Republic of the PhilippinesSupreme Court

Manila   

SECOND DIVISION 

PHILIPPINE NATIONAL RAILWAYS CORPORATION, JAPHET ESTRANAS and BEN SAGA,                                        Petitioners,                            -versus-  PURIFICACION VIZCARA,MARIVIC VIZCARA,CRESENCIA A. NATIVIDAD,HECTOR VIZCARA, JOEL VIZCARA and DOMINADOR ANTONIO,                                       Respondents. 

G.R. No. 190022 Present: CARPIO, J.,         Chairperson,VILLARAMA, JR.,*

PEREZ,SERENO, and        REYES, JJ.  Promulgated: February 15, 2012 

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DECISION

 

REYES, J.:

 

Nature of the Petition

 

          Before this Court is a petition for review on certiorari under Rule 45 of the

1997 Rules of Civil Procedure, seeking to annul and set aside the Decision[1] dated

July 21, 2009 of the Court of Appeals (CA) in CA-G.R. CV No. 90021, which

affirmed with modification the Decision[2] dated March 20, 2007 of the Regional

Trial Court (RTC), Branch 40, Palayan City, and Resolution[3] dated October 26,

2009, which denied the petitioners’ motion for reconsideration.

 

The Antecedent Facts

 

On May 14, 2004, at about three o’clock in the morning, Reynaldo Vizcara

(Reynaldo) was driving a passenger jeepney headed towards Bicol to deliver onion

crops, with his companions, namely, Cresencio Vizcara (Cresencio), Crispin

Natividad (Crispin), Samuel Natividad (Samuel), Dominador Antonio

(Dominador) and Joel Vizcara (Joel). While crossing the railroad track in Tiaong,

Quezon, a Philippine National Railways (PNR) train, then being operated by

respondent Japhet Estranas (Estranas), suddenly turned up and rammed the

passenger jeepney. The collision resulted to the instantaneous death of Reynaldo,

Cresencio, Crispin, and Samuel. On the other hand, Dominador and Joel, sustained

serious physical injuries.[4]

 

          At the time of the accident, there was no level crossing installed at the

railroad crossing. Additionally, the “Stop, Look and Listen” signage was poorly

maintained. The “Stop” signage was already faded while the “Listen” signage was

partly blocked by another signboard.[5]

 

          On September 15, 2004, the survivors of the mishap, Joel and Dominador,

together with the heirs of the deceased victims, namely, Purificacion Vizcara,

Marivic Vizcara, Cresencia Natividad and Hector Vizcara, filed an action for

damages against PNR, Estranas and Ben Saga, the alternate driver of the train,

before the RTC of Palayan City. The case was raffled to Branch 40 and was

docketed as Civil Case No. 0365-P. In their complaint, the respondents alleged that

the proximate cause of the 

fatalities and serious physical injuries sustained by the victims of the accident was

the petitioners’ gross negligence in not providing adequate safety measures to

prevent injury to persons and properties. They pointed out that in the railroad track

of Tiaong, Quezon where the accident happened, there was no level crossing bar,

lighting equipment or bell installed to warn motorists of the existence of the track

and of the approaching train.  They concluded their complaint with a prayer for

actual, moral and compensatory damages, as well as attorney’s fees.[6]

 

          For their part, the petitioners claimed that they exercised due diligence in

operating the train and monitoring its roadworthiness. They asseverate that right

before the collision, Estranas was driving the train at a moderate speed. Four

hundred (400) meters away from the railroad crossing, he started blowing his horn

to warn motorists of the approaching train. When the train was only fifty (50)

meters away from the intersection, respondent Estranas noticed that all vehicles on

both sides of the track were already at a full stop.  Thus, he carefully proceeded at

a speed of twenty-five (25) kilometers per hour, still blowing the train’s horn.

However, when the train was already ten (10) meters away from the intersection,

the passenger jeepney being driven by Reynaldo suddenly crossed the tracks.

Estranas immediately stepped on the brakes to avoid hitting the jeepney but due to

the sheer weight of the train, it did not instantly come to a complete stop until the

jeepney was dragged 20 to 30 meters away from the point of collision.[7]

 

The Ruling of the Trial Court

 

          After trial on the merits, the RTC rendered its Decision[8] dated March 20,

2007, ruling in favor of the respondents, the dispositive portion of which reads:

             WHEREFORE, premises considered, judgment is hereby rendered ordering defendants Philippine National Railways Corporation (PNR), Japhet Estranas and Ben Saga to, jointly and severally pay the following amounts to: 1.  a)  PURIFICACION VIZCARA:

  1)      P50,000.00, as indemnity for the death of Reynaldo Vizcara;2)      P35,000.00, for funeral expenses;3)      P5,000.00 for re-embalming expenses;4)      P40,000.00 for wake/interment expenses;5)      P300,000.00 as reimbursement for the value of the jeepney with

license plate no. DTW-387;6)      P200,000.00 as moral damages;7)      P100,000.00 as exemplary damages; and8)      P20,000.00 for Attorney’s fees.

    b)  MARIVIC VIZCARA:           

1)      P50,000.00, as indemnity for the death of Cresencio Vizcara;2)      P200,000.00 as moral damages;3)      P100,000.00 as exemplary damages; and4)      P20,000.00 for Attorney’s fees.

    c)  HECTOR VIZCARA:           

1)      P50,000.00 as indemnity for the death of Samuel Vizcara;2)      P200,000.00 as moral damages;3)      P100,000.00 as exemplary damages; and4)      P20,000.00 for Attorney’s fees.

    d)  CRESENCIA NATIVIDAD:

 1)      P50,000.00 as indemnity  for the death of Crispin Natividad;2)      P200,000.00 as moral damages;3)      P100,000.00 as exemplary damages; and4)      P20,000.00 for Attorney’s fees. 

               e)      JOEL VIZCARA 

1)  P9,870.00 as reimbursement for his actual expenses;2)  P50,000.00 as moral damages;3)  P25,000.00 as exemplary damages; and4)  P10,000.00 for Attorney’s fees.

    f)  DOMINADOR ANTONIO

 1)      P63,427.00 as reimbursement for his actual expenses;2)      P50,000.00 as moral damages;3)      P25,000.00 as exemplary damages; and4)      P10,000.00 for Attorney’s fees.

    and 2.  Costs of suit.    SO ORDERED.[9]

  

The Ruling of the CA

 

            Unyielding, the petitioners appealed the RTC decision to the

CA.  Subsequently, on July 21, 2009, the CA rendered the assailed decision,

affirming the RTC decision with modification with respect to the amount of

damages awarded to the respondents. The CA disposed, thus:

           WHEREFORE, instant appeal is PARTIALLY GRANTED.  The assailed Decision is AFFIRMED WITH MODIFICATION, as follows:             (1) The award of P5,000.00 for re-embalming expenses and P40,000.00 for wake/interment expenses to PURIFICACION VIZCARA is deleted. In lieu thereof, P25,000.00 as temperate damages is awarded;             (2) The award of moral damages to PURIFICACION VIZCARA, MARIVIC VIZCARA, HECTOR VIZCARA and CRESENCIA NATIVIDAD is hereby reduced from P200,000.00

to P100,000.00 each while moral damages awarded to JOEL VIZCARA and DOMINADOR ANTONIO are likewise reduced from P50,000.00 to P25,000.00;             (3) The award of exemplary damages to PURIFICACION VIZCARA, MARIVIC VIZCARA, HECTOR VIZCARA and CRESENCIA NATIVIDAD is hereby reduced from P100,000.00 to P50,000.00 each while exemplary damages awarded to JOEL VIZCARA and DOMINADOR ANTONIO are likewise reduced from P25,000.00 to P12,500.00; and             (4) The award for attorney’s fees in favor of the Appellees as well as the award of P300,000.00 to Appellee PURIFICACION as  reimbursement  for the value of the jeepney isDELETED.             SO ORDERED.[10]

  

In the assailed decision, the CA affirmed the RTC’s finding of negligence on

the part of the petitioners. It concurred with the trial court's conclusion that

petitioner PNR's failure to install sufficient safety devices in the area, such as

flagbars or safety railroad bars and signage, was the proximate cause of the

accident. Nonetheless, in order to conform with established jurisprudence, it

modified the monetary awards to the victims and the heirs of those who perished

due to the collision.

 

The petitioners filed a Motion for Reconsideration[11] of the decision of the

CA. However, in a Resolution[12] dated October 26, 2009, the CA denied the same.

 

Aggrieved, the petitioners filed the present petition for review on certiorari,

raising the following grounds:

                                                 I 

THE CA ERRED IN FINDING THAT THE PROXIMATE CAUSE OF THE ACCIDENT WAS THE NEGLIGENCE OF THE PETITIONERS;                                                 II THE CA ERRED IN HOLDING THAT THE DOCTRINE OF LAST CLEAR CHANCE FINDS NO APPLICATION IN THE INSTANT CASE;                                                 III THE CA ERRED IN FINDING NEGLIGENCE ON THE PART OF THE PETITIONERS OR ERRED IN NOT FINDING AT THE LEAST, CONTRIBUTORY NEGLIGENCE ON THE PART OF THE RESPONDENTS.[13]

  

The petitioners maintain that the proximate cause of the collision was the

negligence and recklessness of the driver of the jeepney. They argue that as a

professional driver, Reynaldo is presumed to be familiar with traffic rules and

regulations, including the right of way accorded to trains at railroad crossing and

the precautionary measures to observe in traversing the same. However, in utter

disregard of the right of way enjoyed by PNR trains, he failed to bring his jeepney

to a full stop before crossing the railroad track and thoughtlessly followed the ten-

wheeler truck ahead of them.  His failure to maintain a safe distance between the

jeepney he was driving and the truck ahead of the same prevented him from seeing

the PNR signage displayed along the crossing.[14]

 

In their Comment,[15] the respondents reiterate the findings of the RTC and

the CA that the petitioners' negligence in maintaining adequate and necessary

public safety devices in the area of the accident was the proximate cause of the

mishap. They asseverate that if there was only a level crossing bar, warning light

or sound, or flagman in the intersection, the accident would not have happened.

Thus, there is no other party to blame but the petitioners for their failure to ensure

that adequate warning devices are installed along the railroad crossing.[16]

 

This Court’s Ruling

 

The petition lacks merit.

 The petitioners’ negligence was the proximate cause of the accident.  

          Article 2176 of the New Civil Code prescribes a civil liability for damages

caused by a person's act or omission constituting fault or negligence. It states:

 Article 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 was no pre-existing contractual relation between the parties, is called quasi-delict and is governed by the provisions of this chapter.

  

            In Layugan v. Intermediate Appellate Court,[17] negligence was defined as

the omission to do something which a reasonable man, guided by considerations

which ordinarily regulate the conduct of human affairs, would do, or the doing of

something which a prudent and reasonable man would not do. It is 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.[18] To determine the existence of negligence, the time-

honored test was: 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.[19]

 

In the instant petition, this Court is called upon to determine whose

negligence occasioned the ill-fated incident. The records however reveal that this

issue had been rigorously discussed by both the RTC and the CA. To emphasize,

the RTC ruled that it was the petitioners’ failure to install adequate safety devices

at the railroad crossing which proximately caused the collision. This finding was

affirmed by the CA in its July 21, 2009 Decision. It is a well-established rule that

factual findings by the CA are conclusive on the parties and are not reviewable by

this Court. They are entitled to great weight and respect, even finality, especially

when, as in this case, the CA affirmed the factual findings arrived at by the trial

court.[20]

 

Furthermore, in petitions for review on certiorari, only questions of law may

be put into issue. Questions of fact cannot be entertained.[21] To distinguish one

from the other, a question of law exists when the doubt or difference centers on

what the law is on a certain state of facts. A question of fact, on the other

hand, exists if the doubt centers on the truth or falsity of the alleged facts.[22] Certainly, the finding of negligence by the RTC, which was affirmed by the

CA, is a question of fact which this Court cannot pass upon as this would entail

going into the factual matters on which the negligence was based.[23] Moreover, it

was not shown that the present case falls under any of the recognized

exceptions[24] to the oft repeated principle according great weight and respect to the

factual findings of the trial court and the CA.

 

At any rate, the records bear out that the factual circumstances of the case

were meticulously scrutinized by both the RTC and the CA before arriving at the

same finding of negligence on the part of the petitioners, and we found no

compelling reason to disturb the same. Both courts ruled that the petitioners fell

short of the diligence expected of it, taking into consideration the nature of its

business, to forestall any untoward incident. In particular, the petitioners failed to

install safety railroad bars to prevent motorists from crossing the tracks in order to

give way to an approaching train. Aside from the absence of a crossing bar, the

“Stop, Look and Listen” signage installed in the area was poorly maintained,

hence, inadequate to alert the public of the impending danger. A reliable signaling

device in good condition, not just a dilapidated “Stop, Look and Listen” signage, 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.[25] Having established the fact of negligence

on the part of the petitioners, they were rightfully held liable for damages.

 There was no contributory negligence on the part of the respondents.  

          As to whether there was contributory negligence on the part of the

respondents, this court rule in the negative. Contributory negligence is conduct on

the part of the injured party, contributing as a legal cause to the harm he has

suffered, which falls below the standard which he is required to conform for his

own protection. It is an act or omission amounting to want of ordinary care on the

part of the person injured which, concurring with the defendant’s negligence, is the

proximate cause of the injury.[26] Here, we cannot see how the respondents could

have contributed to their injury when they were not even aware of the forthcoming

danger. It was established during the trial that the jeepney carrying the respondents

was following a ten-wheeler truck which was only about three to five meters

ahead. When the truck proceeded to traverse the railroad track, Reynaldo, the

driver of the jeepney, simply followed through. He did so under the impression that

it was safe to proceed. It bears noting that the prevailing circumstances

immediately before the collision did not manifest even the slightest indication of

an imminent harm. To begin with, the truck they were trailing was able to safely

cross the track. Likewise, there was no crossing bar to prevent them from

proceeding or, at least, a stoplight or signage to forewarn them of the approaching

peril. Thus, relying on his faculties of sight and hearing, Reynaldo had no reason to

anticipate the impending danger.[27] He proceeded to cross the track and, all of a

sudden, his jeepney was rammed by the train being operated by the petitioners.

Even then, the circumstances before the collision negate the imputation of

contributory negligence on the part of the respondents. What clearly appears is that

the accident would not have happened had the petitioners installed reliable and

adequate safety devices along the crossing to ensure the safety of all those who

may utilize the same.

 

At this age of modern transportation, it behooves the PNR to exert serious

efforts to catch up with the trend, including the contemporary standards in railroad

safety. As an institution established to alleviate public transportation, it is the duty

of the PNR to promote the safety and security of the general riding public and

provide for their convenience, which to a considerable degree may be

accomplished by the installation of precautionary warning devices. Every railroad

crossing must be installed with barriers on each side of the track to block the full

width of the road until after the train runs past the crossing. To even draw closer

attention, the railroad crossing may be equipped with a device which rings a bell or

turns on a signal light to signify the danger or risk of crossing. It is similarly

beneficial to mount advance warning signs at the railroad crossing, such as a

reflectorized crossbuck sign to inform motorists of the existence of the track, and a

stop, look and listen signage to prompt the public to take caution. These warning

signs must be erected in a place where they will have ample lighting and

unobstructed visibility both day and night. If only these safety devices were

installed at the Tiaong railroad crossing and the accident nevertheless occurred, we

could have reached a different disposition in the extent of the petitioner’s liability.

 

 

The exacting nature of the responsibility of railroad companies to secure

public safety by the installation of warning devices was emphasized in Philippine

National Railways v. Court of Appeals,[28] thus:

 [I]t may broadly be stated that railroad companies owe to the public a duty of exercising a reasonable degree of care to avoid injury to persons and property at railroad crossings, which duties pertain both to the operation of trains and to the maintenance of the crossings. Moreover, every corporation constructing or operating a railway shall make and construct at all points where such railway crosses any public road, good, sufficient, and safe crossings, and erect at such points, at sufficient elevation from such road as to admit a free passage of vehicles of every kind, a sign with large and distinct letters placed thereon, to give notice of the proximity of the railway, and warn persons of the necessity of looking out for trains. The failure of the PNR to put a cross bar, or signal light, flagman or switchman, or semaphore is evidence of negligence and disregard of the safety of the public, even if there is no law or ordinance requiring it, because public safety demands that said device or equipment be installed.[29]

  

          The responsibility of the PNR to secure public safety does not end with the

installation of safety equipment and signages but, with equal measure of

accountability, with the upkeep and repair of the same. Thus, in Cusi v. Philippine

National Railways,[30] we held:

 Jurisprudence recognizes that if warning devices are installed in railroad crossings, the travelling public has the right to rely on such warning devices to put them on their guard and take the necessary precautions before crossing the tracks. A need, therefore, exists for the railroad company to use reasonable care to keep such devices in good condition and in working order, or to give notice that they are not operating, since if such a signal is misunderstood it is a menace. Thus, it has been held that if a railroad company maintains a signalling device at a crossing to give warning of the approach of a train, the failure of the device to operate is generally held to be evidence of negligence, which maybe considered with all the circumstances of the case in determining whether the railroad company was negligent as a matter of fact. [31]

  

          The maintenance of safety equipment and warning signals at railroad

crossings is equally important as their installation since poorly maintained safety

warning devices court as much danger as when none was installed at all. The

presence of safety warning signals at railroad crossing carries with it the

presumption that they are in good working condition and that the public may

depend on them for assistance. If they happen to be neglected and inoperative, the

public may be misled into relying on the impression of safety they normally

convey and eventually bring injury to themselves in doing so.

 The doctrine of last clear chance is not applicable.  

          Finally, the CA correctly ruled that the doctrine of last clear chance is not

applicable in the instant case. The doctrine of last clear chance provides that where

both parties are negligent but the negligent act of one is appreciably later in point

of time than that of the other, or where it is impossible to determine whose fault or

negligence brought about the occurrence of the incident, the one who had the last

clear opportunity to avoid the impending harm but failed to do so, is chargeable

with the consequences arising therefrom. Stated differently, the rule is that the

antecedent negligence of a person does not preclude recovery of damages caused

by the supervening negligence of the latter, who had the last fair chance to prevent

the impending harm by the exercise of due diligence.[32] To reiterate, the proximate

cause of the collision was the petitioners’ negligence in ensuring that motorists and

pedestrians alike may safely cross the railroad track. The unsuspecting driver and

passengers of the jeepney did not have any participation in the occurrence of the

unfortunate incident which befell them. Likewise, they did not exhibit any overt

act manifesting disregard for their own safety. Thus, absent preceding negligence

on the part of the respondents, the doctrine of last clear chance cannot be applied.

 

          WHEREFORE, premises considered, the petition is DENIED. The

Decision of the Court of Appeals dated July 21, 2009 in CA-G.R. CV No. 90021 is

herebyAFFIRMED.

           SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

G.R. No. 116121               July 18, 2011

THE HEIRS OF THE LATE RUBEN REINOSO, SR., represented by Ruben Reinoso Jr., Petitioners, vs.COURT OF APPEALS, PONCIANO TAPALES, JOSE GUBALLA, and FILWRITERS GUARANTY ASSURANCE CORPORATION,** Respondent.

D E C I S I O N

MENDOZA, J.:

Before the Court is a petition for review assailing the May 20, 1994 Decision1 and June 30, 1994 Resolution2 of the Court of Appeals (CA), in CA-G.R. CV No. 19395, which set aside the March 22, 1988 Decision of the Regional Trial Court, Branch 8, Manila (RTC) for non-payment of docket fees. The dispositive portion of the CA decision reads:

IN VIEW OF ALL THE FOREGOING, the decision appealed from is SET ASIDE and REVERSED and the complaint in this case is ordered DISMISSED.

No costs pronouncement.

SO ORDERED.

The complaint for damages arose from the collision of a passenger jeepney and a truck at around 7:00 o’clock in the evening of June 14, 1979 along E. Rodriguez Avenue, Quezon City. As a result, a passenger of the jeepney, Ruben Reinoso, Sr. (Reinoso), was killed. The passenger jeepney was owned by Ponciano Tapales (Tapales) and driven by Alejandro Santos (Santos), while the truck was owned by Jose Guballa (Guballa) and driven by Mariano Geronimo (Geronimo).

On November 7, 1979, the heirs of Reinoso (petitioners) filed a complaint for damages against Tapales and Guballa. In turn, Guballa filed a third party complaint against Filwriters Guaranty Assurance Corporation (FGAC) under Policy Number OV-09527.

On March 22, 1988, the RTC rendered a decision in favor of the petitioners and against Guballa. The decision in part, reads:

In favor of herein plaintiffs and against defendant Jose Guballa:

1.

For the death of Ruben Reinoso, Sr. ………………

P 30,000.00

2.

Loss of earnings (monthly income at the time of death (P 2,000.00 Court used P 1,000.00 only per month (or P 12,000.00 only per year) & victim then being 55 at death had ten (10) years life expectancy………………………………………………

120,000.00

3.

Mortuary, Medical & funeral expenses and all incidental expenses in the wake in serving those who condoled ………… 15,000.00

4.

Moral damages …………………………………….. 50,000.00

5.

Exemplary damages ………………………………… 25,000.00

6.

Litigation expenses …………………………………. 15,000.00

7.

Attorney’s fees ……………………………………… 25,000.00

Or a total ofP 250,000.00

For damages to property:

In favor of defendant Ponciano Tapales and against defendant Jose Guballa:

1. Actual damages for repair is already awarded to defendant-cross-claimant Ponciano Tapales by Br. 9, RTC-Malolos, Bulacan (Vide: Exh. 1-G-Tapales); hence, cannot recover twice.

 

2. Compensatory damages (earnings at P 150.00 per day) and for two (2) months jeepney stayed at the repair shop………………………………………. P 9,000.00

3. Moral damages ………………………... 10,000.00

4. Exemplary damages …………………. 10,000.00

5. Attorney’s fees………………………… 15,000.00

or a total of P 44,000.00

Under the 3rd party complaint against 3rd party defendant Filwriters Guaranty Assurance Corporation, the Court hereby renders judgment in favor of said 3rd party plaintiff by way of 3rd party liability under policy No. OV-09527 in the amount of P 50,000.00 undertaking plus P 10,000.00 as and for attorney’s fees.

For all the foregoing, it is the well considered view of the Court that plaintiffs, defendant Ponciano Tapales and 3rd Party plaintiff Jose Guballa established their claims as specified above, respectively. Totality of evidence preponderance in their favor.

J U D G M E N T

WHEREFORE, in view of the foregoing, judgment is hereby rendered as follows:

In favor of plaintiffs for the death of Ruben Reinoso, Sr………………………………………….P250,000.00;

In favor of defendant Ponciano Tapales due to damage of his passenger jeepney …………. P44,000.00;

In favor of defendant Jose Guballa under Policy No. OV-09527………………………………… P60,000.00;

All the specified accounts with 6% legal rate of interest per annum from date of complaint until fully paid (Reformina vs. Tomol, 139 SCRA 260; and finally;

Costs of suit.

SO ORDERED.3

On appeal, the CA, in its Decision dated May 20, 1994, set aside and reversed the RTC decision and dismissed the complaint on the ground of non-payment of

docket fees pursuant to the doctrine laid down in Manchester v. CA.4 In addition, the CA ruled that since prescription had set in, petitioners could no longer pay the required docket fees.5

Petitioners filed a motion for reconsideration of the CA decision but it was denied in a resolution dated June 30, 1994.6 Hence, this appeal, anchored on the following

GROUNDS:

A. The Court of Appeals MISAPPLIED THE RULING of the Supreme Court in the case of Manchester Corporation vs. Court of Appeals to this case.

B. The issue on the specification of the damages appearing in the prayer of the Complaint was NEVER PLACED IN ISSUE BY ANY OF THE PARTIES IN THE COURT OF ORIGIN (REGIONAL TRIAL COURT) NOR IN THE COURT OF APPEALS.

C. The issues of the case revolve around the more substantial issue as to the negligence of the private respondents and their culpability to petitioners."7

The petitioners argue that the ruling in Manchester should not have been applied retroactively in this case, since it was filed prior to the promulgation of the Manchester decision in 1987. They plead that though this Court stated that failure to state the correct amount of damages would lead to the dismissal of the complaint, said doctrine should be applied prospectively.

Moreover, the petitioners assert that at the time of the filing of the complaint in 1979, they were not certain of the amount of damages they were entitled to, because the amount of the lost income would still be finally determined in the course of the trial of the case. They claim that the jurisdiction of the trial court remains even if there was failure to pay the correct filing fee as long as the correct amount would be paid subsequently.

Finally, the petitioners stress that the alleged defect was never put in issue either in the RTC or in the CA.

The Court finds merit in the petition.

The rule is that payment in full of the docket fees within the prescribed period is mandatory.8 In Manchester v. Court of Appeals,9 it was held that a court acquires jurisdiction over any case only upon the payment of the prescribed docket fee.

The strict application of this rule was, however, relaxed two (2) years after in the case ofSun Insurance Office, Ltd. v. Asuncion,10 wherein the Court decreed that where the initiatory pleading is not accompanied by the payment of the docket fee, the court may allow payment of the fee within a reasonable period of time, but in no case beyond the applicable prescriptive or reglementary period. This ruling was made on the premise that the plaintiff had demonstrated his willingness to abide by the rules by paying the additional docket fees required.11 Thus, in the more recent case of United Overseas Bank v. Ros,12 the Court explained that where the party does not deliberately intend to defraud the court in payment of docket fees, and manifests its willingness to abide by the rules by paying additional docket fees when required by the court, the liberal doctrine enunciated in Sun Insurance Office, Ltd., and not the strict regulations set in Manchester, will apply. It has been on record that the Court, in several instances, allowed the relaxation of the rule on non-payment of docket fees in order to afford the parties the opportunity to fully ventilate their cases on the merits. In the case of La Salette College v. Pilotin,13the Court stated:

Notwithstanding the mandatory nature of the requirement of payment of appellate docket fees, we also recognize that its strict application is qualified by the following: first, failure to pay those fees within the reglementary period allows only discretionary, not automatic, dismissal; second, such power should be used by the court in conjunction with its exercise of sound discretion in accordance with the tenets of justice and fair play, as well as with a great deal of circumspection in consideration of all attendant circumstances.14

While there is a crying need to unclog court dockets on the one hand, there is, on the other, a greater demand for resolving genuine disputes fairly and equitably,15 for it is far better to dispose of a case on the merit which is a primordial end, rather than on a technicality that may result in injustice.

In this case, it cannot be denied that the case was litigated before the RTC and said trial court had already rendered a decision. While it was at that level, the matter of non-payment of docket fees was never an issue. It was only the CA which motu propio dismissed the case for said reason.

Considering the foregoing, there is a need to suspend the strict application of the rules so that the petitioners would be able to fully and finally prosecute their claim on the merits at the appellate level rather than fail to secure justice on a technicality, for, indeed, the general objective of procedure is to facilitate the application of justice to the rival claims of contending parties, bearing always in mind that procedure is not to hinder but to promote the administration of justice.16

The Court also takes into account the fact that the case was filed before the Manchester ruling came out. Even if said ruling could be applied retroactively, liberality should be accorded to the petitioners in view of the recency then of the ruling. Leniency because of recency was applied to the cases of Far Eastern Shipping Company v. Court of Appeals17 and Spouses Jimmy and Patri Chan v. RTC of Zamboanga.18 In the case of Mactan Cebu International Airport Authority v. Mangubat (Mactan),19 it was stated that the "intent of the Court is clear to afford litigants full opportunity to comply with the new rules and to temper enforcement of sanctions in view of the recencyof the changes introduced by the new rules." In Mactan, the Office of the Solicitor General (OSG) also failed to pay the correct docket fees on time.

We held in another case:

x x x It bears stressing that the rules of procedure are merely tools designed to facilitate the attainment of justice. They were conceived and promulgated to effectively aid the court in the dispensation of justice. Courts are not slaves to or robots of technical rules, shorn of judicial discretion. In rendering justice, courts have always been, as they ought to be, conscientiously guided by the norm that, on the balance, technicalities take a backseat against substantive rights, and not the other way around. Thus, if the application of the Rules would tend to frustrate rather than promote justice, it is always within the power of the Court to suspend the Rules, or except a particular case from its operation.20

The petitioners, however, are liable for the difference between the actual fees paid and the correct payable docket fees to be assessed by the clerk of court which shall constitute a lien on the judgment pursuant to Section 2 of Rule 141 which provides:

SEC. 2. Fees in lien. – Where the court in its final judgment awards a claim not alleged, or a relief different from, or more than that claimed in the pleading, the party concerned shall pay the additional fees which shall constitute a lien on the judgment in satisfaction of said lien. The clerk of court shall assess and collect the corresponding fees.

As the Court has taken the position that it would be grossly unjust if petitioners’ claim would be dismissed on a strict application of the Manchester doctrine, the appropriate action, under ordinary circumstances, would be for the Court to remand the case to the CA. Considering, however, that the case at bench has been pending for more than 30 years and the records thereof are already before this Court, a remand of the case to the CA would only unnecessarily prolong its resolution. In the higher interest of substantial justice and to spare the parties from further delay, the Court will resolve the case on the merits.

The facts are beyond dispute. Reinoso, the jeepney passenger, died as a result of the collision of a jeepney and a truck on June 14, 1979 at around 7:00 o’clock in the evening along E. Rodriguez Avenue, Quezon City. It was established that the primary cause of the injury or damage was the negligence of the truck driver who was driving it at a very fast pace. Based on the sketch and spot report of the police authorities and the narration of thejeepney driver and his passengers, the collision was brought about because the truck driver suddenly swerved to, and encroached on, the left side portion of the road in an attempt to avoid a wooden barricade, hitting the passenger jeepney as a consequence. The analysis of the RTC appears in its decision as follows:

Perusal and careful analysis of evidence adduced as well as proper consideration of all the circumstances and factors bearing on the issue as to who is responsible for the instant vehicular mishap convince and persuade this Court that preponderance of proof is in favor of plaintiffs and defendant Ponciano Tapales. The greater mass of evidence spread on the records and its influence support plaintiffs’ plaint including that of defendant Tapales.

The Land Transportation and Traffic Rule (R.A. No. 4136), reads as follows:

"Sec. 37. Driving on right side of highway. – Unless a different course of action is required in the interest of the safety and the security of life, person or property, or because of unreasonable difficulty of operation in compliance therewith, every person operating a motor vehicle or an animal drawn vehicle on highway shall pass to the right when meeting persons or vehicles coming toward him, and to the left when overtaking persons or vehicles going the same direction, and when turning to the left in going from one highway to another, every vehicle shall be conducted to the right of the center of the intersection of the highway."

Having in mind the foregoing provision of law, this Court is convinced of the veracity of the version of the passenger jeepney driver Alejandro Santos, (plaintiffs’ and Tapales’ witness) that while running on lane No. 4 westward bound towards Ortigas Avenue at between 30-40 kms. per hour (63-64 tsn, Jan. 6, 1984) the "sand & gravel" truck from the opposite direction driven by Mariano Geronimo, the headlights of which the former had seen while still at a distance of about 30-40 meters from the wooden barricade astride lanes 1 and 2, upon reaching said wooden block suddenly swerved to the left into lanes 3 and 4 at high speed "napakabilis po ng dating ng truck." (29 tsn, Sept. 26, 1985) in the process hitting them (Jeepney passenger) at the left side up to where the reserve tire was in an oblique manner "pahilis" (57 tsn, Sept. 26, 1985). The jeepney after it was bumped by the truck due to the strong impact was thrown "resting on its right side while the left side was on top of the Bangketa (side walk)". The passengers of the jeepney and its driver were injured including two passengers

who died. The left side of the jeepney suffered considerable damage as seen in the picture (Exhs. 4 & 5-Tapales, pages 331-332, records) taken while at the repair shop.

The Court is convinced of the narration of Santos to the effect that the "gravel & sand" truck was running in high speed on the good portion of E. Rodriguez Avenue (lane 1 & 2) before the wooden barricade and (having in mind that it had just delivered its load at the Corinthian Gardens) so that when suddenly confronted with the wooden obstacle before it had to avoid the same in a manner of a reflex reaction or knee-jerk response by forthwith swerving to his left into the right lanes (lanes 3 & 4). At the time of the bumping, the jeepney was running on its right lane No. 4 and even during the moments before said bumping, moving at moderate speed thereon since lane No. 3 was then somewhat rough because being repaired also according to Mondalia who has no reason to prevaricate being herself one of those seriously injured. The narration of Santos and Mondalia are convincing and consistent in depicting the true facts of the case untainted by vacillation and therefore, worthy to be relied upon. Their story is forfeited and confirmed by the sketch drawn by the investigating officer Pfc. F. Amaba, Traffic Division, NPD, Quezon City who rushed to the scene of the mishap (Vide: Resolution of Asst fiscal Elizabeth B. Reyes marked as Exhs. 7, 7-A, 7-B-Tapales, pp. 166-168, records; the Certified Copy found on pages 598-600, ibid, with the attached police sketch of Pfc. Amaba, marked as Exh. 8-Tapales on page 169, ibid; certified copy of which is on page 594, ibid) indicating the fact that the bumping indeed occurred at lane No. 4 and showing how the ‘gavel & sand’ truck is positioned in relation to the jeepney. The said police sketch having been made right after the accident is a piece of evidence worthy to be relied upon showing the true facts of the bumping-occurrence. The rule that official duty had been performed (Sec.5(m), R-131, and also Sec. 38, R-a30, Rev. Rules of Court) – there being no evidence adduced and made of record to the contrary – is that said circumstance involving the two vehicles had been the result of an official investigation and must be taken as true by this Court.21

1awphi1

While ending up on the opposite lane is not conclusive proof of fault in automobile collisions,22 the position of the two vehicles, as depicted in the sketch of the police officers, clearly shows that it was the truck that hit the jeepney. The evidentiary records disclosed that the truck was speeding along E. Rodriguez, heading towards Santolan Street, while the passenger jeepney was coming from the opposite direction. When the truck reached a certain point near the Meralco Post No. J9-450, the front portion of the truck hit the left middle side portion of the passenger jeepney, causing damage to both vehicles and injuries to the driver and passengers of the jeepney. The truck driver should have been more careful, because, at that time, a portion of E. Rodriguez Avenue was under repair and a wooden barricade was placed in the middle thereof.

The Court likewise sustains the finding of the RTC that the truck owner, Guballa, failed to rebut the presumption of negligence in the hiring and supervision of his employee. Article 2176, in relation to Article 2180 of the Civil Code, provides:

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.

xxxx

Art. 2180. The obligation imposed by Art. 2176 is demandable not only for one’s own acts or omissions but also for those of persons for whom one is responsible.

xxxx

Employers shall be liable for the damage caused by their employees and household helpers acting within the scope of their assigned tasks even though the former are not engaged in any business or industry.

xxxx

The responsibility treated of in this article shall cease when the persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damage.

Whenever an employee’s negligence causes damage or injury to another, there instantly arises a presumptionjuris tantum that the employer failed to exercise diligentissimi patris families in the selection or supervision of his employee.23 Thus, in the selection of prospective employees, employers are required to examine them as to their qualification, experience and service record. With respect to the supervision of employees, employers must formulate standard operating procedures, monitor their implementation, and impose disciplinary measures for breaches thereof. These facts must be shown by concrete proof, including documentary evidence.24 Thus, the RTC committed no error in finding that the evidence presented by respondent Guballa was wanting. It ruled:

x x x. As expected, defendant Jose Guballa, attempted to overthrow this presumption of negligence by showing that he had exercised the due diligence required of him by seeing to it that the driver must check the vital parts of the vehicle he is assigned to before he leaves the compound like the oil, water, brakes, gasoline, horn (9 tsn, July 17, 1986); and that Geronimo had been driving

for him sometime in 1976 until the collision in litigation came about (5-6 tsn, ibid); that whenever his trucks gets out of the compound to make deliveries, it is always accompanied with two (2) helpers (16-17 tsn, ibid). This was all which he considered as selection and supervision in compliance with the law to free himself from any responsibility. This Court then cannot consider the foregoing as equivalent to an exercise of all the care of a good father of a family in the selection and supervision of his driver Mariano Geronimo."25

WHEREFORE, the petition is GRANTED. The May 20, 1994 Decision and June 30, 1994 Resolution of the Court of Appeals are REVERSED and SET ASIDE and the March 22, 1988 Decision of the Regional Trial Court, Branch 8, Manila, is REINSTATED.

SO ORDERED.

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 173180               August 24, 2011

ALBERT TISON and CLAUDIO L. JABON, Petitioners, vs.SPS. GREGORIO POMASIN and CONSORCIA PONCE POMASIN, DIANNE POMASIN PAGUNSAN, CYNTHIA POMASIN, SONIA PEROL, ANTONIO SESISTA, GINA SESISTA, and REYNALDO SESISTA, Respondents.

D E C I S I O N

PEREZ, J.:

Two vehicles, a tractor-trailer and a jitney,1 figured in a vehicular mishap along Maharlika Highway in Barangay Agos, Polangui, Albay last 12 August 1994. Laarni Pomasin (Laarni) was driving the jitney towards the direction of Legaspi City while the tractor-trailer, driven by Claudio Jabon (Jabon), was traversing the opposite lane going towards Naga City.2

The opposing parties gave two different versions of the incident.

Gregorio Pomasin (Gregorio), Laarni’s father, was on board the jitney and seated on the passenger’s side. He testified that while the jitney was passing through a curve going downward, he saw a tractor-trailer coming from the opposite direction and encroaching on the jitney’s lane. The jitney was hit by the tractor-trailer and it was dragged further causing death and injuries to its passengers.3

On the other hand, Jabon recounted that while he was driving the tractor-trailer, he noticed a jitney on the opposite lane falling off the shoulder of the road. Thereafter, it began running in a zigzag manner and heading towards the direction of the truck. To avoid collision, Jabon immediately swerved the tractor-trailer to the right where it hit a tree and sacks of palay. Unfortunately, the jitney

still hit the left fender of the tractor-trailer before it was thrown a few meters away. The tractor-trailer was likewise damaged.4

Multiple death and injuries to those in the jitney resulted.

Gregorio was injured and brought to the Albay Provincial Hospital in Legaspi City. His daughter, Andrea Pomasin Pagunsan, sister Narcisa Pomasin Roncales and Abraham Dionisio Perol died on the spot. His other daughter Laarni, the jitney driver, and granddaughter Annie Jane Pomasin Pagunsan expired at the hospital. His wife, Consorcia Pomasin, another granddaughter Dianne Pomasin Pagunsan, Ricky Ponce, Vicente Pomasin, Gina Sesista, Reynaldo Sesista, Antonio Sesista and Sonia Perol sustained injuries.5 On the other hand, Jabon and one of the passengers in the tractor-trailer were injured.6

Albert Tison (Tison), the owner of the truck, extended financial assistance to respondents by giving themP1,000.00 each immediately after the accident and P200,000.00 to Cynthia Pomasin (Cynthia), one of Gregorio’s daughters. Cynthia, in turn, executed an Affidavit of Desistance.

On 14 November 1994, respondents filed a complaint for damages against petitioners before the Regional Trial Court (RTC) of Antipolo. They alleged that the proximate cause of the accident was the negligence, imprudence and carelessness of petitioners. Respondents prayed for indemnification for the heirs of those who perished in the accident at P50,000.00 each; P500,000.00 for hospitalization, medical and burial expenses; P350,000.00 for continuous hospitalization and medical expenses of Spouses Pomasin; P1,000,000.00 as moral damages;P250,000.00 as exemplary damages; P30,000.00 for loss of income of Cynthia; P100,000.00 as attorney’s fees plus P1,000.00 per court appearance; P50,000.00 for litigation expenses; and cost of suit.7

In their Answer, petitioners countered that it was Laarni’s negligence which proximately caused the accident. They further claimed that Cynthia was authorized by Spouses Pomasin to enter into an amicable settlement by executing an Affidavit of Desistance. Notwithstanding the affidavit, petitioners complained that respondents filed the instant complaint to harass them and profit from the recklessness of Laarni. Petitioners counterclaimed for damages.

Petitioners subsequently filed a motion to dismiss the complaint in view of the Affidavit of Desistance executed by Cynthia. The motion was denied for lack of merit.8

On 7 February 2000, the Regional Trial Court rendered judgment in favor of petitioners dismissing the complaint for damages, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered in favor of the defendants and against plaintiffs hereby DISMISSING the instant complaint considering that plaintiffs have authorized Cynthia Pomasin to settle the case amicably forP200,000.00; and that the proximate cause of the accident did not arise from the fault or negligence of defendants’ driver/employee but from plaintiff’s driver.9

The trial court considered the testimony of Jabon regarding the incident more convincing and reliable than that of Gregorio’s, a mere passenger, whose observation and attention to the road is not as focused as that of the driver. The trial court concluded that Laarni caused the collision of the jitney and the tractor-trailer. The trial court likewise upheld the Affidavit of Desistance as having been executed with the tacit consent of respondents.

The Court of Appeals disagreed with the trial court and ruled that the reckless driving of Jabon caused the vehicular collision. In support of such finding, the Court of Appeals relied heavily on Gregorio’s testimony that Jabon was driving the tractor-trailer downward too fast and it encroached the lane of the jitney. Based on the gravity of the impact and the damage caused to the jitney resulting in the death of some passengers, the Court of Appeals inferred that Jabon must be speeding. The appellate court noted that the restriction in Jabon’s driver’s license was violated, thus, giving rise to the presumption that he was negligent at the time of the accident. Tison was likewise held liable for damages for his failure to prove due diligence in supervising Jabon after he was hired as driver of the truck. Finally, the appellate court disregarded the Affidavit of Desistance executed by Cynthia because the latter had no written power of attorney from respondents and that she was so confused at the time when she signed the affidavit that she did not read its content.

The dispositive portion of the assailed Decision states:

WHEREFORE, the present appeal is granted, and the trial court’s Decision dated February 7, 2003 is set aside. Defendants-appellees are ordered to pay plaintiffs-appellants or their heirs the following:

a) Actual damages of P136,000.00 as above computed, to be offset with the P200,000.00 received by plaintiff-appellant Cynthia Pomasin;

b) Civil indemnity of P50,000.00 for the death of each victim, to be offset with the balance of P64,000.00 from the aforementioned P200,000.00 of

civil indemnity received by plaintiff-appellant Cynthia Pomasin. Hence, the net amount is computed at P37,200.00 each, as follows:

Narcisa Pomasin P37,200.00

Laarni Pomasin P37,200.00

Andrea P. Pagunsan P37,200.00

Dionisio Perol P37,200.00

Annie Jane P. Pagunsan P37,200.00

c) Moral damages of P50,000.00 to each of the victims; and

d) Attorney’s fees of 10% of the total award.10

Petitioners filed a Motion for Reconsideration, which was, however, denied by the Court of Appeals in a Resolution11 dated 19 July 2006.

The petition for review raises mixed questions of fact and law which lead back to the very issue litigated by the trial court: Who is the negligent party or the party at fault?

The issue of negligence is factual in nature.12 And the rule, and the exceptions, is that factual findings of the Court of Appeals are generally conclusive but may be reviewed when: (1) the factual findings of the Court of Appeals and the trial court are contradictory; (2) the findings are grounded entirely on speculation, surmises or conjectures; (3) the inference made by the Court of Appeals from its findings of fact is manifestly mistaken, absurd or impossible; (4) there is grave abuse of discretion in the appreciation of facts; (5) the appellate court, in making its findings, goes beyond the issues of the case and such findings are contrary to the admissions of both appellant and appellee; (6) the judgment of the Court of Appeals is premised on a misapprehension of facts; (7) the Court of Appeals fails to notice certain relevant facts which, if properly considered, will justify a different conclusion; and (8) the findings of fact of the Court of Appeals are contrary to those of the trial court or are mere conclusions without citation of specific evidence, or where the facts set forth by the petitioner are not disputed by respondent, or where the findings of fact of the Court of Appeals are premised on the absence of evidence but are contradicted by the evidence on record.13

The exceptions to the rule underscore the substance and weight of the findings of the trial court. They render inconclusive contrary findings by the appellate court. The reason is now a fundamental principle:

[A]ppellate courts do not disturb the findings of the trial courts with regard to the assessment of the credibility of witnesses. The reason for this is that trial courts have the ‘unique opportunity to observe the witneses first hand and note their demeanor, conduct and attitude under grilling examination.

The exceptions to this rule are when the trial court’s findings of facts and conclusions are not supported by the evidence on record, or when certain facts of substance and value, likely to change the outcome of the case, have been overlooked by the trial court, or when the assailed decision is based on a misapprehension of facts.14

This interplay of rules and exceptions is more pronounced in this case of quasi-delict in which, according to Article 2176 of the Civil Code, whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. To sustain a claim based on quasi-delict, the following requisites must concur: (a) damage suffered by the plaintiff; (b) fault or negligence of defendant; and (c) connection of cause and effect between the fault or negligence of defendant and the damage incurred by the plaintiff.15 These requisites must be proved by a preponderance of evidence.16 The claimants, respondents in this case, must, therefore, establish their claim or cause of action by preponderance of evidence, evidence which is of greater weight, or more convincing than that which is offered in opposition to it.17

The trial court found that the jitney driver was negligent. We give weight to this finding greater than the opposite conclusion reached by the appellate court that the driver of the tractor-trailer caused the vehicular collision.

One reason why the trial court found credible the version of Jabon was because his concentration as driver is more focused than that of a mere passenger. The trial court expounded, thus:

In the appreciation of the testimony of eye-witnesses, one overriding consideration is their opportunity for observation in getting to know or actually seeing or observing the matter they testify to. This most particularly holds true in vehicular collision or accident cases which oftentimes happen merely momentarily or in the split of a second. In the case of a running or travelling vehicle, especially in highway travel which doubtless involves faster speed than in ordinary roads, the driver is concentrated on his driving continuously from moment to moment even in long trips. While in the case of a mere passenger, he

does not have to direct his attention to the safe conduct of the travelling vehicle, as in fact he may converse with other passengers and pay no attention to the driving or safe conduct of the travelling vehicle, as he may even doze off to sleep if he wants to, rendering his opportunity for observation on the precise cause of the accident or collision or immediately preceding thereto not as much as that of the driver whose attention is continuously focused on his driving. So that as between the respective versions of the plaintiffs thru their passenger and that of the defendants thru their driver as to the cause or antecedent causes that led to the vehicular collision in this case, the version of the driver of defendant should ordinarily be more reliable than the version of a mere passenger of Plaintiffs’ vehicle, simply because the attention of the passenger is not as much concentrated on the driving as that of the driver, consequently the capacity for observation of the latter of the latter on the matter testified to which is the precise point of inquiry --- the proximate cause of the accident --- is more reasonably reliable. Moreover, the passenger’s vision is not as good as that of the driver from the vantage point of the driver’s seat especially in nighttime, thus rendering a passenger’s opportunity for observation on the antecedent causes of the collision lesser than that of the driver. This being so, this Court is more inclined to believe the story of defendant’s driver Claudio Jabon that the jitney driven by Laarni Pomasin fell off the shoulder of the curved road causing it to run thereafter in a zigzag manner and in the process the two vehicles approaching each other from opposite directions at highway speed came in contact with each other, the zigzagging jeep hitting the left fender of the truck all the way to the fuel tank, the violent impact resulting in the lighter vehicle, the jitney, being thrown away due to the disparate size of the truck.18

The appellate court labelled the trial court’s rationalization as a "sweeping conjecture"19 and countered that Gregorio was actually occupying the front seat of the jitney and had actually a clear view of the incident despite the fact that he was not driving.

While it is logical that a driver’s attention to the road travelled is keener than that of a mere passenger, it should also be considered that the logic will hold only if the two are similarly circumstanced, and only as a general rule, so that, it does not necessarily follow that between the opposing testimonies of a driver and a passenger, the former is more credible. The factual setting of the event testified on must certainly be considered.

The trial court did just that in the instant case. Contrary to the observation of the Court of Appeals, the relative positions of a driver and a passenger in a vehicle was not the only basis of analysis of the trial court. Notably, aside from Jabon’s alleged vantage point to clearly observe the incident, the trial court also took into consideration Gregorio’s admission that prior to the accident, the jitney was

running on the "curving and downward" portion of the highway. The appellate court, however, took into account the other and opposite testimony of Gregorio that it was their jitney that was going uphill and when it was about to reach a curve, he saw the incoming truck running very fast and encroaching the jitney’s lane.

We perused the transcript of stenographic notes and found that the truck was actually ascending the highway when it collided with the descending jitney.

During the direct examination, Jabon narrated that the tractor-trailer was ascending at a speed of 35 to 40 kilometers per hour when he saw the jitney on the opposite lane running in a zigzag manner, thus:

Q: Now, when you passed by the municipality of Polangui, Albay at about 5:00 of August 12, 1994, could you tell the Court if there was any untoward incident that happened?

A: There was sir.

Q: Could you please tell the Court?

A: While on my way to Liboro coming from Sorsogon, I met on my way a vehicle going on a zigzag direction and it even fell on the shoulder and proceeded going on its way on a zigzag direction.

Q: Could you describe to the Court what was the kind of vehicle you saw running in zigzag direction?

A: A Toyota-jitney loaded with passengers with top-load.

Q: You said that the top[-]load of the jeep is loaded?

A: Yes, sir.

Q: Could you please tell the Court what was your speed at the time when you saw that jeepney with top[-]load running on a zigzag manner?

A: I was running 35 to 40 kilometers per hour because I was ascending plain. (Emphasis supplied).20

In that same direct examination, Jabon confirmed that he was ascending, viz:

Q: Could you please describe the condition in the area at the time of the incident, was it dark or day time?

A: It was still bright.

COURT: But it was not approaching sunset?

A: Yes, sir.

Q: Was there any rain at that time?

A: None sir.

Q: So the road was dry?

A: Yes sir.

Q: You said you were ascending towards the direction of Liboro, Camarines Sur, is that correct at the time the incident happened?

A: Yes sir.21 (Emphasis supplied).

Upon the other hand, Gregorio, during his direct examination described the road condition where the collision took place as "curving and downward," thus:

Q: Could you please describe the place where the incident happened in so far as the road condition is concerned?

A: The road was curving and downward.

Q: And the road was of course clear from traffic, is that correct?

A: Yes sir.

Q: And practically, your jitney was the only car running at that time?

A: Yes sir.22 (Emphasis supplied).

Significantly, this is a confirmation of the testimony of Jabon.

However, on rebuttal, Gregorio turned around and stated that the jitney was going uphill when he saw the tractor-trailer running down very fact and encroaching on their lane, to wit:

Q: Mr. Claudio Jabon, the driver of the trailer truck that collided with your owner jeepney that you were riding testified in open Court on July 24, 1997 which I quote, ‘while on my way to Liboro coming to Sorsogon I met a vehicle going on a

zig-zag direction and it even fell on the shoulder and proceeded going on its way on zig-zag direction’, what can you say about this statement of this witness?

A: We were no[t] zigzagging but because we were going uphill and about to reach a curved (sic) we saw the on-coming vehicle going down very fast and encroaching on our lane so our driver swerved our vehicle to the right but still we were hit by the on-coming vehicle.23 (Emphasis supplied).

The declaration of Jabon with respect to the road condition was straightforward and consistent.1awp The recollection of Gregorio veered from "curving and downward" to uphill.

24 On this point, Jabon and his testimony is more credible.

The fact that the jitney easily fell into the road shoulder, an undebated fact, supports the trial court’s conclusion that the jitney was indeed going downhill which, it may be repeated, was the original testimony of Gregorio that the road was "curving and downward."25 It is this conclusion, prodded by the inconsistency of Gregorio’s testimony, that gives credence to the further testimony of Jabon that the herein respondent’s jitney, "loaded with passengers with top-load" "was running in a zigzag manner."26

Going downward, the jitney had the tendency to accelerate. The fall into the shoulder of the road can result in the loss of control of the jitney, which explains why it was running in a zigzag manner before it hit the tractor-trailer.

There was no showing that the tractor-trailer was speeding. There is a preponderance of evidence that the tractor-trailer was in fact ascending. Considering its size and the weight of the tractor-trailer, its speed could not be more than that of a fully loaded jitney which was running downhill in a zigzagging manner.

Neither can it be inferred that Jabon was negligent. In hindsight, it can be argued that Jabon should have swerved to the right upon seeing the jitney zigzagging before it collided with the tractor-trailer. Accidents, though, happen in an instant, and, understandably in this case, leaving the driver without sufficient time and space to maneuver a vehicle the size of a tractor-trailer uphill and away from collision with the jitney oncoming downhill.

Clearly, the negligence of Gregorio’s daughter, Laarni was the proximate cause of the accident.

We did not lose sight of the fact that at the time of the incident, Jabon was prohibited from driving the truck due to the restriction imposed on his driver’s license, i.e., restriction code 2 and 3. As a matter of fact, Jabon even asked the Land Transportation Office to reinstate his articulated license containing

restriction code 8 which would allow him to drive a tractor-trailer. The Court of Appeals concluded therefrom that Jabon was violating a traffic regulation at the time of the collision.

Driving without a proper license is a violation of traffic regulation. Under Article 2185 of the Civil Code, the legal presumption of negligence arises if at the time of the mishap, a person was violating any traffic regulation. However, in Sanitary Steam Laundry, Inc. v. Court of Appeals,27 we held that a causal connection must exist between the injury received and the violation of the traffic regulation. It must be proven that the violation of the traffic regulation was the proximate or legal cause of the injury or that it substantially contributed thereto. Negligence, consisting in whole or in part, of violation of law, like any other negligence, is without legal consequence unless it is a contributing cause of the injury.28 Likewise controlling is our ruling in Añonuevo v. Court of Appeals29 where we reiterated that negligence per se, arising from the mere violation of a traffic statute, need not be sufficient in itself in establishing liability for damages. In said case, Añonuevo, who was driving a car, did not attempt "to establish a causal connection between the safety violations imputed to the injured cyclist, and the accident itself. Instead, he relied on a putative presumption that these violations in themselves sufficiently established negligence appreciable against the cyclist. Since the onus on Añonuevo is to conclusively prove the link between the violations and the accident, we can deem him as having failed to discharge his necessary burden of proving the cyclist’s own liability."30 We took the occasion to state that:

The rule on negligence per se must admit qualifications that may arise from the logical consequences of the facts leading to the mishap. The doctrine (and Article 2185, for that matter) is undeniably useful as a judicial guide in adjudging liability, for it seeks to impute culpability arising from the failure of the actor to perform up to a standard established by a legal fiat. But the doctrine should not be rendered inflexible so as to deny relief when in fact there is no causal relation between the statutory violation and the injury sustained. Presumptions in law, while convenient, are not intractable so as to forbid rebuttal rooted in fact. After all, tort law is remunerative in spirit, aiming to provide compensation for the harm suffered by those whose interests have been invaded owing to the conduct of other.31

In the instant case, no causal connection was established between the tractor-trailer driver’s restrictions on his license to the vehicular collision. Furthermore, Jabon was able to sufficiently explain that the Land Transportation Office merely erred in not including restriction code 8 in his license.

Petitioners presented the Affidavit of Desistance executed by Cynthia to exonerate them from any liability. An affidavit of desistance is usually frowned upon by courts. Little or no persuasive value is often attached to a desistance.32 The subject affidavit does not deserve a second look more so that it appears that Cynthia was not armed with a special power of attorney to enter into a settlement with petitioners. At any rate, it is an exercise of futility to delve into the effects of the affidavit of desistance executed by one of the respondents since it has already been established that petitioners are not negligent.

WHEREFORE, the petition is GRANTED. The challenged Decision and Resolution of the Court of Appeals are REVERSED and SET ASIDE. Civil Case No. 94-3418 lodged before the Regional Trial Court of Antipolo City, Branch 74, is DISMISSED for lack of merit.

SO ORDERED.

JOSE PORTUGAL PEREZAssociate Justice

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 155111             February 14, 2008

CORNELIO LAMPESA and DARIO COPSIYAT, petitioners, vs.DR. JUAN DE VERA, JR., FELIX RAMOS and MODESTO TOLLAS, respondents.

DECISION

QUISUMBING, J.:

This petition for review seeks the reversal of the Decision1 dated August 21, 2002 of the Court of Appeals in CA-G.R. CV No. 49778 which had affirmed the Decision2 dated March 22, 1995 of the Regional Trial Court of San Carlos City, Pangasinan, Branch 57, finding petitioners Cornelio Lampesa and Dario Copsiyat liable for damages on account of the injury sustained by respondent, Dr. Juan De Vera, Jr.

The antecedent facts, as found by the appellate court, are as follows:

On December 28, 1988, De Vera, Jr. boarded a passenger jeepney3 bound for Baguio City driven by respondent Modesto Tollas. Upon reaching the Km. 4 marker of the national highway, the jeepney came to a complete stop to allow a truck,4 then being driven by Dario Copsiyat, to cross the path of the jeepney in order to park at a private parking lot on the right side of the road. As Tollas began to maneuver the jeepney slowly along its path, the truck, which had just left the pavement, suddenly started to slide back towards the jeepney until its rear left portion hit the right side of the jeepney. De Vera, Jr., who was seated in the front passenger seat, noticed his left middle finger was cut off as he was holding on to the handle of the right side of the jeepney. He asked Tollas to bring him immediately to the hospital. The Medical Certificate5 dated June 19, 1989, described De Vera, Jr.’s amputated left middle finger as follows:

Neuroma, proximal phalange left middle finger OPERATION PERFORMED: Ray amputation middle finger left…6

P/Cpl. Arthur A. Bomogao of the Benguet Integrated National Police investigated and recorded the incident in his Police Investigation Report7 dated January 17, 1989.

The defense, for its part, presented the following version of the incident: After delivering a load of vegetables, truck owner Lampesa instructed his driver, Copsiyat, to park the truck in the parking lot across the highway. While the rear of the truck was still on the pavement of the highway, an approaching passenger jeepney sideswiped the rear portion of the truck. This resulted in the dismemberment of De Vera, Jr.’s left middle finger, according to the defense.

Lampesa offered P5,000 to De Vera, Jr. as a gesture of humanitarian support, but the latter demanded P1 million although this amount was later lowered to P75,000. The parties failed to settle amicably; thus, De Vera, Jr. filed an action for damages8 against Lampesa, Copsiyat, Ramos and Tollas, as the truck owner, truck driver, jeepney owner/operator and jeepney driver, respectively.

The trial court found driver Copsiyat negligent in the operation of his truck and ruled that his negligence was the proximate cause of the injuries suffered by De Vera, Jr. It also ruled that Lampesa did not exercise due diligence in the selection and supervision of his driver as required under Articles 21769 and 218010 of the Civil Code. Thefallo of the decision reads:

WHEREFORE, judgment is hereby rendered:

1. Ordering Dario Copsiyat and Cornelio F. Lampesa, jointly and solidarily to pay the plaintiff the sum ofP75,000.00 as moral damages; P22,000.00 as actual damages; and P15,000.00 as attorney’s fees plus the costs of suit.

2. The counterclaim and cross-claim of defendant Lampesa and Copsiyat and the counterclaim and counter-cross-claim of defendants Ramos and Tollas are hereby dismissed.

SO ORDERED.11

Upon review, the Court of Appeals upheld the trial court’s findings of negligence on the part of Copsiyat and Lampesa. The dispositive portion of the decision reads:

WHEREFORE, the questioned Decision, dated March 22, 1995, of the Regional Trial Court of Pangasinan, Branch 57, in Civil Case No. SCC-1506, is hereby AFFIRMED.

SO ORDERED.12

Hence, the instant petition, raising the following as issues:

I.

WHO BETWEEN THE TWO (2) DRIVERS (COPSIYAT WHO WAS THE ELF TRUCK DRIVER AND TOLLAS FOR THE PASSENGER JEEP) WAS NEGLIGENT?

II.

GRANTING THAT COPSIYAT WAS ALSO NEGLIGENT, WHETHER OR NOT THE AWARD OF MORAL DAMAGES AND ATTORNEY’S FEES ARE JUSTIFIED; AND

III.

WHETHER OR NOT THE TRIAL COURT AND THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN THE APPRECIATION OF THE EVIDENCE.13

Simply put, the issues for our resolution are: (1) Did the Court of Appeals err in affirming the trial court’s ruling that petitioners are liable for the injury sustained

by De Vera, Jr.? and (2) Did it err in awarding moral damages and attorney’s fees?

Petitioners insist that it was Tollas, the jeepney driver, who was negligent. They maintain that Tollas should have first allowed the truck to park as he had a clear view of the scenario, compared to Copsiyat, the truck driver, who had a very limited view of the back of the truck. Lampesa also avers he did his legal duty in the selection and supervision of Copsiyat as his driver. He alleges that before hiring Copsiyat, he asked the latter if he had a professional driver’s license.

For their part, respondents adopt the findings of the trial and appellate courts. They contend that it was Copsiyat who was negligent in driving the truck and the testimony of De Vera, Jr. on this matter was more than sufficient to prove the fact. De Vera, Jr. also contends that petitioners are liable for moral damages and attorney’s fees under Articles 221714 and 220815 of the Civil Code.

Considering the contentions of the parties, in the light of the circumstances in this case, we are in agreement that the petition lacks merit.

Article 2176 of the Civil Code provides that 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 quasi-delict. Whether a person is negligent or not is a question of fact, which we cannot pass upon in a petition for review on certiorari, as our jurisdiction is limited to reviewing errors of law.16

In this case, both the trial and the appellate courts found Copsiyat negligent in maneuvering the truck and ruled that his negligence was the proximate cause of the injury sustained by De Vera, Jr. Lampesa was also held accountable by both courts because he failed to exercise due diligence in the supervision of his driver. This Court is not bound to weigh all over again the evidence adduced by the parties, particularly where the findings of both the trial court and the appellate court on the matter of petitioners’ negligence coincide. The resolution of factual issues is a function of the trial court, whose findings on these matters are, as a general rule, binding on this Court more so where these have been affirmed by the Court of Appeals.17

Once negligence on the part of the employee is established, a presumption instantly arises that the employer was negligent in the selection and/or supervision of said employee.18 To rebut this presumption, the employer must present adequate and convincing proof that he exercised care and diligence in the selection and supervision of his employees.

Lampesa claims he did his legal duty as an employer in the selection and supervision of Copsiyat. But the record is bare on this point. It lacks any showing that Lampesa did so. Admitting arguendo that Copsiyat did show his professional license when he applied for the job of truck driver, Lampesa should not have been satisfied by the mere possession of a professional driver’s license by Copsiyat. As an employer, Lampesa was duty bound to do more. He should have carefully examined Copsiyat’s qualifications, experiences and record of service, if any.19Lampesa must also show that he exercised due supervision over Copsiyat after his selection. But all he had shown on record were bare allegations unsubstantiated by evidence. Having failed to exercise the due diligence required of him as employer, Lampesa cannot avoid solidary liability for the tortuous act committed by his driver, Copsiyat.

On a final note, petitioners’ liability for moral damages and attorney’s fees cannot now be questioned for failure of petitioners to raise it before the Court of Appeals. It is a well-entrenched rule that issues not raised below cannot be raised for the first time on appeal as to do so would be offensive to the basic rules of fair play and justice.20Moreover, the award of moral damages in this case is justifiable under Article 2219 (2)21 of the Civil Code, which provides for said damages in cases of quasi-delicts causing physical injuries.22 The award for attorney’s fees is also proper under Article 2208 (2)23 of the Civil Code, considering that De Vera, Jr. was compelled to litigate when petitioners ignored his demand for an amicable settlement of his claim.24

WHEREFORE, the petition is DENIED for lack of merit. The Decision dated August 21, 2002 of the Court of Appeals in CA-G.R. CV No. 49778 is AFFIRMED. Costs against the petitioners.