Vergara vs.

CA 154 SCRA 564

G.R. No. 77679 September 30, 1987

VICENTE VERGARA, petitioner,​

vs.​
THE COURT OF APPEALS and AMADEO AZARCON, respondents.

RESOLUTION

PADILLA, J.:

An action for damages based on quasi-delict (Art. 2176 of the Civil Code) was filed by
private respondent against petitioner. The action arose from a vehicular accident that
occurred on 5 August 1979 in Gapan, Nueva Ecija, when Martin Belmonte, while driving
a cargo truck belonging to petitioner, rammed "head-on" the store-residence of the
private respondent, causing damages thereto which were inventoried and assessed at
P53,024.22.

In his answer to the complaint, the petitioner alleged principally: "that his driver Martin
Belmonte operated said cargo truck in a very diligent (and) careful manner; that the
steering wheel refused to respond to his effort and as a result of a blown-out tire and
despite application of his brakes, the said cargo truck hit the store-residence of plaintiff
(private respondent) and that the said accident was an act of God for which he cannot
be held liable." 1

Petitioner also filed a third party complaint against Travellers Insurance and Surety
Corporation, alleging that said cargo truck involved in the vehicular accident, belonging
to the petitioner, was insured by the third party defendant insurance company. Petitioner
asked that the latter be ordered to pay him whatever amount he may be ordered by the
court to pay to the private respondent.

The trial court rendered judgment in favor of private respondent. Upon appeal to the
Court of Appeals, the latter court affirmed in toto the decision of the trial court, which
ordered Petitioner to pay, jointly and severally with Travellers Insurance and Surety
Corporation, to the private, respondent the following: (a) P53,024.22 as actual
damages; (b) P10,000.00 as moral damages; (c) P10,000.00 as exemplary damages;
and (d) the sum of P5,000.00 for attorney's fees and the costs. On the third party
complaint, the insurance company was sentenced to pay to the petitioner the following:
(a) P50,000.00 for third party liability under its comprehensive accident insurance policy;
and (b) P3,000.00 for and as attorney's fees.

Hence, this petition for review on certiorari.

Petitioner's contention that the respondent court erred in finding him guilty of fault or
negligence is not tenable. It was established by competent evidence that the requisites
of a quasi-delict are present in the case at bar. These requisites are: (1) damages to the
plaintiff; (2) negligence, by act or omission, of which defendant, or some person for
whose acts he must respond, was guilty; and (3) the connection of cause and effect
between such negligence and the damages.

It is undisputed that private respondent suffered damages as a result of an act or

omission of petitioner. The issue of whether or not this act or omission can be
considered as a "negligent" act or omission was passed upon by the trial court. The
findings of said court, affirmed by the respondent court, which we are not prepared to
now disturb, show that the fact of occurrence of the "vehicular accident" was sufficiently
established by the policy report and the testimony of Patrolman Masiclat. And the fact of
negligence may be deduced from the surrounding circumstances thereof. According to
the police report, "the cargo truck was travelling on the right side of the road going to
Manila and then it crossed to the center line and went to the left side of the highway; it
then bumped a tricycle; and then another bicycle; and then said cargo truck rammed the
store warehouse of the plaintiff."2

According to the driver of the cargo truck, he applied the brakes but the latter did not
work due to mechanical defect. Contrary to the claim of the petitioner, a mishap caused
by defective brakes can not be consideration as fortuitous in character. Certainly, the
defects were curable and the accident preventable.

Furthermore, the petitioner failed to adduce any evidence to overcome the disputable
presumption of negligence on his part in the selection and supervision of his driver.

Based on the foregoing finding by the respondent Court that there was negligence on
the part of the petitioner, the petitioner's contention that the respondent court erred in
awarding private respondent actual, moral and exemplary damages as well as
attorney's fees and costs, is untenable.

ACCORDINGLY, the petition is DENIED.

SO ORDERED.

Yap (Chairman), Melencio-Herrera, Paras and Sarmiento, JJ., concur.

FGU Insurance vs. CA, 287 SCRA 718

FGU INSURANCE CORPORATION, PETITIONER, VS. THE COURT OF APPEALS,

SAN MIGUEL CORPORATION, AND ESTATE OF ANG GUI, REPRESENTED BY
LUCIO, JULIAN, AND JAIME, ALL SURNAMED ANG, AND CO TO, RESPONDENTS.

G.R. NO. 140704

ESTATE OF ANG GUI, REPRESENTED BY LUCIO, JULIAN AND JAIME, ALL

SURNAMED ANG, AND CO TO, PETITIONERS, VS. THE HONORABLE COURT OF
APPEALS, SAN MIGUEL CORP., AND FGU INSURANCE CORP., RESPONDENTS.

DECISION
CHICO-NAZARIO, J.:

Before Us are two separate Petitions for review assailing the Decision[1] of the Court of
Appeals in CA-G.R. CV No. 49624 entitled, “San Miguel Corporation, Plaintiff-Appellee
versus Estate of Ang Gui, represented by Lucio, Julian and Jaime, all surnamed Ang,
and Co To, Defendants-Appellants, Third–Party Plaintiffs versus FGU Insurance
Corporation, Third-Party Defendant-Appellant,” which affirmed in toto the decision[2] of
the Regional Trial Court of Cebu City, Branch 22. The dispositive portion of the Court of
Appeals decision reads:
WHEREFORE, for all the foregoing, judgment is hereby rendered as follows:

1) Ordering defendants to pay plaintiff the sum of P1,346,197.00 and an interest of 6%

per annum to be reckoned from the filing of this case on October 2, 1990;

2) Ordering defendants to pay plaintiff the sum of P25,000.00 for attorney’s fees and an
additional sum of P10,000.00 as litigation expenses;

3) With cost against defendants.

For the Third-Party Complaint:

1) Ordering third-party defendant FGU Insurance Company to pay and reimburse

defendants the amount of P632,700.00.[3]
The Facts

Evidence shows that Anco Enterprises Company (ANCO), a partnership between Ang
Gui and Co To, was engaged in the shipping business. It owned the M/T ANCO
tugboat and the D/B Lucio barge which were operated as common carriers. Since the
D/B Lucio had no engine of its own, it could not maneuver by itself and had to be towed
by a tugboat for it to move from one place to another.
On 23 September 1979, San Miguel Corporation (SMC) shipped from Mandaue City,
Cebu, on board the D/B Lucio, for towage by M/T ANCO, the following cargoes:

Bill of Lading No. Shipment Destination

1 25,000 cases Pale Pilsen Estancia, Iloilo
350 cases Cerveza Negra Estancia, Iloilo
2 15,000 cases Pale Pilsen San Jose, Antique
200 cases Cerveza Negra San Jose, Antique

The consignee for the cargoes covered by Bill of Lading No. 1 was SMC’s Beer
Marketing Division (BMD)-Estancia Beer Sales Office, Estancia, Iloilo, while the
consignee for the cargoes covered by Bill of Lading No. 2 was SMC’s BMD-San Jose
Beer Sales Office, San Jose, Antique.

The D/B Lucio was towed by the M/T ANCO all the way from Mandaue City to San
Jose, Antique. The vessels arrived at San Jose, Antique, at about one o’clock in the
afternoon of 30 September 1979. The tugboat M/T ANCO left the barge immediately
after reaching San Jose, Antique.

When the barge and tugboat arrived at San Jose, Antique, in the afternoon of 30
September 1979, the clouds over the area were dark and the waves were already big.
The arrastre workers unloading the cargoes of SMC on board the D/B Lucio began to
complain about their difficulty in unloading the cargoes. SMC’s District Sales
Supervisor, Fernando Macabuag, requested ANCO’s representative to transfer the
barge to a safer place because the vessel might not be able to withstand the big waves.

ANCO’s representative did not heed the request because he was confident that the
barge could withstand the waves. This, notwithstanding the fact that at that time, only
the M/T ANCO was left at the wharf of San Jose, Antique, as all other vessels already
left the wharf to seek shelter. With the waves growing bigger and bigger, only Ten
Thousand Seven Hundred Ninety (10,790) cases of beer were discharged into the
custody of the arrastre operator.

At about ten to eleven o’clock in the evening of 01 October 1979, the crew of D/B Lucio
abandoned the vessel because the barge’s rope attached to the wharf was cut off by the
big waves. At around midnight, the barge run aground and was broken and the
cargoes of beer in the barge were swept away.

As a result, ANCO failed to deliver to SMC’s consignee Twenty-Nine Thousand Two

Hundred Ten (29,210) cases of Pale Pilsen and Five Hundred Fifty (550) cases of
Cerveza Negra. The value per case of Pale Pilsen was Forty-Five Pesos and Twenty
Centavos (P45.20). The value of a case of Cerveza Negra was Forty-Seven Pesos and
Ten Centavos (P47.10), hence, SMC’s claim against ANCO amounted to One Million
Three Hundred Forty-Six Thousand One Hundred Ninety-Seven Pesos
(P1,346,197.00).
As a consequence of the incident, SMC filed a complaint for Breach of Contract of
Carriage and Damages against ANCO for the amount of One Million Three Hundred
Forty-Six Thousand One Hundred Ninety-Seven Pesos (P1,346,197.00) plus interest,
litigation expenses and Twenty-Five Percent (25%) of the total claim as attorney’s fees.

Upon Ang Gui’s death, ANCO, as a partnership, was dissolved hence, on 26 January
1993, SMC filed a second amended complaint which was admitted by the Court
impleading the surviving partner, Co To and the Estate of Ang Gui represented by Lucio,
Julian and Jaime, all surnamed Ang. The substituted defendants adopted the original
answer with counterclaim of ANCO “since the substantial allegations of the original
complaint and the amended complaint are practically the same.”

ANCO admitted that the cases of beer Pale Pilsen and Cerveza Negra mentioned in the
complaint were indeed loaded on the vessel belonging to ANCO. It claimed however
that it had an agreement with SMC that ANCO would not be liable for any losses or
damages resulting to the cargoes by reason of fortuitous event. Since the cases of beer
Pale Pilsen and Cerveza Negra were lost by reason of a storm, a fortuitous event which
battered and sunk the vessel in which they were loaded, they should not be held liable.
ANCO further asserted that there was an agreement between them and SMC to insure
the cargoes in order to recover indemnity in case of loss. Pursuant to that agreement,
the cargoes to the extent of Twenty Thousand (20,000) cases was insured with FGU
Insurance Corporation (FGU) for the total amount of Eight Hundred Fifty-Eight
Thousand Five Hundred Pesos (P858,500.00) per Marine Insurance Policy No. 29591.

Subsequently, ANCO, with leave of court, filed a Third-Party Complaint against FGU,
alleging that before the vessel of ANCO left for San Jose, Antique with the cargoes
owned by SMC, the cargoes, to the extent of Twenty Thousand (20,000) cases, were
insured with FGU for a total amount of Eight Hundred Fifty-Eight Thousand Five
Hundred Pesos (P858,500.00) under Marine Insurance Policy No. 29591. ANCO
further alleged that on or about 02 October 1979, by reason of very strong winds and
heavy waves brought about by a passing typhoon, the vessel run aground near the
vicinity of San Jose, Antique, as a result of which, the vessel was totally wrecked and its
cargoes owned by SMC were lost and/or destroyed. According to ANCO, the loss of
said cargoes occurred as a result of risks insured against in the insurance policy and
during the existence and lifetime of said insurance policy. ANCO went on to assert that
in the remote possibility that the court will order ANCO to pay SMC’s claim, the
third-party defendant corporation should be held liable to indemnify or reimburse ANCO
whatever amounts, or damages, it may be required to pay to SMC.

In its answer to the Third-Party complaint, third-party defendant FGU admitted the
existence of the Insurance Policy under Marine Cover Note No. 29591 but maintained
that the alleged loss of the cargoes covered by the said insurance policy cannot be
attributed directly or indirectly to any of the risks insured against in the said insurance
policy. According to FGU, it is only liable under the policy to Third-party Plaintiff ANCO
and/or Plaintiff SMC in case of any of the following:
a) total loss of the entire shipment;

b) loss of any case as a result of the sinking of the vessel; or

c) loss as a result of the vessel being on fire.

Furthermore, FGU alleged that the Third-Party Plaintiff ANCO and Plaintiff SMC failed to
exercise ordinary diligence or the diligence of a good father of the family in the care and
supervision of the cargoes insured to prevent its loss and/or destruction.

Third-Party defendant FGU prayed for the dismissal of the Third-Party Complaint and
asked for actual, moral, and exemplary damages and attorney’s fees.[1]

The trial court found that while the cargoes were indeed lost due to fortuitous event,
there was failure on ANCO’s part, through their representatives, to observe the degree
of diligence required that would exonerate them from liability. The trial court thus held
the Estate of Ang Gui and Co To liable to SMC for the amount of the lost shipment.
With respect to the Third-Party complaint, the court a quo found FGU liable to bear
Fifty-Three Percent (53%) of the amount of the lost cargoes. According to the trial
court:
. . . Evidence is to the effect that the D/B Lucio, on which the cargo insured,
run-aground and was broken and the beer cargoes on the said barge were swept away.
It is the sense of this Court that the risk insured against was the cause of the loss.

. . .

Since the total cargo was 40,550 cases which had a total amount of P1,833,905.00 and
the amount of the policy was only for P858,500.00, defendants as assured, therefore,
were considered co-insurers of third-party defendant FGU Insurance Corporation to the
extent of 975,405.00 value of the cargo. Consequently, inasmuch as there was partial
loss of only P1,346,197.00, the assured shall bear 53% of the loss…[4] [Emphasis ours]
The appellate court affirmed in toto the decision of the lower court and denied the
motion for reconsideration and the supplemental motion for reconsideration.

Hence, the petitions.

The Issues

In G.R. No. 137775, the grounds for review raised by petitioner FGU can be
summarized into two: 1) Whether or not respondent Court of Appeals committed grave
abuse of discretion in holding FGU liable under the insurance contract considering the
circumstances surrounding the loss of the cargoes; and 2) Whether or not the Court of
Appeals committed an error of law in holding that the doctrine of res judicata applies in
the instant case.

In G.R. No. 140704, petitioner Estate of Ang Gui and Co To assail the decision of the
appellate court based on the following assignments of error: 1) The Court of Appeals
committed grave abuse of discretion in affirming the findings of the lower court that the
negligence of the crewmembers of the D/B Lucio was the proximate cause of the loss of
the cargoes; and 2) The respondent court acted with grave abuse of discretion when it
ruled that the appeal was without merit despite the fact that said court had accepted the
decision in Civil Case No. R-19341, as affirmed by the Court of Appeals and the
Supreme Court, as res judicata.

Ruling of the Court

First, we shall endeavor to dispose of the common issue raised by both petitioners in
their respective petitions for review, that is, whether or not the doctrine of res judicata
applies in the instant case.

It is ANCO’s contention that the decision in Civil Case No. R-19341,[5] which was
decided in its favor, constitutes res judicata with respect to the issues raised in the case
at bar.

The contention is without merit. There can be no res judicata as between Civil Case
No. R-19341 and the case at bar. In order for res judicata to be made applicable in a
case, the following essential requisites must be present: 1) the former judgment must be
final; 2) the former judgment must have been rendered by a court having jurisdiction
over the subject matter and the parties; 3) the former judgment must be a judgment or
order on the merits; and 4) there must be between the first and second action identity of
parties, identity of subject matter, and identity of causes of action.[6]

There is no question that the first three elements of res judicata as enumerated above
are indeed satisfied by the decision in Civil Case No. R-19341. However, the doctrine is
still inapplicable due to the absence of the last essential requisite of identity of parties,
subject matter and causes of action.

The parties in Civil Case No. R-19341 were ANCO as plaintiff and FGU as defendant
while in the instant case, SMC is the plaintiff and the Estate of Ang Gui represented by
Lucio, Julian and Jaime, all surnamed Ang and Co To as defendants, with the latter
merely impleading FGU as third-party defendant.

The subject matter of Civil Case No. R-19341 was the insurance contract entered into
by ANCO, the owner of the vessel, with FGU covering the vessel D/B Lucio, while in the
instant case, the subject matter of litigation is the loss of the cargoes of SMC, as
shipper, loaded in the D/B Lucio and the resulting failure of ANCO to deliver to SMC’s
consignees the lost cargo. Otherwise stated, the controversy in the first case involved
the rights and liabilities of the shipowner vis-à-vis that of the insurer, while the present
case involves the rights and liabilities of the shipper vis-à-vis that of the shipowner.
Specifically, Civil Case No. R-19341 was an action for Specific Performance and
Damages based on FGU Marine Hull Insurance Policy No. VMF-MH-13519 covering the
vessel D/B Lucio, while the instant case is an action for Breach of Contract of Carriage
and Damages filed by SMC against ANCO based on Bill of Lading No. 1 and No. 2, with
defendant ANCO seeking reimbursement from FGU under Insurance Policy No.
MA-58486, should the former be held liable to pay SMC.

Moreover, the subject matter of the third-party complaint against FGU in this case is
different from that in Civil Case No. R-19341. In the latter, ANCO was suing FGU for
the insurance contract over the vessel while in the former, the third-party complaint
arose from the insurance contract covering the cargoes on board the D/B Lucio.

The doctrine of res judicata precludes the re-litigation of a particular fact or issue
already passed upon by a court of competent jurisdiction in a former judgment, in
another action between the same parties based on a different claim or cause of action.
The judgment in the prior action operates as estoppel only as to those matters in issue
or points controverted, upon the determination of which the finding or judgment was
rendered.[7] If a particular point or question is in issue in the second action, and the
judgment will depend on the determination of that particular point or question, a former
judgment between the same parties or their privies will be final and conclusive in the
second if that same point or question was in issue and adjudicated in the first suit.[8]

Since the case at bar arose from the same incident as that involved in Civil Case No.
R-19341, only findings with respect to matters passed upon by the court in the former
judgment are conclusive in the disposition of the instant case. A careful perusal of the
decision in Civil Case No. R-19341 will reveal that the pivotal issues resolved by the
lower court, as affirmed by both the Court of Appeals and the Supreme Court, can be
summarized into three legal conclusions: 1) that the D/B Lucio before and during the
voyage was seaworthy; 2) that there was proper notice of loss made by ANCO within
the reglementary period; and 3) that the vessel D/B Lucio was a constructive total loss.

Said decision, however, did not pass upon the issues raised in the instant case. Absent
therein was any discussion regarding the liability of ANCO for the loss of the cargoes.
Neither did the lower court pass upon the issue of the alleged negligence of the
crewmembers of the D/B Lucio being the cause of the loss of the cargoes owned by
SMC.

Therefore, based on the foregoing discussion, we are reversing the findings of the Court
of Appeals that there is res judicata.

Anent ANCO’s first assignment of error, i.e., the appellate court committed error in
concluding that the negligence of ANCO’s representatives was the proximate cause of
the loss, said issue is a question of fact assailing the lower court’s appreciation of
evidence on the negligence or lack thereof of the crewmembers of the D/B Lucio. As a
rule, findings of fact of lower courts, particularly when affirmed by the appellate court,
are deemed final and conclusive. The Supreme Court cannot review such findings on
appeal, especially when they are borne out by the records or are based on substantial
evidence.[9] As held in the case of Donato v. Court of Appeals,[10] in this jurisdiction, it is
a fundamental and settled rule that findings of fact by the trial court are entitled to great
weight on appeal and should not be disturbed unless for strong and cogent reasons
because the trial court is in a better position to examine real evidence, as well as to
observe the demeanor of the witnesses while testifying in the case.[11]

It is not the function of this Court to analyze or weigh evidence all over again, unless
there is a showing that the findings of the lower court are totally devoid of support or are
glaringly erroneous as to constitute palpable error or grave abuse of discretion.[12]

A careful study of the records shows no cogent reason to fault the findings of the lower
court, as sustained by the appellate court, that ANCO’s representatives failed to
exercise the extraordinary degree of diligence required by the law to exculpate them
from liability for the loss of the cargoes.

First, ANCO admitted that they failed to deliver to the designated consignee the Twenty
Nine Thousand Two Hundred Ten (29,210) cases of Pale Pilsen and Five Hundred Fifty
(550) cases of Cerveza Negra.

Second, it is borne out in the testimony of the witnesses on record that the barge D/B
Lucio had no engine of its own and could not maneuver by itself. Yet, the patron of
ANCO’s tugboat M/T ANCO left it to fend for itself notwithstanding the fact that as the
two vessels arrived at the port of San Jose, Antique, signs of the impending storm were
already manifest. As stated by the lower court, witness Mr. Anastacio Manilag testified
that the captain or patron of the tugboat M/T ANCO left the barge D/B Lucio
immediately after it reached San Jose, Antique, despite the fact that there were already
big waves and the area was already dark. This is corroborated by defendants’ own
witness, Mr. Fernando Macabueg.[13]

The trial court continued:

At that precise moment, since it is the duty of the defendant to exercise and observe
extraordinary diligence in the vigilance over the cargo of the plaintiff, the patron or
captain of M/T ANCO, representing the defendant could have placed D/B Lucio in a
very safe location before they left knowing or sensing at that time the coming of a
typhoon. The presence of big waves and dark clouds could have warned the patron or
captain of M/T ANCO to insure the safety of D/B Lucio including its cargo. D/B Lucio
being a barge, without its engine, as the patron or captain of M/T ANCO knew, could not
possibly maneuver by itself. Had the patron or captain of M/T ANCO, the representative
of the defendants observed extraordinary diligence in placing the D/B Lucio in a safe
place, the loss to the cargo of the plaintiff could not have occurred. In short, therefore,
defendants through their representatives, failed to observe the degree of diligence
required of them under the provision of Art. 1733 of the Civil Code of the Philippines.[14]
Petitioners Estate of Ang Gui and Co To, in their Memorandum, asserted that the
contention of respondents SMC and FGU that “the crewmembers of D/B Lucio should
have left port at the onset of the typhoon is like advising the fish to jump from the frying
pan into the fire and an advice that borders on madness.”[15]

The argument does not persuade. The records show that the D/B Lucio was the only
vessel left at San Jose, Antique, during the time in question. The other vessels were
transferred and temporarily moved to Malandong, 5 kilometers from wharf where the
barge remained.[16] Clearly, the transferred vessels were definitely safer in Malandong
than at the port of San Jose, Antique, at that particular time, a fact which petitioners
failed to dispute

ANCO’s arguments boil down to the claim that the loss of the cargoes was caused by
the typhoon Sisang, a fortuitous event (caso fortuito), and there was no fault or
negligence on their part. In fact, ANCO claims that their crewmembers exercised due
diligence to prevent or minimize the loss of the cargoes but their efforts proved no
match to the forces unleashed by the typhoon which, in petitioners’ own words was, by
any yardstick, a natural calamity, a fortuitous event, an act of God, the consequences of
which petitioners could not be held liable for.[17]

The Civil Code provides:

Art. 1733. Common carriers, from the nature of their business and for reasons of public
policy are bound to observe extraordinary diligence in the vigilance over the goods and
for the safety of the passengers transported by them, according to all the circumstances
of each case.

Such extraordinary diligence in vigilance over the goods is further expressed in Articles
1734, 1735, and 1745 Nos. 5, 6, and 7 . . .

Art. 1734. Common carriers are responsible for the loss, destruction, or deterioration of
the goods, unless the same is due to any of the following causes only:

(1) ​ Flood, storm, earthquake, lightning, or other natural disaster or calamity;

. . .

Art. 1739. In order that the common carrier may be exempted from responsibility,
the natural disaster must have been the proximate and only cause of the loss.
However, the common carrier must exercise due diligence to prevent or minimize loss
before, during and after the occurrence of flood, storm, or other natural disaster in order
that the common carrier may be exempted from liability for the loss, destruction, or
deterioration of the goods . . . (Emphasis supplied)
Caso fortuito or force majeure (which in law are identical insofar as they exempt an
obligor from liability)[18] by definition, are extraordinary events not foreseeable or
avoidable, events that could not be foreseen, or which though foreseen, were inevitable.
It is therefore not enough that the event should not have been foreseen or anticipated,
as is commonly believed but it must be one impossible to foresee or to avoid.[19]

In this case, the calamity which caused the loss of the cargoes was not unforeseen nor
was it unavoidable. In fact, the other vessels in the port of San Jose, Antique, managed
to transfer to another place, a circumstance which prompted SMC’s District Sales
Supervisor to request that the D/B Lucio be likewise transferred, but to no avail. The
D/B Lucio had no engine and could not maneuver by itself. Even if ANCO’s
representatives wanted to transfer it, they no longer had any means to do so as the
tugboat M/T ANCO had already departed, leaving the barge to its own devices. The
captain of the tugboat should have had the foresight not to leave the barge alone
considering the pending storm.

While the loss of the cargoes was admittedly caused by the typhoon Sisang, a natural
disaster, ANCO could not escape liability to respondent SMC. The records clearly show
the failure of petitioners’ representatives to exercise the extraordinary degree of
diligence mandated by law. To be exempted from responsibility, the natural disaster
should have been the proximate and only cause of the loss.[20] There must have been
no contributory negligence on the part of the common carrier. As held in the case of
Limpangco Sons v. Yangco Steamship Co.:[21]
. . . To be exempt from liability because of an act of God, the tug must be free from any
previous negligence or misconduct by which that loss or damage may have been
occasioned. For, although the immediate or proximate cause of the loss in any given
instance may have been what is termed an act of God, yet, if the tug unnecessarily
exposed the two to such accident by any culpable act or omission of its own, it is not
excused.[22]
Therefore, as correctly pointed out by the appellate court, there was blatant negligence
on the part of M/T ANCO’s crewmembers, first in leaving the engine-less barge D/B
Lucio at the mercy of the storm without the assistance of the tugboat, and again in
failing to heed the request of SMC’s representatives to have the barge transferred to a
safer place, as was done by the other vessels in the port; thus, making said blatant
negligence the proximate cause of the loss of the cargoes.

We now come to the issue of whether or not FGU can be held liable under the
insurance policy to reimburse ANCO for the loss of the cargoes despite the findings of
the respondent court that such loss was occasioned by the blatant negligence of the
latter’s employees.

One of the purposes for taking out insurance is to protect the insured against the
consequences of his own negligence and that of his agents. Thus, it is a basic rule in
insurance that the carelessness and negligence of the insured or his agents constitute
no defense on the part of the insurer.[23] This rule however presupposes that the loss
has occurred due to causes which could not have been prevented by the insured,
despite the exercise of due diligence.

The question now is whether there is a certain degree of negligence on the part of the
insured or his agents that will deprive him the right to recover under the insurance
contract. We say there is. However, to what extent such negligence must go in order to
exonerate the insurer from liability must be evaluated in light of the circumstances
surrounding each case. When evidence show that the insured’s negligence or
recklessness is so gross as to be sufficient to constitute a willful act, the insurer must be
exonerated.
In the case of Standard Marine Ins. Co. v. Nome Beach L. & T. Co.,[24] the United States
Supreme Court held that:
The ordinary negligence of the insured and his agents has long been held as a part of
the risk which the insurer takes upon himself, and the existence of which, where it is the
proximate cause of the loss, does not absolve the insurer from liability. But willful
exposure, gross negligence, negligence amounting to misconduct, etc., have often been
held to release the insurer from such liability.[25] [Emphasis ours]

...

In the case of Williams v. New England Insurance Co., 3 Cliff. 244, Fed. Cas. No.
17,731, the owners of an insured vessel attempted to put her across the bar at Hatteras
Inlet. She struck on the bar and was wrecked. The master knew that the depth of water
on the bar was such as to make the attempted passage dangerous. Judge Clifford held
that, under the circumstances, the loss was not within the protection of the policy,
saying:

Authorities to prove that persons insured cannot recover for a loss occasioned by
their own wrongful acts are hardly necessary, as the proposition involves an
elementary principle of universal application. Losses may be recovered by the
insured, though remotely occasioned by the negligence or misconduct of the
master or crew, if proximately caused by the perils insured against, because such
mistakes and negligence are incident to navigation and constitute a part of the
perils which those who engage in such adventures are obliged to incur; but it was
never supposed that the insured could recover indemnity for a loss occasioned by
his own wrongful act or by that of any agent for whose conduct he was
responsible.[26] [Emphasis ours]
From the above-mentioned decision, the United States Supreme Court has made a
distinction between ordinary negligence and gross negligence or negligence amounting
to misconduct and its effect on the insured’s right to recover under the insurance
contract. According to the Court, while mistake and negligence of the master or crew
are incident to navigation and constitute a part of the perils that the insurer is obliged to
incur, such negligence or recklessness must not be of such gross character as to
amount to misconduct or wrongful acts; otherwise, such negligence shall release the
insurer from liability under the insurance contract.

In the case at bar, both the trial court and the appellate court had concluded from the
evidence that the crewmembers of both the D/B Lucio and the M/T ANCO were
blatantly negligent. To wit:
There was blatant negligence on the part of the employees of defendants-appellants
when the patron (operator) of the tug boat immediately left the barge at the San Jose,
Antique wharf despite the looming bad weather. Negligence was likewise exhibited by
the defendants-appellants’ representative who did not heed Macabuag’s request that
the barge be moved to a more secure place. The prudent thing to do, as was done by
the other sea vessels at San Jose, Antique during the time in question, was to transfer
the vessel to a safer wharf. The negligence of the defendants-appellants is proved by
the fact that on 01 October 1979, the only simple vessel left at the wharf in San Jose
was the D/B Lucio.[27] [Emphasis ours]
As stated earlier, this Court does not find any reason to deviate from the conclusion
drawn by the lower court, as sustained by the Court of Appeals, that ANCO’s
representatives had failed to exercise extraordinary diligence required of common
carriers in the shipment of SMC’s cargoes. Such blatant negligence being the
proximate cause of the loss of the cargoes amounting to One Million Three Hundred
Forty-Six Thousand One Hundred Ninety-Seven Pesos (P1,346,197.00)

This Court, taking into account the circumstances present in the instant case, concludes
that the blatant negligence of ANCO’s employees is of such gross character that it
amounts to a wrongful act which must exonerate FGU from liability under the insurance
contract.

WHEREFORE, premises considered, the Decision of the Court of Appeals dated 24

February 1999 is hereby AFFIRMED with MODIFICATION dismissing the third-party
complaint.

SO ORDERED.

Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

[1]
Penned by Associate Justice Buenaventura J. Guerrero, with Associate Justices
Portia Aliño-Hormachuelos and Teodoro P. Regino, concurring.
[2]
Civil Case No. R-19710, Judge Pampio A. Abarintos, ponente.
[3]
Rollo, G.R. No. 140704, p. 72.
[4]
RTC Decision, pp. 1-4; Rollo, G.R. No. 137775, pp. 40-43.
[4]
RTC Decision, pp. 7-8; Ibid., pp. 46-47.
[5]
Complaint for Specific Performance with Damages filed by ANCO against FGU based
on an insurance contract procured by ANCO from FGU over the vessel D/B Lucio,
wherein defendant FGU was adjudged to pay the insurance indemnity for the
constructive total loss of the vessel.
[6]
Padillo v. Court of Appeals, 422 Phil 334, 350 (2001); Vda. De Salanga v. Alagar, G.R.
No. 134089, 14 July 2000, 335 SCRA 728, 736; Gardose v. Tarroza, G.R. No. 130570,
19 May 1998, 290 SCRA 186, 193; Carlet v. Court of Appeals, G.R. No. 114275, 07 July
1997, 175 SCRA 97, 106; Allied Banking Corporation v. Court of Appeals, G.R. No.
108089, 10 January 1994, 229 SCRA 252, 258.
[7]
Rizal Surety & Insurance Company v. Court of Appeals, G.R. No. 112360, 18 July
2000, 336 SCRA 12, 22, citing Smith Bell and Company (Phils.) Inc. v. Court of
Appeals, G.R. No. 56294, 20 May 1991, 197 SCRA 201, 209; Tiongson v. Court of
Appeals, G.R. No. L-35059, 22 February 1973, 49 SCRA 429.
[8]
Calalang v. Register of Deeds of Quezon City, G.R. No. 76265, 11 March 1994, 231
SCRA 88.
[9]
Potenciano v. Reynoso, G.R. No. 140707, 22 April 2003, 401 SCRA 391, citing
Milestone Realty Co., Inc v. Court of Appeals, G.R. No. 135999, 19 April 2002, 381
SCRA 406; Donato C. Cruz Trading Corp. v. Court of Appeals, G.R. No. 129189, 05
December 2000, 347 SCRA 13; Baylon v. Court of Appeals, G.R. No. 109941, 17
August 1999, 312 SCRA 502.
[10]
G.R. No. 102603, 18 January 1993, 217 SCRA 196.
[11]
Ibid. at 203.
[12]
Supra, note 10, citing Fortune Guarantee and Insurance Corp. v. Court of Appeals,
G.R. No. 110701, 12 March 2002, 379 SCRA 7.
[13]
RTC Decision, p. 5, Rollo, G.R. No. 137775, p. 44.
[14]
Ibid.
[15]
Rollo, p.17
[16]
TSN, dated 14 December 1988, pp. 9-18.
[17]
Rollo, p. 16.
[18]
Lasam v. Smith, 45 Phil. 661.
[19]
Republic of the Philippines v. Luzon Stevedoring Corp., 128 Phil. 313, citing Art. 1179
of the Philippine Civil Code.
[20]
Art. 1739, Philippine Civil Code.
[21]
34 Phil. 597 (1916).
[22]
Id. at p. 604, citing Manresa, Vol. 8, p. 91, et seq.
[23]
Chandler v. Worcester Mutual Fire Ins. Co., 3 Cush. 328.
[24]
133 Fed R. 636 (1904).
Singson vs. 132 Phil 597

G.R. No. L-24837 June 27, 1968

JULIAN C. SINGSON and RAMONA DEL CASTILLO, plaintiffs,​

vs.​
BANK OF THE PHILIPPINE ISLANDS and SANTIAGO FREIXAS, in his capacity as
President of the said Bank, defendants.

Gil B. Galang for plaintiffs.​

Aviado and Aranda for defendants.

CONCEPCION, C.J.:

Appeal by plaintiffs, Julian Singson and his wife, Ramona del Castillo, from a decision of
the Court of First Instance of Manila dismissing their complaint against defendants
herein, the Bank of the Philippine Islands and Santiago Freixas.

It appears that Singson, was one of the defendants in civil case No. 23906 of the Court
of First Instance, Manila, in which judgment had been rendered sentencing him and his
co-defendants therein, namely, Celso Lobregat and Villa-Abrille & Co., to pay the sum of
P105,539.56 to the plaintiff therein, Philippine Milling Co. Singson and Lobregat had
seasonably appealed from said judgment, but not Villa-Abrille & Co., as against which
said judgment, accordingly, became final and executory. In due course, a writ of
garnishment was subsequently served upon the Bank of the Philippine Islands — in
which the Singsons had a current account — insofar as Villa-Abrille's credits against the
Bank were concerned. What happened thereafter is set forth in the decision appealed
from, from which we quote:

Upon receipt of the said Writ of Garnishment, a clerk of the bank in charge of all matters
of execution and garnishment, upon reading the name of the plaintiff herein in the title of
the Writ of Garnishment as a party defendants, without further reading the body of the
said garnishment and informing himself that said garnishment was merely intended for
the deposits of defendant Villa-Abrille & Co., Valentin Teus, Fernando F. de Villa-Abrille
and Joaquin Bona, prepared a letter for the signature of the President of the Bank
informing the plaintiff Julian C. Singson of the garnishment of his deposits by the plaintiff
in that case. Another letter was also prepared and signed by the said President of the
Bank for the Special Sheriff dated April 17, 1963.

Subsequently, two checks issued by the plaintiff Julian C. Singson, one for the amount
of P383 in favor of B. M. Glass Service dated April 16, 1963 and bearing No. C-424852,
and check No. C-394996 for the amount of P100 in favor of the Lega Corporation, and
drawn against the said Bank, were deposited by the said drawers with the said bank.
Believing that the plaintiff Singson, the drawer of the check, had no more control over
the balance of his deposits in the said bank, the checks were dishonored and were
refused payment by the said bank. After the first check was returned by the bank to the
B. M. Glass Service, the latter wrote plaintiff Julian C. Singson a letter, dated April 19,
1963, advising him that his check for P383.00 bearing No. C-424852 was not honored
by the bank for the reason that his account therein had already been garnished. The
said B. M. Glass Service further stated in the said letter that they were constrained to
close his credit account with them. In view thereof, plaintiff Julian C. Singson wrote the
defendant bank a letter on April 19, 1963, claiming that his name was not included in
the Writ of Execution and Notice of Garnishment, which was served upon the bank. The
defendant President Santiago Freixas of the said bank took steps to verify this
information and after having confirmed the same, apologized to the plaintiff Julian C.
Singson and wrote him a letter dated April 22, 1963, requesting him to disregard their
letter of April 17, 1963, and that the action of garnishment from his account had already
been removed. A similar letter was written by the said official of the bank on April 22,
1963 to the Special Sheriff informing him that his letter dated April 17, 1963 to the said
Special Sheriff was considered cancelled and that they had already removed the Notice
of Garnishment from plaintiff Singson's account. Thus, the defendants lost no time to
rectify the mistake that had been inadvertently committed, resulting in the temporary
freezing of the account of the plaintiff with the said bank for a short time.

xxx xxx xxx

On May 8, 1963, the Singsong commenced the present action against the Bank and its
president, Santiago Freixas, for damages1 in consequence of said illegal freezing of
plaintiffs' account.1äwphï1.ñët

After appropriate proceedings, the Court of First Instance of Manila rendered judgment
dismissing the complaint upon the ground that plaintiffs cannot recover from the
defendants upon the basis of a quasi-delict, because the relation between the parties is
contractual in nature; because this case does not fall under Article 2219 of our Civil
Code, upon which plaintiffs rely; and because plaintiffs have not established the amount
of damages allegedly sustained by them.

The lower court held that plaintiffs' claim for damages cannot be based upon a tort or
quasi-delict, their relation with the defendants being contractual in nature. We have
repeatedly held, however, that the existence of a contract between the parties does not
bar the commission of a tort by the one against the order and the consequent recovery
of damages therefor.2 Indeed, this view has been, in effect, reiterated in a comparatively
recent case. Thus, in Air France vs. Carrascoso,3 involving an airplane passenger who,
despite his first-class ticket, had been illegally ousted from his first-class
accommodation and compelled to take a seat in the tourist compartment, was held
entitled to recover damages from the air-carrier, upon the ground of tort on the latter's
part, for, although the relation between a passenger and a carrier is "contractual both in
origin and nature ... the act that breaks the contract may also be a tort".

In view, however, of the facts obtaining in the case at bar, and considering, particularly,
the circumstance, that the wrong done to the plaintiff was remedied as soon as the
President of the bank realized the mistake he and his subordinate employee had
committed, the Court finds that an award of nominal damages — the amount of which
need not be proven4 — in the sum of P1,000, in addition to attorney's fees in the sum of
P500, would suffice to vindicate plaintiff's rights.5

WHEREFORE, the judgment appealed from is hereby reversed, and another one shall
be entered sentencing the defendant Bank of the Philippine Islands to pay to the
plaintiffs said sums of P1,000, as nominal damages, and P500, as attorney's fees, apart
from the costs. It is so ordered.

Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro and Angeles, JJ., concur.​
Fernando, J., took no part.

Footnotes
1
P100,000 as moral damages, P20,000 as exemplary damages, P20,000 as nominal
damages, and P10,000 for attorney's fees and expenses of litigation, plus the costs.
2
Cangco v. Manila Railroad, 38 Phil. 768; Yamada v. Manila Railroad, 33 Phil. 8;
Vazquez v. Borja, 74 Phil. 560.
3
L-21438, Sept. 28, 1966.
4
Ventanilla v. Centeno, L-14333, January 28, 1961.
5
Articles 2208 and 2221 of the Civil Code of the Philippines.

City of Manila vs. Meralco 52 Phil 586

United States vs. Barias 23 Phil 586

G.R. No. L-7567 November 12, 1912

THE UNITED STATES, plaintiff-appellee,​

vs.​
SEGUNDO BARIAS, defendant-appellant.

Bruce, Lawrence, Ross and Block for appellant.​

Office of the Solicitor-General Harvey, for appellee.

CARSON, J.:

This is an appeal from a sentence imposed by the Honorable A. S. Crossfield, judge of

the Court of First Instance of Manila, for homicide resulting from reckless negligence.
The information charges:
That on or about November 2, 1911, in the city of Manila, Philippine Islands, the said
Segundo Barias was a motorman on street car No. 9, run 7 of the Pasay-Cervantes
lines of the Manila Electric Railroad and Light Company, a corporation duly organized
and doing business in the city of Manila, Philippine Islands; as a such motorman he was
controlling and operating said street car along Rizal Avenue, formerly Calle Cervantes,
of this city, and as such motorman of the said street car he was under obligation to run
the same with due care and diligence to avoid any accident that might occur to vehicles
and pedestrians who were travelling on said Rizal Avenue; said accused, at said time
and place, did willfully, with reckless imprudence and inexcusable negligence and in
violation of the regulations promulgated to that effect, control and operate said street
car, without heeding the pedestrians crossing Rizal Avenue from one side to the other,
thus knocking down and causing by his carelessness and imprudent negligence that
said street car No. 9, operated and controlled by said accused, as hereinbefore stated,
should knock down and pass over the body and head of one Fermina Jose, a girl 2
years old, who at said time and place was crossing the said Rizal Avenue, the body of
said girl being dragged along street-car on said Rizal Avenue for a long distance, thus
crushing and destroying her head and causing her sudden death as a result of the injury
received; that if the acts executed by the accused had been done with malice, he would
be guilty of the serious crime of homicide.

The defendant was a motorman for the Manila Electric Railroad and Light Company. At
about 6 o'clock on the morning of November 2, 1911, he was driving his car along Rizal
avenue and stopped it near the intersection of that street with Calle Requesen to take
on some passengers. When the car stopped, the defendant looked backward,
presumably to note whether all the passengers were aboard, and then started his car.
At that moment Fermina Jose, a child about 3 years old, walked or ran in front of he car.
She was knocked down and dragged some little distance underneath the car, and was
left dead upon the track. The motorman proceeded with his car to the end of the track,
some distance from the place of the accident, and apparently knew nothing of it until his
return, when he was informed of what happened.

There is no substantial dispute as to the facts. It is true that one witness testified that
the defendant started the car without turning his head, and while he was still looking
backwards and that this testimony was directly contradicted by that of another witness.
But we do not deem it necessary to make an express finding as to the precise direction
in which the defendant's head was turned at the moment when he started his car. It is
sufficient for the purpose of our decision to hold, as we do, that the evidence clearly
discloses that he started his car from a standstill without looking over the track
immediately in front of the car to satisfy himself that it was clear. he did not see the child
until after he had run his car over it, and after he had return to the place where it was
found dead, and we think we are justified in saying that whenever he was looking at the
moment when he started his car, he was not looking at the track immediately in front of
the car, and that he had not satisfied himself that this portion of the tract was clear
immediately before putting the car in the motion.
The trial court found the defendant guilty of imprudencia temeraria (reckless negligence)
as charged in the information, and sentenced him to over one year and one month of
imprisonment in the Bilibid Prison, and to pay the cause of the action.

The sole question raised by this appeal is whether the evidence shows such
carelessness or want of ordinary care on the part of the defendant as to amount to
reckless negligence (imprudencia temeraria).

Judge Cooley in his work on Torts (3d ed., 1324) defines negligence to be: "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
persons suffers injury."

In the case of U. S. vs. Nava, (1 Phil. Rep., 580), we held that: "Reckless negligence
consists of the failure to take such precautions or advance measures in the
performance of an act as the most prudence would suggest whereby injury is caused to
persons or to property."

Silvela says in his "Derecho Penal," in speaking of reckless imprudence (imprudencia

temeraria):

The word "negligencia" used in the code, and the term "imprudencia" with which this
punishable act is defined, express this idea in such a clear manner that it is not
necessary to enlarge upon it. He who has done everything on his part to prevent his
actions from causing damage to another, although he has not succeeded in doing so,
notwithstanding his efforts, is the victim of an accident and can not be considered
responsible for the same. (Vol. 2, p. 127 [153].)

Temerario is, in our opinion, one who omits, with regard to this actions, which are liable
to cause injury to another, that care and diligence, that attention, which can be required
of the least careful, attentive, or diligent. If a moment's attention and reflection would
have shown a person that the act which he was about to perform was liable to have the
harmful consequence which it had, such person acted with temerity and may be guilty of
"imprudencia temeraria." It may be that in practice this idea has been given a greater
scope and the acts of imprudence which did not show carelessness as carried to such
high degree, might have been punished as "imprudencia temeraria;" but in our opinion,
the proper meaning of the word does not authorize another interpretation. (Id., p. 133
[161].)

Groizard, commenting upon "imprudencia temeraria," on page 389, volume 8, of his

work on the Penal Code, says:

Prudence is that cardinal virtue which teaches us to discern and distinguish the good
from bad, in order to adopt or flee from it. It also means good judgment, temperance,
and moderation in one's actions. `Temerario is one who exposes himself to danger or
rushes into it without reflection and without examining the same. Consequently, he who
from lack of good judgment, temperance, or moderation in his actions, exposes himself
without reflection and examination to the danger of committing a crime, must be held
responsible under the provision of law aforementioned.

Negligence is want of the care required by the circumstances. It is a relative or

comparative, not an absolute, term and its application depends upon the situation of the
parties and the degree of care and vigilance which the circumstances reasonably
require. Where the danger is great, a high degree of care is necessary, and the failure
to observe it is a want of ordinary care under the circumstances. (Ahern vs. Oregon
Telephone Co., 24 Oreg., 276, 294; 35 Pac., 549.)

Ordinary care, if the danger is great, may arise to the grade of a very exact and
unchangeable attention. (Parry Mfg. Co. vs. Eaton, 41 Ind. App., 81, 1908; 83 N. E.,
510.)

In the case of U. S. vs. Reyes (1 Phil. Rep., 375-377), we held that: "The diligence with
which the law requires the individual at all the time to govern his conduct varies with the
nature of the situation in which he is placed and with the importance of the act which he
is to perform.lawph!l.net

The question to be determined then, is whether, under all the circumstances, and
having in mind the situation of the defendant when he put his car in motion and ran it
over the child, he was guilty of a failure to take such precautions or advance measures
as common prudence would suggest.

The evidence shows that the thoroughfare on which the incident occurred was a public
street in a densely populated section of the city. The hour was six in the morning, or
about the time when the residents of such streets begin to move about. Under such
conditions a motorman of an electric street car was clearly charged with a high degree
of diligence in the performance of his duties. He was bound to know and to recognize
that any negligence on his part in observing the track over which he was running his car
might result in fatal accidents. He had no right to assume that the track before his car
was clear. It was his duty to satisfy himself of that fact by keeping a sharp lookout, and
to do everything in his power to avoid the danger which is necessarily incident to the
operation of heavy street cars on public thoroughfares in populous sections of the city.

Did he exercise the degree of diligence required of him? We think this question must be
answered in the negative. We do not go so far as to say that having brought his car to a
standstill it was his bounden duty to keep his eyes directed to the front. Indeed, in the
absence of some regulation of his employers, we can well understand that, at times, it
might be highly proper and prudent for him to glance back before again setting his car in
motion, to satisfy himself that he understood correctly a signal to go forward or that all
the passengers had safely alighted or gotten on board. But we do insist that before
setting his car again in motion, it was his duty to satisfy himself that the track was clear,
and, for that purpose, to look and to see the track just in front of his car. This the
defendant did not do, and the result of his negligence was the death of the child.
In the case of Smith vs. St. Paul City Ry. Co., (32 Minn., p. 1), the supreme court of
Minnesota, in discussing the diligence required of street railway companies in the
conduct of their business observed that: "The defendant was a carrier of passengers for
hire, owing and controlling the tracks and cars operated thereon. It is therefore subject
to the rules applicable to passenger carriers. (Thompson's Carriers, 442; Barrett vs.
Third Ave. R. Co., 1 Sweeny, 568; 8 Abb. Pr. (N.S.), 205.) As respects hazards and
dangers incident to the business or employment, the law enjoins upon such carrier the
highest degree of care consistent with its undertaking, and it is responsible for the
slightest negligence. (Wilson vs. Northern Pacific R. Co., 26 Minn., 278; Warren vs.
Fitchburg R. Co., 8 Allen, 233; 43 Am. Dec. 354, 356, notes and cases.) . . . The severe
ruled which enjoins upon the carrier such extraordinary care and diligence, is intended,
for reasons of public policy, to secure the safe carriage of passengers, in so far as
human skill and foresight can affect such result." The case just cited was a civil case,
and the doctrine therein announced had special reference to the care which should be
exercised in securing the safety of passengers. But we hold that the reasons of public
policy which impose upon street car companies and their employees the duty of
exercising the utmost degree of diligence in securing the safety of passengers, apply
with equal force to the duty of avoiding the infliction of injuries upon pedestrians and
others on the public streets and thoroughfares over which these companies are
authorized to run their cars. And while, in a criminal case, the courts will require proof of
the guilt of the company or its employees beyond a reasonable doubt, nevertheless the
care or diligence required of the company and its employees is the same in both cases,
and the only question to be determined is whether the proofs shows beyond a
reasonable doubt that the failure to exercise such care or diligence was the cause of the
accident, and that the defendant was guilty thereof.

Counsel for the defendant insist that the accident might have happened despite the
exercise of the utmost care by the defendant, and they have introduced photographs
into the record for the purpose of proving that while the motorman was standing in his
proper place on the front platform of the car, a child might have walked up immediately
in front of he car without coming within the line of his vision. Examining the
photographs, we think that this contention may have some foundation in fact; but only to
this extent, that standing erect, at the position he would ordinarily assume while the car
is in motion, the eye of the average motorman might just miss seeing the top of the
head of a child, about three years old, standing or walking close up to the front of the
car. But it is also very evident that by inclining the head and shoulders forward very
slightly, and glancing in front of the car, a person in the position of a motorman could not
fail to see a child on the track immediately in front of his car; and we hold that it is the
manifest duty of a motorman, who is about to start his car on a public thoroughfare in a
thickly-settled district, to satisfy himself that the track is clear immediately in front of his
car, and to incline his body slightly forward, if that be necessary, in order to bring the
whole track within his line of vision. Of course, this may not be, and usually is not
necessary when the car is in motion, but we think that it is required by the dictates of the
most ordinary prudence in starting from a standstill.

We are not unmindful of our remarks in the case of U. S. vs. Bacho (10 Phil. Rep., 577),
to which our attention is directed by counsel for appellant. In that case we said that:
. . . In the general experience of mankind, accidents apparently avoidable and often
inexplicable are unfortunately too frequent to permit us to conclude that some one must
be criminally liable for negligence in every case where an accident occurs. It is the duty
of the prosecution in each case to prove by competent evidence not only the existence
of criminal negligence, but that the accused was guilty thereof.

Nor do we overlook the ruling in the case of U. S. vs. Barnes (12 Phil. Rep., 93), to
which our attention is also invited, wherein we held that the defendant was not guilty of
reckless negligence, where it appeared that he killed another by the discharge of his
gun under such circumstances that he might have been held guilty of criminally reckless
negligence had he had knowledge at that moment that another person was in such
position as to be in danger if the gun should be discharged. In this latter case the
defendant had no reason to anticipate that the person who was injured was in the line of
fire, or that there was any probability that he or anyone else would place himself in the
line of fire. In the case at bar, however, it was, as we have seen, the manifest duty of the
motorman to take reasonable precautions in starting his car to see that in doing so he
was not endangering the life of any pedestrian, old or young; and to this end it was
further his duty to guard against the reasonable possibility that some one might be on
the track immediately in front of the car. We think that the evidence showing, as it does,
that the child was killed at the moment when the car was set in motion, we are justified
in holding that, had the motorman seen the child, he could have avoided the accident;
the accident was not, therefore, "unavailable or inexplicable," and it appearing that the
motorman, by the exercise of ordinary diligence, might have seen the child before he
set the car in motion, his failure to satisfy himself that the track was clear before doing
so was reckless negligence, of which he was properly convicted in the court below.

We think, however, that the penalty should be reduced to that of six months and one
day of prision correccional. Modified by substituting for so much thereof as imposes the
penalty of one year and one month of imprisonment, the penalty of six months and one
day of prision correccional, the judgment of the lower court convicting and sentencing
the appellant is affirmed, with costs of both instances against him. So ordered.

Arellano, C.J., Torres and Mapa, JJ., concur.