Torts Case Digests 5.docx

Torts and Damages Case Digests 5 Definition and Test of Negligence PNR v. CA and Heirs of Amores Duty of railroad operators FACTS: In the early afternoon of April 27, 1992, Jose Amores (Amores) was traversing the railroad tracks in Kahilum II Street, Pandacan, Manila. Before crossing the railroad track, he stopped for a while then proceeded accordingly.3 Unfortunately, just as Amores was at the intersection, a Philippine National Railways’ (PNR) train with locomotive number T-517 turned up and collided with the car. At the time of the mishap, there was neither a signal nor a crossing bar at the intersection to warn motorists of an approaching train. Aside from the railroad track, the only visible warning sign at that time was the defective standard signboard "STOP, LOOK and LISTEN" wherein the sign "Listen" was lacking while that of "Look" was bent.5 No whistle blow from the train was likewise heard before it finally bumped the car of Amores.6 After impact, the car was dragged about ten (10) meters beyond the center of the crossing.7 Amores died as a consequence thereof. In their complaint, respondents averred that the train’s speedometer was defective, and that the petitioners’ negligence was the proximate cause of the mishap for their failure to take precautions to prevent injury to persons and property despite the dense population in the vicinity. They then prayed for actual and moral damages, as well as attorney’s fees.9 In their Answer,10 the petitioners denied the allegations, stating that the train was railroad-worthy and without any defect. According to them, the proximate cause of the death of Amores was his own carelessness and negligence, and Amores wantonly disregarded traffic rules and regulations in crossing the railroad tracks and trying to beat the approaching train. They admitted that there was no crossing bar at the site of the accident because it was merely a barangay road.11 PNR stressed that it exercised the diligence of a good father of a family in the selection and supervision of the locomotive driver and train engineer, Borja, and that the latter likewise used extraordinary diligence and caution to avoid the accident. RTC ruled in favour of PNR but was reversed by CA, ruling that: The court based the petitioners’ negligence on the failure of PNR to install a semaphore or at the very least, to post a flagman, considering that the crossing is located in a thickly populated area. Moreover, the signboard "Stop, Look and Listen" was found insufficient because of its defective condition as described above. Lastly, no negligence could be attributed to Amores as he exercised reasonable diligence in crossing the railroad track. ISSUE: Whether PNR is negligent RULING: YES, it is negligent

We have thoroughly reviewed the records of the case and we find no cogent reason to reverse the appellate court’s decision. Negligence has been defined as "the 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."15 Using the aforementioned philosophy, it may be reliably concluded that there is no hard and fast rule whereby such degree of care and vigilance is calibrated; it is dependent upon the circumstances in which a person finds himself. All that the law requires is that it is perpetually compelling upon a person to use that care and diligence expected of sensible men under comparable circumstances.16 We hold that the petitioners were negligent when the collision took place. The transcript of stenographic notes reveals that the train was running at a fast speed because notwithstanding the application of the ordinary and emergency brakes, the train still dragged the car some distance away from the point of impact. Evidence likewise unveils the inadequate precautions taken by petitioner PNR to forewarn the public of the impending danger. Aside from not having any crossing bar, no flagman or guard to man the intersection at all times was posted on the day of the incident. A reliable signaling device in good condition, not just a dilapidated "Stop, Look and Listen" signage because of many years of neglect, is needed to give notice to the public. It is the responsibility of the railroad company to use reasonable care to keep the signal devices in working order. Failure to do so would be an indication of negligence. It is true that one driving an automobile must use his faculties of seeing and hearing when nearing a railroad crossing.1âwphi1 However, the obligation to bring to a full stop vehicles moving in public highways before traversing any "through street" only accrues from the time the said "through street" or crossing is so designated and sign-posted. From the records of the case, it can be inferred that Amores exercised all the necessary precautions required of him as to avoid injury to himself and to others.1âwphi1 The witnesses’ testimonies showed that Amores slackened his speed, made a full stop, and then proceeded to cross the tracks when he saw that there was no impending danger to his life. Under these circumstances, we are convinced that Amores did everything, with absolute care and caution, to avoid the collision. It is settled that every person or motorist crossing a railroad track should use ordinary prudence and alertness to determine the proximity of a train before attempting to cross. We are persuaded that the circumstances were beyond the control of Amores for no person would sacrifice his precious life if he had the slightest opportunity to evade the catastrophe. Besides, the authority in this jurisdiction is that the failure of a railroad company to install a semaphore or at the very least, to post a flagman or watchman to warn the public of the passing train amounts to negligence. E.M. Wright v. Manila Electric Is intoxication on the part of plaintiff a contributory negligence FACTS: On the night mentioned plaintiff drove home in a calesa and in crossing the tracks to enter his premises the horse stumbled, leaped forward, and fell, causing the vehicle with the rails, resulting in a sudden stop, threw plaintiff from the vehicle and caused the injuries complained of.

It is undisputed that at the point where plaintiff crossed the tracks on the night in question not only the rails were above-ground, but that the ties upon which the rails rested projected from one-third to one-half of their depth out of the ground, thus making the tops of the rails some 5 or 6 inches or more above the level of the street. It is admitted that the defendant was negligent in maintaining its tracks as described, but it is contended that the plaintiff was also negligent in that he was intoxicated to such an extent at the time of the accident that he was unable to take care of himself properly and that such intoxication was the primary cause of the accident. Trial court ruled that both are negligent, and by jurisprudence mitigated the damages claimed by plaintiff. ISSUE: Whether plaintiff’s intoxication contributed or was the proximate cause of his injuries RULING: NO, it is not the proximate nor a contributory cause A careful reading of the decision of the trial court leads us to the conclusion that there is nothing in the opinion which sustains the conclusion of the court that the plaintiff was negligent with reference to the accident which is the basis of this action. Mere intoxication establish a want of ordinary care. It is but a circumstance to be considered with the other evidence tending to prove negligence. It is the general rule that it is immaterial whether a man is drunk or sober if no want of ordinary care or prudence can be imputed to him, and no greater degree of care is required than by a sober one. If one's conduct is characterized by a proper degree of care and prudence, it is immaterial whether he is drunk or sober. As is clear from reading the opinion, no facts are stated therein which warrant the conclusion that the plaintiff was negligent. The conclusion that if he had been sober he would not have been injured is not warranted by the facts as found. It is impossible to say that a sober man would not have fallen from the vehicle under the conditions described. A horse crossing the railroad tracks with not only the rails but a portion of the ties themselves aboveground, stumbling by reason of the unsure footing and falling, the vehicle crashing against the rails with such force as to break a wheel, this might be sufficient to throw a person from the vehicle no matter what his condition; and to conclude that, under such circumstances, a sober man would not have fallen while a drunken man did, is to draw a conclusion which enters the realm of speculation and guesswork. La Mallorca v. Valentin De Jesus Fortuitous event not a valid defense if concurred with negligence FACTS: The suit arose by reason of the death of Lolita de Jesus, 20-year old daughter of Valentin de Jesus and wife of Manolo Tolentino, in a head-on collision between petitioner's bus, on which she was a passenger, and a freight truck traveling in the opposite direction, in a barrio in Marilao

Bulacan, in the morning of October 8, 1959. The immediate cause of the collision was the fact that the driver of the bus lost control of the wheel when its left front tire suddenly exploded. La Mallorca-Pambusco, filed this appeal by certiorari from the decision of the Court of Appeals which affirmed that rendered by the Court of First Instance of Bulacan in its civil case No. 2100, entitled "Valentin de Jesus and Manolo Tolentino vs. La Mallorca-Pambusco." The court a quo sentenced the defendant, now petitioner, to pay damages Petitioner maintains that a tire blow-out is a fortuitous event and gives rise to no liability for negligence ISSUE: Whether the tire blow-out is considered as fortuitous event RULING: NO, it is not fortuitous event The appellate Court there (in the case cited by petitioner as support on their defense) made no findings of any specified acts of negligence on the part of the defendants and confined itself to the question of whether or not a tire blow-out, by itself alone and without a showing as to the causative factors, would generate liability. In the present case, the cause of the blow-out was known. The inner tube of the left front tire, according to petitioner's own evidence and as found by the Court of Appeals "was pressed between the inner circle of the left wheel and the rim which had slipped out of the wheel." This was, said Court correctly held, a mechanical defect of the conveyance or a fault in its equipment which was easily discoverable if the bus had been subjected to a more thorough, or rigid check-up before it took to the road that morning. Then again both the trial court and the Court of Appeals found as a fact that the bus was running quite fast immediately before the accident. Considering that the tire which exploded was not new — petitioner describes it as "hindi masyadong kalbo," or not so very worn out — the plea of caso fortuito cannot be entertained. Equitable Bank v. Tan Negligence of the bank of debiting in advance a post dated check FACTS: Respondent Arcelito B.Tan maintained a current and savings account with Philippine Commercial International Bank (PCIB), now petitioner Equitable PCI Bank.3 On May 13, 1992, respondent issued PCIB Check No. 275100 postdated May 30, 19924 in the amount of ₱34,588.72 in favor of Sulpicio Lines, Inc. As of May 14, 1992, respondent's balance with petitioner was ₱35,147.59. On May 14, 1992, Sulpicio Lines, Inc. deposited the aforesaid check to its account with Solid Bank, Carbon Branch, Cebu City. After clearing, the amount of the check was immediately debited by petitioner from respondent's account thereby leaving him with a balance of only ₱558.87. Meanwhile, respondent issued three checks from May 9 to May 16, 1992, specifically, PCIB Check No. 275080 dated May 9, 1992, payable to Agusan del Sur Electric Cooperative Inc. (ASELCO) for the amount of ₱6,427.68; PCIB Check No. 275097 dated May 10, 1992 payable to Agusan del Norte

Electric Cooperative Inc., (ANECO) for the amount of ₱6,472.01; and PCIB Check No. 314104 dated May 16, 1992 payable in cash for the amount of ₱10,000.00. When presented for payment, PCIB Check Nos. 275080, 275097 and 314014 were dishonored for being drawn against insufficient funds. As a result of the dishonor of Check Nos. 275080 and 275097 which were payable to ASELCO and ANECO, respectively, the electric power supply for the two mini-sawmills owned and operated by respondent, located in Talacogon, Agusan del Sur; and in Golden Ribbon, Butuan City, was cut off on June 1, 1992 and May 28, 1992, respectively, and it was restored only on July 20 and August 24, 1992, respectively. Respondent claimed that Check No. 275100 was a postdated check in payment of Bills of Lading Nos. 15, 16 and 17, and that his account with petitioner would have had sufficient funds to cover payment of the three other checks were it not for the negligence of petitioner in immediately debiting from his account Check No. 275100, in the amount of ₱34,588.72, even as the said check was postdated to May 30, 1992. In its defense, petitioner denied that the questioned check was postdated May 30, 1992 and claimed that it was a current check dated May 3, 1992. It alleged further that the disconnection of the electric supply to respondent's sawmills was not due to the dishonor of the checks, but for other reasons not attributable to the bank. RTC dismissed the case but was reversed by CA ISSUE: Whether CA erred in reversing the decision of RTC, holding petitioner herein liable RULING: NO, CA did not erred in their decision We agree with appellant that appellee Bank apparently erred in misappreciating the date of Check No. 275100. We have carefully examined the check in question (Exh. DDDD) and we are convinced that it was indeed postdated to May 30, 1992 and not May 3, 1992 as urged by appellee. The date written on the check clearly appears as "5/30/1992" (Exh. DDDD-4). The first bar (/) which separates the numbers "5" and "30" and the second bar (/) which further separates the number "30" from the year 1992 appear to have been done in heavy, well-defined and bold strokes, clearly indicating the date of the check as "5/30/1992" which obviously means May 30, 1992. On the other hand, the alleged bar (/) which appellee points out as allegedly separating the numbers "3" and "0," thereby leading it to read the date as May 3, 1992, is not actually a bar or a slant but appears to be more of an unintentional marking or line done with a very light stroke. The presence of the figure "0" after the number "3" is quite significant. In fact, a close examination thereof would unerringly show that the said number zero or "0" is connected to the preceeding number "3." In other words, the drawer of the check wrote the figures "30" in one continuous stroke, thereby contradicting appellee’s theory that the number "3" is separated from the figure "0" by a bar. Besides, appellee’s theory that the date of the check is May 3, 1992 is clearly untenable considering the presence of the figure "0" after "3" and another bar before the year 1992. And if we were to accept appellee’s theory

that what we find to be an unintentional mark or line between the figures "3" and "0" is a bar separating the two numbers, the date of the check would then appear as "5/3/0/1992, which is simply absurd. Hence, we cannot go along with appellee’s theory which will lead us to an absurd result. It is therefore our conclusion that the check was postdated to May 30, 1992 and appellee Bank or its personnel erred in debiting the amount of the check from appellant’s account even before the check’s due date. Undoubtedly, had not appellee bank prematurely debited the amount of the check from appellant’s account before its due date, the two other checks (Exhs. LLLL and GGGG) successively dated May 9, 1992 and May 16, 1992 which were paid by appellant to ASELCO and ANECO, respectively, would not have been dishonored and the said payees would not have disconnected their supply of electric power to appellant’s sawmills, and the latter would not have suffered losses The diligence required of banks, therefore, is more than that of a good father of a family.17 In every case, the depositor expects the bank to treat his account with the utmost fidelity, whether such account consists only of a few hundred pesos or of millions. The bank must record every single transaction accurately, down to the last centavo, and as promptly as possible. This has to be done if the account is to reflect at any given time the amount of money the depositor can dispose of as he sees fit, confident that the bank will deliver it as and to whomever he directs.18 From the foregoing, it is clear that petitioner bank did not exercise the degree of diligence that it ought to have exercised in dealing with its client. The proximate cause of the loss is not respondent's manner of writing the date of the check, as it was very clear that he intended Check No. 275100 to be dated May 30, 1992 and not May 3, 1992. The proximate cause is petitioner’s own negligence in debiting the account of the respondent prior to the date as appearing in the check, which resulted in the subsequent dishonor of several checks issued by the respondent and the disconnection by ASELCO and ANECO of his electric supply. PNB v. Chowking Proximate cause of negligence sustained is that of the bank’s failure to observe extra-ordinary diligence FACTS: Between March 15, 1989 and August 10, 1989, Joe Kuan Food Corporation issued in favor of Chowking five (5) PSBank checks the total amount reached P556,981.66 On the respective due dates of each check, Chowking's acting accounting manager, Rino T. Manzano, endorsed and encashed said checks with the Bustos branch of respondent PSBank.3 All the five checks were honored by defendant Santos, even with only the endorsement of Manzano approving them. The signatures of the other authorized officers of respondent corporation were absent in the five (5) checks, contrary to usual banking practice.4 Unexpectedly, Manzano absconded with and misappropriated the check proceeds.5 When Chowking found out Manzano's scheme, it demanded reimbursement from PSBank.6 When PSBank refused to pay, Chowking filed a complaint7 for a sum of money with damages before the

RTC. Likewise impleaded were PSBank's president, Antonio S. Abacan, and Bustos branch head, Santos. In its Answer, petitioner did not controvert the foregoing facts, but denied liability to respondent for the encashed checks.13 Petitioner bank maintained it exercised due diligence in the supervision of all its employees. It even dismissed defendant Santos after she was found guilty of negligence in the performance of her duties.14 Defendant Santos, on the other hand, denied that she had been negligent in her job. She averred that she merely followed the bank's practice of honoring respondent's checks even if accompanied only by Manzano's endorsement.15 Defendant Abacan likewise denied any liability to respondent. He alleged that, as president and officer of petitioner bank, he played no role in the transactions complained of.16 Thus, respondent has no cause of action against him. Petitioner, Santos and Abacan were unanimous in asserting that respondent is estopped from claiming reimbursement and damages since it was negligent in allowing Manzano to take hold, endorse, and encash its checks. Petitioner pointed out that the proximate cause of respondent's loss was its own negligence. RTC first ruled in favour of Chowking however, upon MR of petitioner herein it was reversed and removed them of liability. Upon appeal, CA then reversed and reinstated the first ruling of RTC finding PNB liable for damages on the ground that: It is admitted that PSB cashed, over the counter, the checks of the appellant indorsed by Manzano alone. Since there is no more dispute on the negligent act of Santos in honoring the appellant's checks, over the counter, despite the proper indorsements, the categorical finding of negligence against her, remaining unrebutted, is deemed established. This in effect warrants a finding that Santos is liable for damages to the appellant. The lower court therefore erred in dismissing the complaint against her However, with banks like PSB, the degree of diligence required is more than that of a good father of a family considering that the business of banking is imbued with public interest due to the nature of its functions. Highest degree of diligence is needed which PSB, in this case, failed to observe. ISSUE: Whether PNB’s negligence was the proximate cause of the damages sustained by chowking RULING: YES, it is their negligence that caused such damage We agree with the CA that Chowking did not make any false representation or concealment of material facts in relation to the encashments of the previous checks. As adverted to earlier, respondent may have allowed Manzano to previously encash its checks, but it has always been

accompanied with the endorsements of the other authorized signatories. Respondent did not allow petitioner to have its checks encashed without the signature of all of its authorized signatories. The CA pointed out:We find at the back of those checks, whereon indorsement usually appears, the signature of Manzano together with other signature/signatures though mostly are illegible. It appears then that, assuming the appellant impliedly tolerated the act of Manzano in indorsing the checks, it did not allow Manzano "alone" to indorse its checks as what actually happened in this case because his previous indorsements were coupled with other indorsements of the appellant's signatories. There is, therefore, no sufficient evidence to sustain PSB's submission. On this score alone, the defense of estoppel must fail. In its declaration of policy, the General Banking Law of 200035 requires of banks the highest standards of integrity and performance. Needless to say, a bank is "under obligation to treat the accounts of its depositors with meticulous care."36 The fiduciary nature of the relationship between the bank and the depositors must always be of paramount concern.37 Petitioner, through Santos, was clearly negligent when it honored respondent's checks with the lone endorsement of Manzano. Proximate cause is determined by the facts of the case. It is 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.40 Measured by the foregoing yardstick, the proximate cause of the loss is not respondent's alleged negligence in allowing Manzano to take hold and encash respondent's checks. The proximate cause is petitioner's own negligence in the supervision of its employees when it overlooked the irregular practice of encashing checks even without the requisite endorsements. Standard of Conduct: Good Father of a Family Heirs of Redentor Completo v. Albayalda Jr. Required diligence of bicyclist vis-à-vis to diligence required from motor vehicle drivers FACTS: Respondent Amando C. Albayda, Jr. (Albayda) is a Master Sergeant of the Philippine Air Force, 527th Base Security Squadron, 520th Airbase, Philippine Air Force, located at Villamor Air Base (VAB), Pasay City. Petitioner Redentor Completo (Completo), now represented by his heirs, was the taxi driver of a Toyota Corolla, bearing Plate No. PYD-128, owned and operated by copetitioner Elpidio Abiad (Abiad).3 Albayda and Completo figured in an accident along the intersection of 8th and 11th Streets, VAB. Albayda filed a complaint for damages before the Regional Trial Court (RTC) of Pasay City. The amended complaint alleged that, on August 27, 1997, while Albayda was on his way to the office to report for duty, riding a bicycle along 11th Street, the taxi driven by Completo bumped and sideswiped him, causing serious physical injuries. Albayda was brought to the Philippine Air Force

General Hospital (PAFGH) inside VAB. However, he was immediately transferred to the Armed Forces of the Philippines Medical Center (AFPMC) on V. Luna Road, Quezon City, because there was a fracture in his left knee and there was no orthopedic doctor available at PAFGH. From August 27, 1997 until February 11, 1998, he was confined therein. He was again hospitalized at PAFGH from February 23, 1998 until March 22, 1998. A separate civil case ensued, Albayda alleged that the proximate cause of the incident which necessitated his stay in the hospital for approximately seven (7) months was the negligence of Completo who, at the time of the accident, was in the employ of Abiad. The pain he suffered required him to undergo medical physiotherapy for a number of years to regain normality of his left knee joint, and he claimed that he incurred actual damages totaling Two Hundred Seventy-Six Thousand Five Hundred Fifty Pesos (₱276,550.00), inclusive of his anticipated operations. Completo also asserted that he was an experienced driver who, in accordance with traffic rules and regulations and common courtesy to his fellow motorists, had already reduced his speed to twenty (20) kilometers per hour even before reaching the intersection of 8th and 11th Streets. In contrast, Albayda rode his bicycle at a very high speed, causing him to suddenly lose control of the bicycle and hit the rear door on the right side of the taxicab.12 The deep indentation on the rear right door of the taxicab was caused by the impact of Albayda’s body that hit the taxicab after he had lost control of the bicycle; while the slight indentation on the right front door of the taxicab was caused by the impact of the bike that hit the taxicab after Albayda let go of its handles when he had lost control of it.13 Completo maintained that Albayda had no cause of action. The accident and the physical injuries suffered by Albayda were caused by his own negligence, and his purpose in filing the complaint was to harass petitioners and unjustly enrich himself at their expense. RTC ruled in favour of Albayda ISSUE: Whether Albayda’s negligence was the proximate cause of his negligence RULING: NO, it was the negligence of Completo that caused the damages sustained by Albayda The instant case involved a collision between a taxicab and a bicycle which resulted in serious physical injuries to the bicycle rider, Albayda. It is a rule in negligence suits that the plaintiff has the burden of proving by a preponderance of evidence the motorist’s breach in his duty of care owed to the plaintiff, that the motorist was negligent in failing to exercise the diligence required to avoid injury to the plaintiff, and that such negligence was the proximate cause of the injury suffered. It was proven by a preponderance of evidence that Completo failed to exercise reasonable diligence in driving the taxicab because he was over-speeding at the time he hit the bicycle ridden by Albayda. Such negligence was the sole and proximate cause of the serious physical injuries sustained by Albayda. Completo did not slow down even when he approached the intersection of 8th and 11th

Streets of VAB. It was also proven that Albayda had the right of way, considering that he reached the intersection ahead of Completo. The bicycle occupies a legal position that is at least equal to that of other vehicles lawfully on the highway, and it is fortified by the fact that usually more will be required of a motorist than a bicyclist in discharging his duty of care to the other because of the physical advantages the automobile has over the bicycle.43 At the slow speed of ten miles per hour, a bicyclist travels almost fifteen feet per second, while a car traveling at only twenty-five miles per hour covers almost thirty-seven feet per second, and splitsecond action may be insufficient to avoid an accident. It is obvious that a motor vehicle poses a greater danger of harm to a bicyclist than vice versa. Accordingly, while the duty of using reasonable care falls alike on a motorist and a bicyclist, due to the inherent differences in the two vehicles, more care is required from the motorist to fully discharge the duty than from the bicyclist.44 Simply stated, the physical advantages that the motor vehicle has over the bicycle make it more dangerous to the bicyclist than vice versa. In the selection of prospective employees, employers are required to examine them as to their qualifications, experience, and service records. On the other hand, with respect to the supervision of employees, employers should formulate standard operating procedures, monitor their implementation, and impose disciplinary measures for breaches thereof. To establish these factors in a trial involving the issue of vicarious liability, employers must submit concrete proof, including documentary evidence.50 Abiad testified that before he hired Completo, he required the latter to show his bio-data, NBI clearance, and driver’s license. Abiad likewise stressed that Completo was never involved in a vehicular accident prior to the instant case, and that, as operator of the taxicab, he would wake up early to personally check the condition of the vehicle before it is used. The protestation of Abiad to escape liability is short of the diligence required under the law. Abiad’s evidence consisted entirely of testimonial evidence, and the unsubstantiated and self-serving testimony of Abiad was insufficient to overcome the legal presumption that he was negligent in the selection and supervision of his driver. Taylor v. Manila Electric Negligence of a child who have sufficient discernment would prevent recovery of damages sustained by it FACTS: September 30, 1905 Sunday afternoon: David Taylor, 15 years of age, the son of a mechanical engineer, more mature than the average boy of his age, and having considerable aptitude and training in mechanics with a boy named Manuel Claparols, about 12 years of age, crossed the footbridge to the Isla del Provisor, for the purpose of visiting Murphy, an employee of the defendant, who and promised to make them a cylinder for a miniature engine

After leaving the power house where they had asked for Mr. Murphy, they walked across the open space in the neighborhood of the place where the company dumped in the cinders and ashes from its furnaces they found some twenty or thirty brass fulminating caps scattered on the ground. They are intended for use in the explosion of blasting charges of dynamite, and have in themselves a considerable explosive power the boys picked up all they could find, hung them on stick, of which each took end, and carried them home Opened one of the caps with a knife, and finding that it was filled with a yellowish substance they got matches, David held the cap while Manuel applied a lighted match to the contents. An explosion followed, causing more or less serious injuries to all three; Jessie, who when the boys proposed putting a match to the contents of the cap, became frightened and started to run away, received a slight cut in the neck; Manuel had his hand burned and wounded; David was struck in the face by several particles of the metal capsule, one of which injured his right eye to such an extent as to the necessitate its removal by the surgeons A case was filed against respondent herein and was found guilty ISSUE: Whether Manila Electric should be held liable for damages sustained RULING: NO, it should not be liable due to the fact that David already have sufficient discernment. It is clear that the accident could not have happened and not the fulminating caps been left exposed at the point where they were found, or if their owner had exercised due care in keeping them in an appropriate place; but it is equally clear that plaintiff would not have been injured had he not, for his own pleasure and convenience, entered upon the defendant's premises, and strolled around thereon without the express permission of the defendant, and had he not picked up and carried away the property of the defendant which he found on its premises, and had he not thereafter deliberately cut open one of the caps and applied a match to its contents. The reasoning which led the Supreme Court of the United States to its conclusion in the cases of Railroad Co. vs. Stout (supra) and Union Pacific Railroad Co. vs. McDonald (supra) is not less cogent and convincing in this jurisdiction than in that wherein those cases originated. Children here are actuated by similar childish instincts and impulses. Drawn by curiosity and impelled by the restless spirit of youth, boys here as well as there will usually be found whenever the public is permitted to congregate. The movement of machinery, and indeed anything which arouses the attention of the young and inquiring mind, will draw them to the neighborhood as inevitably as does the magnet draw the iron which comes within the range of its magnetic influence. The owners of premises, therefore, whereon things attractive to children are exposed, or upon which the public are expressly or impliedly permitted to enter or upon which the owner knows or ought to know children are likely to roam about for pastime and in play, " must calculate upon this, and take precautions accordingly." In such cases the owner of the premises can not be heard to say that because the child

has entered upon his premises without his express permission he is a trespasser to whom the owner owes no duty or obligation whatever. The owner's failure to take reasonable precautions to prevent the child from entering his premises at a place where he knows or ought to know that children are accustomed to roam about of to which their childish instincts and impulses are likely to attract them is at least equivalent to an implied license to enter, and where the child does enter under such conditions the owner's failure to take reasonable precautions to guard the child against injury from unknown or unseen dangers, placed upon such premises by the owner, is clearly a breach of duty, responsible, if the child is actually injured, without other fault on its part than that it had entered on the premises of a stranger without his express invitation or permission. To hold otherwise would be expose all the children in the community to unknown perils and unnecessary danger at the whim of the owners or occupants of land upon which they might naturally and reasonably be expected to enter. But while we hold that the entry of the plaintiff upon defendant's property without defendant's express invitation or permission would not have relieved defendant from responsibility for injuries incurred there by plaintiff, without other fault on his part, if such injury were attributable to the negligence of the defendant, we are of opinion that under all the circumstances of this case the negligence of the defendant in leaving the caps exposed on its premises was not the proximate cause of the injury received by the plaintiff, which therefore was not, properly speaking, "attributable to the negligence of the defendant," and, on the other hand, we are satisfied that plaintiffs action in cutting open the detonating cap and putting match to its contents was the proximate cause of the explosion and of the resultant injuries inflicted upon the plaintiff, and that the defendant, therefore is not civilly responsible for the injuries thus incurred. Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that because of plaintiff's youth the intervention of his action between the negligent act of the defendant in leaving the caps exposed on its premises and the explosion which resulted in his injury should not be held to have contributed in any wise to the accident "While it is the general rule in regard to an adult that to entitle him to recover damages for an injury resulting from the fault or negligence of another he must himself have been free from fault, such is not the rule in regard to an infant of tender years. The care and caution required of a child is according to his maturity and capacity only, and this is to be determined in each case by the circumstances of the case." In the case at bar, plaintiff at the time of the accident was a well-grown youth of 15, more mature both mentally and physically than the average boy of his age; he had been to sea as a cabin boy; was able to earn P2.50 a day as a mechanical draftsman thirty days after the injury was incurred; and the record discloses throughout that he was exceptionally well qualified to take care of himself. The evidence of record leaves no room for doubt that, despite his denials on the witness stand, he well knew the explosive character of the cap with which he was amusing himself. The series of experiments made by him in his attempt to produce an explosion, as described by the little girl who was present, admit of no other explanation. His attempt to discharge the cap by the use of

electricity, followed by his efforts to explode it with a stone or a hammer, and the final success of his endeavors brought about by the application of a match to the contents of the caps, show clearly that he knew what he was about. Nor can there be any reasonable doubt that he had reason to anticipate that the explosion might be dangerous, in view of the fact that the little girl, 9 years of age, who was within him at the time when he put the match to the contents of the cap, became frightened and ran away. True, he may not have known and probably did not know the precise nature of the explosion which might be expected from the ignition of the contents of the cap, and of course he did not anticipate the resultant injuries which he incurred; but he well knew that a more or less dangerous explosion might be expected from his act, and yet he willfully, recklessly, and knowingly produced the explosion. It would be going far to say that "according to his maturity and capacity" he exercised such and "care and caution" as might reasonably be required of him, or that defendant or anyone else should be held civilly responsible for injuries incurred by him under such circumstances. We are satisfied that the plaintiff in this case had sufficient capacity and understanding to be sensible of the danger to which he exposed himself when he put the match to the contents of the cap; that he was sui juris in the sense that his age and his experience qualified him to understand and appreciate the necessity for the exercise of that degree of caution which would have avoided the injury which resulted from his own deliberate act; and that the injury incurred by him must be held to have been the direct and immediate result of his own willful and reckless act, so that while it may be true that these injuries would not have been incurred but for the negligence act of the defendant in leaving the caps exposed on its premises, nevertheless plaintiff's own act was the proximate and principal cause of the accident which inflicted the injury. Jarco Marketing v. CA Conclusive presumption of absence of negligence on part of a minor below 9 yrs. Of age FACTS: 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 gift-wrapping 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. 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. RTC ruling: 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. CA Decision: 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. ISSUE: Whether the proximate cause of the death of Zhieneth was her own negligence RULING: NO, she cannot be imputed of any negligence 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. 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 a quasi-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. 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 six-year 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. Proof of Negligence Mercury Drug Corporation v. Huang Unsubstantiated defense FACTS: Petitioner Mercury Drug Corporation (Mercury Drug) is the registered owner of a sixwheeler 1990 Mitsubishi Truck with plate number PRE 641 (truck). It has in its employ petitioner Rolando J. del Rosario as driver. Respondent spouses Richard and Carmen Huang are the parents of

respondent Stephen Huang and own the red 1991 Toyota Corolla GLI Sedan with plate number PTT 775 (car). These two vehicles figured in a road accident on December 20, 1996 at around 10:30 p.m. within the municipality of Taguig, Metro Manila. Respondent Stephen Huang was driving the car, weighing 1,450 kg., while petitioner Del Rosario was driving the truck, weighing 14,058 kg. Both were traversing the C-5 Highway, north bound, coming from the general direction of Alabang going to Pasig City. The car was on the left innermost lane while the truck was on the next lane to its right, when the truck suddenly swerved to its left and slammed into the front right side of the car. The collision hurled the car over the island where it hit a lamppost, spun around and landed on the opposite lane. The truck also hit a lamppost, ran over the car and zigzagged towards, and finally stopped in front of Buellah Land Church. At the time of the accident, petitioner Del Rosario only had a Traffic Violation Receipt (TVR). His driver’s license had been confiscated because he had been previously apprehended for reckless driving. The car, valued at ₱300,000.00, was a total wreck. Respondent Stephen Huang sustained massive injuries to his spinal cord, head, face, and lung. Despite a series of operations, respondent Stephen Huang is paralyzed for life from his chest down and requires continuous medical and rehabilitation treatment. In contrast, petitioners allege that the immediate and proximate cause of the accident was respondent Stephen Huang’s recklessness. According to petitioner Del Rosario, he was driving on the left innermost lane when the car bumped the truck’s front right tire. The truck then swerved to the left, smashed into an electric post, crossed the center island, and stopped on the other side of the highway. The car likewise crossed over the center island and landed on the same portion of C-5. Further, petitioner Mercury Drug claims that it exercised due diligence of a good father of a family in the selection and supervision of all its employees. Both the lower courts found petitioner herein liable for damages ISSUE: Whether petitioner is liable for damages sustained by respondent RULING: YES, he is liable for such damages We affirm the findings of the trial court and the appellate court that petitioner Del Rosario was negligent. The evidence does not support petitioners’ claim that at the time of the accident, the truck was at the left inner lane and that it was respondent Stephen Huang’s car, at its right, which bumped the right front side of the truck. Firstly, petitioner Del Rosario could not precisely tell which part of the truck was hit by the car,6 despite the fact that the truck was snub-nosed and a lot higher than the car. Petitioner Del Rosario could not also explain why the car landed on the opposite lane of C-5 which was on its left side. He said that "the car did not pass in front of him after it hit him or under him or over him or behind him."7 If the truck were really at the left lane and the car were at its right,

and the car hit the truck at its front right side, the car would not have landed on the opposite side, but would have been thrown to the right side of the C-5 Highway. Noteworthy on this issue is the testimony of Dr. Marlon Rosendo H. Daza, an expert in the field of physics. He conducted a study based on the following assumptions provided by respondents: 1. Two vehicles collided; 2. One vehicle is ten times heavier, more massive than the other; 3. Both vehicles were moving in the same direction and at the same speed of about 85 to 90 kilometers per hour; 4. The heavier vehicle was driving at the innermost left lane, while the lighter vehicle was at its right. Dr. Daza testified that given the foregoing assumptions, if the lighter vehicle hits the right front portion of the heavier vehicle, the general direction of the light vehicle after the impact would be to the right side of the heavy vehicle, not the other way around. The truck, he opined, is more difficult to move as it is heavier. It is the car, the lighter vehicle, which would move to the right of, and away from the truck. Thus, there is very little chance that the car will move towards the opposite side, i.e., to the left of the truck. To support their thesis, petitioners tried to show the damages that the truck sustained at its front right side. The attempt does not impress. The photographs presented were taken a month after the accident, and Rogelio Pantua, the automechanic who repaired the truck and authenticated the photographs, admitted that there were damages also on the left side of the truck. The evidence proves petitioner Del Rosario’s negligence as the direct and proximate cause of the injuries suffered by respondent Stephen Huang. Petitioner Del Rosario failed to do what a reasonable and prudent man would have done under the circumstances. In the instant case, petitioner Mercury Drug presented testimonial evidence on its hiring procedure. According to Mrs. Merlie Caamic, the Recruitment and Training Manager of petitioner Mercury Drug, applicants are required to take theoretical and actual driving tests, and psychological examination. In the case of petitioner Del Rosario, however, Mrs. Caamic admitted that he took the driving tests and psychological examination when he applied for the position of Delivery Man, but not when he applied for the position of Truck Man. Mrs. Caamic also admitted that petitioner Del Rosario used a Galant which is a light vehicle, instead of a truck during the driving tests. Further, no tests were conducted on the motor skills development, perceptual speed, visual attention, depth visualization, eye and hand coordination and steadiness of petitioner Del Rosario. No NBI and police clearances were also presented. Lastly, petitioner Del Rosario attended only three driving seminars – on June 30, 2001, February 5, 2000 and July 7, 1984. In effect, the only seminar he attended before the accident which occurred in 1996 was held twelve years ago in 1984.

It also appears that petitioner Mercury Drug does not provide for a back-up driver for long trips. At the time of the accident, petitioner Del Rosario has been out on the road for more than thirteen hours, without any alternate. Mrs. Caamic testified that she does not know of any company policy requiring back-up drivers for long trips.14 Petitioner Mercury Drug likewise failed to show that it exercised due diligence on the supervision and discipline over its employees. In fact, on the day of the accident, petitioner Del Rosario was driving without a license. He was holding a TVR for reckless driving. He testified that he reported the incident to his superior, but nothing was done about it. He was not suspended or reprimanded.15 No disciplinary action whatsoever was taken against petitioner Del Rosario. We therefore affirm the finding that petitioner Mercury Drug has failed to discharge its burden of proving that it exercised due diligence in the selection and supervision of its employee, petitioner Del Rosario.