G.R. No.

96781 October 1, 1993

EMILIANO MANUEL and SUPERLINES TRANSPORTATION CO.,
INC., petitioners,
vs.
HONORABLE COURT OF APPEALS, ERNESTO A. RAMOS substituted by
Goyena Z. Ramos, Grace, David, Jobet, Portia and Banjo, all surnamed
RAMOS; and GOYENA ZANAROSA-RAMOS, for herself and as Guardian Ad
Litem for the minors JOBET, BANJO, DAVID and GRACE, all surnamed
RAMOS; FERNANDO ABCEDE, SR., for himself and as Guardian Ad
Litem for minor FERNANDO G. ABCEDE, JR.; MIGUEL JERNZ MAGO, as
Guardian Ad Litem for minor ARLEEN R. MAGO, and ANACLETA J.
ZANAROSA,respondents.
Benito P. Fabie for petitioners.
Constante Banayos for private respondents.

QUIASON, J.:
This is an appeal by certiorari under Rule 45 of the Revised Rules of Court from
the decision of the Court of Appeals in CA-G.R. CV No. 11780, and its Resolution
dated January 8, 1991, denying petitioner's motion for reconsideration. The
decision subject of the appeal was an affirmation of the judgement of the Court of
First Instance of Camarines Norte, in Civil Case No. 3020 and whose dispositive
portion states:
PREMISES CONSIDERED, judgment is hereby rendered : (1)
finding the defendant Emiliano Manuel negligent, reckless and
imprudent in the operation of Superlines Bus No. 406, which was
the proximate cause of the injuries suffered by the plaintiffs and

damage of the Scout Car in which they were riding; (2) ordering
the said defendant, jointly and solidarily, with the defendant
Superlines Bus Co., Inc. to pay plaintiffs the amounts of
P49,954,86, as itemized elsewhere in this decision and the costs.
It appearing that the defendants Superlines Transportation Co.,
Inc. is insured with the defendant Perla Compania de Seguros,
which has admitted such insurance, the latter is hereby ordered
to pay the former the amounts so stated up to the extent of its
insurance coverage" (Rollo, pp. 70-71).
The operative facts culled from the decision of the Court of Appeals are as
follows:
Private respondents were passengers of an International Harvester Scout Car
(Scout Car) owned by respondent Ramos, which left Manila for Camarines Norte
in the morning of December 27, 1977 with respondent Fernando Abcede, Sr. as
the driver of the vehicle.
There was a drizzle at about 4:10 P.M. when the Scout car, which was then
negotiating the zigzag road of Bo. Paraiso, Sta. Elena, Camarines Norte, was hit
on its left side by a bus. The bus was owned by petitioner Emiliano Manuel. Due
to the impact, the Scout car was thrown backwards against a protective railing.
Were it not for the railing, the Scout car would have fallen into a deep ravine. All
its ten occupants, which included four children were injured, seven of the victims
sustained serious physical injuries (Rollo, p. 28).
Emiliano Manuel, the driver of the bus, was prosecuted for multiple physical
injuries through reckless imprudence in the Municipal Court of Sta. Elena,
Camarines Norte. As he could not be found after he ceased reporting for work a
few days following the incident, the private respondents filed the instant action for
damages based onquasi-delict.

After trial, the court a quo rendered judgment against petitioners and Perla
Compania de Seguros, that covered the insurance of the bus. The court ordered
them to pay, jointly and severally, the amount of P49,954.86 in damages to
respondents.
On appeal, the Court of Appeals, affirmed the decision of the trial court.
In their appeal before us, petitioners contend that it was Fernando Abcede, Jr.,
driver of the Scout car, who was at fault. Besides, petitioners claim the Fernando
Abcede, Jr., who was only 19-years old at the time of the incident, did not have a
driver's license (Rollo, p. 10).
Proof of this, according to petitioners, was that:

While it may be accepted that some of the skid marks may have been erased by
the "heavy downpour" on or about the time of the accident, it remains a
possibility that not all skid marks were washed away. The strong presumption of
regularity in the performance of official duty (Rule 131, Sec. 3(m), 1989 Rules on
Evidence) erases, in the absence of evidence to the contrary, any suspicions that
the police investigator just invented the skid marks indicated in his report.
Granting, however, that the skid marks in the questioned sketch were inaccurate,
nonetheless, the finding of the Court of Appeals that the collision took place
within the lane of the Scout car was supported by other conclusive evidence.
"Indeed, a trail of broken glass which was scattered along the car's side of the
road, whereas the bus lane was entirely clear of debris (Exhibit "L-1," p. 34,
Records, pp. 56-65; TSN, Session of March 14, 1979)" (Rollo, p. 31).

Immediately after the incident, the bus conductor Cesar Pica and
passengers, including Maximino Jaro, alighted from the bus. A
woman passenger of the IH Scout car, Mrs. Ramos, was heard
saying: "Iyan na nga ba ang sinasabi ko, napakalakas ng loob,"
referring to young man, Fernando Abcede, Jr. who was the driver
of the IH Scout car (tsn., p. 43, November 19, 1979; tsn, p. 23-A.
February 7, 1980) . . . (Rollo, p. 75).

Furthermore, the fact that the Scout car was found after the impact at rest
against the guard railing shows that it must have been hit and thrown backwards
by the bus (Rollo, p. 103). The physical evidence do not show that the Superlines
Bus while traveling at high speed, usurped a portion of the lane occupied by the
Scout car before hitting it on its left side. On collision, the impact due to the force
exerted by a heavier and bigger passenger bus on the smaller and lighter Scout
car, heavily damaged the latter and threw it against the guard railing.

Likewise, petitioner questioned the accuracy of the pictures and sketches

submitted by private respondents as evidence that the Superlines bus
encroached on the lane of the Scout car. According to them, the sketch made by
the police investigator showing the skid marks of the bus, is inadmissible as
evidence because it was prepared the day after the incident and the alleged "telltale" skid marks and other details had already been obliterated by the heavy
downpour which lasted for at least an hour after the accident (Rollo, p. 87).
Likewise, they claim that the policeman who prepared the sketch was not the
police officer assigned to conduct the investigation (Rollo, pp. 88-89).

Petitioner's contention that the Scout car must have been moved backwards is
not only a speculation but is contrary to human experience. There was no reason
to move it backwards against the guard railing. If the purpose was to clear the
road, all that was done was to leave it where it was at the time of the collision,
which was well inside its assigned lane. Besides, even petitioners accept the fact
that when the police arrived at the scene of the accident, they found no one
thereat (Rollo, p. 13). This further weakens the possibility that some persons
moved the Scout car to rest on the guard railing.
The evidence with respect to the issue that Fernando Abcede, Jr. who was not
duly licensed, was the one driving the Scout car at the time of the accident, could

not simply exempt petitioner's liability because they were parties at fault for
encroaching on the Scout car's lane (Rollo, pp. 29-30).
Nevertheless, the witnesses presented by petitioners who allegedly saw "the
younger Abcede pined behind the driver's wheels," testified on matters that
transpired after the accident. Discrediting this allegation, the Court of Appeals
noted that none of the aforesaid witnesses actually saw the younger Abcede
driving the car and that the younger Abcede could have simply been thrown off
his seat toward the steering wheel (Rollo, p. 29).
Be that as it may, this Court has followed a well-entrenched principle that the
factual findings of the Court of Appeals are normally given great weight, more so
when the findings tally with the findings of the trial court and are supported by the
evidence (Francisco v. Magbitang, 173 SCRA 382 [1989]; New
Owners/Management of TML Garments, Inc. v. Zaragosa, 170 SCRA 563-564
[1989]).
The reason for this entrenched principle is given in Chemplex (Phils.), Inc., et
al. v. Ramon C. Pamatian, et al., 57 SCRA 408 [1974], thus:
This Court is not a trier of facts, and it is beyond its function to
make its own findings of certain vital facts different from those of
the trial court, especially on the basis of the conflicting claims of
the parties and without the evidence being properly before it. For
this Court to make such factual conclusions is entirely unjustified
first, because if material facts are controverted, as in this case,
and they are issues being litigated before the lower court, the
petition for certiorari would not be in aid of the appellate
jurisdiction of this Court; and, secondly, because it preempts the
primary function of the lower court, namely, to try the case on the
merits, receive all the evidence to presented by the parties, and
only then come to a definite decision, including either the

maintenance or the discharge of the preliminary injunction it has

issued.
Appellants, likewise, contested the awarded damages as excessive and
unsubstantiated. The trial court's findings show otherwise, as can be gleaned
from the following excerpt of this decision:
Plaintiffs were able to prove their injuries and submitted evidence
to show expenses for their treatment, hospitalization and
incidental disbursement (Exhs. AA to HH and their submarkings),
having a total amount of P12,204.86 which had admittedly (sic)
shouldered by plaintiff Ernesto Ramos. Considering the nature of
the injuries as shown by the respective Medical Certificates
(Exhs. A to J and their submarkings) said amount is very
reasonable. It was also shown that the Scout car is a total wreck,
the value of which was estimated to be P20,000.00 which may be
the same amount to put (sic) into a running condition. We
consider, likewise said amount reasonable taking into account its
brand (International Harvester Scout car). The above mentioned
damages are considered actual or compensatory (Par. 1 Art.
2197 in relation to Art. 2199, New Civil Code). Evidence was also
adduced showing that as a result of the incident and the resultant
injuries there had been an impairment on the earning capacity of
some of the plaintiffs (Fernando Abcede, Sr., Anacleta Zanarosa,
Ernesto Ramos and Goyena Ramos) which are recoverable
pursuant to Article 2205 of the New Civil Code. Considering the
nature of their injuries one month each loss of income seem
reasonable. Attorney's fees and expenses of litigation is also
proper. Since the act complained of falls under the aegis of quasidelict (culpa aquilina), moral damages is likewise available to
plaintiffs pursuant to Article 2219 also of the New Civil Code
(Rollo, pp. 113-114).

In addition, moral damages may be recovered if they are the proximate results of
defendant's wrongful acts or omission as in this case (Banson vs. CA, 175 SCRA
297 [1989]).
WHEREFORE, the petition is DENIED and the Decision of the Court of Appeals
is AFFIRMED, with costs against petitioners.
SO ORDERED.

G.R. No. 129792 December 21, 1999

JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE and
ELISA PANELO, petitioners,
vs.
HONORABLE COURT OF APPEALS, CONRADO C. AGUILAR and
CRISELDA R. AGUILAR, respondents.

DAVIDE, JR., J.:

In this petition for review on certiorari under Rule 45 of the Rules of Court,
petitioners seek the reversal of the 17 June 1996 decision 1 of the Court of
Appeals in C.A. G.R. No. CV 37937 and the resolution 2 denying their motion for
reconsideration. The assailed decision set aside the 15 January 1992 judgment of
the Regional Trial Court (RTC), Makati City, Branch 60 in Civil Case No. 7119 and
ordered petitioners to pay damages and attorney's fees to private respondents
Conrado and Criselda (CRISELDA) Aguilar.

Petitioner Jarco Marketing Corporation is the owner of Syvel's Department Store,

Makati City. Petitioners Leonardo Kong, Jose Tiope and Elisa Panelo are the
store's branch manager, operations manager, and supervisor, respectively.
Private respondents are spouses and the parents of Zhieneth Aguilar
(ZHIENETH).
In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the 2nd floor
of Syvel's Department Store, Makati City. CRISELDA was signing her credit card
slip at the payment and verification counter when she felt a sudden gust of wind
and heard a loud thud. She looked behind her. She then beheld her daughter
ZHIENETH on the floor, her young body pinned by the bulk of the store's giftwrapping counter/structure. ZHIENETH was crying and screaming for help.
Although shocked, CRISELDA was quick to ask the assistance of the people
around in lifting the counter and retrieving ZHIENETH from the floor. 3
ZHIENETH was quickly rushed to the Makati Medical Center where she was
operated on. The next day ZHIENETH lost her speech and thereafter
communicated with CRISELDA by writing on a magic slate. The injuries she
sustained took their toil on her young body. She died fourteen (14) days after the
accident or on 22 May 1983, on the hospital bed. She was six years old. 4
The cause of her death was attributed to the injuries she sustained. The
provisional medical certificate 5 issued by ZHIENETH's attending doctor described
the extent of her injuries:
Diagnoses:
1. Shock, severe, sec. to intraabdominal injuries due to blunt
injury

2. Hemorrhage, massive,
intraperitoneal sec. to laceration,
(L) lobe liver
3. Rupture, stomach, anterior &
posterior walls
4. Complete transection, 4th
position, duodenum
5. Hematoma, extensive,
retroperitoneal
6. Contusion, lungs, severe
CRITICAL
After the burial of their daughter, private respondents demanded upon petitioners
the reimbursement of the hospitalization, medical bills and wake and funeral
expenses 6 which they had incurred. Petitioners refused to pay. Consequently,
private respondents filed a complaint for damages, docketed as Civil Case No. 7119
wherein they sought the payment of P157,522.86 for actual damages, P300,000 for
moral damages, P20,000 for attorney's fees and an unspecified amount for loss of
income and exemplary damages.
In their answer with counterclaim, petitioners denied any liability for the injuries
and consequent death of ZHIENETH. They claimed that CRISELDA was
negligent in exercising care and diligence over her daughter by allowing her to
freely roam around in a store filled with glassware and appliances. ZHIENETH
too, was guilty of contributory negligence since she climbed the counter,
triggering its eventual collapse on her. Petitioners also emphasized that the
counter was made of sturdy wood with a strong support; it never fell nor
collapsed for the past fifteen years since its construction.

Additionally, petitioner Jarco Marketing Corporation maintained that it observed

the diligence of a good father of a family in the selection, supervision and control
of its employees. The other petitioners likewise raised due care and diligence in
the performance of their duties and countered that the complaint was malicious
for which they suffered besmirched reputation and mental anguish. They sought
the dismissal of the complaint and an award of moral and exemplary damages
and attorney's fees in their favor.
In its decision 7 the trial court dismissed the complaint and counterclaim after finding
that the preponderance of the evidence favored petitioners. It ruled that the proximate
cause of the fall of the counter on ZHIENETH was her act of clinging to it. It believed
petitioners' witnesses who testified that ZHIENETH clung to the counter, afterwhich
the structure and the girl fell with the structure falling on top of her, pinning her
stomach. In contrast, none of private respondents' witnesses testified on how the
counter fell. The trial court also held that CRISELDA's negligence contributed to
ZHIENETH's accident.
In absolving petitioners from any liability, the trial court reasoned that the counter
was situated at the end or corner of the 2nd floor as a precautionary measure
hence, it could not be considered as an attractive nuisance. 8The counter was
higher than ZHIENETH. It has been in existence for fifteen years. Its structure was
safe and well-balanced. ZHIENETH, therefore, had no business climbing on and
clinging to it.
Private respondents appealed the decision, attributing as errors of the trial court
its findings that: (1) the proximate cause of the fall of the counter was
ZHIENETH's misbehavior; (2) CRISELDA was negligent in her care of
ZHIENETH; (3) petitioners were not negligent in the maintenance of the counter;
and (4) petitioners were not liable for the death of ZHIENETH.
Further, private respondents asserted that ZHIENETH should be entitled to the
conclusive presumption that a child below nine (9) years is incapable of
contributory negligence. And even if ZHIENETH, at six (6) years old, was already
capable of contributory negligence, still it was physically impossible for her to

have propped herself on the counter. She had a small frame (four feet high and
seventy pounds) and the counter was much higher and heavier than she was.
Also, the testimony of one of the store's former employees, Gerardo Gonzales,
who accompanied ZHIENETH when she was brought to the emergency room of
the Makati Medical Center belied petitioners' theory that ZHIENETH climbed the
counter. Gonzales claimed that when ZHIENETH was asked by the doctor what
she did, ZHIENETH replied, "[N]othing, I did not come near the counter and the
counter just fell on me." 9 Accordingly, Gonzales' testimony on ZHIENETH's
spontaneous declaration should not only be considered as part ofres gestae but also
accorded credit.
Moreover, negligence could not be imputed to CRISELDA for it was reasonable
for her to have let go of ZHIENETH at the precise moment that she was signing
the credit card slip.
Finally, private respondents vigorously maintained that the proximate cause of
ZHIENETH's death, was petitioners' negligence in failing to institute measures to
have the counter permanently nailed.
On the other hand, petitioners argued that private respondents raised purely
factual issues which could no longer be disturbed. They explained that
ZHIENETH's death while unfortunate and tragic, was an accident for which
neither CRISELDA nor even ZHIENETH could entirely be held faultless and
blameless. Further, petitioners adverted to the trial court's rejection of Gonzales'
testimony as unworthy of credence.
As to private respondent's claim that the counter should have been nailed to the
ground, petitioners justified that it was not necessary. The counter had been in
existence for several years without any prior accident and was deliberately
placed at a corner to avoid such accidents. Truth to tell, they acted without fault
or negligence for they had exercised due diligence on the matter. In fact, the
criminal case 10 for homicide through simple negligence filed by private respondents

against the individual petitioners was dismissed; a verdict of acquittal was rendered
in their favor.

The Court of Appeals, however, decided in favor of private respondents and

reversed the appealed judgment. It found that petitioners were negligent in
maintaining a structurally dangerous counter. The counter was shaped like an
inverted "L" 11 with a top wider than the base. It was top heavy and the weight of the
upper portion was neither evenly distributed nor supported by its narrow base. Thus,
the counter was defective, unstable and dangerous; a downward pressure on the
overhanging portion or a push from the front could cause the counter to fall. Two
former employees of petitioners had already previously brought to the attention of the
management the danger the counter could cause. But the latter ignored their
concern. The Court of Appeals faulted the petitioners for this omission, and
concluded that the incident that befell ZHIENETH could have been avoided had
petitioners repaired the defective counter. It was inconsequential that the counter had
been in use for some time without a prior incident.
The Court of Appeals declared that ZHIENETH, who was below seven (7) years
old at the time of the incident, was absolutely incapable of negligence or other
tort. It reasoned that since a child under nine (9) years could not be held liable
even for an intentional wrong, then the six-year old ZHIENETH could not be
made to account for a mere mischief or reckless act. It also absolved CRISELDA
of any negligence, finding nothing wrong or out of the ordinary in momentarily
allowing ZHIENETH to walk while she signed the document at the nearby
counter.
The Court of Appeals also rejected the testimonies of the witnesses of
petitioners. It found them biased and prejudiced. It instead gave credit to the
testimony of disinterested witness Gonzales. The Court of Appeals then awarded
P99,420.86 as actual damages, the amount representing the hospitalization
expenses incurred by private respondents as evidenced by the hospital's
statement of account. 12 It denied an award for funeral expenses for lack of proof to
substantiate the same. Instead, a compensatory damage of P50,000 was awarded
for the death of ZHIENETH.

We quote the dispositive portion of the assailed decision,

13

thus:

WHEREFORE, premises considered, the judgment of the lower

court is SET ASIDE and another one is entered against
[petitioners], ordering them to pay jointly and severally unto
[private respondents] the following:
1. P50,000.00 by way of
compensatory damages for the
death of Zhieneth Aguilar, with
legal interest (6% p.a.) from 27
April 1984;
2. P99,420.86 as reimbursement
for hospitalization expenses
incurred; with legal interest (6%
p.a.) from 27 April 1984;

negligence on the part of the private respondents would necessarily negate their
claim for damages, where said negligence was the proximate cause of the injury
sustained. The injury in the instant case was the death of ZHIENETH. The
proximate cause was ZHIENETH's act of clinging to the counter. This act in turn
caused the counter to fall on her. This and CRISELDA's contributory negligence,
through her failure to provide the proper care and attention to her child while
inside the store, nullified private respondents' claim for damages. It is also for
these reasons that parents are made accountable for the damage or injury
inflicted on others by their minor children. Under these circumstances, petitioners
could not be held responsible for the accident that befell ZHIENETH.
Petitioners also assail the credibility of Gonzales who was already separated
from Syvel's at the time he testified; hence, his testimony might have been
tarnished by ill-feelings against them.

4. P20,000.00 in the concept of

attorney's fees; and

For their part, private respondents principally reiterated their arguments that
neither ZHIENETH nor CRISELDA was negligent at any time while inside the
store; the findings and conclusions of the Court of Appeals are substantiated by
the evidence on record; the testimony of Gonzales, who heard ZHIENETH
comment on the incident while she was in the hospital's emergency room should
receive credence; and finally, ZHIENETH's part of the res gestae declaration
"that she did nothing to cause the heavy structure to fall on her" should be
considered as the correct version of the gruesome events.

5. Costs.

We deny the petition.

3. P100,000.00 as moral and

exemplary damages;

Private respondents sought a reconsideration of the decision but the same was
denied in the Court of Appeals' resolution 14 of 16 July 1997.
Petitioners now seek the reversal of the Court of Appeals' decision and the
reinstatement of the judgment of the trial court. Petitioners primarily argue that
the Court of Appeals erred in disregarding the factual findings and conclusions of
the trial court. They stress that since the action was based on tort, any finding of

The two issues to be resolved are: (1) whether the death of ZHIENETH was
accidental or attributable to negligence; and (2) in case of a finding of negligence,
whether the same was attributable to private respondents for maintaining a
defective counter or to CRISELDA and ZHIENETH for failing to exercise due and
reasonable care while inside the store premises.

An accident pertains to an unforeseen event in which no fault or negligence

attaches to the defendant. 15 It is "a fortuitous circumstance, event or happening; an
event happening without any human agency, or if happening wholly or partly through
human agency, an event which under the circumstances is unusual or unexpected by
the person to whom it happens." 16

A At the emergency room we were all surrounding

the child. And when the doctor asked the child
"what did you do," the child said "nothing, I did not
come near the counter and the counter just fell on
me."

On the other hand, negligence is the omission to do something which a

reasonable man, guided by those considerations which ordinarily regulate the
conduct of human affairs, would do, or the doing of something which a prudent
and reasonable man would not do. 17 Negligence is "the failure to observe, for the
protection of the interest of another person, that degree of care, precaution and
vigilance which the circumstances justly demand, whereby such other person suffers
injury." 18

Q (COURT TO ATTY. BELTRAN)

Accident and negligence are intrinsically contradictory; one cannot exist with the
other. Accident occurs when the person concerned is exercising ordinary care,
which is not caused by fault of any person and which could not have been
prevented by any means suggested by common prudence. 19

COURT

The test in determining the existence of negligence is enunciated in the landmark

case of Plicart v. Smith, 20 thus: Did the defendant in doing the alleged negligent act
use that reasonable care and caution which an ordinarily prudent person would have
used in the same situation? If not, then he is guilty of negligence. 21
We rule that the tragedy which befell ZHIENETH was no accident and that
ZHIENETH's death could only be attributed to negligence.
We quote the testimony of Gerardo Gonzales who was at the scene of the
incident and accompanied CRISELDA and ZHIENETH to the hospital:
Q While at the Makati Medical Center, did you
hear or notice anything while the child was being
treated?

You want the words in Tagalog to be translated?

ATTY. BELTRAN
Yes, your Honor.

Granted. Intercalate "wala po, hindi po ako

lumapit doon. Basta bumagsak." 22
This testimony of Gonzales pertaining to ZHIENETH's statement formed (and
should be admitted as) part of theres gestae under Section 42, Rule 130 of the
Rules of Court, thus:
Part of res gestae. Statements made by a person while a startling
occurrence is taking place or immediately prior or subsequent
thereto with respect to the circumstances thereof, may be given in
evidence as part of the res gestae. So, also, statements
accompanying an equivocal act material to the issue, and giving it
a legal significance, may be received as part of the res gestae.
It is axiomatic that matters relating to declarations of pain or suffering and
statements made to a physician are generally considered declarations and
admissions. 23 All that is required for their admissibility as part of the res gestaeis that

they be made or uttered under the influence of a startling event before the declarant
had the time to think and concoct a falsehood as witnessed by the person who
testified in court. Under the circumstances thus described, it is unthinkable for
ZHIENETH, a child of such tender age and in extreme pain, to have lied to a doctor
whom she trusted with her life. We therefore accord credence to Gonzales' testimony
on the matter, i.e., ZHIENETH performed no act that facilitated her tragic death.
Sadly, petitioners did, through their negligence or omission to secure or make stable
the counter's base.

Gonzales' earlier testimony on petitioners' insistence to keep and maintain the

structurally unstable gift-wrapping counter proved their negligence, thus:
Q When you assumed the position as gift wrapper
at the second floor, will you please describe the
gift wrapping counter, were you able to examine?
A Because every morning before I start working I
used to clean that counter and since not nailed
and it was only standing on the floor, it was shaky.
xxx xxx xxx
Q Will you please describe the counter at 5:00
o'clock [sic] in the afternoon on [sic] May 9 1983?
A At that hour on May 9, 1983, that counter was
standing beside the verification counter. And since
the top of it was heavy and considering that it was
not nailed, it can collapse at anytime, since the
top is heavy.
xxx xxx xxx
Q And what did you do?

A I informed Mr. Maat about that counter which is

[sic] shaky and since Mr. Maat is fond of putting
display decorations on tables, he even told me
that I would put some decorations. But since I told
him that it not [sic] nailed and it is shaky he told
me "better inform also the company about it." And
since the company did not do anything about the
counter, so I also did not do anything about the
counter. 24 [Emphasis supplied]
Ramon Guevarra, another former employee, corroborated the testimony of
Gonzales, thus:
Q Will you please described [sic] to the honorable
Court the counter where you were assigned in
January 1983?
xxx xxx xxx
A That counter assigned to me was when my
supervisor ordered me to carry that counter to
another place. I told him that the counter needs
nailing and it has to be nailed because it might
cause injury or accident to another since it was
shaky.
Q When that gift wrapping counter was
transferred at the second floor on February 12,
1983, will you please describe that to the
honorable Court?

A I told her that the counter wrapper [sic] is really

in good [sic] condition; it was shaky. I told her that
we had to nail it.
Q When you said she, to whom are you referring
to [sic]?
A I am referring to Ms. Panelo, sir.
Q And what was the answer of Ms. Panelo when
you told her that the counter was shaky?
A She told me "Why do you have to teach me.
You are only my subordinate and you are to teach
me?" And she even got angry at me when I told
her that.
xxx xxx xxx
Q From February 12, 1983 up to May 9, 1983,
what if any, did Ms. Panelo or any employee of
the management do to that (sic)
xxx xxx xxx
Witness:
None, sir. They never nailed the counter. They
only nailed the counter after the accident
happened. 25 [Emphasis supplied]
Without doubt, petitioner Panelo and another store supervisor were personally
informed of the danger posed by the unstable counter. Yet, neither initiated any

concrete action to remedy the situation nor ensure the safety of the store's
employees and patrons as a reasonable and ordinary prudent man would have
done. Thus, as confronted by the situation petitioners miserably failed to
discharge the due diligence required of a good father of a family.
On the issue of the credibility of Gonzales and Guevarra, petitioners failed to
establish that the former's testimonies were biased and tainted with partiality.
Therefore, the allegation that Gonzales and Guevarra's testimonies were
blemished by "ill feelings" against petitioners since they (Gonzales and
Guevarra) were already separated from the company at the time their
testimonies were offered in court was but mere speculation and deserved
scant consideration.
It is settled that when the issue concerns the credibility of witnesses, the
appellate courts will not as a general rule disturb the findings of the trial court,
which is in a better position to determine the same. The trial court has the distinct
advantage of actually hearing the testimony of and observing the deportment of
the witnesses. 26However, the rule admits of exceptions such as when its evaluation
was reached arbitrarily or it overlooked or failed to appreciate some facts or
circumstances of weight and substance which could affect the result of the case. 27 In
the instant case, petitioners failed to bring their claim within the exception.
Anent the negligence imputed to ZHIENETH, we apply the conclusive
presumption that favors children below nine (9) years old in that they are
incapable of contributory negligence. In his book, 28 former Judge Cezar S. Sangco
stated:
In our jurisdiction, a person under nine years of age is
conclusively presumed to have acted without discernment, and is,
on that account, exempt from criminal liability. The same
presumption and a like exemption from criminal liability obtains in
a case of a person over nine and under fifteen years of age,
unless it is shown that he has acted with discernment. Since

negligence may be a felony and aquasi-delict and required

discernment as a condition of liability, either criminal or civil, a
child under nine years of age is, by analogy, conclusively
presumed to be incapable of negligence; and that the
presumption of lack of discernment or incapacity for negligence in
the case of a child over nine but under fifteen years of age is a
rebuttable one, under our law. The rule, therefore, is that a child
under nine years of age must be conclusively presumed
incapable of contributory negligence as a matter of law.
[Emphasis supplied]
Even if we attribute contributory negligence to ZHIENETH and assume that she
climbed over the counter, no injury should have occurred if we accept petitioners'
theory that the counter was stable and sturdy. For if that was the truth, a frail sixyear old could not have caused the counter to collapse. The physical analysis of
the counter by both the trial court and Court of Appeals and a scrutiny of the
evidence 29 on record reveal otherwise, i.e., it was not durable after all. Shaped like
an inverted "L," the counter was heavy, huge, and its top laden with formica. It
protruded towards the customer waiting area and its base was not secured. 30
CRISELDA too, should be absolved from any contributory negligence. Initially,
ZHIENETH held on to CRISELDA's waist, later to the latter's hand. 31 CRISELDA
momentarily released the child's hand from her clutch when she signed her credit
card slip. At this precise moment, it was reasonable and usual for CRISELDA to let
go of her child. Further, at the time ZHIENETH was pinned down by the counter, she
was just a foot away from her mother; and the gift-wrapping counter was just four
meters away from CRISELDA. 32 The time and distance were both significant.
ZHIENETH was near her mother and did not loiter as petitioners would want to
impress upon us. She even admitted to the doctor who treated her at the hospital that
she did not do anything; the counter just fell on her.
WHEREFORE, in view of all the foregoing, the instant petition is DENIED and the
challenged decision of the Court of Appeals of 17 June 1996 in C.A. G.R. No. CV
37937 is hereby AFFIRMED.

Costs against petitioners.

SO ORDERED.

G.R. No. 89880

February 6, 1991

EMMA ADRIANO BUSTAMANTE, in her own behalf as Guardian-Ad-Litem of

minors: ROSSEL, GLORIA, YOLANDA, ERIC SON and EDERIC, all
surnamed BUSTAMANTE, Spouses SALVADOR JOCSON and PATRIA
BONE-JOCSON, Spouses JOSE RAMOS and ENRIQUETA CEBU-RAMOS,
Spouses NARCISO-HIMAYA and ADORACION MARQUEZ-HIMAYA, and
Spouses JOSE BERSAMINA and MA. COMMEMORACION PEREABUSTAMANTE, petitioners,
vs.
THE HONORABLE COURT OF APPEALS, FEDERICO DEL PILAR AND
EDILBERTO MONTESIANO,respondents.
Dolorfino and Dominguez Law Offices for petitioners.
J.C. Baldoz & Associates for private respondents.

MEDIALDEA, J.:

This is a petition for review on certiorari seeking the reversal of the decision of
the respondent Court of Appeals dated February 15, 1989 which reversed and
set aside the decision of the Regional Trial Court of Cavite, Branch XV ordering
the defendants to pay jointly and severally the plaintiffs indemnity for death and
damages; and in further dismissing the complaint insofar as defendantsappellants Federico del Pilar and Edilberto Montesiano are concerned; and its
resolution dated August 17, 1989 denying the motion for reconsideration for lack
of merit.
The facts giving rise to the controversy at bar are recounted by the trial court as
follows:
At about 6:30 in the morning of April 20, 1983, a collision occurred
between a gravel and sand truck, with Plate No. DAP 717, and a Mazda
passenger bus with Motor No. Y2231 and Plate No. DVT 259 along the
national road at Calibuyo, Tanza, Cavite. The front left side portion
(barandilla) of the body of the truck sideswiped the left side wall of the
passenger bus, ripping off the said wall from the driver's seat to the last
rear seat.
Due to the impact, several passengers of the bus were thrown out and
died as a result of the injuries they sustained, Among those killed were
the following:
1. Rogelio Bustamante, 40, husband of plaintiff Emma Adriano
Bustamante and father of plaintiffs Rossel, Gloria, Yolanda, Ericson, and
Ederic, all surnamed Bustamante;
2. Maria Corazon Jocson, 16, daughter of plaintiffs spouses Salvador and
Patria Jocson;
3. Jolet C. Ramos, 16, daughter of plaintiffs spouses Jose and Enriqueta
Ramos;
4. Enrico Himaya, 18, son of plaintiffs spouses Narciso and Adoracion
Himaya; and

5. Noel Bersamina, 17, son of plaintiffs spouses Jose and Ma.

Commemoracion Bersamina. (Rollo, p. 48)
During the incident, the cargo truck was driven by defendant Montesiano and
owned by defendant Del Pilar; while the passenger bus was driven by defendant
Susulin. The vehicle was registered in the name of defendant Novelo but was
owned and/or operated as a passenger bus jointly by defendants Magtibay and
Serrado, under a franchise, with a line from Naic, Cavite, to Baclaran,
Paranaque, Metro Manila, and vice versa, which Novelo sold to Magtibay on
November 8, 1981, and which the latter transferred to Serrado (Cerrado) on
January 18, 1983.
Immediately before the collision, the cargo truck and the passenger bus were
approaching each other, coming from the opposite directions of the highway.
While the truck was still about 30 meters away, Susulin, the bus driver, saw the
front wheels of the vehicle wiggling. He also observed that the truck was heading
towards his lane. Not minding this circumstance due to his belief that the driver of
the truck was merely joking, Susulin shifted from fourth to third gear in order to
give more power and speed to the bus, which was ascending the inclined part of
the road, in order to overtake or pass a Kubota hand tractor being pushed by a
person along the shoulder of the highway. While the bus was in the process of
overtaking or passing the hand tractor and the truck was approaching the bus,
the two vehicles sideswiped each other at each other's left side. After the impact,
the truck skidded towards the other side of the road and landed on a nearby
residential lot, hitting a coconut tree and felling it." (Rollo, pp. 48-50)
After a careful perusal of the circumstances of the case, the trial court reached
the conclusion "that the negligent acts of both drivers contributed to or combined
with each other in directly causing the accident which led to the death of the
aforementioned persons. It could not be determined from the evidence that it was
only the negligent act of one of them which was the proximate cause of the
collision. In view of this, the liability of the two drivers for their negligence must be
solidary. (Rollo, pp. 50-51) Accordingly, the trial court rendered a decision on
March 7, 1986, the dispositive portion is hereunder quoted as follows:
WHEREFORE, defendants Valeriano Magtibay, Simplicio Serrado,
Ricardo Susulin, Efren Novelo, Federico del Pilar and Edilberto

Montesiano are hereby ordered to pay jointly and severally to the

plaintiffs, as follows:
1. To plaintiffs Emma Adriano Bustamante and her minor children, the
sum of P30,000.00 as indemnity for the death of Rogelio Bustamante;
U.S. $127,680.00 as indemnity for the loss of the earning capacity of the
said deceased, at its prevailing rate in pesos at the time this decision
shall have become final and executory; P10,000.00 as moral damages;
and P5,000.00 as exemplary damages;
2. To plaintiffs Salvador and Patria Jocson, the sum of P30,000.00 as
indemnity for the death of their daughter, Maria Corazon Jocson;
P10,000.00 as moral damages; and P5,000.00 as exemplary damages;
3. To plaintiffs Jose and Enriqueta Ramos, the sum of P30,000.00 as
indemnity for the death of their daughter, Jolet Ramos; P10,000.00 as
moral damages; and P5,000.00 as exemplary damages; and
4. To plaintiffs Narciso and Adoracion Himaya, the amount of P30,000.00
as indemnity for the death of their son, Enrico Himaya, P10,000.00 as
moral damages; and P5,000.00 as exemplary damages; and
5. To plaintiffs Jose and Ma. Commemoracion Bersamina, the sum of
P30,000.00 as indemnity for the death of their son, Noel Bersamina,
P10,000.00 as moral damages and P5,000.00 as exemplary damages.
The defendants are also required to pay the plaintiffs the sum of
P10,000.00 as attorney's fees and to pay the costs of the suit.
The cross-claim of defendant Novelo is hereby allowed, and defendants
Magtibay and Serrado, the actual owners and/or operators of the
passenger bus concerned, are hereby ordered to indemnify Novelo in
such amount as he may be required to pay as damages to the plaintiffs.
The cross-claims and counter-claims of the other defendants are hereby
dismissed for lack of merit.

SO ORDERED. (pp. 55-57, Rollo)

From said decision, only defendants Federico del Pilar and Edilberto Montesiano,
owner and driver, respectively, of the sand and gravel truck have interposed an
appeal before the respondent Court of Appeals. The Court of Appeals decided
the appeal on a different light. It rendered judgment on February 15, 1989, to wit:
WHEREFORE, the appealed judgment is hereby REVERSED and SET
ASIDE and the complaint dismissed insofar as defendants-appellants
Federico del Pilar and Edilberto Montesiano are concerned. No costs in
this instance.
SO ORDERED. (p. 96, Rollo)
On March 9, 1989, the plaintiffs-appellees filed a motion for reconsideration of
the aforementioned Court of Appeals' decision. However, respondent Court of
Appeals in a resolution dated August 17, 1989 denied the motion for lack of
merit. Hence, this petition.
Petitioners raised the following questions of law, namely:
First. Whether the respondent Court can legally and validly absolve
defendants-appellants from liability despite its own finding, as well as that
of the trial court that defendant-appellant Edilberto Montesiano, the cargo
truck driver, was driving an old vehicle very fast, with its wheels already
wiggling, such that he had no more control of his truck.
Second. Whether the respondent court can validly and legally disregard
the findings of fact made by the trial court which was in a better position
to observe the conduct and demeanor of the witnesses, particularly
appellant Edilberto Montesiano, cargo truck driver, and which
conclusively found appellant Montesiano as jointly and severally
negligent in driving his truck very fast and had lost control of his truck.
Third. Whether the respondent court has properly and legally applied the
doctrine of "last clear chance" in the present case despite its own finding
that appellant cargo truck driver Edilberto Montesiano was admittedly

negligent in driving his cargo truck very fast on a descending road and in
the presence of the bus driver coming from the opposite direction.
Fourth. Whether the respondent court has applied the correct law and the
correct doctrine so as to reverse and set aside the judgment with respect
to defendants-appellants. (Rollo, pp. 133-134)
As a rule, findings of fact of the Court of Appeals are final and conclusive and
cannot be reviewed on appeal, provided, they are borne out by the record or are
based on substantial evidence However, this rule admits of certain exceptions, as
when the findings of facts are conclusions without citation of specific evidence on
which they are based; or the appellate court's findings are contrary to those of
the trial court. (Sese v. Intermediate Appellate Court, G.R. 66168, 31 July 1987,
152 SCRA 585).
Furthermore, only questions of law may be raised in a petition for review
on certiorari under Rule 45 of the Revised Rules of Court. The jurisdiction of the
Supreme Court in cases brought to it from the Court of Appeals is limited to
reviewing and revising the errors of law imputed to it, its findings of fact being
conclusive. It is not the function of the Supreme Court to analyze or weigh such
evidence all over again, its jurisdiction being limited to reviewing errors of law
that might have been committed. Barring, therefore, a showing that the findings
complained of are totally devoid of support in the records, or that they are so
glaringly erroneous as to constitute serious abuse of discretion, such findings
must stand for the Supreme Court is not expected or required to examine or
contrast the oral and documentary evidence submitted by the parties. (Andres v.
Manufacturers Hanover and Trust Corp., G.R. 82670, 15 September 1989, 177
SCRA 618).
Bearing in mind these basic principles, We have opted to re-examine the findings
of fact mainly because the appellate court's findings are contrary to those of the
trial court.
The trial court, in declaring that the negligent acts of both drivers directly caused
the accident which led to the death of the aforementioned persons, considered
the following:

It was negligent on the part of driver Montesiano to have driven his truck
fast, considering that it was an old vehicle, being a 1947 model as
admitted by its owner, defendant Del Pilar; that its front wheels were
wiggling; that the road was descending; and that there was a passenger
bus approaching it. Likewise, driver Susulin was also guilty of negligence
in not taking the necessary precaution to avoid the collision, in the light of
his admission that, at a distance of 30 meters, he already saw the front
wheels of the truck wiggling and that the vehicle was usurping his lane
coming towards his direction. Had he exercised ordinary prudence, he
could have stopped his bus or swerved it to the side of the road even
down to its shoulder. And yet, Susulin shifted to third gear so as to, as
claimed by him, give more power and speed to his bus in overtaking or
passing a hand tractor which was being pushed along the shoulder of the
road. (Rollo, p. 50)
The respondent Court of Appeals ruling on the contrary, opined that "the bus
driver had the last clear chance to avoid the collision and his reckless negligence
in proceeding to overtake the hand tractor was the proximate cause of the
collision." (Rollo, p. 95). Said court also noted that "the record also discloses that
the bus driver was not a competent and responsible driver. His driver's license
was confiscated for a traffic violation on April 17, 1983 and he was using a ticket
for said traffic violation on the day of the accident in question (pp. 16-18, TSN,
July 23, 1984). He also admitted that he was not a regular driver of the bus that
figured in the mishap and was not given any practical examination. (pp. 11, 96,
TSN, supra)." (Rollo, p96)
The respondent Court quoting People v. Vender, CA-G.R. 11114-41-CR, August
28, 1975 held that "We are not prepared to uphold the trial court's finding that the
truck was running fast before the impact. The national road, from its direction,
was descending. Courts can take judicial notice of the fact that a motor vehicle
going down or descending is more liable to get out of control than one that is
going up or ascending for the simple reason that the one which is going down
gains added momentum while that which is going up loses its initial speeding in
so doing."
On the other hand, the trial court found and We are convinced that the cargo
truck was running fast. It did not overlook the fact that the road was descending
as in fact it mentioned this circumstance as one of the factors disregarded by the

cargo truck driver along with the fact that he was driving an old 1947 cargo truck
whose front wheels are already wiggling and the fact that there is a passenger
bus approaching it. In holding that the driver of the cargo truck was negligent, the
trial court certainly took into account all these factors so it was incorrect for the
respondent court to disturb the factual findings of the trial court, which is in a
better position to decide the question, having heard the witness themselves and
observed their deportment.

Furthermore, "as between defendants: The doctrine cannot be extended into the
field of joint tortfeasors as a test of whether only one of them should be held
liable to the injured person by reason of his discovery of the latter's peril, and it
cannot be invoked as between defendants concurrently negligent. As against
third persons, a negligent actor cannot defend by pleading that another had
negligently failed to take action which could have avoided the injury." (57 Am. Jur.
2d, pp. 806-807).

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

All premises considered, the Court is convinced that the respondent Court
committed an error of law in applying the doctrine of last clear chance as
between the defendants, since the case at bar is not a suit between the owners
and drivers of the colliding vehicles but a suit brought by the heirs of the
deceased passengers against both owners and drivers of the colliding vehicles.
Therefore, the respondent court erred in absolving the owner and driver of the
cargo truck from liability.

The practical import of the doctrine is that a negligent defendant is held liable to a
negligent plaintiff, or even to a plaintiff who has been grossly negligent in placing
himself in peril, if he, aware of the plaintiffs peril, or according to some
authorities, should have been aware of it in the reasonable exercise of due case,
had in fact an opportunity later than that of the plaintiff to avoid an accident (57
Am. Jur., 2d, pp. 798-799).
In the recent case of Philippine Rabbit Bus Lines, Inc. v. Intermediate Appellate
Court, et al. (G.R. Nos. 66102-04, August 30, 1990), the Court citing the
landmark decision held in the case of Anuran, et al. v. Buno, et al. (123 Phil.
1073) ruled that the principle of "last clear chance" applies "in a suit between the
owners and drivers of colliding vehicles. It does not arise where a passenger
demands responsibility from the carrier to enforce its contractual obligations. For
it would be inequitable to exempt the negligent driver of the jeepney and its
owners on the ground that the other driver was likewise guilty of negligence."

Pursuant to the new policy of this Court to grant an increased death indemnity to
the heirs of the deceased, their respective awards of P30,000.00 are hereby
increased to P50,000.00.
ACCORDINGLY, the petition is GRANTED; the appealed judgment and
resolution of the Court of Appeals are hereby REVERSED and SET ASIDE and
the judgment of the lower court is REINSTATED with the modification on the
indemnity for death of each of the victims which is hereby increased to
P50,000.00 each. No pronouncement as to costs.
SO ORDERED.

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

GEORGE MCKEE and ARACELI KOH MCKEE, petitioners,
vs.

INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA

MANALO, respondents.
G.R. No. L-68103 July 16, 1992
CARMEN DAYRIT KOH, LETICIA KOH, JULIETA KOH TUQUERO, ARACELI
KOH MCKEE, ANTONIO KOH and ELIZABETH KOH TURLA, petitioners,
vs.
INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA
MANALO, respondents.

DAVIDE, JR., J.:

Petitioners urge this Court to review and reverse the Resolution of the Court of
Appeals in C.A.-G.R. CV Nos. 69040-41, promulgated on 3 April 1984, which set
aside its previous Decision dated 29 November 1983 reversing the Decision of
the trial court which dismissed petitioners' complaints in Civil Case No. 4477 and
Civil Case No. 4478 of the then Court of First Instance (now Regional Trial Court)
of Pampanga entitled "Carmen Dayrit Koh, Leticia Koh, Julieta Koh Tuquero,
Araceli Koh McKee and Elizabeth Koh Turla vs. Jaime Tayag and Rosalinda
Manalo," and "George McKee and Araceli Koh McKee vs. Jaime Tayag and
Rosalinda Manalo," respectively, and granted the private respondents'
counterclaim for moral damages, attorney's fees and litigation expenses.
The said civil cases for damages based on quasi-delict were filed as a result of a
vehicular accident which led to the deaths of Jose Koh, Kim Koh McKee and
Loida Bondoc and caused physical injuries to George Koh McKee, Christopher
Koh McKee and petitioner Araceli Koh McKee.
Petitioners in G.R. No. 68102, parents of the minors George Koh McKee,
Christopher Koh McKee and the deceased Kim Koh McKee, were the plaintiffs in

Civil Case No. 4478, while petitioner Carmen Dayrit Koh and her co-petitioners in
G.R. No. 68103, who are the wife and children, respectively, of the late Jose Koh,
were the plaintiffs in Civil Case No. 4477. Upon the other hand, private
respondents are the owners of the cargo truck which figured in the mishap; a
certain Ruben Galang was the driver of the truck at the time of the accident.
The antecedent facts are not disputed.
Between nine and ten o'clock in the morning of 8 January 1977, in Pulong Pulo
Bridge along MacArthur Highway, between Angeles City and San Fernando,
Pampanga, a head-on-collision took place between an International cargo truck,
Loadstar, with Plate No. RF912-T Philippines '76 owned by private respondents,
and driven by Ruben Galang, and a Ford Escort car bearing Plate No. S2-850
Pampanga '76 driven by Jose Koh. The collision resulted in the deaths of Jose
Koh, Kim Koh McKee and Loida Bondoc, and physical injuries to George Koh
McKee, Christopher Koh McKee and Araceli Koh McKee, all passengers of the
Ford Escort.
Jose Koh was the father of petitioner Araceli Koh McKee, the mother of minors
George, Christopher and Kim Koh McKee. Loida Bondoc, on the other hand, was
the baby sitter of one and a half year old Kim. At the time of the collision, Kim
was seated on the lap of Loida Bondoc who was at the front passenger's seat of
the car while Araceli and her two (2) sons were seated at the car's back seat.
Immediately before the collision, the cargo truck, which was loaded with two
hundred (200) cavans of rice weighing about 10,000 kilos, was traveling
southward from Angeles City to San Fernando Pampanga, and was bound for
Manila. The Ford Escort, on the other hand, was on its way to Angeles City from
San Fernando. When the northbound car was about (10) meters away from the
southern approach of the bridge, two (2) boys suddenly darted from the right side
of the road and into the lane of the car. The boys were moving back and forth,
unsure of whether to cross all the way to the other side or turn back. Jose Koh
blew the horn of the car, swerved to the left and entered the lane of the truck; he

then switched on the headlights of the car, applied the brakes and thereafter
attempted to return to his lane. Before he could do so, his car collided with the
truck. The collision occurred in the lane of the truck, which was the opposite lane,
on the said bridge.
The incident was immediately reported to the police station in Angeles City;
consequently, a team of police officers was forthwith dispatched to conduct an on
the spot investigation. In the sketch 1 prepared by the investigating officers, the
bridge is described to be sixty (60) "footsteps" long and fourteen (14) "footsteps" wide
seven (7) "footsteps" from the center line to the inner edge of the side walk on
both sides. 2 Pulong Pulo Bridge, which spans a dry brook, is made of concrete with
soft shoulders and concrete railings on both sides about three (3) feet high.
The sketch of the investigating officer discloses that the right rear portion of the
cargo truck was two (2) "footsteps" from the edge of the right sidewalk, while its
left front portion was touching the center line of the bridge, with the smashed
front side of the car resting on its front bumper. The truck was about sixteen (16)
"footsteps" away from the northern end of the bridge while the car was about
thirty-six (36) "footsteps" from the opposite end. Skid marks produced by the right
front tire of the truck measured nine (9) "footsteps", while skid marks produced
by the left front tire measured five (5) "footsteps." The two (2) rear tires of the
truck, however, produced no skid marks.
In his statement to the investigating police officers immediately after the accident,
Galang admitted that he was traveling at thirty (30) miles (48 kilometers) per
hour.
As a consequence of the collision, two (2) cases, Civil Case No. 4477 and No.
4478, were filed on 31 January 1977 before the then Court of First Instance of
Pampanga and were raffled to Branch III and Branch V of the said court,
respectively. In the first, herein petitioners in G.R. No. 68103 prayed for the
award of P12,000.00 as indemnity for the death of Jose Koh, P150,000.00 as
moral damages, P60,000.00 as exemplary damages, P10,000.00 for litigation

expenses, P6,000.00 for burial expenses, P3,650.00 for the burial lot and
P9,500.00 for the tomb, plus attorney's fees. 3 In the second case, petitioners in
G.R. No. 68102 prayed for the following: (a) in connection with the death of Kim
McKee, the sum of P12,000.00 as death benefit, P3,150.00 for funeral services,
P3,650.00 for the cemetery lot, P3,000.00 for the tomb, P50,000.00 as moral
damages, P10,000.00 as exemplary damages and P2,000.00 as miscellaneous
damages; (b) in the case of Araceli Koh McKee, in connection with the serious
physical injuries suffered, the sum of P100,000.00 as moral damages, P20,000.00 as
exemplary damages, P12,000.00 for loss of earnings, P5,000.00 for the
hospitalization expenses up to the date of the filing of the complaint; and (c) with
respect to George McKee, Jr., in connection with the serious physical injuries
suffered, the sum of P50,000.00 as moral damages, P20,000.00 as exemplary
damages and the following medical expenses: P3,400 payable to the Medical Center,
P3,500.00 payable to the St. Francis Medical Center, P5,175.00 payable to the Clark
Air Base Hospital, and miscellaneous expenses amounting to P5,000.00. They also
sought an award of attorney's fees amounting to 25% of the total award plus traveling
and hotel expenses, with costs. 4
On 1 March 1977, an Information charging Ruben Galang with the crime of
"Reckless Imprudence Resulting to (sic) Multiple Homicide and Physical Injuries
and Damage to Property" was filed with the trial court. It was docketed as
Criminal Case No. 3751 and was raffled to Branch V of the court, the same
Branch where Civil Case No. 4478 was assigned. 5
In their Answer with Counterclaim in Civil Case No. 4477, private respondents
asserted that it was the Ford Escort car which "invaded and bumped (sic) the
lane of the truck driven by Ruben Galang and, as counterclaim, prayed for the
award of P15,000.00 as attorney's fees, P20,000.00 as actual and liquidated
damages, P100,000.00 as moral damages and P30,000.00 as business
losses. 6 In Civil Case No. 4478, private respondents first filed a motion to dismiss on
grounds of pendency of another action (Civil Case No. 4477) and failure to implead
an indispensable party, Ruben Galang, the truck driver; they also filed a motion to
consolidate the case with Civil Case No. 4477 pending before Branch III of the same
court, which was opposed by the plaintiffs. 7 Both motions were denied by Branch V,

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

Petitioners filed their Answers to the Counterclaims in both cases.

To expedite the proceedings, the plaintiffs in Civil Case No. 4478 filed on 27
March 1978 a motion to adopt the testimonies of witnesses taken during the
hearing of Criminal Case No. 3751, which private respondents opposed and
which the court denied. 9 Petitioners subsequently moved to reconsider the order
denying the motion for consolidation, 10 which Judge Capulong granted in the Order
of 5 September 1978; he then directed that Civil Case No. 4478 be consolidated with
Civil Case No. 4477 in Branch III of the court then presided over by Judge Mario
Castaeda, Jr.
Left then with Branch V of the trial court was Criminal Case No. 3751.
In the civil cases, the plaintiffs presented as witnesses Araceli Koh McKee,
Fernando Nuag, Col. Robert Fitzgerald, Primitivo Parel, Eugenio Tanhueco,
Carmen Koh and Antonio Koh, 11 and offered several documentary exhibits. Upon
the other hand, private respondents presented as witnesses Ruben Galang, Zenaida
Soliman, Jaime Tayag and Roman Dayrit. 12
In the criminal case, the prosecution presented as witnesses Mrs. Araceli McKee,
Salud Samia, Pfc. Fernando Nuag, Dr. Ramon Panlilio, Dr. Robert Fitzgerald,
Dr. Roberto Yuson, Dr. Hector, Ulanday, Pfc. Benigno de Leon, Marina Bolos,
Primitivo Parel, Rogelio Pineda, Benito Caraan and Eugenio Tanhueco, and
offered several documentary exhibits. 13 Upon the other hand, the defense
presented the accused Ruben Galang, Luciano Punzalan, Zenaida Soliman and
Roman Dayrit, and offered documentary exhibits. 14

On 1 October 1980, Judge Capulong rendered a decision against the accused

Ruben Galang in the aforesaid criminal case. The dispositive portion of the
decision reads as follows:
WHEREFORE, in view of the foregoing, judgment is hereby
rendered finding the accused Ruben Galang guilty beyond
reasonable doubt of the crime charged in the information and
after applying the provisions of Article 365 of the Revised Penal
Code and indeterminate sentence law, this Court, imposes upon
said accused Ruben Galang the penalty of six (6) months
of arresto mayor as minimum to two (2) years, four (4) months
and one (1) day of prision correccional as maximum; the accused
is further sentenced to pay and indemnify the heirs of Loida
Bondoc the amount of P12,000.00 as indemnity for her death; to
reimburse the heirs of Loida Bondoc the amount of P2,000.00
representing the funeral expenses; to pay the heirs of Loida
Bondoc the amount of P20,000.00 representing her loss of
income; to indemnify and pay the heirs of the deceased Jose Koh
the value of the car in the amount of P53,910.95, and to pay the
costs. 15
The aforecited decision was promulgated only on 17 November 1980; on the
same day, counsel for petitioners filed with Branch III of the court where the
two (2) civil cases were pending a manifestation to that effect and attached
thereto a copy of the decision. 16
Upon the other hand, Judge Mario Castaeda, Jr. dismissed the two (2) civil
cases on 12 November 1980 and awarded the private respondents moral
damages, exemplary damages and attorney's fees. 17 The dispositive portion of the
said decision reads as follows:
WHEREFORE, finding the preponderance of evidence to be in
favor of the defendants and against the plaintiffs, these cases are

hereby ordered DISMISSED with costs against the plaintiffs. The

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

On 29 November 1983, respondent Court, by then known as the Intermediate

Appellate Court, promulgated its consolidated decision in A.C.-G.R. CV Nos.
69040 and 69041, 25 the dispositive portion of which reads:
WHEREFORE, the decision appealed from it hereby reversed
and set aside and another one is rendered, ordering defendantsappellees to pay plaintiffs-appellants as follows:
For the death of Jose Koh:

A copy of the decision was sent by registered mail to the petitioners on 28

November 1980 and was received on 2 December 1980. 19
Accused Ruben Galang appealed the judgment of conviction to the Court of
Appeals. The appeal was docketed as C.A.-G.R. Blg. 24764-CR and was
assigned to the court's Third Division. Plaintiffs in Civil Cases Nos. 4477 and
4478 likewise separately appealed the 12 November 1980 decision to the
appellate court. The appeals were docketed as C.A.-G.R. No. 69041-R and C.A.G.R. No. 69040-R, respectively, and were assigned to the Fourth Civil Cases
Division.

P 50,000.00 as moral damages

P 12,000.00 as death indemnity
P 16,000.00 for the lot and tomb (Exhs. U and U1)
P 4,000.00 expenses for holding a wake (p. 9, tsn
April 19, 1979)
P 950.00 for the casket (Exh. M)
P 375.00 for the vault services (Exhs. V and V-1)
For the death of Kim Koh McKee:

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

Blg. 24764-CR affirming the conviction of Galang. 21 The dispositive portion of the
decision reads:
20

DAHIL DITO, ang hatol na paksa ng naritong paghahabol ay

Aming pinagtitibay sa kanyang kabuuan. Ang naghahabol pa rin
ang pinagbabayad ng gugol ng paghahabol.
A motion for reconsideration of the decision was denied by the respondent Court
in its Kapasiyahan promulgated on 25 November 1982. 22 A petition for its
review 23 was filed with this Court; said petition was subsequently denied. A motion for
its reconsideration was denied with finality in the Resolution of 20 April 1983. 24

P 50,000.00 as moral damages

P 12,000.00 as death indemnity
P 1,000.00 for the purchase of the burial lot (Exh.
M)
P 950.00 for funeral services (Exh. M-1)
P 375.00 for vault services (Exhs. V and V-1)
For the physical injuries suffered by George Koh McKee:
P 25,000.00 as moral damages
P 672.00 for Clark Field Hospital (Exh. E)
P 4,384.00 paid to Angeles Medical Clinic (Exhs.

D, D-1 and
D-2)
P 1,555.00 paid to St. Francis Medical Center
(Exhs. B and B-1)
For the physical injuries suffered by Araceli Koh McKee:
P 25,000.00 as moral damages
P 1,055.00 paid to St. Francis Medical Center
(Exhs. G and
G-1)
P 75.00 paid to St. Francis Medical Center (Exhs.
G-2 and G-3)
P 428.00 to Carmelite General Hospital (Exh. F)
P 114.20 to Muoz Clinic (Exh. MM)
For the physical injuries suffered by Christopher Koh McKee:
P 10,000.00 as moral damages
P 1,231.10 to St. Francis Medical Center (Exhs. L
and L-1)
P 321.95 to F.C.E.A. Hospital (Exhs. G and D-1)
In addition, We award P10,000.00 as counsel (sic) fees in Civil
Case No. 4477 and another P10,000.00; as counsel (sic) fees in
Civil Case No. 4478.
No pronouncement as to costs.
SO ORDERED. 26
The decision is anchored principally on the respondent Court's findings that it
was Ruben Galang's inattentiveness or reckless imprudence which caused the

accident. The appellate court further said that the law presumes negligence on
the part of the defendants (private respondents), as employers of Galang, in the
selection and supervision of the latter; it was further asserted that these
defendants did not allege in their Answers the defense of having exercised the
diligence of a good father of a family in selecting and supervising the said
employee. 27 This conclusion of reckless imprudence is based on the
following findings of fact:
In the face of these diametrically opposed judicial positions, the
determinative issue in this appeal is posited in the fourth assigned
error as follows:
IV
THE TRIAL COURT ERRED WHEN IT HELD THE (sic) DRIVER
OF THE TRUCK STOPPED HIS TRUCK BLEW HIS HORN
SWITCHED ON HIS HEADLIGHTS AND COULD NOT SWERVE
TO THE RIGHT.
Supportive of plaintiffs' version, principal witness Araceli Koh McKee testified
thus:
Q What happened after that, as you approached
the bridge?
A When we were approaching the bridge, two (2)
boys tried to cross the right lane on the right side
of the highway going to San Fernando. My father,
who is (sic) the driver of the car tried to avoid the
two (2) boys who were crossing, he blew his horn
and swerved to the left to avoid hitting the two (2)
boys. We noticed the truck, he switched on the
headlights to warn the truck driver, to slow down

to give us the right of way to come back to our

right lane.

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

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

Q Did the truck slow down?

xxx xxx xxx
A No, sir, it did not, just (sic) continued on its way.
Q What happened after that?
A After avoiding the two (2) boys, the car tried to
go back to the right lane since the truck is (sic)
coming, my father stepped on the brakes and all
what (sic) I heard is the sound of impact (sic), sir.
(tsn, pp. 5-6, July 22, 1977); or (Exhibit "O" in
these Civil Cases).
xxx xxx xxx
Q Mrs. how did you know that the truck driven by
the herein accused, Ruben Galang did not reduce
its speed before the actual impact of collision (sic)
as you narrated in this Exhibit "1," how did you
know (sic)?
A It just kept on coming, sir. If only he reduced his
speed, we could have got (sic) back to our right
lane on side (sic) of the highway, sir. (tsn. pp. 3334 July 22, 1977) or (Exhibit "O" in these Civil
Cases) (pp. 30-31, Appellants' Brief).
Plaintiffs' version was successfully corroborated to Our satisfaction by the
following facts and circumstances:

Tanhueco repeated the same testimony during the hearing in the

criminal case:
xxx xxx xxx
Tanhueco could (sic) not be tagged as an accommodation
witness because he was one of the first to arrive at the scene of
the accident. As a matter of fact, he brought one of the injured
passengers to the hospital.
We are not prepared to accord faith and credit to defendants'
witnesses, Zenaida Soliman, a passenger of the truck, and
Roman Dayrit, who supposedly lived across the street.
Regarding Soliman, experience has shown that in the ordinary
course of events people usually take the side of the person with
whom they are associated at the time of the accident, because,
as a general rule, they do not wish to be identified with the person
who was at fault. Thus an imaginary bond is unconsciously
created among the several persons within the same group
(People vs. Vivencio, CA-G.R. No. 00310-CR, Jan. 31, 1962).
With respect to Dayrit, We can not help suspecting (sic) that he is
an accommodation witness. He did not go to the succor of the
injured persons. He said he wanted to call the police authorities
about the mishap, but his phone had no dial tone. Be this (sic) as

it may, the trial court in the criminal case acted correctly in

refusing to believe Dayrit.
2. Exhibit 2, the statement of Galang, does not include the claim
that Galang stopped his truck at a safe distance from the car,
according to plaintiffs (p. 25, Appellants' Brief). This contention of
appellants was completely passed sub-silencio or was not refuted
by appellees in their brief. Exhibit 2 is one of the exhibits not
included in the record. According to the Table of Contents
submitted by the court below, said Exhibit 2 was not submitted by
defendants-appellees. In this light, it is not far-fetched to surmise
that Galang's claim that he stopped was an eleventh-hour
desperate attempt to exculpate himself from imprisonment and
damages.
3. Galang divulged that he stopped after seeing the car about 10
meters away:
ATTY. SOTTO:
Q Do I understand from your testimony that
inspite of the fact that you admitted that the road
is straight and you may be able to (sic) see 5001000 meters away from you any vehicle, you first
saw that car only about ten (10) meters away from
you for the first time?
xxx xxx xxx
A I noticed it, sir, that it was about ten (10) meters
away.
ATTY. SOTTO:

Q So, for clarification, you clarify and state under

your oath that you have (sic) not noticed it before
that ten (10) meters? (Tsn. 3 to 5, Sept. 18, 1979).
(p. 16, Appellants' Brief)
Galang's testimony substantiate (sic) Tanhueco's statement that
Galang stopped only because of the impact. At ten (10) meters
away, with the truck running at 30 miles per hour, as revealed in
Galang's affidavit (Exh. 2; p. 25, Appellants' brief), it is well-nigh
impossible to avoid a collision on a bridge.
5. Galang's truck stopped because of the collision, and not
because he waited for Jose Koh to return to his proper lane. The
police investigator, Pfc. Fernando L. Nuag, stated that he found
skid marks under the truck but there were not (sic) skid marks
behind the truck (pp. 19-20, t.s.n., Nov. 3, 1978). The presence of
skid marks show (sic) that the truck was speeding. Since the skid
marks were found under the truck and none were found at the
rear of the truck, the reasonable conclusion is that the skid marks
under the truck were caused by the truck's front wheels when the
trucks (sic) suddenly stopped seconds before the mishap in an
endeavor to avoid the same. But, as aforesaid, Galang saw the
car at barely 10 meters away, a very short distance to avoid a
collision, and in his futile endeavor to avoid the collision he
abruptly stepped on his brakes but the smashup happened just
the same.
For the inattentiveness or reckless imprudence of Galang, the law
presumes negligence on the part of the defendants in the
selection of their driver or in the supervision over him. Appellees
did not allege such defense of having exercised the duties of a
good father of a family in the selection and supervision of their
employees in their answers. They did not even adduce evidence

that they did in fact have methods of selection and programs of

supervision. The inattentiveness or negligence of Galang was the
proximate cause of the mishap. If Galang's attention was on the
highway, he would have sighted the car earlier or at a very safe
distance than (sic) 10 meters. He proceeded to cross the bridge,
and tried to stop when a collision was already inevitable, because
at the time that he entered the bridge his attention was not riveted
to the road in front of him.
On the question of damages, the claims of appellants were amply
proven, but the items must be reduced. 28
A motion for reconsideration alleging improper appreciation of the facts was
subsequently filed by private respondents on the basis of which the respondent
Court, in its Resolution of 3 April 1984, 29 reconsidered and set aside its 29
November 1983 decision and affirmed in toto the trial court's judgment of 12
November 1980. A motion to reconsider this Resolution was denied by the
respondent Court on 4 July 1984. 30
Hence, this petition.
Petitioners allege that respondent Court:

RESPONDENT COURT'S RESOLUTIONS (ANNEXES A and B,

PETITION) ARE CLEARLY ERRONEOUS, PURELY BASED ON
SPECULATIONS, CONJECTURES AND WITHOUT SURE
FOUNDATION IN THE EVIDENCE.
II
. . . GRAVELY ABUSED ITS DISCRETION AND ERRED WHEN
IN EFFECT IT DISREGARDED A DOCTRINE LAID DOWN BY
THIS HONORABLE COURT BY STATING AMONG OTHERS, "IT
CANNOT CATEGORICALLY ADOPT THE FINDINGS OF GUILT
IN THE CRIMINAL CASE WHERE THE DRIVER OF THE
TRUCK INVOLVED IN THE ACCIDENT WAS INDICTED.
III
. . . PATENTLY COMMITTED GRAVE ABUSE OF DISCRETION
AND MADE A MISLEADING PRONOUNCEMENT, WHEN IT
HELD: "IT IS THUS INCUMBENT UPON THE PLAINTIFFSAPPELLANTS (APPELLEES WRONGLY MENTIONED IN THE
RESOLUTION) TO PROVE THEIR ALLEGATIONS THAT THE
PROXIMATE CAUSE OF THE ACCIDENT WAS THE
NEGLIGENCE OF PRIVATE RESPONDENTS' DRIVER.

I
IV
. . . COMMITTED A VERY SERIOUS AND GRAVE ERROR
WHEN IT TOTALLY REVERSED ITS DECISION BY MERELY
BASING IT FROM (sic) A MERE "PRESUMPTION," TOTALLY
DISREGARDING THE PRIVATE RESPONDENTS' DRIVER'S
ADMISSIONS AND CONFESSIONS, WHO EXCLUSIVELY
COMMITTED THE PROXIMATE CAUSE OF THE ACCIDENT
(sic), FURTHER, IT ALSO DISREGARDED THE EVIDENCE
ADDUCED AND FOUND IN THE RECORDS; THEREFORE,

. . . COMMITTED ANOTHER GRIEVIOUS (sic) ERROR;

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

. . . COMMITTED A PATENT ERROR AND GRAVELY ABUSED

ITS DISCRETION IN ADOPTING THE FINDINGS OF THE TRIAL
COURT WHICH ARE CLEARLY ERRONEOUS AND CONTRARY
TO THE EVIDENCE FOUND IN THE RECORDS, SPECIALLY
THEY (sic) ARE CONTRARY TO THE ADMITTED FACTS AND
JUDICIAL ADMISSIONS MADE BY THE PRIVATE
RESPONDENTS' DRIVER.
VI
. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE
ABUSE OF DISCRETION AND GRAVELY ERRED WHEN IT
AWARDED DAMAGES TO THE PRIVATE RESPONDENTS
WHEN SAID AWARD IS NOT SUPPORTED BY EVIDENCE, IN
THE RECORDS, AND SAID AWARD IS NOT ALLOWED BY LAW
AND THE CONSISTENT DECISIONS OF THIS HONORABLE
COURT.
VII
. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE
ABUSE OF DISCRETION AND GRAVELY ERRED WHEN IT
ERRONEOUSLY SET ASIDE ITS DECISION AWARDING
DAMAGES TO PETITIONERS WHICH IS CLEARLY IN
ACCORDANCE WITH THE EVIDENCE, THE LAW AND
JURISPRUDENCE RELATIVE TO THE AWARD OF
DAMAGES. 31
In the Resolution of 12 September 1984, We required private respondents to
Comment on the petition. 32 After the said Comment 33 was filed, petitioners
submitted a Reply 34 thereto; this Court then gave due course to the instant petitions
and required petitioners to file their Brief, 35 which they accordingly complied with.

There is merit in the petition. Before We take on the main task of dissecting the
arguments and counter-arguments, some observations on the procedural
vicissitudes of these cases are in order.
Civil Cases Nos. 4477 and 4478, which were for the recovery of civil liability
arising from a quasi-delict under Article 2176 in relation to Article 2180 of the Civil
Code, were filed ahead of Criminal Case No. 3751. Civil Case No. 4478 was
eventually consolidated with Civil Case No. 4477 for joint trial in Branch III of the
trial court. The records do not indicate any attempt on the part of the parties, and
it may therefore be reasonably concluded that none was made, to consolidate
Criminal Case No. 3751 with the civil cases, or vice-versa. The parties may have
then believed, and understandably so, since by then no specific provision of law
or ruling of this Court expressly allowed such a consolidation, that an
independent civil action, authorized under Article 33 in relation to Article 2177 of
the Civil Code, such as the civil cases in this case, cannot be consolidated with
the criminal case. Indeed, such consolidation could have been farthest from their
minds as Article 33 itself expressly provides that the "civil action shall proceed
independently of the criminal prosecution, and shall require only a
preponderance of evidence." Be that as it may, there was then no legal
impediment against such consolidation. Section 1, Rule 31 of the Rules of Court,
which seeks to avoid a multiplicity of suits, guard against oppression and abuse,
prevent delays, clear congested dockets to simplify the work of the trial court, or
in short, attain justice with the least expense to the parties litigants, 36 would have
easily sustained a consolidation, thereby preventing the unseeming, if no ludicrous,
spectacle of two (2) judges appreciating, according to their respective orientation,
perception and perhaps even prejudice, the same facts differently, and thereafter
rendering conflicting decisions. Such was what happened in this case. It should not,
hopefully, happen anymore. In the recent case of Cojuangco vs. Court or
Appeals, 37 this Court held that the present provisions of Rule 111 of the Revised
Rules of Court allow a consolidation of an independent civil action for the recovery of
civil liability authorized under Articles 32, 33, 34 or 2176 of the Civil Code with the
criminal action subject, however, to the condition that no final judgment has been
rendered in that criminal case.

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

private respondents' liability could only be subsidiary pursuant to Article 103 of

the Revised Penal Code. In the absence of any collusion, the judgment of
conviction in the criminal case against Galang would have been conclusive in the
civil cases for the subsidiary liability of the private respondents. 41
And now to the merits of the petition.

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

negligence in a quasi-delict is entirely separate and distinct from the civil liability
arising from negligence under the Penal Code. And, as more concretely stated in the
concurring opinion of Justice J.B.L. Reyes, "in the case of independent civil actions
under the new Civil Code, the result of the criminal case, whether acquittal or
conviction, would be entirely irrelevant to the civil action." 39 In Salta vs. De Veyra and
PNB vs. Purisima, 40 this Court stated:
38

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

mentioned in Article 33, permitted in the same manner to be filed
separately from the criminal case, may proceed
similarly regardless of the result of the criminal case.
Indeed, when the law has allowed a civil case related to a
criminal case, to be filed separately and to proceed independently
even during the pendency of the latter case, the intention is
patent to make the court's disposition of the criminal case of no
effect whatsoever on the separate civil case. This must be so
because the offenses specified in Article 33 are of such a nature,
unlike other offenses not mentioned, that they may be made the
subject of a separate civil action because of the distinct
separability of their respective juridical cause or basis of
action . . . .
What remains to be the most important consideration as to why the decision in
the criminal case should not be considered in this appeal is the fact that private
respondents were not parties therein. It would have been entirely different if the
petitioners' cause of action was for damages arising from a delict, in which case

It is readily apparent from the pleadings that the principal issue raised in this
petition is whether or not respondent Court's findings in its challenged resolution
are supported by evidence or are based on mere speculations, conjectures and
presumptions.
The principle is well-established that this Court is not a trier of facts. Therefore, in
an appeal by certiorari under Rule 45 of the Revised Rules of Court, only
questions of law may be raised. The resolution of factual issues is the function of
the lower courts whose findings on these matters are received with respect and
are, as a rule, binding on this Court. 42
The foregoing rule, however, is not without exceptions. Findings of facts of the
trial courts and the Court of Appeals may be set aside when such findings are not
supported by the evidence or when the trial court failed to consider the material
facts which would have led to a conclusion different from what was stated in its
judgment. 43The same is true where the appellate court's conclusions are grounded
entirely on conjectures, speculations and surmises44 or where the conclusions of the
lower courts are based on a misapprehension of facts. 45
It is at once obvious to this Court that the instant case qualifies as one of the
aforementioned exceptions as the findings and conclusions of the trial court and
the respondent Court in its challenged resolution are not supported by the
evidence, are based on an misapprehension of facts and the inferences made
therefrom are manifestly mistaken. The respondent Court's decision of 29
November 1983 makes the correct findings of fact.

In the assailed resolution, the respondent Court held that the fact that the car
improperly invaded the lane of the truck and that the collision occurred in said
lane gave rise to the presumption that the driver of the car, Jose Koh, was
negligent. On the basis of this presumed negligence, the appellate court
immediately concluded that it was Jose Koh's negligence that was the immediate
and proximate cause of the collision. This is an unwarranted deduction as the
evidence for the petitioners convincingly shows that the car swerved into the
truck's lane because as it approached the southern end of the bridge, two (2)
boys darted across the road from the right sidewalk into the lane of the car. As
testified to by petitioner Araceli Koh McKee:
Q What happened after that, as you approached
the bridge?
A When we were approaching the bridge, two (2)
boys tried to cross the right lane on the right side
of the highway going to San Fernando. My father,
who is (sic) the driver of the car tried to avoid the
two (2) boys who were crossing, he blew his horn
and swerved to the left to avoid hitting the two (2)
boys. We noticed the truck, he switched on the
headlights to warn the truck driver, to slow down
to give us the right of way to come back to our
right lane.

coming, my father stepped on the brakes and all

what (sic) I heard is the sound of impact (sic),
sir. 46
Her credibility and testimony remained intact even during cross examination.
Jose Koh's entry into the lane of the truck was necessary in order to avoid what
was, in his mind at that time, a greater peril death or injury to the two (2) boys.
Such act can hardly be classified as negligent.
Negligence was defined and described by this Court in Layugan vs. Intermediate
Appellate Court, 47 thus:
. . . Negligence is the omission to do something which a
reasonable man, guided by those considerations which ordinarily
regulate the conduct of human affairs, would do, or the doing of
something which a prudent and reasonable man would not do
(Black's Law Dictionary, Fifth Edition, 930), or as Judge Cooley
defines it, "(T)he failure to observe for the protection of the
interests of another person, that degree of care, precaution, and
vigilance which the circumstances justly demand, whereby such
other person suffers injury." (Cooley on Torts, Fourth Edition, vol.
3, 265)
In Picart vs. Smith (37 Phil 809, 813), decided more than seventy
years ago but still a sound rule, (W)e held:

Q Did the truck slow down?

A No sir, it did not, just (sic) continued on its way.
Q What happened after that?
A After avoiding the two (2) boys, the car tried to
go back to the right lane since the truck is (sic)

The test by which to determine the existence of

negligence in a particular case may be stated as
follows: Did the defendant in doing the alleged
negligent act use that(reasonable care and
caution which an ordinarily prudent person would
have used in the same situation?) If not, then he
is guilty of negligence. The law here in effect

adopts the standard supposed to be supplied by

the imaginary conduct of the
discreet paterfamiliasof the Roman
law. . . .
In Corliss vs. Manila Railroad Company, 48 We held:
. . . Negligence is want of the care required by the circumstances.
It is a relative or comparative, not an absolute, term and its
application depends upon the situation of the parties and the
degree of care and vigilance which the circumstances reasonably
require. Where the danger is great, a high degree of care is
necessary, and the failure to observe it is a want of ordinary care
under the circumstances. (citing Ahern v. Oregon Telephone Co.,
35 Pac. 549 (1894).
On the basis of the foregoing definition, the test of negligence and the facts
obtaining in this case, it is manifest that no negligence could be imputed to Jose
Koh. Any reasonable and ordinary prudent man would have tried to avoid running
over the two boys by swerving the car away from where they were even if this
would mean entering the opposite lane. Avoiding such immediate peril would be
the natural course to take particularly where the vehicle in the opposite lane
would be several meters away and could very well slow down, move to the side
of the road and give way to the oncoming car. Moreover, under what is known as
the emergency rule, "one who suddenly finds himself in a place of danger, and is
required to act without time to consider the best means that may be adopted to
avoid the impending danger, is not guilty of negligence, if he fails to adopt what
subsequently and upon reflection may appear to have been a better method,
unless the emergency in which he finds himself is brought about by his own
negligence." 49
Considering the sudden intrusion of the two (2) boys into the lane of the car, We
find that Jose Koh adopted the best means possible in the given situation to

avoid hitting them. Applying the above test, therefore, it is clear that he was not
guilty of negligence.
In any case, assuming, arguendo that Jose Koh is negligent, it cannot be said
that his negligence was the proximate cause of the collision. Proximate cause
has been defined as:
. . . that cause, which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury,
and without which the result would not have occurred. And more
comprehensively, the proximate legal cause is that acting first and
producing the injury, either immediately or by setting other events
in motion, all constituting a natural and continuous chain of
events, each having a close causal connection with its immediate
predecessor, the final event in the chain immediately effecting the
injury as a natural and probable result of the cause which first
acted, under such circumstances that the person responsible for
the first event should, as an ordinary prudent and intelligent
person, have reasonable ground to expect at the moment of his
act or default that an injury to some person might probably result
therefrom. 50
Applying the above definition, although it may be said that the act of Jose Koh, if
at all negligent, was the initial act in the chain of events, it cannot be said that the
same caused the eventual injuries and deaths because of the occurrence of a
sufficient intervening event, the negligent act of the truck driver, which was the
actual cause of the tragedy. The entry of the car into the lane of the truck would
not have resulted in the collision had the latter heeded the emergency signals
given by the former to slow down and give the car an opportunity to go back into
its proper lane. Instead of slowing down and swerving to the far right of the road,
which was the proper precautionary measure under the given circumstances, the
truck driver continued at full speed towards the car. The truck driver's negligence
becomes more apparent in view of the fact that the road is 7.50 meters wide

while the car measures 1.598 meters and the truck, 2.286 meters, in width. This
would mean that both car and truck could pass side by side with a clearance of
3.661 meters to spare. 51 Furthermore, the bridge has a level sidewalk which could
have partially accommodated the truck. Any reasonable man finding himself in the
given situation would have tried to avoid the car instead of meeting it head-on.
The truck driver's negligence is apparent in the records. He himself said that his
truck was running at 30 miles (48 kilometers) per hour along the bridge while the
maximum speed allowed by law on a bridge 52 is only 30 kilometers per hour.
Under Article 2185 of the Civil Code, a person driving a vehicle is presumed negligent
if at the time of the mishap, he was violating any traffic regulation. We cannot give
credence to private respondents' claim that there was an error in the translation by
the investigating officer of the truck driver's response in Pampango as to whether the
speed cited was in kilometers per hour or miles per hour. The law presumes that
official duty has been regularly performed; 53 unless there is proof to the contrary, this
presumption holds. In the instant case, private respondents' claim is based on mere
conjecture.
The truck driver's negligence was likewise duly established through the earlier
quoted testimony of petitioner Araceli Koh McKee which was duly corroborated
by the testimony of Eugenio Tanhueco, an impartial eyewitness to the mishap.
Araceli Koh McKee testified further, thus:
xxx xxx xxx
Q Mrs. how did you know that the truck driven by
the herein accused, Ruben Galang did not reduce
its speed before the actual impact of collision as
you narrated in this Exhibit "1," how did you
know?
A It just kept on coming, sir. If only he reduced his
speed, we could have got (sic) back to our right

lane on side (sic) of the highway, sir. (tsn, pp. 3334, July 22, 1977) or (Exhibit; "O" in these Civil
Cases) (pp. 30-31, Appellants' Brief) 54
while Eugenio Tanhueco testified thus:
Q When you saw the truck, how was it moving?
A It was moving 50 to 60 kilometers per hour, sir.
Q Immediately after you saw this truck, do you
know what happened?
A I saw the truck and a car collided (sic), sir, and I
went to the place to help the victims. (tsn. 28, April
19, 1979)
xxx xxx xxx
Q From the time you saw the truck to the time of
the impact, will you tell us if the said truck ever
stopped?
A I saw it stopped (sic) when it has (sic) already
collided with the car and it was already
motionless. (tsn. 31, April 19, 1979; Emphasis
Supplied). (p. 27, Appellants' Brief). 55
Clearly, therefore, it was the truck driver's subsequent negligence in failing to
take the proper measures and degree of care necessary to avoid the collision
which was the proximate cause of the resulting accident.

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

The practical import of the doctrine is that a negligent defendant

is held liable to a negligent plaintiff, or even to a plaintiff who has
been grossly negligent in placing himself in peril, if he, aware of
the plaintiff's peril, or according to some authorities, should have
been aware of it in the reasonable exercise of due care, had in
fact an opportunity later than that of the plaintiff to avoid an
accident (57 Am. Jur., 2d, pp. 798-799).
In Pantranco North Express, Inc., vs. Baesa, 58 We ruled:

In Bustamante vs. Court of Appeals,

57

We held:

The respondent court adopted the doctrine of "last clear chance."

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

The doctrine of last clear chance was defined by this Court in the
case of Ong v. Metropolitan Water District, 104 Phil. 397 (1958),
in this wise:
The doctrine of the last clear chance simply,
means that the negligence of a claimant does not
preclude a recovery for the negligence of
defendant where it appears that the latter, by
exercising reasonable care and prudence, might
have avoided injurious consequences to claimant
notwithstanding his negligence.
The doctrine applies only in a situation where the plaintiff was
guilty of prior or antecedent negligence but the defendant, who
had the last fair chance to avoid the impending harm and failed to
do so, is made liable for all the consequences of the accident
notwithstanding the prior negligence of the plaintiff [Picart v.
Smith, 37 Phil. 809 (1918); Glan People's Lumber and Hardware,
et al. vs. Intermediate Appellate Court, Cecilia Alferez Vda. de
Calibo, et al., G.R. No. 70493, May, 18, 1989]. The subsequent
negligence of the defendant in failing to exercise ordinary care to
avoid injury to plaintiff becomes the immediate or proximate
cause of the accident which intervenes between the accident and

the more remote negligence of the plaintiff, thus making the

defendant liable to the plaintiff [Picart v. Smith, supra].
Generally, the last clear chance doctrine is invoked for the
purpose of making a defendant liable to a plaintiff who was guilty
of prior or antecedent negligence, although it may also be raised
as a defense to defeat claim (sic) for damages.
Applying the foregoing doctrine, it is not difficult to rule, as We now rule, that it
was the truck driver's negligence in failing to exert ordinary care to avoid the
collision which was, in law, the proximate cause of the collision. As employers of
the truck driver, the private respondents are, under Article 2180 of the Civil Code,
directly and primarily liable for the resulting damages. The presumption that they
are negligent flows from the negligence of their employee. That presumption,
however, is only juris tantum, not juris et de jure. 59 Their only possible defense is
that they exercised all the diligence of a good father of a family to prevent the
damage. Article 2180 reads as follows:
The obligation imposed by Article 2176 is demandable not only
for one's own acts or omissions, but also for those of persons for
whom one is responsible.

The responsibility treated of in this article shall cease when the

persons herein mentioned prove that they observed all the
diligence of a good father of a family to prevent damage.
The diligence of a good father referred to means the diligence in the selection
and supervision of employees. 60The answers of the private respondents in Civil
Cases Nos. 4477 and 4478 did not interpose this defense. Neither did they attempt to
prove it.
The respondent Court was then correct in its Decision of 29 November 1983 in
reversing the decision of the trial court which dismissed Civil Cases Nos. 4477
and 4478. Its assailed Resolution of 3 April 1984 finds no sufficient legal and
factual moorings.
In the light of recent decisions of this Court, 61 the indemnity for death must,
however, be increased from P12,000.00 to P50,000.00.
WHEREFORE, the instant petition is GRANTED. The assailed Resolution of the
respondent Court of 3 April 1984 is SET ASIDE while its Decision of 29
November 1983 in C.A.-G.R. CV Nos. 69040-41 is REINSTATED, subject to the
modification that the indemnity for death is increased from P12,000.00 to
P50,000.00 each for the death of Jose Koh and Kim Koh McKee.

xxx xxx xxx

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

SO ORDERED.