Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 190022 February 15, 2012

PHILIPPINE NATIONAL RAILWAYS CORPORATION, JAPHET ESTRANAS and BEN

SAGA, Petitioners,
vs.
PURIFICACION VIZCARA, MARIVIC VIZCARA, CRESENCIA A. NATIVIDAD, HECTOR
VIZCARA, JOEL VIZCARA and DOMINADOR ANTONIO, Respondents.

DECISION

REYES, J.:

Nature of the Petition

Before this Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure, seeking to annul and set aside the Decision1 dated July 21, 2009 of the Court of
Appeals (CA) in CA-G.R. CV No. 90021, which affirmed with modification the Decision2 dated
March 20, 2007 of the Regional Trial Court (RTC), Branch 40, Palayan City, and
Resolution3 dated October 26, 2009, which denied the petitioners’ motion for reconsideration.

The Antecedent Facts

On May 14, 2004, at about three o’clock in the morning, Reynaldo Vizcara (Reynaldo) was
driving a passenger jeepney headed towards Bicol to deliver onion crops, with his companions,
namely, Cresencio Vizcara (Cresencio), Crispin Natividad (Crispin), Samuel Natividad (Samuel),
Dominador Antonio (Dominador) and Joel Vizcara (Joel). While crossing the railroad track in
Tiaong, Quezon, a Philippine National Railways (PNR) train, then being operated by respondent
Japhet Estranas (Estranas), suddenly turned up and rammed the passenger jeepney. The
collision resulted to the instantaneous death of Reynaldo, Cresencio, Crispin, and Samuel. On
the other hand, Dominador and Joel, sustained serious physical injuries.4

At the time of the accident, there was no level crossing installed at the railroad crossing.
Additionally, the "Stop, Look and Listen" signage was poorly maintained. The "Stop" signage was
already faded while the "Listen" signage was partly blocked by another signboard.5

On September 15, 2004, the survivors of the mishap, Joel and Dominador, together with the
heirs of the deceased victims, namely, Purificacion Vizcara, Marivic Vizcara, Cresencia Natividad
and Hector Vizcara, filed an action for damages against PNR, Estranas and Ben Saga, the
alternate driver of the train, before the RTC of Palayan City. The case was raffled to Branch 40
and was docketed as Civil Case No. 0365-P. In their complaint, the respondents alleged that the
proximate cause of the fatalities and serious physical injuries sustained by the victims of the
accident was the petitioners’ gross negligence in not providing adequate safety measures to
prevent injury to persons and properties. They pointed out that in the railroad track of Tiaong,
Quezon where the accident happened, there was no level crossing bar, lighting equipment or bell
installed to warn motorists of the existence of the track and of the approaching train. They
concluded their complaint with a prayer for actual, moral and compensatory damages, as well as
attorney’s fees.6
For their part, the petitioners claimed that they exercised due diligence in operating the train and
monitoring its roadworthiness. They asseverate that right before the collision, Estranas was
driving the train at a moderate speed. Four hundred (400) meters away from the railroad
crossing, he started blowing his horn to warn motorists of the approaching train. When the train
was only fifty (50) meters away from the intersection, respondent Estranas noticed that all
vehicles on both sides of the track were already at a full stop. Thus, he carefully proceeded at a
speed of twenty-five (25) kilometers per hour, still blowing the train’s horn. However, when the
train was already ten (10) meters away from the intersection, the passenger jeepney being driven
by Reynaldo suddenly crossed the tracks. Estranas immediately stepped on the brakes to avoid
hitting the jeepney but due to the sheer weight of the train, it did not instantly come to a complete
stop until the jeepney was dragged 20 to 30 meters away from the point of collision.7

The Ruling of the Trial Court

After trial on the merits, the RTC rendered its Decision8 dated March 20, 2007, ruling in favor of
the respondents, the dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered ordering defendants

Philippine National Railways Corporation (PNR), Japhet Estranas and Ben Saga to, jointly and
severally pay the following amounts to:

1. a) PURIFICACION VIZCARA:
1) P50,000.00, as indemnity for the death of Reynaldo Vizcara;
2) P35,000.00, for funeral expenses;
3) P5,000.00 for re-embalming expenses;
4) P40,000.00 for wake/interment expenses;
5) P300,000.00 as reimbursement for the value of the jeepney with license plate no. DTW-
387;
6) P200,000.00 as moral damages;
7) P100,000.00 as exemplary damages; and
8) P20,000.00 for Attorney’s fees.
b) MARIVIC VIZCARA:
1) P50,000.00, as indemnity for the death of Cresencio Vizcara;
2) P200,000.00 as moral damages;
3) P100,000.00 as exemplary damages; and
4) P20,000.00 for Attorney’s fees.
c) HECTOR VIZCARA:
1) P50,000.00 as indemnity for the death of Samuel Vizcara;
2) P200,000.00 as moral damages;
3) P100,000.00 as exemplary damages; and
4) P20,000.00 for Attorney’s fees.
d) CRESENCIA NATIVIDAD:
1) P50,000.00 as indemnity for the death of Crispin Natividad;
2) P200,000.00 as moral damages;
3) P100,000.00 as exemplary damages; and
4) P20,000.00 for Attorney’s fees.
e) JOEL VIZCARA
1) P9,870.00 as reimbursement for his actual expenses;
2) P50,000.00 as moral damages;
3) P25,000.00 as exemplary damages; and
4) P10,000.00 for Attorney’s fees.
f) DOMINADOR ANTONIO
 1) P63,427.00 as reimbursement for his actual expenses;
2) P50,000.00 as moral damages;
3) P25,000.00 as exemplary damages; and
4) P10,000.00 for Attorney’s fees.
and
2. Costs of suit.

SO ORDERED.9

The Ruling of the CA

Unyielding, the petitioners appealed the RTC decision to the CA. Subsequently, on July 21,
2009, the CA rendered the assailed decision, affirming the RTC decision with modification with
respect to the amount of damages awarded to the respondents. The CA disposed, thus:

WHEREFORE, instant appeal is PARTIALLY GRANTED. The assailed Decision is AFFIRMED

WITH MODIFICATION, as follows:

(1) The award of P5,000.00 for re-embalming expenses and P40,000.00 for
wake/interment expenses to PURIFICACION VIZCARA is deleted. In lieu thereof,
P25,000.00 as temperate damages is awarded;

(2) The award of moral damages to PURIFICACION VIZCARA, MARIVIC VIZCARA,

HECTOR VIZCARA and CRESENCIA NATIVIDAD is hereby reduced from P200,000.00
to P100,000.00 each while moral damages awarded to JOEL VIZCARA and
DOMINADOR ANTONIO are likewise reduced from P50,000.00 to P25,000.00;

(3) The award of exemplary damages to PURIFICACION VIZCARA, MARIVIC VIZCARA,

HECTOR VIZCARA and CRESENCIA NATIVIDAD is hereby reduced from P100,000.00
to P50,000.00 each while exemplary damages awarded to JOEL VIZCARA and
DOMINADOR ANTONIO are likewise reduced from P25,000.00 to P12,500.00; and

(4) The award for attorney’s fees in favor of the Appellees as well as the award of
P300,000.00 to Appellee PURIFICACION as reimbursement for the value of the jeepney
is DELETED.

SO ORDERED.10

In the assailed decision, the CA affirmed the RTC’s finding of negligence on the part of the
petitioners. It concurred with the trial court's conclusion that petitioner PNR's failure to install
sufficient safety devices in the area, such as flagbars or safety railroad bars and signage, was
the proximate cause of the accident. Nonetheless, in order to conform with established
jurisprudence, it modified the monetary awards to the victims and the heirs of those who perished
due to the collision.

The petitioners filed a Motion for Reconsideration11 of the decision of the CA. However, in a
Resolution12 dated October 26, 2009, the CA denied the same.

Aggrieved, the petitioners filed the present petition for review on certiorari, raising the following
grounds:

I
 THE CA ERRED IN FINDING THAT THE PROXIMATE CAUSE OF THE ACCIDENT
WAS THE NEGLIGENCE OF THE PETITIONERS;

II

THE CA ERRED IN HOLDING THAT THE DOCTRINE OF LAST CLEAR CHANCE

FINDS NO APPLICATION IN THE INSTANT CASE;

III

THE CA ERRED IN FINDING NEGLIGENCE ON THE PART OF THE PETITIONERS

OR ERRED IN NOT FINDING AT THE LEAST, CONTRIBUTORY NEGLIGENCE ON
THE PART OF THE RESPONDENTS.13

The petitioners maintain that the proximate cause of the collision was the negligence and
recklessness of the driver of the jeepney. They argue that as a professional driver, Reynaldo is
presumed to be familiar with traffic rules and regulations, including the right of way accorded to
trains at railroad crossing and the precautionary measures to observe in traversing the same.
However, in utter disregard of the right of way enjoyed by PNR trains, he failed to bring his
jeepney to a full stop before crossing the railroad track and thoughtlessly followed the ten-
wheeler truck ahead of them. His failure to maintain a safe distance between the jeepney he was
driving and the truck ahead of the same prevented him from seeing the PNR signage displayed
along the crossing.14

In their Comment,15 the respondents reiterate the findings of the RTC and the CA that the
petitioners' negligence in maintaining adequate and necessary public safety devices in the area
of the accident was the proximate cause of the mishap. They asseverate that if there was only a
level crossing bar, warning light or sound, or flagman in the intersection, the accident would not
have happened. Thus, there is no other party to blame but the petitioners for their failure to
ensure that adequate warning devices are installed along the railroad crossing.16

This Court’s Ruling

The petition lacks merit.

The petitioners’ negligence was the proximate cause of the accident.

Article 2176 of the New Civil Code prescribes a civil liability for damages caused by a person's
act or omission constituting fault or negligence. It states:

Article 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there was no pre-
existing contractual relation between the parties, is called quasi-delict and is governed by the
provisions of this chapter.

In Layugan v. Intermediate Appellate Court,17 negligence was defined as the omission to do

something which a reasonable man, guided by considerations which ordinarily regulate the
conduct of human affairs, would do, or the doing of something which a prudent and reasonable
man would not do. It is the failure to observe for the protection of the interests of another person,
that degree of care, precaution, and vigilance which the circumstances justly demand, whereby
such other person suffers injury.18 To determine the existence of negligence, the time-honored
test was: Did the defendant in doing the alleged negligent act use that reasonable care and
caution which an ordinarily prudent person would have used in the same situation? If not, then he
is guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the
imaginary conduct of the discreet paterfamilias of the Roman law. The existence of negligence in
a given case is not determined by reference to the personal judgment of the actor in the situation
before him. The law considers what would be reckless, blameworthy, or negligent in the man of
ordinary intelligence and prudence and determines liability by that.19

In the instant petition, this Court is called upon to determine whose negligence occasioned the ill-
fated incident. The records however reveal that this issue had been rigorously discussed by both
the RTC and the CA. To emphasize, the RTC ruled that it was the petitioners’ failure to install
adequate safety devices at the railroad crossing which proximately caused the collision. This
finding was affirmed by the CA in its July 21, 2009 Decision. It is a well-established rule that
factual findings by the CA are conclusive on the parties and are not reviewable by this Court.
They are entitled to great weight and respect, even finality, especially when, as in this case, the
CA affirmed the factual findings arrived at by the trial court.20

Furthermore, in petitions for review on certiorari, only questions of law may be put into issue.
Questions of fact cannot be entertained.21 To distinguish one from the other, a question of
law exists when the doubt or difference centers on what the law is on a certain state of facts.
A question of fact, on the other hand, exists if the doubt centers on the truth or falsity of the
alleged facts.22 Certainly, the finding of negligence by the RTC, which was affirmed by the CA, is
a question of fact which this Court cannot pass upon as this would entail going into the factual
matters on which the negligence was based.23 Moreover, it was not shown that the present case
falls under any of the recognized exceptions24 to the oft repeated principle according great weight
and respect to the factual findings of the trial court and the CA.

At any rate, the records bear out that the factual circumstances of the case were meticulously
scrutinized by both the RTC and the CA before arriving at the same finding of negligence on the
part of the petitioners, and we found no compelling reason to disturb the same. Both courts ruled
that the petitioners fell short of the diligence expected of it, taking into consideration the nature of
its business, to forestall any untoward incident. In particular, the petitioners failed to install safety
railroad bars to prevent motorists from crossing the tracks in order to give way to an approaching
train. Aside from the absence of a crossing bar, the "Stop, Look and Listen" signage installed in
the area was poorly maintained, hence, inadequate to alert the public of the impending danger. A
reliable signaling device in good condition, not just a dilapidated "Stop, Look and Listen" signage,
is needed to give notice to the public. It is the responsibility of the railroad company to use
reasonable care to keep the signal devices in working order. Failure to do so would be an
indication of negligence.25 Having established the fact of negligence on the part of the petitioners,
they were rightfully held liable for damages.

There was no contributory negligence on the part of the respondents.

As to whether there was contributory negligence on the part of the respondents, this court rule in
the negative. Contributory negligence is conduct on the part of the injured party, contributing as a
legal cause to the harm he has suffered, which falls below the standard which he is required to
conform for his own protection. It is an act or omission amounting to want of ordinary care on the
part of the person injured which, concurring with the defendant’s negligence, is the proximate
cause of the injury.26 Here, we cannot see how the respondents could have contributed to their
injury when they were not even aware of the forthcoming danger. It was established during the
trial that the jeepney carrying the respondents was following a ten-wheeler truck which was only
about three to five meters ahead. When the truck proceeded to traverse the railroad track,
Reynaldo, the driver of the jeepney, simply followed through. He did so under the impression that
it was safe to proceed. It bears noting that the prevailing circumstances immediately before the
collision did not manifest even the slightest indication of an imminent harm. To begin with, the
truck they were trailing was able to safely cross the track. Likewise, there was no crossing bar to
prevent them from proceeding or, at least, a stoplight or signage to forewarn them of the
approaching peril. Thus, relying on his faculties of sight and hearing, Reynaldo had no reason to
anticipate the impending danger.27 He proceeded to cross the track and, all of a sudden, his
jeepney was rammed by the train being operated by the petitioners. Even then, the
circumstances before the collision negate the imputation of contributory negligence on the part of
the respondents. What clearly appears is that the accident would not have happened had the
petitioners installed reliable and adequate safety devices along the crossing to ensure the safety
of all those who may utilize the same.

At this age of modern transportation, it behooves the PNR to exert serious efforts to catch up
with the trend, including the contemporary standards in railroad safety. As an institution
established to alleviate public transportation, it is the duty of the PNR to promote the safety and
security of the general riding public and provide for their convenience, which to a considerable
degree may be accomplished by the installation of precautionary warning devices. Every railroad
crossing must be installed with barriers on each side of the track to block the full width of the
road until after the train runs past the crossing. To even draw closer attention, the railroad
crossing may be equipped with a device which rings a bell or turns on a signal light to signify the
danger or risk of crossing. It is similarly beneficial to mount advance warning signs at the railroad
crossing, such as a reflectorized crossbuck sign to inform motorists of the existence of the track,
and a stop, look and listen signage to prompt the public to take caution. These warning signs
must be erected in a place where they will have ample lighting and unobstructed visibility both
day and night. If only these safety devices were installed at the Tiaong railroad crossing and the
accident nevertheless occurred, we could have reached a different disposition in the extent of the
petitioner’s liability.

The exacting nature of the responsibility of railroad companies to secure public safety by the
installation of warning devices was emphasized in Philippine National Railways v. Court of
Appeals,28 thus:

[I]t may broadly be stated that railroad companies owe to the public a duty of exercising a
reasonable degree of care to avoid injury to persons and property at railroad crossings, which
duties pertain both to the operation of trains and to the maintenance of the crossings. Moreover,
every corporation constructing or operating a railway shall make and construct at all points where
such railway crosses any public road, good, sufficient, and safe crossings, and erect at such
points, at sufficient elevation from such road as to admit a free passage of vehicles of every kind,
a sign with large and distinct letters placed thereon, to give notice of the proximity of the railway,
and warn persons of the necessity of looking out for trains. The failure of the PNR to put a cross
bar, or signal light, flagman or switchman, or semaphore is evidence of negligence and disregard
of the safety of the public, even if there is no law or ordinance requiring it, because public safety
demands that said device or equipment be installed.29

The responsibility of the PNR to secure public safety does not end with the installation of safety
equipment and signages but, with equal measure of accountability, with the upkeep and repair of
the same. Thus, in Cusi v. Philippine National Railways,30 we held:

Jurisprudence recognizes that if warning devices are installed in railroad crossings, the travelling
public has the right to rely on such warning devices to put them on their guard and take the
necessary precautions before crossing the tracks. A need, therefore, exists for the railroad
company to use reasonable care to keep such devices in good condition and in working order, or
to give notice that they are not operating, since if such a signal is misunderstood it is a menace.
Thus, it has been held that if a railroad company maintains a signalling device at a crossing to
give warning of the approach of a train, the failure of the device to operate is generally held to be
evidence of negligence, which maybe considered with all the circumstances of the case in
determining whether the railroad company was negligent as a matter of fact. 31

The maintenance of safety equipment and warning signals at railroad crossings is equally
important as their installation since poorly maintained safety warning devices court as much
danger as when none was installed at all. The presence of safety warning signals at railroad
crossing carries with it the presumption that they are in good working condition and that the
public may depend on them for assistance. If they happen to be neglected and inoperative, the
public may be misled into relying on the impression of safety they normally convey and
eventually bring injury to themselves in doing so.

The doctrine of last clear chance is not applicable.

Finally, the CA correctly ruled that the doctrine of last clear chance is not applicable in the instant
case. The doctrine of last clear chance provides that where both parties are negligent but the
negligent act of one is appreciably later in point of time than that of the other, or where it is
impossible to determine whose fault or negligence brought about the occurrence of the incident,
the one who had the last clear opportunity to avoid the impending harm but failed to do so, is
chargeable with the consequences arising therefrom. Stated differently, the rule is that the
antecedent negligence of a person does not preclude recovery of damages caused by the
supervening negligence of the latter, who had the last fair chance to prevent the impending harm
by the exercise of due diligence.32 To reiterate, the proximate cause of the collision was the
petitioners’ negligence in ensuring that motorists and pedestrians alike may safely cross the
railroad track. The unsuspecting driver and passengers of the jeepney did not have any
participation in the occurrence of the unfortunate incident which befell them. Likewise, they did
not exhibit any overt act manifesting disregard for their own safety. Thus, absent preceding
negligence on the part of the respondents, the doctrine of last clear chance cannot be applied.

WHEREFORE, premises considered, the petition is DENIED. The Decision of the Court of
Appeals dated July 21, 2009 in CA-G.R. CV No. 90021 is hereby AFFIRMED.

SO ORDERED.

BIENVENIDO L. REYES
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice

MARTIN S. VILLARAMA, JR. JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

MARIA LOURDES P. A. SERENO

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court’s Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's Attestation,
I certify that the conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court’s Division.
RENATO C. CORONA
Chief Justice

Footnotes
* Additional Member in lieu of Associate Justice Arturo D. Brion per Special Order No. 1195 dated
February 15, 2012.
1 Penned by Associate Justice Myrna Dimaranan Vidal, with Associate Justices Portia Aliño-

Hormachuelos and Magdangal De Leon, concurring; rollo, pp. 31-46.

2 Id. at 81-97.

3 Id. at 52-54.

4 Id. at 82.

5 Id. at 38-39.

6 Id. at 81-83.

7 Id. at 8-9.

8 Supra note 2.

9 Id. at 95-97.

10 Id. at 44-45.

11 Id. at 47-51.

12 Supra note 3.

13 Id. at 12.

14 Id. at 13-14.

15 Id. at 68-80.

16 Id. at 79.

17 249 Phil. 363 (1988).

18 Id. at 373, citing Blacks Law Dictionary, Fifth Edition, 930; Cooley on Torts, Fourth Edition, Vol. 3,

265.
19 Picart v. Smith, 37 Phil. 809, 813 (1918)20 Cebu Shipyard & Eng’g Works, Inc. v. William Lines, Inc.,

366 Phil. 439, 451 (1999), citing Meneses v. Court of Appeals, 316 Phil. 210, 222 (1995); Tay Chun
Suy v. Court of Appeals, G.R. No. 93640, January 7, 1994, 229 SCRA 151, 156; First Philippine
International Bank v. CA, 322 Phil. 280, 319 (1996); Fortune Motors (Phils.) Corp. v. CA, 335 Phil. 315,
330 (1997).
21 Id. at 452.

22 Westmont Investment Corporation v. Francia, Jr., G.R. No. 194128, December 7, 2011,

citing Microsoft Corp. v. Maxicorp, Inc., 481 Phil. 550, 561 (2004).
23 Philippine National Railways v. Brunty, G.R. No. 169891, November 2, 2006, 506 SCRA 685, 697,

citing Estacion v. Bernardo, 518 Phil. 388, 398 (2006); Lambert v. Heirs of Ray Castillon, 492 Phil. 384,
389 (2005); Pestaño v. Sps. Sumayang, 400 Phil. 740, 748 (2000).
24 Instances when the findings of fact of the trial court and/or Court of Appeals may be reviewed by

the Supreme Court are: (1) when the conclusion is a finding grounded entirely on speculation,
surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible;
(3) where there is a grave abuse of discretion; (4) when the judgment is based on a misapprehension
of facts; (5) when the findings of fact are conflicting; (6) when the Court of Appeals, in making its
findings, went beyond the issues of the case and the same is contrary to the admissions of both
appellant and appellee; (7) the findings of the Court of Appeals are contrary to those of the trial
court; (8) when the findings of fact are conclusions without citation of specific evidence on which
they are based; (9) when the facts set forth in the petition as well as in the petitioners’ main and
reply briefs are not disputed by the respondents; and (10) the finding of fact of the Court of Appeals
is premised on the supposed absence of evidence and is contradicted by the evidence on record.
(Misa v. Court of Appeals, G.R. No. 97291, August 5, 1992, 212 SCRA 217, 221-222)
25 Philippine National Railways v. Court of Appeals, G.R. No. 157658, October 15, 2007, 536 SCRA 147,
155.
26 See National Power Corporation v. Heirs of Noble Casionan, G.R. No. 165969, November 27, 2008,

572 SCRA 71, 81-82, citing Estacion v. Bernardo, 518 Phil. 388, 401 (2006); Ma-ao Sugar Central Co.,
Inc. v. Court of Appeals, G.R. No. 83491, August 27, 1990, 189 SCRA 88, 93.
27 See Cusi v. Philippine National Railways, 179 Phil. 284, 294 (1979).

28 Philippine National Railways v. Court of Appeals, G.R. No. 157658, October 15, 2007, 536 SCRA 147.

29 Id. at 155-156, citing Philippine National Railway v. Brunty, G.R. No. 169891, November 2, 2006,

506 SCRA 685, 699.

30 Cusi v. Philippine National Railways, 179 Phil. 284, 294 (1979).

31 Id. at 292, citing 74 C.J.S., 1347, 1348 and 44 Am Jur. 766, pp. 8-9.

32 Canlas v. Court of Appeals, 383 Phil. 315, 324 (2000), citing Philippine Bank of Commerce v. CA, 336

Phil. 667, 680 (1997), citing LBC Air Cargo, Inc. v. CA, 311 Phil. 715, 722-724 (1995); Picart v. Smith,
37 Phil. 809, 814 (1915); Pantranco North Express, Inc. v. Baesa, 258-A Phil. 975, 980 (1989); Glan
People’s Lumber and Hardware v. Intermediate Appellate Court, 255 Phil. 447 (1989).
 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 101683 February 23, 1995

LBC AIR CARGO, INC. FERNANDO M. YU and JAIME TANO, petitioners,

vs.
HON. COURT OF APPEALS, Fourth Division, SHERWIN MONTEROLA y OYON-OYON,
represented by PATROCENIA GRONDIANO y MONTEROLA, and PATROCENIA
GRONDIANO y MONTEROLA, respondents.

VITUG, J.:

In this petition for review, the application of the doctrines of "proximate cause" and "last clear
chance" is, once again, being put to test. The petition questions the decision of the Court of
Appeals, dated 18 July 1991, which has reversed that of the trial court.

The case arose from a vehicular collision which occurred at about 11:30 in the morning of 15
November 1987. Rogelio Monterola, a licensed driver, was traveling on board his Suzuki
motorcycle towards Mangagoy on the right lane along a dusty national road in Bislig, Surigao del
Sur. At about the same time, a cargo van of the LBC Air Cargo Incorporated, driven by defendant
Jaime Tano, Jr., was coming from the opposite direction on its way to the Bislig Airport. On board
were passengers Fernando Yu, Manager of LBC Air Cargo, and his son who was seated beside
Tano. When Tano was approaching the vicinity of the airport road entrance on his left, he saw
two vehicles racing against each other from the opposite direction. Tano stopped his vehicle and
waited for the two racing vehicles to pass by. The stirred cloud of dust made visibility extremely
bad. Instead of waiting for the dust to settled, Tano started to make a sharp left turn towards the
airport road. When he was about to reach the center of the right lane, the motorcycle driven by
Monterola suddenly emerged from the dust and smashed head-on against the right side of the
LBC van. Monterola died from the severe injuries he sustained.

A criminal case for "homicide thru reckless imprudence" was filed against Tano. A civil suit was
likewise instituted by the heirs of deceased Monterola against Tano, along with Fernando Yu and
LBC Air Cargo Incorporated, for the recovery of damages. The two cases were tried jointly by the
Regional Trial Court, Branch 29, of Surigao del Sur.

On 29 July 1990, the trial court dismissed both cases on the ground that the proximate cause of
the "accident" was the negligence of deceased Rogelio Monterola.

Private respondent appealed the dismissal of the civil case to the Court of Appeals. On 18 July
1991, the appellate court reversed the court a quo. It held:

WHEREFORE, the judgment appealed from is REVERSED, and another one is

hereby rendered ordering the defendants Jaime Tano and LBC Air Cargo, Inc. to
jointly and severally pay the plaintiff Patrocinia Monterola the following amounts:
 To SHERWIN MONTEROLA:

1. Indemnity for the death of

Rogelio Monterola P50,000.00

2. For Moral damages P20,000.00

To PATROCINIA GRONDIANO Y MONTEROLA:

3. Actual Damages P7,361.00

4. Hospitals & Burial Expenses 15,000.00

5. Attorneys' Fees and expenses

of Litigation 10,000.00

Plus the costs.

Actual payment of the aforementioned amounts should however be reduced to

twenty (20%) percent.1

In the instant petition for review, petitioners contend that —

1. The Court of Appeals erred in finding that Jaime Tano, Jr. was negligent in the
driving of his vehicle and in failing to give a signal to approaching vehicles of his
intention to make a left turn.

2. The Court of Appeals erred in not finding that the proximate cause of the
accident was the victim's negligence in the driving of his motorcycle in a very fast
speed and thus hitting the petitioner's cargo van.2

The issues raised are thus essentially factual. The intrinsic merit of, as well as cogency in, the
detailed analyses made by the Court of Appeals in arriving at its findings is at once apparent.
Said the appellate court:

That visibility was poor when Jaime Tano made a left turn was admitted by the
latter.

Q When these two vehicles passed by your parked vehicle, as

you said, there were clouds of dust, did I get you right?

A Yes sir, the road was dusty.

Q So much so that you could no longer see the vehicles from the
opposite direction following these vehicles?

A It is not clear, sir, so I even turned on my left signal and the

headlight.

Q What do you mean by it was not clear, you could not see the
incoming vehicles?

A I could not see because of the cloud of dust.

 Q And it was at this juncture, when you were to follow your theory,
when you started your LBC van again and swerved to the left
leading to the Bislig airport?

A I did not enter immediately the airport, I waited the dust to clear
a little before I drove.

xxx xxx xxx

Q In other words when you said that it was slightly clear, you
would like to tell the Honorable Court that you could only clearly
see big vehicles . . . but not small vehicles like a motorcycle?

A I could see clearly big vehicles but not small vehicles like a
motorcycle.

Q Like the motorcycle of Rogelio Monterola?

A Yes, sir. I could not see clearly. (Tano, tsn, April 18, 1989, pp.
26-30) (p. 15, Appellant's brief).

Tano should not have made a left turn under the conditions admitted by him.
Under the Land Transportation and Traffic Code, the driver of any vehicle upon a
highway, before starting, stopping or turning from a direct line, is called upon to
first see that such movement can be made in safety, and whenever the operation
of any other vehicle approaching may be affected by such movement, shall give a
signal plainly visible to the driver of such other vehicles of the intention to make
such movement (Sec. 44, R.A. 4136, as amended). This means that before a
driver turns from a direct line, in this case to the left, the driver must first see to it
that there are no approaching vehicles and, if there are, to make the turn only if it
can be made in safety, or at the very least give a signal that is plainly visible to
the driver of such other vehicle. Tano did neither in this case, for he recklessly
made a left turn even as visibility was still very poor, and thus failed to see the
approaching motorcycle and warn the latter, of his intention to make a left turn.
This is plain and simple negligence.

In thus making the left turn, he placed his vehicle directly at the path of the
motorcycle which, unaware of Tano's intention to make a left turn, smashed at
Tano's vehicle. It was Tano's negligence that created the risk or the condition of
danger that set into operation the event that led to the smashedup and untimely
death of Rogelio Monterola.

Rogelio Monterola's motorcycle would not have hit the cargo van had Tano, in
operating it, not recklessly turned left when visibility was still poor, and instead
observed the direct line of the Land Transportation Code that before doing so, he
should first see to it that such movement can be made in safety, and that
whenever any other vehicle approaching may be affected by such movement,
should give a signal plainly visible to the driver of such other vehicle of the
intention to make such movement.

That Rogelio Monterola was running fast despite poor visibility as evidenced by
the magnitude of the damage to the vehicles is no defense. His negligence would
at most be contributory (Article 2179, N.C.C.). Having negligently created the
condition of danger, defendants may not avoid liability by pointing to the
negligence of the former.
 xxx xxx xxx

Tano's proven negligence created a presumption of negligence on the part of his

employer, the LBC Air Cargo Corporation, in supervising its employees properly
and adequately (Phoenix Construction, Inc. vs. Intermediate Appellate
Court, supra), which may only be destroyed by proof of due diligence in the
selection and supervision of his employees to prevent the damage (Article 2180,
N.C.C.). No such defense was interposed by defendants in their answer.

We, however, fail to see Fernando Yu's liability as Manager of LBC-Mangagoy

Branch Office, there being no employer-employee relationship between him and
Jaime Tano who is a driver of the LBC Air Cargo Inc. It was held in Philippine
Rabbit Bus Lines Inc. et al. vs. Phil. American Forwarders, Inc., 63 SCRA 231,
that the term "Manager" in Article 2180 is used in the sense of "employer."
Hence, no tortuous or quasi-delictual liability can be fastened on Fernando Yu as
branch manager of LBC Air Cargo Inc.

Now for the amount of damages. Aside from the indemnity for death which has
been pegged at P50,000.00 (Resolution En Banc, August 30, 1990, cited in
People vs. Sazon, 189 SCRA 700), the evidence disclose that as a result of the
accident, Rogelio Monterola's motorcycle was damaged, the repair cost of which
amounted to P7,361.00 (Exh. E-1), for hospitalization, wake and burial expenses,
plaintiff spent P15,000.00. There is likewise no question that by reason of Rogelio
Monterola's untimely death, his only child 14 years old Sherwin Monterola,
suffered mental anguish, fright, serious anxiety, wounded feelings and moral
shock that entitles him to moral damages which we hereby fix at P20,000.00.
Because of defendants' refusal to indemnify the plaintiff for his father's death, the
latter was compelled to litigate and engage the services of counsel. He is
therefore entitled to an additional amount of P10,000.00 for attorney's fees and
expenses of litigation.

Considering, however, the contributory negligence of Rogelio Monterola in driving

at a fast clip despite the fact that the road was dusty, we reduce the aggregate
amount of damages to which the plaintiff is entitled by twenty per cent (Phoenix
Construction Inc. vs. Intermediate Appellate Court, Supra). 3

From every indication, the proximate cause of the accident was the negligence of Tano who,
despite extremely poor visibility, hastily executed a left turn (towards the Bislig airport road
entrance) without first waiting for the dust to settle. It was this negligent act of Tano, which had
placed his vehicle (LBC van) directly on the path of the motorcycle coming from the opposite
direction, that almost instantaneously caused the collision to occur. Simple prudence required
him not to attempt to cross the other lane until after it would have been safe from and clear of
any oncoming vehicle.

Petitioners poorly invoke the doctrine of "last clear chance" (also referred to, at times, as
"supervening negligence" or as "discovered peril"). The doctrine, in essence, is to the effect that
where both parties are negligent, but the negligent act of one is appreciably later in time than that
of the other, or when it is impossible to determine whose fault or negligence should be attributed
to the incident, the one who had the last clear opportunity to avoid the impending harm and failed
to do so is chargeable with the consequences thereof (see Picart vs. Smith, 37 Phil. 809). Stated
differently, the rule would also mean that an antecedent negligence of a person does not
preclude the recovery of damages for supervening negligence of, or bar a defense against the
liability sought by, another if the latter, who had the last fair chance, could have avoided the
impending harm by the exercise of due diligence (Pantranco North Express, Inc. vs. Baesa, 179
SCRA 384; Glan People's Lumber and Hardware vs. Intermediate Appellate Court, 173 SCRA
464).
In the case at bench, the victim was traveling along the lane where he was rightly supposed to
be. The incident occurred in an instant. No appreciable time had elapsed, from the moment Tano
swerved to his left to the actual impact; that could have afforded the victim a last clear
opportunity to avoid the collision.

It is true however, that the deceased was not all that free from negligence in evidently speeding
too closely behind the vehicle he was following. We, therefore, agree with the appellate court that
there indeed was contributory negligence on the victim's part that could warrant a mitigation of
petitioners liability for damages.

WHEREFORE, the appealed decision is AFFIRMED. Costs against petitioners.

SO ORDERED.

Feliciano, Romero, Melo and Francisco, JJ., concur.

Footnotes

1 Rollo, p. 17.
2 Rollo, pp. 30-31.
3 Rollo, pp. 51-55.