Tnd Raw.docx

Tort through interference with a contract Gilchrist vs Cuddy An appeal by the defendants, Jose Fernandez Espejo and Mariano Zaldarriaga, from a judgment of the Court of First Instance of Iloilo, dismissing their crosscomplaint upon the merits for damages against the plaintiff for the alleged wrongful issuance of a mandatory and a preliminary injunction. Cuddy was the owner of the film Zigomar and that on the 24th of April he rented it to C. S. Gilchrist for a week for P125, and it was to be delivered on the 26th of May, the week beginning that day. A few days prior to this Cuddy sent the money back to Gilchrist, which he had forwarded to him in Manila, saying that he had made other arrangements with his film. The other arrangements was the rental to these defendants Espejo and his partner for P350 for the week and the injunction was asked by Gilchrist against these parties from showing it for the week beginning the 26th of May. It appears from the testimony in this case, conclusively, that Cuddy willfully violated his contract, he being the owner of the picture, with Gilchrist because the defendants had offered him more for the same period. Mr. Espejo admitted that he knew that Cuddy was the owner of the film. He was trying to get it through his agents Pathe Brothers in Manila. He is the agent of the same concern in Iloilo. the Pathe Brothers in Manila advised this man on two different occasions not to contend for this film Zigomar because the rental price was prohibitive and assured him also that he could not get the film for about six weeks. the agent in Manila could not get it, but he made Cuddy an offer himself and Cuddy accepted it because he was paying about three times as much as he had contracted with Gilchrist for. …

Cuddy, a resident of Manila, was the owner of the "Zigomar;" that Gilchrist was the owner of a cinematograph theater in Iloilo; that in accordance with the terms of the contract entered into between Cuddy and Gilchrist the former leased to the latter the "Zigomar" for exhibition in his (Gilchrist's) theater for the week beginning May 26, 1913; and that Cuddy willfully violate his contract in order that he might accept the appellant's offer of P350 for the film for the same period. Did

the appellants know that they were inducing Cuddy to violate his contract with a third party when they induced him to accept the P350? Espejo admitted that he knew that Cuddy was the owner of the film. He received a letter from his agents in Manila dated April 26, assuring him that he could not get the film for about six weeks. The arrangement between Cuddy and the appellants for the exhibition of the film by the latter on the 26th of May were perfected after April 26, so that the six weeks would include and extend beyond May 26. The appellants must necessarily have known at the time they made their offer to Cuddy that the latter had booked or contracted the film for six weeks from April 26. Therefore, the inevitable conclusion is that the appellants knowingly induced Cuddy to violate his contract with another person. But there is no specific finding that the appellants knew the identity of the other party. So we must assume that they did not know that Gilchrist was the person who had contracted for the film. The appellants take the position that if the preliminary injunction had not been issued against them they could have exhibited the film in their theater for a number of days beginning May 26, and could have also subleased it to other theater owners in the nearby towns and, by so doing, could have cleared, during the life of their contract with Cuddy, the amount claimed as damages. The right on the part of Gilchrist to enter into a contract with Cuddy for the lease of the film must be fully recognized and admitted by all. That Cuddy was liable in an action for damages for the breach of that contract, there can be no doubt. Were the appellants likewise liable for interfering with the contract between Gilchrist and Cuddy, they not knowing at the time the identity of one of the contracting parties? The appellants claim that they had a right to do what they did. The ground upon which the appellants base this contention is, that there was no valid and binding contract between Cuddy and Gilchrist and that, therefore, they had a right to compete with Gilchrist for the lease of the film, the right to compete being a justification for their acts. If there had been no contract between Cuddy and Gilchrist this defense would be tenable, but the mere right to compete could not justify the appellants in intentionally inducing Cuddy to take away the appellee's contractual rights. Chief Justice Wells in Walker vs. Cronin (107 Mass., 555), said: "Everyone has a right to enjoy the fruits and advantages of his own enterprise, industry, skill and

credit. He has no right to be free from malicious and wanton interference, disturbance or annoyance. If disturbance or loss come as a result of competition, or the exercise of like rights by others, it is damnum absque injuria, unless some superior right by contract or otherwise is interfered with."

It is said that the ground on which the liability of a third party for interfering with a contract between others rests, is that the interference was malicious. In the case at bar the only motive for the interference with the Gilchrist — Cuddy contract on the part of the appellants was a desire to make a profit by exhibiting the film in their theater. There was no malice beyond this desire; but this fact does not relieve them of the legal liability for interfering with that contract and causing its breach. It is, therefore, clear, under the above authorities, that they were liable to Gilchrist for the damages caused by their acts, unless they are relieved from such liability by reason of the fact that they did not know at the time the identity of the original lessee (Gilchrist) of the film. The liability of the appellants arises from unlawful acts and not from contractual obligations, as they were under no such obligations to induce Cuddy to violate his contract with Gilchrist. So that if the action of Gilchrist had been one for damages, it would be governed by chapter 2, title 16, book 4 of the Civil Code. Article 1902 of that code provides that a person who, by act or omission, causes damages to another when there is fault or negligence, shall be obliged to repair the damage do done. There is nothing in this article which requires as a condition precedent to the liability of a tort-feasor that he must know the identity of a person to whom he causes damages. In fact, the chapter wherein this article is found clearly shows that no such knowledge is required in order that the injured party may recover for the damage suffered. Does the fact that the appellants did not know at the time the identity of the original lessee of the film militate against Gilchrist's right to a preliminary injunction, although the appellant's incurred civil liability for damages for such interference? There is nothing in section 164 of the Code of Civil Procedure which indicates, even remotely, that before an injunction may issue restraining the wrongful

interference with contrast by strangers, the strangers must know the identity of both parties. The case at bar is somewhat novel, as the only contract which was broken was that between Cuddy and Gilchrist, and the profits of the appellee depended upon the patronage of the public, for which it is conceded the appellants were at liberty to compete, the novelty of the facts does not deter the application of equitable principles. it is quite common for the proprietor of the theater to secure an especially attractive exhibit as his "feature film" and advertise it as such in order to attract the public. failure to exhibit the feature film will reduce the receipts of the theater. Hence, Gilchrist was facing the immediate prospect of diminished profits by reason of the fact that the appellants had induced Cuddy to rent to them the film Gilchrist had counted upon as his feature film. If he allowed the appellants to exhibit the film in Iloilo, it would be useless for him to exhibit it again, as the desire of the public to witness the production would have been already satisfied. In this extremity, the appellee applied for and was granted, as we have indicated, a mandatory injunction against Cuddy requiring him to deliver the Zigomar to Gilchrist, and a preliminary injunction against the appellants restraining them from exhibiting that film in their theater during the weeks he (Gilchrist) had a right to exhibit it. These injunction saved the plaintiff harmless from damages due to the unwarranted interference of the defendants

In the case of the Nashville R. R. Co. vs. McConnell (82 Fed., 65), the court, among other things, said: "One who wrongfully interferes in a contract between others, and, for the purpose of gain to himself induces one of the parties to break it, is liable to the party injured thereby; and his continued interference may be ground for an injunction where the injuries resulting will be irreparable." In Beekman vs. Marsters (195 Mass., 205 The defendant induced the hotel corporation to break their contract with the plaintiff in order to allow him to act also as their agent in the New England States. The court held that an action for damages would not have afforded the plaintiff adequate relief, and that an

injunction was proper compelling the defendant to desist from further interference with the plaintiff's exclusive contract with the hotel company. In 3 Elliot on Contracts, section 2511, it is said: "Injunction is the proper remedy to prevent a wrongful interference with contract by strangers to such contracts where the legal remedy is insufficient and the resulting injury is irreparable. For the foregoing reasons the judgment is affirmed, with costs, against the appellants. Doctrine of Last Clear Chance Picarty vs Smith Bustamante vs CA Facts: At about 6:30 in the morning of April 20, 1983, a collision occurred between a gravel and sand truck and a Mazda passenger bus 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. 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." the trial court reached the conclusion "that the negligent acts of both drivers contributed to or combined with each other. . In view of this, the liability of the two drivers for their negligence must be solidary. Issue: 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. Ruling: 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. The respondent court (CA) 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). 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." 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). 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. 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.

Phoenix construction vs IAC Facts: 1.30am Issue: There are four factual issues that need to be looked into: (a) whether or not private respondent Dionisio had a curfew pass valid and effective for that eventful night; (b) whether Dionisio was driving fast or speeding just before the collision with the dump truck; (c) whether Dionisio had purposely turned off his car's headlights before contact with the dump truck or whether those headlights accidentally malfunctioned moments before the collision; and (d) whether Dionisio was intoxicated at the time of the accident.

Ruling: 1st issue -no curfew pass was found on the person of Dionisio immediately after the accident nor was any found in his car.

The relevance of possession or non-possession of a curfew pass that night lies in the light it tends to shed on the other related issues: whether Dionisio was speeding home and whether he had indeed purposely put out his headlights before the accident, in order to avoid detection and possibly arrest by the police in the nearby police station for travelling after the onset of curfew without a valid curfew pass. Issue Ruling: Petitioners also ask us to apply what they refer to as the "last clear chance" doctrine. The theory here of petitioners is that while the petitioner truck driver was negligent, private respondent Dionisio had the "last clear chance" of avoiding the accident and hence his injuries, and that Dionisio having failed to take that "last clear chance" must bear his own injuries alone. The last clear chance doctrine of the common law was imported into our jurisdiction by Picart vs. Smith 11 but it is a matter for debate whether, or to what extent, it has found its way into the Civil Code of the Philippines. The historical function of that doctrine in the common law was to mitigate the harshness of another common law doctrine or rule that of contributory negligence. 12 The common law rule of contributory negligence prevented any recovery at all by a plaintiff who was also negligent, even if the plaintiff's negligence was relatively minor as compared with the wrongful act or omission of the defendant. 13 The common law notion of last clear chance permitted courts to grant recovery to a plaintiff who had also been negligent provided that the defendant had the last clear chance to avoid the casualty and failed to do so. 14 Accordingly, it is difficult to see what role, if any, the common law last clear chance doctrine has to play in a jurisdiction where the common law concept of contributory negligence as an absolute bar to recovery by the plaintiff, has itself been rejected, as it has been in Article 2179 of the Civil Code of the Philippines. 15 Is there perhaps a general concept of "last clear chance" that may be extracted from its common law matrix and utilized as a general rule in negligence cases in a civil law jurisdiction like ours? We do not believe so. Under Article 2179, the task of a court, in technical terms, is to determine whose negligence — the plaintiff's or the defendant's — was the legal or proximate cause of the injury. That task is

not simply or even primarily an exercise in chronology or physics, as the petitioners seem to imply by the use of terms like "last" or "intervening" or "immediate." The relative location in the continuum of time of the plaintiff's and the defendant's negligent acts or omissions, is only one of the relevant factors that may be taken into account. Of more fundamental importance are the nature of the negligent act or omission of each party and the character and gravity of the risks created by such act or omission for the rest of the community. The petitioners urge that the truck driver (and therefore his employer) should be absolved from responsibility for his own prior negligence because the unfortunate plaintiff failed to act with that increased diligence which had become necessary to avoid the peril precisely created by the truck driver's own wrongful act or omission. To accept this proposition is to come too close to wiping out the fundamental principle of law that a man must respond for the forseeable consequences of his own negligent act or omission. Our law on quasi-delicts seeks to reduce the risks and burdens of living in society and to allocate them among the members of society. To accept the petitioners' pro-position must tend to weaken the very bonds of society. Petitioner Carbonel's proven negligence creates a presumption of negligence on the part of his employer Phoenix 16 in supervising its employees properly and adequately. The respondent appellate court in effect found, correctly in our opinion, that Phoenix was not able to overcome this presumption of negligence. The circumstance that Phoenix had allowed its truck driver to bring the dump truck to his home whenever there was work to be done early the following morning, when coupled with the failure to show any effort on the part of Phoenix to supervise the manner in which the dump truck is parked when away from company premises, is an affirmative showing of culpa in vigilando on the part of Phoenix. WHEREFORE, the decision of the respondent appellate court is modified by reducing the aggregate amount of compensatory damages, loss of expected income and moral damages private respondent Dionisio is entitled to by 20% of such amount. Costs against the petitioners.

Pantranco vs baesa

Facts: 1. CIVIL LAW; DAMAGES; LAST CLEAR CHANCE DOCTRINE; WHEN APPLICABLE. — The doctrine of last clear chance applies only in a situation where the defendant, having the last fair chance to avoid the impending harm and failed to do so, becomes liable for all the consequences of the accident notwithstanding the prior negligence of the plaintiff. 2. ID.; ID.; ID.; CONDITION TO MAKE DOCTRINE APPLICABLE. — In order that the doctrine of last clear chance may be applied, it must be shown that the person who allegedly had the last opportunity to avert the accident was aware of the existence of the peril or with exercise of due care should have been aware of it. 3. ID.; ID.; ID.; NOT APPLICABLE TO PERSON ACTING INSTANTANEOUSLY OR BY AVAILABLE MEANS. — This doctrine of last chance has no application to a case where a person is to act instantaneously, and if the injury cannot be avoided by using all means available after the peril is or should have been discovered. 4. ID.; ID.; PROVISION OF R.A. NO. 4136 RE VEHICLE ENTERING A THROUGH HIGHWAY OR A STOP INTERSECTION. — Section 43 (c), Article III, Chapter IV of Republic Act No. 1436 cannot apply to case a bar where at the time of the accident, the jeepney had already crossed the intersection. 5. ID.; ID.; NEGLIGENCE; BURDEN OF PROOF LIES ON THE EMPLOYER. — A finding of negligence on the part of the driver establishes a presumption that the employer has been negligent and the latter has the burden of proof that it has exercised due negligence not only in the selection of its employees but also in adequately supervising their work. At about 7:00 o’clock in the morning of June 12, 1981, the spouses Ceasar and Marilyn Baesa and their children Harold Jim, Marcelino and Maricar, together with spouses David Ico and Fe O. Ico with their son Erwin Ico and seven other persons, were aboard a passenger jeepney on their way to a picnic at Malalam River, Ilagan, Isabela, to celebrate the fifth wedding anniversary of Ceasar and Marilyn Baesa.

Upon reaching the highway, the jeepney turned right and proceeded to Malalam River at a speed of about 20 kph. While they were proceeding towards Malalam River, a speeding PANTRANCO bus from Aparri, on its regular route to Manila, encroached on the jeepney’s lane while negotiating a curve, and collided with it. Deaths+in juries. Ramirez has never been seen and has apparently remained in hiding. Maricar Baesa through her guardian Francisca O. Bascos and Fe O. Ico for herself and for her minor children, filed separate actions for damages arising from quasidelict against PANTRANCO, respectively docketed as Civil Case No. 561-R and 589R of the Court of First Instance of Pangasinan. In its answer, PANTRANCO, aside from pointing to the late David Ico’s alleged negligence as the proximate cause of the accident, invoked the defense of due diligence in the selection and supervision of its driver, Ambrosio Ramirez.chanroblesvirtualawlibrary Petitioner faults the Court of Appeals for not applying the doctrine of the "last clear chance" against the jeepney driver. Petitioner claims that under the circumstances of the case, it was the driver of the passenger jeepney who had the last clear chance to avoid the collision and was therefore negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm. To avoid liability for the negligence of its driver, petitioner claims that the original negligence of its driver was not the proximate cause of the accident and that the sole proximate cause was the supervening negligence of the jeepney driver David Ico in failing to avoid the accident. It is petitioner’s position that even assuming arguendo, that the bus encroached into the lane of the jeepney, the driver of the latter could have swerved the jeepney towards the spacious dirt shoulder on his right without danger to himself or his passengers.

Issue:

Ruling: The above contention of petitioner is manifestly devoid of merit. Contrary to the petitioner’s contention, the doctrine of "last clear chance" finds no application in this case. For the doctrine to be applicable, it is necessary to show that the person who allegedly had the last opportunity to avert the accident was aware of the existence of the peril or should, with exercise of due care, have been aware of it. One cannot be expected to avoid an accident or injury if he does not know or could not have known the existence of the peril. In this case, there is nothing to show that the jeepney driver David Ico knew of the impending danger. When he saw at a distance that the approaching bus was encroaching on his lane, he did not immediately swerve the jeepney to the dirt shoulder on his right since he must have assumed that the bus driver will return the bus to its own lane upon seeing the jeepney approaching from the opposite direction. As held by this Court in the case of Vda. De Bonifacio v. BLTB, G.R. No. L-26810, August 31, 1970, 34 SCRA 618, a motorist who is properly proceeding on his own side of the highway is generally entitled to assume that an approaching vehicle coming towards him on the wrong side, will return to his proper lane of traffic. There was nothing to indicate to David Ico that the bus could not return to its own lane or was prevented from returning to the proper lane by anything beyond the control of its driver. Leo Marantan, an alternate driver of the Pantranco bus who was seated beside the driver Ramirez at the time of the accident, testified that Ramirez had no choice but to swerve the steering wheel to the left and encroach on the jeepney’s lane because there was a steep precipice on the right [CA Decision, p. 2; Rollo, p. 45]. However, this is belied by the evidence on record which clearly shows that there was enough space to swerve the bus back to its own lane without any danger [CA Decision, p. 7; Rollo, p. 50]. Moreover, both the trial court and the Court of Appeals found that at the time of the accident the Pantranco bus was speeding towards Manila [CA Decision, p. 2; Rollo, p. 45]. By the time David Ico must have realized that the bus was not returning to its own lane, it was already too late to swerve the jeepney to his right to prevent an accident. The speed at which the approaching bus was running prevented David Ico from swerving the jeepney to the right shoulder of the road in time to avoid the collision. Thus, even assuming that the jeepney driver

perceived the danger a few seconds before the actual collision, he had no opportunity to avoid it. This Court has held that the last clear chance doctrine "can never apply where the party charged is required to act instantaneously, and if the injury cannot be avoided by the application of all means at hand after the peril is or should have been discovered" Moreover, both the trial court and the Court of Appeals found that at the time of the accident the Pantranco bus was speeding towards Manila [CA Decision, p. 2; Rollo, p. 45]. By the time David Ico must have realized that the bus was not returning to its own lane, it was already too late to swerve the jeepney to his right to prevent an accident. The speed at which the approaching bus was running prevented David Ico from swerving the jeepney to the right shoulder of the road in time to avoid the collision. Thus, even assuming that the jeepney driver perceived the danger a few seconds before the actual collision, he had no opportunity to avoid it. This Court has held that the last clear chance doctrine "can never apply where the party charged is required to act instantaneously, and if the injury cannot be avoided by the application of all means at hand after the peril is or should have been discovered" [Ong v. Metropolitan Water District, supra].chanrobles.com : virtual law library Petitioner likewise insists that David Ico was negligent in failing to observe Section 43 (c), Article III Chapter IV of Republic Act No. 4136 * which provides that the driver of a vehicle entering a through highway or a stop intersection shall yield the right of way to all vehicles approaching in either direction on such through highway. Petitioner’s misplaced reliance on the aforesaid law is readily apparent in this case. The cited law itself provides that it applies only to vehicles entering a through highway or a stop intersection. At the time of the accident, the jeepney had already crossed the intersection and was on its way to Malalam River. Petitioner itself cited Fe Ico’s testimony that the accident occurred after the jeepney had travelled a distance of about two (2) meters from the point of intersection [Petition p. 10; Rollo, p. 27]. In fact, even the witness for the petitioner, Leo Marantan, testified that both vehicles were coming from opposite directions [CA Decision, p. 7; Rollo, p. 50], clearly indicating that the jeepney had

already crossed the intersection. Considering the foregoing, the Court finds that the negligence of petitioner’s driver in encroaching into the lane of the incoming jeepney and in failing to return the bus to its own lane immediately upon seeing the jeepney coming from the opposite direction was the sole and proximate cause of the accident without which the collision would not have occurred. There was no supervening or intervening negligence on the part of the jeepney driver which would have made the prior negligence of petitioner’s driver a mere remote cause of the accident. WHEREFORE, premises considered, the petition is DENIED, and the decision of respondent Court of Appeals is hereby AFFIRMED with the modification that the amount of compensatory damages for the death of Harold Jim Baesa and Marcelino Baesa are increased to Thirty Thousand Pesos (P30,000.00) each.

Rakes vs Atlantic gulf Bernal and enverso vs house Facts: On the evening of April 10, 1925, the procession of Holy Friday was held in Tacloban, Leyte. Fortunata Enverso with her daughter Purificacion Bernal came from another municipality to attend the religious celebration. After the procession was over, the woman and her daughter, accompanied by two other persons by the names of Fausto and Elias, passed along a public street named Gran Capitan. The little girl was allowed to get a short distance in advance of her mother and her friends. When in front of the offices of the Tacloban Electric & Ice Plant, Ltd., and automobile appeared from the opposite direction which so frightened the child that she turned to run, with the result that she fell into the street gutter. At that time there was hot water in this gutter or ditch coming from the Electric Ice Plant of J.V. House. When the mother and her companions reached the child, they found her face downward in the hot water. Her clothes were immediately removed and, then covered with a garment, the girl was taken to the provincial hospital. There she was attended by the resident physician, Dr. Victoriano A. Benitez. Despite his efforts, the child died that same night at 11:40 o'clock.

Dr. Benitez - cause of death was "Burns, 3rd Degree, whole Body", and that the contributory causes were "Congestion of the Brain and visceras of the chest & abdomen". The defense was that the hot water was permitted to flow down the side of the street Gran Captain with the knowledge and consent of the authorities; that the cause of death was other than the hot water; and that in the death the plaintiffs contributed by their own fault and negligence. Although the trial judge made the findings of fact hereinbefore outlined, he nevertheless was led to order the dismissal of the action because of the contributory negligence of the plaintiffs. Issue: Ruling: The mother and her child had a perfect right to be on the principal street of Tacloban, Leyte, on the evening when the religious procession was held. There was nothing abnormal in allowing the child to run along a few paces in advance of the mother. No one could foresee the coincidence of an automobile appearing and of a frightened child running and falling into a ditch filled with hot water. The doctrines announced in the much debated case of Rakes vs. Atlantic, Gulf and Pacific Co. ([1907], 7 Phil., 359), still rule. Article 1902 of the Civil Code must again be enforced. The contributory negligence of the child and her mother, if any, does not operate as a bar to recovery, but in its strictest sense could only result in reduction of the damages. Having reached the conclusion that liability exists, we next turn to discover who can recover damages for the obligation, and against whom the action will lie. The plaintiffs are Tomas Bernal and Fortunata Enverso. The latter was the mother of Purificacion Bernal and the former was the natural father, who had never legally recognized his child. The daughter lived with the mother, and presumably was supported by her. Under these facts, recovery should be permitted the mother but not the father. As to the defendants, they are J.V. House and the Tacloban Electric & Ice Plant, Ltd., J.V. House was granted a franchise by Act No. 2700 of the Philippine Legislature approved on March 9, 1917. He only transferred this franchise formally to the Tacloban Electric & Ice Plant, Ltd. on March 30, 1926,

that is, nearly a year after the death of the child Purificacion Bernal. Under these facts, J.V. House is solely responsible. The result will, therefore, be to accept the findings of fact made by the trial judge; to set aside the legal deductions flowing from those facts; to hold that the death of the child Purificacion Bernal was the result of fault and negligence in permitting hot water to flow through the public streets, there to endanger the lives of passers-by who were unfortunately enough to fall into it; to rule that the proper plaintiff is the mother Fortunata Enverso and not the natural father Tomas Bernal; to likewise rule that the person responsible to the plaintiff is J.V. House and not the entity the Tacloban Electric & Ice Plant, Ltd.; and finally to adjudge that the amount of recovery, without the tendering of special proof, should be fixed, as in other cases, at P1,000. Concordant with the pronouncements just made, the judgment appealed from shall in part be reversed and in the court of origin another judgment shall issue in favor of Fortunata Enverso and against J.V. House for the amount of P1,000, and for the costs of both instances. Manila electric co vs remoquillo Facts: On August 22, 1950, Efren Magno went to the 3-story house of Antonio Peñaloza, his stepbrother, located on Rodriguez Lanuza Street, Manila, to repair a “media agua” said to be in a leaking condition. The “media agua” was just below the window of the third story. Standing on said “media agua”, Magno received from his son thru that window a 3’ X 6’ galvanized iron sheet to cover the leaking portion, turned around and in doing so the lower end of the iron sheet came into contact with the electric wire of the Manila Electric Company (later referred to as the Company) strung parallel to the edge of the “media agua” and 2 1/2 feet from it, causing his death by electrocution. “The electric wire in question was an exposed, uninsulated primary wire stretched between poles on the street and carrying a charge of 3,600 volts. It was installed there some two years before Peñaloza’s house was constructed. The record shows that during the construction of said house a similar incident took place, although fortunate]y with much less tragic consequences. A piece of wood which a

carpenter was holding happened to come in contact with the same wire, producing some sparks. The owner of the house forthwith complained to Defendant about the danger which the wire presented, and as a result Defendant moved one end of the wire farther from the house by means of a brace, but left the other end where it was. “At any rate, as revealed by the ocular inspection of the premises ordered by the trial court, the distance from the electric wire to the edge of the ‘media agua’ on which the deceased was making repairs was only 30 inches or 2 1/2 feet. Regulations of the City of Manila required that ‘all wires be kept three feet from the building.’ “It is a fact that the owner of the house exceeded the limit fixed in the permit given to him by the city authorities for the construction of the ‘media agua’, and that if he had not done so Appellants wire would have been 11 3/8 (inches) more than the required distance of three feet from the edge of the ‘media agua’. It is also a fact, however, that after the ‘media agua’ was constructed the owner was given a final permit of occupancy of the house.” The wire was an exposed, high tension wire carrying a load of 3,600 volts. There was, according to Appellant, no insulation that could have rendered it safe, first, because there is no insulation material in commercial use for such kind of wire; chan roblesvirtualawlibraryand secondly, because the only insulation material that may be effective is still in the experimental stage of development and, anyway, its costs would be prohibitive… ” Issue Ruling: we are inclined to agree to the contention of Petitioner Company that the death of Magno was primarily caused by his own negligence and in some measure by the too close proximity of the “media agua” or rather its edge to the electric wire of the company by reason of the violation of the original permit given by the city and the subsequent approval of said illegal construction of the “media agua”. We fail to see how the Company could be held guilty of negligence or as lacking in due diligence. Although the city ordinance called for a distance of 3 feet of its wires from any building, there was actually a distance of 7 feet and 2 3/4 inches of the

wires from the side of the house of Peñaloza. Even considering said regulation distance of 3 feet as referring not to the side of a building, but to any projecting part thereof, such as a “media agua”, had the house owner followed the terms of the permit given him by the city for the construction of his “media agua”, namely, one meter or 39 3/8 inches wide, the distance from the wires to the edge of said “media agua” would have been 3 feet and 11 3/8 inches. In fixing said one meter width for the “media agua” the city authorities must have wanted to preserve the distance of at least 3 feet between the wires and any portion of a building. Unfortunately, however, the house owner disregarding the permit, exceeded the one meter fixed by the same by 17 3/8 inches and leaving only a distance of 2 1/2 feet between the “Media agua” as illegally constructed and the electric wires. And added to this violation of the permit by the house owner, was its approval by the city through its agent, possibly an inspector. Surely we cannot lay these serious violations of a city ordinance and permit at the door of the Company, guiltless of breach of any ordinance or regulation. The Company cannot be expected to be always on the lookout for any illegal construction which reduces the distance between its wires and said construction, and after finding that said distance of 3 feet had been reduced, to change the stringing or installation of its wires so as to preserve said distance. It would be much easier for the City, or rather it is its duty, to be ever on the alert and to see to it that its ordinances are strictly followed by house owners and to condemn or disapprove all illegal constructions. Of course, in the present case, the violation of the permit for the construction of the “media agua” was not the direct cause of the accident. It merely contributed to it. Had said “media agua” been only one meter wide as allowed by the permit, Magno standing on it, would instinctively have stayed closer to or hugged the side of the house in order to keep a safe margin between the edge of the “media agua” and the yawning 2-story distance or height from the ground, and possibly if not probably avoided the fatal contact between the lower end of the iron sheet and the wires. We realize that the presence of the wires in question quite close to the house or its “media agua” was always a source of danger considering their high voltage and uninsulated as they were, but the claim of the company and the reasons given by it for not insulating said wires were unrefuted as we gather from the findings of the Court of Appeals, and so we have to accept them as satisfactory.

Consequently, we may not hold said company as guilty of negligence or wanting in due diligence in failing to insulate said wires. As to their proximity to the house it is to be supposed that distance of 3 feet was considered sufficiently safe by the technical men of the city such as its electrician or engineer. Of course, a greater distance of say 6 feet or 12 feet would have increased the margin of safety but other factors had to be considered such as that the wires could not be strung or the posts supporting them could not be located too far toward the middle of the street. Thus, the real cause of the accident or death was the reckless or negligent act of Magno himself. When he was called by his stepbrother to repair the “media agua” just below the third story window, it is to be presumed that due to his age and experience he was qualified to do so. Perhaps he was a tinsmith or carpenter and had training and experience for the job. So, he could not have been entirely a stranger to electric wires and the danger lurking in them. But unfortunately, in the instant care, his training and experience failed him, and forgetting where he was standing, holding the 6-feet iron sheet with both hands and at arms length, evidently without looking, and throwing all prudence and discretion to the winds, he turned around swinging his arms with the motion of his body, thereby causing his own electrocution. To us it is clear that the principal and proximate cause of the electrocution was not the electric wire, evidently a remote cause, but rather the reckless and negligent act of Magno in turning around and swinging the galvanized iron sheet without taking any precaution, such as looking back toward the street and at the wire to avoid its contacting said iron sheet, considering the latter’s length of 6 feet. For a better understanding of the rule on remote and proximate cause with respect to injuries, we find the following citation helpful:chanroblesvirtuallawlibrary “A prior and remote cause cannot be made the basis of an action if such remote cause did nothing more than furnish the condition or give rise to the occasion by which the injury was made possible, if there intervened between such prior or remote cause and the injury a distinct, successive, unrelated, and efficient cause of the injury, even though such injury would not have happened but for such condition or occasion. If no danger existed in the condition except because of the independent cause, such condition was not the proximate cause. And if an independent negligent act or defective condition sets into operation the

circumstances which result in injury because of the prior defective condition, such subsequent act or condition is the proximate cause.” (45 C.J. pp. 931-332.). We realize that the stringing of wires of such high voltage (3,600 volts), uninsulated and so close to houses is a constant source of danger, even death, especially to persons who having occasion to be near said wires, do not adopt the necessary precautions. But may be, the City of Manila authorities and the electric company could get together and devise means of minimizing this danger to the public. Just as the establishment of pedestrian lanes in city thoroughfares may greatly minimize danger to pedestrians because drivers of motor vehicles may expect danger and slow down or even stop and take other necessary precaution upon approaching said lanes, so, a similar way may possibly be found. Since these high voltage wires cannot be properly insulated and at reasonable cost, they might perhaps be strung only up to the outskirts of the city where there are few houses and few pedestrians and there step-down to a voltage where the wires carrying the same to the city could be properly insulated for the better protection of the public. In view of all the foregoing, the appealed decision of the Court of Appeals is hereby reversed and the complaint filed against the Company is hereby dismissed. No costs.

NPC vs CA Facts Issue Ruling