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NEGLIGENCE1. AMADO PICART VS FRANK SMITH, JR. FACTS: On December 12, 1912, plaintiff was riding on his pony over the Carlatan Bridge, at San Fernando, La Union. Before he had gotten half way across, the defendant approached from the opposite direction in an automobile, going at the rate of about ten or twelve miles per hour. As the defendant neared the bridge he saw the plaintiff and blew his horn to give warning of his approach. He continued his course and after he had taken the bridge, he gave two more successive blasts, as it appeared to him that the man on horseback before him was not observing the rule of the road. The plaintiff saw the automobile coming and heard the warning signals. However, given the novelty of the apparition and the rapidity of the approach, he pulled the pony closely up against the railing on the right side of the bridge instead of going to the left. He did this because he thought he did not have sufficient time to get over to the other side. As the automobile approached, the defendant guided it toward his left, that being the proper side of the road for the machine. In so doing the defendant assumed that the horseman would move to the other side. The pony had not as yet exhibited fright, and the rider had made no sign for the automobile to stop. Seeing that the pony was apparently quiet, the defendant, instead of veering to the right while yet some distance away or slowing down, continued to approach directly toward the horse without diminution of speed. When he had gotten quite near, there being then no possibility of the horse getting across to the other side, the defendant quickly turned his car sufficiently to the right to escape hitting the horse alongside of the railing where it as then standing; but in so doing the automobile passed in such close proximity to the animal that it became frightened and turned its body across the bridge with its head toward the railing. In so doing, it was struck on the hock of the left hind leg by the flange of the car and the limb was broken. The horse fell and its rider was thrown off with some violence. As a result of its injuries the horse died. The plaintiff received contusions which caused temporary unconsciousness and required medical attention for several days. CFI absolved defendant from liability. Hence, the appeal.ISSUE WON the defendant, in maneuvering his car in the manner above described, was guilty of negligence that would give rise to a civil obligation to repair the damage doneHELD: YES. As the defendant started across the bridge, he had the right to assume that the horse and the rider would pass over to the proper side; but as he moved toward the center of the bridge it was demonstrated to his eyes that this would not be done; and he must in a moment have perceived that it was too late for the horse to cross with safety in front of the moving vehicle. In the nature of things this change of situation occurred while the automobile was yet some distance away; and from this moment it was no longer within the power of the plaintiff to escape being run down by going to a place of greater safety. The control of the situation had then passed entirely to the defendant; and it was his duty either to bring his car to an immediate stop or, seeing that there were no other persons on the bridge, to take the other side and pass sufficiently far away from the horse to avoid the danger of collision. The defendant ran straight on until he was almost upon the horse. He was, the court thinks, deceived into doing this by the fact that the horse had not yet exhibited fright. But in view of the known nature of horses, there was an appreciable risk that, if the animal in question was unacquainted with automobiles, he might get excited and jump under the conditions which here confronted him. When the defendant exposed the horse and rider to this danger, he was, in our opinion, negligent in the eye of the law. The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the imaginary conduct of the discreet pater familias 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. 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. Could a prudent man, in the case under consideration, foresee harm as a result of the course actually pursued? If so, it was the duty of the actor to take precautions to guard against that harm. Reasonable foresight of harm, followed by ignoring of the suggestion born of this prevision, is always necessary before negligence can be held to exist. Stated in these terms, the proper criterion for determining the existence of negligence in a given case is this: 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 to warrant his foregoing conduct or guarding against its consequences. Applying this test to the conduct of the defendant in the present case, negligence is clearly established. A prudent man, placed in the position of the defendant, would have recognized that the course which he was pursuing was fraught with risk, and would therefore have foreseen harm to the horse and the rider as reasonable consequence of that course. Under these circumstances the law imposed on the defendant the duty to guard against the threatened harm. The plaintiff himself was not free from fault, for he was guilty of antecedent negligence in planting himself on the wrong side of the road. It will be noted however, that the negligent acts of the two parties were not contemporaneous, since the negligence of the defendant succeeded the negligence of the plaintiff by an appreciable interval. Under these circumstances the law is that the person who has the last fair chance to avoid the impending harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of the other party.STANDARD OF CONDUCT2.DAVID TAYLOR V MANILA RAILROADFACTS: Facts: Defendant Manila Electric left some twenty or thirty fulminating caps used for blasting charges of dynamite scattered in the premises behind its power plant. Fifteen year old David Taylor is a son of a mechanical engineer. Two years before the incident David spent four months at sea, as a cabin boy on an interisland transports. Later he took up work in his father's office, learning mechanical drawing and mechanical engineering. It appears that he was a boy of more than average intelligence, taller and more mature both mentally and physically than most boys his age. David, along with Manuel, a 12 year old, entered the premises of the defendant without permission. While playing, the boys saw the fulminating caps, picked some pieces and brought them home. In the presence of Jessie, a 9 year old girl, the two boys made a series of experiments with the caps. They thrust the ends of the wires into an electric light socket and obtained no result. Next, they tried to break the cap with a stone and failed. They then opened one of the caps with a knife, and finding that it was filled with a yellowish substance they got matches, and the plaintiff held the cap while the other boy applied a lighted match to the contents. An explosion followed causing injuries to the boys and to Jesse. This action was brought by the plaintiff, through his father, to recover damages for the injuries which he suffered.Issue: Whether or not the company was liable for the injury sustained by plaintiff.Held: The Supreme Court held that under the circumstances, the negligence of the defendant of leaving the caps exposed on its premises was not the proximate cause of the injury. When the immediate cause of an accident resulting in an injury is the plaintiffs own acts, he cannot recover damages for the injury. The immediate cause of the explosion, which resulted in plaintiffs injury, was his own act in putting a match to the contents of the cap. True, David Taylor may not have known and probably did not know the precise nature of the explosion which might be expected from the ignition of the contents of the cap, and of course he did not anticipate the resultant injuries which he incurred, but he well knew that a more or less dangerous explosion might be expected from his act, and yet he willfully, recklessly, and knowingly produced the explosion. 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 his age and his experience qualified him to understand 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 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. "ART. 1089. Obligations are created by law, by contracts, by quasicontracts, and by illicit acts and omissions or by those in which any kind of fault or negligence occurs." "ART. 1902. Any person who by an act or omission causes damage to another when there is fault or negligence shall be obliged to repair the damage so done. "ART. 1903. The obligation imposed by thepreceding article is demandable, not only for personal acts and omission, but also for those of the persons for whom they should be responsible. "The father, and on his death or incapacity the mother, is liable for the damages caused by the minors who alive with them. xxx xxx xxx "Owners or directors of an establishment or enterprises are equally liable for the damages caused by their employees in the service of the branches in which the latter may be employed or on account of their duties. xxx xxx xxx "The liability referred to in this article shall cease when the persons mentioned therein prove that they employed all the diligence of a good father of a family to avoid the damage."3. JARCO Marketing Corporation vs. Court of Appeals and Spouses AguilarFacts: Petitioner Jarco is the owner of Syvel's Department Store in Makati City. Respondent spouses are the parents of Zhieneth Aguilar. On May 9, 1983, Criselda and Zhieneth were at the 2nd floor of Syvel's. As Criselda was signing her credit card slip, she felt a sudden gust of wind and heard a loud thud. She looked behind her and saw her 6 yr. old daughter Zhieneth pinned down on the floor by the store's giftwrapping counter/structure. Zhieneth was crying and screaming for help. She was rushed to the Makati Medical Center and was operated on. The next day, she lost her speech and fourteen days after, she died. The cause of her death was attributed to the injuries she sustained. Spouses Aguilar demanded upon petitioners the reimbursement of the hospitalization, medical bills, wake and funeral expenses but petitioners refused to pay. Spouses filed a complaint for damages. The trial court dismissed the complaint and ruled that the proximate cause of the fall of the counter on Zhieneth was her act of clinging to it. The court also held that Criselda's negligence in allowing her daughter to freely roam around the store contributed to the accident. In absolving petitioners from liability, the court reasoned that the counter was situated at the end corner of the 2nd floor as a precautionary measure, hencce, it could not be considered as an attractive nuisance. On appeal, CA reversed the judgment and found that petitioners were negligent in maintaining a structurally dangerous counter. The counter was shaped like an inverted 'L' and it was top heavy and the weight of the upper portion was neither evenly distributed nor supported by its narrow base. It was also established that 2 employees already requested the management to nail the counter because it was shaky but the latter did not take any action. The management insists that it has been there for 15 years and it has been stable. The Court of Appeals also declared that Zhieneth was absolutely incapable of negligence or tort. It also absolved Criselda of any negligence, finding nothing wrong in momentarily allowing Zhieneth to walk while she signed the document. Moreover, the allegation that Zhieneth clung to the counter which caused the same to fall on her was denied by Gonzales in his testimony. He said that when the doctor asked Zhieneth what she did, the child answered 'nothing, i did not come near the counter, the counter just fell on me'. The CA awarded actual and compensatory damages. Petitioners filed a motion for reconsideration but the court denied the same. Hence, this appeal.

Issues: 1. Whether the death of Zhieneth was accidental or attributable to negligence. 2. In case of a finding of negligence, whether the same was attributable to the store management for maintaining a defective counter or to Criselda and Zhieneth for failing to exercise due and reasonable care while inside the store premises.

Held: An accident pertains to a fortuitous circumstance, event or happening; an event happening without any human agency, or if happening wholly or partly through human agency, an event which under the circumstances is unusual or unexpected by the person to whom it happens. On the other hand, negligence is the failure to observe, for the protection of the interest of another person, that degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers injury. Accident and negligence are intrinsically contradictory; one cannot exist with the other. The test in determining the existence of negligence is enunciated in the landmark case of PICART V. SMITH, thus: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence. The court held that Zhieneth's tragedy and death can only be attributed to negligence. The testimony of Gonzales pertaining to Zhieneth's statement formed part of the res gestae under Section 42, Rule 130 of the Rules of Court. All that is required for their admissibility as part of the res gestae is that they be made or uttered under the influence of a startling event before the declarant had the time to think and concoct a falsehood as witnessed by the person who testified in court. it is unthinkable for a child of tender age and in extreme pain to have lied to a doctor whom she trusted with her life.4. Del Rosario vs. Manila Electric Company Facts: At 2PM in the afternoon, trouble developed in a wire used and operated by Manila Electric Company for the purpose of conducting electricity and lighting the City of Manila and its suburbs. Noguera noticed that the wire was burning and the connections smoking. He then told Soco to telephone the Malabon station of defendant. Soco transmitted the message at 2.25 p.m. and received answer from the station to the effect that they would send an inspector. At 4 p. m. the neighborhood school was dismissed and the children went home. Among these was Alberto Del Rosario with two of his friends. When they came upon the place where the wire was down, Alberto's friend tried to touch it but was stopped by his other friend, Jose. Alberto, saying he has the habit of touching wires, touched the wire despit Jose's warning, got electrocuted, and was pronounced dead when brought to the hospital. The parents of Alberto filed for damages against the company. The engineer of the company says that it was customary for the company to make a special inspection of these wires at least once in six months, and that all of the company's inspectors were required in their daily rounds to keep a lookout for trouble of this kind. There is nothing in the record indicating any particular cause for the parting of the wire.

Issue: Whether or not negligence can be imputed to the defendant company, making it liable for damages.

Held: Yes. The Court is of the opinion that the presumption of negligence on the part of the company from the breakage of this wire has not been overcome, and the defendant is responsible for the accident. Furthermore, when notice was received at the Malabon station at 2.25 p. m., somebody should have been dispatched to the scene of the trouble at once, or other measures taken to guard the point of danger; but more than an hour and a half passed before anyone representing the company appeared on the scene, and in the meantime this child had been claimed as a victim. It is doubtful whether contributory negligence can properly be imputed to the deceased, owing to his immature years and the natural curiosity as a 9-year-old boy. The fact that he ignored the warnings of his friend does not alter the case. The Court therefore awards P1000 as general damages for loss of service and P250 for expenses incurred for the death and burial of the boy.

5. FEDERICO YLARDE and ADELAIDA DORONIOpetitioners, vs. EDGARDO AQUINO, MAURO SORIANO and COURT OF APPEALS,respondents.FACTS: Private respondent Mariano Soriano was the principal of the Gabaldon Primary School in Pangasinan. Defendant Edgardo Aquino was a teacher therein. During that time, the school had several concrete blocks which were remnants of the old school shop destroyed in World War II. Defendant decided to help clear the area so he gathered 18 of his male students and ordered them to dig beside a one ton concrete block in making a hole where the stone can be buried. It was left unfinished so the following day he called 4 of the 18 students including the Novelito Ylarde to complete the excavation. Defendant left the children to level the loose soil while he went to see Banez for the key to the school workroom where he can get some rope. It was alleged that before leaving, he told the children not to touch the stone. After he left, the children playfully jumped into the pit when suddenly the concrete block slide down. Unfortunately, Novelito Ylarde was pinned to the wall causing serious physical injuries which as a consequence led to his death, 3 days thereafter. The parents of the victim, herein petitioners, filed a suit for damages against both Aquino and Soriano.

ISSUE: WON both Soriano and Aquino can be held liable for damages.

HELD: As held in Amadora vs CA, it is only the teacher and not the head of an academic school who should be answerable for torts committed by their students. Where the school is academic rather than technical or vocational in nature, responsibility for the tort committed by the student will attach to the teacher in charge of such student, this is the general rule. However, in casea of establishments of arts and trades, it is the head thereof, and only he, who shall be held liable as an exception to the general rule. In other words, teachers in general shall be liable for the acts of their students except where the school is technical in nature, in which case it is the head thereof who shall be answerable. Hence, Soriano as principal cannot be held liable for the reason that the school he heads is an academic school and he did not give any instruction regarding the digging. A teacher who stands in loco parentis to his tudents should make sure that the children are protected from all harm. The excavation instructed clearly exposed the students to risk and should not be placed under the category of Work Education such as school gardening, planting trees etc. Aquino acted with fault and gross negligence where instead of availing himself of adult manual laborers he instead utilized his students. Furthermore, the warning given is not sufficient to cast away all serious danger that the concrete block adjacent to the excavation would present to the children. He is therefore ordered to pay damages to the petitioners.

EXPERTS AND PROFESSIONALS

6. CULION ICE, FISH AND ELECTRIC CO V PHILIPPINE MOTORS CORPORATIONFACTS : In January 1925, Cranston decided, if practicable, to have the engine on the Gwendoline changed from a gasoline consumer to a crude oil burner, expecting thereby to effect economy in the cost of running the boatHe made known his desire to McLeod & Co., a firm dealing in tractors, and was told by Mc Kellar that he might make inquiries of the Philippine Motors Corporations. Cranston repaired to the office of the Philippine Motors Corporation and had a conference with C.E. Quest, its manager, who agreed to do the job, with the understanding that payment should be made upon completion of the work. The Philippine Motors Corporation was at this time engaged in business as an automobile agency, but, under its charter, it had authority to deal in all sorts of machinery engines and motors, as well as to build, operate, buy and sell the same and the equipment therof. Quest, in company with Cranston, visited the Gwendoline while it lay at anchor in the Pasig River, and the work of effecting the change in the engine was begun. Upon preliminary inspection of the engine, Quest came to the conclusion that the principal thing necessary to accomplish the end in view was to install a new carburettor, and a Zenith carburettor was chosen as the one most adapted to the purpose. After this appliance had been installed, the engine was tried with gasoline as a fuel, supplied from the tank already in use. The result of this experiment was satisfactory. The next problem was to introduce into the carburettor the baser fuel, consisting of a low grade of oil mixed with distillate. In the course of the preliminary work upon the carburettor and its connections, it was observed that the carburettor was flooding, and that the gasoline, or other fuel, was trickling freely from the lower part to the carburettor to the floor. This fact was called to Quest's attention, but he appeared to think lightly of the matter and said that, when the engine had gotten to running well, the flooding would disappear. On January 30,1925 at 5 pm, the first part of the course was covered without any untoward development, other than the fact that the engine stopped a few times, owing no doubt to the use of an improper mixture of fuel. In the course of the trial Quest remained outside of the engine compartment and occupied himself with making distillate, with a view to ascertaining what proportion of the two elements would give best results in the engine. At 7:30 pm: and when passing near Cavite, the engine stopped, and connection again had to be made with the gasoline line to get a new start. After this had been done, the mechanic, or engineer, switched to the tube connecting with the new mixture. . A moment later a back fire occurred in the cylinder chamber. This caused a flame to shoot back into the carburettor , and instantly the carburettor and adjacent parts were covered with a mass of flames, which the members of the crew were unable to subdue. They were therefore compelled, as the fire spread, to take to a boat, and their escape was safely effected, but the Gwendoline was reduced to a mere hulk. The salvage from, the wreck, when sold, brought only the sum of P150. The value of the boat, before the accident occurred, as the court found, was P10,000.

ISSUE: W/N the incident was due to the negligence of Phil. Motors as experts.

HELD: YES. It results that the judgment appealed from, awarding damages to the plaintiff in the amount of P9,850, with interest, must be affirmed; and it is so ordered, with costs against the appellant. Ordinarily a back fire from an engine would not be followed by any disaster, but in this case the leak along the pipe line and the flooding of the carburettor had created a dangerous situation, which a prudent mechanic, versed in repairs of this nature, would have taken precautions to avoid. The back fire may have been due either to the fact that the spark was too advanced or the fuel improperly mixed. In this connection it must be remembered that when a person holds himself out as being competent to do things requiring professional skill, he will be held liable for negligence if he fails to exhibit the care and skill of one ordinarily skilled in the particular work which he attempts to do.The proof shows that Quest had had ample experience in fixing the engines of automobiles and tractors, but it does not appear that he was experienced in the doing of similar work on boats. Quest did not use the skill that would have been exhibited by one ordinarily expert in repairing gasoline engines on boats = negligence. The test of liability is not whether the injury was accidental in a sense, but whether Quest was free from blame accident is chargeable to lack of skill or negligence in effecting the changes which Quest undertook to accomplish; and even supposing that our theory as to the exact manner in which the accident occurred might appear to be in some respects incorrect, yet the origin of the fire in not so inscrutable as to enable us to say that it was casus fortuitus.

7. US VS PINEDAFacts: Santiago Pineda is a registered pharmacist and the owner of a drug store. Feliciano Santos, having some sick horses, presented a copy of a prescription to Pineda. On other occasions, Santos had given the medicine prescribed to his horses with good results. Under the supervision of Pineda, the drugs were prepared and given Santos. Santos, under the belief that he had purchased potassium chlorate, placed two of the packages in water and gave the doses to two of his sick horses. Another package was mixed with water for another horse, but was not used. The two horses, who took the drugs, died afterwards. Santos took the drug packages to the Bureau of Science for examination. It was found that the packages contained not potassium chlorate but barium chlorate (a poison). When sued Pineda alleges that he did not intentionally sold the poison and that what the law (to which he is indicted) forbids is the sell any drug or poison under any "fraudulent name.

ISSUES: Whether or not Pineda can be held liable for the death of the horses, assuming he did not deliberately sold poison.

HELD: Yes. In view of the tremendous and imminent danger to the public from the careless sale of poison and medicine, we do not deem it too rigid a rule to hold that the law penalizes any druggist who shall sell one drug for another whether it be through negligence or mistake. The care required must be commensurate with the danger involved, and the skill employed must correspond with the superior knowledge of the business which the law demands. As a pharmacist, he is made responsible for the quality of all drugs and poison he sells. If were we to adhere to the technical definition of fraud, it would be difficult, if not impossible, to convict any druggist of a violation of the law. The prosecution would have to prove to a reasonable degree of certainty that the druggist made a material representation; that it was false; that when he made it he knew that it was false or made it recklessly without any knowledge of its truth and as a positive assertion; that he made it with the intention that it should be acted upon by the purchaser; that the purchaser acted in reliance upon it, and that the purchaser suffered injury. Such a construction with a literal following of well-known principles on the subject of fraud would strip the law of at least much of its force. It would leave the innocent purchaser of drugs, who must blindly trust in the good faith and vigilance of the pharmacist, at the mercy of any unscrupulous vendor. We should not, therefore, without good reason so devitalize the law. The rule of caveat emptor cannot apply to the purchase and sale of drugs. The vendor and the vendee in this case do not stand at arms length as in ordinary transactions. It would be idle mockery for the customer to make an examination of a compound of which he can know nothing. Consequently, it must be that the druggist warrants that he will deliver the drug called for.

8. BPI v. CA Facts: A person purporting to be Eligia G. Fernando, who had a money market placement evidenced by a promissory note with a maturity date of November 11, 1981 and a maturity value of P2,462,243.19, called BPI's Money Market Department. The caller wanted to pre-terminate the placement. However, Reginaldo Eustaquio, Dealer Trainee in BPI's Money Market Department, told her that "trading time" was over for the day (Friday). He suggested that she call again the following week. The promissory note the caller wanted to preterminate was a roll-over of an earlier 50-day money market placement that had matured on September 24, 1981. Later that afternoon, Eustaquio conveyed the request for pretermination to the officer who before had handled Fernando's account, Penelope Bulan, but Eustaquio was left to attend to the pretermination process. The caller presenting herself as Ms. Fernando phoned again and made a follow-up with Eustaquio the pretermination of the placement. Although Eustaquio was not familiar with the voice of the real Eligia G. Fernando, Eustaquio "made certain" that the caller was the real Eligia G. Fernando by "verifying" the details the caller gave with the details in "the ledger/folder" of the account. But neither Eustaquio nor Bulan who originally handled Fernando's account, nor anybody else at BPI, bothered to call up Fernando at her Philamlife office to verify the request for pretermination. Informed that the placement would yield less than the maturity value, the caller insisted on the pretermination just the same and asked that two checks be issued for the proceeds, one for P1,800,000.00 and the second for the balance, and that the checks be delivered to her office at Philamlife. Eustaquio, thus, proceeded to prepare the "purchase order slip" for the requested pretermination as required by office procedure. From his desk, the papers, following the processing route, passed through the position analyst, securities clerk, verifier clerk and documentation clerk, before the two cashier's checks were prepared. The two cashier's checks, together with the papers consisting of the money market placement was to be preterminated and the promissory note to be preterminated, were sent to Gerlanda E. de Castro and Celestino Sampiton, Jr., Manager and Administrative Assistant, respectively, in BPI's Treasury Operations Department, both authorized signatories for BPI, who signed the two checks that very morning. Thereafter, the checks went to the dispatcher for delivery. In the same morning when the checks were to be delivered, the caller changed the delivery instructions; instead that the checks were to be delivered to her office at Philamlife, she would pick the checks up herself or send her niece, Rosemarie Fernando, to pick them up. Eustaquio then told the caller that if her niece was going to get the checks, her niece would have to being a written authorization from her. It was agreed that Rosemarie would pick the checks up from the bank. Thus, Eustaquio hurriedly went to the dispatcher to inform him of the new delivery instructions for the checks; in fact, he changed the delivery instruction on the purchase order slip, writing thereon "Rosemarie Fernando release only with authority to pick up.

It was, in fact Rosemarie who got the two checks from the dispatcher, as shown by the delivery receipt. As it turned out, the same person impersonated both Eligia G. Fernando and Rosemarie Fernando. Although the checks represented the termination proceeds of Fernando's placement, not just a roll-over of the placement, the dispatcher failed to require the surrender of the promissory note evidencing the placement. There is also no showing that Fernando's purported signature on the letter requesting the pretermination and the latter authorizing Rosemarie to pick up the two checks was compared or verified with Fernando's signature in BPI's file. Such purported signature has been established to be forged although there was a "close similarity" to the real signature of Eligia G. Fernando. On a different day, a woman who represented herself to be Eligia G. Fernando applied at China Banking Corporation's Head Office for the opening of a current account. She was accompanied and introduced to Emily Sylianco Cuaso, Cash Supervisor, by Antonio Concepcion whom Cuaso knew to have opened, earlier that year, an account. What Cuaso indicated in the application form, however, was that Fernando was introduced by Valentin Co, and with her initials on the form signifying her approval, she referred the application to the New Accounts Section for processing. The application form shows the signature of "Eligia G. Fernando", "her" date of birth, sex, civil status, nationality, occupation ("business woman"), tax account number, and initial deposit of P10,000.00. This final approval of the new current account is indicated on the application form by the initials of the cashier, who did not interview the new client but affixed her initials on the application form after reviewing it. The woman holding herself out as Eligia G. Fernando deposited the two checks in controversy. Her endorsement on the two checks was found to conform with the depositor's specimen signature. CBC's guaranty of prior endorsements and/or lack of endorsement was then stamped on the two checks, which CBC forthwith sent to clearing and which BPI cleared on the same day. Two days after, withdrawals began. The maturity date of Eligia G. Fernado's money market placement with BPI came and the real Eligia G. Fernando went to BPI for the roll-over of her placement. She disclaimed having preterminated her placement. She then executed an affidavit stating that while she was the payee of the two checks in controversy, she never received nor endorsed them and that her purported signature on the back of the checks was not hers but forged. With her surrender of the original of the promissory note evidencing the placement which matured that day, BPI issued her a new promissory note to evidence a roll-over of the placement. BPI returned the two checks in controversy to CBC as supported by Eligia G. Fernando's affidavit, for the reason "Payee's endorsement forged". CBC, in turn, returned the checks for reason "Beyond Clearing Time". These incidents led to the filing of this case with the Arbitration Committee. The Arbitration Committee ruled in favor of BPI and ordered CBC to pay the former with interest. - However, upon CBCs motion for reconsideration, the Board of Directors of the PCHC reversed the Arbitration Committee's decision and dismissed the complaint of BPI while ordering it to pay CBC. BPI then filed a petition for review with the Regional Trial Court which dismissed said petition but modified the award by including a provision for attorneys fees in favor of CBC, among others. The court of appeals affirmed the trial courts decision.

ISSUES: Who between BPI and CBC should be held liable? Whose negligence was the proximate cause of the payment of the forged checks made by the impostor?

HELD: In the present petition, Fernandos name in the checks were forged. The checks are "wholly inoperative" and of no effect. However, the underlying circumstances of the case show that the general rule on forgery is not applicable. The issue as to who between the parties should bear the loss in the payment of the forged checks necessities the determination of the rights and liabilities of the parties involved in the controversy in relation to the forged checks. The records show that petitioner BPI, as drawee bank and CBC as representing or collecting bank were both negligent resulting in the encashment of the forged checks. The Arbitration Committee in its decision, analyzed the negligence of the employees of BPI involved who are involved in the processing of the pre-termination of Fernando's money market placement and in the issuance and delivery of the subject checks. A) The impostor could have been readily unmasked by a mere telephone call, which nobody in BPI bothered to make to Fernando; b) The officer who used to handle Fernando's account did not do anything about the account's pre-termination; c) Again no verification appears to have been made on Fernando's purported signature on the letter requesting the pretermination and the letter authorizing her niece to pick-up the checks, yet, her signature was in BPI's file; and d) the surrender of the promissory note evidencing the money market placement that was supposedly pre-terminated. The Arbitration Committee, however, belittled BPI's negligence compared to that of CBC which it declared as graver and the proximate cause of the loss of the subject checks to the impostor. Banks handle daily transactions involving millions of pesos. By the very nature of their work the degree of responsibility, care and trustworthiness expected of their employees and officials is far greater than those of ordinary clerks and employees. For obvious reasons, the banks are expected to exercise the highest degree of diligence in the selection and supervision of their employees. In the present case, there is no question that the banks were negligent in the selection and supervision of their employees. The Arbitration Committee, the PCHC Board of Directors and the lower court, however disagree in the evaluation of the degree of negligence of the banks. While the Arbitration Committee declared the negligence of respondent CBC graver, the PCHC Board of Directors and the lower courts declared that BPI's negligence was graver. To the extent that the degree of negligence is equated to the proximate cause of the loss, we rule that the issue as to whose negligence is graver is relevant. No matter how many justifications both banks present to avoid responsibility, they cannot erase the fact that they were both guilty in not exercising extraordinary diligence in the selection and supervision of their employees. The next issue hinges on whose negligence was the proximate cause of the payment of the forged checks by an impostor. BPI insists that the doctrine of last clear chance should have been applied considering the circumstances of this case. Under this doctrine, where both parties were negligent and such negligence were not contemporaneous, the person who has the last fair chance to avoid the impending harm and fails to do so is chargeable with the consequences, without reference to the prior negligence of the other party.

Applying these principles, BPI's reliance on the doctrine of last clear chance to clear it from liability is not well-taken. CBC had no prior notice of the fraud perpetrated by BPI's employees on the pretermination of Eligia G. Fernando's money market placement. Moreover, Fernando is not a depositor of CBC. Hence, a comparison of the signature of Eligia G. Fernando with that of the impostor Eligia G. Fernando, which CBC did, could not have resulted in the discovery of the fraud. Hence, respondent CBC had no way to discover the fraud at all. In fact, the records fail to show that respondent CBC had knowledge, actual or implied, of the fraud perpetrated by the impostor and the employees of BPI. BPI further argues that the acts and omissions of are the cause "that set into motion the actual and continuous sequence of events that produced the injury and without which the result would not have occurred." BPI anchors its argument on its stance that there was "a gap, a hiatus, an interval between the issuance and delivery of said checks by BPI to the impostor and their actual payment of CBC to the impostor. BPI points out that the gap of one (1) day that elapsed from its issuance and delivery of the checks to the impostor is material on the issue of proximate cause. At this stage, according to BPI, there was yet no loss and the impostor could have decided to desist from completing the same plan and could have held to the checks without negotiating them. BPI's contention that CBC alone should bear the loss must fail. The gap of one (1) day between the issuance and delivery of the checks bearing the impostor's name as payee and the impostor's negotiating the said forged checks by opening an account and depositing the same with respondent CBC is not controlling. It is not unnatural or unexpected that after taking the risk of impersonating Eligia G. Fernando with the connivance of BPI's employees, the impostor would complete her deception by encashing the forged checks. There is therefore, greater reason to rule that the proximate cause of the payment of the forged checks by an impostor was due to the negligence of BPI. This finding, notwithstanding, we are not inclined to rule that BPI must solely bear the loss. Due care on the part of CBC could have prevented any loss. The Court cannot ignore the fact that the CBC employees closed their eyes to the suspicious circumstances of huge over-the-counter withdrawals made immediately after the account was opened. The opening of the account itself was accompanied by inexplicable acts clearly showing negligence. And while we do not apply the last clear chance doctrine as controlling in this case, still the CBC employees had ample opportunity to avoid the harm which befell both CBC and BPI. They let the opportunity slip by when the ordinary prudence expected of bank employees would have sufficed to seize it. Both banks were negligent in the selection and supervision of their employees resulting in the encashment of the forged checks by an impostor. Both banks were not able to overcome the presumption of negligence in the selection and supervision of their employees. It was the gross negligence of the employees of both banks which resulted in the fraud and the subsequent loss. While it is true that BPI's negligence may have been the proximate cause of the loss, CBC's negligence contributed equally to the success of the impostor in encashing the proceeds of the forged checks. Under these circumstances, we apply Article 2179 of the Civil Code to the effect that while CBC may recover its losses, such losses are subject to mitigation by the courts.

INTOXICATION

9. E.M. Wright V Manila Electric R.R. & Light Co. FACTS: Manila Electric is a corporation engaged in operating an electric street railway. Wrights residence in Caloocan fronts on the street along which defendants tracks run. To enter his premises from the street, Wright must cross defendants tracks. One night, Wright drove home in a calesa and in crossing the tracks to enter the premises of his home, the horse stumbled, leaped forward, and fell, throwing the Wright from the vehicle, causing injuries. On the location where Wright crossed the tracks, the rails were above-ground, and the ties upon which the rails rested projected from one-third to one-half of their depth out of the ground, making the tops of the rails some 5 or 6 inches or more above the level of the street. Manila Electric admitted that it was negligent in maintaining its tracks, but it also claimed that Wright was also negligent in that he was so intoxicated, and such intoxication was the primary cause of the accident. The trial court held that both parties were negligent, but that plaintiffs negligence was not as great as defendants. It awarded Wright damages.

ISSUE: Whether or not the negligence of Wright contributed to the principal occurrence or only to his own injury.

HELD: NO. Intoxication in itself is not negligence. It is but a circumstance to be considered with the other evidence tending to prove negligence. No facts, other than the fact that Wright was intoxicated, are stated which warrant the conclusion that the plaintiff was negligent. The conclusion that if he had been sober he would not have been injured is not warranted by the facts as found. It is impossible to say that a sober man would not have fallen from the vehicle under the conditions described. A horse crossing the railroad tracks with not only the rails but a portion of the ties themselves aboveground, stumbling by reason of the unsure footing and falling, the vehicle crashing against the rails with such force as to break a wheel, might be sufficient to throw a person from the vehicle no matter what his condition; and to conclude that, under such circumstances, a sober man would not have fallen while a drunken man did, is to draw a conclusion which enters the realm of speculation and guesswork. Wright was not negligent. No facts to merit a higher award of damages to plaintiff.

INSANITY

10. US vs. Baggay Facts: Several persons were assembled in Baggay's house to hold a song service called "buni." The Non-Christian Baggay without provocation, suddenly attacked a woman named Bil-liingan with a bolo, inflicting a serious wound on her head from which she died immediately. With the same bolo, he likewise inflicted various wounds on the women named Calabayan, Agueng, Quisamay, Calapini, and on his own mother, Dioalan. For this reason, the provincial fiscal filed a complaint in court charging Baggay with murder. After trial and proof that the defendant was suffering from mental aberration, the judge exempted Baggay from criminal liability but was obliged to indemnify the heirs of the murdered woman. The Baggay's counsel and his heirs appealed to this court.

ISSUES: (1) Whether or not an insane person, exempt from criminal liability can still be civilly liable. (2) Can the heirs of Baggay be held civilly liable?

HELD: (1) YES. Civil liability accompanies criminal liability, because every person liable criminally for a crime or misdemeanor is also liable for reparation of damage and for indemnification of the harm done. Civil liability may arise from acts ordinarily punishable under the penal law, although the law has declared their perpetrators exempt from criminal liability. Such is the case of a lunatic or insane person who, in spite of his irresponsibility on account of the deplorable condition of his deranged mind, is still reasonably and justly liable with his property for the consequences of his acts, even though they be performed unwittingly. His fellows ought not to suffer for the disastrous results of his harmful acts in spite of his unfortunate condition. Law and society are under obligation to protect him during his illness and so when he is declared to be liable with his property for reparation and indemnification, he is still entitled to the benefit of what is necessary for his decent maintenance, but this protection does not exclude liability for damage caused to those who may have the misfortune to suffer the consequences of his acts. (2) Yes. The persons who are civilly liable for acts committed by a lunatic or imbecile are those who have them under their authority, legal guardianship or power, unless they prove that there was no blame or negligence on their part. Should there be no person having them under his authority, legal guardian, or power, if such person be insolvent, the lunatic shall answer with his own property, excepting that part which is exempted for their support in accordance with the civil law.

DEGREE OF NEGLIGENCE

11. Marinduque vs.Workmens Compensation FACTS: A truck driven by Procopio Macunat, belonging to Marinduque Iron Mines, turned over and hit a coconut tree resulting in the death of Pedro Mamador and injury to the other laborers. Macunat was prosecuted, convicted and was sentenced to indemnify the heirs of the deceased. He paid nothing, however, to the latter. Madadors wife now seeks compensation by Marinduque Iron Mines as the employer.

ISSUES: (1) Whether or not Mamador has a right to be compensated by Marinduque Iron Mines. (2) Whether or not there was notorious negligence by Mamador for having violated the employers prohibition on riding haulage trucks.

HELD: YES. Marinduque Iron Mines alleged that the criminal case sentencing Macunat to indemnify the heirs of Mamador was a suit for damages against a third person, thereby having the effect of releasing the employer from liability. The criminal case, however, was not a suit for damages against third persons because the heirs did not intervene therein and they have not received the indemnity ordered by the court. At any rate, even if the case was against a third person, the court already decided in Nava vs. Inchausti that criminal prosecution of the "other person" does not affect the liability of the employer. Marunduque also contended that the amicable settlement entered into by Mamador's widow and Macunat barred the widow's claim against the employer because she has already elected one of the remedies. This contention cannot be sustained because what the widow waived was the offender's criminal prosecution and not all civil action for damages. 2. NO. Mere riding on a haulage truck or stealing a ride thereon is not negligence, ordinarily. It couldn't be, because transportation by truck is not dangerous per se. Although the employer prohibited its employees to ride the haulage trucks, its violation does not constitute negligence per se, but it may be an evidence of negligence. Under the circumstance, however, it cannot be declared negligence because the prohibition had nothing to do with the personal safety of the riders. Notorious negligence means the same as gross negligence which implies "conscious indifference to consequences, or "pursuing a course of conduct which would naturally and probably result in injury."

PROOF OF NEGLIGENCE

12. Layugan vs. IAC FACTS: Pedro Layugan testified that while he and his companion were repairing the tire of their cargo truck that was parked along the right side of the National Highway, Godofredo Isidros truck, recklessly driven by Daniel Serrano bumped Layugan. As a result, Layugan had his left leg amputated. Defendant Isidro admitted his ownership of the vehicle involved in the accident. Isidro said that Layugan was merely a bystander, not a truck helper being a brother-in-law of the driver of said truck; that the truck allegedly, while being repaired was parked, occupying almost half of the right lane right after the curve; that the proximate cause of the incident was the failure of the driver of the parked truck in installing the early warning device. Daniel Serrano, defendant driver, said that he knew the responsibilities of a driver; that before leaving, he checked the truck. The truck owner used to instruct him to be careful in driving. He bumped the truck being repaired by Layugan, while the same was at a stop. Serrano also testified that, When I was a few meters away, I saw the truck which was loaded with round logs. I stepped on my foot brakes but it did not function with my many attempts. I have (sic) found out later that the fluid pipe on the rear right was cut that's why the breaks did not function. Layugan, on the other hand, claims that a warning device consisting of the lighted kerosene lamp was placed 3-4 Meters from the back of the truck. Isidro points to the driver of parked truck as negligent, and says that absent such proof of care, it would, under the doctrine of res ipsa loquitur, there exists a presumption of negligence on the part of the driver of the parked cargo truck as well as his helper.

ISSUES 1. Whether or not defendant driver Serrano was negligent. ; 2. Whether or not the doctrine of res ipsa loquitur applies in this case.

HELD: 1. NO. The test by which to determine the existence of negligence in a particular case may be stated as follows: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence. Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. Applying the definition and the test, it is clear that the absence or want of care of Daniel Serrano has been established by clear and convincing evidence. Whether the cargo truck was parked along the road or on half of the shoulder of the road is immaterial taking into account the warning device consisting of the lighted kerosene lamp placed 3-4m from the back of the truck. But despite this warning, the Isuzu truck driven by Serrano, still bumped the rear of the parked cargo truck. As a direct consequence of such accident, Layugan sustained injuries on his left forearm and left foot. 2. NO. In our jurisdiction, Res ipsa loquitur as a rule of evidence is peculiar to the law of negligence which recognizes that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence. The doctrine is not a rule of substantive law but merely a mode of proof or a mere procedural convenience. The doctrine merely determines and regulates what shall be prima facie evidence thereof and facilitates the burden of plaintiff of proving a breach of the duty of due care. The doctrine can be invoked when and only when, under the circumstances involved, direct evidence is absent and not readily available. So, it is inapplicable where plaintiff has knowledge and testifies or presents evidence as to the specific act of negligence which is the cause of the injury, or where theres direct evidence as to the precise cause of the accident and all the facts and circumstances attendant on the occurrence clearly appear. And once the actual cause of injury is established beyond controversy, no presumptions will be involved and the doctrine becomes inapplicable when the circumstances show that no inference of defendant's liability can reasonably be made, whatever the source of the evidence. In this case, it is inapplicable because it was established by clear and convincing evidence the negligence of the defendant driver.

13. RAMOS VS CAFacts: Erlinda Ramos was a robust woman except for occasional complaints of discomfort due to pains caused by the presence of a stone in her gall bladder. She was advised to undergo an operation for the removal of the stone in her gall bladder. She underwent a series of examinations which included blood and urine tests which indicated she was fit for surgery. She and her husband, Rogelio, met Dr. Hozaka, one of the defendants in this case, for the first time. They agreed on the date of the operation and the doctor decided that she undergo a cholecystectomy operation. Erlinda was admitted in the hospital and was accompanied by her sister-in-law, Herminda Cruz. At the operating room, Cruz saw about two or three nurses and Dr. Perfecta Gutierrez, the other defendant, who was to administer the anesthesia. Although not a member of the hospital staff, Herminda Cruz introduced herself as the Dean of the College of Nursing at the Capitol Medical Center and was allowed to stay inside the operating room. Hours later, Cruz, who was inside the operating room with the patient, heard somebody say Dr. Hosaka is already here. As she held the hand of Erlinda, she then saw Dr. Gutierrez intubating the hapless patient. She thereafter heard Dr. Gutierrez say, ang hirap maintubate nito, mali yata ang pagkakapasok. O lumalaki ang tiyan. Due to the remarks of Dr. Gutierrez, she focused her attention on what Dr. Gutierrez was doing. She noticed a bluish discoloration of the nailbeds of the left hand of Erlinda. Cruz then heard Dr. Hosaka issue an order for someone to call Dr. Calderon, another anesthesiologist. After Dr. Calderon arrived in the operating room, Cruz saw him trying to intubate Erlinda. Erlindas nailbed became bluish and the patient was placed in a trendelenburg position. Immediately, thereafter, Cruz went out of the operating room, and told Erlindas husband (her brother) that something wrong was happening. Cruz immediately rushed back, and saw Erlinda was still in trendelenburg position. On that fateful day, she saw Erlinda taken to the Intensive Care Unit (ICU). Erlinda stayed for about four months in the hospital and has been in a comatose condition. When asked by the hospital to explain what happened to the patient, Doctors Gutierrez and Hosaka explained that the patient had bronchospasm. After being discharged from the hospital, she has been staying in their residence, still needing constant medical attention, with her husband Rogelio incurring monthly expenses. She was diagnosed to be suffering from diffuse cerebral parenchymal damage. The Ramoses filed a civil case for damages against the private respondents alleging negligence in the management and care of Erlinda Ramos.

ISSUES: (1) Whether or not the doctrine of res ipsa loquitur is applicable. (2) Whether or not private respondents were negligent in the care of Erlinda during the anesthesia phase of the operation and, if in the affirmative, whether the alleged negligence was the proximate cause of Erlindas comatose condition. (3) Is the hospital liable?

Held: YES. The doctrine of res ipsa loquitur is appropriate in the case at bar. As will hereinafter be explained, the damage sustained by Erlinda in her brain prior to a scheduled gall bladder operation presents a case for the application of the doctrine. In holding that res ipsa loquitur is available to the present case we are not saying that the doctrine is applicable in any and all cases where injury occurs to a patient while under anesthesia, or to any and all anesthesia cases. Each case must be viewed in its own light and scrutinized in order to be within the res ipsa loquitur coverage. Res ipsa loquitur is a Latin phrase which literally means the thing or the transaction speaks for itself. The phrase res ipsa loquitur is a maxim for the rule that the fact of the occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a presumption of negligence, or make out a plaintiffs prima facie case, and present a question of fact for defendant to meet with an explanation. However, res ipsa loquitur is not a rule of substantive law and, as such, does not create or constitute an independent or separate ground of liability. Instead, it is considered as merely evidentiary or in the nature of a procedural rule. Mere invocation and application of the doctrine does not dispense with the requirement of proof of negligence. It is simply a step in the process of such proof. Still, before resort to the doctrine may be allowed, the following requisites must be satisfactorily shown: 1.The accident is of a kind which ordinarily does not occur in the absence of someones negligence; 2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and 3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated. In the above requisites, the fundamental element is the control of the instrumentality which caused the damage. Such element of control must be shown to be within the dominion of the defendant. But it does not automatically apply to all cases of medical negligence as to mechanically shift the burden of proof to the defendant to show that he is not guilty of the ascribed negligence. The real question, therefore, is whether or not in the process of the operation any extraordinary incident or unusual event outside of the routine performance occurred. If there were such extraneous interventions, the doctrine of res ipsa loquitur may be utilized and the defendant is called upon to explain the matter, by evidence of exculpation, if he could. (2) YES. Private respondents were unable to disprove the presumption of negligence on their part. Their negligence was the proximate cause of her condition. Dr. Gutierrez failed to properly intubate the patient. She admitted that she saw Erlinda for the first time on the day of the operation. And no prior consultations with, or pre-operative evaluation of Erlinda was done by her. She was unaware of the physiological make-up and needs of Erlinda. This is an act of exceptional negligence and professional irresponsibility. Private respondents repeatedly hammered the view that the cerebral anoxia which led to Erlindas coma was due to bronchospasm mediated by her allergic response to a drug introduced into her system. Proximate cause has been defined as that which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred. Respondent Dr. Hosakas negligence can be found in his failure to exercise the proper authority (as the captain of the operative team) in not determining, if his anesthesiologist observed proper anesthesia protocols. No evidence on record exists to show that Dr. Hosaka verified if respondent Dr. Gutierrez properly intubated the patient. Furthermore, it does not escape us that respondent Dr. Hosaka had scheduled another procedure in a different hospital at the same time as Erlindas cholecystectomy, and was in fact over three hours late for the latters operation. Because of this, he had little or no time to confer with his anesthesiologist regarding the anesthesia delivery. (3) We now discuss the responsibility of the hospital. The unique practice (among private hospitals) of filling up specialist staff with attending and visiting consultants, who are allegedly not hospital employees, presents problems in apportioning responsibility for negligence in medical malpractice cases. The truth is, Private hospitals, hire, fire and exercise real control over their attending and visiting consultant staff. While consultants are not, technically employees, a point which respondent hospital asserts in denying all responsibility for the patients condition, the control exercised, the hiring, and the right to terminate consultants all fulfill the important hallmarks of an employer-employee relationship, with the exception of the payment of wages. The basis for holding an employer solidarily responsible for the negligence of its employee is found in Article 2180 of the Civil Code which considers a person accountable not only for his own acts but also for those of others based on the formers responsibility under a relationship of patria potestas. Such responsibility ceases when the persons or entity concerned prove that they have observed the diligence of a good father of the family to prevent damage. In other words, while the burden of proving negligence rests on the plaintiffs, once negligence is shown, the burden shifts to the respondents (parent, guardian, teacher or employer) who should prove that they observed the diligence of a good father of a family to prevent damage. In the instant case, respondent hospital, apart from a general denial of its responsibility over respondent physicians, failed to adduce evidence showing that it exercised the diligence of a good father of a family in the hiring and supervision of the latter. Upon these disquisitions we hold that private respondents are solidarily liable for damages under Article 2176 of the Civil Code.

14. BATIQUIN VS CAFacts: Mrs. Villegas consulted Dr. Batiquin for prenatal care. Dr. Batiquin, along with other physicians and nurses, performed a caesarian operation on Mrs. Villegas and successfully delivered the latters baby. After leaving the hospital, Mrs. Villegas began to suffer abdominal pains and complained of being feverish. She also gradually lost appetite, so she consulted Dr. Batiquin at the latter's polyclinic who prescribed certain medicines for her. However, the pains still kept recurring. She then consulted Dr. Ma. Salud Kho. After examining her, Dr. Kho suggested that Mrs. Villegas submit to another surgery. When Dr. Kho opened the abdomen of Mrs. Villegas she found whitish-yellow discharge inside, an ovarian cyst on each of the left and right ovaries which gave out pus, dirt and pus behind the uterus, and a piece of rubber which appeared to be a part of a rubber glove. This was the cause of the infection of the ovaries the discomfort suffered by Mrs. Villegas. The piece of rubber allegedly found was not presented in court. There were also doubts as to the whereabouts of the piece of rubber, as 2 versions arose from Dr. Khos testimony: 1) that he sent it to a Pathologist in Cebu and (2) he threw it away. But aside from Dr. Kho's testimony, the Medical Certificate, the Progress Record, the Anesthesia Record, the Nurse's Record, and the Physician's Discharge Summary mentioned the piece of rubber. The trial court, however, regarded these documentary evidence as mere hearsay, since those who prepared them did not testify in court. The trial court ruled in favor of the defendants. The CA reversed the decision.

Issues: Whether or not Dr. Batiquin could be held liable under the doctrine of res ipsa loquitur.

Held: While Dr. Batiquin claims that contradictions and falsities punctured Dr. Kho's testimony, a reading of said testimony reveals no such infirmity and establishes Dr. Kho as a credible witness. Dr. Batiquin failed to impute any motive for Dr. Kho to state any untruth, leaving her trustworthiness unimpaired. Considering that we have assessed Dr. Kho to be a credible witness, the rule of res ipsa loquitur comes to fore. In the instant case, all the requisites for recourse to the doctrine are present. First, the entire proceedings of the cesarean section were under the exclusive control of Dr. Batiquin. In this light, the Dr. Batiquin were bereft of direct evidence as to the actual culprit or the exact cause of the foreign object finding its way into private respondent Villegas' body, which, needless to say, does not occur unless through the intervention of negligence. Second, since aside from the cesarean section, Villegas underwent no other operation which could have caused the offending piece of rubber to appear in her uterus, it stands to reason that such could only have been a byproduct of the cesarean section performed by Dr. Batiquin. Dr. Batiquin failed to overcome the presumption of negligence arising from resort to the doctrine of res ipsa loquitur. Dr. Batiquin is therefore liable for negligently leaving behind a piece of rubber in private respondent Villegas' abdomen and for all the adverse effects thereof.

15. DM CONSUNJI VS CAFacts: Jose Juego, a construction worker of D. M. Consunji, Inc., fell 14 floors from the Renaissance Tower, Pasig City to his death. Investigation disclosed that while victim Jose A. Juego together with Jessie Jaluag and Delso Destajo were performing their work on board a steel platform with plywood flooring and cable wires attached to its four corners and hooked at the 5 ton chain block, when suddenly, the bolt or pin which was merely inserted to connect the chain block with the platform came loose causing the whole platform assembly and the victim to fall down to the basement of the elevator core of the building under construction, save his 2 companions who luckily jumped out for safety. Jose Juegos widow, Maria, filed with the RTC a complaint for damages against D.M. Consunji, Inc. The employer raised, among other defenses, the widows prior availment of the benefits from the State Insurance Fund. The RTC rendered a decision in favor of the widow. On appeal by D. M. Consunji, the CA affirmed the decision of the RTC in toto.

Issue: Whether or not the doctrine of res ipsa loquitur is applicable to prove DM Consunjis negligence

Held: YES. As a rule of evidence, the doctrine of res ipsa loquitur is peculiar to the law of negligence which recognizes that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of negligence. It is based in part upon the theory that the defendant in charge of the instrumentality which causes the injury either knows the cause of the accident or has the best opportunity of ascertaining it and that the plaintiff has no such knowledge, and therefore is compelled to allege negligence in general terms and to rely upon the proof of the happening of the accident in order to establish negligence. Res ipsa loquitur is a rule of necessity and it applies where evidence is absent or not readily available, provided the following requisites are present: (1) the accident was of a kind which does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency which caused the injury was under the exclusive control of the person charged with negligence; and (3) the injury suffered must not have been due to any voluntary action or contribution on the part of the person injured. No worker is going to fall from the 14th floor of a building to the basement while performing work in a construction site unless someone is negligent; thus, the first requisite is present. As explained earlier, the construction site with all its paraphernalia and human resources that likely caused the injury is under the exclusive control and management of appellant; thus, the second requisite is also present. No contributory negligence was attributed to the appellees deceased husband; thus, the last requisite is also present. A reasonable presumption or inference of appellants negligence arises. Regrettably, petitioner does not cite any evidence to rebut the inference or presumption of negligence arising from the application of res ipsa loquitur, or to establish any defense relating to the incident.

DEFENSES- PLAINTIFFS NEGLIGENCE

16. MANILA ELECTRIC CO VS REMONQUILLOFacts: Efren Magno went to the house of Antonio Pealoza, his stepbrother, to repair a leaking media agua. The media agua was just below the window of the third floor of his stepbrothers house. Standing on said media agua, Magno received from his son thru the window a galvanized iron sheet to cover the leaking portion. The lower end of the iron sheet came into contact with the electric wire of Manila Electric Company parallel to the media agua, causing his death by electrocution. Magnos widow and children filed suit to recover damages from the company. Trial court rendered judgment in their favor. Court of Appeals affirmed the decision. The electric wire in question was an exposed, uninsulated primary wire stretched between poles on the street and carrying a charge of 3600 volts. It was installed there some two years ago before Pealozas house was constructed. During the construction of said house a similar incident took place, with less tragic consequences. The owner of the house complained to the defendant about the danger which the wire presented, and defendant moved one end of the wire farther from the house by means of a brace, but left the other end where it was. Regulations of the City required that all wires be kept three feet from the building.There was no insulation that could have rendered it safe, because there is no insulation material in commercial use for such kind of wire (according to appellant, and this was not refuted).

ISSUE: Whether or not Manila Electric is guilty of negligence.

HELD: NO. It was the victim who was guilty of negligence. The liability of electric companies for damages or personal injury is governed by the rules of negligence. Nevertheless such companies are not insurers of the safety of the public. The death of Magno was primarily caused by his own negligence, and in some measure by the too close proximity of the media agua to the electric wire of the company by reason of the violation of the original permit given by the city and the subsequent approval of said illegal construction of the media agua. The company cannot be expected to be always on the lookout for any illegal construction which reduces the distance between its wires and said construction, and to change the installation of its wires so as to preserve said distance. The violation of the permit for the construction was not the direct cause of the accident. It merely contributed to it. The real cause of the accident or death was the reckless or negligent act of Magno himself. It is to be presumed that due to his age and experience he was qualified to do so. He had training and experience for the job. He could not have been entirely a stranger to electric wires and the danger lurking in them.

17. BERNARDO VS LEGASPIFacts: Due to a collision between the respective automobiles of Juan Bernardo and M.B Legaspi, the former filed an action to recover damages for injuries sustained by his car. Legaspi, on the other hand, filed a cross-complaint alleging it was Bernardo's fault. He also asks for damages. The lower court found upon that both the plaintiff and the defendant were negligent in handling their automobiles and that said negligence was of such a character and extent on the part of both as to prevent either from recovering. ISSUE Whether or not the parties may recover damages HELD: NO. Where two automobiles, going in opposite directions, collide on turning a street corner, and it appears from the evidence and is found by the trial court that the drivers thereof were equally negligent and contributed equally to the principal occurrence as determining causes thereof, neither can recover of the other for damages suffered.

18. Bernal vs. House Facts: Fortunata Enverso with her daughter, Purificacion Bernal went to Tacloban, Leyte to attend the procession on Holy Friday. After the procession, accompanied by two other persons, they passed along a public street. Purificacion was allowed to get a short distance in advance of her mother and her friends. While in front of the offices of the Tacloban Electric & Ice Plant, Ltd., an automobile appeared which frightened the child. She turned to run, but fell into the street gutter. At that time there was hot water running in the gutter coming from the Electric Ice Plant of J.V. House. When the mother and her companions reached the child, they found her face downward in the hot water. The girl was taken to the provincial hospital. Despite his efforts, the child died that same night. It was certified that the cause of death was "Burns, 3rd Degree, whole Body", and that the contributory causes were "Congestion of the Brain and visceras of the chest & abdomen. The defense was that the hot water was permitted to flow down the side of the street with the knowledge and consent of the authorities and that the cause of death was other than the hot water; and that in the death the plaintiffs contributed by their own fault and negligence. The trial judge dismissed the action because of the contributory negligence of the plaintiffs. Issue: Whether or not the action should be dismissed due to the contributory negligence of the plaintiffs Held: NO. The death of the child was the result of fault and negligence in permitting hot water to flow through the public streets, endangering the lives of passers-by who were unfortunately enough to fall into it. The mother and her child had a perfect right to be on the street on the evening when the religious procession was held. There was nothing abnormal in allowing the child to run along a few paces in advance of the mother. No one could foresee the coincidence of an automobile appearing and of a frightened child running and falling into a ditch filled with hot water. . The contributory negligence of the child and her mother, if any, does result not operate as a bar to recovery, but in its strictest sense could only in reduction of the damages.

19. PLDT vs. CAFACTS: The jeep of Spouses Esteban ran over a mound of earth and fell into an open trench, an excavation allegedly undertaken by PLDT for the installation of its underground conduit system. The Spouses Estebans complaint alleged that Antonio Esteban failed to notice the open trench which was left uncovered because of the creeping darkness and the lack of any warning light or signs. Gloria Esteban allegedly sustained injuries on her arms, legs and face, leaving a permanent scar on her cheek, while the respondent husband suffered cut lips. The windshield of the jeep was also shattered. PLDT, in its answer, denies liability on the contention that the injuries sustained by Spouses Esteban were the result of their own negligence and that the entity which should be held responsible, if at all, is L.R. Barte and Company, an independent contractor which undertook the said construction work. The trial court ruled in favor of Esteban spouses whereas the CA reversed the ruling.

Issue: Whether or not the Estebans can claim damages from PLDT.

Held: NO. A person claiming damages for the negligence of another has the burden of proving the existence of such fault or negligence causative thereof. The facts constitutive of negligence must be affirmatively established by competent evidence. The accident was due to the lack of diligence of Antonio Esteban and was not imputable to the negligent omission on the part of petitioner PLDT. The jeep was running along the inside lane of Lacson Street. If it had remained on that inside lane, it would not have hit the accident mound. That plaintiffs jeep was on the inside lane before it swerved to hit the accident mound could have been corroborated by a picture showing Lacson Street to the south of the accident mound. Plaintiffs jeep was not running at 25 kilometers an hour as plaintiff husband claimed. At that speed, he could have stepped on the brakes the moment it struck the accident mound. The above findings clearly show that the negligence of Antonio Esteban was not only contributory to his injuries and those of his wife but goes to the very cause of the occurrence of the accident, as one of its determining factors, and thereby precludes their right to recover damages.

CONTRIBUTORY NEGLIGENCE

20. Genobiagon vs. Court of Appeals FACTS: On Dec 31, 1959, at about 7:30 PM, a rig driven by Genobiagon bumped an old woman who was crossing the street. The appellant's rig was following another at a distance of two meters. The old woman started to cross when the first rig was approaching her, but as appellant's vehicle was going so fast not only because of the steep down-grade of the road, but also because he was trying to overtake the rig ahead of him, the appellant's rig bumped the old woman, who fell at the middle of the road. The appellant continued to drive on, but a by-stander Mangyao saw the incident and shouted at the appellant to stop. He ran after appellant when the latter refused to stop. Overtaking the appellant, Mangyao asked him why he bumped the old woman and his answer was, 'it was the old woman that bumped him.' The appellant went back to the place where the old woman was struck by his rig. The old woman was unconscious. She was then loaded in a jeep and brought to the hospital where she died 3 hours later.. Genobiagon was convicted of homicide thru reckless imprudence. CA affirmed. Genobiagon claims CA erred in not finding that the reckless negligence of the victim was the proximate cause of the accident which led to her death/

ISSUES: WON contributory negligence can be used as defense by Genobiagon

HELD: NO. The alleged contributory negligence of the victim, if any, does not exonerate the accused. "The defense of contributory negligence does not apply in criminal cases committed through reckless imprudence, since one cannot allege the negligence of another to evade the effects of his own negligence. Disposition the appealed decision is affirmed with modification as to the civil liability of the petitioner which is hereby increased to P30,000. Costs against petitioner. fact provides that indemnity for death in homicide or murder is 30,000 (at present 50,000, this case was decided in 1989).

21. Rakes vs. Atlantic Facts: The plaintiff Rakes, 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 Atlantic, 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. In order to charge the defendant with negligence, it was necessary to show a breach of duty on its part in failing either to properly secure the load on iron to vehicles transporting it, or to skillfully build the tramway or to maintain it in proper condition, or to vigilantly inspect and repair the roadway as soon as the depression in it became visible. It is upon the failure of the defendant to repair the weakened track, after notice of its condition, that the judge below based his judgment. In respect of the second charge of negligence against the plaintiff, the judgment below is not so specific. While the judge remarks that the evidence does not justify the finding that the car was pulled by means of a rope attached to the front end or to the rails upon it, and further that the circumstances in evidence make it clear that the persons necessary to operate the car could not walk upon the plank between the rails and that, therefore, it was necessary for the employees moving it to get hold upon it as best they could, there is no specific finding upon the instruction given by the defendant to its employees to walk only upon the planks, nor upon the necessity of the plaintiff putting himself upon the ties at the side in order to get hold upon the car.

Issue: Whether or not there was contributory negligence on the part of Rakes.

Held: 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. Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered immediate causes of the accident. The test is simple. Distinction must be between the accident and the injury, between the event itself, without which there could have been no accident, and those acts of the victim not entering into it, independent of it, but contributing under review was the displacement of the crosspiece or the failure to replace it. this produced the event giving occasion for damages that is, the shinking of the track and the sliding of the iron rails. To this event, the act of the plaintiff in walking by the side of the car did not contribute, although it was an element of the damage which came to himself. Had the crosspiece been out of place wholly or partly thorough his act of omission of duty, the last would have been one of the determining causes of the event or accident, for which he would have been responsible. Where he contributes to the principal occurrence, as one of its determining factors, he cannot recover. Where, in conjunction with the occurrence, he contributes only to his own injury, he may recover the amount that the defendant responsible for the event should pay for such injury, less a sum deemed a suitable equivalent for his own imprudence.

22. PHILIPPINE BANK OF COMMERCE VS CAFacts: Rommel's Marketing Corporation (RMC) maintained two separate current accounts with the Pasig Branch of PBCom in connection with its business of selling appliances. From May 5, 1975 to July 16, 1976, Romeo Lipana, RMCs GM, claims to have entrusted RMC funds in the form of cash totaling P304,979.74 to his secretary, Irene Yabut, for the purpose of depositing said funds to RMCs account with PBCom. It turned out, that these deposits were not credited to RMC's account but were instead deposited to the PBCom account of Yabut's husband, Bienvenido Cotas. Irene Yabut would accomplish two copies of the deposit slip, an original and a duplicate. The original showed the name of her husband as depositor and his current account number. On the duplicate copy was written the account number of her husband but the name of the account holder was left blank. PBC's teller, Azucena Mabayad, would validate and stamp both the original and the duplicate of these deposit slips retaining only the original copy despite the lack of information on the duplicate slip. The second copy was kept by Irene Yabut allegedly for record purposes. After validation, Yabut would then fill up the name of RMC in the space left blank in the duplicate copy and change the account number written thereon and make it appear to be RMC's account number. She made her company believe that the amounts she deposited were being credited to its account when, in fact, they were being deposited in the account of her husband. During the entire period, PBCom had been regularly furnishing RMC with monthly statements showing its current account balances. Unfortunately, it was never the practice of Romeo Lipana to check these monthly statements reposing complete trust and confidence to PBCom and to his secretary. Upon discovery of the loss of its funds, RMC demanded from petitioner bank the return of its money.

Issue: Whether or not there was contributory negligence on the part of RMC.

Held: In the case at bench, there is no dispute as to the damage suffered by the private respondent (plaintiff in the trial court) RMC in the amount of P304,979.74. It is in ascribing fault or negligence which caused the damage where the parties point to each other as the culprit. Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would do. Picart v. Smith, provides the test by which to determine the existence of negligence in a particular case which may be stated as follows: Did the defendant in doing the alleged negligent act use that reasonable care and caution which an ordinarily prudent person would have used in the same situation? If not, then he is guilty of negligence. Applying the above test, it appears that the bank's teller, Ms. Azucena Mabayad, was negligent in validating, officially stamping and signing all the deposit slips prepared and presented by Ms. Yabut, despite the glaring fact that the duplicate copy was not completely accomplished contrary to the self-imposed procedure of the bank with respect to the proper validation of deposit slips, original or duplicate, as testified to by Ms. Mabayad herself. Negligence here lies not only on the part of Ms. Mabayad but also on the part of the bank itself in its lackadaisical selection and supervision of Ms. Mabayad. This was exemplified in the testimony of Mr. Romeo Bonifacio, then Manager of the Pasig Branch of the petitioner bank and now its Vice-President, to the effect that, while he ordered the investigation of the incident, he never came to know that blank deposit slips were validated in total disregard of the bank's validation procedures. It was this negligence of Ms. Azucena Mabayad, coupled by the negligence of the petitioner bank in the selection and supervision of its bank teller, which was the proximate cause of the loss suffered by the private respondent, and not the latter's act of entrusting cash to a dishonest employee, as insisted by the petitioners.

FORTITIOUS EVENT

23. JUNTILLA VS FUNTANAR

Facts: Juntilla was a passenger of a public utility jeepney, being driven by Defendant Berfol Camoro, enroute from Danao to Cebu City. The jeepney had fourteen (14) passengers in the back and three (3) at the front, one of whom was Juntilla. Upon reaching Mandaue City, the right rear tire of the jeepney exploded causing the vehicle to fall into a ditch and turn turtle. As consequence, Juntill