IV.
CONCEPT OF NEGLIGENCE ISSUE: WON Smith was guilty of negligence such as
Article 20. Every person who, contrary to law, wilfully
or negligently causes damage to another, shall
indemnify the latter for the same.
Article 1173. The fault or negligence of the obligor
consists in the omission of that diligence which is
required by the nature of the obligation and corresponds
with the circumstances of the persons, of the time and of
the place. When negligence shows bad faith, the
provisions of articles 1171 and 2201, paragraph 2, shall
apply.
If the law or contract does not state the diligence which
is to be observed in the performance, that which is
expected of a good father of a family shall be required.
(1104a)
Picart v. Smith
FACTS: On the Carlatan Bridge in La Union. Picart was
riding on his pony over said bridge. Before he had
gotten half way across, Smith approached from the
opposite direction in an automobile. As the defendant
neared the bridge he saw a horseman on it and blew his
horn to give warning of his approach. He continued his
course and after he had taken the bridge he gave two
more successive blasts, as it appeared to him that the
man on horseback before him was not observing the rule
of the road.
Picart saw the automobile coming and heard the
warning signals. However, being perturbed by the
novelty of the apparition or the rapidity of the approach,
he pulled the pony closely up against the railing on the
right side of the bridge instead of going to the left. He
says that the reason he did this was that he thought he
did not have sufficient time to get over to the other side.
As the automobile approached, Smith guided it toward
his left, that being the proper side of the road for the
machine. In so doing the defendant assumed that the
horseman would move to the other side. Seeing that the
pony was apparently quiet, the defendant, instead of
veering to the right while yet some distance away or
slowing down, continued to approach directly toward
the horse without diminution of speed. When he had
gotten quite near, there being then no possibility of the
horse getting across to the other side, the defendant
quickly turned his car sufficiently to the right to escape
hitting the horse; but in so doing the automobile passed
in such close proximity to the animal that it became
frightened and turned its body across the bridge, got hit
by the car and the limb was broken. The horse fell and
its rider was thrown off with some violenceAs a result of
its injuries the horse died. The plaintiff received
contusions which caused temporary unconsciousness
and required medical attention for several days.
From a judgment of the CFI of La Union absolving Smith
from liability Picart has appealed.
gives rise to a civil obligation to repair the damage done
HELD: the judgment of the lower court must be
reversed, and judgment is here rendered that the Picart
recover of Smith damages
YES
The test by which to determine the existence of
negligence in a particular case may be stated as follows:
Did the defendant in doing the alleged negligent act use
that person would have used in the same situation? If
not, then he is guilty of negligence. 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. The question as to what would constitute the
conduct of a prudent man in a given situation must of
course be always determined in the light of human
experience and in view of the facts involved in the
particular case.
Could a prudent man, in the case under consideration,
foresee harm as a result of the course actually pursued?
If so, it was the duty of the actor to take precautions to
guard against that harm. Reasonable foresight of harm,
followed by ignoring of the suggestion born of this
prevision, is always necessary before negligence can be
held to exist. Stated in these terms, the proper criterion
for determining the existence of negligence in a given
case is this: Conduct is said to be negligent when a
prudent man in the position of the tortfeasor would have
foreseen that an effect harmful to another was
sufficiently probable to warrant his foregoing conduct or
guarding against its consequences.
Applying this test to the conduct of the defendant in the
present case we think that negligence is clearly
established. A prudent man, placed in the position of the
defendant, would in our opinion, have recognized that
the course which he was pursuing was fraught with risk,
and would therefore have foreseen harm to the horse
and the rider as reasonable consequence of that course.
Under these circumstances the law imposed on the
Smith the duty to guard against the threatened harm.
It goes without saying that the plaintiff himself was not
free from fault, for he was guilty of antecedent
negligence in planting himself on the wrong side of the
road. But as we have already stated, Smith was also
negligent; and in such case the problem always is to
discover which agent is immediately and directly
responsible. It will be noted that the negligent acts of the
two parties were not contemporaneous, since the
negligence of the defendant succeeded the negligence of
the plaintiff by an appreciable interval. Under these
circumstances the law is that the person who has the last
fair chance to avoid the impending harm and fails to do
so is chargeable with the consequences, without
reference to the prior negligence of the other party.
 Jarco v. Aguilar
Facts
 This employee Gonzales said that when Zhieneth was
Jarco Marketing owns Syvel’s Department Store; Kong,
Tiope, and Panelo are store managers; Sps. Aguilar are
the parents of daughter Zhieneth.
Criselda and Zhieneth Aguilar (6 years old) were at the
2nd floor of Syvel’s Department Store. Criselda was
signing her credit card slip when she felt a sudden gust
of wind and heard a loud thud. When she looked behind
her, she saw her daughter pinned by the bulk of the
store’s gift wrapping counter. She asked the assistance of
the people around her, and she was immediately rushed
to Makati Medical Center where she was operated. The
next day, she lost her speech. She died 14 days after the
accident. The cause of her death was attributed to the
 Nailing the counter to the ground was not necessary
injuries sustained.
After her burial, Sps. Aguilar demanded the
reimbursement of hospitalization, medical bills, and
wake and funeral expenses from the petitioners, but they
refused to pay. Sps. Aguilar filed a complaint for
damages, seeking the payment of actual [157k~] and
moral [300k] damages, attorney’s fees [20k], and for loss
of income and exemplary damages.
The petitioners denied any liability for Zhieneth’s
injuries and death. They also said the complaint was
malicious, so they sought the dismissal of the complaint
and an award of moral and exemplary damages, as well
as attorney’s fees.
 Criselda was negligent in exercising care and
diligence over her daughter by allowing her to freely
roam around in a store with glassware and appliances
 Zhieneth was guilty of contributory negligence for
climbing the counter, thereby triggering its collapse
 Counter was made of sturdy wood with strong
support, and it has never fell nor collapsed for the
past 15 years since its construction
 Jarco Marketing maintained that it observed due
diligence of a good father of the family
 Other petitioners raised due care and diligence in the
performance of its duties
RTC found that the preponderance of evidence favored
the store, et al, saying that the proximate cause was
Zhieneth’s act of clinging to the counter, and that
Criselda’s negligence contributed to the accident. The
RTC found that the counter was not an attractive
nuisance [something that would attract children to
approach, get on or use it], since the counter was
situated at the end or corner of the 2nd floor.
Here are the assertions of Sps. Aguilar:
 Zhieneth should be entitled to the conclusive
presumption that a child below 9 is incapable of
contributory negligence.
 Even if she is capable of contributory negligence, it
was physically impossible for her to have propped
herself on the counter considering her small frame,
and height and weight of the counter.
 The fact that a former employee of the store,
Gonzales, accompanied Zhieneth to the hospital
belied the theory that Zhieneth climbed the counter.
asked by the doctor what she did, she said “Nothing,
I did not come near the counter and the counter just
fell on me.” This should be accorded credit according
to the spouses.
 Negligence could not be imputed to Criselda since it
was reasonable for her to let go of Zhieneth at that
moment that she was signing the credit card slip.
 The proximate cause was petitioner’s negligence in
failing to institute measures to have the counter
permanently nailed.
In response, here is what the petitioners have to say:
 Zhieneth’s death was an ACCIDENT.
because it has been there for the longest time without
any prior accident and it’s just in a corner.
 The criminal case for homicide through simple
negligence filed against them was dismissed, and they
were acquitted.
The CA reversed RTC, ruling in favor of Sps. Aguilar.
 Petitioners were negligent in maintaining a
structurally dangerous counter [it’s shaped like an
inverted L; the top is wider than the base; weight of
the upper portion not evenly distributed nor
supported by the narrow base]. Two former
employees brought this to the attention of the
management but the latter ignored their concern. CA
said the incident could have been avoided had
petitioners repaired this defective counter. The
contention that it has been there for a long time
without a prior incident is immaterial.
 Zhieneth was incapable of negligence or other tort.
 Criselda was absolved of any negligence.
 Testimony of Gonzales (former employee) given
credit
 Awarded actual damages, compensatory damages
[denied award of funeral expenses for lack of proof to
substantiate it]
CA denied petitioners’ MfR, so they are now seeking the
reversal of said decision, saying that since the action is
based on tort, any finding of negligence on the part of
Sps. Aguilar would negate their claim for damages,
where said negligence was the proximate cause of the
injury sustained. They also assailed the testimony of
Gonzales who was already separated from the store
(tarnished by ill-feelings and all).
Issues and Holding
WON Zhieneth’s death was accidental or attributable to
negligence. ATTRIBUTABLE TO NEGLIGENCE
WON negligence was attributable to petitioners [for
maintaining a defective counter] or to Sps. Aguilar [for
failing to exercise due and reasonable care while inside
the store]. FAULT OF PETITIONERS
Ratio
Accident v. Negligence – they are intrinsically
contradictory
ACCIDENT pertains to an unforeseen event in which no
fault or negligence attaches to defendant (or if it happens
wholly or partly through human agency, it is an event
which under the circumstances is unusual or unexpected
by the person to whom it happens); there is exercise of
ordinary care here
NEGLIGENCE is the omission to do something which a
reasonable man, guided by those 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
Alternatively, it is the failure to observe, for the
protection of another person’s interest, that degree of
care, precaution and vigilance which the circumstances
justly demand, whereby such other person suffers injury
Picart v. Smith lays down the test to determine WON
negligence exists: Did the defendant in doing the alleged
negligent act use that reasonable care and caution which
an ordinary prudent person would have used in the
same situation? If not, he is guilty of negligence.
SC found that Zhieneth performed no act that facilitated
her death. Basis is her statement to the doctor as related
by former employee Gonzales. It was made part of the
res gestae since she made the statement immediately
subsequent to the startling occurrence. It is axiomatic
that matters relating to declarations of pain or suffering
and statements made to a physician are generally
considered declarations and admissions. Also, the court
considered the fact that Zhieneth was of a tender age
(and in so much pain!), so it would be unthinkable that
she would lie.
Other findings:
Petitioners were informed of the danger posed by the
unstable counter, yet they did not act on the matter, so
they failed to discharge the due diligence required of a
good father of a family.
They failed to establish that the testimonies of former
employees were biased.
Conclusive presumption that children below 9 are
incapable of contributory negligence is applied.
Judge Sangco [book author] says that children below 9 is
conclusively presumed to have acted without
discernment, and are exempt from criminal liability.
Since negligence may be a felony and a QD, it required
discernment as a condition of liability, so therefore, said
children are presumed to be incapable of negligence.
Even if contributory negligence would be attributed to
Zhieneth, no injury should have occurred if petitioners’
theory that the counter is stable and sturdy is to be
believed.
Criselda is absolved from any contributory negligence,
since it was reasonable for her to let go of her child to
sign a slip.
Zhieneth was just a foot away from her mother, and the
counter was just four meters away from Criselda
(contrary to statements that Zhieneth was loitering at
that time).
Gan Vs. CA
Facts: In the morning of 4 July 1972, the accused Hedy
Gan was driving along North Bay Boulevard, Tondo,
Manila. There were two vehicles parked on one side of
the road, one following the other. As the car driven by
Gan approached the place where the two vehicles were
parked, there was a vehicle coming from the opposite
direction, followed by another which tried to overtake
the one in front of it thereby encroaching the lane of the
car driven by Gan. To avoid a head-on collision, Gan
swerved to the right and as a consequence, hit an old
man who was about to cross the street, pinning him
against the rear of one of the parked vehicles. The force
of the impact caused the parked vehicle to move
forward hitting the other parked vehicle in front of it.
The pedestrian was injured, Gan's car and the two
parked vehicle suffered damages. The pedestrian was
pronounced dead on arrival at the hospital.
Gan was convicted of Homicide thru reckless
imprudence. On appeal, CA modified the trial court's
decision convicting Gan of Homicide thru simple
imprudence.
Issue: WON CA erred in convicting petitioner Gan for
Homicide thru simple imprudence.
Ruling: SC reversed CA's decision, acquitting petitioner.
Under the emergency rule, one who suddenly fonds
himself in a place of danger, and is required to act w/o
tme to consider the best means that may be adopted to
avoid the impending danger, is not guilty of negligence,
if he fails to adopt what subsequently and upon
reflection may appear to have been a better method,
unless the emergency in which he finds himself is
brought about by his own negligence.
Applying the above test to the case at bar, the SC finds
the petitioner not guilty of the crime of simple
imprudence resulting in Homicide.
China Airlines v. People
FACTS:
Jose Pagsibigan purchased a plane ticket for a Manila-
Taipei-Hongkong-Manila flight from the Transaire
Travel Agency.The said agency contacted
Philippine Airlines (PAL) which at that time was a sales
and ticketing agent of China Airlines (CAL).PAL,
through its ticketing agent Roberto Espiritu, issued
to Pagsibigan the plane ticket which showed that the
latter had been booked at the June 10, 1968 5:20 PM
flight of China Airlines, departing from Manila for
Taipei.When Pagisibigan showed up at the airport an
hour before the supposed scheduled time of departure,
he was informed that the CAL plane he was supposed to
take for Taipei had left at 10:20 AM that day.The
PAL employees then made appropriate arrangements so
that he could take the PAL’s flight toTaipei the following
day. Pagsibigan took the re-scheduled flight.A few
months after, he filed a complaint for moral damages
and attorney’s fees against PAL. He alleged that Espiritu
had been grossly negligent in his duties.In its defense,
PAL alleged that: (1) the departure time indicated on
Pagsibigan’s plane ticket was furnished and confirmed
by CAL; and (2) CAL did not inform the issuing PAL
branch of the revised timetable of CAL flights. Hence,
PAL asserted a cross-claim against CAL.CAL, for its
part, averred that: (1) all airlines, including PAL, were
informed of the revised schedule of flights; (2) notices of
these revised schedule were furnished to all sales agent;
and (3) the issuing PAL branch had in fact been issuing
and selling tickets based on the revised time schedule.
Thus, CAL also asserted a cross claim against PAL.
The trial court found PAL and Roberto Espiritu jointly
and severally liable by way of exemplary damages. It
did not award moral damages. CAL was exonerated.CA
ruled out the claim for moral and exemplary damages,
and instead awarded nominal damages.
be rebutted by clear showing on the part of the employer
that it has exercised the care and diligence of a good
father of a family in the selection and supervision of his
employee. PAL failed to overcome such presumption.
As found by CA, PAL was duly informed of CAL’s
revised schedule, and in fact, PAL had been issuing
and selling ticket based on said revised time schedule.
For his negligence, Espiritu is primarily liable
to Pagisbigan under Article 2176 of the CC. For the
failure of PAL to rebut the legal presumption of
negligence, it is also primarily liable under Article 2180
of CC. Under Article 2180, all that is required is that the
employee, by his negligence, committed a quasi-delict
which caused damage to another, and this suffices to
hold the employer primarily and solidarily liable for the
tortious act of the employee. PAL, however, can demand
from Espiritu reimbursement of the amount which it will
have to pay the offended party’s claim.

ISSUE:Who should be held liable?

HELD:

The SC noted that Pagsibigan has opted to seek redress

by pursuing two remedies at the same time, that is, to
enforce the civil liability of CAL for breach of contract
and, likewise, to recover from PAL and Espiritu for tort
or culpa aquiliana.A perusal of the complaint
of Pagisbigan will disclose that the allegations therein
make out a case for a quasi-delict. Had Pagisibigan
intended to maintain an action based on breach of
contract, he could have sued CAL alone considering that
PAL is not a real party to the contractIt is thus evident
that when Pagsibigan sensed that he cannot hold CAL
liable on a quasi-delict, he made a detour on appeal,
by claiming that his action against CAL is based on
breach of contract of carriage.SC did
not allowPagsibigan to change his theory at this stage
because it would be unfair for CAL as it would have no
opportunity to present further evidence material to the
new theory.But there is no basis to hold CAL liable on a
quasi-delict, hence its exoneration from any liability for
fault or negligence.

With respect to PAL and Espiritu, PAL’s main defense is

that is only an agent. As a general proposition,
an agent who duly acts as such is not personally liable to
third persons. However, there are admitted exceptions,
as in this case where the agent is being sued for damages
arising from a tort committed by his employee. In an
action premised on the employee’s negligence, whereby
Pagsibigan seeks recovery for the damages from both
PAL and Espiritu without qualification, what is sought
to be imposed is the direct and primary liability of PAL
as an employer. When an injury is caused by
the negligence of an employee, there instantly arises a
presumption of law that there was negligence on the
part of the employer. This presumption, however, may