TRANSPORTO vs. MIJARES 1 CAR 2s 860 [1961] On December 23, 1956, plaintiff Antonio Transporto was a checker and sugar analyst of La Carlota-Ponteverdra Sugar Planter’s Association; while defendant Hernani Mihares was a bench chemist of La Carlota Sugar Cen- tral. Both had their offices in the Analysis Department of La Carlota Sugar Central, La Carlota Negros Occidental. At about 12:30 noon of the aforesaid date, Alfredo Balo, an employee of the sugar central, called plaintiffs atten- tion to an unusually big-sized firecracker on the table of Vicente Lim, chief of the Analysis Department. Plaintiff approached the table, examined the firecracker, big in size, thickly covered with cardboard in order to scare the children, and that it was a fake firecracker and would not explode. He fur- ther stated that he used to explode bigger-sized firecrackers, and that ifheld tightly, one would not get hurt by the explosion thereof. His office companions laughed unbelievingly at such remark. Apparently irked by the laughter of his companions, plaintiff challenged them to a bet of P100.00, despite the statement of Vicente Lim, the owner of said object, and of defendant that the firecracker was a real one and would explode. Defendant accepted the bet but for P20.00 only. Plaintiff agreed. Defendant gave his P20.00 to plaintiff and told plaintiff to go ahead and ignite the firecracker with his lighted ciga- rette, but plaintiff said that he had better explode the firecracker outside the laboratory because there were people inside. Plaintiff and defendant stepped out, followed only by Ramon Pilado. Once, outside, plaintiff made a gesture of igniting the firecracker, but defendant stopped him, asking how he could be sure that the plaintiff would not throw the firecracker at him after lighting the same. Thereupon, plaintiff suggested that the firecracker be tied to his hand, which suggestion defendant followed, by tying the firecracker to the right palm of plaintiff who extended his hand for the purpose. Plaintiff, then, simulated igniting the fuse with his cigarette and suddently thrust his hand to defendant, at the same time shouting, “Boom!” Defendant brushed aside plaintiffs hand and ran away, apparently scared. Plaintiff laughed at defend- ant, calling him a coward. When the defendant realized that plaintiff was merely joking, he dared plaintiff to ignite the fuse. Plaintiff held the firecraker tightly, ignited the fuse which was about six inches long and extended hisarm. When the firecracker exploded, plaintiff exclaimed at defendant, “You lost,” and immediately headed for the laboratory. It was Ramon Pillado who called plaintiff's attention that his right hand was bleeding. Plaintiff looked at his hand and said: “Well, it is an accident; it is my fault.” He asked to be taken to the Pro- vincial Hospital where he was confined for 14 days. He paid P172.00 for the hospital room x x x; P53.35 for medicine x x x; and P200.00 for subsistence and transportation expenses of his family in accompanying and attending him in the hospital. Plaintiffs monthly salary was P150.00, which he failed to receive since the date of the incident, December 23, 1956, because after he left the hospital, his employer, the Planters’ Association, did not take him back. However, beginning December, 1956, the Association employed his son. Upon his dis- charge from the hospital, plaintiff asked for monetary help from defendant, and both agreed that defendant pay plaintiff P1,000.00; P500.00 of which was deposited on January 21, 1957 x x x In February, 1957, plaintiff demanded payment of the balance of P500.00 but defendant simply told plaintiff that he was already paid. x x x [Plaintiff thereafter filed an action for damages before the trial court but the latter dismissed the case. On appeal, the Court of Appeals sustained the dismissal.] The facts being as above related, satisfactorily established by the evidence, this appeal cannot be maintained with success. As is seen, “the plaintiff played the part of a bravado,” to use the language of the trial court. At first, he expressed the belief that the firecracker was a fake one and would not explode, but when assured by the owner, Vicente Lim, and also by the defendant, that it was a real one and would explode, he boasted that if he held it tightly he would not get hurt even if it exploded. Those who heard him laughed mockingly. Evidently irked thereby, he challenged everyone to a bet of P100.00. No one dared accept his bet except the defendant, but the latter would bet only P20.00. Even so, plaintiff accepted defendant’s bet of 20.00. It was said that when plaintiff noticed that the fuse of the firecracker was ignited, he called-off the bet, but the defendant refused. This theory of plaintiff was properly rejected by the trial court because “if the plaintiff,” said it, “did not like to take the risk after the fuse was ignited, he could have easily pulled out the fuse with his left hand or he could have smothered it by smashing it on the ground.” This case should, therefore, be governed by the doctrine of “volenti non fit injuria” (no wrong is done to him who consents), that is, “that to which a person assents is not esteemed, in law, an injury,” the facts and circum- stances being such as to warrant the conclusion that the plaintiff, freely and voluntarily, with full knowledge of the nature and extent of the risk he ran,impliedly agreed to incur it. When a person, knowing and appreciating the danger and the risk, elects voluntarily to encounter them, he can no more maintain an action founded upon the statute than he can in cases to which the statute has no application. (See Birmingham Railway & Electric Co. vs. Allen, 20 L.R.A. 457, and the cases cited therein; also Tamayo vs. Gsell, 35 Phil. 954). In Francisco, Torts and Damages, 1957 ed., pp. 197-198, we read the following on the matter of “assumption of risk”: “The principle that one who voluntarily assumed the risk of injury from a known danger is debarred from a recovery is recognized in negligence cases. As stated, a plaintiff who by his conduct, has brought himself within the operation of the maxim, ‘volenti non fit injuria,’ cannot recover on the basis of the defendant’s negligence. In the words of the maxim as translated, ‘that to which a person assents is not esteemed in law was injury.’ * * * It is said that one who knows, appreciates, and deliberately exposes himself to a danger ‘assumes the risk’ thereof. One cannot deliberately incur an obvious risk of personal injury, especially when preventive measures are at hand, and then hold the author of the danger for the ensuing injury.”