NEGLIGENCEA. Concept of NegligenceDefinition; ElementsArticle 20, CCArticle 1173 CC Picart vs. Smith, 37 Phil 809FACTS:The plaintiff was riding on his pony over the Carlatan bridge in La Union. Before he had gotten half way across, the defendant approached from the opposite direction in an automobile, going at the rate of about ten or twelve miles per hour. As the defendant neared the bridge he saw a horseman on it and blew his horn to give warning of his approach. He continued his course and after he had taken the bridge he gave two more successive blasts, as it appeared to him that the man on horseback before him was not observing the rule of the road. Seeing that the pony was apparently quiet, the defendant, instead of veering to the right while yet some distance away or slowing down, continued to approach directly toward the horse without diminution of speed.

The plaintiff, it appears, saw the automobile coming and heard the warning signals. However, being perturbed by the novelty of the apparition or the rapidity of the approach, he pulled the pony closely up against the railing on the right side of the bridge instead of going to the left. He says that the reason he did this was that he thought he did not have sufficient time to get over to the other side. The automobile passed in such close proximity to the animal that it became frightened and turned its body across the bridge with its head toward the railing. The horse fell and its rider was thrown off with some violence.As a result of its injuries the horse died. The plaintiff received contusions which caused temporary unconsciousness and required medical attention for several days.

ISSUE:whether or not the defendant in maneuvering his car in the manner above described was guilty of negligence such as gives rise to a civil obligation to repair the damage done

RULING:Yes, he is liable.The control of the situation had then passed entirely to the defendant; and it was his duty either to bring his car to an immediate stop or, seeing that there were no other persons on the bridge, to take the other side and pass sufficiently far away from the horse to avoid the danger of collision. Instead of doing this, the defendant ran straight on until he was almost upon the horse.The existence of negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before him. It goes without saying that the plaintiff himself was not free from fault, for he was guilty of antecedent negligence in planting himself on the wrong side of the road. But as we have already stated, the defendant was also negligent; and in such case the problem always is to discover which agent is immediately and directly responsible. It will be noted that the negligent acts of the two parties were not contemporaneous, since the negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval. Under these circumstances the law is that the person who has the last fair chance to avoid the impending harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of the other partyB. 2. Standard of Conduct2.1. Ordinary prudent person2.2 Special CasesChildrenArticle 12, RPC & Comprehensive Juvenile Justice Law

Taylor vs. Manila Railroad, 16 Phil 8FACTS: The plaintiff, David Taylor, 15 years of age. On September 30, 1905, plaintiff, with a boy crossed the footbridge to the Isla del Provisor, to visit an employee of the defendant, who promised to make them a cylinder for a miniature engine. Upon inquiry that Mr.Murphy was not in his quarters, the boys, impelled apparently by youthful curiosity, spent some time in wandering about the company's premises. Here they found some 20 or 30 brass fulminating caps scattered on the ground. They opened one of the caps with a knife, and finding that it was filled with a yellowish substance they got matches, and David held the cap while Manuel applied a lighted match to the contents. An explosion followed, causing more or less serious injuries to all three. 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 necessitate its removal by the surgeons. No measures seems to have been adopted by the defendant company to prohibit or prevent visitors from entering and walking about its premises unattended, when they felt disposed so to do. The trial court's decision, awarding damages to the plaintiff, upon the provisions of article 1089 of the Civil Code read together with articles 1902, 1903, and 1908 of that code.

ISSUE: WON the defendants negligence is the proximate cause of plaintiff's injuries.

HELD:The court held that the negligence of the defendant was not the proximate cause of the injury received by the plaintiff, which therefore was not, 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 a 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. 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 vs. CA, GR No. 129792FACTS: Petitioner Jarco Marketing Corporation is the owner of Syvels Department Store, Makati City. On May 9, 1983, Criselda and Zhieneth were at the 2nd floor of the Dept. Store. Criselda momentarily let go of her daughters hand to sign her credit card slip at the payment and verification counter She looked behind her and saw her daughter on the floor, pinned by the gift wrapping counter. Zhieneth was crying and screaming for help. Criselda was able to ask people to help her and bring her daughter to the hospital. She was operated on immediately at the hospital. She died 14 days later, on the hospital bed. She was 6 years old. The cause of her death was attributed to the injuries she sustained. The Aguilars demanded from the petitioners the reimbursement of hospital and medical bills, and wake and funeral expenses. ISSUE: (1) whether the death of ZHIENETH was accidental or attributable to negligence(2) In case of a finding of negligence, whether the same was attributable to private respondents for maintaining a defective counter or to CRISELDA and ZHIENETH for failing to exercise due and reasonable care while inside the store premises.

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

The test in determining the existence of negligence is enunciated in the landmark case of Picart v. Smith, thus: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence. We rule that the tragedy which befell ZHIENETH was no accident and that ZHIENETHs death could only be attributed to 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 stores 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. 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. CRISELDA too, should be absolved from any contributory negligence. At this precise moment, it was reasonable and usual for CRISELDA to let go of her child. Further, at the time ZHIENETH was pinned down by the counter, she was just a foot away from her mother; and the gift-wrapping counter was just four meters away from CRISELDA. The time and distance were both significant. ZHIENETH was near her mother and did not loiter as petitioners would want to impress upon us. She even admitted to the doctor who treated her at the hospital that she did not do anything; the counter just fell on her.Del Rosario vs. Manila, 57 Phil 478FACTS: This action was instituted by Julian del Rosario for the purpose of recovering damages from Meralco for the death of his son, Alberto, resulting from a shock from a wire used by the defendant for the transmission of electricity. Aug 4, 1930, shortly after 2 oclock in the afternoon trouble developed in an overhead wire conducting electricity for lightning purposes in the City of Manila. The wire soon parted and one of the charged ends fell to the ground in shrubbery close to the way. The lightning company received a telephonic report of this incident at 2.25 p.m. and promised to send an inspector. At 4 p.m., the neighboring school turned out and as the children went home one of the boys, of the age 9 years, touched the wire with his hand and received a shock which resulted in his death. The CFI renders decision in favor of Manila Electric. Co. ISSUE: WON Manila Electric Co. is liable. HELD: We are of the opinion that the presumption of negligence on the part of the company from the breakage of this wire has been overcome, and the defendant is in our opinion responsible for the accident. Furthermore, when notice received at the Malabon station at 2.25pm, somebody should have been dispatched to the scene of the trouble at once, or other measures taken to guard the point of danger; but more than an hour and a half passed before anyone representing the company appeared on the scene, and in the meantime this child had been claimed as a victim. The circumstances that the boy who was killed touched the wire after one of his companions had warned him not to do so, did not relieve the company of responsibility, owing to his immature years and natural curiosity of a child to do something out of ordinary.

Ylarde vs. Aquino, 163 SCRA 697FACTS: Soriano was the school principal and Aquino was a teacher. The school was littered with concrete blocks. Teacher Banez started burying them. Aquino gathered 18 male pupils to help. He ordered them to dig but work wasnt finished. The following day, Aquino called 4 of the 18 pupils to continue. Aquino continued digging while the pupils remained inside the pit throwing out the loose soil. Aquino left the children to level the loose soil and borrowed a key from Banez. Aquino told the kids not to touch the stone. 3 of the 4 kids jumped into the pit. The remaining Abaga jumped on the concrete block causing it to slide down. The 2 kids were able to escape but student Ylarde sustained injuries. Three days later, he died. Parents filed suit against Aquino and Soriano. Lower court dismissed the case and CA affirmed and said child Ylarde was negligent. ISSUE: WON Aquino and Soriano can be held liable for damages. HELD: As regards the principal, we hold that he cannot be made responsible for the death of the child Ylarde, he being the head of an academic school and not a school of arts and trades. This is in line with our ruling in Amadora vs. Court of Appeals, wherein this Court thoroughly discussed the doctrine that under Article 2180 of the Civil Code, it is only the teacher and not the head of an academic school who should be answerable for torts committed by their students. This Court went on to say that in a school of arts and trades, it is only the head of the school who can be held liable. From a review of the record of this case, it is very clear that private respondent Aquino acted with fault and gross negligence when he: (1) failed to avail himself of services of adult manual labourers and instead utilized his pupils aged ten to eleven to make an excavation near the one-ton concrete stone which he knew to be a very hazardous task; (2) required the children to remain inside the pit even after they had finished digging, knowing that the huge block was lying nearby and could be easily pushed or kicked aside by any pupil who by chance may go to the perilous area; (3) ordered them to level the soil around the excavation when it was so apparent that the huge stone was at the brink of falling; (4) went to a place where he would not be able to check on the children's safety; and (5) left the children close to the excavation, an obviously attractive nuisance. The negligent act of private respondent Aquino in leaving his pupils in such a dangerous site has a direct causal connection to the death of the child Ylarde. Left by them, it was but natural for the children to play around. Tired from the strenuous digging, they just had to amuse themselves with whatever they found. Driven by their playful and adventurous instincts and not knowing the risk they were facing three of them jumped into the hole while the other one jumped on the stone. Since the stone was so heavy and the soil was loose from the digging, it was also a natural consequence that the stone would fall into the hole beside it, causing injury on the unfortunate child caught by its heavy weight. Everything that occurred was the natural and probable effect of the negligent acts of private respondent Aquino. Needless to say, the child Ylarde would not have died were it not for the unsafe situation created by private respondent Aquino which exposed the lives of all the pupils concerned to real dangerExperts/ProfessionalsArticle 2187,CCCulion vs. Philippine, GR No. 32611FACTS: The plaintiff and defendant are domestic corporations; H.D. Cranston was the representative of the plaintiff. Plaintiff was the registered owner of the motor schooner Gwendoline, which was used in the fishing trade in the Philippine Islands. In January, 1925, Cranston decided, if practicable, to have the engine on the Gwendoline changed from a gasoline consumer to a crude oil burner. He therefore made known his desire to McLeod & Co., thru Mc Kellar, and was told that he might make inquiries of the Philippine Motors Corporations. Cranston had a conference with PMC thru Quest, its manager, who agreed to do the job, with the understanding that payment should be made upon completion of the work. As a result of the aforesaid interview, work of effecting the change in the engine was begun and conducted under the supervision of Quest. Quest then installed a new carburetor. The result of this experiment was satisfactory. In the course of the preliminary work upon the carburetor and its connections, it was observed that the carburetor was flooding; this was called to Quest's attention. After preliminary experiments and adjustments had been made, the boat was taken out into the bay for a trial run. The first part of the course was covered without any untoward development. As the boat was coming in from this run, the engine stopped, and connection again had to be made with the gasoline line to get a new start. After this had been done, the mechanic, switched to the tube connecting with the new mixture. A moment later a back fire occurred in the cylinder chamber. This caused a flame to shoot back into the carburetor, and instantly the carburetor and adjacent parts were covered with a mass of flames, which the members of the crew were unable to subdue. They were therefore compelled, as the fire spread, to take to a boat, and their escape was safely affected, but the Gwendoline was reduced to a mere hulk. The salvage from, the wreck, when sold, brought only the sum of P150. The value of the boat, before the accident occurred, as the court found, was P10, 000 ISSUE: WON defendant is liable for the loss of the boat. HELD: The trial judge seems to have proceeded on the idea that, inasmuch as Quest had control of the Gwendoline during the experimental run, the defendant corporation was in the position of a bailee and that, as a consequence, the burden of proof was on the defendant to exculpate itself from responsibility by proving that the accident was not due to the fault of Quest. We are unable to accede to this point of view. Certainly, Quest was not in charge of the navigation of the boat on this trial run. His employment contemplated the installation of new parts in the engine only, and it seems rather strained to hold that the defendant corporation had thereby become bailee of the boat. As a rule workmen who make repairs on a ship in its owner's yard, or a mechanic who repairs a coach without taking it to his shop, are not bailees, and their rights and liabilities are determined by the general rules of law, under their contract. The true bailee acquires possession and what is usually spoken of as special property in the chattel bailed. As a consequence of such possession and special property, the bailee is given a lien for his compensation. These ideas seem to be incompatible with the situation now under consideration. But though defendant cannot be held liable in the supposition that the burden of proof had not been sustained by it in disproving the negligence of its manager, we are nevertheless of the opinion that the proof shows by a clear preponderance that the accident to the Gwendoline and the damages resulting there from are chargeable to the negligence or lack of skill of Quest.

US vs. Pineda, 37 Phil 456 Pineda is a registered pharmacist of long standing and the owner of a drug store located at Calle Santo Cristo, Manila. Feliciano Santos, having some sick horses, presented a copy of a prescription obtained from Dr. Richardson, and which on other occasions Santos had given to his horses with good results, at Pineda's drug store for filling. The prescription read: "clorato de potasa - 120 gramos - en seis papelitos de 20 gramos, para caballo." Under the supervision of Pineda, the prescription was prepared and returned to Santos in the form of six papers marked, "Botica Pineda - Clorato potasa - 120.00 - en seis papeles - Para caballo- Sto. Cristo , Binondo, Manila." Santos, under the belief that he had purchased the potassium chlorate which he had asked for, put two of the packages in water and gave the doses to two of his sick horses. Another package was mixed with water for another horse, but was not used. The two horses, to which had been given the preparation, died shortly afterwards. Santos, thereupon, took the three remaining packages to the Bureau of Science for examination. Drs. Pea and Darjuan, of the Bureau of Science, found that the packages contained not potassium chlorate but barium chlorate. At the instance of Santos, the two chemists also went to the drug store of the defendant and bought potassium chlorate, which when analyzed was found to be barium chlorate. (Barium chlorate, it should be noted, is a poison; potassium chlorate is not.) Dr. Buencamino, a veterinarian, performed an autopsy on the horses, and found that death was the result of poisoning.ISSUES1. WON the lower court erred in admitting the testimony of the chemist Pea and Darjuan as to their purchase of potassium chlorate at the drug store of the accused, which proved to be barium chlorate2. WON the lower court erred in finding that the substance sold by the accused to Feliciano Santos was barium chlorate and not potassium chlorate3. WON the lower court erred in finding that the accused has been proved guilty beyond a reasonable doubt of an infraction of the Pharmacy Law, Act No. 597, section 17, as amendedHELD1. NORatio On the trial of a criminal case where the question relates to the tendency of certain testimony to throw light upon a particular fact, or to explain the conduct of a particular person, there is a certain discretion on the part of the trial judge which a court of errors will not interfere with, unless it manifestly appear that the testimony has no legitimate bearing upon the question at issue, and is calculated to prejudice the accused.Reasoning What appellant is relying on is the maxim res inter alios acta. As a general rule, the evidence of other offenses committed by a defendant is inadmissible. But appellant has confused this maxim and this rule with certain exceptions thereto. The effort is not to convict the accused of a second offense. Nor is there an attempt to draw the mind away from the point at issue and thus to prejudice defendant's case. The purpose is to ascertain defendant's knowledge and intent, and to fix his negligence. If the defendant has on more than one occasion performed similar acts, accident in good faith is possibly excluded, negligence is intensified and fraudulent intent may even be established. It has been said that there is no better evidence of negligence than the frequency of accidents.2. NOReasoning The proof demonstrates the contrary.3. NORatio In view of the tremendous and imminent danger to the public from the careless sale of poisons and medicines, we do not deem it too rigid a rule to hold that the law penalizes any druggist who shall sell one drug for another whether it be through negligence or mistake.Reasoning The care required must be commensurate with the danger involved, and the skill employed must correspond with the superior knowledge of the business which the law demands. Turning to the law, certain points therein as bearing on our present facts must be admitted. Thus, defendant is a pharmacist. As a pharmacist, he is made responsible for the quality of all drugs and poisons which he sells. And finally it is provided that it shall be unlawful for him to sell any drug or poison under any "fraudulent name." It is the word "fraudulent" which has given the court trouble. What did the Legislature intend to convey by this restrictive adjective? Were we to adhere to the technical definition of fraud it would be difficult, if not impossible, to convict any druggist of a violation of the law. The prosecution would have to prove to a reasonable degree of certainty that the druggist made a material representation; that it was false; that when he made it he knew that it was false or made it recklessly without any knowledge of its truth and as a positive assertion; that he made it with the intention that it should be acted upon by the purchaser; that the purchaser acted in reliance upon it, and that the purchaser suffered injury. Such a construction with a literal following of well-known principles on the subject of fraud would strip the law of at least much of its force. It would leave the innocent purchaser of drugs, who must blindly trust in the good faith and vigilance of the pharmacist, at the mercy of any unscrupulous vendor. We should not, therefore, without good reason so devitalize the law. The rule of caveat emptor cannot apply to the purchase and sale of drugs. The vendor and the vendee do not stand at arms length as in ordinary transactions. An imperative duty is on the druggist to take precautions to prevent death or serious injury to anyone who relies on his absolute honesty and peculiar learning. The nature of drugs is such that examination would not avail the purchaser any thing. It would be idle mockery for the customer to make an examination of a compound of which he can know nothing. Consequently, it must be that the druggist warrants that he will deliver the drug called for. Remembering particularly the care and skill which are expected of druggists, that in some jurisdictions they are liable even for their mistake and in others have the burden placed upon them to establish that they were not negligent, it cannot be that the Philippine Legislature intended to use the word "fraudulent" in all its strictness. A plea of accident and mistake cannot excuse for they cannot take place unless there be wanton and criminal carelessness and neglect. How the misfortune occurs is unimportant, if under all the circumstances the fact of occurrence is attributable to the druggist as a legal fault. Rather considering the responsibility for the quality of drugs which the law imposes on druggists and the position of the word "fraudulent" in juxtaposition to "name," what is made unlawful is the giving of a false name to the drug asked for. This view is borne out by the Spanish translation, which we are permitted to consult to explain the English text. In the Spanish "supuesto" is used, and this word is certainly not synonymous with "fraudulent." The usual badges of fraud, falsity, deception, and injury must be present - but not scienter.Dispositive Judgment of the lower court, sentencing the defendant to pay a fine of P100, with subsidiary imprisonment in case of insolvency, and to pay the costs, is affirmed with the costs of this instance against the appellant, without prejudice to any civil action which may be instituted.

BPI vs. CA, 216 SCRA 51 In the afternoon of October 9, 1981, a person purporting to be Eligia G. Fernando, who had a money market placement as evidenced by a promissory note with a maturity date of November 11, 1981 and a maturity value of P2,462,243.19, called BPI's Money Market Department. The caller wanted to preterminate the placement, but Reginaldo Eustaquio, Dealer Trainee in BPI's Money Market Department, told her "trading time" was over for the day, which was a Friday, and suggested that she call again the following week. The promissory note the caller wanted to preterminate was a roll-over of an earlier 50-day money market placement that had matured on September 24, 1981. Later that afternoon, Eustaquio conveyed the request for pretermination to the officer who before had handled Eligia G. Fernando's account, Penelope Bulan, but Eustaquio was left to attend to the pretermination process. On October 12, 1981, the caller of the previous Friday followed up with Eustaquio, merely by phone again, on the pretermination of the placement. Although not familiar with the voice of the real Eligia G. Fernando, Eustaquio "made certain" that the caller was the real Eligia G. Fernando by "verifying" that the details the caller gave about the placement tallied with the details in "the ledger/folder" of the account. Eustaquio knew the real Eligia G. Fernando to be the Treasurer of Philippine American Life Insurance Company (Philamlife) since he was handling Philamlife's corporate money market account. But neither Eustaquio nor Bulan who originally handled Fernando's account, nor anybody else at BPI, bothered to call up Fernando at her Philamlife office to verify the request for pretermination. Informed that the placement would yield less than the maturity value because of its pretermination, the caller insisted on the pretermination just the same and asked that two checks be issued for the proceeds, one for P1,800,000.00 and the second for the balance, and that the checks be delivered to her office at Philamlife. Eustaquio, thus, proceeded to prepare the "purchase order slip" for the requested pretermination as required by office procedure, and from his desk, the papers, following the processing route, passed through the position analyst, securities clerk, verifier clerk and documentation clerk, before the two cashier's checks, nos. 021759 and 021760 for P1,800,000.00 and P613,215.16, respectively, both payable to Eligia G. Fernando, covering the preterminated placement, were prepared. The two cashier's checks, together with the papers consisting of the money market placement was to be preterminated and the promissory note (No. 35623) to be preterminated, were sent to Gerlanda E. de Castro and Celestino Sampiton, Jr., Manager and Administrative Assistant, respectively, in BPI's Treasury Operations Department, both authorized signatories for BPI, who signed the two checks that very morning. Thereafter, the checks went to the dispatcher for delivery. Later in the same morning, however, the same caller changed the delivery instructions; instead of the checks being delivered to her office at Philamlife, she would herself pick up the checks or send her niece, Rosemarie Fernando, to pick them up. Eustaquio then told her that if it were her niece who was going to get the checks, her niece would have to being a written authorization from her to pick up the checks. This telephone conversation ended with the caller's statement that "definitely" it would be her niece, Rosemarie Fernando, who would pick up the checks. Thus, Eustaquio had to hurriedly go to the dispatcher, Bernardo Laderas, to tell him of the new delivery instructions for the checks; in fact, he changed the delivery instruction on the purchase order slip, writing thereon "Rosemarie Fernando release only with authority to pick up. It was, in fact Rosemarie Fernando who got the two checks from the dispatcher, as shown by the delivery receipt. As it turned out, the same person impersonated both Eligia G. Fernando and Rosemarie Fernando. Although the checks represented the termination proceeds of Eligia G. Fernando's placement, not just a roll-over of the placement, the dispatcher failed to get or to require the surrender of the promissory note evidencing the placement. There is also no showing that Eligia G. Fernando's purported signature on the letter requesting the pretermination and the latter authorizing Rosemarie Fernando to pick up the two checks, both of which letters were presumably handed to the dispatcher by Rosemarie Fernando, was compared or verified with Eligia G. Fernando's signature in BPI's file. Such purported signature has been established to be forged although it has a "close similarity" to the real signature of Eligia G. Fernando. In the afternoon of October 13, 1981, a woman who represented herself to be Eligia G. Fernando applied at China Banking Corporation's Head Office for the opening of a current account. She was accompanied and introduced to Emily Sylianco Cuaso, Cash Supervisor, by Antonio Concepcion whom Cuaso knew to have opened, earlier that year, an account upon the introduction of Valentin Co, a long-standing "valued client" of CBC. What Cuaso indicated in the application form, however, was that the new client was introduced by Valentin Co, and with her initials on the form signifying her approval, she referred the application to the New Accounts Section for processing. As finally proceeds, the application form shows the signature of "Eligia G. Fernando", "her" date of birth, sex, civil status, nationality, occupation ("business woman"), tax account number, and initial deposit of P10,000.00. This final approval of the new current account is indicated on the application form by the initials of Regina G. Dy, Cashier, who did not interview the new client but affixed her initials on the application form after reviewing it. On October 14, 1981, the woman holding herself out as Eligia G. Fernando deposited the two checks in controversy with Current Account No. 126310-3. Her endorsement on the two checks was found to conform with the depositor's specimen signature. CBC's guaranty of prior endorsements and/or lack of endorsement was then stamped on the two checks, which CBC forthwith sent to clearing and which BPI cleared on the same day. Two days after, withdrawals began on Current Account No. 26310-3: On October 16, 1981, by means of Check No. 240005 dated the same day for P1,000,000.00, payable to "cash", which the woman holding herself out as Eligia G. Fernando encashed over the counter, and Check No. 240003 dated October 15, 1981 for P48,500.00, payable to "cash" which was received through clearing from PNB Pasay Branch; on October 19, 1981, by means of Check No. 240006 dated the same day for P1,000,000.00, payable to "cash," which the woman identifying herself as Eligia G. Fernando encashed over the counter; on October 22, 1981, by means of Check No. 240007 dated the same day for P370,000.00, payable to "cash" which the woman herself also encashed over the counter; and on November 4, 1981, by means of Check No. 240001 dated November 3, 1981 for P4,100.00, payable to "cash," which was received through clearing from Far East Bank. The last withdrawal on November 4, 1981 left Current Account No. 26310-3 with a balance of only P571.61. On November 11, 1981, the maturity date of Eligia G. Fernado's money market placement with BPI, the real Eligia G. Fernando went to BPI for the roll-over of her placement. She disclaimed having preterminated her placement on October 12, 1981. She executed an affidavit stating that while she was the payee of the two checks in controversy, she never received nor endorsed them and that her purported signature on the back of the checks was not hers but forged. With her surrender of the original of the promissory note (No. 35623 with maturity value of P2,462,243.19) evidencing the placement which matured that day, BPI issued her a new promissory note (No. 40314 with maturity date of December 23, 1981 and maturity value of P2,500.266.77) to evidence a roll-over of the placement. On November 12, 1981, supported by Eligia G. Fernando's affidavit, BPI returned the two checks in controversy to CBC for the reason "Payee's endorsement forged". CBC, in turn, returned the checks for reason "Beyond Clearing Time". These incidents led to the filing of this case with the Arbitration Committee. The Arbitration Committee ruled in favor of BPI and ordered CBC to pay the former the amount of P1,206,607.58 with interest thereon at 12% per annum from August 12, 1983. However, upon CBCs motion for reconsideration, the Board of Directors of the PCHC reversed the Arbitration Committee's decision and dismissed the complaint of BPI while ordering it to pay CBC the sum of P1,206,607.58. BPI then filed a petition for review with the Regional Trial Court of Makati who dismissed said petition but modified the award by including a provision for attorneys fees in favor of CBC, among others. The court of appeals affirmed the trial courts decision.ISSUES1. WON the collecting bank has absolute liability on a warranty of the validity of all prior endorsements stamped at the back of the checks 2. In the event that the payee's signature is forged, WON the drawer/drawee bank (in this case BPI) may claim reimbursement from the collecting bank which earlier paid the proceeds of the checks after the same checks were cleared HELD1. NO BPI contends that respondent CBC's clear warranty that "all prior endorsements and/or lack of endorsements guaranteed" stamped at the back of the checks was an unrestrictive clearing guaranty that all prior endorsements in the checks are genuine. Under this premise petitioner BPI asserts that the presenting or collecting bank, respondent CBC, had an unquestioned liability when it turned out that the payee's signature on the checks were forged. With these circumstances, petitioner BPI maintains that considerations of relative negligence become totally irrelevant. In presenting the checks for clearing and for payment, the collecting bank made an express guarantee on the validity of "all prior endorsements." Thus, stamped at the back of the checks are the clear warranty: ALL PRIOR ENDORSEMENTS AND/OR LACK OF ENDORSEMENTS GUARANTEED. Without such warranty, the drawee bank would not have paid on the checks. No amount of legal jargon can reverse the clear meaning of the warranty. As the warranty has proven to be false and inaccurate, the defendant is liable for any damage arising out of the falsity of its representation. Apropos the matter of forgery in endorsements, this Court has emphasized that the collecting bank or last endorser generally suffers the loss because it has the duty to ascertain the genuineness of all prior endorsements considering that the act of presenting the check for payment to the drawee is an assertion that the party making the presentment has done its duty to ascertain the genuineness of the endorsements. If the drawee-bank discovers that the signature of the payee was forged after it has paid the amount of the check to the holder thereof, it can recover the amount paid from the collecting bank. However, the point that comes uppermost is whether the drawee bank was negligent in failing to discover the alteration or the forgery. The general rule under Section 23 of the Negotiable Instruments Law is to the effect that a forged signature is "wholly inoperative", and payment made "through or under such signature" is ineffectual or does not discharge the instrument. The exception to this rule is when the party relying in the forgery is "precluded from setting up the forgery or want of authority. In this jurisdiction we recognize negligence of the party invoking forgery as an exception to the general rule. In the present petition the payee's names in the checks were forged. Following the general rule, the checks are "wholly inoperative" and of no effect. However, the underlying circumstances of the case show that the general rule on forgery is not applicable. The issue as to who between the parties should bear the loss in the payment of the forged checks necessities the determination of the rights and liabilities of the parties involved in the controversy in relation to the forged checks. The records show that petitioner BPI as drawee bank and respondent CBC as representing or collecting bank were both negligent resulting in the encashment of the forged checks. The Arbitration Committee in its decision analyzed the negligence of the employees of petitioner BPI involved in the processing of the pre-termination of Eligia G. Fernando's money market placement and in the issuance and delivery of the subject checks in this wise: a) The impostor could have been readily unmasked by a mere telephone call, which nobody in BPI bothered to make to Eligia G. Fernando, a vice-president of Philamlife; b) The officer who used to handle Eligia G. Fernando's account did not do anything about the account's pre-termination; c) Again no verification appears to have been made on Eligia G. Fernando's purported signature on the letter requesting the pre-termination and the letter authorizing her niece to pick-up the checks, yet, her signature was in BPI's file; and d) Another step that could have foiled the fraud, but which BPI neglected to take, was requiring before the two checks in controversy were delivered, the surrender of the promissory note evidencing the money market placement that was supposedly pre-terminated. The Arbitration Committee, however, belittled petitioner BPI's negligence compared to that of respondent CBC which it declared as graver and the proximate cause of the loss of the subject checks to the impostor who impersonated Eligia G. Fernando. The PCHC Board of Directors, however, stated that these withdrawals, without any further showing that the CBC employees had actual knowledge of the infirmity or defect, or knowledge of such facts (Sec. 56, Negotiable Instruments Law) that their action in accepting their checks for deposit and allowing the withdrawals against the same amounted to bad faith cannot be considered as basis for holding CBC liable. Banks handle daily transactions involving millions of pesos. By the very nature of their work the degree of responsibility, care and trustworthiness expected of their employees and officials is far greater than those of ordinary clerks and employees. For obvious reasons, the banks are expected to exercise the highest degree of diligence in the selection and supervision of their employees. In the present case, there is no question that the banks were negligent in the selection and supervision of their employees. The Arbitration Committee, the PCHC Board of Directors and the lower court, however disagree in the evaluation of the degree of negligence of the banks. While the Arbitration Committee declared the negligence of respondent CBC graver, the PCHC Board of Directors and the lower courts declared that petitioner BPI's negligence was graver. To the extent that the degree of negligence is equated to the proximate cause of the loss, we rule that the issue as to whose negligence is graver is relevant. No matter how many justifications both banks present to avoid responsibility, they cannot erase the fact that they were both guilty in not exercising extraordinary diligence in the selection and supervision of their employees. 2. NO The next issue hinges on whose negligence was the proximate cause of the payment of the forged checks by an impostor. Petitioner BPI insists that the doctrine of last clear chance should have been applied considering the circumstances of this case. Under this doctrine, where both parties were negligent and such negligence were not contemporaneous, the person who has the last fair chance to avoid the impending harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of the other party. Applying these principles, petitioner BPI's reliance on the doctrine of last clear chance to clear it from liability is not well-taken. CBC had no prior notice of the fraud perpetrated by BPI's employees on the pretermination of Eligia G. Fernando's money market placement. Moreover, Fernando is not a depositor of CBC. Hence, a comparison of the signature of Eligia G. Fernando with that of the impostor Eligia G. Fernando, which respondent CBC did, could not have resulted in the discovery of the fraud. Hence, respondent CBC had no way to discover the fraud at all. In fact the records fail to show that respondent CBC had knowledge, actual or implied, of the fraud perpetrated by the impostor and the employees of BPI. BPI further argues that the acts and omissions of respondent CBC are the cause "that set into motion the actual and continuous sequence of events that produced the injury and without which the result would not have occurred." Petitioner BPI anchors its argument on its stance that there was "a gap, a hiatus, an interval between the issuance and delivery of said checks by petitioner BPI to the impostor and their actual payment of CBC to the impostor. Petitioner BPI points out that the gap of one (1) day that elapsed from its issuance and delivery of the checks to the impostor is material on the issue of proximate cause. At this stage, according to petitioner BPI, there was yet no loss and the impostor could have decided to desist from completing the same plan and could have held to the checks without negotiating them. Petitioner BPI's contention that CBC alone should bear the loss must fail. The gap of one (1) day between the issuance and delivery of the checks bearing the impostor's name as payee and the impostor's negotiating the said forged checks by opening an account and depositing the same with respondent CBC is not controlling. It is not unnatural or unexpected that after taking the risk of impersonating Eligia G. Fernando with the connivance of BPI's employees, the impostor would complete her deception by encashing the forged checks. There is therefore, greater reason to rule that the proximate cause of the payment of the forged checks by an impostor was due to the negligence of petitioner BPI. This finding, notwithstanding, we are not inclined to rule that petitioner BPI must solely bear the loss of P2,413,215.16, the total amount of the two (2) forged checks. Due care on the part of CBC could have prevented any loss. The Court cannot ignore the fact that the CBC employees closed their eyes to the suspicious circumstances of huge over-the-counter withdrawals made immediately after the account was opened. The opening of the account itself was accompanied by inexplicable acts clearly showing negligence. And while we do not apply the last clear chance doctrine as controlling in this case, still the CBC employees had ample opportunity to avoid the harm which befell both CBC and BPI. They let the opportunity slip by when the ordinary prudence expected of bank employees would have sufficed to seize it. Both banks were negligent in the selection and supervision of their employees resulting in the encashment of the forged checks by an impostor. Both banks were not able to overcome the presumption of negligence in the selection and supervision of their employees. It was the gross negligence of the employees of both banks which resulted in the fraud and the subsequent loss. While it is true that petitioner BPI's negligence may have been the proximate cause of the loss, respondent CBC's negligence contributed equally to the success of the impostor in encashing the proceeds of the forged checks. Under these circumstances, we apply Article 2179 of the Civil Code to the effect that while respondent CBC may recover its losses, such losses are subject to mitigation by the courts.Disposition The questioned Decision and Resolution are MODIFIED. BPI shall be responsible for 60% while CBC shall share 40% of the loss of P2,413,215.16

IntoxicationWright vs. Manila Electric, 28 Phil 122FACTS: This is an action brought to recover damages for injuries sustained in an accident which occurred in Caloocan on the night of August 8, 1909. The defendant is a corporation engaged in operating an electric street railway in the city of Manila and its suburbs, including the municipality of Caloocan. The plaintiff's residence in Caloocan fronts on the street along which defendant's tracks run, so that to enter his premises from the street plaintiff is obliged to cross defendant's tracks. 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 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: both parties were negligent, but that the plaintiff's negligence was not as great as defendant's and under the authority of the case of Rakes vs. A. G. & P. Co. (7 Phil. Rep., 359) apportioned the damages and awarded plaintiff a judgment of P1,000. ISSUE: Whether or not the plaintiff was negligent. SC: No. 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. It having been found that the plaintiff was not negligent, it is unnecessary to discuss the question presented by the appellant company with reference to the applicability of the case of Rakes vs. A. G. & P. Co., above; and we do not find facts in the opinion of the court below which justify a larger verdict than the one found.

InsanityArticles 2180, 2182, CCUS vs. Baggay, 20 Phil 142US V BAGGAY20 PHIL 142 TORRES; September 1, 1911NATUREAppeal by the defendant from the judgment rendered on April 28, 1910, whereby he was declared exempt from criminal liability but was obliged to indemnify the heirs if the murdered woman, Bil-liingan, in the sum of P1,000, to pay the costs in the case and to be confined in an institution for the insane until further order of the court.FACTS About the 4th of October, 1909, several persons were assembled in the defendant's house in the township of Penarrubia, Abra, Province of Ilocos Sur, for the purpose of holding a song service called "buni" according to the Tinguian custom, when he, the non-Christian Baggay, without provocation suddenly attacked the woman Bil-liingan with a bolo, inflicting a serious wound on her head from which she expired immediately; and with the same bolo he like wise inflicted various wounds on the women named Calabayan, Agueng, Quisamay, Calapini, and on his own mother, named Dioalan. For this reason the provincial fiscal filed a complaint in the court of Ilocos Sur, dated February 15, charging the non-Christian Baggay, jr., with murder, because of the violent death of the woman Bil-liingan. This cause was instituted separately from the other, No. 1109, for lesiones. After trial and proof that the defendant was suffering from mental aberration, the judge on April 28 rendered the judgment cited above, whereupon the defendant's counsel appealed to this court.ISSUEWON an insane person, exempt from criminal liability can still be civilly liableHELDYES Ratio Civil liability accompanies criminal liability, because every person liable criminally for a crime or misdemeanor is also liable for reparation of damage and for indemnification of the harm done, but there may be civil liability because of acts ordinarily punishable, although the law has declared their perpetrators exempt from criminal liability. Reasoning Such is the case of a lunatic or insane person who, in spite of his irresponsibility on account of the deplorable condition of his deranged mind, is still reasonably and justly liable with his property for the consequences of his acts, even though they be performed unwittingly, for the reason that his fellows ought not to suffer for the disastrous results of his harmful acts more than is necessary, in spite of his unfortunate condition. Law and society are under obligation to protect him during his illness and so when he is declared to be liable with his property for reparation and indemnification, he is still entitled to the benefit of what is necessary for his decent maintenance, but this protection does not exclude liability for damage caused to those who may have the misfortune to suffer the consequences of his acts. Article 17 of the Penal Code states:Every person criminally liable for a crime or misdemeanor is also civilly liable. Article 18 of the same code says:The exemption from criminal liability declared in Nos. 1, 2, 3, 7, and 10 of article 8 does not include exemption from civil liability, which shall be enforced, subject to the following: In cases 1, 2, and 3, the persons who are civilly liable for acts committed by a lunatic or imbecile, or a person under 9 years of age, or over this age and under 15, who has not acted with the exercise of judgment, are those who have them under their authority, legal guardianship or power, unless they prove that there was no blame or negligence on their part. Should there be no person having them under his authority, legal guardian, or power, if such person be insolvent, the said lunatics, imbeciles, or minors shall answer with their own property, excepting that part which is exempted for their support in accordance with the civil law. DISPOSITION Therefore, the judgment appealed from being in accordance with law, affirmation thereof is proper, and it is hereby affirmed, with costs against the appellant.

Page42

Degrees of NegligenceArticle 2231, CCMarinduqe vs. Workmens, 99 Phil 48FACTS: on August 23, 1951, at 6:chanry00 a.m. in Bo. Sumangga, Mogpog, Marinduque, the deceased Mamador together with other laborers of theRespondent-corporation, (Marinduque Iron Mines Agents Inc.) boarded a truck belonging to the latter, which was then driven by one Procopio Macunat, also employed by the corporation, and on its way to their place of work at the mine camp at Talantunan, while trying to overtake another truck on the company road, it turned over and hit a coconut tree, resulting in the death of said Mamador and injury to the others. Procopio Macunat was prosecuted, convicted and sentenced to indemnify the heirs of the deceased. (Criminal Case No. 1491). He has paid nothing however, to the latter. THE WORKMENS COMPENSATION COMMISSION: Confirming the referees award of compensation to the heirs of Pedro Mamador for his accidental death. ISSUE: wether or not violating the employers prohibition against laborers riding the haulage trucks would constitute negligence. SC: There is no doubt that mere riding on haulage truck or stealing a ride thereon is not negligence, ordinarily. It couldnt be, because transportation by truck is not dangerous per se. It is argued that there was notorious negligence in this particular instance because there was the employers prohibition. Does violation of this order constitute negligence? Many courts hold that violation of a statute or ordinance constitutes negligence per se. Others consider the circumstances. However there is practical unanimity in the proposition that violation of a rule promulgated by a Commission or board is not negligence per se; chan roblesvirtualawlibrarybut it may be evidence of negligence. (C.J.S., Vol. 65, p. 427.) This order of the employer (prohibition rather) couldnt be of a greater obligation than the rule of a Commission or board. And the referee correctly considered this violation as possible evidence of negligence; chan roblesvirtualawlibrarybut it declared that under the circumstance, the laborer could not be declared to have acted with negligence. Correctly, it is believed, since the prohibition had nothing to do with personal safety of the riders. Such finding is virtually a finding of fact which we may not overrule in this certiorari proceeding. Nevertheless, even granting there was negligence, it surely was not notorious negligence, which we have interpreted to mean the same thing as gross negligence 3 implying conscious indifference to consequences pursuing a course of conduct which would naturally and probably result in injury utter disregard of consequences. (38 Am. Jur., 691) Getting or accepting a free ride on the companys haulage truck couldnt be gross negligence, because as the referee found, no danger or risk was apparent. There being no other material point raised in the petition for review, the award of compensation is hereby affirmed, with costs against PetitionerProof of NegligenceRule 131, Rules of Court (ROC)Articles 2184-2185, 2188, 1734-1735, CCLayugan vs. IAC, 167 SCRA 363FACTS: While Pedro Layugan and companion were repairing the tire of their cargo truck which was parked along the right side of the National Highway, Godofredo Isidro truck driven recklessly by Daniel Serrano bumped them. As a result, Layugan was injured and hospitalized and spent P10, 000.00 and will incur more expenses for recuperating. He would be deprived of lifetime income of P70, 000.00 and has paid his lawyer P10, 000.00. Trial Court: Isidro was found liable. Intermediate Appellate Court: It reversed the decision of the trial court and dismissed the complaint, the third-party complaint, and the counter- claims of both appellants. ISSUE: Whether or not Isidro was liable by the negligence of Serrano. HELD: Yes. It is clear that the driver did not know his responsibilities because he apparently did not check his vehicle before he took it on the road. If he did he could have discovered earlier that the brake fluid pipe on the right was cut, and could have repaired it and thus the accident could have been avoided. Moreover, to our mind, the fact that the Isidro used to instruct his driver to be careful in his driving, that the driver was licensed, and the fact that he had no record of any accident, as found by the court, are not sufficient to destroy the finding of negligence of the Regional Trial Court given the facts established at the trial. Isidro or his mechanic, who must be competent, should have conducted a thorough inspection of his vehicle before allowing his driver to drive it. In the light of the circumstances obtaining in the case, we hold that Isidro failed to prove that the diligence of a good father of a family in the supervision of his employees which would exculpate him from solidary liability with his driver toLayugan. But even if we concede that the diligence of a good father of a family was observed by Isidro in the supervision of his driver, there is not an iota of evidence on record of the observance by Isidro of the same quantum of diligence in the supervision of his mechanic, if any, who would be directly in charge in maintaining the road worthiness of his (Isidro's) truck. But that is not all. There is paucity of proof that Isidro exercised the diligence of a good father of a family in the selection of his driver, Daniel Serrano, as well as in the selection of his mechanic, if any, in order to insure the safe operation of his truck and thus prevent damage to others. Accordingly, the responsibility of Isidro as employer treated in Article 2180, paragraph 5, of the Civil Code has not ceased. Wherefore, decision of the trial court is hereby REINSTATED Ramos vs. CA, 321 SCRA 584FACTS: Sometime in 1985, petitioner Erlinda Ramos, after seeking professional medical help, wasadvised to undergo an operation for the removal of a stone in her gall bladder (cholecystectomy).She was referred to Dr. Hosaka, a surgeon, who agreed to perform the operation on her. Theoperation was scheduled for June 17, 1985 at 9:00 in the morning at private respondent De LosSantos Medical Center (DLSMC). Since neither petitioner Erlinda nor her husband, petitioner Rogelio, knew of any anesthesiologist, Dr. Hosaka recommended to them the services of Dr.Gutierrez.Petitioner Erlinda was admitted to the DLSMC the day before the scheduled operation. By 7:30in the morning of the following day, petitioner Erlinda was already being prepared for operation.Upon the request of petitioner Erlinda, her sister-in-law, Herminda Cruz, who was then Dean of the College of Nursing at the Capitol Medical Center, was allowed to accompany her inside theoperating room At around 9:30 in the morning, Dr. Hosaka had not yet arrived so Dr. Gutierrez tried to get intouch with him by phone. ."By 10:00 in the morning, when Dr. Hosaka was still not around, petitioner Rogelio alreadywanted to pull out his wife from the operating room. He met Dr. Garcia, who remarked that hewas also tired of waiting for Dr. Hosaka. Dr. Hosaka finally arrived at the hospital at around12:10 in the afternoon, or more than three (3)hours after the scheduled operation. Cruz, who was then still inside the operating room, heard about Dr. Hosakas arrival." Cruz noticed a bluish discoloration of Erlindas nailbeds on her left hand. She (Cruz) then heard Dr. Hosaka instruct someone to call Dr. Calderon, another anesthesiologist. When he arrived, Dr. Calderon attempted to intubate the patient. Cruz went out of the operating room to express her concern to petitioner Rogelio that Erlindas operation was not going well. Cruz quickly rushed back to the operating room and saw that the patient was still in trendelenburg position. At almost 3:00 in the afternoon, she saw Erlinda being wheeled to the Intensive Care Unit (ICU). The doctors explained to petitioner Rogelio that his wife had bronchospasm. Erlinda stayed in the ICU for a month. She was released from the hospital onlyfour months later or on November 15, 1985. Since the ill-fated operation, Erlinda remained in comatose condition until she died on August 3, 1999. ISSUES: 1. Whether or not dr. Orlino hosaka (surgeon) is liable for negligence; 2. Whether or not dr. Perfecta Gutierrez (anesthesiologist) is liable for negligence; and 3. Whether or not the hospital (delos santos medical center ) is liable for any act of negligence committed by their visiting consultant surgeon and anesthesiologist RULING: In the case at bar, the following issues were resolved as follows: 1) Dr. Hosaka's irresponsible conduct of arriving very late for the scheduled operation of petitioner Erlinda is violative, not only of his duty as a physician "to serve the interest of his patients with the greatest solicitude, giving them always his best talent and skill," but also of Article 19 of the Civil Code which requires a person, in the performance of his duties, to act with justice and give everyone his due. 2) Dr. Gutierrez claim of lack of negligence on her part is belied by the records of the case. It has beensufficiently established that she failed to exercise the standards of care in the administration of anesthesia on a patient. Dr. Gutierrez omitted to perform a thorough preoperative evaluation on Erlinda. Further, there is no cogent reason for the Court to reverse its finding that it was the faulty intubation on Erlinda that caused her comatose condition. There is no question that Erlinda became comatose after Dr. Gutierrez performed a medical procedure on her. 3)After a careful consideration of the arguments raised by DLSMC, the Court finds that respondent hospitals position on this issue is meritorious. There is no employeremployee relationship between DLSMC and Drs. Gutierrez and Hosaka which would hold DLSMC solidarily liable for the injury suffered by petitioner Erlinda under Article 2180 of the Civil Code. Further, no evidence was adduced to show that the injury suffered by petitioner Erlinda was due to a failure on the part of respondent DLSMC to provide for hospital facilities and staff necessary for her treatment. For these reasons, the Supreme Cord reverse the finding of liability on the part of DLSMC for the injury suffered by petitioner Erlinda

Batiquin vs. CA, 258 SCRA 334FACTS: Dr. Batiquin performed a caesarian operation on a patient. Afterwards, she was found to be feverish. When the patient submitted herself to another surgery, she was found to have an ovarian cyst on the left and right side of the ovaries and a piece of rubber material was embedded on the right side of the uterus. HELD: Res ipsa Where the thing which causes the injury is shown to under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management used proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from ordinary want of care. All the requisites are present in this case. (1) The entire proceedings of the caesarian were under the exclusive control of Dr. Batiquin. (2)The patient underwent no other operation which could habe caused the offending piece of rubber to appear in her uterus, it stands to reason that it could have only been a by-product of the caesarian section. RULE: Res ipsa Where the thing which causes injury is shown to be under the management of the Defendant, and the accident is such as in the ordinary course of things does not happen if those who have themanagement use proper care,it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of ordinary care.DM Consunji vs. CA, 357 SCRA 249FACTS: Around 1:30PM of November 2, 1990, Jose Juergo, a construction worker of D.M. Consunji Inc. fell 14 floors from the Renaissance Tower, Pasig City. He was immediately rushed to Rizal Medical Center in Pasig City. The attending physician, Dr. Errol de Yzo, pronounce Jose dead on arrival (DOA) at around 2:15PM. Jose Juergo, together with Jessie Jaluag and Delso Destajo, performing their work as carpenter at the elevator core of the 14th floor of Tower D, Renaissance Tower Building were on board a platform. Jose was crushed to death when the platform fell due to removal or looseness of the pin, which was merely inserted to the connecting points of the chain block and platform but without a safety lock. Luckily, Jessie and Delso jumped out of safety. PO3 Rogelio Villanueva of the Eastern Police District investigated the tragedy and filed report dated Nov. 25, 1990. Maria Juergo, Joses widow filed a complaint on May 9, 1991 for damages in the RTC and was rendered a favorable decision to receive support from DM Consunji amounting to P644,000. DM Consunji seeks reversal of the CA decision. ISSUE: Whether Maria Juergo can still claim damages with D.M. Consunji apart from the death benefits she claimed in the State Insurance Fund. HELD: The respondent is not precluded from recovering damages under the civil code. Maria Juergo was unaware of petitioners negligence when she filed her claim for death benefits from the State Insurance Fund. She filed the civil complaint for damages after she received a copy of the police investigation report and the Prosecutors Memorandum dismissing the criminal complaint against petitioners personnel. Supreme Court remanded to the RTC of Pasig City to determine whether the award decreed in its decision is more than that of the Employees Compensation Commission (ECC). Should the award decreed by the trial court be greater than that awarded by the ECC, payments already made to private respondent pursuant to the Labor Code shall be deducted there from.

D. Defenses1. Plaintiffs NegligenceArticle 2179, CCManila Electric vs. Remonquillo, 99 Phil 117 GR No. L-8328 (1956)FACTS: On August 22, 1950, Efren Magno went to the 3-story house of Antonio Pealoza, 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. RULLING BY THE TRIAL COURT: After hearing, the trial court rendered judgment in favor to the respondents P10,000 as compensatory damages;P784 as actual damages,ryP2,000 as moral and exemplary damages; and P3,000 as attorneys fees, with costs. RULLING BY THE COURT OF APPEALS: On appeal to the Court of Appeals, the latter affirmed the judgment with slight modification by reducing the attorneys fees from P3,000 to P1,000 with costs. ISSUE: WON Manila Electric is guilty of negligence. RULLING BY THE SC: NO- It was the victim who was guilty of negligence the liability of electric companies for damages or personal injury is governed by the rules of negligence, nevertheless such companies are not insurers of the safety of the public. Reasoning - The death of Magno was primarily caused by his own negligence, and in some measure by the too close proximity of the media agua 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. Had the house owner followed the terms of the permit given him by the city for the construction of hismedia agua, the distance from the wires to the edge of said media agua would have been 3ft and 11 3/8inches.- 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 to change the installation of its wires so as to preserve said distance.- The violation of the permit for the construction was not the direct cause of the accident. It merely contributed to it. The real cause of the accident or death was the reckless or negligent act of Magno himself. It is to be presumed that due to his age and experience he was qualified to do so. He had training and experience for the job. He could not have been entirely a stranger to electric wires and the danger lurking in them.- To hold the defendant liable in damages for the death of Magno, such supposed negligence of the company must have been the proximate and principal cause of the accident We realize that the stringing of wires of such high voltage (3,600 volts), un insulated 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 maybe, 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.Bernardo vs. Legaspi, 29 Phil 12FACTS- Due to a collision between the respective automobiles ofBernardoand Legaspi, the former filed an action to recoverdamages for injuries sustained by his car which he allegedwere by reason of Legaspi's negligence in causing saidcollision.Legaspi, on the other hand, filed a cross-complaint alleging itwasBernardo'sfault. He also asks for damages.- The lower court found upon the evidence that both the plaintiffand the defendant were negligent in handling their automobilesand that said negligence was of such a character and extent onthe part of both as to prevent either from recovering.ISSUEWON the parties may recover damagesHELD1. NO- Where two automobiles, going in opposite directions, collideon turning a street corner, and it appears from the evidenceand is found by the trial court that the drivers thereof wereequally negligent and contributed equally to the principaloccurrence as determining causes thereof,neither can recoverof the otherfor damages suffered.

Bernal vs. House, 54 Phil 327FACTS-Fortunata Enverso with her daughter PurificacionBernalwent to Tacloban, Leyte to attend the procession of HolyFriday.-After the procession, they, accompanied by two otherpersons, passed along apublic street named Gran Capitan.-The little girl was allowed to get a short distance in advanceof her mother and her friends.-While in front of the offices of the Tacloban Electric & IcePlant, Ltd., an automobile appeared on which frightened thechild. She turned to run, but fell into the street gutter. At thattime there was hot water in this gutter or ditch coming from theElectric Ice Plant of J.V. House.-When the mother and her companions reached the child,they found her face downward in the hot water.-The girl was taken to the provincial hospital. Despite hisefforts, the child died that same night.-It was certified that the cause of death was "Burns, 3rdDegree, 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 flowdown the side of the street Gran Captain with the knowledgeand consent of the authorities; that the cause of death wasother than the hot water; and that in the death the plaintiffscontributed by their own faultand negligence.-The trial judge, however, after examination of the evidencepresented by the defendants, failed to sustain their theory ofthe case, except as to the last mentioned special defense. Henevertheless was led to order the dismissal of the actionbecause of the contributory negligence ofthe plaintiffs.ISSUEWON the action should be dismissed due to the contributorynegligence of the plaintiffsHELD:NO- The death of the child was the result of fault and negligencein permitting hot water to flow through the public streets, thereto endanger the lives of passers-by who were unfortunatelyenough to fall into it- The mother and her child had a perfect right to be on theprincipal street of Tacloban, Leyte, on the evening when thereligious procession was held.- There was nothing abnormal in allowing the child to run alonga few paces in advance of the mother. No one could foreseethe coincidence of an automobile appearing andof a frightenedchild running and falling into a ditch filled with hot water.- The doctrines announced in the much debated case of Rakesvs.Atlantic, Gulf and Pacific Co. ([1907], 7 Phil., 359), still rule.Article 1902 of the Civil Code must again be enforced.Thecontributory negligence of the child andher mother, if any,does not operate as a bar to recovery, but in its strictestsense could only result in reduction of the damages.DISPOSITIONJudgment appealed from was in part bereversed and in the court of origin another judgment wasissued in favor of Fortunata Enverso and against J.V. Housefor the amount of P1,000, and for the costs of both instances.SEPARATE OPINION:ROMUALDEZ [dissent]- Even taking the finding that the defendant by its negligencehelped to bring about the accident which resulted in the deathof the child PurificacionBernal, plaintiff, by negligence,contributed to that most regrettable result.- Judgment appealed from should be affirmed

PLDT vs. CA, GR No 57079, 178 SCRA 94 (September 29, 1989)FACTS: On July 30, 1968, the jeep of Esteban spouses ran over amound of earth and fell into an open trench, anexcavation allegedly undertaken by PLD T for theinstallation of its underground conduit system. Thecomplaint alleged that respondent Antonio Esteban failed to notice the open trench which was left uncovered because of the creeping darkness and the lack of any warning light or signs. Gloria Esteban allegedly sustained injuries on her arms, legs and face, leaving a permanent scar on her cheek, while the respondent husband suffered cut lips. In addition, the windshield of the jeep was shattered. PLDT, in its answer, denies liability on the contention that the injuries sustained by respondent spouses were the result of their own negligence and that the entity which should be held responsible, if at all, is L.R. Barte and Company, an independent contractor which undertook the said construction work. The R TC ruled in favor of Esteban spouses whereas the CA reversing the decision of the lower court and dismissing the complaint of respondent spouses. It held that respondent Esteban spouses were negligent and consequently absolved petitioner PLDT from the claim for damages. ISSUE: WON PLDT is liable to respondent Esteban spouses. HELD: The above findings clearly show that the negligence of respondent Antonio Esteban was not only contributory to his injuries and those of his wife but goes to the very cause of the occurrence of the accident, as one of its determining factors, and thereby precludes their right to recover damages. 30 The perils of the road were known to, hence appreciated and assumed by, private respondents. By exercising reasonable care and prudence, respondent Antonio Esteban could have avoided the injurious consequences of his act, even assuming arguendo that there was some alleged negligence on the part of petitioner. As opined in some quarters, the omission to perform a duty, such as the placing of warning signs on the site of the excavation, constitutes the proximate cause only when the doing of the said omitted act would have prevented the injury. Furthermore, respondent Antonio Esteban had the last clear chance or opportunity to avoid the accident, notwithstanding the negligence he imputes to petitioner PLDT. As a resident of Lacson Street, he passed on that street almost every day and had knowledge of the presence and location of the excavations there. It was his negligence that exposed him and his wife to danger; hence he is solely responsible for the consequences of his imprudence.

Contributory NegligenceArticles 2179, 2214, CCGenobiagon vs. CA, 178 SCRA 422GENOBIAGON V CA (PEOPLE OF THE PHILS)178 SCRA 422GRIO-AQUINO; October 22, 1957NATUREPetition for review of the CAs decision affirming the convictionof the petitioner of the crime of homicide thru recklessimprudence.FACTS- On Dec 31, 1959, at about 7:30 PM, a rig driven byGenobiagon bumped an old woman who was crossing thestreet. The appellant's rig was following another at a distanceof two meters. The old woman started to cross when the firstrig was approaching her, but as appellant's vehicle was goingso fast not only because of the steep down-grade of the road,but also because he was trying to overtake the rig ahead ofhim, the appellant's rig bumped the old woman, who fell at themiddle of the road. The appellant continued to drive on, but aby-stander Mangyao saw the incident and shouted at theappellant to stop. He ran afterappellant when the latter refusedto stop. Overtaking the appellant, Mangyao asked him why hebumped the old woman and his answer was, 'it was the oldwoman that bumped him.' The appellant went back to the placewhere the old woman was struck by his rig. The old womanwas unconscious. She was then loaded in a jeep and broughtto the hospital where she died 3 hours later.- Genobiagon was convicted of homicide thru recklessimprudence. CA affirmed- Genobiagon claims CA erred in not finding that the recklessnegligence of the victim was the proximate cause of theaccident which led to her deathISSUESWON contributory negligence can be used as defense byGenobiagonHELD:NO- Thealleged contributory negligence of the victim, if any, doesnot exonerate the accused.- "The defense of contributory negligence does not apply incriminal cases committed through reckless imprudence, sinceone cannot allege the negligence of another to evade theeffects of his own negligence (People vs. Orbeta, CA-G.R. No.321, March 29, 1947)."(People vs. Quiones, 44 O.G. 1520)Dispositionthe appealed decision is affirmed withmodification as to the civil liability of the petitioner which ishereby increased to P30,000. Costs against petitioner

Rakes vs. Atlantic, GR No 1719 (1907)FACTS: M.H. Rakes who was under the employment of Atlantic Gulf and Pacific Company was at work transporting iron rails from the barge from the harbor to the companys yard in Manila. During the process, the track sagged, the tie broke, the car carrying the said iron rails either canted thus the rails slid off hitting the leg of Rakes causing it to be amputated. Rakes then filed an action against Atlantic for their negligence. The trial court decided in favor of Rakes ordering the Atlantic to pay Rakes the amount of Php5,000.00. The Atlantic then filed a petition alleging therein that the remedy for injuries through negligence lies only in a criminal action and the negligence of Rakes was the cause of his injury for having noticed the depression in the track he still continued his work and that he walked at the side of the car instead of along the boards. The appellate court affirmed the said decision. ISSUE: Whether or not the action of Rakes is considered negligent thus contributed to his injury exempting the Atlantic from any liability. HELD: Although the defendants negligence may have been the primary cause of the injury complained of, yet an action for such injury cannot be maintained if the proximate and immediate cause of the injury can be traced to the want of ordinary care and caution in the person injured; subject to this qualification, which has grown up in recent years (having been first enunciated in Davies vs. Mann, 10 M. & W., 546) that the contributory negligence of the party injured will not defeat the action if it be shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the injured partys negligence. Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered immediate causes of the accident. The test is simple. Distinction must be between the accident and the injury, between the event itself, without which there could have been no accident, and those acts of the victim not entering into it, independent of it, but contributing under review was the displacement of the crosspiece or the failure to replace it. This produced the event giving occasion for damages that is, the shrinking of the track and the sliding of the iron rails. To this event, the act of the plaintiff in walking by the side of the car did not contribute, although it was an element of the damage which came to himself. Had the crosspiece been out of place wholly or partly thorough his act of omission of duty, the last would have been one of the determining causes of the event or accident, for which he would have been responsible. Where he contributes to the principal occurrence, as one of its determining factors, he cannot recover. Where, in conjunction with the occurrence, he contributes only to his own injury, he may recover the amount that the defendant responsible for the event should pay for such injury, less a sum deemed a suitable equivalent for his own imprudence. Accepting, though with some hesitation, the judgment of the trial court, fixing the damage incurred by the plaintiff at 5,000 pesos, the equivalent of 2,500 dollars, United States money, we deduct therefrom 2,500 pesos, the amount fairly attributable to his negligence, and direct judgment to be entered in favor of the plaintiff for the resulting sum of 2,500 pesos, with cost of both instances, and ten days hereafter let the case be remanded to the court below for proper action. So ordered.

Philippine Bank of Commerce vs. CA, 269 SCRA 695FACTS: Challenged in this petition for review is the Decision dated February 28, 1991 1 rendered by public respondent Court of Appeals which affirmed the Decision dated November 15, 1985 of the Regional Trial Court, National Capital Judicial Region, Branch CLX (160), Pasig City, in Civil Case No. 27288 entitled "Rommel's Marketing Corporation, etc. v. Philippine Bank of Commerce, now absorbed by Philippine Commercial and Industrial Bank." The case stemmed from a complaint filed by the private respondent Rommel's Marketing Corporation (RMC for brevity), represented by its President and General Manager Romeo Lipana, to recover from the former Philippine Bank of Commerce (PBC for brevity), now absorbed by the Philippine Commercial International Bank, the sum of P304,979.74 representing various deposits it had made in its current account with said bank but which were not credited to its account, and were instead deposited to the account of one Bienvenido Cotas, allegedly due to the gross and inexcusable negligence of the petitioner bank RTC JUDGMENT: RMC demanded from petitioner bank the return of its money, but as its demand went unheeded, it filed a collection suit before the Regional Trial Court of Pasig, Branch 160. The trial court found petitioner bank negligent and ruled as follows: WHEREFORE, judgment is hereby rendered sentencing defendant Philippine Bank of Commerce, now absorbed by defendant Philippine Commercial & Industrial Bank, and defendant Azucena Mabayad to pay the plaintiff, jointly and severally, and without prejudice to any criminal action which may be instituted if found warranted: 1. The sum of P304,979.72, representing plaintiffs lost deposit, plus interest thereon at the legal rate from the filing of the complaint; 2. A sum equivalent to 14% thereof, as exemplary damages; 3. A sum equivalent to 25% of the total amount due, as and for attorney's fees; and 4. Costs. SC RULING: Our law on quasi-delicts states: Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. There are three elements of a quasi-delict: (a) damages suffered by the plaintiff; (b) fault or negligence of the defendant, or some other person for whose acts he must respond; and (c) the connection of cause and effect between the fault or negligence of the defendant and the damages incurred by the plaintiff. In the case at bench, there is no dispute as to the damage suffered by the private respondent (plaintiff in the trial court) RMC in the amount of P304,979.74. It is in ascribing fault or negligence which caused the damage where the parties point to each other as the culprit. Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would do. The seventy-eight (78)-year-old, yet still relevant, case of Picart v. Smith, provides the test by which to determine the existence of negligence in a particular case which may be stated as follows: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet paterfamilias of the Roman law. The existence of negligence in a given case is not determined by reference to the personal judgment of the actor in the situation before him. The law considers what would be reckless, blameworthy, or negligent in the man of ordinary intelligence and prudence and determines liability by that. ON THE DOCTRINE OF LAST CLEAR CHANCE AND THE CONCEPT OF PROXIMATE CAUSE: Proximate cause is determined on the facts of each case upon mixed considerations of logic, common sense, policy and precedent. Vda. de Bataclan v. Medina, reiterated in the case of Bank of the Phil. Islands v. Court of Appeals, defines proximate cause as "that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. . . ." In this case, absent the act of Ms. Mabayad in negligently validating the incomplete duplicate copy of the deposit slip, Ms. Irene Yabut would not have the facility with which to perpetrate her fraudulent scheme with impunity. Apropos, once again, is the pronouncement made by the respondent appellate court, to wit: . . . . Even if Yabut had the fraudulent intention to misappropriate the funds entrusted to her by plaintiff, she would not have been able to deposit those funds in her husband's current account, and then make plaintiff believe that it was in the latter's accounts wherein she had deposited them, had it not been for bank teller Mabayad's aforesaid gross and reckless negligence. The latter's negligence was thus the proximate, immediate and efficient cause that brought about the loss claimed by plaintiff in this case, and the failure of plaintiff to discover the same soon enough by failing to scrutinize the monthly statements of account being sent to it by appellant bank could not have prevented the fraud and misappropriation which Irene Yabut had already completed when she deposited plaintiff's money to the account of her husband instead of to the latter's accounts. Furthermore, under the doctrine of "last clear chance" (also referred to, at times as "supervening negligence" or as "discovered peril"), petitioner bank was indeed the culpable party. This doctrine, in essence, states that where both parties are negligent, but the negligent act of one is appreciably later in time than that of the other, or when it is impossible to determine whose fault or negligence should be attributed to the incident, the one who had the last clear opportunity to avoid the impending harm and failed to do so is chargeable with the consequences thereof. Stated differently, the rule would also mean that an antecedent negligence of a person does not preclude the recovery of damages for the supervening negligence of, or bar a defense against liability sought by another, if the latter, who had the last fair chance, could have avoided the impending harm by the exercise of due diligence. Here, assuming that private respondent RMC was negligent in entrusting cash to a dishonest employee, thus providing the latter with the opportunity to defraud the company, as advanced by the petitioner, yet it c