torts 3rd set cases copy

8/10/2019 Torts 3rd Set Cases Copy

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DEFENSES

SUMMARY1. Plaintiffs negligence is proximate cause of injury2. Comparative v Contributory Negligence (Article 2179)3. Assumption of Risk (Article 1174)4. Doctrine of Last Clear Chance5. Prescription (Article 1146)6. Force Majeur / Fortuitous Event (Article 1174)7. Diligence (Article 2180, last paragraph)8. Mistake & Waiver9. Emergency or sudden peril doctrine

1. Plaintiffs negligence is proximate cause of injury (3 cases)to constitute quasi-delict, the fault or negligence must be the proximate cause of the damage or injury suffered by the plaintiff.Proximate cause is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces theinjury and without which the result would not have occurred. Proximate cause is determined by the facts of each case upon mixedconsiderations of logic, common sense, policy and precedent.

1. PLDT v CA [G.R. No. 57079. September 29, 1989.] PHILIPPINE LONG DISTANCE TELEPHONE CO., INC. petitioner, vs. COURTOF APPEALS and SPOUSES ANTONIO ESTEBAN and GLORIA ESTEBAN, respondents.

FACTS:

An action for damages was instituted in the former Court of First Instance of Negros Occidental 1 by private respondent spousesagainst petitioner Philippine Long Distance Telephone Company (PLDT, for brevity) for the injuries they sustained in the evening of July30, 1968 when their jeep ran over a mound of earth and fell into an open trench, an excavation allegedly undertaken by PLDT for theinstallation of its underground conduit system. The complaint alleged that respondent Antonio Esteban failed to notice the open trenchwhich was left uncovered because of the creeping darkness and the lack of any warning light or signs. As a result of the accident,respondent Gloria Esteban allegedly sustained injuries on her arms, legs and face, leaving a permanent scar on her cheek, while therespondent husband suffered cut lips. In addition, the windshield of the jeep was shattered.

Defenses (PLDT):1. injuries sustained by respondent spouses were the result of their own negligence and that the entity which should be heldresponsible2. if at all, is L.R. Barte and Company (Barte, for short), an independent contractor which undertook the construction of the manholeand the conduit system

Defenses (Barte):1. it was not aware nor was it notified of the accident involving respondent spouses and that it had complied with the terms of itscontract with PLDT by installing the necessary and appropriate standard signs in the vicinity of the work site, with barricades at bothends of the excavation and with red lights at night along the excavated area to warn the traveling public of the presence of excavations.

DECISION OF LOWER COURTS:1. Trial Court: defendant Philippine Long Distance Telephone Company is hereby ordered (A) to pay the plaintiff Gloria Esteban2. CA: reversing the decision of the lower court and dismissing the complaint of respondent spouses. It held that respondent Estebanspouses were negligent and consequently absolved petitioner PLDT from the claim for damages.

ISSUE:Whether PLDT is liable

RULING:

No.First. Plaintiff's jeep was running along the inside lane of Lacson Street. If it had remained on that inside lane, it would not have hit theACCIDENT MOUND. Exhibit B shows, through the tiremarks, that the ACCIDENT MOUND was hit by the jeep swerving from the leftthat is, swerving from the inside lane. What caused the swerving is not disclosed; but, as the cause of the accident, defendant cannotbe made liable for the damages suffered by plaintiffs. The accident was not due to the absence of warning signs, but to the unexplainedabrupt swerving of the jeep from the inside lane.

The negligence of respondent Antonio Esteban was not only contributory to his injuries and those of his wife but goes to the very causeof the occurrence of the accident, as one of its determining factors, and thereby precludes their right to recover damages. 30 The perilsof the road were known to, hence appreciated and assumed by, private respondents. By exercising reasonable care and prudence,respondent Antonio Esteban could have avoided the injurious consequences of his act, even assuming arguendo that there was somealleged negligence on the part of petitioner.

It was not the lack of knowledge of these excavations which caused the jeep of respondents to fall into the excavation but theunexplained sudden swerving of the jeep from the inside lane towards the accident mound.

DAMAGES; A PARTY CANNOT CHARGE ANOTHER FOR THE DAMAGE CAUSED BY HIS OWN NEGLIGENCE. It is basic thatprivate respondents cannot charge PLDT for their injuries where their own failure to exercise due and reasonable care was the causethereof. It is both a societal norm and necessity that one should exercise a reasonable degree of caution for his own protection.Furthermore, respondent Antonio Esteban had the last clear chance or opportunity to avoid the accident, notwithstanding thenegligence he imputes to petitioner PLDT. As a resident of Lacson Street, he passed on that street almost everyday and hadknowledge of the presence and location of the excavations there. It was his negligence that exposed him and his wife to danger, hencehe is solely responsible for the consequences of his imprudence.

Antonio Esteban had the last clear chance or opportunity to avoid the accident, notwithstanding the negligence he imputes to petitionerPLDT. As a resident of Lacson Street, he passed on that street almost everyday and had knowledge of the presence and location of theexcavations there. It was his negligence that exposed him and his wife to danger, hence he is solely responsible for the consequencesof his imprudence.

A person claiming damages for the negligence of another has the burden of proving the existence of such fault or negligence causativethereof. The facts constitutive of negligence must be affirmatively established by competent evidence. Whosoever relies on negligence


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for his cause of action has the burden in the first instance of proving the existence of the same if contested, otherwise his action mustfail.

2. KIM V PHIL AERIAL TAXI [G.R. No. 39309. November 24, 1933.] TEH LE KIM, plaintiff-appellant, vs. PHILIPPINE AERIAL TAXICO., INC., defendant-appellee. Marcelo Nubla, G. E. Campbell and W. A. Caldwell, for appellant. L. D. Lockwood, for appellee.

FACTS:

On the morning of September 4, 1931, the plaintiff herein bought, in Manila, a passenger ticket for a flight to Iloilo in one of thedefendant company's hydroplanes starting from Madrigal Field in Pasay. Inasmuch as the engine of the plane Mabuhay, in which he

was to make the flight, was not working satisfactorily, the said plaintiff had to wait for some time. While the engine was being tested, theplaintiff saw how it was started by turning the propeller repeatedly and how the man who did it ran away from it each time in order not tobe caught by the said propeller. Before the plane Mabuhay was put in condition for the flight, the plane Taal arrived and it was decidedto have the plaintiff make the flight therein. The plaintiff and his companion were carefully carried from the beach to the plane, enteringthe same by the rear or tail end, and were placed in their seats to which they were strapped. Later, they were shown how the strapscould be tightened or loosened in case of accident and were instructed further not to touch anything in the plane. After an uneventfulflight, the plane landed on the waters of Guimaras Strait, in front of Iloilo and taxied toward the beach until its pontoons struck bottom,when the plane stopped. The pilot shut off the gasoline feed pipe, permitting the engine, however, to continue to function until all thegasoline was drained from the feed pipe and carburetor. This operation was necessary in accordance with the established practice ofaviation in order to avoid danger of fire which would exist if the pipes and carburetor remained full of gasoline, and to prevent thesudden cooling of the engine which might cause serious damage, especially to the valves.

When the pilot observed that of a banca was approaching rapidly on the right hand side of the plane, he arose signalled and shouted tothe boatman to keep his banca at a distance from the plane, inasmuch as there were waves and quite a strong current, and he fearedthat the banca, which had a high prow, might collide with the plane and damage either the wing or the pontoon thereof. While he was

doing this, he heard the propeller strike something. He immediately turned off the switch and, looking on the other side, he saw Bohnpicking up the plaintiff out of the water.

What really happened was that at the moment the pontoons touched bottom and while the pilot was signalling to the banca, the plaintiffunfastened the straps around him and, not even waiting to put on his hat, climbed over the door to the lower wing, went down theladder to the pontoon and walked along the pontoon toward the revolving propeller. The propeller first grazed his forehead and, as hethrew up his arm, it was caught by the revolving blades thereof and so injured that it had to be amputated.

The usual procedure in discharging passengers from a hydroplane is to wait until the propeller stops, then turn the plane around byhand so as to have the rear or tail and thereof towards the beach, and then take the passengers to shore in a banca. The pilot in chargeof the plane has had fourteen years experience, having first learned to fly during the World War. He is duly licensed by the Departmentof Commerce of the United States and by the Department of Commerce and Communications of the Government of the PhilippineIslands.

ISSUE:whether or not the defendant entity has complied with its contractual obligation to carry the plaintiff-appellant Teh Le Kim safe andsound to his destination.

RULING:

Yes. Hence, it is not liable. By sheer common sense, the plaintiff ought to know that a propeller, be it that of a ship or of an aeroplane,is dangerous while in motion and that to approach it is to run the risk of being caught and injured thereby. He ought to know furthermorethat inasmuch as the plane was on the water, he had to wait for a banca to take him ashore.

NEGLIGENCE; DAMAGES; CONTRIBUTORY NEGLIGENCE. It is not difficult to understand from the circumstances of the instantcase that the plaintiff-appellant, a passenger of a hydroplane belonging to the defendant company, acted with reckless negligence inapproaching the propeller while it was still in motion, and when the banca was not yet in a position to take him. That the plaintiff-appellant's negligence alone was the direct cause of the accident is so clear that it is not necessary to cite authoritative opinions tosupport the conclusion that the injury to his arm and the subsequent amputation thereof, were entirely and exclusively due to his own

imprudence and not to the slightest negligence attributable to the defendant company or to its agents. Therefore, he alone should sufferthe consequences of his act.

3. AMERICAN EXPRESS V CORDERO [G.R. No. 138550. October 14, 2005.] AMERICAN EXPRESS INTERNATIONAL, INC.,petitioner, vs. NOEL CORDERO, defendant.

FACTS:

On November 29, 1991, respondent, together with his wife, Nilda, daughter, sisters-in-law and uncle-in- law, went on a three-dayholiday trip to Hong Kong. In the early evening of November 30, 1991, at about 7:00 o'clock, the group went to the Watson's ChemistShop located at 277C Ocean Gallery, Kowloon, Hong Kong. Noel picked up some chocolate candies and handed to the sales clerk hisAmerican Express extension charge card to pay for his purchases. The sales clerk verified the card by making a telephone call to theAmerican Express Office in Hong Kong. Moments later, Susan Chong, the store manager, emerged from behind the counter andinformed respondent that she had to confiscate the card. Thereupon, she cut respondent's American Express card in half with a pair ofscissors. This, according to respondent, caused him embarrassment and humiliation considering that it was done in front of his familyand the other customers lined up at the check-out counter. Hence, Nilda had to pay for the purchases using her own American Expresscharge card.

When they returned to the Excelsior Hotel, Nilda called up petitioner's Office in Hong Kong. She was able to talk to Senior AuthorizerJohnny Chen, who informed her that on November 1, 1991, a person in Hong Kong attempted to use a charge card with the samenumber as respondent's card. The Hong Kong American Express Office called up respondent and after determining that he was inManila and not in Hong Kong, placed his card in the "Inspect Airwarn Support System." This is the system utilized by petitioner as aprotection both for the company and the cardholders against the fraudulent use of their charge cards.

When the Watson's sales clerk called up petitioner's Hong Kong Office, its representative said he wants to talk to respondent in order toverify the latter's identity, pursuant to the procedure observed under the "Inspect Airwarn Support System." However, respondentrefused. Consequently, petitioner's representative was unable to establish the identity of the cardholder. 5 This led to the confiscation ofrespondent's card.

On March 31, 1992, respondent filed with the Regional Trial Court, Branch V, Manila, a complaint for damages against petitioner.


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DECISION OF LOWER COURTS:(1) Trial Court: liable for damages.(2) Court of Appeals: affirming the trial court's Decision with modification in the sense that the amounts of damages awarded werereduced.

ISSUE:Whether AMEX is liable

RULING:No.

As explained by respondent himself, he could have used his card upon verification by the sales clerk of Watson that indeed he is theauthorized cardholder. This could have been accomplished had respondent talked to petitioner's representative, enabling the latter todetermine that respondent is indeed the true holder of the card. Clearly, no negligence which breaches the contract can be attributed topetitioner. If at all, the cause of respondent's humiliation and embarrassment was his refusal to talk to petitioner's representative.

It bears reiterating that the subject card would not have been confiscated and cut had respondent talked to petitioner's representativeand identified himself as the genuine cardholder. It is thus safe to conclude that there was no negligence on the part of petitioner andthat, therefore, it cannot be held liable to respondent for damages.


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2. COMPARATIVE V CONTRIBUTORY NEGLIGENCE

Art. 2179 of the Civil Code provides that if the negligence of the plaintiff was only contributory, the immediate and proximate cause ofthe injury being the defendant's lack of care, the plaintiff may recover damages, but the court shall mitigate the damages to beawarded. This law may be availed of by the petitioner but does not exempt him from liability.

DOCTRINE OF COMPARATIVE NEGLIGENCE. Under said doctrine, the negligence of both the plaintiff and of the defendant are compared forthe purpose of reaching an equitable apportionment of their respective liabilities for the damage caused and suffered by the plaintiff.

4. UMALI v BACANI [G.R. No. L-40570. January 30, 1976.] TEODORO C. UMALI, petitioner, vs. HON. ANGEL BACANI, in his capacityas Presiding Judge of Branch IX of the Court of First Instance of Pangasinan and FIDEL H. SAYNES, respondents.FACTS:

On May 14, 1972, a storm with strong rain hit the Municipality of Alcala, Pangasinan, which started from 2:00 o'clock in the afternoonand lasted up to about midnight of the same day. During the storm, the banana plants standing on an elevated ground along the barrioroad in San Pedro Ili of said municipality and near the transmission line of the Alcala Electric Plant were blown down and fell on theelectric wire. As a result, the live electric wire was cut, one end of which was left hanging on the electric post and the other fell to theground under the fallen banana plants.

"On the following morning, at about 9:00 o'clock barrio captain Luciano Bueno of San Pedro Ili who was passing by saw the brokenelectric wire and so he warned the people in the place not to go near the wire for they might get hurt. He also saw Cipriano Baldomero,a laborer of the Alcala Electric Plant near the place and notified him right then and there of the broken line and asked him to fix it, butthe latter told the barrio captain that he could not do it but that he was going to look for the lineman to fix it.

"Sometime after the barrio captain and Cipriano Baldomero had left the place, a small boy of 3 years and 8 months old by the name ofManuel P. Saynes, whose house is just on the opposite side of the road, went to the place where the broken line wire was and got incontact with it. The boy was electrocuted and he subsequently died. It was only after the electrocution of Manuel Saynes that thebroken wire was fixed at about 10:00 o'clock on the same morning by the lineman of the electric plant.

DEFENSE:The proximate cause of the boy's death by electrocution could not be due to any negligence on his part, but rather to a fortuitous event the storm that caused the banana plants to fall and cut the electric line pointing out the absence of negligence on the part of hisemployee Cipriano Baldomero who tried to have the line repaired and the presence of negligence of the parents of the child in allowinghim to leave his house during that time.

DECISION OF LOWER COURTS:(1) CFI Pangasinan - ordering the defendant to pay to the plaintiff

RULING:series of negligence on the part of the defendant's employee resulted in the death of the victim by electrocution, to wit: the defendantdid not cut down the banana plants which are taller than the electric posts to eliminate that source of danger to the electric line; thatafter the storm they did not cut off the flow of electricity from the lines pending inspection of the wires to see if they had been cut; andlastly, in not taking precautions to prevent anybody from approaching the live wires.

NEGLIGENCE OF EMPLOYEE IS PRESUMED TO BE THE NEGLIGENCE OF EMPLOYER. The negligence of the employee ispresumed to be negligence of the employer because the employer is supposed to exercise supervision over the work of the employee.The liability of the employer is primary and direct. In fact the proper defense for the employer to raise so that he may escape liability isto prove that he exercised the diligence of the good father of the family to prevent damage not only in the selection of his employees butalso in adequately supervising them over their work.

series of negligence on the part of defendant's employees in the Alcala Electric Plant resulted in the death of the victim by electrocution:1. there were big and tall banana plants at the place of the incident standing on an elevated ground which were about 30 feet high andwhich were higher than the electric post supporting the electric line, and yet the employees of the defendant who, with ordinary

foresight, could have easily seen that even in case of moderate winds the electric line would be endangered by banana plants beingblown down, did not even take the necessary precaution to eliminate that source of danger to the electric line2. even after the employees of the Alcala Electric Plant were already aware of the possible damage the storm of May 14, 1972, couldhave caused their electric lines, thus becoming a possible threat to life and property, they did not cut off from the plant the flow ofelectricity along the lines, an act they could have easily done pending inspection of the wires to see if they had been cut.3. employee Cipriano Baldomero was negligent on the morning of the incident because even if he was already made aware of the livecut wire, he did not have the foresight to realize that the same posed a danger to life and property, and that he should have taken thenecessary precaution to prevent anybody from approaching the live wire

Contributory negligence of the victim's parents in not properly taking care of the child, which enabled him to leave the house alone onthe morning of the incident and go to a nearby place (cut wire was very near the house where victim was living) where the fatal fallenwire electrocuted him, might mitigate respondent's liability, but We cannot agree with petitioner's theory that the parents' negligenceconstituted the proximate cause of the victim's death because the real proximate cause was the fallen live wire which posed a threat tolife and property on that morning due to the series of negligence adverted to above committed by defendants' employees and which

could have killed any other person who might by accident get into contact with it.

In fact the proper defense for the employer to raise so that he may escape liability is to prove that he exercised the diligence of thegood father of the family to prevent damage not only in the selection of his employees but also in adequately supervising them overtheir work. This defense was not adequately proven as found by the trial Court, and We do not find any sufficient reason to deviate fromits finding.

5. PHOENIX CONSTRUCTION, INC. v IAC [G.R. No. 65295. March 10, 1987.] PHOENIX CONSTRUCTION, INC. and ARMANDO U.CARBONEL, petitioners, vs. THE INTERMEDIATE APPELLATE COURT and LEONARDO DIONISIO, respondents.

FACTS:

In the early morning of 15 November 1975 at about 1:30 a.m. private respondent Leonardo Dionisio was on his way home helived in 1214-B Zamora Street, Bangkal, Makati from a cocktails- and-dinner meeting with his boss, the general manager of amarketing corporation. During the cocktails phase of the evening, Dionisio had taken "a shot or two" of liquor. Dionisio was driving his

Volkswagen car and had just crossed the intersection of General Lacuna and General Santos Streets at Bangkal, Makati, not far from

ISSUE: Whether the electric

company is liable

YES

not a defense but an apportionment of liability - meaning it is a process


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his home, and was proceeding down General Lacuna Street, when his car headlights (in his allegation) suddenly failed. He switched hisheadlights on "bright" and thereupon he saw a Ford dump truck looming some 2-1/2 meters away from his car

The dump truck was parked askew (not parallel to the street curb) in such a manner as to stick out onto the street, partly blocking theway of oncoming traffic. There were no lights nor any so-called "early warning" reflector devices set anywhere near the dump truck,front or rear. Dionisio claimed that he tried to avoid a collision by swerving his car to the left but it was too late and his car smashed intothe dump truck. As a result of the collision, Dionisio suffered some physical injuries including some permanent facial scars, a "nervousbreakdown" and loss of two gold bridge dentures.

Dionisio commenced an action for damages in the Court of First Instance of Pampanga basically claiming that the legal and proximate

cause of his injuries was the negligent manner in which Carbonel had parked the dump truck entrusted to him by his employer Phoenix.

DECISION OF LOWER COURTS:(1) Trial Court: rendered judgment in favor of Dionisio and against Phoenix and Carbonel(2) IAC: affirmed the decision of the trial court but modified the award of damages

Defenses: if there was negligence in the manner in which the dump truck was parked, that negligence was merely a "passive and staticcondition" and that private respondent Dionisio's recklessness constituted an intervening, efficient cause determinative of the accidentand the injuries he sustained.

ISSUE:Whether Phoenix is liable

RULING:Private respondent Dionisio was unable to prove possession of a valid curfew pass during the night of the accident and that the

preponderance of evidence shows that he did not have such a pass during that night. Patrolman Cuyno testified that people who hadgathered at the scene of the accident told him that Dionisio's car was "moving fast" and did not have its headlights on. Privaterespondent Dionisio was negligent the night of the accident. He was hurrying home that night and driving faster than he should havebeen. Worse, he extinguished his headlights at or near the intersection of General Lacuna and General Santos Streets and thus did notsee the dump truck that was parked askew and sticking out onto the road lane.

Legal and proximate cause of the accident and of Dionisio's injuries was the wrongful or negligent manner in which the dump truck wasparked in other words, the negligence of petitioner Carbonel.

Cause and condition. Many courts have sought to distinguish between the active "cause" of the harm and the existing "conditions" uponwhich that cause operated. If the defendant has created only a passive static condition which made the damage possible, the defendantis said not to be liable. But so far as the fact of causation is concerned, in the sense of necessary antecedents which have played animportant part in producing the result, it is quite impossible to distinguish between active forces and passive situations, particularlysince, as is invariably the case, the latter are the result of other active forces which have gone before.

The truck driver's negligence far from being a "passive and static condition" was rather an indispensable and efficient cause.

In our view, Dionisio's negligence, although later in point of time than the truck driver's negligence and therefore closer to the accident,was not an efficient intervening or independent cause. What the petitioners describe as an "intervening cause" was no more than aforeseeable consequence of the risk created by the negligent manner in which the truck driver had parked the dump truck.

We hold that private respondent Dionisio's negligence was "only contributory," that the "immediate and proximate cause" of the injuryremained the truck driver's "lack of due care" and that consequently respondent Dionisio may recover damages though such damagesare subject to mitigation by the courts.

A man must respond for the foreseeable consequences of his own negligent act or omission. 20% of the damages awarded by therespondent appellate court, except the award of P10,000.00 as exemplary damages and P4,500.00 as attorney's fees and costs, shallbe borne by private respondent; only the balance of 80% needs to be paid by petitioners Carbonel and Phoenix who shall be solidarily

liable therefor to the former.

6. PCIB v CA [G.R. No. 121413. January 29, 2001.] PHILIPPINE COMMERCIAL INTERNATIONAL BANK (formerly INSULAR BANKOF ASIA AND AMERICA), petitioner, vs. COURT OF APPEALS and FORD PHILIPPINES, INC. and CITIBANK, N.A., respondents.

FACTS:Ford Philippines drew and issued Citibank Check. No. SN 04867 on October 19, 1977, Citibank Check No. SN 10597 on July 19, 1978and Citibank Check No. SN-16508 on April 20, 1979, all in favor of the Commissioner of Internal Revenue (CIR) for payment of itspercentage taxes. The checks were crossed and deposited with the IBAA, now PCIB, BIR's authorized collecting bank. The first checkwas cleared containing an indorsement that "all prior indorsements and/or lack of indorsements guaranteed." The same, however, wasreplaced with two (2) IBAA's managers' checks based on a call and letter request made by Godofredo Rivera, Ford's General LedgerAccountant, on an alleged error in the computation of the tax due without IBAA verifying the authority of Rivera. These manager'schecks were later deposited in another bank and misappropriated by the syndicate. The last two checks were cleared by the Citibankbut failed to discover that the clearing stamps do not bear any initials. The proceeds of the checks were also illegally diverted orswitched by officers of PCIB members of the syndicate, who eventually encashed them. Ford, which was compelled to pay anew the

percentage taxes, sued in two actions for collection against the two banks on January 20, 1983, barely six years from the date the firstcheck was returned to the drawer. The direct perpetrators of the crime are now fugitives from justice.

DECISION OF LOWER COURTS:1

stcase:

(1) Trial Court: Citibank and IBAA were jointly and severally liable for the checks(2) CA: only IBAA (PCIB) solely liable for the amount of the first check

2nd

case:(1) Trial Court: absolved PCIB from liability and held that only the Citibank is liable for the checks issued by Ford(2) Court of Appeals: held both banks liable for negligence in the selection and supervision of their employees resulting in the erroneousencashment of the checks.

ISSUE:

Has petitioner Ford the right to recover from the collecting bank (PCIBank) and the drawee bank (Citibank) the value of the checksintended as payment to the Commissioner of Internal Revenue? Or has Ford's cause of action already prescribed?

YES


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RULING:A. Citibank Check No. SN-04867FORDFord, is guilty of the "imputed contributory negligence" that would defeat its claim for reimbursement, bearing in mind that itsemployees, Godofredo Rivera and Alexis Marindo, were among the members of the syndicate.

although the employees of Ford initiated the transactions attributable to an organized syndicate, in our view, their actions were not theproximate cause of encashing the checks payable to the CIR. The degree of Ford's negligence, if any, could not be characterized asthe proximate cause of the injury to the parties.

IBAA/PCIBAs agent of the BIR (the payee of the check), defendant IBAA should receive instructions only from its principal BIR and not from anyother person especially so when that person is not known to the defendant. It is very imprudent on the part of the defendant IBAA to justrely on the alleged telephone call of one (Godofredo Rivera and in his signature to the authenticity of such signature considering thatthe plaintiff is not a client of the defendant IBAA."

Even considering arguendo, that the diversion of the amount of a check payable to the collecting bank in behalf of the designatedpayee may be allowed, still such diversion must be properly authorized by the payor. Otherwise stated, the diversion can be justifiedonly by proof of authority from the drawer, or that the drawer has clothed his agent with apparent authority to receive the proceeds ofsuch check.

The crossing of the check with the phrase "Payee's Account Only," is a warning that the check should be deposited only in the accountof the CIR. Thus, it is the duty of the collecting bank PCIBank to ascertain that the check be deposited in payee's account only.Therefore, it is the collecting bank (PCIBank) which is bound to scrutinize the check and to know its depositors before it could make theclearing indorsement "all prior indorsements and/or lack of indorsement guaranteed".

PCIBank is liable in the amount corresponding to the proceeds of Citibank Check No. SN-04867.

CitibankNone

B. Citibank Check Numbers SN-10597 and 16508

PCIBankSection 5 31 of Central Bank Circular No. 580, Series of 1977 provides that any theft affecting items in transit for clearing, shall be forthe account of sending bank, which in this case is PCIBank.

Citibanknegligent in the performance of its duties. Citibank failed to establish that its payment of Ford's checks were made in due course and

legally in order. In its defense, Citibank claims the genuineness and due execution of said checks, considering that Citibank (1) has noknowledge of any infirmity in the issuance of the checks in question (2) coupled by the fact that said checks were sufficiently fundedand (3) the endorsement of the Payee or lack thereof was guaranteed by PCIBank (formerly IBAA), thus, it has the obligation to honorand pay the same.

As the drawee bank breached its contractual obligation with Ford and such degree of culpability contributed to the damage caused tothe latter. It failed to perform what was incumbent upon it, which is to ensure that the amount of the checks should be paid only to itsdesignated payee.

Invoking the doctrine of comparative negligence, we are of the view that both PCIBank and Citibank failed in their respective obligationsand both were negligent in the selection and supervision of their employees resulting in the encashment of Citibank Check Nos. SN10597 and 16508. Thus, we are constrained to hold them equally liable for the loss of the proceeds of said checks issued by Ford infavor of the CIR. Time and again, we have stressed that banking business is so impressed with public interest where the trust andconfidence of the public in general is of paramount importance such that the appropriate standard of diligence must be very high, if notthe highest, degree of diligence. A bank's liability as obligor is not merely vicarious but primary, wherein the defense of exercise of due

diligence in the selection and supervision of its employees is of no moment. 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 fargreater than those of ordinary clerks and employees. Banks are expected to exercise the highest degree of diligence in the selectionand supervision of their employees.

The relationship between a holder of a commercial paper and the bank to which it is sent for collection is that of a principal and anagent and the diversion of the amount of the check is justified only by proof of authority from the drawer; that in crossed checks, thecollecting bank is bound to scrutinize the check and know its depositors before clearing indorsement; that as a general rule, banks areliable for wrongful or tortuous acts of its agents within the scope and in the course of their employment; that failure of the drawee bankto seasonably discover irregularity in the checks constitutes negligence and renders the bank liable for loss of proceeds of the checks;that an action upon a check prescribes in ten (10) years; and that the contributory negligence of the drawer shall reduce the damageshe may recover against the collecting bank.

Since a master may be held for his servant's wrongful act, the law imputes to the master the act of the servant, and if that act is

negligent or wrongful and proximately results in injury to a third person, the negligence or wrongful conduct is the negligence orwrongful conduct of the master, for which he is liable. The general rule is that if the master is injured by the negligence of a third personand by the concurring contributory negligence of his own servant or agent, the latter's negligence is imputed to his superior and willdefeat the superior's action against the third person, assuming, of course that the contributory negligence was the proximate cause ofthe injury of which complaint is made.

Given these circumstances, the mere fact that the forgery was committed by a drawer- payor's confidential employee or agent, who byvirtue of his position had unusual facilities for perpetrating the fraud and imposing the forged paper upon the bank, does not entitle thebank to shift the loss to the drawer-payor, in the absence of some circumstance raising estoppel against the drawer. This rule likewiseapplies to the checks fraudulently negotiated or diverted by the confidential employees who hold them in their possession.

As a general rule, however, a banking corporation is liable for the wrongful or tortuous acts and declarations of its officers or agentswithin the course and scope of their employment. A bank will be held liable for the negligence of its officers or agents when acting withinthe course and scope of their employment. It may be liable for the tortuous acts of its officers even as regards that species of tort ofwhich malice is an essential element. A bank holding out its officers and agents as worthy of confidence will not be permitted to profit by

the frauds these officers or agents were enabled to perpetrate in the apparent course of their employment; nor will it be permitted to


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shirk its responsibility for such frauds, even though no benefit may accrue to the bank therefrom. For the general rule is that a bank isliable for the fraudulent acts or representations of an officer or agent acting within the course and apparent scope of his employment orauthority. And if an officer or employee of a bank, in his official capacity, receives money to satisfy an evidence of indebtedness lodgedwith his bank for collection, the bank is liable for his misappropriation of such sum.

CONTRIBUTORY NEGLIGENCE OF PLAINTIFF SHALL REDUCE DAMAGES HE MAY RECOVER. Finally, we also find that Fordis not completely blameless in its failure to detect the fraud. Failure on the part of the depositor to examine its passbook, statements ofaccount, and cancelled checks and to give notice within a reasonable time (or as required by statute) of any discrepancy which it may inthe exercise of due care and diligence find therein, serves to mitigate the banks' liability by reducing the award of interest from twelvepercent (12%) to six percent (6%) per annum. As provided in Article 1172 of the Civil Code of the Philippines, responsibility arising fromnegligence in the performance of every kind of obligation is also demandable, but such liability may be regulated by the courts,according to the circumstances. In quasi-delicts, the contributory negligence of the plaintiff shall reduce the damages that he mayrecover.

7. ESTACION v BERNARDO [G.R. No. 144723. February 27, 2006.] LARRY ESTACION, petitioner, vs. NOE BERNARDO, thru and hisguardian ad litem ARLIE BERNARDO, CECILIA BANDOQUILLO and GEMINIANO QUINQUILLERA, respondents.

FACTS:

In the afternoon of October 16, 1982, respondent Noe was going home to Dumaguete from Cebu, via Bato and Tampi. At Tampi, heboarded a Ford Fiera passenger jeepney with plate no. NLD 720 driven by respondent Geminiano Quinquillera (Quinquillera), owned byrespondent Cecilia Bandoquillo (Bandoquillo), and was seated on the extension seat placed at the center of the Fiera. From San Jose,an old woman wanted to ride, so respondent Noe offered his seat. Since the Fiera was already full, respondent Noe hung or stood onthe left rear carrier of the vehicle. Somewhere along Barangay Sto. Nio, San Jose, Negros Oriental, between kilometers 13 and 14,the Fiera began to slow down and then stopped by the right shoulder of the road to pick up passengers. Suddenly, an Isuzu cargo

truck, owned by petitioner and driven by Gerosano, which was traveling in the same direction, hit the rear end portion of the Fierawhere respondent Noe was standing. Due to the tremendous force, the cargo truck smashed respondent Noe against the Fieracrushing his legs and feet which made him fall to the ground. A passing vehicle brought him to the Silliman University Medical Centerwhere his lower left leg was amputated.

respondent Noe, through his guardian ad litem Arlie Bernardo, filed with the RTC of Dumaguete City a complaint 3 for damages arisingfrom quasi delict against petitioner as the registered owner of the cargo truck and his driver Gerosano.

Defenses:reckless imprudence of respondent driver Quinquillera and his clear violation of the traffic rules and regulations which was theproximate cause of the accident and asked for indemnification for whatever damages they would be sentenced to pay

DECISION OF LOWER COURTS:(1) RTC: ordering defendants Gerosano and Estacion, to pay plaintiff, jointly or solidarily(2) CA: affirmed in toto the decision of the trial court

ISSUE:Whether the owner of the cargo truck is liable

RULING:Yes.

Since the Fiera driver was negligent, there arises a presumption that respondent Bandoquillo, as owner of the Fiera, is negligent in theselection and supervision of her employee; that assuming petitioner Estacion and his driver are not entirely blameless, the negligenceof Quinquillera is sufficient basis why the respective liabilities should be delineated vis-- vis their degree of negligence consistent withArticle 2179 10 of the Civil Code

"unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been negligent if at the time of themishap, he was violating any traffic regulation"; that since the Fiera driver was negligent, there arises a presumption that respondent

Bandoquillo, as owner of the Fiera, is negligent in the selection and supervision of her employee; that assuming petitioner Estacion andhis driver are not entirely blameless, the negligence of Quinquillera is sufficient basis why the respective liabilities should be delineatedvis-- vis their degree of negligence consistent with Article 2179 of the Civil Code.

Respondent Noe's act of standing on the left rear carrier portion of the Fiera showed his lack of ordinary care and foresight that suchact could cause him harm or put his life in danger. It has been held that "to hold a person as having contributed to his injuries, it mustbe shown that he performed an act that brought about his injuries in disregard of warning or signs of an impending danger to health andbody. 24 Respondent Noe's act of hanging on the Fiera is definitely dangerous to his life and limb.

Respondent Quinquillera's act of permitting respondent Noe to hang on the rear portion of the Fiera in such a dangerous positioncreates undue risk of harm to respondent Noe. Quinquillera failed to observe that degree of care, precaution and vigilance that thecircumstances justly demand

In the present case, taking into account the contributing negligence of respondent Noe, we likewise rule that the demands of substantial

justice are satisfied by distributing the damages also on a 20-80 ratio excluding attorney's fees and litigation expenses.

CIVIL LAW; QUASI-DELICTS; DRIVING THE CARGO TRUCK AT A FAST SPEED COUPLED WITH FAULTY BRAKES IS THENEGLIGENT ACT OF THE DRIVER. The accident was further caused by the faulty brakes of the truck. Based on the sketch report,there was only one tire mark of the right tire of the cargo truck during the incident which, as testified to by the police investigator Rubia,meant that the brakes of the truck were not aligned otherwise there would be two tire marks impressions on the road. Althoughpetitioner contends that there are other factors to explain why only one skid mark was found at the place of the incident, such as theangle and edges of the road as well as the balance of the weight of the cargo laden in the truck, he failed to show that indeed thosefactors were present to prove his defense. Such claim cannot be given credence considering that investigator Rubia testified that thebody of the truck was very much on the road, i.e., not over the shoulder of the road, and the road was straight. Indeed, it is thenegligent act of petitioner's driver of driving the cargo truck at a fast speed coupled with faulty brakes which was the proximate cause ofrespondent Noe's injury.

CONTRIBUTORY NEGLIGENCE; PASSENGER'S ACT OF STANDING ON THE REAR CARRIER OF THE MOTOR VEHICLEEXPOSING HIMSELF TO BODILY INJURY. However, we agree with petitioner that respondent Noe's act of standing on the rear

carrier of the Fiera exposing himself to bodily injury is in itself negligence on his part. We find that the trial court and the CA erred whenthey failed to consider that respondent Noe was also guilty of contributory negligence. Contributory negligence is conduct on the part of

Both the cargo truck and jeepney are liable to Bernardo subjectto mitigation due to contributory negligence of Bernardo


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the injured party, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required toconform for his own protection. It has been established by the testimony of respondent Noe that he was with four or five other personsstanding on the rear carrier of the Fiera since it was already full. Respondent Noe's act of standing on the left rear carrier portion of theFiera showed his lack of ordinary care and foresight that such act could cause him harm or put his life in danger. It has been held that"to hold a person as having contributed to his injuries, it must be shown that he performed an act that brought about his injuries indisregard of warning or signs of an impending danger to health and body. Respondent Noe's act of hanging on the Fiera is definitelydangerous to his life and limb.


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CONTRIBUTORY NEGLIGENCE

Contributory negligence has been defined as the act or omission amounting to want of ordinary care on the part of the person injuredwhich, concurring with the defendants negligence, is the proximate cause of the injury.

To hold a person as having contributed to his injuries, it must be shown that he performed an act that brought about his injuries indisregard of warnings or signs of an impending danger to health and body

8. RAKES v ATLANTIC [G.R. No. 1719. January 23, 1907.] M. H., RAKES, plaintiff-appellee, vs. THE ATLANTIC, GULF AND PACIFICCOMPANY, defendant-appellant.

FACTS:he plaintiff, one of a gang of eight negro laborers in the employment of the defendant, was at work transporting iron rails from a barge inthe harbor to the company's yard near the malecon in Manila. Plaintiff claims that but one hand car was used in this work. Thedefendant has proved that there were two immediately following one another, upon which were piled lengthwise seven rails, eachweighing 560 pounds, so that the ends of the rails lay upon two crosspieces or sills secured to the cars, but without side pieces orguards 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 itssides. 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 thetrack sagged, the tie broke, the car either canted or upset, the rails slid off and caught the plaintiff, breaking his leg, which wasafterwards amputated at about the knee.

ISSUE:Whether the company is liable

RULING:

Yes. The negligence of the plaintiff, contributing to the accident, to what extent it existed in fact and what legal effect is to be given it. Intwo particulars is he charged with carelessness:First. That having noticed the depression in the track he continued his work; andSecond.That he walked on the ends of the ties at the side of the car instead of along the boards, either before or behind it.

The Court ruled that His lack of caution in continuing at his work after noticing the slight depression of the rail was not of so gross anature as to constitute negligence, barring his recovery under the severe American rule. While the plaintiff and his witnesses swear thatnot only were they not forbidden to proceed in this way, but were expressly directed by the foreman to do so, both the officers of thecompany and three of the workmen testify that there was a general prohibition frequently made known to all the gang against walkingby the side of the car, and the foreman swears that he repeated the prohibition before the starting of this particular load. On thiscontradiction 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 injuryas a proximate, although not as its primary cause.

Distinction must be between the accident and the injury, between the event itself, without which there could have been no accident, andthose acts of the victim not entering into it, independent of it, but contributing under review was the displacement of the crosspiece orthe failure to replace it. this produced the event giving occasion for damages that is, the sinking of the track and the sliding of the ironrails.

1. CIVIL LIABILITY FOR DAMAGES. In order to enforce the liability of an employer for injuries to his employee, it is not necessarythat a criminal action be first prosecuted against the employer or his representative primarily chargeable with the accident. No criminalproceeding having been taken, the civil action may proceed to judgment.

2. LIABILITY OF EMPLOYER TO WORKMEN. The responsibility of an employer to his employee of a fellow-servant of theemployee injured, is not adopted in Philippine jurisprudence.

3. FELLOW-SERVANT RULE. Sua cuique culpa nocet. The doctrine known as the "Fellow-servant rule," exonerating the employerwhere the injury was incurred through the negligence of a fellow-servant of the employee injured, is not adopted in Philippinejurisprudence.

9. [OLD CASE] TAYLOR v MANILA ELECTRIC G.R. No. L-4977 March 22, 1910 DAVID TAYLOR, plaintiff-appellee, vs. THE MANILAELECTRIC RAILROAD AND LIGHT COMPANY, defendant-appellant.

FACTS:

The plaintiff, David Taylor, was at the time when he received the injuries complained of, 15 years of age, the son of a mechanicalengineer, more mature than the average boy of his age, and having considerable aptitude and training in mechanics.

The defendant is a foreign corporation engaged in the operation of a street railway and an electric light system in the city of Manila.

On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about 12 years of age, crossed the footbridge to the Isladel Provisor, for the purpose of visiting one Murphy, an employee of the defendant, who and promised to make them a cylinder for aminiature engine.

Finding on inquiry that Mr. Murphy was not in his quarters, the boys, impelled apparently by youthful curiosity and perhaps by theunusual interest which both seem to have taken in machinery, spent some time in wandering about the company's premises. The visitwas made on a Sunday afternoon, and it does not appear that they saw or spoke to anyone after leaving the power house where theyhad asked for Mr. Murphy.

After watching the operation of the travelling crane used in handling the defendant's coal, they walked across the open space in theneighborhood of the place where the company dumped in the cinders and ashes from its furnaces. Here they found some twenty orthirty brass fulminating caps scattered on the ground. These caps are approximately of the size and appearance of small pistol

cartridges and each has attached to it two long thin wires by means of which it may be discharged by the use of electricity. They areintended for use in the explosion of blasting charges of dynamite, and have in themselves a considerable explosive power.


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After some discussion as to the ownership of the caps, and their right to take them, the boys picked up all they could find, hung them onstick, of which each took end, and carried them home.

After crossing the footbridge, they met a little girl named Jessie Adrian, less than 9 years old, and all three went to the home of the boyManuel. The boys then made a series of experiments with the caps. Then they opened one of the caps with a knife, and finding that itwas filled with a yellowish substance they got matches, and David held the cap while Manuel applied a lighted match to the contents.An explosion followed, causing more or less serious injuries to all three.

Jessie, who when the boys proposed putting a match to the contents of the cap, became frightened and started to run away, received aslight cut in the neck. Manuel had his hand burned and wounded, and David was struck in the face by several particles of the metal

capsule, one of which injured his right eye to such an extent as to the necessitate its removal by the surgeons who were called in tocare for his wounds.

Two years before the accident, plaintiff spent four months at sea, as a cabin boy on one of the interisland transports. Later he took upwork in his father's office, learning mechanical drawing and mechanical engineering. About a month after his accident he obtainedemployment as a mechanical draftsman and continued in that employment for six months at a salary of P2.50 a day; and it appears thathe was a boy of more than average intelligence, taller and more mature both mentally and physically than most boys of fifteen.

Defendant company, apparently relying on the rule of law which places the burden of proof of such allegations upon the plaintiff, offeredno evidence in rebuttal, and insists that plaintiff failed in his proof.

ISSUE:

Whether defendant company is liable

RULING:

No, the company is not liable.

under all the circumstances of this case the negligence of the defendant in leaving the caps exposed on its premises was not theproximate cause of the injury received by the plaintiff, which therefore was not, properly speaking, "attributable to the negligence of thedefendant," and, on the other hand, we are satisfied that plaintiffs action in cutting open the detonating cap and putting match to itscontents was the proximate cause of the explosion and of the resultant injuries inflicted upon the plaintiff, and that the defendant,therefore is not civilly responsible for the injuries thus incurred.

Plaintiff in an action such as that under consideration, in order to establish his right to a recovery, must establish by competentevidence:

(1) Damages to the plaintiff. (2) Negligence by act or omission of which defendant personally, or some person for whose acts it mustrespond, was guilty. (3) The connection of cause and effect between the negligence and the damage.

It is clear that the accident could not have happened and not the fulminating caps been left exposed at the point where they were found,or if their owner had exercised due care in keeping them in an appropriate place; but it is equally clear that plaintiff would not have beeninjured had he not, for his own pleasure and convenience, entered upon the defendant's premises, and strolled around thereon withoutthe express permission of the defendant, and had he not picked up and carried away the property of the defendant which he found onits premises, and had he not thereafter deliberately cut open one of the caps and applied a match to its contents.

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

plaintiff at the time of the accident was a well-grown youth of 15, and the record discloses throughout that he was exceptionally well

qualified to take care of himself.

True, he may not have known and probably did not know the precise nature of the explosion which might be expected from the ignitionof 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 orless dangerous explosion might be expected from his act, and yet he willfully, recklessly, and knowingly produced the explosion.

the question of negligence necessarily depends on the ability of the minor to understand the character of his own acts and

their consequences; he was sui juris (legally competent; capacity to manage ones own affairs) in the sense that his age and hisexperience qualified him to understand and appreciate the necessity for the exercise of that degree of caution which would haveavoided the injury which resulted from his own deliberate act.

Counsel for plaintiff relies on the doctrine laid down in many of the courts of last resort in the United States in the cases known as the

"Torpedo" and "Turntable" cases, and the cases based there the case of Ryan vs. Towar (128 Mich., 463) formally repudiated anddisapproved the doctrine of the Turntable cases, especially that laid down in Railroad Company vs. Stout, in a very able decisionwherein it held, in the language of the syllabus:

(1) That the owner of the land is not liable to trespassers thereon for injuries sustained by them, not due to his wanton or willful acts; (2)that no exception to this rule exists in favor of children who are injured by dangerous machinery naturally calculated to attract them tothe premises; (3) that an invitation or license to cross the premises of another can not be predicated on the mere fact that no stepshave been taken to interfere with such practice;

(4) that there is no difference between children and adults as to the circumstances that will warrant the inference of an invitation or alicense to enter upon another's premises.

Principle of proportional damages is not applicable. Where he contributes to the principal occurrence, as one of its determiningfactors, he can not recover. Where, in conjunction with the occurrence, he contributes only to his own injury, he may recover the

amount that the defendant responsible for the event should pay for such injury, less a sum deemed a suitable equivalent for his ownimprudence.


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4. CONTRIBUTORY NEGLIGENCE. The negligence of the injured person contributing to his injury but not being one of thedetermining causes of the principal accident, does not operate as a bar to recovery, but only in reduction of his damages. Each party ischargeable with damages in proportion to his fault.

10. PBCOM V CA [G.R. No. 97626. March 14, 1997.] PHILIPPINE BANK OF COMMERCE, now absorbed by PHILIPPINECOMMERCIAL INTERNATIONAL BANK, ROGELIO LACSON, DIGNA DE LEON, MARIA ANGELITA PASCUAL, et al., petitioners, vs.THE COURT OF APPEALS, ROMMEL'S MARKETING CORP., represented by ROMEO LIPANA, its President & General Manager,respondents.

FACTS:

A complaint filed by the private respondent Rommel's Marketing Corporation (RMC for brevity), represented by its President andGeneral Manager Romeo Lipana, to recover from the former Philippine Bank of Commerce (PBC for brevity), now absorbed by thePhilippine Commercial International Bank, the sum of P304,979.74 representing various deposits it had made in its current

account with said bank but which were not credited to its account, and were instead deposited to the account of one Bienvenido Cotas,allegedly due to the gross and inexcusable negligence of the petitioner bank.

RMC maintained two (2) separate current accounts, Current Account Nos. 53-01980-3 and 53-01748-7, with the Pasig Branch of PBCin connection with its business of selling appliances.

From May 5, 1975 to July 16, 1976, petitioner Romeo Lipana claims to have entrusted RMC funds in the form of cash totallingP304,979.74 to his secretary, Irene Yabut, for the purpose of depositing said funds in the current accounts of RMC with PBC. It turnedout, however, that these deposits, on all occasions, were not credited to RMC's account but were instead deposited to Account No. 53-01734-7 of Yabut's husband, Bienvenido Cotas who likewise maintains an account with the same bank. During this period, petitionerbank had, however, been regularly furnishing private respondent with monthly statements showing its current accounts balances.

Unfortunately, it had never been the practice of Romeo Lipana to check these monthly statements of account reposing complete trustand confidence on petitioner bank.

Irene Yabut's modus operandi is far from complicated. She would accomplish two (2) copies of the deposit slip, an original and aduplicate. The original showed the name of her husband as depositor and his current account number. On the duplicate copy waswritten the account number of her husband but the name of the account holder was left blank.

Upon discovery of the loss of its funds, RMC demanded from petitioner bank the return of its money, but as its demand went unheeded,it filed a collection suit before the Regional Trial Court of Pasig, Branch 160.

DECISION OF LOWER COURTS:(1) Trial Court: found petitioner bank negligent.(2) Appellate court: affirmed the foregoing decision.

ISSUE:What is the proximate cause of the loss, to the tune of P304,979.74, suffered by the private respondent RMC petitioner bank'snegligence or that of private respondent's?

RULING:The banks negligence is the proximate cause.

Applying the above test, it appears that the bank's teller, Ms. Azucena Mabayad, was negligent in validating, officially stamping andsigning all the deposit slips prepared and presented by Ms. Yabut, despite the glaring fact that the duplicate copy was not completelyaccomplished contrary to the self- imposed procedure of the bank with respect to the proper validation of deposit slips, original orduplicate, as testified to by Ms. Mabayad herself.

The fact that the duplicate slip was not compulsorily required by the bank in accepting deposits should not relieve the petitioner bank ofresponsibility. The odd circumstance alone that such duplicate copy lacked one vital information that of the name of the account

holder should have already put Ms. Mabayad on guard. Rather than readily validating the incomplete duplicate copy, she shouldhave proceeded more cautiously by being more probing as to the true reason why the name of the account holder in the duplicate slipwas left blank while that in the original was filled up. She should not have been so naive in accepting hook, line and sinker the tooshallow excuse of Ms. Irene Yabut to the effect that since the duplicate copy was only for her personal record, she would simply fill upthe blank space later on. A "reasonable man of ordinary prudence" would not have given credence to such explanation and would haveinsisted that the space left blank be filled up as a condition for validation. It was this negligence of Ms. Azucena Mabayad, coupled bythe negligence of the petitioner bank in the selection and supervision of its bank teller, which was the proximate cause of the losssuffered by the private respondent, and not the latter's act of entrusting cash to a dishonest employee, as insisted by the petitioners.

It was this negligence of Ms. Azucena Mabayad, coupled by the negligence of the petitioner bank in the selection and supervision of itsbank teller, which was the proximate cause of the loss suffered by the private respondent, and not the latter's act of entrusting cash to adishonest employee, as insisted by the petitioners.

Absent the act of Ms. Mabayad in negligently validating the incomplete duplicate copy of the deposit slip, Ms. Irene Yabut would nothave the facility with which to perpetrate her fraudulent scheme with impunity.

In the case of banks, however, the degree of diligence required is more than that of a good father of a family. Considering the fiduciarynature of their relationship with their depositors, banks are duty bound to treat the accounts of their clients with the highest degree ofcare.

The damage would definitely not have ballooned to such an amount if only RMC, particularly Romeo Lipana, had exercised even a littlevigilance in their financial affairs. This omission by RMC amounts to contributory negligence which shall mitigate the damages that maybe awarded to the private respondent under Article 2179 of the New Civil Code, to wit: ". . . When the plaintiff's own negligence was theimmediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediateand proximate cause of the injury being the defendant's lack of due care, the plaintiff may recover damages, but the courts shallmitigate the damages to be awarded."

In view of this, we believe that the demands of substantial justice are satisfied by allocating the damage on a 60-40 ratio. Thus, 40% ofthe damage awarded by the respondent appellate court, except the award of P25,000.00 attorney's fees, shall be borne by private

respondent RMC; only the balance of 60% needs to be paid by the petitioners. The award of attorney's fees shall be borne exclusivelyby the petitioners.


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CIVIL LAW; ELEMENTS OF QUASI-DELICT. There are three elements of a quasi-delict:(a) damages suffered by the plaintiff;(b) fault or negligence of the defendant, or some other person for whose acts he must respond; and(c) the connection of cause and effect between the fault or negligence of the defendant and the damages incurred by the plaintiff.

NEGLIGENCE; DEFINED AND CONSTRUED. Negligence is the omission to do something which a reasonable man, guided bythose considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent andreasonable man would do.

11. LAMBERT v HEIRS OF CASTILLON [G.R. No. 160709. February 23, 2005.] NELEN LAMBERT, assisted by her husband,

GLENROY ALOYSIUS LAMBERT, petitioners, vs. HEIRS OF RAY CASTILLON, Represented by MARILOU T. CASTILLON andSERGIO LABANG, respondents.

FACTS:In the evening of January 13, 1991, Ray Castillon visited the house of his brother Joel Castillon at Tambo, Iligan City and borrowed hismotorcycle. He then invited his friend, Sergio Labang, to roam around Iligan City. Ray drove the motorcycle with Sergio as thebackrider.

At around past 10:00 p.m., after eating supper at Hona's Restaurant and imbibing a bottle of beer, they traversed the highway towardsTambo at a high speed. Upon reaching Brgy. Sto. Rosario, they figured in an accident with a Tamaraw jeepney, owned by petitionerNelen Lambert and driven by Reynaldo Gamot, which was traveling on the same direction but made a sudden left turn. The incidentresulted in the instantaneous death of Ray and injuries to Sergio.

Respondents, the heirs of Ray Castillon, thus filed an action for damages with prayer for preliminary attachment against the petitionerNelen Lambert.

DECISION OF LOWER COURTS:(1) RTC: rendered a decision in favor of herein private respondents but reduced petitioner's liability by 20% in view of the contributorynegligence of Ray(2) CA: affirmed the decision of the trial court.

ISSUE:Whether Lambert is liable for damages

RULING:Yes.It is apparent that Reynaldo Gamot did not keep a lookout for vehicles or persons following him before proceeding to turn left. He failedto take into account the possibility that others may be following him. He did not employ the necessary precaution to see to it that theroad was clear.

CIVIL LAW; TORTS AND DAMAGES; PROXIMATE CAUSE; DEFINED; CASE AT BAR. Clearly, the abrupt and sudden left turn byReynaldo, without first establishing his right of way, was the proximate cause of the mishap which claimed the life of Ray and injuredSergio. Proximate cause is defined as that which, in the natural and continuous sequence, unbroken by any efficient, intervening cause,produces the injury, and without which the result would not have occurred. The cause of the collision is traceable to the negligent act ofReynaldo for, as the trial court correctly held, without that left turn executed with no precaution, the mishap in all probability would nothave happened.

CONTRIBUTORY NEGLIGENCE; A PLAINTIFF WHO IS PARTLY RESPONSIBLE FOR HIS OWN INJURY SHOULD NOT BEENTITLED TO RECOVER DAMAGES IN FULL BUT MUST BEAR THE CONSEQUENCES OF HIS OWN NEGLIGENCE; CASE ATBAR. The underlying precept on contributory negligence is that a plaintiff who is partly responsible for his own injury should not beentitled to recover damages in full but must bear the consequences of his own negligence. The defendant must thus be held liable onlyfor the damages actually caused by his negligence. The determination of the mitigation of the defendant's liability varies depending onthe circumstances of each case. . . .In the case at bar, it was established that Ray, at the time of the mishap:

(1) was driving the motorcycle at a high speed;(2) was tailgating the Tamaraw jeepney;(3) has imbibed one or two bottles of beer; and(4) was not wearing a protective helmet.

These circumstances, although not constituting the proximate cause of his demise and injury to Sergio, contributed to the same result.The contribution of these circumstances are all considered and determined in terms of percentages of the total cause. Hence, pursuantto Rakes v. AG & P, the heirs of Ray Castillon shall recover damages only up to 50% of the award. In other words, 50% of the damageshall be borne by the private respondents; the remaining 50% shall be paid by the petitioner.

12. [ALSO # 7] ESTACION v BERNARDO [G.R. No. 144723. February 27, 2006.] LARRY ESTACION, petitioner, vs. NOEBERNARDO, thru and his guardian ad litem ARLIE BERNARDO, CECILIA BANDOQUILLO and GEMINIANO QUINQUILLERA,respondents.

FACTS:

In the afternoon of October 16, 1982, respondent Noe was going home to Dumaguete from Cebu, via Bato and Tampi. At Tampi, heboarded a Ford Fiera passenger jeepney with plate no. NLD 720 driven by respondent Geminiano Quinquillera (Quinquillera), owned byrespondent Cecilia Bandoquillo (Bandoquillo), and was seated on the extension seat placed at the center of the Fiera. From San Jose,an old woman wanted to ride, so respondent Noe offered his seat. Since the Fiera was already full, respondent Noe hung or stood onthe left rear carrier of the vehicle. Somewhere along Barangay Sto. Nio, San Jose, Negros Oriental, between kilometers 13 and 14,the Fiera began to slow down and then stopped by the right shoulder of the road to pick up passengers. Suddenly, an Isuzu cargotruck, owned by petitioner and driven by Gerosano, which was traveling in the same direction, hit the rear end portion of the Fierawhere respondent Noe was standing. Due to the tremendous force, the cargo truck smashed respondent Noe against the Fieracrushing his legs and feet which made him fall to the ground. A passing vehicle brought him to the Silliman University Medical Centerwhere his lower left leg was amputated.

respondent Noe, through his guardian ad litem Arlie Bernardo, filed with the RTC of Dumaguete City a complaint 3 for damages arisingfrom quasi delict against petitioner as the registered owner of the cargo truck and his driver Gerosano.

Defenses:


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reckless imprudence of respondent driver Quinquillera and his clear violation of the traffic rules and regulations which was theproximate cause of the accident and asked for indemnification for whatever damages they would be sentenced to pay

DECISION OF LOWER COURTS:(1) RTC: ordering defendants Gerosano and Estacion, to pay plaintiff, jointly or solidarily(2) CA: affirmed in toto the decision of the trial court

ISSUE:Whether the owner of the cargo truck is liable

RULING:Yes.

Since the Fiera driver was negligent, there arises a presumption that respondent Bandoquillo, as owner of the Fiera, is negligent in theselection and supervision of her employee; that assuming petitioner Estacion and his driver are not entirely blameless, the negligenceof Quinquillera is sufficient basis why the respective liabilities should be delineated vis-- vis their degree of negligence consistent withArticle 2179 10 of the Civil Code

"unless there is proof to the contrary, it is presumed that a person driving a motor vehicle has been negligent if at the time of themishap, he was violating any traffic regulation"; that since the Fiera driver was negligent, there arises a presumption that respondentBandoquillo, as owner of the Fiera, is negligent in the selection and supervision of her employee; that assuming petitioner Estacion andhis driver are not entirely blameless, the negligence of Quinquillera is sufficient basis why the respective liabilities should be delineatedvis-- vis their degree of negligence consistent with Article 2179 of the Civil Code.

Respondent Noe's act of standing on the left rear carrier portion of the Fiera showed his lack of ordinary care and foresight that such

act could cause him harm or put his life in danger. It has been held that "to hold a person as having contributed to his injuries, it mustbe shown that he performed an act that brought about his injuries in disregard of warning or signs of an impending danger to health andbody. 24 Respondent Noe's act of hanging on the Fiera is definitely dangerous to his life and limb.

Respondent Quinquillera's act of permitting respondent Noe to hang on the rear portion of the Fiera in such a dangerous positioncreates undue risk of harm to respondent Noe. Quinquillera failed to observe that degree of care, precaution and vigilance that thecircumstances justly demand

In the present case, taking into account the contributing negligence of respondent Noe, we likewise rule that the demands of substantialjustice are satisfied by distributing the damages also on a 20-80 ratio excluding attorney's fees and litigation expenses.

CIVIL LAW; QUASI-DELICTS; DRIVING THE CARGO TRUCK AT A FAST SPEED COUPLED WITH FAULTY BRAKES IS THENEGLIGENT ACT OF THE DRIVER. The accident was further caused by the faulty brakes of the truck. Based on the sketch report,there was only one tire mark of the right tire of the cargo truck during the incident which, as testified to by the police investigator Rubia,

meant that the brakes of the truck were not aligned otherwise there would be two tire marks impressions on the road. Althoughpetitioner contends that there are other factors to explain why only one skid mark was found at the place of the incident, such as theangle and edges of the road as well as the balance of the weight of the cargo laden in the truck, he failed to show that indeed thosefactors were present to prove his defense. Such claim cannot be given credence considering that investigator Rubia testified that thebody of the truck was very much on the road, i.e., not over the shoulder of the road, and the road was straight. Indeed, it is thenegligent act of petitioner's driver of driving the cargo truck at a fast speed coupled with faulty brakes which was the proximate cause ofrespondent Noe's injury.

CONTRIBUTORY NEGLIGENCE; PASSENGER'S ACT OF STANDING ON THE REAR CARRIER OF THE MOTOR VEHICLEEXPOSING HIMSELF TO BODILY INJURY. However, we agree with petitioner that respondent Noe's act of standing on the rearcarrier of the Fiera exposing himself to bodily injury is in itself negligence on his part. We find that the trial court and the CA erred whenthey failed to consider that respondent Noe was also guilty of contributory negligence. Contributory negligence is conduct on the part ofthe injured party, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required toconform for his own protection. It has been established by the testimony of respondent Noe that he was with four or five other personsstanding on the rear carrier of the Fiera since it was already full. Respondent Noe's act of standing on the left rear carrier portion of the

Fiera showed his lack of ordinary care and foresight that such act could cause him harm or put his life in danger. It has been held that"to hold a person as having contributed to his injuries, it must be shown that he performed an act that brought about his injuries indisregard of warning or signs of an impending danger to health and body. Respondent Noe's act of hanging on the Fiera is definitelydangerous to his life and limb.

13. PNR v BRUNTY [G.R. No. 169891. November 2, 2006.] PHILIPPINE NATIONAL RAILWAYS, petitioner, vs. ETHEL BRUNTY andJUAN MANUEL M. GARCIA, respondents.

FACTS:Rhonda Brunty, daughter of respondent Ethel Brunty and an American citizen, came to the Philippines for a visit sometime in January1980. Prior to her departure, she, together with her Filipino host Juan Manuel M. Garcia, traveled to Baguio City on board a MercedesBenz sedan with plate number FU 799, driven by Rodolfo L. Mercelita. It was about 12:00 midnight, January 25, 1980. By then, PNRTrain No. T- 71, driven by Alfonso Reyes, was on its way to Tutuban, Metro Manila 4 as it had left the La Union station at 11:00 p.m.,January 24, 1980.

By 2:00 a.m., Rhonda Brunty, Garcia and Mercelita were already approaching the railroad crossing at Barangay Rizal, Moncada,Tarlac. Mercelita, driving at approximately 70 km/hr, drove past a vehicle, unaware of the railroad track up ahead and that they wereabout to collide with PNR Train No. T-71. Mercelita was instantly killed when the Mercedes Benz smashed into the train; the two otherpassengers suffered serious physical injuries. 5 A certain James Harrow 6 brought Rhonda Brunty to the Central Luzon Doctor'sHospital in Tarlac, where she was pronounced dead after ten minutes from arrival. Garcia, who had suffered severe head injuries, wasbrought via ambulance to the same hospital. He was transferred to the Manila Doctor's Hospital, and later to the Makati Medical Centerfor further treatment. 7

On July 28, 1981, Ethel Brunty sent a demand letter 8 to the PNR demanding payment of actual, compensatory, and moral damages,as a result of her daughter's death. When PNR did not respond, Ethel Brunty and Garcia, filed a complaint 9 for damages against thePNR before the RTC of Manila.

Allegations:1. direct and proximate result of the gross and reckless negligence of PNR in not providing the necessary equipment at the railroad

crossing in Barangay Rizal, Municipality of Moncada, Tarlac.


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2. there was no flagbar or red light signal to warn motorists who were about to cross the railroad track, and that the flagman orswitchman was only equipped with a hand flashlight3. failed to supervise its employees in the performance of their respective tasks and duties, more particularly the pilot and operator ofthe train

Defenses:1. right of way on the railroad crossing in question, and that it has no legal duty to put up a bar or red light signal in any such crossing.2. there were adequate, visible, and clear warning signs strategically posted on the sides of the road before the railroad crossing.3. the immediate and proximate cause of the accident was Mercelita's negligence, and that he had the last clear chance to avoid theaccident. The driver disregarded the warning signs, the whistle blasts of the oncoming train and the flashlight signals to stop given bythe guard

DECISION OF LOWER COURTS:1. RTC: directed PNR to pay2. CA: affirmed RTC with modification as to amount of damages

ISSUE:Is PNR liable?

RULING:

the alleged safety measures installed by the PNR at the railroad crossing is not only inadequate but does not satisfy well-settled safetystandards in transportatio

An examination of the photographs of the railroad crossing at Moncada, Tarlac presented as evidence by PNR itself would yield the

following:(1.) absence of flagbars or safety railroad bars;(2.) inadequacy of the installed warning signals; and(3.) lack of proper lighting within the area. Thus, even if there was a flagman stationed at the site as claimed by PNR (petitioner), itwould still be impossible to know or see that there is a railroad crossing/tracks ahead, or that there is an approaching train from theMoncada side of the road since one's view would be blocked by a cockpit arena

To prove contributory negligence, it is still necessary to establish a causal link, although not proximate, between the negligence of theparty and the succeeding injury. In a legal sense, negligence is contributory only when it contributes proximately to the injury, and notsimply a condition for its occurrence.

The court below found that there was a slight curve before approaching the tracks; the place was not properly illuminated; one's viewwas blocked by a cockpit arena; and Mercelita was not familiar with the road. Yet, it was also established that Mercelita was thendriving the Mercedes Benz at a speed of 70 km/hr and, in fact, had overtaken a vehicle a few yards before reaching the railroad track.

Mercelita should not have driven the car the way he did. However, while his acts contributed to the collision, they nevertheless do notnegate petitioner's liability. The record is bereft of any allegation and proof as to the relationship between Mercelita (the driver) andRhonda Brunty. Hence, the earlier finding of contributory negligence on the part of Mercelita, which generally has the effect of mitigationof liability, does not apply.

Yes


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3. ASSUMPTION OF RISK

Article 1174. Except in cases expressly specified by the law, or when it is otherwise declared by stipulation, or when the nature of theobligation requires the assumption of risk, no person shall be responsible for those events which could not be foreseen, or which,though foreseen, were inevitable. (1105a)

14. AFIALDA v HISOLE [G.R. No. L-2075. November 29, 1949.] MARGARITA AFIALDA, plaintiff-appellant, vs. BASILIO HISOLE andFRANCISCO HISOLE, defendants- appellees.

FACTS:

The now deceased, Loreto Afialda, was employed by the defendant spouses as caretaker of their carabaos at a fixed compensation;that while tending the animals he was, on March 21, 1947, gored by one of them and later died as a consequence of his injuries; thatthe mishap was due neither to his own fault nor to force majeure; and that plaintiff is his elder sister and heir depending upon him forsupport.

Plaintiff seeks to hold defendants liable under article 1905 of the Civil Code, which reads:

"The possessor of an animal, or the one who uses the same, is liable for any damages it may cause, even if such animal should escapefrom him or stray away.

"This liability shall cease only in case the damage should arise from force majeure or from the fault of the person who may havesuffered it."

DECISION OF LOWER COURTS:(1) Lower Court: owner of an animal is answerable only for damages caused to a stranger, and that for damage caused to the caretakerof the animal the owner would be liable only if he had been negligent or at fault under article 1902 of the same code.

ISSUE:whether the owner of the animal is liable when the damage is caused to its caretaker.

RULING:

No.Under article 1905 of the Civil Code, the owner of an animal is not liable for injury caused by it to its caretaker.

For the statute names the possessor or user of the animal as the person liable for "any damages it may cause," and this for the obviousreason that the possessor or user has the custody and control of the animal and is therefore the one in a position to prevent it fromcausing damage.

In the present case, the animal was in the custody and under the control of the caretaker, who was paid for his work as such.Obviously, it was the caretaker's business to try to prevent the animal from causing injury or damage to anyone, including himself. Andbeing injured by the animal under those circumstances, was one of the risks of the occupation which he had voluntarily assumed andfor which he must take the consequences.

15. TRANSPORTO v MIJARES

TOPIC: DANGEROUS CONDITIONS

A person who, knowing that he is exposed to a dangerous condition, voluntarily assumes the risk of such dangerous condition may notrecover from the defendant who maintained such dangerous conditions.

TRANSPORTO v MIJARES

Petitioner seeks to recover damages due to injuries sustained by him when he took the bet of defendant and lit the firecracker whileholding it tightly with his hand.

Petitioner cannot recover. He was already told by his officemates that the firecracker was real, and would explode, yet he was actingstupid and all-knowing, saying that if it was held tightly, it wouldnt explode. He was the only cause for his own injury.

16. [G.R. No. 53401. November 6, 1989.] THE ILOCOS NORTE ELECTRIC COMPANY, petitioner, vs. HONORABLE COURT OFAPPEALS, (First Division) LILIAN JUAN LUIS, JANE JUAN YABES, VIRGINIA JUAN CID, GLORIA JUAN CARAG, and PURISIMAJUAN, respondents.

FACTS:in the evening of June 28 until the early morning of June 29, 1967 a strong typhoon by the code name "Gening" buffeted the province ofIlocos Norte, bringing heavy rains and consequent flooding in its wake. Between 5:30 and 6:00 A.M. on June 29, 1967, after thetyphoon had abated and when the floodwaters were beginning to recede, the deceased Isabel Lao Juan, fondly called Nana Belen,ventured out of the house of her son-in-law, Antonio Yabes, on No. 19 Guerrero Street, Laoag City, and proceeded northward towardsthe direction of the Five Sisters Emporium, of which she was the owner and proprietress, to look after the merchandise therein thatmight have been damaged. Wading in waistdeep flood on Guerrero, the deceased was followed by Aida Bulong, a Salesgirl at the FiveSisters Grocery, also owned by the deceased, and by Linda Alonzo Estavillo, a ticket seller at the YJ Cinema, which was partly ownedby the deceased. Aida and Linda walked side by side at a distance of between 5 and 6 meters behind the deceased. Suddenly, thedeceased screamed "Ay" and quickly sank into the water. The two girls attempted to help, but fear dissuaded them from doing sobecause on the spot where the deceased sank they saw an electric wire dangling from a post and moving in snake-like fashion in thewater. Upon their shouts for help, Ernesto dela Cruz came out of the house of Antonio Yabes. Ernesto tried to go to the deceased, but

at four meters away from her he turned back shouting that the water was grounded. Aida and Linda prodded Ernesto to seek help fromAntonio Yabes at the YJ Cinema building which was four or five blocks away.

1 3

article 2183


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When Antonio Yabes was informed by Ernesto that his mother-in-law had been electrocuted, he acted immediately. With his wife Jane,together with Ernesto and one Joe Ros, Yabes passed by the City Hall of Laoag to request the police to ask the people of defendantIlocos Norte Electric Company or INELCO to cut off the electric current. Then the party waded to the house on Guerrero Street. Thefloodwater was receding and the lights inside the house were out indicating that the electric current had been cut off in Guerrero. Yabesinstructed his boys to fish for the body of the deceased. The body was recovered about two meters from an electric post.

In another place, at about 4:00 AM. on that fateful date, June 29, 1967, Engineer Antonio Juan, Power Plant Engineer of the NationalPower Corporation at the Laoag Diesel-Electric Plant, noticed certain fluctuations in their electric meter which indicated suchabnormalities as grounded or short-circuited lines. Between 6:00 and 6:30 A.M., he set out of the Laoag NPC Compound on aninspection. On the way, he saw grounded and disconnected lines. Electric lines were hanging from the posts to the ground. Since hecould not see any INELCO lineman, he decided to go to the INELCO Office at the Life Theatre on Rizal Street by way of Guerrero.

At about 8:10 A.M., Engr. Juan went out of the compound again on another inspection trip. Having learned of the death of Isabel LaoJuan, he passed by the house of the deceased at the corner of Guerrero and M.H. del Pilar streets to which the body had been taken.

In the afternoon of the same day, he went on a third inspection trip preparatory to the restoration of power. The dangling wire he saw onGuerrero early in the morning of June 29, 1967 was no longer there.

An action for damages in the aggregate amount of P250,000 was instituted by the heirs of the deceased with the aforesaid CFI on June24, 1968.

Defenses:(1) electric service system of the INELCO in the whole franchise area did not suffer from any defect that might constitute a hazard to lifeand property.(2) service lines, devices and other INELCO equipment in Area No. 9 had been newly-installed prior to the date in question.

(3) installed safety devices to prevent and a

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