DAY SIX

2. CAUSATIONGeneral rule: if the negligence of the defendant is the proximate cause of the injury/ damage to property, then plaintiff may claim damages.Exception: If the negligence of the plaintiff is the proximate cause of the injury or damage, the plaintiff is wholly responsible for the same and he cannot recover damages.2.1 Definition of Proximate Cause

VDA DE BATACLAN VS MEDINAOn September 13, 1952 bus no. 30 of the Medina Transportation, operated by its owner defendant Mariano Medina under a certificate of public convenience, left the town of Amadeo, Cavite, on its way to Pasay City, driven by its regular chauffeur, ConradoSaylon. There were about eighteen passengers, including the driver and conductor. Among the passengers were Juan Bataclan, seated beside and to the right of the driver, Felipe Lara, sated to the right of Bataclan, another passenger apparently from the Visayan Islands whom the witnesses just called Visaya, apparently not knowing his name, seated in the left side of the driver, and a woman named Natalia Villanueva, seated just behind the four last mentioned. At about 2:00 o'clock that same morning, while the bus was running within the jurisdiction of Imus, Cavite, one of the front tires burst and the vehicle began to zig-zag until it fell into a canal or ditch on the right side of the road and turned turtle. Some of the passengers managed to leave the bus the best way they could, others had to be helped or pulled out, while the three passengers seated beside the driver, named Bataclan, Lara and the Visayan and the woman behind them named Natalia Villanueva, could not get out of the overturned bus. Some of the passengers, after they had clambered up to the road, heard groans and moans from inside the bus, particularly, shouts for help from Bataclan and Lara, who said they could not get out of the bus. There is nothing in the evidence to show whether or not the passengers already free from the wreck, including the driver and the conductor, made any attempt to pull out or extricate and rescue the four passengers trapped inside the vehicle, but calls or shouts for help were made to the houses in the neighborhood. After half an hour, came about ten men, one of them carrying a lighted torch made of bamboo with a wick on one end, evidently fueled with petroleum. These men presumably approach the overturned bus, and almost immediately, a fierce fire started, burning and all but consuming the bus, including the four passengers trapped inside it. It would appear that as the bus overturned, gasoline began to leak and escape from the gasoline tank on the side of the chassis, spreading over and permeating the body of the bus and the ground under and around it, and that the lighted torch brought by one of the men who answered the call for help set it on fire.

That same day, the charred bodies of the four deemed passengers inside the bus were removed and duly identified that of Juan Bataclan. By reason of his death, his widow, Salud Villanueva, in her name and in behalf of her five minor children, brought the present suit to recover from Mariano Medina compensatory, moral, and exemplary damages and attorney's fees in the total amount of P87,150. After trial, the Court of First Instance of Cavite awarded P1,000 to the plaintiffs plus P600 as attorney's fee, plus P100, the value of the merchandise being carried by Bataclan to Pasay City for sale and which was lost in the fire. The plaintiffs and the defendants appealed the decision to the Court of Appeals, but the latter endorsed the appeal to us because of the value involved in the claim in the complaint.

Issue:Whether or not the proximate cause of the death of Bataclan et al was their burning by reason of the torches which ignited the gasoline.

Held: No.

In the present case under the circumstances obtaining in the same, we do not hesitate to hold that the proximate cause was the overturning of the bus, this for the reason that when the vehicle turned not only on its side but completely on its back,the leaking of the gasoline from the tank was not unnatural or unexpected; that the coming of the men with a lighted torch was in response to the call for help, made not only by the passengers, but most probably, by the driver and the conductor themselves, and that because it was dark (about 2:30 in the morning), the rescuers had to carry a light with them, and coming as they did from a rural area where lanterns and flashlights were not available; and what was more natural than that said rescuers should innocently approach the vehicle to extend the aid and effect the rescue requested from them. In other words, the coming of the men with a torch was to be expected and was a natural sequence of the overturning of the bus, the trapping of some of its passengers and the call for outside help. What is more, the burning of the bus can also in part be attributed to the negligence of the carrier, through is driver and its conductor. According to the witness, the driver and the conductor were on the road walking back and forth. They, or at least, the driver should and must have known that in the position in which the overturned bus was, gasoline could and must have leaked from the gasoline tank and soaked the area in and around the bus, this aside from the fact that gasoline when spilled, specially over a large area, can be smelt and directed even from a distance, and yet neither the driver nor the conductor would appear to have cautioned or taken steps to warn the rescuers not to bring the lighted torch too near the bus. Said negligence on the part of the agents of the carrier come under the codal provisions above-reproduced, particularly, Articles 1733, 1759 and 1763.

Proximate cause- that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred.' And more comprehensively, 'the proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinary prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom.

PHOENIX CONSTRUCTION VS IAC

FACTS:

Petitioners: PHOENIX Construction Inc., and Armando U. CARBONEL Respondents: The Intermediate Appellate Court (IAC) and Leonardo DIONISIO

On November 15, 1975 (Martial Law period), about 1:30AM, respondent Dionisio, a marketing man, was driving home from a dinner meeting where he had a shot or two of liquor. He had just crossed the intersection of General Lacuna and General Santos Streets at Bangkal, Makati, not far from his home, and was proceeding down General Lacuna Street, when his car headlights (in his allegation) suddenly failed. and while driving down the street, his headlights were turned off. When he switched on his headlights to bright, he suddenly saw a Ford dump truck some 2 meters away from his Volkswagen car. It was later found out that he did not a curfew pass that night.

The dump truck belonged to co-petitioner Phoenix, and was parked there by the company driver, co-petitioner Carbonel. It was parked on the right hand side of the lane that Dionisio was driving on, but it was parked facing the oncoming traffic. It was parked askew so it was sticking out onto the street, partly blocking the way of oncoming traffic. There were no lights nor were

there any early warning reflector devices set anywhere near the truck, front or rear. Phoenix permitted Carbonel to take home the truck, which was scheduled to be used the nextmorning.4.

Dionisio, upon seeing the truck, tried to avoid a collision by swerving to the left, but it was toolate. His car smashed into the truck. Dionisio suffered physical injuries, including permanent facial scars, a nervous breakdown and loss of two gold bridge dentures.HELD

CFI:

An action for damages was commenced by Dionisio in the CFI, claiming that the legal andproximate cause of his injuries was the negligent manner in which Carbonel had parked thedump truck entrusted to him by his employer Phoenix.

Phoenix and Carbonel countered that the proximate cause of Dionisios injuries was his own

recklessness in driving fast at the time of the accident, while under the influence of liquor,without his headlights on, and without a curfew pass.

Phoenix also sought to establish that it had exercised due care in the selection and supervision of the dump truck driver.

The CFI rendered judgment in favor of Dionisio and against Phoenix and Carbonel.

IAC:

Upon appeal to the IAC, that court affirmed the CFIs decision.

Hence, the present petition.

ISSUE: WON Dionisios negligence was an intervening, efficient cause determinative of the accident and the injuries he sustained

DECISION:

NO. Although Dionisio was found to be negligent, his negligence was not an intervening,

efficient cause. The legal and proximate cause of the accident and of Dionisios injuries was the

negligence of Carbonel in the manner by which he parked the dump truck. Petitioners are liable for damages, but these damages must be mitigated because of Dionisios contributory negligence. Decision modified whereby Dionisio will shoulder 20% of awarded damages.

HELD:[Resolution of factual issues]

The Court held that on that night, Dionisio was driving without a curfew pass. Since he was without a curfew pass, he was hurrying home, driving at a fast speed in order to avoid the police. Worse, he turned off his headlights as he was driving down that street in order to escape notice from the nearby police station. However, the Court held that that the one or two shots of liquor he had did not show that he was so heavily under the influence of liquor as to constitute an act of reckless imprudence. Taken all together, however, the Court drew the conclusion that Dionisio was negligent on the night of the accident.[Note: During the period of Martial Law, no person was allowed to be outside his home during curfew hours, unless he has a curfew pass.]

Cause vs. Condition; Almost no distinction between them

Petitioners urge that the Carbonels negligence was merelt a passive and static condition and that Dionisios negligence was an efficient intervening cause, and that consequently Dionisios negligence must be regarded as the legal and proximate cause of the accident rather than the earlier negligence of Carbonel.

However, the distinctions between cause and condition have been almost entirely discredited.

The Court quotes significantly from

Prosser and Keeton

. The following parts were quoted with emphasis:

Cause and condition So far as the fact of causation is concerned, in the sense of necessary

antecedents which have played an important part in producing the result, it is quite impossible to distinguish between active forces and passive situations, particularly since, as is invariably the case, the latter are the result of other active forces which have gone before Even the lapse of a considerable time during which the condition remains static will not necessarily affect liability Cause andcondition

still find occasional mention in the decisions; but the distinction is now almost entirely discredited. So far as it has any validity at all, it must refer to the type of case where the forces set in operation by the defendant have come to rest in a position of apparent safety, and some new force intervenes. But even in such cases, it is not the distinction between cause and condition which is important, but the nature of the risk and the ch aracter of the intervening cause.

Dionisios negligence is not an efficient intervening cause Carbonels negligence is far from being a passive and static condition it was an indispensable and efficient cause. The collision would not have happened had the truck not been parked askew and without any warning lights or reflector devices. The improper parking of the dump truck created an unreasonable risk of injury for anyone driving down the street and for having so created this risk, Carbonel must be held responsible. Carbonel owed a duty to Dionisio and others similarly situated notto impose upon them the very risk that Carbonel had created. Dionisios negligence was not of an independent and overpowering nature as to cut, as it were, the chain of causation in fact between the improper parking of the dump truck and the accident, nor to sever the

juris vinculum of liability.The Court quoted parts of

Prosser and Keeton

. With emphasis were the following: Foresseable Intervening Causes. If the intervening cause is one which is ordinary human experience is reasonably to be anticipated, or one which the defendant has reason to anticipate under the particular circumstances, the defendant may be negligent, among other reasons, because of failure to guard

against it; or the defendant may be negligent only for that reason There is an intervening cause combining with the defendants conduct to produce result, and the defendants negligence consists in failure to protect the plaintiff against that very risk.

Obviously the defendant cannot be relieved from liability by the fact that the risk or a substantial and important part of the risk, to which the defendant has subjected the plaintiff has indeed come to pass. Foreseeable intervening forces are within th e scope of the original risk, and hence of the defendants negligence.

Thus it has been held that one who leaves an obstruction on the road or a railroad track should foresee that a vehicle or a train will run into it.

The risk created by the defendant may include the intervention of the foreseeable negligence of others. Xxx The standard of reasonable conduct may require the defendant to protect the plaintiff against that occasional negligence which is one of the ordinary incidents of human life, and therefore to be anticipated One who parks an automobile on the highway without lights at night is not relieved of responsibility when another negligently drives into it

Dionisio had contributory negligence

The court held that Dionisios negligence was only contributory, that the immediate and proximate cause of the injury remained Carbonels lack of due care and that consequently Dionisio may recover damages though such damages are subject to mitigation by the court.

Hence, on the award of most of the damages, an allocation of 20-80 ratio should be followed, where20% shall be borne by Dionisio, while 80% shall be borne by petitioners.

Last Clear Chance cannot apply

Petitioners ask the application of the last clear chance doctrine. It cannot apply.

The last clear chance doctrine of the common law was imported into our jurisdiction by

Picart vs. Smith

but is a matter for debate whether, or to what extent, it has found its way into the Civil Code of the Philippines. Its historical function was to mitigate the harshness of another common law doctrine or rule contributory negligence. The common law notion of last clear chance permitted courts to grant recovery to a plaintiff who had also been negligent provided that the defendant had the last clear chance to avoid the casualty and failed to do so. Accordingly, it is difficult to see what role, if any, the common law last clear chance doctrine has to play in a jurisdiction where the common law concept of contributory negligence as an absolute bar to recovery by the plaintiff, has itself been rejected, as it has been in Article 2179 of the Civil Code of the Philippines.

The Court believes that there is no general concept of last clear chance that may be extracted from its common law matrix and utilized as a general rule in negligence cases in a civil law jurisdiction. Under Article 2179, the task of a court, in technical terms, is to determine whose negligence the plaintiffs or the defendants was the legal or proximate cause of the injury. That task is not simply or even primarily an exercise in chronology or physics. Chronology of plaintiffs and defendants negligent acts or omissions is only one of the relevant factors that may be taken into account.

Of more fundamental importance are the nature of the negligent act or omission of each party and the character and gravity of the risks created by such act or omission for the rest of the community.

Phoenix is presumed negligent for failing to supervise its employees properly and adequately

Carbonels proven negligence creates a presumption of negligence on the part of his employer Phoenix

in supervising its employees properly and adequately. Phoenix was not able to overcome this presumption of negligence. It failed to show any effort on the part of Phoenix to supervise the manner in which the dump truck if parked when away from company premises. It is an affirmative showing of culpa in vigilando on the part of Phoenix. Decision modified as to the allocation of award of damages.

BELARMINO VS EECFERNANDO VS CA

FACTS: November 7, 1975:Bibiano Morta, market master of the Agdao Public Market filed a requisition request with the Chief of Property of the City Treasurer's Office for the re-emptying of the septic tank in Agdao whereinBascon won.November 22, 1975:bidder Bertulano with four other companions namely Joselito Garcia, William Liagoso, Alberto Fernando and Jose Fajardo, Jr. were found dead inside the septic tank.

The bodies were removed by a fireman.

The body of Joselito Garcia, was taken out by his uncle, Danilo Garcia and taken to the Regional Hospital but he expired there.

The City Engineer's office investigated the case and learned they entered the septic tank without clearance from it nor with the knowledge and consent of the market master.

Since the septic tank was found to be almost empty, they were presumed to be the ones who did the re-emptying.

Dr. Juan Abear of the City Health Office found them to have died from"asphyxia" - diminution of oxygen supply in the body andintake of toxic gas

November 26, 1975: Basconsigned the purchase order

RTC: Dismissed the case

CA: Reversed -law intended to protect the plight of the poor and the needy, the ignorant and theindigent

ISSUE: W/N Davao city is negligent and its negligence is the proximate cause therefore can be liable for damages

HELD: NO. CA affirmed.

Test by which to determine the existence of negligence in a particular case:

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

Standard supposed to be supplied by the imaginary conduct of the discreetpater familiasof the Roman law.Conduct is said to be negligent when a prudent man in the position of the tortfeasor would have foreseen that an effect harmful to another was sufficiently probable warrant his foregoing the conduct or guarding against its consequences

The question as to what would constitute the conduct of a prudent man in a given situation must of course be always determined in the light of human experience and in view of the facts involved in the particular case

Reasonable foresight of harm, followed by the ignoring of the suggestion born of this provision, is always necessary before negligence can be held to existDistinction must be made between the accident and the injury Where he contributes to the principal occurrence, as one of its determining factors, he can not 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

Toilets and septic tanks are not nuisancesper seas defined in Article 694 of the New Civil Code which would necessitate warning signs for the protection of the public

While the construction of these public facilities demands utmost compliance with safety and sanitary requirements, the putting up of warning signs is not one of those requirements

Accident such as toxic gas leakage from the septic tank is unlikely to happen unless one removes its covers

Considering the nature of the task of emptying a septic tank especially one which has not been cleaned for years, an ordinarily prudent person should undoubtedly be aware of the attendant risks. The victims are no exception; more so with Mr. Bertulano, an old hand in this kind of service, who is presumed to know the hazards of the job. His failure, therefore, and that of his men to take precautionary measures for their safety was the proximate cause of the accident.

Proximate and immediate cause of the death of the victims was due to their own negligence.Consequently, the petitioners cannot demand damages from the public respondent.

RAMOS VS C.O.L REALTYFacts:

Collision incident, parties are: Toyota Altis sedan owned by COL Realty, driven by Larin, with passenger Estela; and Ford Expedition, owned by Ramos, driven by Rodel.

Collision occurred along Katipunan and R. Matanda St., see image:

The Altis, driving at 5-10kph, was trying to cross Katipunan Ave. from R. Matanda from the left (going to Blue Ridge), and has already crossed the center lane of Katipunan, when the Ford Expedition (heading North) hit the rear right door of the Altis, sending it turning 180 degrees towards the direction it came from.

Estela suffered injuries. COL Realty demanded payment for repairs of the Altis and costs of the medical service to Estela. Ramos refused.

COL Realty filed suit against Ramos in the MeTC QC for damages under quasi-delict.

Ramos denied liability, arguing that the Altis was in the wrong for crossing Katipunan despite the concrete barriers installed thereon to prevent cars from crossing it. Ramos further argued he wasnt in the car when the accident happened, and has exercised due diligence in the selection and supervision of Rodel.

MeTC dismissed the case. RTC affirmed the dismissal.

CA modified holding that while the Altis negligent for crossing Katipunan despite the concrete barriers, relying on the certification of MMDA that such act is prohibited due to the ongoing road construction in the area and that the Altis still crossed Katipunan through the broken cracks in the barricade, it held that the Ford Expedition was contributorily negligent for driving the car at a high speed (given that the Altis rotated 180 degrees upon being hit) through a busy intersection despite the ongoing road construction.

Hence the appeal.ISSUE:

Whether or not the Ford Expeditions speed in driving along Katipunan despite the ongoing construction makes it liable RULING:

NO. The Altiss violation in crossing Katipunan despite the barrier is the proximate cause of the collision.If the master is injured by the negligence of a third person and by the concurring contributory negligence of his own servant or agent, the latters negligence is imputed to his superior and will defeat the superiors action against the third person, assuming of course that the contributory negligence was the proximate cause of the injury of which complaint is made.Applying the foregoing principles of law to the instant case, Aquilinos act of crossing Katipunan Avenue via Rajah Matanda constitutes negligence because it was prohibited by law. Moreover, it was the proximate cause of the accident, and thus precludes any recovery for any damages suffered by respondent from the accident.Proximate cause is defined as that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. And more comprehensively, the proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinary prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom.If Aquilino heeded the MMDA prohibition against crossing Katipunan Avenue from Rajah Matanda, the accident would not have happened. This specific untoward event is exactly what the MMDA prohibition was intended for. Thus, a prudent and intelligent person who resides within the vicinity where the accident occurred, Aquilino had reasonable ground to expect that the accident would be a natural and probable result if he crossed Katipunan Avenue since such crossing is considered dangerous on account of the busy nature of the thoroughfare and the ongoing construction of the Katipunan-Boni Avenue underpass. It was manifest error for the Court of Appeals to have overlooked the principle embodied in Article 2179 of the Civil Code, that when the plaintiffs own negligence was the immediate and proximate cause of his injury, he cannot recover damages.Thus it is unnecessary to delve into the issue of Rodels contributory negligence, since it cannot overcome or defeat Aquilinos recklessness which is the immediate and proximate cause of the accident. Rodels contributory negligence has relevance only in the event that Ramos (the Expedition owner) seeks to recover from respondent whatever damages or injuries he may have suffered as a result; it will have the effect of mitigating the award of damages in his favor. In other words, an assertion of contributory negligence in this case would benefit only the petitioner; it could not eliminate respondents liability for Aquilinos negligence which is the proximate result of the accident.PHIL NATIONAL RAILWAYS VS VIZCARRAFACTS: The case arose from a collision of a passenger express train of defendant Philippine National Railways, (PNR) coming from San Fernando, La Union and bound for Manila and a passenger bus of Baliwag Transit, Inc. which was on its way to Hagonoy, Bulacan, from Manila, but upon reaching the railroad crossing at Barrio Balungao, Calumpit, Bulacan at about 1:30 in the afternoon of August 10, 1974, got stalled and was hit by defendant's express train causing damages to plaintiff's bus and its passengers, eighteen (18) of whom died and fifty-three (53) others suffered physical injuries. Plaintiff alleging that the proximate cause of the collision was the negligence and imprudence of defendant PNR and its locomotive engineer, HonorioCirbado, in operating its passenger train in a busy intersection without any bars, semaphores, signal lights, flagman or switchman to warn the public of approaching train that would pass through the crossing, filed the instant action for Damages against defendants. The defendants, in their Answer traversed the material allegation of the Complaint and as affirmative defense alleged that the collision was caused by the negligence, imprudence and lack of foresight of plaintiff's bus driver, Romeo Hughes.

ISSUES:

Who between the driver Romeo Hughes of the Baliuag Transit Incorporated and HonorioCabardo, train Engineer of the Philippine National Railways was negligent in the operation of their respective vehicles, or whether or both were negligent? Could either of the companies Baliuag Transit Incorporated and the Philippine National Railways be held accountable for the collision because of negligence?

HELD:

It was established that the weather condition was characterized with intermittent rain which should have prompted the train engineer to exercise extra precaution. Also, the train reached Calumpit, Bulacan ahead of scheduled arrival thereat, indicating that the train was travelling more than the normal speed of 30 kilometers per hour. If the train were really running at 30 kilometers per hour when it was approaching the intersection, it would probably not have travelled 190 meters more from the place of the accident.

All of these factors, taken collectively, engendered the concrete and yes, correct conclusion that the train engineer was negligent who, moreover, despite the last opportunity within his hands vis-a-visthe weather condition including the presence of people near the intersection, could have obviated the impending collision had he slackened his speed and applied the brakes. These considerations were addressed to the trial judge was in a better position to assign weight on factual questions. Having resolved the question of negligence between the train engineer and the bus driver after collating the mass of evidence, the conclusion reached thereafter thus commands great respect especially so in this case where respondent court gave its nod of approval to the findings of the court of origin.DRA LEILA DELA LLANA VS BIONG

FACTS: On March 30, 2000, Juan delaLlana was driving and his sister, Dra. delaLlana,wasseatedatthefrontpassengerseatwhileacertainCalimlimwasatthe backseat. Juan stopped the car across the Veterans Memorial Hospital when the signal lightturned red. A few seconds after the car halted, a dump truck rammed the cars rear end,violently pushing the car forward.Dra. DelaLlana suffered minor wounds. The traffic investigation report dated March 30, 2000 identified the truck driver as Joel Primero who is an employee of respondentRebecca Biong. In the first week of May 2000, Dra.delaLlana began to feel mild to moderate pain on the left side of hernneck and shoulder. The pain became more intense as dayspassed by. Her injury became more severe. On June 9, 2000, she to suffer from awhiplashinjury,aninjurycausedbythecompressionofthenerverunningtoherleft arm and is required to undergo serious medication to alleviate her condition. Thus she demanded from Biong compensation for her injuries, but Rebecca refused to pay. This made her sued Biong for damages before the Regional Trial Court.The RTC ruled in favor of Dra. delaLlana butwas reversed by the CA.

ISSUE: WhetherJoelsrecklessdrivingistheproximatecauseofDra.delaLlanaswhiplash injury

HELD:

Dra. delaLlana failed to establish her case by preponderance of evidence

Article 2176 of the Civil Code provides that "[w]hoever 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 a quasi-delict." Under this provision, the elements necessary to establish a quasi-delict case are:

(1) damages to the plaintiff;

(2) negligence, by act or omission, of the defendant or by some person for whose acts the defendant must respond, was guilty; and

(3) the connection of cause and effect between such negligence and the damages.28These elements show that the source of obligation in a quasi-delict case is the breach or omission of mutual duties that civilized society imposes upon its members, or which arise from non-contractual relations of certain members of society to others.29Based on these requisites, Dra. delaLlana must first establish by preponderance of evidence the three elements of quasi-delict before we determine Rebeccas liability as Joels employer.

She should show the chain of causation between Joels reckless driving and her whiplash injury.

Only after she has laid this foundation can the presumption - that Rebecca did not exercise the diligence of a good father of a family in the selection and supervision of Joel - arise.30Once negligence, the damages and the proximate causation are established, this Court can then proceed with the application and the interpretation of the fifth paragraph of Article 2180 of the Civil Code.31Under Article 2176 of the Civil Code, in relation with the fifth paragraph of Article 2180, "an action predicated on an employees act or omission may be instituted against the employer who is held liable for the negligent act or omission committed by his employee."32The rationale for these graduated levels of analyses is that it is essentially the wrongful or negligent act or omission itself which creates thevinculum jurisin extra-contractual obligations.33In civil cases, a party who alleges a fact has the burden of proving it.

He who alleges has the burden of proving his allegation by preponderance of evidence or greater weight of credible evidence.34The reason for this rule is that bare allegations, unsubstantiated by evidence, are not equivalent to proof.

In short, mere allegations are not evidence.35In the present case, the burden of proving the proximate causation between Joels negligence and Dra.delaLlanas whiplash injury rests on Dra. delaLlana. She must establish by preponderance of evidence that Joels negligence, in its natural and continuous sequence, unbroken by any efficient intervening cause, produced her whiplash injury, and without which her whiplash injury would not have occurred.36Notably, Dra.delaLlana anchors her claim mainly on three pieces of evidence:

(1) the pictures of her damaged car,

(2) the medical certificate dated November 20, 2000, and

(3) her testimonial evidence. However, none of these pieces of evidence show the causal relation between the vehicular accident and the whiplash injury. In other words,

Dra. delaLlana, during trial, did not adduce the factum probans or the evidentiary facts by which the factum probandum or the ultimate fact can be established, as fully discussed below

ndeed, a perusal of the pieces of evidence presented by the parties before the trial court shows thatDra. DelaLlana did not present any testimonial or documentary evidence that directly shows the causal relation between the vehicular accident and Dra. DelaLlanas injury.Her claim that Joels negligence causes her whiplash injury was not established because of the deficiency of the presented evidence during trial. We point out in this respect that courts cannot take judicial notice that vehicular ccidents cause whiplash injuries. This proportion is not public knowledge, or is capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions.46We have no expertise in the field of medicine. Justices and judges are only tasked to apply and interpret the law on the basis of the parties pieces of evidence and their corresponding legal arguments.

In sum, Dra.delaLlana miserably failed to establish her cause by preponderance of evidence. While we commiserate with her, our solemn duty to independently and impartially assess the merits of the case binds us to rule against Dra. delaLlanas favor. Her claim, unsupported by prepondernace of evidence, is merely a bare assertion and has no leg to stand on.

2.2 Tests of Proximate Cause

2.2.1 Cause in fact2.2.2 Effectiveness of the cause (sine qua non) but for rule2.2.3 Substantial factor test2.2.4 Foreseeability TestUMALI VS BACANI

Facts: On May 14, 1972, a storm with strong rain hit the Municipality of Alcala Pangasinan. During the storm, the banana plants standing near the transmission line of the Alcala Electric Plant (AEP) were blown down and fell on the electric wire. The live electric wire was cut, one end of which was left hanging on the electric post and the other fell to the ground. The following morning, barrio captain Bueno of San Pedro saw CiprianoBaldomero, a laborer of the AEP, asked him to fix it, but the latter told the barrio captain that he could not do it but that he was going to look for the lineman to fix it. Sometime thereafter, a small boy of 3 years and 8 months old by the name of Manuel P. Saynes, whose house is just on the opposite side of the road, went to the place where the broken line wire was and got in contact with it. The boy was electrocuted and he subsequently died. It was only after the electrocution that the broken wire was fixed.

Petitioner claims that he could not be liable under the concept of quasi-delict or tort as owner and manager of the Alcala Electric Plant because the proximate cause of the boy's death electrocution could not be due to any negligence on his part, but rather to a fortuitous event-the storm that caused the banana plants to fall and cut the electric line-pointing out the absence of negligence on the part of his employee CiprianoBaldomero who tried to have the line repaired and the presence of negligence of the parents of the child in allowing him to leave his house during that time.

Issues: (1) WON the proximate cause of the boy's death is due to a fortuitous event- storm; (2) WON boys parents negligence exempts petitioner from liability.

Ruling: Decision affirmed.

(1) A careful examination of the records convinces the SC that a series of negligence on the part of defendants' employees in the AEP resulted in the death of the victim by electrocution. First, by the very evidence of the defendant, there were big and tall banana plants at the place of the incident standing on an elevated ground which were about 30 feet high and which were higher than the electric post supporting the electric line, and yet the employees of the defendant who, with ordinary foresight, could have easily seen that even in case of moderate winds the electric line would be endangered by banana plants being blown down, did not even take the necessary precaution to eliminate that source of danger to the electric line. Second, even after the employees of the Alcala Electric Plant were already aware of the possible damage the storm of May14, 1972, could have caused their electric lines, thus becoming a possible threat to life and property, they did not cut off from the plant the flow of electricity along the lines, an act they could have easily done pending inspection of the wires to see if they had been cut. Third, employee CiprianoBaldomero was negligent on the morning of the incident because even if he was already madeaware of the live cut wire, he did not have the foresight to realize that the same posed a danger to life and property, and that he should have taken the necessary precaution to prevent anybody from approaching the live wire; instead Baldomero left the premises because what was foremost in his mind was the repair of the line, obviously forgetting that if left unattended to it could endanger life and property.

(2) Art. 2179 CC provides that if the negligence of the plaintiff (parents of the victim in this case) was only contributory, the immediate and proximate cause of the injury being the defendants' (petitioners) lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded. This law may be availed of by the petitioner but does not exempt him from liability. Petitioner's liability for injury caused by his employees negligence is well defined in par. 4, of Article 2180 of the Civil Code.

The owner and manager of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on tile occasion of their functions.

2.2.5 Natural and probable consequence test2.2.6 Ordinary and natural or direct consequence test2.3 INTERVENING CAUSE

RAKES VS ATLANTIC GULF & PACIFIC CO.

FACTS: The plaintiff, one of a gang of eight negro laborers in the employment of the defendant, was at work, transporting iron rails from a barge in the harbor to the company's yard near the malecon in Manila. Plaintiff claims that but one hand car was used in this work. The defendant has proved that there were two immediately following one another, upon which were piled lengthwise seven rails, each weighing 560 pounds, so that the ends of the rails lay upon two crosspieces or sills secured to the cars, but without side pieces or guards to prevent them from slipping off. According to the testimony of the plaintiff, the men were either in the rear of the car or at its sides. According to that defendant, some of them were also in front, hauling by a rope. At a certain spot at or near the water's edge the track sagged, the tie broke, the car either canted or upset, the rails slid off and caught the plaintiff, breaking his leg, which was afterwards amputated at about the knee. ISSUE:Whether the company is liable Whether there is contributory negligence on the part of petitionerRULING: Yes. The negligence of the plaintiff, contributing to the accident, to what extent it existed in fact and what legal effect is to be given it. In two particulars is he charged with carelessness:First. That having noticed the depression in the track he continued his work; andSecond.That he walked on the ends of the ties at the side of the car instead of along the boards, either before or behind it. The Court ruled that His lack of caution in continuing at his work after noticing the slight depression of the rail was not of so gross a nature as to constitute negligence, barring his recovery under the severe American rule. While the plaintiff and his witnesses swear that not only were they not forbidden to proceed in this way, but were expressly directed by the foreman to do so, both the officers of the company and three of the workmen testify that there was a general prohibition frequently made known to all the gang against walking by the side of the car, and the foreman swears that he repeated the prohibition before the starting of this particular load. On this contradiction of proof we think that the preponderance is in favor of the defendant's contention to the extent of the general order being made known to the workmen. If so, the disobedience of the plaintiff in placing himself in danger contributed in some degree to the injury as a proximate, although not as its primary cause. 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 sinking of the track and the sliding of the iron rails. 1. CIVIL LIABILITY FOR DAMAGES. In order to enforce the liability of an employer for injuries to his employee, it is not necessary that a criminal action be first prosecuted against the employer or his representative primarily chargeable with the accident. No criminal proceeding having been taken, the civil action may proceed to judgment. 2. LIABILITY OF EMPLOYER TO WORKMEN. The responsibility of an employer to his employee of a fellow-servant of the employee injured, is not adopted in Philippine jurisprudence. 3. FELLOW-SERVANT RULE. Sua cuique culpa nocet. The doctrine known as the "Fellow-servant rule," exonerating the employer where the injury was incurred through the negligence of a fellow-servant of the employee injured, is not adopted in Philippine jurisprudence. TAYLOR VS MANILA ELCTRIC CO.

FACTS: Plaintiff David Taylor was 15 years old at the time he received the injuries that gave rise to this complaint. On September 30, 1905, plaintiff and Manuel Claparols, about 12 years of age, went to the power plant owned by the defendant to visit one Murphy, an employee. Not being able to find Murphy on inquiry, the boys for curiosity wandered around the premises and reached the place where the company dumped in the cinders and ashes from its furnaces. There they found some 20-30 fulminating caps scattered on the ground. The caps are intended for explosion of dynamites, and have in themselves explosive power. The boys picked up the caps and carried them home. Along the way they met Jessie Adrian, a 9-year old girl. The 3 went to Manuels house and performed a little experiment. They opened the caps and found yellowish substance. They lighted a match and applied it on the contents. The girl became frightened and ran away. The substance exploded, causing a slight cut on Jessies neck, burns on Manuel, and loss of Davids eyesight. Plaintiff sued the company for damages.Issue: Whether the company could be faulted for the allowing the children to be exposed to the harmful substancesHeld:

Fulminating caps or detonators for the discharge by electricity of blasting charges by dynamite are not articles in common use by the average citizen, and under all the circumstances, and in the absence of all evidence to the contrary, we think that the discovery of twenty or thirty of these caps at the place where they were found by the plaintiff on defendant's premises fairly justifies the inference that the defendant company was either the owner of the caps in question or had the caps under its possession and control.

It is clear that the accident could not have happened and not the fulminating caps been left exposed at the point where they were found, or if their owner had exercised due care in keeping them in an appropriate place; but it is equally clear that plaintiff would not have been injured had he not, for his own pleasure and convenience, entered upon the defendant's premises, and strolled around thereon without the express permission of the defendant, and had he not picked up and carried away the property of the defendant which he found on its premises, and had he not thereafter deliberately cut open one of the caps and applied a match to its contents.

Children are actuated by similar childish instincts and impulses. Drawn by curiosity and impelled by the restless spirit of youth, boys here will usually be found whenever the public is permitted to congregate. The movement of machinery, and indeed anything which arouses the attention of the young and inquiring mind, will draw them to the neighborhood as inevitably as does the magnet draw the iron which comes within the range of its magnetic influence. The owners of premises, therefore, whereon things attractive to children are exposed, or upon which the public are expressly or impliedly permitted to enter or upon which the owner knows or ought to know children are likely to roam about for pastime and in play, "must calculate upon this, and take precautions accordingly."

But while we hold that the entry of the plaintiff upon defendant's property without defendant's express invitation or permission would not have relieved defendant from responsibility for injuries incurred there by plaintiff, without other fault on his part, if such injury were attributable to the negligence of the defendant, we are of opinion that under all the circumstances of this case the negligence of the defendant in leaving the caps exposed on its premises was not the proximate cause of the injury received by the plaintiff, which therefore was not, properly speaking, "attributable to the negligence of the defendant," and, on the other hand, we are satisfied that plaintiffs action in cutting open the detonating cap and putting match to its contents was the proximate cause of the explosion and of the resultant injuries inflicted upon the plaintiff, and that the defendant, therefore is not civilly responsible for the injuries thus incurred.

As was said in case ofRailroad Co. vs. Stout, "While it is the general rule in regard to an adult that to entitle him to recover damages for an injury resulting from the fault or negligence of another he must himself have been free from fault, such is not the rule in regard to an infant of tender years. The care and caution required of a child is according to his maturity and capacity only, andthis is to be determined in each case by the circumstances of the case." In the case at bar, plaintiff at the time of the accident was a well-grown youth of 15, more mature both mentally and physically than the average boy of his age. The evidence of record leaves no room for doubt that, despite his denials on the witness stand, he well knew the explosive character of the cap with which he was amusing himself. The series of experiments made by him in his attempt to produce an explosion admit of no other explanation. His attempt to discharge the cap by the use of electricity, followed by his efforts to explode it with a stone or a hammer, and the final success of his endeavors brought about by the application of a match to the contents of the caps, show clearly that he knew what he was about.

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 wassui jurisin 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

TEAGUE VS FERNANDEZDoctrine: Violation of Rules and Statutes

FACTS: The Realistic Institute situated on the second floor of the Gil-Armi Building, a two-storey, semi-concrete edifice located at the corner of Quezon Boulevard and Soler Street, Quiapo, Manila was owned and operated by Teague. The said second floor was unpartitioned, had a total area of about 400 square meters, and although it had only one stairway, of about 1.50 meters in width, it had eight windows, each of which was provided with two fire-escape ladders and the presence of each of said fire-exits was indicated on the wall.October 24, 1955, around 4pm, a fire broke out in a store for surplus materials located about ten meters away from the institute (across the street). Upon seeing the fire, some of the students in the Realistic Institute shouted Fire! Fire! and thereafter, a panic ensued. Four instructresses and six assistant instructress of the Institute were present and they, together with the registrar, tried to calm down the students, who numbered about 180 at the time. The panic, however, could not be subdued and the students, with the exception of the few who made use of fire-escapes kept on rushing and pushing their way through the stairs, thereby causing stampede therein. No part of the Gil-Armi Building caught fire. But, after the panic was over, four students, including Lourdes Fernandez, a sister of plaintiffs-appellants, were found dead and several others injured on account of the stampede. The deceaseds five brothers and sisters filed an action for damages against Mercedes M. Teague as owner and operator of Realistic Institute.

CFI found for the defendant and dismissed the case.This was however, reversed by the CA. The CA held that petitioner was negligent and that such negligence was the proximate cause of the death of Lourdes Fernandez. This finding of negligence is based primarily on the fact that the provision of Section 491 Of the Revised Ordinances of the City of Manila had not been complied with in connection with the construction and use of the Gil-Armi building. The alleged violation of the ordinance consisted in the fact that the second storey of the Gil-Armi building had only one stairway, 1.5 meters wide, instead of two of at least 1.2 meters each, although at the time of the fire the owner of the building had a second stairway under construction.

The petitioner relates the chain of events that resulted in the death of Lourdes Fernandez as follows: (1) violation of ordinance; (2) fire at a neighboring place; (3) shouts of Fire!, Fire!; (4) panic in the Institute; (5) stampede; and (6) injuries and death. As thus projected the violation of the ordinance, it is argued, was only a remote cause, if at all, and cannot be the basis of liability since there intervened a number of independent causes which produced the injury complained of. According to the petitioner the events of fire, panic and stampede were independent causes with no causal connection at all with the violation of the ordinance.

ISSUE:Whether a violation of a statute constitutes negligence

HELD:

It is true that the petitioners non-compliance with the ordinance in question was ahead of and prior to the other events in point of time, in the sense that it was coetaneous with its occupancy of the building. But the violation was a continuing one, since the ordinance was a measure of safety designed to prevent a specific situation which would pose a danger to the occupants of the building. That situation was undue overcrowding in case it should become necessary to evacuate the building, which, it could be reasonably foreseen, was bound to happen under emergency conditions if there was only one stairway available.

The general principle is that the violation of a statute or ordinance is not rendered remote as the cause of an injury by the intervention of another agency if the occurrence of the accident, in the manner in which it happened, was the very thing which the statute or ordinance was intended to prevent. To consider the violation of the ordinance as the proximate cause of the injury does not portray the situation in its true perspective; it would be more accurate to say that the overcrowding at the stairway was the proximate cause and that it was precisely what the ordinance intended to prevent by requiring that there be two stairways instead of only one. Under the doctrine of the cases cited by the respondents, the principle of proximate cause applies to such violation.

The decision appealed from is affirmed, with costs.

MCKEE VS IAC

FACTS: A head-on-collision took place between an International cargo truck, Loadstar owned by private respondents, and driven by Ruben Galang, and a Ford Escort car driven by Jose Koh along MacArthur Highway, between Angeles City and San Fernando, Pampanga. The collision resulted in the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc, and physical injuries to George Koh McKee, Christopher Koh McKee and Araceli Koh McKee, all passengers of the Ford Escort.Jose Koh was the father of petitioner Araceli Koh McKee, the mother of minors George, Christopher and Kim Koh McKee. Loida Bondoc, on the other hand, was the baby sitter of one and a half year old Kim. At the time of the collision, Kim was seated on the lap of Loida Bondoc who was at the front passenger's seat of the car while Araceli and her two (2) sons were seated at the car's back seat.

Immediately before the collision, the cargo truck, which was loaded with two hundred (200) cavans of rice weighing about 10,000 kilos, was traveling southward from Angeles City to San Fernando Pampanga, and was bound for Manila. The Ford Escort, on the other hand, was on its way to Angeles City from San Fernando. When the northbound car was about (10) meters away from the southern approach of the bridge, two (2) boys suddenly darted from the right side of the road and into the lane of the car. The boys were moving back and forth, unsure of whether to cross all the way to the other side or turn back. Jose Koh blew the horn of the car, swerved to the left and entered the lane of the truck; he then switched on the headlights of the car, applied the brakes and thereafter attempted to return to his lane. Before he could do so, his car collided with the truck. The collision occurred in the lane of the truck, which was the opposite lane, on the said bridge.

Civil Case No. 4477 and No. 4478, were filed on 31 January 1977 before the then Court of First Instance of Pampanga. While an Information charging Ruben Galang with the crime of "Reckless Imprudence Resulting to (sic) Multiple Homicide and Physical Injuries and Damage to Property" was filed with the trial court.

CFI rendered a decision against the accused Ruben Galang in the aforesaid criminal case finding the accused Ruben Galang guilty beyond reasonable doubt of the crime Reckless Imprudence Resulting to (sic) Multiple Homicide and Physical Injuries and Damage to Property. Upon the other hand, the two (2) civil cases were dismisse and awarded the private respondents moral damages, exemplary damages and attorney's fees.CA reversed and set aside and another one is rendered, ordering defendants-appellees to pay plaintiffs-appellants damages. The decision is anchored principally on the respondent Court's findings that it was Ruben Galang's inattentiveness or reckless imprudence which caused the accident. The appellate court further said that the law presumes negligence on the part of the defendants (private respondents), as employers of Galang, in the selection and supervision of the latter; it was further asserted that these defendants did not allege in their Answers the defense of having exercised the diligence of a good father of a family in selecting and supervising the said employee.A motion for reconsideration alleging improper appreciation of the facts was subsequently filed by private respondents on the basis of which the respondent Court, reconsidered and set aside its earlier decision and affirmedin totothe trial court's judgment. A motion to reconsider this Resolution was denied by the respondent Court.Hence, this petition.

ISSUE: WON the findings of respondent court is supported by evience

RULING:

The test of negligence and the facts obtaining in this case, it is manifest that no negligence could be imputed to Jose Koh. Any reasonable and ordinary prudent man would have tried to avoid running over the two boys by swerving the car away from where they were even if this would mean entering the opposite lane. Avoiding such immediate peril would be the natural course to take particularly where the vehicle in the opposite lane would be several meters away and could very well slow down, move to the side of the road and give way to the oncoming car. Moreover, under what is known as the emergency rule, "one who suddenly finds himself in a place of danger, and is required to act without time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence, if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence."Considering the sudden intrusion of the two (2) boys into the lane of the car, We find that Jose Koh adopted the best means possible in the given situation to avoid hitting them. Applying the above test, therefore, it is clear that he was not guilty of negligence.

In any case, assuming,arguendothat Jose Koh is negligent, it cannot be said that his negligence was the proximate cause of the collision. Proximate cause has been defined as that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. And more comprehensively, the proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first acted, under such circumstances that the person responsible for the first event should, as an ordinary prudent and intelligent person, have reasonable ground to expect at the moment of his act or default that an injury to some person might probably result therefrom.Although it may be said that the act of Jose Koh, if at all negligent, was the initial act in the chain of events, it cannot be said that the same caused the eventual injuries and deaths because of the occurrence of a sufficient intervening event, the negligent act of the truck driver, which was the actual cause of the tragedy. The entry of the car into the lane of the truck would not have resulted in the collision had the latter heeded the emergency signals given by the former to slow down and give the car an opportunity to go back into its proper lane. Instead of slowing down and swerving to the far right of the road, which was the proper precautionary measure under the given circumstances, the truck driver continued at full speed towards the car. The truck driver's negligence becomes more apparent in view of the fact that the road is 7.50 meters wide while the car measures 1.598 meters and the truck, 2.286 meters, in width. This would mean that both car and truck could pass side by side with a clearance of 3.661 meters to spare.51Furthermore, the bridge has a level sidewalk which could have partially accommodated the truck. Any reasonable man finding himself in the given situation would have tried to avoid the car instead of meeting it head-on.

The truck driver's negligence is apparent in the records. He himself said that his truck was running at 30 miles (48 kilometers) per hour along the bridge while the maximum speed allowed by law on a bridge52is only 30 kilometers per hour. Under Article 2185 of the Civil Code, a person driving a vehicle is presumed negligent if at the time of the mishap, he was violating any traffic regulation. We cannot give credence to private respondents' claim that there was an error in the translation by the investigating officer of the truck driver's response in Pampango as to whether the speed cited was in kilometers per hour or miles per hour. The law presumes that official duty has been regularly performed;53unless there is proof to the contrary, this presumption holds. In the instant case, private respondents' claim is based on mere conjecture.

Clearly, therefore, it was the truck driver's subsequentnegligence in failing to take the proper measures and degree of care necessary to avoid the collision which was the proximate cause of the resulting accident.

Even if Jose Koh was indeed negligent, the doctrine of last clear chance finds application here. Last clear chance is a doctrine in the law of torts which states that the contributory negligence of the party injured will not defeat the claim for damages if it is shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the negligence of the injured party. In such cases, the person who had the last clear chance to avoid the mishap is considered in law solely responsible for the consequences thereof.56Applying the foregoing doctrine, it is not difficult to rule, as We now rule, that it was the truck driver's negligence in failing to exert ordinary care to avoid the collision which was, in law, the proximate cause of the collision. As employers of the truck driver, the private respondents are, under Article 2180 of the Civil Code, directly and primarily liable for the resulting damages. The presumption that they are negligent flows from the negligence of their employee. That presumption, however, is onlyjuris tantum,notjuris et de jure.59Theironly possible defense is that they exercised all the diligence of a good father of a family to prevent the damage.

The diligence of a good father referred to means the diligence in the selection and supervision of employees.60The answers of the private respondents in Civil Cases Nos. 4477 and 4478 did not interpose this defense. Neither did they attempt to prove it.

The respondent Court was then correct in its Decision of 29 November 1983 in reversing the decision of the trial court which dismissed Civil Cases Nos. 4477 and 4478. Its assailed Resolution of 3 April 1984 finds no sufficient legal and factual moorings.

SC RULING: In the light of recent decisions of this Court,the indemnity for death must, however, be increased from P12,000.00 to P50,000.00.

WHEREFORE, the instant petition is GRANTED. The assailed Resolution of the respondent Court of 3 April 1984 is SET ASIDE while its Decision of 29 November 1983 in C.A.-G.R. CV Nos. 69040-41 is REINSTATED, subject to the modification that the indemnity for death is increased from P12,000.00 to P50,000.00 each for the death of Jose Koh and Kim Koh McKee.

Page 1 of 16