Abcede pined behind the driver(s *heels,> testified on matters that transpired after theaccident. iscreditin' this alle'ation, the Court of Appeals noted that none of theaforesaid *itnesses actually sa* the youn'er Abcede drivin' the car and that theyoun'er Abcede could have simply been thro*n off his seat to*ard the steerin' *heel6Rollo, p. &7.

9e that as it may, this Court has follo*ed a *ell-entrenched principle that the factualfindin's of the Court of Appeals are normally 'iven 'reat *ei'ht, more so *hen thefindin's tally *ith the findin's of the trial court and are supported by the evidence6+rancisco v. 2a'bitan', !" 3CRA # !&D< e* *nersE2ana'ement of T2Garments, nc. v. Fara'osa, !"$ 3CRA 5:-5:4 !&D7.

The reason for this entrenched principle is 'iven in Chemplex (Phils.) !nc. et al. v.Ramon C.Pamatian et al.5" 3CRA 4$# !&"4D, thus/

This Court is not a trier of facts, and it is beyond its function to ma8e its o*nfindin's of certain vital facts different from those of the trial court, especially onthe basis of the conflictin' claims of the parties and *ithout the evidence bein'properly before it. +or this Court to ma8e such factual conclusions is entirelyun)ustified first, because if material facts are controverted, as in this case, andthey are issues bein' liti'ated before the lo*er court, the petition for certiorari*ould not be in aid of the appellate )urisdiction of this Court< and, secondly,because it preempts the primary function of the lo*er court, namely, to try thecase on the merits, receive all the evidence to presented by the parties, and only

then come to a definite decision, includin' either the maintenance or thedischar'e of the preliminary in)unction it has issued.

Appellants, li8e*ise, contested the a*arded dama'es as e;cessive andunsubstantiated. The trial court(s findin's sho* other*ise, as can be 'leaned from thefollo*in' e;cerpt of this decision/

0laintiffs *ere able to prove their in)uries and submitted evidence to sho*e;penses for their treatment, hospitali=ation and incidental disbursement 61;hs.

AA to ?? and their submar8in's7, havin' a total amount of 0!,$4.#: *hich had


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admittedly 6sic7 shouldered by plaintiff 1rnesto Ramos. Considerin' the nature ofthe in)uries as sho*n by the respective 2edical Certificates 61;hs. A to % andtheir submar8in's7 said amount is very reasonable. t *as also sho*n that the3cout car is a total *rec8, the value of *hich *as estimated to be 0$,$$$.$$*hich may be the same amount to put 6sic7 into a runnin' condition. @e

consider, li8e*ise said amount reasonable ta8in' into account its brand6nternational ?arvester 3cout car7. The above mentioned dama'es areconsidered actual or compensatory 60ar. ! Art. !&" in relation to Art. !&&, e*Civil Code7. 1vidence *as also adduced sho*in' that as a result of the incidentand the resultant in)uries there had been an impairment on the earnin' capacityof some of the plaintiffs 6+ernando Abcede, 3r., Anacleta Fanarosa, 1rnestoRamos and Goyena Ramos7 *hich are recoverable pursuant to Article $5 ofthe e* Civil Code. Considerin' the nature of their in)uries one month each lossof income seem reasonable. Attorney(s fees and e;penses of liti'ation is alsoproper. 3ince the act complained of falls under the ae'is of quasi-delict 6culpa

aquilina7, moral dama'es is li8e*ise available to plaintiffs pursuant to

Article !& also of the e* Civil Code 6Rollo, pp. !!-!!47.n addition, moral dama'es may be recovered if they are the pro;imate results ofdefendant(s *ron'ful acts or omission as in this case 69anson vs. CA, !"5 3CRA &"!&D7.

@?1R1+R1, the petition is 11 and the ecision of the Court of Appeals isA++R21, *ith costs a'ainst petitioners.

3 R1R1.

G.R. No. 1979 *ece)ber 1, 1999

ARO MARETING ORPORATION, LEONAR*O ONG, OSE TIOPE and ELISAPANELO, petitioners,vs.!ONORA"LE OURT O# APPEALS, ONRA*O . AGUILAR and RISEL*A R.AGUILAR, respondents.

*A4I*E, R., J.:

n this petition for revie* on certiorariunder Rule 45 of the Rules of Court, petitionerssee8 the reversal of the !" %une !&&: decision 1of the Court of Appeals in C.A. G.R. o. CV"&" and the resolution denyin' their motion for reconsideration. The assailed decision set aside the!5 %anuary !&& )ud'ment of the Re'ional Trial Court 6RTC7, 2a8ati City, 9ranch :$ in Civil Case o."!!& and ordered petitioners to pay dama'es and attorney(s fees to private respondents Conrado andCriselda 6CR31A7 A'uilar.

0etitioner %arco 2ar8etin' Corporation is the o*ner of 3yvel(s epartment 3tore, 2a8ati City. 0etitionerseonardo Hon', %ose Tiope and 1lisa 0anelo are the store(s branch mana'er, operations mana'er, andsupervisor, respectively. 0rivate respondents are spouses and the parents of Fhieneth A'uilar6F?11T?7.

n the afternoon of & 2ay !, CR31A and F?11T? *ere at the nd floor of 3yvel(s epartment3tore, 2a8ati City. CR31A *as si'nin' her credit card slip at the payment and verification counter*hen she felt a sudden 'ust of *ind and heard a loud thud. 3he loo8ed behind her. 3he then beheld herdau'hter F?11T? on the floor, her youn' body pinned by the bul8 of the store(s 'ift-*rappin'counterEstructure. F?11T? *as cryin' and screamin' for help. Althou'h shoc8ed, CR31A *asBuic8 to as8 the assistance of the people around in liftin' the counter and retrievin' F?11T? from the


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floor. 3

F?11T? *as Buic8ly rushed to the 2a8ati 2edical Center *here she *as operated on. The ne;t dayF?11T? lost her speech and thereafter communicated *ith CR31A by *ritin' on a ma'ic slate.The in)uries she sustained too8 their toil on her youn' body. 3he died fourteen 6!47 days after theaccident or on 2ay !, on the hospital bed. 3he *as si; years old.

The cause of her death *as attributed to the in)uries she sustained. The provisional medical certificate

issued by F?11T?(s attendin' doctor described the e;tent of her in)uries/

ia'noses/

!. 3hoc8, severe, sec. to intra-abdominal in)uries due to blunt in)ury

. ?emorrha'e, massive, intraperitoneal sec. to laceration, 67 lobe liver

. Rupture, stomach, anterior I posterior *alls

4. Complete transection, 4th position, duodenum

5. ?ematoma, e;tensive, retroperitoneal

:. Contusion, lun's, severe

CRTCA

After the burial of their dau'hter, private respondents demanded upon petitioners the reimbursement ofthe hospitali=ation, medical bills and *a8e and funeral e;penses 6*hich they had incurred. 0etitionersrefused to pay. ConseBuently, private respondents filed a complaint for dama'es, doc8eted as Civil Caseo. "!!& *herein they sou'ht the payment of 0!5",5.#: for actual dama'es, 0$$,$$$ for moraldama'es, 0$,$$$ for attorney(s fees and an unspecified amount for loss of income and e;emplarydama'es.

n their ans*er *ith counterclaim, petitioners denied any liability for the in)uries and conseBuent death ofF?11T?. They claimed that CR31A *as ne'li'ent in e;ercisin' care and dili'ence over herdau'hter by allo*in' her to freely roam around in a store filled *ith 'lass*are and appliances. F?11T?too, *as 'uilty of contributory ne'li'ence since she climbed the counter, tri''erin' its eventual collapseon her. 0etitioners also emphasi=ed that the counter *as made of sturdy *ood *ith a stron' support< itnever fell nor collapsed for the past fifteen years since its construction.

Additionally, petitioner %arco 2ar8etin' Corporation maintained that it observed the dili'ence of a 'oodfather of a family in the selection, supervision and control of its employees. The other petitioners li8e*iseraised due care and dili'ence in the performance of their duties and countered that the complaint *asmalicious for *hich they suffered besmirched reputation and mental an'uish. They sou'ht the dismissalof the complaint and an a*ard of moral and e;emplary dama'es and attorney(s fees in their favor.

n its decision 7 the trial court dismissed the complaint and counterclaim after findin' that thepreponderance of the evidence favored petitioners. t ruled that the pro;imate cause of the fall of thecounter on F?11T? *as her act of clin'in' to it. t believed petitioners( *itnesses *ho testified thatF?11T? clun' to the counter, after*hich the structure and the 'irl fell *ith the structure fallin' on top ofher, pinnin' her stomach. n contrast, none of private respondents( *itnesses testified on ho* the counterfell. The trial court also held that CR31A(s ne'li'ence contributed to F?11T?(s accident.

n absolvin' petitioners from any liability, the trial court reasoned that the counter *as situated at the endor corner of the nd floor as a precautionary measure hence, it could not be considered as an attractive

nuisance. 8 The counter *as hi'her than F?11T?. t has been in e;istence for fifteen years. tsstructure *as safe and *ell-balanced. F?11T?, therefore, had no business climbin' on and clin'in' toit.

0rivate respondents appealed the decision, attributin' as errors of the trial court its findin's that/ 6!7 thepro;imate cause of the fall of the counter *as F?11T?(s misbehavior< 67 CR31A *as ne'li'ent inher care of F?11T?< 67 petitioners *ere not ne'li'ent in the maintenance of the counter< and 647petitioners *ere not liable for the death of F?11T?.

+urther, private respondents asserted that F?11T? should be entitled to the conclusive presumption


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that a child belo* nine 6&7 years is incapable of contributory ne'li'ence. And even if F?11T?, at si; 6:7years old, *as already capable of contributory ne'li'ence, still it *as physically impossible for her to havepropped herself on the counter. 3he had a small frame 6four feet hi'h and seventy pounds7 and thecounter *as much hi'her and heavier than she *as. Also, the testimony of one of the store(s formeremployees, Gerardo Gon=ales, *ho accompanied F?11T? *hen she *as brou'ht to the emer'encyroom of the 2a8ati 2edical Center belied petitioners( theory that F?11T? climbed the counter.Gon=ales claimed that *hen F?11T? *as as8ed by the doctor *hat she did, F?11T? replied,>Dothin', did not come near the counter and the counter )ust fell on me.> 9Accordin'ly, Gon=ales(testimony on F?11T?(s spontaneous declaration should not only be considered as part of res "estaebut also accorded credit.

2oreover, ne'li'ence could not be imputed to CR31A for it *as reasonable for her to have let 'o ofF?11T? at the precise moment that she *as si'nin' the credit card slip.

+inally, private respondents vi'orously maintained that the pro;imate cause of F?11T?(s death, *aspetitioners( ne'li'ence in failin' to institute measures to have the counter permanently nailed.

n the other hand, petitioners ar'ued that private respondents raised purely factual issues *hich couldno lon'er be disturbed. They e;plained that F?11T?(s death *hile unfortunate and tra'ic, *as anaccident for *hich neither CR31A nor even F?11T? could entirely be held faultless and blameless.+urther, petitioners adverted to the trial court(s re)ection of Gon=ales( testimony as un*orthy of credence.

As to private respondent(s claim that the counter should have been nailed to the 'round, petitioners)ustified that it *as not necessary. The counter had been in e;istence for several years *ithout any prioraccident and *as deliberately placed at a corner to avoid such accidents. Truth to tell, they acted *ithoutfault or ne'li'ence for they had e;ercised due dili'ence on the matter. n fact, the criminal case 1: forhomicide throu'h simple ne'li'ence filed by private respondents a'ainst the individual petitioners *asdismissed< a verdict of acBuittal *as rendered in their favor.

The Court of Appeals, ho*ever, decided in favor of private respondents and reversed the appealed)ud'ment. t found that petitioners *ere ne'li'ent in maintainin' a structurally dan'erous counter. Thecounter *as shaped li8e an inverted >> 11*ith a top *ider than the base. t *as top heavy and the *ei'htof the upper portion *as neither evenly distributed nor supported by its narro* base. Thus, the counter*as defective, unstable and dan'erous< a do*n*ard pressure on the overhan'in' portion or a push fromthe front could cause the counter to fall. T*o former employees of petitioners had already previouslybrou'ht to the attention of the mana'ement the dan'er the counter could cause. 9ut the latter i'nored

their concern. The Court of Appeals faulted the petitioners for this omission, and concluded that theincident that befell F?11T? could have been avoided had petitioners repaired the defective counter. t*as inconseBuential that the counter had been in use for some time *ithout a prior incident.

The Court of Appeals declared that F?11T?, *ho *as belo* seven 6"7 years old at the time of theincident, *as absolutely incapable of ne'li'ence or other tort. t reasoned that since a child under nine 6&7years could not be held liable even for an intentional *ron', then the si;-year old F?11T? could not bemade to account for a mere mischief or rec8less act. t also absolved CR31A of any ne'li'ence,findin' nothin' *ron' or out of the ordinary in momentarily allo*in' F?11T? to *al8 *hile she si'nedthe document at the nearby counter.

The Court of Appeals also re)ected the testimonies of the *itnesses of petitioners. t found them biasedand pre)udiced. t instead 'ave credit to the testimony of disinterested *itness Gon=ales. The Court of

Appeals then a*arded 0&&,4$.#: as actual dama'es, the amount representin' the hospitali=ation

e;penses incurred by private respondents as evidenced by the hospital(s statement of account.1

tdenied an a*ard for funeral e;penses for lac8 of proof to substantiate the same. nstead, a compensatorydama'e of 05$,$$$ *as a*arded for the death of F?11T?.

@e Buote the dispositive portion of the assailed decision, 13thus/

@?1R1+R1, premises considered, the )ud'ment of the lo*er court is 31T A31 and anotherone is entered a'ainst petitionersD, orderin' them to pay )ointly and severally unto privaterespondentsD the follo*in'/

!. 05$,$$$.$$ by *ay of compensatory dama'es for the death of FhienethA'uilar, *ith le'al interest 6:J p.a.7 from " April !


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. 0&&,4$.#: as reimbursement for hospitali=ation e;penses incurred< *ith le'alinterest 6:J p.a.7 from " April !that she did nothin' to cause the heavy structureto fall on her> should be considered as the correct version of the 'ruesome events.

@e deny the petition.

The t*o issues to be resolved are/ 6!7 *hether the death of F?11T? *as accidental or attributable tone'li'ence< and 67 in case of a findin' of ne'li'ence, *hether the same *as attributable to private

respondents for maintainin' a defective counter or to CR31A and F?11T? for failin' to e;ercisedue and reasonable care *hile inside the store premises.

An accident pertains to an unforeseen event in *hich no fault or ne'li'ence attaches to the defendant. 1

t is >a fortuitous circumstance, event or happenin'< an event happenin' *ithout any human a'ency, or ifhappenin' *holly or partly throu'h human a'ency, an event *hich under the circumstances is unusual orune;pected by the person to *hom it happens.> 16

n the other hand, ne'li'ence is the omission to do somethin' *hich a reasonable man, 'uided by thoseconsiderations *hich ordinarily re'ulate the conduct of human affairs, *ould do, or the doin' of somethin'*hich a prudent and reasonable man *ould not do. 17e'li'ence is >the failure to observe, for theprotection of the interest of another person, that de'ree of care, precaution and vi'ilance *hich thecircumstances )ustly demand, *hereby such other person suffers in)ury.> 18

Accident and ne'li'ence are intrinsically contradictory< one cannot e;ist *ith the other. Accident occurs

*hen the person concerned is e;ercisin' ordinary care, *hich is not caused by fault of any person and*hich could not have been prevented by any means su''ested by common prudence. 19

The test in determinin' the e;istence of ne'li'ence is enunciated in the landmar8 case of Plicart v. #mith,:thus/ id the defendant in doin' the alle'ed ne'li'ent act use that reasonable care and caution *hichan ordinarily prudent person *ould have used in the same situationL f not, then he is 'uilty of ne'li'ence.1

@e rule that the tra'edy *hich befell F?11T? *as no accident and that F?11T?(s death could onlybe attributed to ne'li'ence.


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@e Buote the testimony of Gerardo Gon=ales *ho *as at the scene of the incident and accompaniedCR31A and F?11T? to the hospital/

M @hile at the 2a8ati 2edical Center, did you hear or notice anythin' *hile the child *asbein' treatedL

A At the emer'ency room *e *ere all surroundin' the child. And *hen the doctor as8edthe child >*hat did you do,> the child said >nothin', did not come near the counter andthe counter )ust fell on me.>

M 6CKRT T ATTN. 91TRA7

Nou *ant the *ords in Ta'alo' to be translatedL

ATTN. 91TRA

Nes, your ?onor.

CKRT

Granted. ntercalate >*ala po, hindi po a8o lumapit doon. 9asta buma'sa8.>

This testimony of Gon=ales pertainin' to F?11T?(s statement formed 6and should be admitted as7 part of the res"estaeunder 3ection 4, Rule !$ of the Rules of Court, thus/

0art of res "estae. 3tatements made by a person *hile a startlin' occurrence is ta8in' place or immediately

prior or subseBuent thereto *ith respect to the circumstances thereof, may be 'iven in evidence as part ofthe res "estae. 3o, also, statements accompanyin' an eBuivocal act material to the issue, and 'ivin' it ale'al si'nificance, may be received as part of the res "estae.

t is a;iomatic that matters relatin' to declarations of pain or sufferin' and statements made to a physician are'enerally considered declarations and admissions. 3All that is reBuired for their admissibility as part of the res"estaeis that they be made or uttered under the influence of a startlin' event before the declarant hadthe time to thin8 and concoct a falsehood as *itnessed by the person *ho testified in court. Knder thecircumstances thus described, it is unthin8able for F?11T?, a child of such tender a'e and in e;tremepain, to have lied to a doctor *hom she trusted *ith her life. @e therefore accord credence to Gon=ales(testimony on the matter, i.e., F?11T? performed no act that facilitated her tra'ic death. 3adly,petitioners did, throu'h their ne'li'ence or omission to secure or ma8e stable the counter(s base.

Gon=ales( earlier testimony on petitioners( insistence to 8eep and maintain the structurally unstable 'ift-*rappin' counter proved their ne'li'ence, thus/

M @hen you assumed the position as 'ift *rapper at the second floor, *ill you pleasedescribe the 'ift *rappin' counter, *ere you able to e;amineL

A 9ecause every mornin' before start *or8in' used to clean that counter and since notnailed and it *as only standin' on the floor, it *as sha8y.

;;; ;;; ;;;

M @ill you please describe the counter at 5/$$ o(cloc8 sicD in the afternoon on sicD 2ay &!L

A At that hour on 2ay &, !, that counter *as standin' beside the verification counter.And since the top of it *as heavy and considerin' that it *as not nailed, it can collapse atanytime, since the top is heavy.

;;; ;;; ;;;M And *hat did you doL

A informed 2r. 2aat about that counter *hich is sicD sha8y and since 2r. 2aat is fondof puttin' display decorations on tables, he even told me that *ould put somedecorations. 9ut since told him that it not sicD nailed and it is sha8y he told me >betterinform also the company about it.> And since the company did not do anythin' about thecounter, so also did not do anythin' about the counter. 1mphasis suppliedD

Ramon Guevarra, another former employee, corroborated the testimony of Gon=ales, thus/


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M @ill you please described sicD to the honorable Court the counter *here you *ereassi'ned in %anuary !L

;;; ;;; ;;;

A That counter assi'ned to me *as *hen my supervisor ordered me to carry that counterto another place. told him that the counter needs nailin' and it has to be nailed becauseit mi'ht cause in)ury or accident to another since it *as sha8y.

M @hen that 'ift *rappin' counter *as transferred at the second floor on +ebruary !,!, *ill you please describe that to the honorable CourtL

A told her that the counter *rapper sicD is really in 'ood sicD condition< it *as sha8y. told her that *e had to nail it.

M @hen you said she, to *hom are you referrin' to sicDL

A am referrin' to 2s. 0anelo, sir.

M And *hat *as the ans*er of 2s. 0anelo *hen you told her that the counter *assha8yL

A 3he told me >@hy do you have to teach me. Nou are only my subordinate and you areto teach meL> And she even 'ot an'ry at me *hen told her that.

;;; ;;; ;;;

M +rom +ebruary !, ! up to 2ay &, !, *hat if any, did 2s. 0anelo or anyemployee of the mana'ement do to that 6sic7

;;; ;;; ;;;

@itness/

one, sir. They never nailed the counter. $hey only nailed the counter after the accidenthappened. 1mphasis suppliedD

@ithout doubt, petitioner 0anelo and another store supervisor *ere personally informed of the dan'erposed by the unstable counter. Net, neither initiated any concrete action to remedy the situation norensure the safety of the store(s employees and patrons as a reasonable and ordinary prudent man *ouldhave done. Thus, as confronted by the situation petitioners miserably failed to dischar'e the due dili'ence

reBuired of a 'ood father of a family.n the issue of the credibility of Gon=ales and Guevarra, petitioners failed to establish that the former(stestimonies *ere biased and tainted *ith partiality. Therefore, the alle'ation that Gon=ales andGuevarra(s testimonies *ere blemished by >ill feelin's> a'ainst petitioners since they 6Gon=ales andGuevarra7 *ere already separated from the company at the time their testimonies *ere offered in court *as but mere speculation and deserved scant consideration.

t is settled that *hen the issue concerns the credibility of *itnesses, the appellate courts *ill not as a'eneral rule disturb the findin's of the trial court, *hich is in a better position to determine the same. Thetrial court has the distinct advanta'e of actually hearin' the testimony of and observin' the deportment ofthe *itnesses. 6?o*ever, the rule admits of e;ceptions such as *hen its evaluation *as reachedarbitrarily or it overloo8ed or failed to appreciate some facts or circumstances of *ei'ht and substance*hich could affect the result of the case. 7n the instant case, petitioners failed to brin' their claim *ithin

the e;ception.Anent the ne'li'ence imputed to F?11T?, *e apply the conclusive presumption that favors childrenbelo* nine 6&7 years old in that they are incapable of contributory ne'li'ence. n his boo8, 8former %ud'eCe=ar 3. 3an'co stated/

n our )urisdiction, a person under nine years of a'e is conclusively presumed to have acted*ithout discernment, and is, on that account, e;empt from criminal liability. The samepresumption and a li8e e;emption from criminal liability obtains in a case of a person over nineand under fifteen years of a'e, unless it is sho*n that he has acted *ith discernment. 3incene'li'ence may be a felony and a quasi-delictand reBuired discernment as a condition of liability,


10/34

either criminal or civil, a child under nine years of a'e is, by analo'y, conclusively presumed to beincapable of ne'li'ence< and that the presumption of lac8 of discernment or incapacity forne'li'ence in the case of a child over nine but under fifteen years of a'e is a rebuttable one,under our la*. The rule, therefore, is that a child under nine years of a'e must be conclusivelypresumed incapable of contributory ne'li'ence as a matter of la*. 1mphasis suppliedD

1ven if *e attribute contributory ne'li'ence to F?11T? and assume that she climbed over the counter,

no in)ury should have occurred if *e accept petitioners( theory that the counter *as stable and sturdy. +orif that *as the truth, a frail si;-year old could not have caused the counter to collapse. The physicalanalysis of the counter by both the trial court and Court of Appeals and a scrutiny of the evidence 9onrecord reveal other*ise, i.e., it *as not durable after all. 3haped li8e an inverted >,> the counter *asheavy, hu'e, and its top laden *ith formica. t protruded to*ards the customer *aitin' area and its base*as not secured. 3:

CR31A too, should be absolved from any contributory ne'li'ence. nitially, F?11T? held on toCR31A(s *aist, later to the latter(s hand. 31CR31A momentarily released the child(s hand from herclutch *hen she si'ned her credit card slip. At this precise moment, it *as reasonable and usual forCR31A to let 'o of her child. +urther, at the time F?11T? *as pinned do*n by the counter, she*as )ust a foot a*ay from her mother< and the 'ift-*rappin' counter *as )ust four meters a*ay fromCR31A. 3The time and distance *ere both si'nificant. F?11T? *as near her mother and did notloiter as petitioners *ould *ant to impress upon us. 3he even admitted to the doctor *ho treated her at

the hospital that she did not do anythin'< the counter )ust fell on her.

@?1R1+R1, in vie* of all the fore'oin', the instant petition is 11 and the challen'ed decision ofthe Court of Appeals of !" %une !&&: in C.A. G.R. o. CV "&" is hereby A++R21.

Costs a'ainst petitioners.

3 R1R1.

Puno %apunan Pardo and &nares-#antia"o ''. concur.

G.R. No. 8988: #ebr%ar' 6, 1991

EMMA A*RIANO "USTAMANTE, &n er o;n bea2 a$ G%ard&anAdL&te) o2)&nor$< ROSSEL, GLORIA, 0OLAN*A, ERI SON and E*ERI, a $%rna)ed"USTAMANTE, S=o%$e$ SAL4A*OR OSON and PATRIA "ONEOSON,

S=o%$e$ OSE RAMOS and ENRI5UETA E"URAMOS, S=o%$e$ NARISO!IMA0A and A*ORAION MAR5UE(!IMA0A, and S=o%$e$ OSE "ERSAMINAand MA. OMMEMORAION PEREA"USTAMANTE, petitioners,vs.T!E !ONORA"LE OURT O# APPEALS, #E*ERIO *EL PILAR AN* E*IL"ERTOMONTESIANO, respondents.

olorfino and omin"ue *a+ ,ffices for petitioners.

'.C. Baldo ssociates for private respondents.

ME*IAL*EA, J.:p

This is a petition for revie* on certiorarisee8in' the reversal of the decision of the respondent Court of Appeals dated+ebruary !5, !& *hich reversed and set aside the decision of the Re'ional Trial Court of Cavite, 9ranch OVorderin' the defendants to pay )ointly and severally the plaintiffs indemnity for death and dama'es< and in furtherdismissin' the complaint insofar as defendants-appellants +ederico del 0ilar and 1dilberto 2ontesiano areconcerned< and its resolution dated Au'ust !", !& denyin' the motion for reconsideration for lac8 of merit.

The facts 'ivin' rise to the controversy at bar are recounted by the trial court as follo*s/

At about :/$ in the mornin' of April $, !, a collision occurred bet*een a 'ravel and sand truc8, *ith0late o. A0 "!", and a 2a=da passen'er bus *ith 2otor o. N! and 0late o. VT 5& alon' thenational road at Calibuyo, Tan=a, Cavite. The front left side portion 6barandilla7 of the body of the truc8sides*iped the left side *all of the passen'er bus, rippin' off the said *all from the driver(s seat to the last


11/34

rear seat.

ue to the impact, several passen'ers of the bus *ere thro*n out and died as a result of the in)uries theysustained, Amon' those 8illed *ere the follo*in'/

!. Ro'elio 9ustamante, 4$, husband of plaintiff 1mma Adriano 9ustamante and father of plaintiffs Rossel,Gloria, Nolanda, 1ricson, and 1deric, all surnamed 9ustamante 6Rollo, p&:7

The respondent Court Buotin' 0eople v. Vender, CA-G.R. !!!!4-4!-CR, Au'ust #, !&"5 held that >@e are notprepared to uphold the trial court(s findin' that the truc8 *as runnin' fast before the impact. The national road, fromits direction, *as descendin'. Courts can ta8e )udicial notice of the fact that a motor vehicle 'oin' do*n ordescendin' is more liable to 'et out of control than one that is 'oin' up or ascendin' for the simple reason that theone *hich is 'oin' do*n 'ains added momentum *hile that *hich is 'oin' up loses its initial speedin' in so doin'.>

n the other hand, the trial court found and @e are convinced that the car'o truc8 *as runnin' fast. t did notoverloo8 the fact that the road *as descendin' as in fact it mentioned this circumstance as one of the factorsdisre'arded by the car'o truc8 driver alon' *ith the fact that he *as drivin' an old !&4" car'o truc8 *hose front*heels are already *i''lin' and the fact that there is a passen'er bus approachin' it. n holdin' that the driver of thecar'o truc8 *as ne'li'ent, the trial court certainly too8 into account all these factors so it *as incorrect for therespondent court to disturb the factual findin's of the trial court, *hich is in a better position to decide the Buestion,havin' heard the *itness themselves and observed their deportment.

The respondent court adopted the doctrine of >last clear chance.> The doctrine, stated broadly, is that the ne'li'enceof the plaintiff does not preclude a recovery for the ne'li'ence of the defendant *here it appears that the defendant,by e;ercisin' reasonable care and prudence, mi'ht have avoided in)urious conseBuences to the plaintiffnot*ithstandin' the plaintiff(s ne'li'ence. n other *ords, the doctrine of last clear chance means that even thou'h aperson(s o*n acts may have placed him in a position of peril, and an in)ury results, the in)ured person is entitled torecovery. As the doctrine is usually stated, a person *ho has the last clear chance or opportunity of avoidin' anaccident, not*ithstandin' the ne'li'ent acts of his opponent or that of a third person imputed to the opponent isconsidered in la* solely responsible for the conseBuences of the accident. 63an'co, $orts and ama"es4th 1d.,!:, p. !:57.

The practical import of the doctrine is that a ne'li'ent defendant is held liable to a ne'li'ent plaintiff, or even to aplaintiff *ho has been 'rossly ne'li'ent in placin' himself in peril, if he, a*are of the plaintiffs peril, or accordin' tosome authorities, should have been a*are of it in the reasonable e;ercise of due case, had in fact an opportunitylater than that of the plaintiff to avoid an accident 65" Am. %ur., d, pp. "-"&&7.

n the recent case of 0hilippine Rabbit 9us ines, nc. v. ntermediate Appellate Court, et al. 6G.R. os. ::!$-$4,Au'ust $, !&&$7, the Court citin" the landmar8 decision held in the case of Anuran, et al. v. 9uno, et al. 6! 0hil.!$"7 ruled that the principle of >last clear chance> applies >in a suit bet*een the o*ners and drivers of collidin'vehicles. t does not arise *here a passen'er demands responsibility from the carrier to enforce its contractualobli'ations. +or it *ould be ineBuitable to e;empt the ne'li'ent driver of the )eepney and its o*ners on the 'roundthat the other driver *as li8e*ise 'uilty of ne'li'ence.>

+urthermore, >as bet*een defendants/ The doctrine cannot be e;tended into the field of )oint tortfeasors as a test of

*hether only one of them should be held liable to the in)ured person by reason of his discovery of the latter(s peril,and it cannot be invo8ed as bet*een defendants concurrently ne'li'ent. As a'ainst third persons, a ne'li'ent actorcannot defend by pleadin' that another had ne'li'ently failed to ta8e action *hich could have avoided the in)ury.> 65"Am. %ur. d, pp. #$:-#$"7.

All premises considered, the Court is convinced that the respondent Court committed an error of la* in applyin' thedoctrine of last clear chance as bet*een the defendants, since the case at bar is not a suit bet*een the o*ners anddrivers of the collidin' vehicles but a suit brou'ht by the heirs of the deceased passen'ers a'ainst both o*ners anddrivers of the collidin' vehicles. Therefore, the respondent court erred in absolvin' the o*ner and driver of the car'otruc8 from liability.

0ursuant to the ne* policy of this Court to 'rant an increased death indemnity to the heirs of the deceased, theirrespective a*ards of 0$,$$$.$$ are hereby increased to 05$,$$$.$$.

ACCRGN, the petition is GRAT1< the appealed )ud'ment and resolution of the Court of Appeals are herebyR1V1R31 and 31T A31 and the )ud'ment of the lo*er court is R13TAT1 *ith the modification on the

indemnity for death of each of the victims *hich is hereby increased to 05$,$$$.$$ each. o pronouncement as tocosts.

3 R1R1.

/arvasa Cru 0ancayco and 0ri1o-quino ''. concur.

G.R. No. L681: %' 16, 199

GEORGE MEE and ARAELI O! MEE, petitioners,vs.


14/34

INTERME*IATE APPELLATE OURT, AIME TA0AG and ROSALIN*A MANALO,respondents.

G.R. No. L681:3 %' 16, 199

ARMEN *A0RIT O!, LETIIA O!, ULIETA O! TU5UERO, ARAELI O!MEE, ANTONIO O! and ELI(A"ET! O! TURLA, petitioners,vs.INTERME*IATE APPELLATE OURT, AIME TA0AG and ROSALIN*A MANALO,respondents.

*A4I*E, JR., J.:

0etitioners ur'e this Court to revie* and reverse the Resolution of the Court of Appealsin C.A.-G.R. CV os. :&$4$-4!, promul'ated on April !, *hich set aside itsprevious ecision dated & ovember ! reversin' the ecision of the trial court*hich dismissed petitioners( complaints in Civil Case o. 44"" and Civil Case o. 44"#of the then Court of +irst nstance 6no* Re'ional Trial Court7 of 0ampan'a entitled>Carmen ayrit Hoh, eticia Hoh, %ulieta Hoh TuBuero, Araceli Hoh 2cHee and

1li=abeth Hoh Turla vs. %aime Taya' and Rosalinda 2analo,> and >Geor'e 2cHee andAraceli Hoh 2cHee vs. %aime Taya' and Rosalinda 2analo,> respectively, and 'rantedthe private respondents( counterclaim for moral dama'es, attorney(s fees and liti'atione;penses.

The said civil cases for dama'es based on quasi-delict*ere filed as a result of avehicular accident *hich led to the deaths of %ose Hoh, Him Hoh 2cHee and oida9ondoc and caused physical in)uries to Geor'e Hoh 2cHee, Christopher Hoh 2cHeeand petitioner Araceli Hoh 2cHee.

0etitioners in G.R. o. :#!$, parents of the minors Geor'e Hoh 2cHee, ChristopherHoh 2cHee and the deceased Him Hoh 2cHee, *ere the plaintiffs in Civil Case o.

44"#, *hile petitioner Carmen ayrit Hoh and her co-petitioners in G.R. o. :#!$, *hoare the *ife and children, respectively, of the late %ose Hoh, *ere the plaintiffs in CivilCase o. 44"". Kpon the other hand, private respondents are the o*ners of the car'otruc8 *hich fi'ured in the mishap< a certain Ruben Galan' *as the driver of the truc8 atthe time of the accident.

The antecedent facts are not disputed.

9et*een nine and ten o(cloc8 in the mornin' of # %anuary !&"", in 0ulon' 0ulo 9rid'ealon' 2acArthur ?i'h*ay, bet*een An'eles City and 3an +ernando, 0ampan'a, ahead-on-collision too8 place bet*een an nternational car'o truc8, oadstar, *ith 0lateo. R+&!-T 0hilippines (": o*ned by private respondents, and driven by RubenGalan', and a +ord 1scort car bearin' 0late o. 3-#5$ 0ampan'a (": driven by %oseHoh. The collision resulted in the deaths of %ose Hoh, Him Hoh 2cHee and oida9ondoc, and physical in)uries to Geor'e Hoh 2cHee, Christopher Hoh 2cHee and

Araceli Hoh 2cHee, all passen'ers of the +ord 1scort.

%ose Hoh *as the father of petitioner Araceli Hoh 2cHee, the mother of minors Geor'e,Christopher and Him Hoh 2cHee. oida 9ondoc, on the other hand, *as the baby sitterof one and a half year old Him. At the time of the collision, Him *as seated on the lap ofoida 9ondoc *ho *as at the front passen'er(s seat of the car *hile Araceli and her t*o


15/34

67 sons *ere seated at the car(s bac8 seat.

mmediately before the collision, the car'o truc8, *hich *as loaded *ith t*o hundred6$$7 cavans of rice *ei'hin' about !$,$$$ 8ilos, *as travelin' south*ard from An'elesCity to 3an +ernando 0ampan'a, and *as bound for 2anila. The +ord 1scort, on theother hand, *as on its *ay to An'eles City from 3an +ernando. @hen the northbound

car *as about 6!$7 meters a*ay from the southern approach of the brid'e, t*o 67 boyssuddenly darted from the ri'ht side of the road and into the lane of the car. The boys*ere movin' bac8 and forth, unsure of *hether to cross all the *ay to the other side orturn bac8. %ose Hoh ble* the horn of the car, s*erved to the left and entered the lane ofthe truc8< he then s*itched on the headli'hts of the car, applied the bra8es andthereafter attempted to return to his lane. 9efore he could do so, his car collided *iththe truc8. The collision occurred in the lane of the truc8, *hich *as the opposite lane, onthe said brid'e.

The incident *as immediately reported to the police station in An'eles Cityfootsteps> lon' and fourteen 6!47 >footsteps> *ide seven 6"7 >footsteps> from the centerline to the inner ed'e of the side *al8 on both sides. 0ulon' 0ulo 9rid'e, *hich spans a dry broo8, ismade of concrete *ith soft shoulders and concrete railin's on both sides about three 67 feet hi'h.

The s8etch of the investi'atin' officer discloses that the ri'ht rear portion of the car'o truc8 *as t*o 67>footsteps> from the ed'e of the ri'ht side*al8, *hile its left front portion *as touchin' the center line ofthe brid'e, *ith the smashed front side of the car restin' on its front bumper. The truc8 *as about si;teen6!:7 >footsteps> a*ay from the northern end of the brid'e *hile the car *as about thirty-si; 6:7>footsteps> from the opposite end. 38id mar8s produced by the ri'ht front tire of the truc8 measured nine6&7 >footsteps>, *hile s8id mar8s produced by the left front tire measured five 657 >footsteps.> The t*o 67rear tires of the truc8, ho*ever, produced no s8id mar8s.

n his statement to the investi'atin' police officers immediately after the accident, Galan' admitted thathe *as travelin' at thirty 6$7 miles 64# 8ilometers7 per hour.

As a conseBuence of the collision, t*o 67 cases, Civil Case o. 44"" and o. 44"#, *ere filed on !%anuary !&"" before the then Court of +irst nstance of 0ampan'a and *ere raffled to 9ranch and9ranch V of the said court, respectively. n the first, herein petitioners in G.R. o. :#!$ prayed for thea*ard of 0!,$$$.$$ as indemnity for the death of %ose Hoh, 0!5$,$$$.$$ as moral dama'es,0:$,$$$.$$ as e;emplary dama'es, 0!$,$$$.$$ for liti'ation e;penses, 0:,$$$.$$ for burial e;penses,0,:5$.$$ for the burial lot and 0&,5$$.$$ for the tomb, plus attorney(s fees. 3 n the second case,petitioners in G.R. o. :#!$ prayed for the follo*in'/ 6a7 in connection *ith the death of Him 2cHee, thesum of 0!,$$$.$$ as death benefit, 0,!5$.$$ for funeral services, 0,:5$.$$ for the cemetery lot,0,$$$.$$ for the tomb, 05$,$$$.$$ as moral dama'es, 0!$,$$$.$$ as e;emplary dama'es and0,$$$.$$ as miscellaneous dama'es< 6b7 in the case of Araceli Hoh 2cHee, in connection *ith theserious physical in)uries suffered, the sum of 0!$$,$$$.$$ as moral dama'es, 0$,$$$.$$ as e;emplarydama'es, 0!,$$$.$$ for loss of earnin's, 05,$$$.$$ for the hospitali=ation e;penses up to the date ofthe filin' of the complaint< and 6c7 *ith respect to Geor'e 2cHee, %r., in connection *ith the serious

physical in)uries suffered, the sum of 05$,$$$.$$ as moral dama'es, 0$,$$$.$$ as e;emplary dama'esand the follo*in' medical e;penses/ 0,4$$ payable to the 2edical Center, 0,5$$.$$ payable to the 3t.+rancis 2edical Center, 05,!"5.$$ payable to the Clar8 Air 9ase ?ospital, and miscellaneous e;pensesamountin' to 05,$$$.$$. They also sou'ht an a*ard of attorney(s fees amountin' to 5J of the totala*ard plus travelin' and hotel e;penses, *ith costs.

n ! 2arch !&"", an nformation char'in' Ruben Galan' *ith the crime of >Rec8less mprudenceResultin' to 6sic7 2ultiple ?omicide and 0hysical n)uries and ama'e to 0roperty> *as filed *ith the trialcourt. t *as doc8eted as Criminal Case o. "5! and *as raffled to 9ranch V of the court, the same9ranch *here Civil Case o. 44"# *as assi'ned.


16/34

n their Ans*er *ith Counterclaim in Civil Case o. 44"", private respondents asserted that it *as the+ord 1scort car *hich >invaded and bumped 6sic7 the lane of the truc8 driven by Ruben Galan' and, ascounterclaim, prayed for the a*ard of 0!5,$$$.$$ as attorney(s fees, 0$,$$$.$$ as actual and liBuidateddama'es, 0!$$,$$$.$$ as moral dama'es and 0$,$$$.$$ as business losses. 6n Civil Case o. 44"#,private respondents first filed a motion to dismiss on 'rounds of pendency of another action 6Civil Caseo. 44""7 and failure to implead an indispensable party, Ruben Galan', the truc8 driver< they also filed amotion to consolidate the case *ith Civil Case o. 44"" pendin' before 9ranch of the same court,*hich *as opposed by the plaintiffs. 79oth motions *ere denied by 9ranch V, then presided over by%ud'e 'nacio Capulon'. Thereupon, private respondents filed their Ans*er *ith Counter-claim 8*hereinthey alle'ed that %ose Hoh *as the person >at fault havin' approached the lane of the truc8 driven by RubenGalan', . . . *hich *as on the ri'ht lane 'oin' to*ards 2anila and at a moderate speed observin' all traffic rules andre'ulations applicable under the circumstances then prevailin' in their counterclaim, they prayed for an a*ard ofdama'es as may be determined by the court after due hearin', and the sums of 0!$,$$$.$$ as attorney(s fees and05,$$$.$$ as e;penses of liti'ation.

0etitioners filed their Ans*ers to the Counterclaims in both cases.

To e;pedite the proceedin's, the plaintiffs in Civil Case o. 44"# filed on " 2arch !&"# a motion to adopt thetestimonies of *itnesses ta8en durin' the hearin' of Criminal Case o. "5!, *hich private respondents opposed

and *hich the court denied. 90etitioners subseBuently moved to reconsider the order denyin' the motion forconsolidation, 1:*hich %ud'e Capulon' 'ranted in the rder of 5 3eptember !&"#< he then directed thatCivil Case o. 44"# be consolidated *ith Civil Case o. 44"" in 9ranch of the court then presided over

by %ud'e 2ario CastaQeda, %r.

eft then *ith 9ranch V of the trial court *as Criminal Case o. "5!.

n the civil cases, the plaintiffs presented as *itnesses Araceli Hoh 2cHee, +ernando uQa', Col. Robert+it='erald, 0rimitivo 0arel, 1u'enio Tanhueco, Carmen Hoh and Antonio Hoh, 11and offered severaldocumentary e;hibits. Kpon the other hand, private respondents presented as *itnesses Ruben Galan',Fenaida 3oliman, %aime Taya' and Roman ayrit. 1

n the criminal case, the prosecution presented as *itnesses 2rs. Araceli 2cHee, 3alud 3amia, 0fc.+ernando uQa', r. Ramon 0anlilio, r. Robert +it='erald, r. Roberto Nuson, r. ?ector, Klanday, 0fc.9eni'no de eon, 2arina 9olos, 0rimitivo 0arel, Ro'elio 0ineda, 9enito Caraan and 1u'enio Tanhueco,and offered several documentary e;hibits. 13Kpon the other hand, the defense presented the accusedRuben Galan', uciano 0un=alan, Fenaida 3oliman and Roman ayrit, and offered documentarye;hibits. 1

n ! ctober !$, %ud'e Capulon' rendered a decision a'ainst the accused Ruben Galan' in theaforesaid criminal case. The dispositive portion of the decision reads as follo*s/

@?1R1+R1, in vie* of the fore'oin', )ud'ment is hereby rendered findin' the accused RubenGalan' 'uilty beyond reasonable doubt of the crime char'ed in the information and after applyin'the provisions of Article :5 of the Revised 0enal Code and indeterminate sentence la*, thisCourt, imposes upon said accused Ruben Galan' the penalty of si; 6:7 months of arresto mayoras minimum to t*o 67 years, four 647 months and one 6!7 day of prision correccional asma;imum< the accused is further sentenced to pay and indemnify the heirs of oida 9ondoc theamount of 0!,$$$.$$ as indemnity for her death< to reimburse the heirs of oida 9ondoc theamount of 0,$$$.$$ representin' the funeral e;penses< to pay the heirs of oida 9ondoc theamount of 0$,$$$.$$ representin' her loss of income< to indemnify and pay the heirs of thedeceased %ose Hoh the value of the car in the amount of 05,&!$.&5, and to pay the costs. 1

The aforecited decision *as promul'ated only on !" ovember !$< on the same day, counsel forpetitioners filed *ith 9ranch of the court *here the t*o 67 civil cases *ere pendin' amanifestation to that effect and attached thereto a copy of the decision. 16

Kpon the other hand, %ud'e 2ario CastaQeda, %r. dismissed the t*o 67 civil cases on ! ovember !$and a*arded the private respondents moral dama'es, e;emplary dama'es and attorney(s fees. 17Thedispositive portion of the said decision reads as follo*s/

@?1R1+R1, findin' the preponderance of evidence to be in favor of the defendants anda'ainst the plaintiffs, these cases are hereby ordered 32331 *ith costs a'ainst the


17/34

plaintiffs. The defendants had proven their counter-claim, thru evidences 6sic7 presented andunrebutted. ?ence, they are hereby a*arded moral and e;emplary dama'es in the amount of0!$$,$$$.$$ plus attorney(s fee of 0!5,$$$.$$ and liti'ation e;penses for 6 sic7 0,$$$.$$. Theactual dama'es claimed for 6sic7 by the defendants is 6sic7 hereby dismissin' for lac8 of proof tothat effect 6sic7. 18

A copy of the decision *as sent by re'istered mail to the petitioners on # ovember !$ and *as

received on ecember !$.19

Accused Ruben Galan' appealed the )ud'ment of conviction to the Court of Appeals. The appeal *asdoc8eted as C.A.-G.R. 9l'. 4":4-CR and *as assi'ned to the court(s Third ivision. 0laintiffs in CivilCases os. 44"" and 44"# li8e*ise separately appealed the ! ovember !$ decision to the appellatecourt. The appeals *ere doc8eted as C.A.-G.R. o. :&$4!-R and C.A.-G.R. o. :&$4$-R, respectively,and *ere assi'ned to the +ourth Civil Cases ivision.

n 4 ctober !, the respondent Court promul'ated its decision : in C.A.-G.R. 9l'. 4":4-CRaffirmin' the conviction of Galan'. 1The dispositive portion of the decision reads/

2!* !$, an" hatol na pa3sa n" nariton" pa"hahabol ay min" pina"titibay sa 3anyan"3abuuan. n" na"hahabol pa rin an" pina"babayad n" "u"ol n" pa"hahabol.

A motion for reconsideration of the decision *as denied by the respondent Court in its %apasiyahanpromul'ated on 5 ovember !. A petition for its revie* 3*as filed *ith this Court< said petition *assubseBuently denied. A motion for its reconsideration *as denied *ith finality in the Resolution of $ April!.

n & ovember !, respondent Court, by then 8no*n as the ntermediate Appellate Court,promul'ated its consolidated decision in A.C.-G.R. CV os. :&$4$ and :&$4!, the dispositive portion of*hich reads/

@?1R1+R1, the decision appealed from it hereby reversed and set aside and another one isrendered, orderin' defendants-appellees to pay plaintiffs-appellants as follo*s/

+or the death of %ose Hoh/

0 5$,$$$.$$ as moral dama'es0 !,$$$.$$ as death indemnity0 !:,$$$.$$ for the lot and tomb 61;hs. K and K-!7

0 4,$$$.$$ e;penses for holdin' a *a8e 6p. &, tsn April !&, !&"&70 &5$.$$ for the cas8et 61;h. 270 "5.$$ for the vault services 61;hs. V and V-!7

+or the death of Him Hoh 2cHee/

0 5$,$$$.$$ as moral dama'es0 !,$$$.$$ as death indemnity0 !,$$$.$$ for the purchase of the burial lot 61;h. 270 &5$.$$ for funeral services 61;h. 2-!70 "5.$$ for vault services 61;hs. V and V-!7

+or the physical in)uries suffered by Geor'e Hoh 2cHee/

0 5,$$$.$$ as moral dama'es0 :".$$ for Clar8 +ield ?ospital 61;h. 17

0 4,#4.$$ paid to An'eles 2edical Clinic 61;hs. , -! and-70 !,555.$$ paid to 3t. +rancis 2edical Center 61;hs. 9 and 9-!7

+or the physical in)uries suffered by Araceli Hoh 2cHee/

0 5,$$$.$$ as moral dama'es0 !,$55.$$ paid to 3t. +rancis 2edical Center 61;hs. G andG-!70 "5.$$ paid to 3t. +rancis 2edical Center 61;hs. G- and G-7


18/34

0 4#.$$ to Carmelite General ?ospital 61;h. +70 !!4.$ to 2uQo= Clinic 61;h. 227

+or the physical in)uries suffered by Christopher Hoh 2cHee/

0 !$,$$$.$$ as moral dama'es0 !,!.!$ to 3t. +rancis 2edical Center 61;hs. and -!70 !.&5 to +.C.1.A. ?ospital 61;hs. G and -!7

n addition, @e a*ard 0!$,$$$.$$ as counsel 6sic7 fees in Civil Case o. 44"" and another0!$,$$$.$$< as counsel 6sic7 fees in Civil Case o. 44"#.

o pronouncement as to costs.

3 R1R1. 6

The decision is anchored principally on the respondent Court(s findin's that it *as Ruben Galan'(sinattentiveness or rec8less imprudence *hich caused the accident. The appellate court further said thatthe la* presumes ne'li'ence on the part of the defendants 6private respondents7, as employers ofGalan', in the selection and supervision of the latter< it *as further asserted that these defendants did notalle'e in their Ans*ers the defense of havin' e;ercised the dili'ence of a 'ood father of a family inselectin' and supervisin' the said employee. 7This conclusion of rec8less imprudence is based on thefollo*in'findin's of fact/

n the face of these diametrically opposed )udicial positions, the determinative issue in this appealis posited in the fourth assi'ned error as follo*s/

V

T?1 TRA CKRT 1RR1 @?1 T ?1 T?1 6sic7 RV1R + T?1 TRKCH 3T001 ?3TRKCH 91@ ?3 ?R 3@TC?1 ?3 ?1AG?T3 A CK T 3@1RV1 TT?1 RG?T.

3upportive of plaintiffs( version, principal *itness Araceli Hoh 2cHee testified thus/

M @hat happened after that, as you approached the brid'eL

A @hen *e *ere approachin' the brid'e, t*o 67 boys tried to cross the ri'ht lane on theri'ht side of the hi'h*ay 'oin' to 3an +ernando. 2y father, *ho is 6 sic7 the driver of thecar tried to avoid the t*o 67 boys *ho *ere crossin', he ble* his horn and s*erved to

the left to avoid hittin' the t*o 67 boys. @e noticed the truc8, he s*itched on theheadli'hts to *arn the truc8 driver, to slo* do*n to 'ive us the ri'ht of *ay to come bac8to our ri'ht lane.

M id the truc8 slo* do*nL

A o, sir, it did not, )ust 6sic7 continued on its *ay.

M @hat happened after thatL

A After avoidin' the t*o 67 boys, the car tried to 'o bac8 to the ri'ht lane since the truc8is 6sic7 comin', my father stepped on the bra8es and all *hat 6sic7 heard is the sound ofimpact 6sic7, sir. 6tsn, pp. 5-:, %uly , !&""7< or 61;hibit >> in these Civil Cases7.

;;; ;;; ;;;

M 2rs. ho* did you 8no* that the truc8 driven by the herein accused, Ruben Galan' didnot reduce its speed before the actual impact of collision 6 sic7 as you narrated in this1;hibit >!,> ho* did you 8no* 6sic7L

A t )ust 8ept on comin', sir. f only he reduced his speed, *e could have 'ot 6sic7 bac8 toour ri'ht lane on side 6sic7 of the hi'h*ay, sir. 6tsn. pp. -4 %uly , !&""7 or 61;hibit>> in these Civil Cases7 6pp. $-!, Appellants( 9rief7.

0laintiffs( version *as successfully corroborated to ur satisfaction by the follo*in' facts andcircumstances/

!. An impartial eye-*itness to the mishap, 1u'enio Tanhueco, declared that the truc8 stopped


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only *hen it had already collided *ith the car/

;;; ;;; ;;;

Tanhueco repeated the same testimony durin' the hearin' in the criminal case/

;;; ;;; ;;;

Tanhueco could 6sic7 not be ta''ed as an accommodation *itness because he *as one of the

first to arrive at the scene of the accident. As a matter of fact, he brou'ht one of the in)uredpassen'ers to the hospital.

@e are not prepared to accord faith and credit to defendants( *itnesses, Fenaida 3oliman, apassen'er of the truc8, and Roman ayrit, *ho supposedly lived across the street.

Re'ardin' 3oliman, e;perience has sho*n that in the ordinary course of events people usuallyta8e the side of the person *ith *hom they are associated at the time of the accident, because,as a 'eneral rule, they do not *ish to be identified *ith the person *ho *as at fault. Thus anima'inary bond is unconsciously created amon' the several persons *ithin the same 'roup60eople vs. Vivencio, CA-G.R. o. $$!$-CR, %an. !, !&:7.

@ith respect to ayrit, @e can not help suspectin' 6sic7 that he is an accommodation *itness. ?edid not 'o to the succor of the in)ured persons. ?e said he *anted to call the police authoritiesabout the mishap, but his phone had no dial tone. 9e this 6 sic7 as it may, the trial court in the

criminal case acted correctly in refusin' to believe ayrit.

. 1;hibit , the statement of Galan', does not include the claim that Galan' stopped his truc8 ata safe distance from the car, accordin' to plaintiffs 6p. 5, Appellants( 9rief7. This contention ofappellants *as completely passed sub-silencioor *as not refuted by appellees in their brief.1;hibit is one of the e;hibits not included in the record. Accordin' to the Table of Contentssubmitted by the court belo*, said 1;hibit *as not submitted by defendants-appellees. n thisli'ht, it is not far-fetched to surmise that Galan'(s claim that he stopped *as an eleventh-hourdesperate attempt to e;culpate himself from imprisonment and dama'es.

. Galan' divul'ed that he stopped after seein' the car about !$ meters a*ay/

ATTN. 3TT/

M o understand from your testimony that inspite of the fact that you admitted that the

road is strai'ht and you may be able to 6sic7 see 5$$-!$$$ meters a*ay from you anyvehicle, you first sa* that car only about ten 6!$7 meters a*ay from you for the first timeL

;;; ;;; ;;;

A noticed it, sir, that it *as about ten 6!$7 meters a*ay.

ATTN. 3TT/

M 3o, for clarification, you clarify and state under your oath that you have 6sic7 notnoticed it before that ten 6!$7 metersL 6Tsn. to 5, 3ept. !#, !&"&7. 6p. !:, Appellants(9rief7

Galan'(s testimony substantiate 6sic7 Tanhueco(s statement that Galan' stopped only because ofthe impact. At ten 6!$7 meters a*ay, *ith the truc8 runnin' at $ miles per hour, as revealed inGalan'(s affidavit 61;h. < p. 5, Appellants( brief7, it is *ell-ni'h impossible to avoid a collision on

a brid'e.5. Galan'(s truc8 stopped because of the collision, and not because he *aited for %ose Hoh toreturn to his proper lane. The police investi'ator, 0fc. +ernando . uQa', stated that he founds8id mar8s under the truc8 but there *ere not 6sic7 s8id mar8s behind the truc8 6pp. !&-$, t.s.n.,ov. , !&"#7. The presence of s8id mar8s sho* 6sic7 that the truc8 *as speedin'. 3ince the s8idmar8s *ere found under the truc8 and none *ere found at the rear of the truc8, the reasonableconclusion is that the s8id mar8s under the truc8 *ere caused by the truc8(s front *heels *henthe truc8s 6sic7 suddenly stopped seconds before the mishap in an endeavor to avoid the same.9ut, as aforesaid, Galan' sa* the car at barely !$ meters a*ay, a very short distance to avoid a


20/34

collision, and in his futile endeavor to avoid the collision he abruptly stepped on his bra8es but thesmashup happened )ust the same.

+or the inattentiveness or rec8less imprudence of Galan', the la* presumes ne'li'ence on thepart of the defendants in the selection of their driver or in the supervision over him. Appellees didnot alle'e such defense of havin' e;ercised the duties of a 'ood father of a family in the selectionand supervision of their employees in their ans*ers. They did not even adduce evidence that they

did in fact have methods of selection and pro'rams of supervision. The inattentiveness orne'li'ence of Galan' *as the pro;imate cause of the mishap. f Galan'(s attention *as on thehi'h*ay, he *ould have si'hted the car earlier or at a very safe distance than 6sic7 !$ meters. ?eproceeded to cross the brid'e, and tried to stop *hen a collision *as already inevitable, becauseat the time that he entered the brid'e his attention *as not riveted to the road in front of him.

n the Buestion of dama'es, the claims of appellants *ere amply proven, but the items must bereduced. 8

A motion for reconsideration alle'in' improper appreciation of the facts *as subseBuently filed by privaterespondents on the basis of *hich the respondent Court, in its Resolution of April !, 9reconsideredand set aside its & ovember ! decision and affirmed in toto the trial court(s )ud'ment of !ovember !$. A motion to reconsider this Resolution *as denied by the respondent Court on 4 %uly!.3:

?ence, this petition.0etitioners alle'e that respondent Court/

. . . C22TT1 A V1RN 31RK3 A GRAV1 1RRR @?1 T TTAN R1V1R31 T31C3 9N 21R1N 9A3G T +R2 6sic7 A 21R1 >0R13K20T,> TTAN3R1GARG T?1 0RVAT1 R1301T3( RV1R(3 A2333 AC+1333, @? 1OCK3V1N C22TT1 T?1 0RO2AT1 CAK31 + T?1

ACC1T 6sic7, +KRT?1R, T A3 3R1GAR1 T?1 1V1C1 AKC1 A+K T?1 R1CR3< T?1R1+R1, R1301T CKRT(3 R13KT36A1O13 A and 9, 01TT7 AR1 C1ARN 1RR1K3, 0KR1N 9A31 301CKAT3, C%1CTKR13 A @T?KT 3KR1 +KAT T?1 1V1C1.

. . . GRAV1N A9K31 T3 3CR1T A 1RR1 @?1 1++1CT T 3R1GAR1A CTR1 A @ 9N T?3 ?RA91 CKRT 9N 3TATG A2G T?1R3, >TCAT CAT1GRCAN A0T T?1 +G3 + GKT T?1 CR2A CA31@?1R1 T?1 RV1R + T?1 TRKCH VV1 T?1 ACC1T @A3 CT1.

. . . 0AT1TN C22TT1 GRAV1 A9K31 + 3CR1T A 2A1 A 231AG0RKC121T, @?1 T ?1/ >T 3 T?K3 CK291T K0 T?1 0AT++3-

A001AT3 6A001113 @RGN 21T1 T?1 R13KT7 T 0RV1T?1R A1GAT3 T?AT T?1 0RO2AT1 CAK31 + T?1 ACC1T @A3 T?11GG1C1 + 0RVAT1 R1301T3( RV1R.

V

. . . C22TT1 AT?1R GR1VK3 6sic7 1RRR< C22TT1 GRAV1 A9K31 +3CR1T A CT1 AT?1R CA31 @?C? 3 C1ARN A00CA91 T T?131CA313.

V

. . . C22TT1 A 0AT1T 1RRR A GRAV1N A9K31 T3 3CR1T A0TGT?1 +G3 + T?1 TRA CKRT @?C? AR1 C1ARN 1RR1K3 ACTRARN T T?1 1V1C1 +K T?1 R1CR3, 301CAN T?1N 6sic7 AR1CTRARN T T?1 A2TT1 +ACT3 A %KCA A2333 2A1 9N T?1


21/34

0RVAT1 R1301T3( RV1R.

V

. . . 1OC111 T3 %KR3CT, C22TT1 GRAV1 A9K31 + 3CR1T AGRAV1N 1RR1 @?1 T A@AR1 A2AG13 T T?1 0RVAT1 R1301T3 @?13A A@AR 3 T 3K00RT1 9N 1V1C1, T?1 R1CR3, A 3A A@AR 3T A@1 9N A@ A T?1 C33T1T 1C33 + T?3 ?RA91 CKRT.

V

. . . 1OC111 T3 %KR3CT, C22TT1 GRAV1 A9K31 + 3CR1T AGRAV1N 1RR1 @?1 T 1RR1K3N 31T A31 T3 1C3 A@ARGA2AG13 T 01TT1R3 @?C? 3 C1ARN ACCRAC1 @T? T?1 1V1C1,T?1 A@ A %KR30RK1C1 R1ATV1 T T?1 A@AR + A2AG13. 31

n the Resolution of ! 3eptember !, @e reBuired private respondents to Comment on the petition. 3

After the said Comment 33*as filed, petitioners submitted a Reply 3 thereto< this Court then 'ave duecourse to the instant petitions and reBuired petitioners to file their 9rief, 3 *hich they accordin'lycomplied *ith.

There is merit in the petition. 9efore @e ta8e on the main tas8 of dissectin' the ar'uments and counter-ar'uments, some observations on the procedural vicissitudes of these cases are in order.

Civil Cases os. 44"" and 44"#, *hich *ere for the recovery of civil liability arisin' from a quasi-delictunder Article !": in relation to Article !#$ of the Civil Code, *ere filed ahead of Criminal Case o."5!. Civil Case o. 44"# *as eventually consolidated *ith Civil Case o. 44"" for )oint trial in 9ranch of the trial court. The records do not indicate any attempt on the part of the parties, and it may thereforebe reasonably concluded that none *as made, to consolidate Criminal Case o. "5! *ith the civilcases, or vice-versa. The parties may have then believed, and understandably so, since by then nospecific provision of la* or rulin' of this Court e;pressly allo*ed such a consolidation, that anindependent civil action, authori=ed under Article in relation to Article !"" of the Civil Code, such asthe civil cases in this case, cannot be consolidated *ith the criminal case. ndeed, such consolidationcould have been farthest from their minds as Article itself e;pressly provides that the >civil action shallproceed independently of the criminal prosecution, and shall reBuire only a preponderance of evidence.>9e that as it may, there *as then no le'al impediment a'ainst such consolidation. 3ection !, Rule ! ofthe Rules of Court, *hich see8s to avoid a multiplicity of suits, 'uard a'ainst oppression and abuse,

prevent delays, clear con'ested doc8ets to simplify the *or8 of the trial court, or in short, attain )ustice*ith the least e;pense to the parties liti'ants, 36*ould have easily sustained a consolidation, therebypreventin' the unseemin', if no ludicrous, spectacle of t*o 67 )ud'es appreciatin', accordin' to theirrespective orientation, perception and perhaps even pre)udice, the same facts differently and thereafterrenderin' conflictin"decisions. 3uch *as *hat happened in this case. t should not, hopefully, happenanymore. n the recent case of Co4uan"co vs. Court or ppeals 37 this Court held that the presentprovisions of Rule !!! of the Revised Rules of Court allo* a consolidation of an independent civil actionfor the recovery of civil liability authori=ed under Articles , , 4 or !": of the Civil Code *ith thecriminal action sub)ect, ho*ever, to the condition that no final )ud'ment has been rendered in that criminalcase.

et it be stressed, ho*ever, that the )ud'ment in Criminal Case o. "5! findin' Galan' 'uilty of rec8lessimprudence, althou'h already final by virtue of the denial by no less than this Court of his last attempt toset aside the respondent Court(s affirmance of the verdict of conviction, has no relevance or importance to

this case.

As @e held in ionisio vs. lvendia 38the responsibility arisin' from fault or ne'li'ence in a quasi-delictisentirely separate and distinct from the civil liability arisin' from ne'li'ence under the 0enal Code. And, asmore concretely stated in the concurrin' opinion of %ustice %.9.. Reyes, >in the case of independent civilactions under the ne* Civil Code, the result of the criminal case, *hether acBuittal or conviction, *ould beentirely irrelevant to the civil action.> 39n #alta vs. e 5eyra and P/B vs. Purisima :this Court stated/

. . . t seems perfectly reasonable to conclude that the civil actions mentioned in Article ,permitted in the same manner to be filed separately from the criminal case, may proceed similarlyre"ardless of the result of the criminal case.


22/34

ndeed, *hen the la* has allo*ed a civil case related to a criminal case, to be filed separatelyand to proceed independently even durin' the pendency of the latter case, the intention is patentto ma8e the court(s disposition of the criminal case of no effect *hatsoever on the separate civilcase. This must be so because the offenses specified in Article are of such a nature, unli8eother offenses not mentioned, that they may be made the sub)ect of a separate civil actionbecause of the distinct separability of their respective )uridical cause or basis of action . . . .

@hat remains to be the most important consideration as to *hy the decision in the criminal case shouldnot be considered in this appeal is the fact that private respondents *ere not parties therein. t *ouldhave been entirely different if the petitioners( cause of action *as for dama'es arisin' from a delict in*hich case private respondents( liability could only be subsidiary pursuant to Article !$ of the Revised0enal Code. n the absence of any collusion, the )ud'ment of conviction in the criminal case a'ainstGalan' *ould have been conclusive in the civil cases for the subsidiary liability of the privaterespondents. 1

And no* to the merits of the petition.

t is readily apparent from the pleadin's that the principal issue raised in this petition is *hether or notrespondent Court(s findin's in its challen'ed resolution are supported by evidence or are based on merespeculations, con)ectures and presumptions.

The principle is *ell-established that this Court is not a trier of facts. Therefore, in an appeal by certiorari

under Rule 45 of the Revised Rules of Court, only Buestions of la* may be raised. The resolution offactual issues is the function of the lo*er courts *hose findin's on these matters are received *ithrespect and are, as a rule, bindin' on this Court.

The fore'oin' rule, ho*ever, is not *ithout e;ceptions. +indin's of facts of the trial courts and the Court ofAppeals may be set aside *hen such findin's are not supported by the evidence or *hen the trial courtfailed to consider the material facts *hich *ould have led to a conclusion different from *hat *as statedin its )ud'ment. 3The same is true *here the appellate court(s conclusions are 'rounded entirely oncon)ectures, speculations and surmises or *here the conclusions of the lo*er courts are based on amisapprehension of facts.

t is at once obvious to this Court that the instant case Bualifies as one of the aforementioned e;ceptionsas the findin's and conclusions of the trial court and the respondent Court in its challen'ed resolution arenot supported by the evidence, are based on an misapprehension of facts and the inferences made

therefrom are manifestly mista8en. The respondent Court(s decision of & ovember ! ma8es thecorrect findin's of fact.

n the assailed resolution, the respondent Court held that the fact that the car improperly invaded the laneof the truc8 and that the collision occurred in said lane 'ave rise to the presumption that the driver of thecar, %ose Hoh, *as ne'li'ent. n the basis of this presumed ne'li'ence, the appellate court immediatelyconcluded that it *as %ose Hoh(s ne'li'ence that *as the immediate and pro;imate cause of the collision.This is an un*arranted deduction as the evidence for the petitioners convincin'ly sho*s that the cars*erved into the truc8(s lane because as it approached the southern end of the brid'e, t*o 67 boysdarted across the road from the ri'ht side*al8 into the lane of the car. As testified to by petitioner AraceliHoh 2cHee/

M @hat happened after that, as you approached the brid'eL

A @hen *e *ere approachin' the brid'e, t*o 67 boys tried to cross the ri'ht lane on the

ri'ht side of the hi'h*ay 'oin' to 3an +ernando. 2y father, *ho is 6 sic7 the driver of thecar tried to avoid the t*o 67 boys *ho *ere crossin', he ble* his horn and s*erved tothe left to avoid hittin' the t*o 67 boys. @e noticed the truc8, he s*itched on theheadli'hts to *arn the truc8 driver, to slo* do*n to 'ive us the ri'ht of *ay to come bac8to our ri'ht lane.

M id the truc8 slo* do*nL

A o sir, it did not, )ust 6sic7 continued on its *ay.

M @hat happened after thatL


23/34

A After avoidin' the t*o 67 boys, the car tried to 'o bac8 to the ri'ht lane since the truc8is 6sic7 comin', my father stepped on the bra8es and all *hat 6sic7 heard is the sound ofimpact 6sic7, sir. 6

?er credibility and testimony remained intact even durin' cross e;amination. %ose Hoh(s entry into thelane of the truc8 *as necessary in order to avoid *hat *as, in his mind at that time, a 'reater peril death or in)ury to the t*o 67 boys. 3uch act can hardly be classified as ne'li'ent.

e'li'ence *as defined and described by this Court in *ayu"an vs. !ntermediate ppellate Court 7thus/

. . . e'li'ence is the omission to do somethin' *hich a reasonable man, 'uided by thoseconsiderations *hich ordinarily re'ulate the conduct of human affairs, *ould do, or the doin' ofsomethin' *hich a prudent and reasonable man *ould not do 69lac8(s a* ictionary, +ifth1dition, &$7, or as %ud'e Cooley defines it, >6T7he failure to observe for the protection of theinterests of another person, that de'ree of care, precaution, and vi'ilance *hich thecircumstances )ustly demand, *hereby such other person suffers in)ury.> 6Cooley on Torts, +ourth1dition, vol. , :57

n 0icart vs. 3mith 6" 0hil #$&, #!7, decided more than seventy years a'o but still a sound rule,6@7e held/

The test by *hich to determine the e;istence of ne'li'ence in a particular case may bestated as follo*s/ id the defendant in doin' the alle'ed ne'li'ent act use that(reasonable care and caution +hich an ordinarily prudent person +ould have used in thesame situation6)f not, then he is 'uilty of ne'li'ence. The la* here in effect adopts thestandard supposed to be supplied by the ima'inary conduct of the discreet paterfamiliasof the Romanla*. . . .

n Corliss vs. 7anila Railroad Company 8@e held/

. . . e'li'ence is *ant of the care reBuired by the circumstances. t is a relative or comparative,not an absolute, term and its application depends upon the situation of the parties and the de'reeof care and vi'ilance *hich the circumstances reasonably reBuire. @here the dan'er is 'reat, ahi'h de'ree of care is necessary, and the failure to observe it is a *ant of ordinary care under thecircumstances. 6citin' Ahern v. re'on Telephone Co., 5 0ac. 54& 6!#&47.

n the basis of the fore'oin' definition, the test of ne'li'ence and the facts obtainin' in this case, it ismanifest that no ne'li'ence could be imputed to %ose Hoh. Any reasonable and ordinary prudent man*ould have tried to avoid runnin' over the t*o boys by s*ervin' the car a*ay from *here they *ere evenif this *ould mean enterin' the opposite lane. Avoidin' such immediate peril *ould be the natural courseto ta8e particularly *here the vehicle in the opposite lane *ould be several meters a*ay and could very*ell slo* do*n, move to the side of the road and 'ive *ay to the oncomin' car. 2oreover, under *hat is8no*n as the emer'ency rule, >one *ho suddenly finds himself in a place of dan'er, and is reBuired to act*ithout time to consider the best means that may be adopted to avoid the impendin' dan'er, is not 'uiltyof ne'li'ence, if he fails to adopt *hat subseBuently and upon reflection may appear to have been abetter method, unless the emer'ency in *hich he finds himself is brou'ht about by his o*n ne'li'ence.> 9

Considerin' the sudden intrusion of the t*o 67 boys into the lane of the car, @e find that %ose Hohadopted the best means possible in the 'iven situation to avoid hittin' them. Applyin' the above test,therefore, it is clear that he *as not 'uilty of ne'li'ence.

n any case, assumin', ar"uendothat %ose Hoh is ne'li'ent, it cannot be said that his ne'li'ence *as thepro;imate cause of the collision. 0ro;imate cause has been defined as/

. . . that cause, *hich, in natural and continuous seBuence, unbro8en by any efficient intervenin'cause, produces the in)ury, and *ithout *hich the result *ould not have occurred. And morecomprehensively, the pro;imate le'al cause is that actin' first and producin' the in)ury, eitherimmediately or by settin' other events in motion, all constitutin' a natural and continuous chain ofevents, each havin' a close causal connection *ith its immediate predecessor, the final event inthe chain immediately effectin' the in)ury as a natural and probable result of the cause *hich firstacted, under such circumstances that the person responsible for the first event should, as an


24/34

ordinary prudent and intelli'ent person, have reasonable 'round to e;pect at the moment of hisact or default that an in)ury to some person mi'ht probably result therefrom. :

Applyin' the above definition, althou'h it may be said that the act of %ose Hoh, if at all ne'li'ent, *as theinitial act in the chain of events, it cannot be said that the same caused the eventual in)uries and deathsbecause of the occurrence of a sufficient intervenin' event, the ne'li'ent act of the truc8 driver, *hich*as the actual cause of the tra'edy. The entry of the car into the lane of the truc8 *ould not have resulted

in the collision had the latter heeded the emer'ency si'nals 'iven by the former to slo* do*n and 'ivethe car an opportunity to 'o bac8 into its proper lane. nstead of slo*in' do*n and s*ervin' to the farri'ht of the road, *hich *as the proper precautionary measure under the 'iven circumstances, the truc8driver continued at full speed to*ards the car. The truc8 driver(s ne'li'ence becomes more apparent invie* of the fact that the road is ".5$ meters *ide *hile the car measures !.5 meters and the truc8,.#: meters, in *idth. This *ould mean that both car and truc8 could pass side by side *ith a clearanceof .::! meters to spare. 1 +urthermore, the brid'e has a level side*al8 *hich could have partiallyaccommodated the truc8. Any reasonable man findin' himself in the 'iven situation *ould have tried toavoid the car instead of meetin' it head-on.

The truc8 driver(s ne'li'ence is apparent in the records. ?e himself said that his truc8 *as runnin' at $miles 64# 8ilometers7 per hour alon' the brid'e *hile the ma;imum speed allo*ed by la* on a brid'e isonly $ 8ilometers per hour. Knder Article !#5 of the Civil Code, a person drivin' a vehicle is presumedne'li'ent if at the time of the mishap, he *as violatin' any traffic re'ulation. @e cannot 'ive credence to

private respondents( claim that there *as an error in the translation by the investi'atin' officer of the truc8driver(s response in 0ampan'o as to *hether the speed cited *as in 8ilometers per hour or miles perhour. The la* presumes that official duty has been re'ularly performed< 3unless there is proof to thecontrary, this presumption holds. n the instant case, private respondents( claim is based on merecon)ecture.

The truc8 driver(s ne'li'ence *as li8e*ise duly established throu'h the earlier Buoted testimony ofpetitioner Araceli Hoh 2cHee *hich *as duly corroborated by the testimony of 1u'enio Tanhueco, animpartial eye*itness to the mishap.

Araceli Hoh 2cHee testified further, thus/

;;; ;;; ;;;

M 2rs. ho* did you 8no* that the truc8 driven by the herein accused, Ruben Galan' did

not reduce its speed before the actual impact of collision as you narrated in this 1;hibit>!,> ho* did you 8no*L

A t )ust 8ept on comin', sir. f only he reduced his speed, *e could have 'ot 6sic7 bac8 toour ri'ht lane on side 6sic7 of the hi'h*ay, sir. 6tsn, pp. -4, %uly , !&""7 or 61;hibit> in these Civil Cases7 6pp. $-!, Appellants( 9rief7

*hile 1u'enio Tanhueco testified thus/

M @hen you sa* the truc8, ho* *as it movin'L

At *as movin' 5$ to :$ 8ilometers per hour, sir.

Mmmediately after you sa* this truc8, do you 8no* *hat happenedL

A sa* the truc8 and a car collided 6sic7, sir, and *ent to the place to help the victims.6tsn. #, April !&, !&"&7

;;; ;;; ;;;

M +rom the time you sa* the truc8 to the time of the impact, *ill you tell us if the saidtruc8 ever stoppedL

A! sa+ it stopped (sic) +hen it has (sic) already collided +ith the car and it +as alreadymotionless. 6tsn. !, April !&, !&"&< 1mphasis 3upplied7. 6p. ", Appellants( 9rief7.

Clearly, therefore, it *as the truc8 driver(s subseBuent ne'li'ence in failin' to ta8e the proper measuresand de'ree of care necessary to avoid the collision *hich *as the pro;imate cause of the resultin'accident.


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1ven if %ose Hoh *as indeed ne'li'ent, the doctrine of last clear chance finds application here. ast clearchance is a doctrine in the la* of torts *hich states that the contributory ne'li'ence of the party in)ured*ill not defeat the claim for dama'es if it is sho*n that the defendant mi'ht, by the e;ercise of reasonablecare and prudence, have avoided the conseBuences of the ne'li'ence of the in)ured party. n such cases,the person *ho had the last clear chance to avoid the mishap is considered in la* solely responsible forthe conseBuences thereof.6

n Bustamante vs. Court of ppeals7

@e held/The respondent court adopted the doctrine of >last clear chance.> The doctrine, stated broadly, isthat the ne'li'ence of the plaintiff does not preclude a recovery for the ne'li'ence of thedefendant *here it appears that the defendant, by e;ercisin' reasonable care and prudence,mi'ht have avoided in)urious conseBuences to the plaintiff not*ithstandin' the plaintiff(sne'li'ence. n other *ords, the doctrine of last clear chance means that even thou'h a person(so*n acts may have placed him in a position of peril, and an in)ury results, the in)ured person isentitled to recovery 6sic7. As the doctrine is usually stated, a person *ho has the last clear chanceor opportunity of avoidin' an accident, not*ithstandin' the ne'li'ent acts of his opponent or thatof a third person imputed to the opponent is considered in la* solely responsible for theconseBuences of the accident. 63an'co, Torts and ama'es, 4th 1d., !:, p. !:57.

The practical import of the doctrine is that a ne'li'ent defendant is held liable to a ne'li'entplaintiff, or even to a plaintiff *ho has been 'rossly ne'li'ent in placin' himself in peril, if he,a*are of the plaintiff(s peril, or accordin' to some authorities, should have been a*are of it in thereasonable e;ercise of due care, had in fact an opportunity later than that of the plaintiff to avoidan accident 65" Am. %ur., d, pp. "-"&&7.

n Pantranco /orth 8xpress !nc. vs. Baesa8@e ruled/

The doctrine of last clear chance *as defined by this Court in the case of n' v. 2etropolitan@ater istrict, !$4 0hil. &" 6!&5#7, in this *ise/

The doctrine of the last clear chance simply, means that the ne'li'ence of a claimantdoes not preclude a recovery for the ne'li'ence of defendant *here it appears that thelatter, by e;ercisin' reasonable care and prudence, mi'ht have avoided in)uriousconseBuences to claimant not*ithstandin' his ne'li'ence.

The doctrine applies only in a situation *here the plaintiff *as 'uilty of prior or antecedent

ne'li'ence but the defendant, *ho had the last fair chance to avoid the impendin' harm andfailed to do so, is made liable for all the conseBuences of the accident not*ithstandin' the priorne'li'ence of the plaintiff 0icart v. 3mith, " 0hil. #$& 6!&!#7< Glan 0eople(s umber and?ard*are, et al. vs. ntermediate Appellate Court, Cecilia Alfere= Vda. de Calibo, et al., G.R. o."$4&, 2ay, !#, !&D. The subseBuent ne'li'ence of the defendant in failin' to e;ercise ordinarycare to avoid in)ury to plaintiff becomes the immediate or pro;imate cause of the accident *hichintervenes bet*een the accident and the more remote ne'li'ence of the plaintiff, thus ma8in' thedefendant liable to the plaintiff 0icart v. 3mith, supraD.

Generally, the last clear chance doctrine is invo8ed for the purpose of ma8in' a defendant liableto a plaintiff *ho *as 'uilty of prior or antecedent ne'li'ence, althou'h it may also be raised as adefense to defeat claim 6sic7 for dama'es.

Applyin' the fore'oin' doctrine, it is not difficult to rule, as @e no* rule, that it *as the truc8 driver(s

ne'li'ence in failin' to e;ert ordinary care to avoid the collision *hich *as, in la*, the pro;imate cause ofthe collision. As employers of the truc8 driver, the private respondents are, under Article !#$ of the CivilCode, directly and primarily liable for the resultin' dama'es. The presumption that they are ne'li'entflo*s from the ne'li'ence of their employee. That presumption, ho*ever, is only 4uris tantumnot4uris etde 4ure. 9Theironly possible defense is that they e;ercised all the dili'ence of a 'ood father of a family toprevent the dama'e. Article !#$ reads as follo*s/

The obli'ation imposed by Article !": is demandable not only for one(s o*n acts or omissions,but also for those of persons for *hom one is responsible.

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1mployers shall be liable for the dama'es caused by their employees and household helpersactin' *ithin the scope of their assi'ned tas8s, even thou'h the former are not en'a'ed in anybusiness or industry.

;;; ;;; ;;;

The responsibility treated of in this article shall cease *hen the persons herein mentioned provethat they observed all the dili'ence of a 'ood father of a family to prevent dama'e.

The dili'ence of a 'ood father referred to means the dili'ence in the selection and supervision ofemployees. 6:The ans*ers of the private respondents in Civil Cases os. 44"" and 44"# did notinterpose this defense. either did they attempt to prove it.

The respondent Court *as then correct in its ecision of & ovember ! in reversin' the decision ofthe trial court *hich dismissed Civil Cases os. 44"" and 44"#. ts assailed Resolution of April !finds no sufficient le'al and factual moorin's.

n the li'ht of recent decisions of this Court, 61the indemnity for death must, ho*ever, be increased from0!,$$$.$$ to 05$,$$$.$$.

@?1R1+R1, the instant petition is GRAT1. The assailed Resolution of the respondent Court of April ! is 31T A31 *hile its ecision of & ovember ! in C.A.-G.R. CV os. :&$4$-4! isR13TAT1, sub)ect to the modification that the indemnity for death is increased from 0!,$$$.$$ to

05$,$$$.$$ each for the death of %ose Hoh and Him Hoh 2cHee.Costs a'ainst private respondents.

3 R1R1.

0utierre 'r. Feliciano and Romero ''. concur.

Bidin '. too3 no part.

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