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G.R. No. 115024 February 7, 1996MA. LOURDES VALENZUELA,petitioner,

vs.

COURT OF APPEALS, RICHARD LI and ALEXANDER COMMERCIAL, INC.,respondents.

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G.R. No. 117944 February 7, 1996RICHARD LI,petitioner,

vs.

COURT OF APPEALS and LOURDES VALENZUELA,respondents.

D E C I S I O N

KAPUNAN, J.:These two petitions for review on certiorariunder Rule 45 of the Revised Rules of Court stem from an action to

recover damages by petitioner Lourdes Valenzuela in the Regional Trial Court of Quezon City for injuriessustained by her in a vehicular accident in the early morning of June 24, 1990. The facts found by the trial courtare succinctly summarized by the Court of Appeals below:

This is an action to recover damages based on quasi-delict, for serious physical injuries sustained in avehicular accident.

Plaintiff's version of the accident is a s follows: At around 2:00 in the morning of June 24, 1990, plaintiff

Ma. Lourdes Valenzuela was driving a blue Mitsubishi lancer with Plate No. FFU 542 from her

restaurant at Marcos highway to her home at Palanza Street, Araneta Avenue. She was travelling along

Aurora Blvd. with a companion, Cecilia Ramon, heading towards the direction of Manila. Before

reaching A. Lake Street, she noticed something wrong with her tires; she stopped at a lighted placewhere there were people, to verify whether she had a flat tire and to solicit help if needed. Having been

told by the people present that her rear right tire was flat and that she cannot reach her home in that car'scondition, she parked along the sidewalk, about 1-1/2 feet away, put on her emergency lights, alighted

from the car, and went to the rear to open the trunk. She was standing at the left side of the rear of her

car pointing to the tools to a man who will help her fix the tire when she was suddenly bumped by a

1987 Mitsubishi Lancer driven by defendant Richard Li and registered in the name of defendant

Alexander Commercial, Inc. Because of the impact plaintiff was thrown against the windshield of thecar of the defendant, which was destroyed, and then fell to the ground. She was pulled out from underdefendant's car. Plaintiff's left leg was severed up to the middle of her thigh, with only some skin and

sucle connected to the rest of the body. She was brought to the UERM Medical Memorial Center whereshe was found to have a "traumatic amputation, leg, left up to distal thigh (above knee)". She was

confined in the hospital for twenty (20) days and was eventually fitted with an artificial leg. The

expenses for the hospital confinement (P120,000.00) and the cost of the artificial leg (P27,000.00) were

paid by defendants from the car insurance.

In her complaint, plaintiff prayed for moral damages in t he amount of P1 million, exemplary damages in

the amount of P100,000.00 and other medical and related expenses amounting to a total of P180,000.00,including loss of expected earnings.

Defendant Richard Li denied that he was negligent. He was on his way home, travelling at 55 kph;

considering that it was raining, visibility was affected and the road was wet. Traffic was light. He

testified that he was driving along the inner portion of the right lane of Aurora Blvd. towards the

direction of Araneta Avenue, when he was suddenly confronted, in the vicinity of A. Lake Street, San

Juan, with a car coming from the opposite direction, travelling at 80 kph, with "full bright lights".

Temporarily blinded, he instinctively swerved to the right to avoid colliding with the oncoming vehicle,

and bumped plaintiff's car, which he did not see because it was midnight blue in color, with no parkinglights or early warning device, and the area was poorly lighted. He alleged in his defense that the left

rear portion of plaintiff's car was protruding as it was then "at a standstill diagonally" on the outer

portion of the right lane towards Araneta Avenue (par. 18, Answer). He confirmed the testimony of

plaintiff's witness that after being bumped the car of the plaintiff swerved to the right and hit another car

parked on the sidewalk. Defendants counterclaimed for damages, alleging that plaintiff was reckless or

negligent, as she was not a licensed driver.

The police investigator, Pfc. Felic Ramos, who prepared the vehicular accident report and the

the three cars involved in the accident, testified that the plaintiff's car was "near the sidew

witness did not remember whether the hazard lights of plaintiff's car were on, and did not notic

was an early warning device; there was a street light at the corner of Aurora Blvd. and F. Rom

100 meters away. It was not mostly dark, i.e. "things can be seen" (p. 16, tsn, Oct. 28, 1991).A witness for the plaintiff, Rogelio Rodriguez, testified that after plaintiff alighted from he

opened the trunk compartment, defendant's car came approaching very fast ten meters from t

the car was "zigzagging". The rear left side of plaintiff's car was bumped by the front right p

defendant's car; as a consequence, the plaintiff's car swerved to the right and hit the parked c

sidewalk. Plaintiff was thrown to the windshield of defendant's car, which was destroyed, an

under the car. He stated that defendant was under the influence of liquor as he could "smell it v

(pp. 43, 79, tsn, June 17, 1991).

After trial, the lower court sustained the plaintiff's submissions and found defendant Richard Li guiltynegligence and liable for damages under Article 2176 of the Civil Code. The trial court likewise held ACommercial, Inc., Li's employer, jointly and severally liable for damages pursuant to Article 2180. It or

defendants to jointly and severally pay the following amounts:1. P41,840.00, as actual damages, representing the miscellaneous expenses of the plaintiff as a

her severed left leg;

2. The sums of (a) P37,500.00, for the unrealized profits because of the stoppage of plaintiff's B

Conga restaurant three (3) weeks after the accident on June 24, 1990; (b) P20,000.00, a m

unrealized profits of the plaintiff in her Bistro La Conga restaurant, from August, 1990 until th

this judgment and (c) P30,000.00, a month for unrealized profits in plaintiff's two (2) beauty salJuly, 1990 until the date of this decision;

3. P1,000,000.00, in moral damages;4. P50,000.00, as exemplary damages;

5. P60,000.00, as reasonable attorney's fees; and

6. Costs.

As a result of the trial court's decision, defendants filed an Omnibus Motion for New Trial

Reconsideration, citing testimony in Criminal Case O.C. No. 804367 (People vs. Richard Li), te nding to the point of impact, as depicted by the pieces of glass/debris from the parties' cars, appeared to be at the the right lane of Aurora Blvd. The trial court denied the motion. Defendants forthwith filed an appeal

respondent Court of Appeals. In a Decision rendered March 30, 1994, the Court of Appeals found that t"ample basis from the evidence of record for the trial court's finding that the plaintiff's car was properly

the right, beside the sidewalk when it was bumped by defendant's car."1Dismissing the defendants' argum

the plaintiff's car was improperly parked, almost at the center of the road, the respondent court noted that

which was supposed to prove that the car was at or near center of the right lane was never presented d

trial of the case.2The respondent court furthermore observed that:

Defendant Li's testimony that he was driving at a safe speed of 55 km./hour is self serving; itcorroborated. It was in fact contradicted by eyewitness Rodriguez who stated that he was ou

beerhouse located at Aurora Boulevard after A. Lake Street, at or about 2:00 a.m. of June 24, 1

his attention was caught by a beautiful lady (referring to the plaintiff) alighting from her car and

the trunk compartment; he noticed the car of Richard Li "approaching very fast ten (10) met

from the scene"; defendant's car was zigzagging", although there were no holes and hazard

street, and "bumped the leg of the plaintiff" who was thrown against the windshield of defenda

causing its destruction. He came to the rescue of the plaintiff, who was pulled out fro

defendant's car and was able to say "hurting words" to Richard Li because he noticed that the lunder the influence of liquor, because he "could smell it very well" (p. 36, et.seq., tsn, June 17

He knew that plaintiff owned a bee rhouse in Sta. Mesa in the 1970's, but did not know either p

defendant Li before the accident.

In agreeing with the trial court that the defendant Li was liable for the injuries sustained by the plaintiff,

of Appeals, in its decision, however, absolved the Li's employer, Alexander Commercial, Inc. from any

towards petitioner Lourdes Valenzuela and reduced the amount of moral damages to P500,000.00.

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justification for exemplary damages, the respondent court allowed an award of P50,000.00 for the same, in

addition to costs, attorney's fees and the other damages. The Court of Appeals, l ikewise, dismissed the defendants'

counterclaims.3

Consequently, both parties assail the respondent court's decision by filing two separate petitions before this Court.

Richard Li, in G.R. No. 117944, contends that he should not be held liable for damages because the proximatecause of the accident was Ma. Lourdes Valenzuela's own negligence. Alternatively, he argues that in the event that

this Court finds him negligent, such negligence ought to be mitigated by the contributory negligence of

Valenzuela.

On the other hand, in G.R. No. 115024, Ma. Lourdes Valenzuela assails the respondent court's decision insofar as

it absolves Alexander Commercial, Inc. from liability as the owner of the car driven by Richard Li and insofar as it

reduces the amount of the actual and moral damages awarded by the trial court.4

As the issues are intimately related, both petitions are hereby consolidated.

It is plainly evident that the petition for review in G.R. No. 117944 raises no substantial questions of law. What it,in effect, attempts to have this Court review are factual findings of the trial court, as sustained by the Court ofAppeals finding Richard Li grossly negligent in driving the Mitsubishi Lancer provided by his company in the

early morning hours of June 24, 1990. This we will not do. As a general rule, findings of fact of the Court ofAppeals are binding and conclusive upon us, and this Court will not normally disturb such factual findings unless

the findings of fact of the said court are palpably unsupported by the evidence on record or unless the judgment

itself is based on a misapprehension of facts.5

In the first place, Valenzuela's version of the incident was fully corroborated by an uninterested witness, Rogelio

Rodriguez, the owner-operator of an establishment located just across the scene of the accident. On trial, he

testified that he observed a car being driven at a "very fast" speed, racing towards the general direction of AranetaAvenue.6Rodriguez further added that he was standing in front of his establishment, just ten to twenty feet away

from the scene of the accident, when he saw the car hit Valenzuela, hurtling her against the windshield of thedefendant's Mitsubishi Lancer, from where she eventually fell under the defendant's car. Spontaneously reacting to

the incident, he crossed the street, noting that a man reeking with the smell of liquor had alighted from the

offending vehicle in order to survey the incident.7Equally important, Rodriguez declared that he observed

Valenzuela's car parked parallel and very near the sidewalk,8contrary to Li's allegation that Valenzuela's car was

close to the center of the right lane. We agree that as between Li's "self-serving" asseverations and theobservations of a witness who did not even know the accident victim personally and who immediately gave astatement of the incident similar to his testimony to the investigator immediately after the incident, the latter's

testimony deserves greater weight. As the court emphasized:The issue is one of credibility and from Our own examination of the transcript, We are not prepared to

set aside the trial court's reliance on the testimony of Rodriguez negating defendant's assertion that he

was driving at a safe speed. While Rodriguez drives only a motorcycle, his perception of speed is not

necessarily impaired. He was subjected to cross-examination and no attempt was made to question .his

competence or the accuracy of his statement that defendant was driving "very fast". This was the same

statement he gave to the police investigator after the incident, as told to a newspaper report (Exh. "P").We see no compelling basis for disregarding his testimony.

The alleged inconsistencies in Rodriguez' testimony are not borne out by an examination of the

testimony. Rodriguez testified that the scene of the accident was across the street where his beerhouse is

located about ten to twenty feet away (pp. 35-36, tsn, June 17, 1991). He did not state that the accident

transpired immediately in front of his establishment. The ownership of the Lambingan se Kambingan is

not material; the business is registered in the name of his mother, but he explained that he owns the

establishment (p. 5, tsn, June 20, 1991). Moreover, the testimony that the streetlights on his side of

Aurora Boulevard were on the night the accident transpired (p. 8) is not necessarily contradictory to thetestimony of Pfc. Ramos that there was a streetlight at the corner of Aurora Boulevard and F. Roman

Street (p. 45, tsn, Oct. 20, 1991).

With respect to the weather condition, Rodriguez testified that there was only a drizzle, not a heavy rain

and the rain has stopped and he was outside his establishment at the time the accident transpired (pp. 64-

65, tsn, June 17, 1991). This was consistent with plaintiff's testimony that it was no longer raining when

she left Bistro La Conga (pp. 10-11, tsn, April 29, 1991). It was defendant Li who stated that it was

raining all the way in an attempt to explain why he was travelling at only 50-55 kph. (p. 11, tsn

1991). As to the testimony of Pfc. Ramos that it was raining, he arrived at the scene only in resp

telephone call after the accident had transpired (pp. 9-10, tsn, Oct. 28, 1991). We find no su

inconsistencies in Rodriguez's testimony that would impair the essential integrity of his test

reflect on his honesty. We are compelled to affirm the trial court's acceptance of the testimoneyewitness.

Against the unassailable testimony of witness Rodriguez we note that Li's testimony was peppered with

inconsistencies leading us to conclude that his version of the accident was merely adroitly crafted to

version, obviously self-serving, which would exculpate him from any and all liability in the incident

Valenzuela's corroborated claims, his allegations were neither backed up by other witnesses no

circumstances proven in the course of trial. He claimed that he was driving merely at a speed of 55 kph. w

of nowhere he saw a dark maroon lancer right in front of him, which was (the) plaintiff's car". He alle

upon seeing this sudden "apparition" he put on his brakes to no avail as the road was slippery.9One will have to suspend disbelief in order to give credence to Li's disingenuous and patently selasseverations. The average motoristalert to road conditions will have no difficulty applying the brakes

traveling at the speed claimed by Li. Given a light rainfall, the visibility of the street, and the road conditprincipal metropolitan thoroughfare like Aurora Boulevard, Li would have had ample time to react to the

conditions of the road if he were al ert - as every driver should be - to those conditions. Driving exacts a m

usual toll on the senses. Physiological "fight or flight"10mechanisms are at work, provided such mec

were not dulled by drugs, alcohol, exhaustion, drowsiness, etc.11Li's failure to react in a manner whic

have avoided the accident could therefore have been only due to either or both of the two factors: 1) tha

driving at a "very fast" speed as testified by Rodriguez; and 2) that he was under the influence of alcohofactor working independently would have diminished his responsiveness to road conditions, since nor

would have slowed down prior to reaching Valenzuela's car, rather than be in a situation forcing him toapply his brakes. As the trial court noted (quoted with approval by respondent court):

Secondly, as narrated by defendant Richard Li to the San Juan Police immediately after the in

said that while driving along Aurora Blvd., out of nowhere he saw a dark maroon lancer right i

him which was plaintiff's car, indicating, again, thereby that, indeed, he was driving very fast,

of his surroundings and the road ahead of him, because if he was not, then he could not havnoticing at a still far distance the parked car of the plaintiff at the right side near the sidewalk wits emergency lights on, thereby avoiding forcefully bumping at the plaintiff who was then st

the left rear edge of her car.Since, according to him, in his narration to the San Juan Police, he put on his brakes when he

plaintiff's car in front of him, but that it failed as the road was wet and slippery, this goes to sho

that, contrary to his claim, he was, indeed, running very fast. For, were it otherwise, he could ha

completely stopped his car, thereby avoiding the bumping of the plaintiff, notwithstanding that

was wet and slippery. Verily, since, if, indeed, he was running slow, as he claimed, at only

kilometers per hour, then, inspite of the wet and slippery road, he could have avoided hitting theby the mere expedient or applying his brakes at the proper time and distance.

It could not be true, therefore, as he now claims during his testimony, which is contrary to wha

the police immediately after the accident and is, therefore, more believable, that he did not act

on his brakes but simply swerved a little to the right when he saw the on-coming car with

headlights, from the opposite direction, in order to avoid it.

For, had this been what he did, he would not have bumped the car of the plaintiff which was

parked at the right beside the sidewalk. And, it was not even necessary for him to swerve a li

right in order to safely avoid a collision with the on-coming car, considering that Aurora Bdouble lane avenue separated at the center by a dotted white paint, and there is plenty of spac

cars, since her car was running at the right lane going towards Manila on the on-coming car wa

its right lane going to Cubao.13

Having come to the conclusion that Li was negligent in driving his company-issued Mitsubishi Lancer,

question for us to determine is whether or not Valenzuela was likewise guilty of contributory negli

parking her car alongside Aurora Boulevard, which entire area Li points out, is a no parking zone.

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We agree with the respondent court that Valenzuela was not guilty of contributory negligence.

Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm he has

suffered, which falls below the standard to which he is required to conform for his own protection.14Based on the

foregoing definition, the standard or act to which, according to petitioner Li, Valenzuela ought to have conformed

for her own protection was not to park at all at any point of Aurora Boulevard, a no parking zone. We cannotagree.

Courts have traditionally been compelled to recognize that an actor who is confronted with an emergency is not to

be held up to the standard of conduct normally applied to an individual who is in no such situation. The law takes

stock of impulses of humanity when placed in threatening or dangerous situations and does not require the same

standard of thoughtful and reflective care from persons confronted by unusual and oftentimes threatening

conditions.15

Under the "emergency rule" adopted by this Court inGan vs. Court of Appeals,16an individual who suddenly

finds himself in a situation of danger and is required to act without much ti me to consider the best means t hat maybe adopted to avoid the impending danger, is not guilty of negligence if he fails to undertake what subsequentlyand upon reflection may appear to be a better solution, unless the emergency was brought by his own negligence.17

Applying this principle to a case in which the victims in a vehicular accident swerved to the wrong lane to avoidhitting two children suddenly darting into the street, we held, inMc Kee vs.Intermediate Appellate Court,18that

the driver therein, Jose Koh, "adopted the best means possible in the given situation" to avoid hitting the children.

Using the "emergency rule" the Court concluded that Koh, in spite of the fact that he was in the wrong lane when

the collision with an oncoming truck occurred, was not guilty of negligence.19

While the emergency rule applies to those cases in which reflective thought, or the opportunity to adequately

weigh a threatening situation is absent, the conduct which is required of an individual in such cases is dictated notexclusively by the suddenness of the event which absolutely negates thoroughful care, but by the over-all nature of

the circumstances. A woman driving a vehicle suddenly crippled by a flat tire on a rainy night will not be faultedfor stopping at a point which is both convenient for her to do so and which is not a hazard to other motorists. She

is not expected to run the entire boulevard in search for a parking zone or turn on a dark street or alley where she

would likely find no one to help her. It would be hazardous for her not to stop and assess the emergency (simply

because the entire length of Aurora Boulevard is a no-parking zone) because the hobbling vehicle would be both a

threat to her safety and to other motorists. In the instant case, Valenzuela, upon reaching that portion of AuroraBoulevard close to A. Lake St., noticed that she had a flat tire. To avoid putting herself and other motorists indanger, she did what was best under the situation. As narrated b y respondent court: "She stopped at a lighted place

where there were people, to verify whether she had a flat tire and to solicit help if needed. Having been told by thepeople present that her rear right tire was flat and that she cannot reach her home she parked along the sidewalk,

about 1 1/2 feet away, behind a Toyota Corona Car."20In fact, respondent court noted, Pfc. Felix Ramos, the

investigator on the scene of the accident confirmed that Valenzuela's car was parked very close to the

sidewalk.21The sketch which he prepared after the incident showed Valenzuela's car partly straddling the

sidewalk, clear and at a convenient distance from motorists passing the right lane of Aurora Boulevard. This fact

was itself corroborated by the testimony of witness Rodriguez.22Under the circumstances described, Valenzuela did exercise the standard reasonably dictated by the emergency

and could not be considered to have contributed to the unfortunate circumstances which eventually led to the

amputation of one of her lower extremities. The emergency which led her to park her car on a sidewalk in Aurora

Boulevard was not of her own making, and it was evident that she had taken all reasonable precautions.

Obviously in the case at bench, the only negligence ascribable was the negligence of Li on the night of the

accident. "Negligence, as it is commonly understood is conduct which creates an undue risk of harm to others."23It

is the failure to observe that degree of care, precaution, and vigilance which the circumstances justly demand,whereby such other person suffers injury.24We stressed, in Corliss vs.Manila Railroad Company,25thatnegligence is the want of care required by the circumstances.

The circumstances established by the evidence adduced in the court below plainly demonstrate that Li was grossly

negligent in driving his Mitsubishi Lancer. It bears emphasis that he was driving at a fast speed at about 2:00 A.M.

after a heavy downpour had settled into a drizzle rendering the street slippery. There is ample testimonial evidence

on record to show that he was under the influence of liquor. Under these conditions, his chances of effectively

dealing with changing conditions on the road were significantly lessened. As Presser and Keaton emphasize:

[U]nder present day traffic conditions, any driver of an automobile must be prepared for th

appearance of obstacles and persons on the highway, and of other vehicles at intersections, su

who sees a child on the curb may be required to anticipate its sudden dash into the street, and h

to act properly when they appear may be found to amount to negligence.26

Li's obvious unpreparedness to cope with the situation confronting him on the night of the accident was chis own making.

We now come to the question of the liability of Alexander Commercial, Inc. Li's employer. In denying li

the part of Alexander Commercial, the respondent court held that:

There is no evidence, not even defendant Li's testimony, that the visit was in connection wit

matters. His functions as assistant manager sometimes required him to perform work outside t

as he has to visit buyers and company clients, but he admitted that on the night of the accident

from BF Homes Paranaque he did not have "business from the company" (pp. 25-26, ten, S

1991). The use of the company car was partly required by the nature of his work, but the privusing it for non-official business is a "benefit", apparently referring to the fringe benefits attach

position.

Under the civil law, an employer is liable for the negligence of his employees in the dischargrespective duties, the basis of which liability is notrespondeat superior, but the relationship

familias, which theory bases the liability of the master ultimately on his own negligence and no

of his servant (Cuison v. Norton and Harrison Co., 55 Phil. 18). Before an employer may be he

for the negligence of his employee, the act or omission which caused damage must have occur

an employee was in the actual performance of his assigned tasks or duties (Francis High S

Court of Appeals, 194 SCRA 341). In defining an employer's liability for the acts done within of the employee's assigned tasks, the Supreme Court has held that this includes any act do

employee, in furtherance of the interests of the employer or for the account of the employer aof the infliction of the injury or damage (Filamer Christian Institute vs. Intermediate Appella

212 SCRA 637). An employer is expected to impose upon its employees the necessary discipli

for in the performance of any act "indispensable to the business and beneficial to their employ

645).

In light of the foregoing, We are unable to sustain the trial court's finding that since defendanauthorized by the company to use the company car "either officially or socially or even bring he can be considered as using the company car in the service of his employer or on the occasi

functions. Driving the company car was not among his functions as assistant manager; using itofficial purposes would appear to be a fringe benefit, one of the perks attached to his positio

impose liability upon the employer under Article 2180 of the Civil Code, earlier quoted, there m

showing that the damage was caused by their employees in the service of the employer

occasion of their functions. There is no evidence that Richard Li was at the time of the

performing any act in furtherance of the company's business or its interests, or at lea st for it

The imposition of solidary liability against defendant Alexander Commercial Corporatitherefore fail.27

We agree with the respondent court that the relationship in question is not based on the principle ofres

superior, which holds the master liable for acts of the servant, but that ofpater familias, in which the

ultimately falls upon the employer, for his failure to exercise the diligence of a good father of the fam

selection and supervision of his employees. It is up to this point, however, that our agreement with the re

court ends. Utilizing the bonus pater familiasstandard expressed in Article 2180 of the Civil Code,28w

the opinion that Li's employer, Alexander Commercial, Inc. is jointly and solidarily liable for the damagby the accident of June 24, 1990.First, the case of St.Francis High Sc hool vs. Court of Appeals29upon which respondent court has place

reliance, dealt with the subject of a school and its teacher's supervision of students during an extra

activity. These cases now fall under the provision on special parental authority found in Art. 218 of th

Code which generally encompasses all authorized school activities, whether inside or outside school prem

Second, the employer's primary liability under the concept ofpater familiasembodied by Art 2180 (in re

Art. 2176) of the Civil Code is quasi-delictual or tortious in character. His liability is relieved on a showin

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the damage or injury, the employee is engaged in the affairs or concerns of the employeror, independently, in that

of his own. While an employer incurs no liability when an employee's conduct, act or omission is beyond the

range of employment,2a minor deviation from the assigned task of an employee, however, does not affect the

liability of an employer.3

[G.R. No. 156034. October 1, 2003]

DELSAN TRANSPORT LINES, INC.,petitioner, vs. C & A CONSTRUCTION, INC.,respondent.

D E C I S I O N

YNARES-SANTIAGO,J.:

Assailed in this petition for review under Rule 45 of the Revised Rules of Court are the June 14, 2002

decision[1]of the Court of Appeals in CA-G.R. CV No. 59034, which reversed the decision[2]of the Regional TrialCourt of Manila, Branch 46, in Civil Case No. 95-75565, and its November 7, 2002 resolution[3]denying

petitioners motion for reconsideration.

The undisputed facts reveal that respondent C & A Construction, Inc. was engaged by the National HousingAuthority (NHA) to construct a deflector wall at the Vitas Reclamation Area in Vitas, Tondo, Manila.[4]The

project was completed in 1994 but it was not formally turned over to NHA.

On October 9, 1994, M/V Delsan Express, a ship owned and operated by petitioner Delsan Transport Lines,

Inc., anchored at the Navotas Fish Port for the purpose of installing a cargo pump and clearing the cargo oil

tank. At around 12:00 midnight of October 20, 1994, Captain Demetrio T. Jusep of M/V Delsan Express received

a report from his radio head operator in Japan[5]that a typhoon was going to hit Manila[6]in about eight (8)hours.[7]At approximately 8:35 in the morning of October 21, 1994, Capt. Jusep tried to seek shelter at the North

Harbor but could not enter the area because it was already congested.[8]At 10:00 a.m., Capt. Jusep decided to drop

anchor at the vicinity of Vitas mouth, 4 miles away from a Napocor power barge. At that time, the waves were

already reaching 8 to 10 feet high. Capt. Jusep ordered his crew to go full ahead to counter the wind which was

dragging the ship towards the Napocor power barge. To avoid collision, Capt. Jusep ordered a full stop of the

vessel.[9]He succeeded in avoiding the power barge, but when the engine was re-started and the ship was

maneuvered full astern, it hit the deflector wall constructed by respondent.[10]The damage caused by the incidentamounted to P456,198.24.[11]

Respondent demanded payment of the damage from petitioner but the latter refused to pay. Consequently,

respondent filed a complaint for damages with the Regional Trial Court of Manila, Branch 46, which was

docketed as Civil Case No. 95-75565. In its answer, petitioner claimed that the damage was caused by a fortuitous

event.[12]

On February 13, 1998, the complaint filed by respondent was dismissed. The trial court ruled that petitioner

was not guilty of negligence because it had taken all the necessary precautions to avoid the accident. Applying the

emergency rule, it absolved petitioner of liability because the latter had no opportunity to adequately w

best solution to a threatening situation. It further held that even if the maneuver chosen by petitioner wa

move, it cannot be held liable as the cause of the damage sustained by respondent was typhoon Katring

is an act of God.[13]

On appeal to the Court of Appeals, the decision of the trial court was reversed and set aside.[14]

Capt. Jusep guilty of negligence in deciding to transfer the vessel to the North Harbor only at 8:35 a.m. o

21, 1994 and thus held petitioner liable for damages.

Hence, petitioner filed the instant petition contending that Capt. Jusep was not negligent in wait

8:35 in the morning of October 21, 1994 before transferring the vessel to the North Harbor inasmuch as i

shown that had the transfer been made earlier, the vessel could have sought shelter.[15]It further claime

cannot be held vicariously liable under Article 2180 of the Civil Code because respondent failed to alle

complaint that petitioner was negligent in the selection and supervision of its employees.[16]Granting th

Jusep was indeed guilty of negligence, petitioner is not liable because it exercised due diligence in the seCapt. Jusep who is a duly licensed and competent Master Mariner.[17]

The issues to be resolved in this petition are as follows(1) Whether or not Capt. Jusep was negli

If yes, whether or not petitioner is solidarily liable under Article 2180 of the Civil Code for thdelictcommitted by Capt. Jusep?

Article 2176 of the Civil Code provides that whoever by act or omission causes damage to anoth

being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there

existing contractual relation between the parties, is called aquasi-delict. The test for determining the exi

negligence in a particular case may be stated as follows: Did the defendant in doing the alleged neglige

the reasonable care and caution which an ordinary prudent person would have used in the same situatiothen he is guilty of negligence.[18]

In the case at bar, the Court of Appeals was correct in holding that Capt. Jusep was negligent in detransfer the vessel only at 8:35 in the morning of October 21, 1994. As early as 12:00 midnight of Oc

1994, he received a report from his radio head operator in Japan[19]that a typhoon was going to hit Manila

8 hours.[21]This, notwithstanding, he did nothing, until 8:35 in the morning of October 21, 1994, when he

to seek shelter at the North Harbor, which unfortunately was already congested. The finding of negligen

be rebutted upon proof that the ship could not have sought refuge at the North Harbor even if the tradone earlier. It is not the speculative success or failure of a decision that determines the existence of negthe present case, but the failure to take immediate and appropriate action under the circumstances. Ca

despite knowledge that the typhoon was to hit Manila in 8 hours, complacently waited for the lapse of mohours thinking that the typhoon might change direction.[22]He cannot claim that he waited for the su

instead of moving the vessel at midnight immediately after receiving the report because of the dif

traveling at night. The hour of 8:35 a.m. is way past sunrise. Furthermore, he did not transfer as soon a

rose because, according to him, it was not very cloudy[23]and there was no weather disturbance yet.[24]

When he ignored the weather report notwithstanding reasonable foresight of harm, Capt. Jusep sh

inexcusable lack of care and caution which an ordinary prudent person would have observed in situation.[25]Had he moved the vessel earlier, he could have had greater chances of finding a space at

Harbor considering that the Navotas Port where they docked was very near North Harbor.[26]Even if the l

already congested, he would still have time to seek refuge in other ports.

The trial court erred in applying the emergency rule. Under this rule, one who suddenly finds him

place of danger, and is required to act without time to consider the best means that may be adopted to

impending danger, is not guilty of negligence, if he fails to adopt what subsequently and upon reflec

appear to have been a better method, unless the danger in which he finds himself is brought about bynegligence.[27]Clearly, the emergency rule is not applicable to the instant case because the danger whJusep found himself was caused by his own negligence.

Anent the second issue, we find petitioner vicariously liable for the negligent act of Capt. Juse

Article 2180 of the Civil Code an employer may be held solidarily liable for the negligent act of his e

Thus

Art. 2180. The obligation imposed in Article 2176 is demandable not only for ones own acts or omiss

also for those of persons for whom one is responsible.

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x x x x x x x x x

Employers shall be liable for the damages caused by their employees and household helpers acting within the

scope of their assigned tasks, even though the former are not engaged in any business or industry.

x x x x x x x x x

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

Whenever an employees negligence causes damage or injury to another, there instantly arises a

presumptionjuris tantumthat the employer failed to exercisediligentissimi patris familiesin the selection (culpain eligiendo) or supervision (culpa in vigilando) of its employees. To avoid liability for aquasi-delictcommitted

by his employee, an employer must overcome the presumption by presenting convincing proof that he exercised

the care and diligence of a good father of a family in the selection and supervision of his employee.[28]

There is no question that petitioner, who is the owner/operator of M/V Delsan Express, is also the employer

of Capt. Jusep who at the time of the incident acted within the scope of his duty. The defense raised by petitionerwas that it exercised due diligence in the selection of Capt. Jusep because the latter is a licensed and competentMaster Mariner. It should be stressed, however, that the required diligence of a good father of a family pertains

not only to the selection, but also to the supervision of employees. It is not enough that the employees chosen becompetent and qualified, inasmuch as the employer is still required to exercise due diligence in supervising its

employees.

InFabre, Jr. v. Court of Appeals,[29]it was held that due diligence in supervision requires the formulation of

rules and regulations for the guidance of employees and the issuance of proper instructions as well as actual

implementation and monitoring of consistent compliance with the rules. Corollarily, inRamos v. Court of

Appeals,[30]

the Court stressed that once negligence on the part of the employees is shown, the burden of provingthat he observed the diligence in the selection and supervision of its employees shifts to the employer.

In the case at bar, however, petitioner presented no evidence that it formulated rules/guidelines for theproper performance of functions of its employees and that it strictly implemented and monitored compliance

therewith. Failing to discharge the burden, petitioner should therefore be held liable for the negligent act of Capt.

Jusep.

So also, petitioner cannot disclaim liability on the basis of respondents failure to allege in its complaint that

the former did not exercise due diligence in the selection and supervision of its employees. InVironTransportation Co., Inc. v. Delos Santos,[31]it was held that it is not necessary to state that petitioner was negligentin the supervision or selection of its employees, inasmuch as its negligence is presumed by operation of

law. Allegations of negligence against the employee and that of an employer-employee relation in the complaintare enough to make out a case of quasi-delictunder Article 2180 of the Civil Code.[32]

Considering that petitioner did not assail the damages awarded by the trial court, we find no reason to alter

the same. The interest imposed should, however, be modified. InEastern Shipping Lines, Inc. v. Court of

Appeals,[33]it was held that the rate of interest on obligations not constituting a loan or forbearance of money is six

percent (6%) per annum. If the purchase price can be established with certainty at the time of the filing of the

complaint, the six percent (6%) interest should be computed from the date the complaint was filed until finality ofthe decision. After the judgment becomes final and executory until the obligation is satisfied, the amount due

shall earn interest at 12% per year, the interim period being deemed equivalent to a forbearance of credit.[34]

Accordingly, the amount of P456,198.27 due the respondent shall earn 6% interest per annum from October

3, 1995 until the finality of this decision. If the adjudged principal and the interest (or any part thereof) remain

unpaid thereafter, the interest rate shall be twelve percent (12%) per annum computed from the time the judgment

becomes final and executory until it is fully satisfied.

WHEREFORE, in view of all the foregoing, the instant petition is DENIED. The June 14, 2002 decisionof the Court of Appeals in CA-G.R. CV No. 59034 ordering petitioner Delsan Transport Lines, Inc., to payrespondent C & A Construction, Inc., damages in the amount of P456,198.27, plus P30,000.00 as attorneys fees,

is AFFIRMED with the MODIFICATION that the award of P456,198.27 shall earn interest at the rate of 6% per

annum from October 3, 1995, until finality of this decision, and 12% per annum thereafter on the principal and

interest (or any part thereof) until full payment.

G.R. No. L-5691 December 27, 1910

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S. D. MARTINEZ and his wife, CARMEN ONG DE MARTINEZ,plaintiffs-appellees,

vs.WILLIAM VAN BUSKIRK,defendant-appellant.

Lionel D. Hargis for appellant.

Sanz and Oppisso for appellee.

MORELAND, J.:The facts found by the trial court are undisputed by either party in this case. They are

That on the 11th day of September, 1908, the plaintiff, Carmen Ong de Martinez, was riding in a

carromata on Calle Real, district of Ermita, city of Manila, P.I., along the left-hand side of the street as

she was going, when a delivery wagon belonging to the defendant used for the purpose of transportation

of fodder by the defendant, and to which was attached a pair of horses, came along the street in the

opposite direction to that the in which said plaintiff was proceeding, and that thereupon the driver of thesaid plaintiff's carromata, observing that the delivery wagon of the defendant was coming at great speed,crowded close to the sidewalk on the left-hand side of the street and stopped, in order to give defendant's

delivery wagon an opportunity to pass by, but that instead of passing by the defendant's wagon andhorses ran into the carromata occupied by said plaintiff with her child and overturned it, severely

wounding said plaintiff by making a serious cut upon her head, and also injuring the carromata itself and

the harness upon the horse which was drawing it.

x x x x x x x x x

These facts are not dispute, but the defendant presented evidence to the effect that the cochero, who was

driving his delivery wagon at the time the accident occurred, was a good servant and was considered asafe and reliable cochero; that the delivery wagon had sent to deliver some forage at Paco Livery Stable

on Calle Herran, and that for the purpose of delivery thereof the cochero driving the team as defendant'semployee tied the driving lines of the horses to the front end of the delivery wagon and then went back

inside of the wagon for the purpose of unloading the forage to be delivered; that while unloading the

forage and in the act of carrying some of it out, another vehicle drove by, the driver of which cracked a

whip and made some other noises, which frightened the horses attached to the delivery wagon and they

ran away, and the driver was thrown from the inside of the wagon out through the rear upon the groundand was unable to stop the horses; that the horses then ran up and on which street they came intocollision with the carromata in which the plaintiff, Carmen Ong de Martinez, was riding.

The defendant himself was not with the vehicle on the day in question.Upon these facts the court below found the defendant guilty of negligence and gave judgment against him for

P442.50, with interest thereon at the rate of 6 per cent per annum from the 17th day of October, 1908, and for the

costs of the action. The case is before us on an appeal from that judgment.

There is no general law of negligence in the Philippine Islands except that embodied in the Civil Code. The

provisions of that code pertinent to this case are

Art. 1902. A person who by an act or omission causes damage to another when there is fault ornegligence shall be obliged to repair the damage so done.

Art. 1903. The obligation imposed by preceding article is demandable, not only for personal acts and

omissions, 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 live with them.

Guardians are liable for the damages caused by minors or incapacitated persons who are under their

authority and live with them.Owners of directors of an establishment or enterprise are equally liable for the damages caused by theemployees in the service of the branches in which the latter may be employed or on account of their

duties.

The State is liable in this sense when it acts through a special agent, but not when the damages should

have been caused by the official to whom properly it pertained to do the act performed, in which case

the provisions of the preceding article shall be applicable.

Finally, masters or directors of arts and trades are liable for the damages caused by their p

apprentices while they are under their custody.

The liability referred to in this article shall cease when the persons mentioned therein prove

employed all the diligence of a good father of a family to avoid the damage.

Passing the question whether or not an employer who has furnished a gentle and tractable team and a tcapable driver is, under the last paragraph of the above provisions, liable for the negligence of such

handling the team, we are of the opinion that the judgment must be reversed upon the ground that the

does not disclose that the cochero was negligent.

While the law relating to negligence in this jurisdiction may possibly be some what different from that i

Saxon countries, a question we do not now discuss, the rules under which the fact of negligence is determ

nevertheless, generally the same. That is to say, while the law designating theperson responsible for a n

act may not be the same here as in many jurisdictions, the law determining whatis a negligent act is the sa

generally speaking, as elsewhere. (Supreme court of Spain, 4 December, 1903; 16 May, 1893; 27 JuneApril, 1896; 14 March, 1901; 2 March, 1904; 7 February, 1905; 16 June, 1905; 23 June, 1905; 13 AprilMarch, 1902; 12 June, 1900; 2 March, 1907; 18 March, 1898; 3 June, 1901.)

It appears from the undisputed evidence that the horses which caused the damage were gentle and tracthe cochero was experienced and capable; that he had driven one of the horses several years and the oth

six months; that he had been in the habit, during all that time, of leaving them in the condition in which t

left on the day of the accident; that they had never run away up to that time and there had been, ther

accident due to such practice; that to leave the horses and assist in unloading the merchandise in th

described on the day of the accident was the custom of all cochero who delivered merchandise of the ch

that which was being delivered by the cochero of the defendant on the day in question, which cusanctioned by their employers.

In our judgment, the cochero of the defendant was not negligent in leaving the horses in the manner descthe evidence in this case, either under Spanish or American jurisprudence. (Lynchvs. Nurdin, 1 Q.

Rumsey vs.Nelson, 58 Vt., 590; Drake vs.Mount, 33 N. J. L., 442; Hoboken Land and Impr

Co. vs.Lally, 48 N. J. L., 604; Wasmer vs.D. L. & W. R. R. Co., 80 N. Y., 212.) lawphi1.net

In the case ofHayman vs. Hewitt (Peake N. P. Cas., pt. 2, p. 170), Lord Kenyon said:

He was performing his duty while removing the goods into the house, and, if every person whoa cart to remain in the street while he took goods out of it was obliged to employ another to lthe horses, it would be impossible for the business of the metropolis to go on.

In the case of Griggs vs. Fleckenstein (14 Minn., 81), the court said:The degree of care required of the plaintiff, or those in charged of his horse, at the time of the

that which would be exercised by a person of ordinary care and prudence under like circums

can not be said that the fact of leaving the horse unhitched is in itself negligence. Whet

negligence to leave a horse unhitched must be depend upon the disposition of the horse; wheth

under the observation and control of some person all the time, and many other circumstances

question to be determined by the jury from the facts of each case.In the case ofBelles vs. Kellner (67 N. J. L., 255), it was held that it was error on the part of the trial

refuse to charge that "it is not negligence for the driver of a quite, gentle horse to leave him unhit

otherwise unattended on the side of a public highways while the driver is upon the sidewalk loading goo

wagon." The said court closed its opinion with these words:

There was evidence which could have fully justified the jury in finding that the horse was q

gentle, and that the driver was upon the sidewalk loading goods on the wagon, at time of the

injury, and that the horse had been used for years in that way without accident. The refusal ocourt to charge as requested le ft the jury free to find was verdict against the defendant, althougwas convinced that these facts were proven.lawphil.net

In the case of Southworth vs. Ry. Co. (105 Mass., 342), it was held:

That evidence that a servant, whom traders employed to deliver goods, upon stopping with his h

wagon to deliver a parcel at a house from fifty to a hundred rods from a railroad crossing, left t

unfastened for four or five minutes while he was in the house, knowing that it was not afraid of

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having used it for three or four months without ever hitching it or knowing it to start, is not conclusive,

as a matter of law, of a want of due care on his part.

The duty, a violation of which is claimed to be negligence in the respect in question, is to exercise reasonable care

and prudence. Where reasonable care is employed in doing an act not itself illegal or inherently likely to produce

damage to others, there will be no liability, although damage in fact ensues. (Milwaukee Ry. Co.vs.Arms, 91 U.S., 489; Parrott vs.Wells, 15 Wall., 524; Brown vs.Kendall, 6 Cushing, 292; Jackson Architectural Iron

Works vs.Hurlbut, 158 N. Y., 34 Westerfield vs.Levis, 43 La. An., 63; Niosi vs.Empire Steam Laundry, 117

Cal., 257.)

The act of defendant's driver in leaving the horses in the manner proved was not unreasonable or imprudent. Acts

the performance of which has not proved destructive or injurious and which have, therefore, been acquiesced in by

society for so long a time that they have ripened into custom, can not be held to be themselves unreasonable or

imprudent. Indeed the very reason why they have been permitted by society is that they beneficial rather than

prejudicial.itc-alfAccidents sometimes happen and injuries result from the most ordinary acts of life. But such arenot their natural or customary results. To hold that, because such an act once resulted in accident or injury, theactor is necessarily negligent, is to go far. The fact that the doctrine of res ipsa loquitur is sometimes successfully

invoked in such a case, does not in any sense militate against the reasoning presented. That maxim at most onlycreates a prima facie case, and that only in the absence of proof of the circumstances under which the act

complained of was performed. It is something invoked in favor of the plaintiff before defendant's case showing the

conditions and circumstances under which the injury occurred, the creative reason for the doctrine ofres ipsa

loquitur disappears. This is demonstrated by the case ofInland and Seaboard Costing Co. vs. Tolson (139 U.S.,

551), where the court said (p. 554):

. . . The whole effect of the instruction in question, as applied to the case before the jury, was that if thesteamboat, on a calm day and in smooth water, was thrown with such force against a wharf properly

built, as to tear up some of the planks of the flooring, this would beprima facie evidence of negligenceon the part of the defendant's agent in making the landing, unless upon the whole evidence in the case

thisprima facie evidence was rebutted. As such damage to a wharf is not ordinarily done by a steamboat

under control of her officers and carefully managed by them, evidence that such damage was done in

this case wasprima facie, and, if unexplained, sufficient evidence of negligence on their part, and the

jury might properly be so instructed.There was presented in this case, and by the plaintiffs themselves, not only the fact of the runway and the accidentresulting therefrom, but also the conditions under which the runaway occurred. Those conditions showing of

themselves that the defendant's cochero was not negligent in the management of the horse, theprima facie case inplaintiffs' favor, if any, was destroyed as soon as made.

It is a matter of common knowledge as well as proof that it is the universal practice of merchants to deliver

merchandise of the kind of that being delivered at the time of the injury, in the manner in which that was then

being delivered; and that it is the universal practice to leave the horses in the manner in which they were left at the

time of the accident. This is the custom in all cities. It has not been productive of accidents or injuries. The public,

finding itself unprejudiced by such practice, has acquiesced for years without objection. Ought the public now,through the courts, without prior objection or notice, to be permitted to reverse the practice of decades and thereby

make culpable and guilty one who had every reason and assurance to believe that he was acting under the sanction

of the strongest of all civil forces, the custom of a people? We think not.

The judgement is reversed, without special finding as to costs. So ordered.

ALBERT TISON and CLAUDIO L. JABON,Petitioners,

-versus-

SPS. GREGORIO POMASIN and CONSORCIA PONCE

POMASIN, DIANNE POMASIN PAGUNSAN, CYNTHIA

POMASIN, SONIA PEROL, ANTONIO SESISTA, GINASESISTA, and REYNALDO SESISTA,

Respondents.

G.R. No. 173180

Promulgated:

August 24, 2011

x ----------------------------------------------------------------------------------------x

D E C I S I O N

PEREZ,J.:

Two vehicles, a tractor-trailer and a jitney,[1]figured in a vehicular mishap along Maharlika H

inBarangayAgos, Polangui, Albay last 12 August 1994. Laarni Pomasin (Laarni) was driving the jitneythe direction of Legaspi City while the tractor-trailer, driven by Claudio Jabon (Jabon), was traversing the

lane going towards Naga City.[2]

The opposing parties gave two different versions of the incident.

Gregorio Pomasin (Gregorio), Laarnis father, was on board the jitney and seated on the pa

side. He testified that while the jitney was passing through a curve going downward, he saw a tract

coming from the opposite direction and encroaching on the jitneys lane. The jitney was hit by the tractand it was dragged further causing death and injuries to its passengers.[3]

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On the other hand, Jabon recounted that while he was driving the tractor-trailer, he noticed a jitney on

the opposite lane falling off the shoulder of the road. Thereafter, it began running in a zigzag manner and heading

towards the direction of the truck. To avoid collision, Jabon immediately swerved the tractor-trailer to the right

where it hit a tree and sacks ofpalay. Unfortunately, the jitney still hit the left fender of the tractor-trailer before it

was thrown a few meters away. The tractor-trailer was likewise damaged.[4]

Multiple death and injuries to those in the jitney resulted.

Gregorio was injured and brought to the Albay Provincial Hospital in Legaspi City. His daughter,

Andrea Pomasin Pagunsan, sister Narcisa Pomasin Roncales and Abraham Dionisio Perol died on the spot. His

other daughter Laarni, the jitney driver, and granddaughter Annie Jane Pomasin Pagunsan expired at the

hospital. His wife, Consorcia Pomasin, another granddaughter Dianne Pomasin Pagunsan, Ricky Ponce, Vicente

Pomasin, Gina Sesista, Reynaldo Sesista, Antonio Sesista and Sonia Perol sustained injuries.[5]

On the other hand,Jabon and one of the passengers in the tractor-trailer were injured.[6]

Albert Tison (Tison), the owner of the truck, extended financial assistance to respondents by givingthem P1,000.00 each immediately after the accident and P200,000.00 to Cynthia Pomasin (Cynthia), one of

Gregorios daughters. Cynthia, in turn, executed an Affidavit of Desistance.

On 14 November 1994, respondents filed a complaint for damages against petitioners before the

Regional Trial Court (RTC) of Antipolo. They alleged that the proximate cause of the accident was the

negligence, imprudence and carelessness of petitioners. Respondents prayed for indemnification for the heirs ofthose who perished in the accident at P50,000.00 each; P500,000.00 for hospitalization, medical and burial

expenses; P350,000.00 for continuous hospitalization and medical expenses of Spouses Pomasin;P 1,000,000.00 asmoral damages; P250,000.00 as exemplary damages; P30,000.00 for loss of income of Cynthia; P100,000.00 as

attorneys fees plusP1,000.00 per court appearance; P50,000.00 for litigation expenses; and cost of suit.[7]

In their Answer, petitioners countered that it was Laarnis negligence which proximately caused the

accident. They further claimed that Cynthia was authorized by Spouses Pomasin to enter into an amicablesettlement by executing an Affidavit of Desistance. Notwithstanding the affidavit, petitioners complained thatrespondents filed the instant complaint to harass them and profit from the recklessness of Laarni. Petitioners

counterclaimed for damages.

Petitioners subsequently filed a motion to dismiss the complaint in view of the Affidavit of Desistance

executed by Cynthia. The motion was denied for lack of merit.[8]

On 7 February 2000, the Regional Trial Court rendered judgment in favor of petitioners dismissing the

complaint for damages, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered in favor of the defendants and against

plaintiffs hereby DISMISSING the instant complaint considering that plaintiffs have

authorized Cynthia Pomasin to settle the c ase amicably for P200,000.00; and that the

proximate cause of the accident did not arise from the fault or negligence of defendants

driver/employee but from plaintiffs driver.[9]

The trial court considered the testimony of Jabon regarding the incident more convincing and reliablethan that of Gregorios, a mere passenger, whose observation and attention to the road is not as focused as that of

the driver. The trial court concluded that Laarni caused the collision of the jitney and the tractor-trailer. The trial

court likewise upheld the Affidavit of Desistance as having been executed with the tacit consent of respondents.

The Court of Appeals disagreed with the trial court and ruled that the reckless driving of Jabon caused

the vehicular collision. In support of such finding, the Court of Appeals relied heavily on Gregorios testimony

that Jabon was driving the tractor-trailer downward too fast and it encroached the lane of the jitney. Ba

gravity of the impact and the damage caused to the jitney resulting in the death of some passengers, the

Appeals inferred that Jabon must be speeding. The appellate court noted that the restriction in Jabons

license was violated, thus, giving rise to the presumption that he was negligent at the time of the accide

was likewise held liable for damages for his failure to prove due diligence in supervising Jabon after he was driver of the truck. Finally, the appellate court disregarded the Affidavit of Desistance executed b

because the latter had no written power of attorney from respondents and that she was so confused at

when she signed the affidavit that she did not read its content.

The dispositive portion of the assailed Decision states:

WHEREFORE, the present appeal is granted, and the trial courts Decision dated

February 7, 2003 is set aside. Defendants-appellees are ordered to pay plaintiffs-appellants ortheir heirs the following:

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

b) Civil indemnity of P50,000.00 for the death of each victim, to be offset with the

balance of P64,000.00 from the aforementioned P200,000.00 of civil indemnity received by

plaintiff-appellant Cynthia Pomasin. Hence, the net amount is c omputed at P37,200.00 each,

as follows:

Narcisa Pomasin P37,200.00Laarni Pomasin P37,200.00

Andrea P. Pagunsan P37,200.00

Dionisio Perol P37,200.00

Annie Jane P. Pagunsan P37,200.00

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

d) Attorneys fees of 10% of the total award.[10]

Petitioners filed a Motion for Reconsideration, which was, however, denied by the Court of Ap

Resolution[11]dated 19 July 2006.

The petition for review raises mixed questions of fact and law which lead back to the very issue

by the trial court: Who is the negligent party or the party at fault?

The issue of negligence is factual in nature.[12] And the rule, and the exceptions, is that factual fin

the Court of Appeals are generally conclusive but may be reviewed when: (1) the factual findings of the

Appeals and the trial court are contradictory; (2) the findings are grounded entirely on speculation, su

conjectures; (3) the inference made by the Court of Appeals from its findings of fact is manifestly

absurd or impossible; (4) there is grave abuse of discretion in the appreciation of facts; (5) the appellate

making its findings, goes beyond the issues of the case and such findings are contrary to the admissionappellant and appellee; (6) the judgment of the Court of Appeals is premised on a misapprehension of the Court of Appeals fails to notice certain relevant facts which, if properly considered, will justify a

conclusion; and (8) the findings of fact of the Court of Appeals are contrary to those of the trial court or

conclusions without citation of specific evidence, or where the facts set forth by the petitioner are not dis

respondent, or where the findings of fact of the Court of Appeals are premised on the absence of evidenc

contradicted by the evidence on record.[13]

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A: None sir.

Q: So the road was dry?

A: Yes sir.

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

happened?

A: Yes sir.[21](Emphasis supplied).

Upon the other hand, Gregorio, during his direct examination described the road condition where the collision took place as

curving and downward, thus:

Q: Could you please describe the place where the incident happened in so far as the road condition is concerned?A: The road was curving and downward.

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

A: Yes sir.

Q: And practically, you