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 Decision dated July 21, 2009 of the Court of Appeals (CA) in CA-G.R.
1

CV No. 90021, which affirmed with modification the Decision dated March 20, 2007 of the Regional Trial
2

Court (RTC), Branch 40, Palayan City, and Resolution dated October 26, 2009, which denied the
3

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 Decision dated March 20, 2007, ruling in favor of the
8

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 Reconsideration of the decision of the CA. However, in a
11

Resolution dated October 26, 2009, the CA denied the same.

12

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

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, the respondents reiterate the findings of the RTC and the CA that the petitioners'
15

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, negligence was defined as the omission to do something
17

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. To determine the
18

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. To distinguish one from the other, a question of law exists when the doubt or
21

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. Certainly, the finding of negligence by the
22

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. Moreover, it was not shown that
23

the present case falls under any of the recognized exceptions to the oft repeated principle according great
24

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. Having established the fact of negligence on the part of the petitioners, they were rightfully
25

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. Here, we cannot
26

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. He proceeded to cross the track and, all of a sudden, his jeepney was rammed by the train being
27

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, thus: 28

[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, we held:
30

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. To reiterate, the proximate cause of the collision was the
32

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

ATT E STATI O N

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

C E RTI F I CATI O N

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) Cebu Shipyard & Eng’g Works, Inc. v. William Lines, Inc., 366 Phil. 439,
20

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.