G.R. No.

L-57079 September 29, 1989

PHILIPPINE LONG DISTANCE TELEPHONE CO.,

INC., petitioner,
vs.
COURT OF APPEALS and SPOUSES ANTONIO ESTEBAN and GLORIA
ESTEBAN, respondents.

REGALADO, J.:

This case had its inception in an action for damages

instituted in the former Court of First Instance of
Negros Occidental 1 by private respondent spouses
against petitioner Philippine Long Distance Telephone
Company (PLDT, for brevity) for the injuries they
sustained in the evening of July 30, 1968 when their
jeep ran over a mound of earth and fell into an open
trench, an excavation allegedly undertaken by PLDT for
the installation of its underground conduit system. The
complaint alleged that respondent Antonio Esteban
failed to notice the open trench which was left
uncovered because of the creeping darkness and the lack
of any warning light or signs. 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 the respondent
husband suffered cut lips. In addition, the windshield
of the jeep was shattered. 2

PLDT, in its answer, denies liability on the contention

that the injuries sustained by respondent spouses were
the result of their own negligence and that the entity
which should be held responsible, if at all, is L.R.
Barte and Company (Barte, for short), an independent
contractor which undertook the construction of the
manhole and the conduit system. 3 Accordingly, PLDT
filed a third-party complaint against Barte alleging
that, under the terms of their agreement, PLDT should
in no manner be answerable for any accident or injuries
arising from the negligence or carelessness of Barte or
any of its employees. 4 In answer thereto, Barte claimed
that it was not aware nor was it notified of the
accident involving respondent spouses and that it had
complied with the terms of its contract with PLDT by
installing the necessary and appropriate standard signs
in the vicinity of the work site, with barricades at
both ends of the excavation and with red lights at
night along the excavated area to warn the traveling
public of the presence of excavations. 5

On October 1, 1974, the trial court rendered a decision

in favor of private respondents, the decretal part of
which reads:

IN VIEW OF THE FOREGOING considerations the

defendant Philippine Long Distance Telephone
Company is hereby ordered (A) to pay the
plaintiff Gloria Esteban the sum of P20,000.00
as moral damages and P5,000.00 exemplary
damages; to plaintiff Antonio Esteban the sum
of P2,000.00 as moral damages and P500.00 as
exemplary damages, with legal rate of interest
from the date of the filing of the complaint
until fully paid. The defendant is hereby
ordered to pay the plaintiff the sum of
P3,000.00 as attorney's fees.

(B) The third-party defendant is hereby ordered

to reimburse whatever amount the defendant-
third party plaintiff has paid to the
plaintiff. With costs against the defendant. 6

From this decision both PLDT and private respondents

appealed, the latter appealing only as to the amount of
damages. Third-party defendant Barte did not appeal.

On September 25, 1979, the Special Second Division of

the Court of Appeals rendered a decision in said
appealed case, with Justice Corazon Juliano Agrava
as ponente, reversing the decision of the lower court
and dismissing the complaint of respondent spouses. It
held that respondent Esteban spouses were negligent and
consequently absolved petitioner PLDT from the claim
for damages. 7 A copy of this decision was received by
private respondents on October 10, 1979. 8 On October
25, 1979, said respondents filed a motion for
reconsideration dated October 24, 1979. 9 On January 24,
1980, the Special Ninth Division of the Court of
Appeals denied said motion for reconsideration. 10 This
resolution was received by respondent spouses on
February 22, 1980. 11

On February 29, 1980, respondent Court of Appeals

received private respondents' motion for leave of court
to file a second motion for reconsideration, dated
February 27, 1980. 12 On March 11, 1980, respondent
court, in a resolution likewise penned by Justice
Agrava, allowed respondents to file a second motion for
reconsideration, within ten (10) days from notice
thereof. 13 Said resolution was received by private
respondents on April 1, 1980 but prior thereto, private
respondents had already filed their second motion for
reconsideration on March 7, 1980. 14

On April 30,1980 petitioner PLDT filed an opposition to

and/or motion to dismiss said second motion for
reconsideration. 15 The Court of Appeals, in view of the
divergent opinions on the resolution of the second
motion for reconsideration, designated two additional
justices to form a division of five. 16 On September 3,
1980, said division of five promulgated its resolution,
penned by Justice Mariano A. Zosa, setting aside the
decision dated September 25, 1979, as well as the
resolution dated, January 24,1980, and affirming in
toto the decision of the lower court. 17

On September 19, 1980, petitioner PLDT filed a motion

to set aside and/or for reconsideration of the
resolution of September 3, 1980, contending that the
second motion for reconsideration of private respondent
spouses was filed out of time and that the decision of
September 25, 1979 penned by Justice Agrava was already
final. It further submitted therein that the
relationship of Barte and petitioner PLDT should be
viewed in the light of the contract between them and,
under the independent contractor rule, PLDT is not
liable for the acts of an independent contractor. 18 On
May 11, 1981, respondent Court of Appeals promulgated
its resolution denying said motion to set aside and/or
for reconsideration and affirming in toto the decision
of the lower court dated October 1, 1974. 19
Coming to this Court on a petition for review
on certiorari, petitioner assigns the following errors:

1. Respondent Court of Appeals erred in not denying

private respondents' second motion for reconsideration
on the ground that the decision of the Special Second
Division, dated September 25, 1979, and the resolution
of the Special Ninth Division, dated January 24, 1980,
are already final, and on the additional ground that
said second motion for reconsideration is pro forma.

2. Respondent court erred in reversing the aforesaid

decision and resolution and in misapplying the
independent contractor rule in holding PLDT liable to
respondent Esteban spouses.

A convenient resume of the relevant proceedings in the

respondent court, as shown by the records and admitted
by both parties, may be graphically presented as
follows:

(a) September 25, 1979, a decision was rendered

by the Court of Appeals with Justice Agrava
as ponente;

(b) October 10, 1979, a copy of said decision

was received by private respondents;

(c) October 25, 1979, a motion for

reconsideration was filed by private
respondents;

(d) January 24, 1980, a resolution was issued

denying said motion for reconsideration;

(e) February 22, 1980, a copy of said denial

resolution was received by private respondents;

(f) February 29, 1980, a motion for leave to

file a second motion for reconsideration was
filed by private respondents

(g) March 7, 1980, a second motion for

reconsideration was filed by private
respondents;
 (h) March 11, 1980, a resolution was issued
allowing respondents to file a second motion
for reconsideration within ten (10) days from
receipt; and

(i) September 3, 1980, a resolution was issued,

penned by Justice Zosa, reversing the original
decision dated September 25, 1979 and setting
aside the resolution dated January 24, 1980.

From the foregoing chronology, we are convinced that

both the motion for leave to file a second motion for
reconsideration and, consequently, said second motion
for reconsideration itself were filed out of time.

Section 1, Rule 52 of the Rules of Court, which had

procedural governance at the time, provided that a
second motion for reconsideration may be presented
within fifteen (15) days from notice of the order or
judgment deducting the time in which the first motion
has been pending. 20 Private respondents having filed
their first motion for reconsideration on the last day
of the reglementary period of fifteen (15) days within
which to do so, they had only one (1) day from receipt
of the order denying said motion to file, with leave of
court, a second motion for reconsideration. 21 In the
present case, after their receipt on February 22, 1980
of the resolution denying their first motion for
reconsideration, private respondents had two remedial
options. On February 23, 1980, the remaining one (1)
day of the aforesaid reglementary period, they could
have filed a motion for leave of court to file a second
motion for reconsideration, conceivably with a prayer
for the extension of the period within which to do so.
On the other hand, they could have appealed through a
petition for review on certiorari to this Court within
fifteen (15) days from February 23, 1980. 22 Instead,
they filed a motion for leave to file a second motion
'for reconsideration on February 29, 1980, and said
second motion for reconsideration on March 7, 1980,
both of which motions were by then time-barred.

Consequently, after the expiration on February 24, 1980

of the original fifteen (15) day period, the running of
which was suspended during the pendency of the first
motion for reconsideration, the Court of Appeals could
no longer validly take further proceedings on the
merits of the case, much less to alter, modify or
reconsider its aforesaid decision and/or resolution.
The filing of the motion for leave to file a second
motion for reconsideration by herein respondents on
February 29, 1980 and the subsequent filing of the
motion itself on March 7, 1980, after the expiration of
the reglementary period to file the same, produced no
legal effects. Only a motion for re-hearing or
reconsideration filed in time shall stay the final
order or judgment sought to be re-examined. 23

The consequential result is that the resolution of

respondent court of March 11, 1980 granting private
respondents' aforesaid motion for leave and, giving
them an extension of ten (10) days to file a second
motion for reconsideration, is null and void. The
period for filing a second motion for reconsideration
had already expired when private respondents sought
leave to file the same, and respondent court no longer
had the power to entertain or grant the said motion.
The aforesaid extension of ten (10) days for private
respondents to file their second motion for
reconsideration was of no legal consequence since it
was given when there was no more period to extend. It
is an elementary rule that an application for extension
of time must be filed prior to the expiration of the
period sought to be extended. 24 Necessarily, the
discretion of respondent court to grant said extension
for filing a second motion for reconsideration is
conditioned upon the timeliness of the motion seeking
the same.

No appeal having been taken seasonably, the respondent

court's decision, dated September 25, 1979, became
final and executory on March 9, 1980. The subsequent
resolutions of respondent court, dated March 11, 1980
and September 3, 1980, allowing private respondents to
file a second motion for reconsideration and reversing
the original decision are null and void and cannot
disturb the finality of the judgment nor restore
jurisdiction to respondent court. This is but in line
with the accepted rule that once a decision has become
final and executory it is removed from the power and
jurisdiction of the court which rendered it to further
alter or amend, much less revoke it.25 The decision
rendered anew is null and void. 26 The court's inherent
power to correct its own errors should be exercised
before the finality of the decision or order sought to
be corrected, otherwise litigation will be endless and
no question could be considered finally settled.
Although the granting or denial of a motion for
reconsideration involves the exercise of
discretion,27 the same should not be exercised
whimsically, capriciously or arbitrarily, but prudently
in conformity with law, justice, reason and equity. 28

Prescinding from the aforesaid procedural lapses into

the substantive merits of the case, we find no error in
the findings of the respondent court in its original
decision that the accident which befell private
respondents was due to the lack of diligence of
respondent Antonio Esteban and was not imputable to
negligent omission on the part of petitioner PLDT. Such
findings were reached after an exhaustive assessment
and evaluation of the evidence on record, as evidenced
by the respondent court's resolution of January 24,
1980 which we quote with approval:

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 the ACCIDENT MOUND.

Exhibit B shows, through the tiremarks, that

the ACCIDENT MOUND was hit by the jeep swerving
from the left that is, swerving from the inside
lane. What caused the swerving is not
disclosed; but, as the cause of the accident,
defendant cannot be made liable for the damages
suffered by plaintiffs. The accident was not
due to the absence of warning signs, but to the
unexplained abrupt swerving of the jeep from
the inside lane. That may explain plaintiff-
husband's insistence that he did not see the
ACCIDENT MOUND for which reason he ran into it.
Second. That plaintiff's jeep was on the inside
lane before it swerved to hit the ACCIDENT
MOUND could have been corroborated by a picture
showing Lacson Street to the south of the
ACCIDENT MOUND.

It has been stated that the ditches along

Lacson Street had already been covered except
the 3 or 4 meters where the ACCIDENT MOUND was
located. Exhibit B-1 shows that the ditches on
Lacson Street north of the ACCIDENT MOUND had
already been covered, but not in such a way as
to allow the outer lane to be freely and
conveniently passable to vehicles. The
situation could have been worse to the south of
the ACCIDENT MOUND for which reason no picture
of the ACCIDENT MOUND facing south was taken.

Third. Plaintiff's jeep was not running at 25

kilometers an hour as plaintiff-husband
claimed. At that speed, he could have braked
the vehicle the moment it struck the ACCIDENT
MOUND. The jeep would not have climbed the
ACCIDENT MOUND several feet as indicated by the
tiremarks in Exhibit B. The jeep must have
been running quite fast. If the jeep had been
braked at 25 kilometers an hour, plaintiff's
would not have been thrown against the
windshield and they would not have suffered
their injuries.

Fourth. If the accident did not happen because

the jeep was running quite fast on the inside
lane and for some reason or other it had to
swerve suddenly to the right and had to climb
over the ACCIDENT MOUND, then plaintiff-husband
had not exercised the diligence of a good
father of a family to avoid the accident. With
the drizzle, he should not have run on dim
lights, but should have put on his regular
lights which should have made him see the
ACCIDENT MOUND in time. If he was running on
the outside lane at 25 kilometers an hour,
even on dim lights, his failure to see the
 ACCIDENT MOUND in time to brake the car was
negligence on his part. The ACCIDENT MOUND was
relatively big and visible, being 2 to 3 feet
high and 1-1/2 feet wide. If he did not see
the ACCIDENT MOUND in time, he would not have
seen any warning sign either. He knew of the
existence and location of the ACCIDENT MOUND,
having seen it many previous times. With
ordinary precaution, he should have driven his
jeep on the night of the accident so as to
avoid hitting the ACCIDENT MOUND. 29

The above findings clearly show that the negligence of

respondent Antonio Esteban was not only contributory to
his injuries and those of his wife but goes to the very
cause of the occurrence of the accident, as one of its
determining factors, and thereby precludes their right
to recover damages. 30 The perils of 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 some alleged
negligence on the part of petitioner.

The presence of warning signs could not have completely

prevented the accident; the only purpose of said signs
was to inform and warn the public of the presence of
excavations on the site. The private respondents
already knew of the presence of said excavations. It
was not the lack of knowledge of these excavations
which caused the jeep of respondents to fall into the
excavation but the unexplained sudden swerving of the
jeep from the inside lane towards the accident mound.
As opined in some quarters, the omission to perform a
duty, such as the placing of warning signs on the site
of the excavation, constitutes the proximate cause only
when the doing of the said omitted act would have
prevented the injury. 31 It is basic that private
respondents cannot charge PLDT for their injuries where
their own failure to exercise due and reasonable care
was the cause thereof. 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 the
negligence he imputes to petitioner PLDT. As a resident
of Lacson Street, he passed on that street almost
everyday and had knowledge of the presence and location
of the excavations there. It was his negligence that
exposed him and his wife to danger, hence he is solely
responsible for the consequences of his imprudence.

Moreover, we also sustain the findings of respondent

Court of Appeals in its original decision that there
was insufficient evidence to prove any negligence on
the part of PLDT. We have for consideration only the
self-serving testimony of respondent Antonio Esteban
and the unverified photograph of merely a portion of
the scene of the accident. The absence of a police
report of the incident and the non-submission of a
medical report from the hospital where private
respondents were allegedly treated have not even been
satisfactorily explained.

As aptly observed by respondent court in its aforecited

extended resolution of January 24, 1980

(a) There was no third party eyewitness of the

accident. As to how the accident occurred, the
Court can only rely on the testimonial evidence
of plaintiffs themselves, and such evidence
should be very carefully evaluated, with
defendant, as the party being charged, being
given the benefit of any doubt. Definitely
without ascribing the same motivation to
plaintiffs, another person could have
deliberately engineered a similar accident in
the hope and expectation that the Court can
grant him substantial moral and exemplary
damages from the big corporation that defendant
is. The statement is made only to stress the
disadvantageous position of defendant which
would have extreme difficulty in contesting
such person's claim. If there were no witness
or record available from the police department
of Bacolod, defendant would not be able to
determine for itself which of the conflicting
 testimonies of plaintiffs is correct as to the
report or non-report of the accident to the
police department. 32

A person claiming damages for the negligence of another

has the burden of proving the existence of such fault
or negligence causative thereof. The facts constitutive
of negligence must be affirmatively established by
competent evidence. 33 Whosoever relies on negligence
for his cause of action has the burden in the first
instance of proving the existence of the same if
contested, otherwise his action must fail.

WHEREFORE, the resolutions of respondent Court of

Appeals, dated March 11, 1980 and September 3,1980, are
hereby SET ASIDE. Its original decision, promulgated on
September 25,1979, is hereby REINSTATED and AFFIRMED.

SO ORDERED.