A.

COMPLETE DEDENSES
Plaintiff’s negligence is the proximate cause of injury (NCC ART 2179)

American Express International, Inc. VS Noel Cordero

G.R. No. 138550 [October 14, 2005]
FACTS:
American Express International was a foreign corporation that issued charge cards used to purchase goods and services at accredited merchants worldwide to its customers.
Nilda Cordero, wife of respondent Noel Cordero, was issued an American Express charge card. An extension charge card, was likewise issued to respondent Noel Cordero
which he also signed. Respondent, together with his family went on a three-day holiday trip to Hong Kong. The group went to the Watson’s Chemist Shop. While there, Noel
picked up chocolate candies and handed his American Express extension charge card to the sales clerk to pay for his purchases. Susan Chong, the store manager, informed
respondent that she had to confiscate the card. Thereupon, she cut respondent’s American Express card in half with a pair of scissors. This, according to respondent, caused
him embarrassment and humiliation. Hence, Nilda had to pay for the purchases using her own American Express charge card.
The card was placed in the Inspect Airwarn Support System, asystem utilized by petitioner as a protection both for the company and the cardholders against the fraudulent
use of their charge cards. Once a card suspected of unauthorized use is placed in the system, the person to whom the card is tendered must verify the identity of the
holder. If the true identity of the card owner is established, the card is honored and the charges are approved. Otherwise, the card is revoked or confiscated.
Respondent filed with the Regional Trial Court a complaint for damages against petitioner. He prayed for the award of moral damages and exemplary damages, as well as
attorney’s fees as a result of the humiliation he suffered. According to the trial court, petitioner should have informed respondent that on November 1, 1991, a person in Hong
Kong attempted to use a charge card bearing similar number to that of respondent’s card and that petitioner’s inexcusable failure to do so is the proximate cause of the
“confiscation and cutting of respondent’s extension card which exposed the latter to public humiliation for which the petitioner should be held liable. Upon appeal, the Court of
Appeals affirmed the trial court’s decision.
ISSUE:
Whether the lower courts gravely erred in awarding moral damages, exemplary damages and attorney’s fees to Cordero.

RULING OF THE COURT:

YES. The Court ruled that petitioner can revoke respondent’s card without notice, as was done. The subject card would not have been confiscated and cut had respondent
talked to petitioner’s representative and identified himself as the genuine cardholder. As explained by respondent himself, he could have used his card upon verification by the
sales clerk of Watson that indeed he is the authorized cardholder. That could have been accomplished had respondent talked to petitioner’s representative, enabling the latter
to determine that respondent was indeed the true holder of the card. Clearly, no negligence which breached the contract could have been attributed to petitioner. If at all, the
cause of respondent’s humiliation and embarrassment was his refusal to talk to petitioner’s representative. It was thus safe to conclude that there was no negligence on the
part of petitioner and that, therefore, it cannot be held liable to respondent for damages.
The petition was granted.

G.R. No. 138550 October 14, 2005

AMERICAN EXPRESS INTERNATIONAL, INC., Petitioner, vs.NOEL CORDERO, Defendant.

This is a petition for review on certiorari of the Decision1 of the Court of Appeals dated April 30, 1999 in CA-G.R. CV No. 51671, entitled, "Noel Cordero, Plaintiff-Appellee
versus American Express International, Inc., Defendant-Appellant."
Petitioner is a foreign corporation that issues charge cards to its customers, which the latter then use to purchase goods and services at accredited merchants worldwide.
Sometime in 1988, Nilda Cordero, wife of respondent Noel Cordero, applied for and was issued an American Express charge card with No. 3769-895901-010020. The
issuance of the charge card was covered by an Amex Cardmember Agreement. As cardholder, Nilda, upon signing the back portion of the card, manifested her acceptance of
the terms of the Agreement.
An extension charge card, with No. 3769-895901-01010, was likewise issued to respondent Noel Cordero which he also signed.2
On November 29, 1991, respondent, together with his wife, Nilda, daughter, sisters-in-law and uncle-in-law, went on a three-day holiday trip to Hong Kong. In the early
evening of November 30, 1991, at about 7:00 o’clock, the group went to the Watson’s Chemist Shop located at 277C Ocean Gallery, Kowloon, Hong Kong. Noel picked up
some chocolate candies and handed to the sales clerk his American Express extension charge card to pay for his purchases. The sales clerk verified the card by making a
telephone call to the American Express Office in Hong Kong. Moments later, Susan Chong, the store manager, emerged from behind the counter and informed respondent
that she had to confiscate the card. Thereupon, she cut respondent’s American Express card in half with a pair of scissors. This, according to respondent, caused him
embarrassment and humiliation considering that it was done in front of his family and the other customers lined up at the check-out counter. Hence, Nilda had to pay for the
purchases using her own American Express charge card.3
When they returned to the Excelsior Hotel, Nilda called up petitioner’s Office in Hong Kong. She was able to talk to Senior Authorizer Johnny Chen, who informed her that on
November 1, 1991, a person in Hong Kong attempted to use a charge card with the same number as respondent’s card. The Hong Kong American Express Office called up
respondent and after determining that he was in Manila and not in Hong Kong, placed his card in the "Inspect Airwarn Support System." This is the system utilized by
petitioner as a protection both for the company and the cardholders against the fraudulent use of their charge cards. Once a card suspected of unauthorized use is placed in
the system, the person to whom the card is tendered must verify the identity of the holder. If the true identity of the card owner is established, the card is honored and the
charges are approved. Otherwise, the card is revoked or confiscated.4
When the Watson’s sales clerk called up petitioner’s Hong Kong Office, its representative said he wants to talk to respondent in order to verify the latter’s identity, pursuant to
the procedure observed under the "Inspect Airwarn Support System." However, respondent refused. Consequently, petitioner’s representative was unable to establish the
identity of the cardholder.5 This led to the confiscation of respondent’s card.
On March 31, 1992, respondent filed with the Regional Trial Court, Branch V, Manila, a complaint for damages against petitioner, docketed as Civil Case No. 92-60807. He
prayed for the award of moral damages and exemplary damages, as well as attorney’s fees as a result of the humiliation he suffered.
The trial court found that "the inexcusable failure of defendant (petitioner herein) to inform plaintiff (respondent herein) of the November 1, 1991 incident despite sufficient time
was the proximate cause of the confiscation and cutting of plaintiff’s extension card which exposed the latter to public humiliation for which defendant should be held liable."6
On February 20, 1995, the trial court promulgated its Decision, the dispositive portion of which reads:
"WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendant, ordering the latter to pay the former the following amounts, namely:
a) The sum of ₱300,000.00 as and by way of moral damages;
b) The sum of ₱200,000.00 as exemplary damages;
c) The sum of ₱100,000.00 as and for reasonable attorney’s fees; and
d) The costs of the suit.
SO ORDERED."7
Upon appeal, the Court of Appeals rendered the assailed Decision affirming the trial court’s Decision with modification in the sense that the amounts of damages awarded
were reduced, thus:
"WHEREFORE, in view of the foregoing, the appealed decision dated February 20, 1995 of the Regional Trial Court of Manila, Branch V, in Civil Case No. 92-60807 is hereby
AFFIRMED, subject to modifications with respect to the amount of damages awarded, which are reduced as follows:
(a) Moral damages from ₱300,000.00 to ₱150,000.00; and
(b) Exemplary damages from ₱200,000.00 to ₱100,000.00.
No pronouncement as to costs.
SO ORDERED."
Hence, the instant petition raising the following issues:
"A. Whether the lower courts gravely erred in attributing the ‘public humiliation’ allegedly suffered by Cordero to Amex.
B. Whether the lower courts gravely erred in holding Amex liable to Cordero for moral damages, exemplary damages and attorney’s fees."8
Respondent filed his comment contending in the main that the petition raises questions of fact beyond this Court’s domain.
While it is true that under Rule 45 of the 1997 Rules of Civil Procedure, as amended, this Court may review only errors of law, however, this rule admits of well-known
recognized exceptions, thus:
". . . (1) the conclusion is a finding grounded entirely on speculation, surmise and conjecture; (2) the inference made is manifestly mistaken; (3) there is grave abuse of
discretion; (4) the judgment is based on a misapprehension of facts; (5) the findings of fact are conflicting; (6) the Court of Appeals went beyond the issues of the case and its
findings are contrary to the admissions of both parties; (7) the findings of fact of the Court of Appeals are contrary to those of the trial court; (8) said findings of fact are
conclusions without citation of specific evidence on which they are based; (9) the facts set forth in the petition are not disputed by the respondents; and (10) the findings of fact
of the Court of Appeals are premised on the supposed absence of evidence and contradicted by the evidence on record."9
In this case, the inference made by the courts below is manifestly mistaken. Therefore, we are justified in reviewing the records of this case and rendering judgment based on
our own findings.
In his complaint, respondent claimed that he suffered embarrassment and humiliation because his card was unceremoniously confiscated and cut in half by Susan Chong of
Watson’s Chemist Shop.
Respondent anchors his cause of action on the following provision of the Civil Code:
"Art. 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 is
no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter."10
In order that an obligation based on quasi-delict may arise, there must be no pre-existing contractual relation between the parties. But there are exceptions. There may be an
action for quasi-delict notwithstanding that there is a subsisting contract between the parties. A liability for tort may arise even under a contract, where tort is that which
breaches the contract. Stated differently, when an act which constitutes a breach of contract would have itself constituted the source of a quasi-delictual liability, the contract
can be said to have been breached by tort, thereby allowing the rules on tort to apply.11

1
Furthermore, to constitute quasi-delict, the fault or negligence must be the proximate cause of the damage or injury suffered by the plaintiff. Proximate cause is that cause
which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the result would not have occurred. Proximate
cause is determined by the facts of each case upon mixed considerations of logic, common sense, policy and precedent.12
According to the trial court, petitioner should have informed respondent that on November 1, 1991, a person in Hong Kong attempted to use a charge card bearing similar
number to that of respondent’s card; and that petitioner’s inexcusable failure to do so is the proximate cause of the "confiscation and cutting of [respondent’s] extension card
which exposed the latter to public humiliation for which [petitioner] should be held liable."13
We cannot sustain the trial court’s conclusion.
As explained by respondent himself, he could have used his card upon verification by the sales clerk of Watson that indeed he is the authorized cardholder. This could have
been accomplished had respondent talked to petitioner’s representative, enabling the latter to determine that respondent is indeed the true holder of the card. Clearly, no
negligence which breaches the contract can be attributed to petitioner. If at all, the cause of respondent’s humiliation and embarrassment was his refusal to talk to petitioner’s
representative.
That respondent refused to talk to petitioner’s representative can be gleaned from the testimony of Mr. Chen Heng Kun a.k.a. Johnny Chen during the deposition in Hong
Kong,14 thus:
"Question No 9 : Was AEII required under its existing policies and/or membership agreement with its cardholders to advise said cardholders of their card have been put under
the support INSPECT – Strictly Question (for identification) cardmembers before approving any charge?
Mr. Johnny Chen : Under the existing policies of AEII, we don’t have to inform the cardholders if they have to pass the INSPECT –Strictly Questions (for identification).
Question No 10 : If the answer to Q9 is in the negative, please explain why not?
Mr. Johnny Chen : The reason why we don’t have to are because, first, we are not terminating the service to the cardholder. Second, it doesn’t mean that we are going to limit
the service to the cardholder. Third, as long as the cardholder can present an identification card of his membership, we allow him to use the card. He can show this by
telephoning the company or by presenting us his passport or travel document. When Watson Company called AEII for authorization, AEII representative requested that he talk
to Mr. Cordero but he refused to talk to any representative of AEII. AEII could not prove then that he is really the real card holder."
Mr. Chen Heng Kun was briefly cross-examined by respondent’s counsel, thus:
"Question No 10 : Question 9 is objected to since the best evidence would be the membership agreement between plaintiffs and AEII."
Significantly, paragraph 16 of the Cardmember Agreement signed by respondent provides:
"16. THE CARD REMAINS OUR PROPERTY
"The Card remains our property and we can revoke your right and the right of ay Additional Cardmember to use it at any time, we can do this with or without giving you notice.
If we have revoked the Card without cause, we will refund a proportion of your annual Card Account fee. We may list revoked Cards in our "Cancellation Bulletin", or otherwise
inform Establishments that the Card issued to you and, if you are the basic Cardmember, any Additional Cards have been revoked or cancelled.
"If we revoke the card or it expires, you must return it to us if we request. Also, if any Establishment asks you to surrender an expired or revoked Card, you must do so. You
may not use the Card after it has expired or after it has been revoked.
"The revocation, repossession or request for the return of the Card is not, and shall not constitute any reflection of your character or credit-worthiness and we shall not be
liable in any way for any statement made by any person requesting the return or surrender of the Card."15
To be sure, pursuant to the above stipulation, petitioner can revoke respondent’s card without notice, as was done here. It bears reiterating that the subject card would not
have been confiscated and cut had respondent talked to petitioner’s representative and identified himself as the genuine cardholder. It is thus safe to conclude that there was
no negligence on the part of petitioner and that, therefore, it cannot be held liable to respondent for damages.
WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals in CA-G.R. CV No. 51671 is REVERSED.
SO ORDERED.

FERNANDO vs CA
G.R. No. 92087 May 8, 1992

FACTS:
* November 7, 1975: Bibiano Morta, market master of the Agdao Public Market filed a requisition request with the Chief of Property of the City Treasurer's Office for the re-
emptying of the septic tank in Agdao wherein Bascon won
* November 22, 1975: bidder Bertulano with four other companions namely Joselito Garcia, William Liagoso, Alberto Fernando and Jose Fajardo, Jr. were found dead inside
the septic tank.
* The bodies were removed by a fireman.
* The body of Joselito Garcia, was taken out by his uncle, Danilo Garcia and taken to the Regional Hospital but he expired there.
* The City Engineer's office investigated the case and learned they entered the septic tank without clearance from it nor with the knowledge and consent of the market
master.
* Since the septic tank was found to be almost empty, they were presumed to be the ones who did the re-emptying.
* Dr. Juan Abear of the City Health Office found them to have died from "asphyxia" - diminution of oxygen supply in the body and intake of toxic gas
* November 26, 1975: Bascon signed the purchase order
* RTC: Dismissed the case
* CA: Reversed - law intended to protect the plight of the poor and the needy, the ignorant and the indigent
ISSUE: W/N Davao city is negligent and its negligence is the proximate cause therefore can be liable for damages

HELD: NO. CA affirmed.

* test by which to determine the existence of negligence in a particular case:
* 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
* standard supposed to be supplied by the imaginary conduct of the discreet pater familias of the Roman law
* 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 warrant
his foregoing the conduct or guarding against its consequences
* 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
* Reasonable foresight of harm, followed by the ignoring of the suggestion born of this provision, is always necessary before negligence can be held to exist
* Distinction must be made between the accident and the injury
* Where he contributes to the principal occurrence, as one of its determining factors, he can not recover
* Where, in conjunction with the occurrence, he contributes only to his own injury, he may recover the amount that the defendant responsible for the event should pay for
such injury, less a sum deemed a suitable equivalent for his own imprudence
* Toilets and septic tanks are not nuisances per se as defined in Article 694 of the New Civil Code which would necessitate warning signs for the protection of the public
* While the construction of these public facilities demands utmost compliance with safety and sanitary requirements, the putting up of warning signs is not one of those
requirements
* accident such as toxic gas leakage from the septic tank is unlikely to happen unless one removes its covers
* Considering the nature of the task of emptying a septic tank especially one which has not been cleaned for years, an ordinarily prudent person should undoubtedly be aware
of the attendant risks. The victims are no exception; more so with Mr. Bertulano, an old hand in this kind of service, who is presumed to know the hazards of the job. His
failure, therefore, and that of his men to take precautionary measures for their safety was the proximate cause of the accident.
* proximate and immediate cause of the death of the victims was due to their own negligence. Consequently, the petitioners cannot demand damages from the public
respondent.

G.R. No. 92087 May 8, 1992

SOFIA FERNANDO, in her behalf and as the legal guardian of her minor children, namely: ALBERTO & ROBERTO, all surnamed FERNANDO, ANITA GARCIA,
NICOLAS LIAGOSO, ROSALIA BERTULANO, in her behalf and as the legal guardian of her minor children, namely: EDUARDO, ROLANDO, DANIEL, AND
JOCELYN, all surnamed BERTULANO, PRIMITIVA FAJARDO in her behalf and as legal guardian of her minor children, namely: GILBERT, GLEN, JOCELYN AND
JOSELITO, all surnamed FAJARDO, and EMETERIA LIAGOSO, in her behalf and as guardian ad litem, of her minor grandchildren, namely: NOEL, WILLIAM,
GENEVIEVE and GERRY, all surnamed LIAGOSO, petitioners,
vs.
THE HONORABLE COURT OF APPEALS AND CITY OF DAVAO, respondents.

MEDIALDEA, J.:
This is a petition for review on certiorari praying that the amended decision of the Court of Appeals dated January 11, 1990 in CA-G.R. No. C.V. 04846, entitled "Sofia
Fernando, etc., et al. v. The City of Davao," be reversed and that its original decision dated January 31, 1986 be reinstated subject to the modification sought by the
petitioners in their motion for partial reconsideration dated March 6, 1986.
The antecedent facts are briefly narrated by the trial court, as follows:
From the evidence presented we see the following facts: On November 7, 1975, Bibiano Morta, market master of the Agdao Public Market filed a requisition request with the
Chief of Property of the City Treasurer's Office for the re-emptying of the septic tank in Agdao. An invitation to bid was issued to Aurelio Bertulano, Lito Catarsa, Feliciano
Bascon, Federico Bolo and Antonio Suñer, Jr. Bascon won the bid. On November 26, 1975 Bascon was notified and he signed the purchase order. However, before such
date, specifically on November 22, 1975, bidder Bertulano with four other companions namely Joselito Garcia, William Liagoso, Alberto Fernando and Jose Fajardo, Jr. were
found dead inside the septic tank. The bodies were removed by a fireman. One body, that of Joselito Garcia, was taken out by his uncle, Danilo Garcia and taken to the
Regional Hospital but he expired there. The City Engineer's office investigated the case and learned that the five victims entered the septic tank without clearance from it nor
with the knowledge and consent of the market master. In fact, the septic tank was found to be almost empty and the victims were presumed to be the ones who did the re-

2
emptying. Dr. Juan Abear of the City Health Office autopsied the bodies and in his reports, put the cause of death of all five victims as "asphyxia" caused by the diminution of
oxygen supply in the body working below normal conditions. The lungs of the five victims burst, swelled in hemmorrhagic areas and this was due to their intake of toxic gas,
which, in this case, was sulfide gas produced from the waste matter inside the septic tank. (p. 177, Records)
On August 28, 1984, the trial court rendered a decision, the dispositive portion of which reads:
IN VIEW OF THE FOREGOING, this case is hereby DISMISSED without pronouncement as to costs.
SO ORDERED. (Records, p. 181)
From the said decision, the petitioners appealed to the then Intermediate Appellate Court (now Court of Appeals). On January 3, 1986, the appellate court issued a decision,
the dispositive portion of which reads:
WHEREFORE, in view of the facts fully established and in the liberal interpretation of what the Constitution and the law intended to protect the plight of the poor and the
needy, the ignorant and the
indigent –– more entitled to social justice for having, in the unforgettable words of Magsaysay, "less in life," We hereby reverse and set aside the appealed judgment and
render another one:
1. Ordering the defendant to pay to the plaintiffs Dionisio Fernando, Sofia Fernando and her minor children the following sums of money:
a) Compensatory damages for his death P30,000.00
b) Moral damages P20,000.00
2. Ordering the defendant to pay to the plaintiffs David Garcia and Anita Garcia the following sums of money:
a) Compensatory damages for his death P30,000.00
b) Moral damages P20,000.00
3. Ordering the defendant to pay to the plaintiff Rosalia Bertulano (sic) and her minor children the following sums of money
a) Compensatory damages for his death P30,000.00
b) Moral damages P20,000.00
4. Ordering the defendant to pay to the plaintiff Primitiva Fajardo and her minor children the following sums of money:
a) Compensatory damages for his death P30,000.00
b) Moral damages P20,000.00
5. Ordering the defendant to pay to the plaintiffs Norma Liagoso, Nicolas Liagoso and Emeteria Liagoso and her minor grandchildren the following sums of money:
a) Compensatory damages for his death P30,000.00
b) Moral damages P20,000.00
The death compensation is fixed at P30,000.00 in accordance with the rulings of the Supreme Court starting with People vs. De la Fuente, Nos. L-63251-52, December 29,
1983, 126 SCRA 518 reiterated in the recent case of People vs. Nepomuceno, No. L-41412, May 27, 1985. Attorney's fees in the amount of P10,000.00 for the handling of the
case for the 5 victims is also awarded.
No pronouncement as to costs.
SO ORDERED. (Rollo, pp. 33-34)
Both parties filed their separate motions for reconsideration. On January 11, 1990, the Court of Appeals rendered an Amended Decision, the dispositive portion of which
reads:
WHEREFORE, finding merit in the motion for reconsideration of the defendant-appellee Davao City, the same is hereby GRANTED. The decision of this Court dated January
31, 1986 is reversed and set aside and another one is hereby rendered dismissing the case. No pronouncement as to costs.
SO ORDERED. (Rollo, p. 25)
Hence, this petition raising the following issues for resolution:
1. Is the respondent Davao City guilty of negligence in the case at bar?
2. If so, is such negligence the immediate and proximate cause of deaths of the victims hereof? (p. 72, Rollo)
Negligence has been defined as 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 (Corliss v. Manila Railroad Company, L-21291, March 28, 1969, 27 SCRA 674, 680). Under the law, a
person who by his omission causes damage to another, there being negligence, is obliged to pay for the damage done (Article 2176, New Civil Code). As to what would
constitute a negligent act in a given situation, the case of Picart v. Smith (37 Phil. 809, 813) provides Us the answer, to wit:
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
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 pater familias 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.
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. Abstract speculation cannot here be of much value but this much can be profitably said: Reasonable men govern their conduct by
the circumstances which are before them or known to them. They are not, and are not supposed to be, omniscient of the future. Hence they can be expected to take care only
when there is something before them to suggest or warn of danger. 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 the ignoring of the suggestion born of this
provision, 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
warrant his foregoing the conduct or guarding against its consequences. (emphasis supplied)
To be entitled to damages for an injury resulting from the negligence of another, a claimant must establish the relation between the omission and the damage. He must prove
under Article 2179 of the New Civil Code that the defendant's negligence was the immediate and proximate cause of his injury. Proximate cause has been defined as that
cause, which, in natural and continuous sequence unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred
(Vda. de Bataclan, et al. v. Medina, 102 Phil. 181, 186). Proof of such relation of cause and effect is not an arduous one if the claimant did not in any way contribute to the
negligence of the defendant. However, where the resulting injury was the product of the negligence of both parties, there exists a difficulty to discern which acts shall be
considered the proximate cause of the accident. In Taylor v. Manila Electric Railroad and Light Co. (16 Phil. 8, 29-30), this Court set a guideline for a judicious assessment of
the situation:
Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered immediate causes of the accident. The test is simple. Distinction must be
made between the accident and the injury, between the event itself, without which there could have been no accident, and those acts of the victim not entering into it,
independent of it, but contributing to his own proper hurt. For instance, the cause of the accident under review was the displacement of the crosspiece or the failure to replace
it. This produced the event giving occasion for damages — that is, the sinking of the track and the sliding of the iron rails. To this event, the act of the plaintiff in walking by the
side of the car did not contribute, although it was an element of the damage which came to himself. Had the crosspiece been out of place wholly or partly through his act or
omission of duty, that would have been one of the determining causes of the event or accident, for which he would have been responsible. Where he contributes to the
principal occurrence, as one of its determining factors, he can not recover. Where, in conjunction with the occurrence, he contributes only to his own injury, he may recover
the amount that the defendant responsible for the event should pay for such injury, less a sum deemed a suitable equivalent for his own imprudence. (emphasis Ours)
Applying all these established doctrines in the case at bar and after a careful scrutiny of the records, We find no compelling reason to grant the petition. We affirm.
Petitioners fault the city government of Davao for failing to clean a septic tank for the period of 19 years resulting in an accumulation of hydrogen sulfide gas which killed the
laborers. They contend that such failure was compounded by the fact that there was no warning sign of the existing danger and no efforts exerted by the public respondent to
neutralize or render harmless the effects of the toxic gas. They submit that the public respondent's gross negligence was the proximate cause of the fatal incident.
We do not subscribe to this view. While it may be true that the public respondent has been remiss in its duty to re-empty the septic tank annually, such negligence was not a
continuing one. Upon learning from the report of the market master about the need to clean the septic tank of the public toilet in Agdao Public Market, the public respondent
immediately responded by issuing invitations to bid for such service. Thereafter, it awarded the bid to the lowest bidder, Mr. Feliciano Bascon (TSN, May 24, 1983, pp. 22-25).
The public respondent, therefore, lost no time in taking up remedial measures to meet the situation. It is likewise an undisputed fact that despite the public respondent's failure
to re-empty the septic tank since 1956, people in the market have been using the public toilet for their personal necessities but have remained unscathed. The testimonies of
Messrs. Danilo Garcia and David Secoja (plaintiffs'-petitioners' witnesses) on this point are relevant, to wit:
Atty. Mojica, counsel for defendant Davao City:
xxx xxx xxx
The place where you live is right along the Agdao creek, is that correct?
DANILO GARCIA:
A Yes, sir.
Q And to be able to go to the market place, where you claim you have a stall,, you have to pass on the septic tank?
A Yes, sir.
Q Day in and day out, you pass on top of the septic tank?
A Yes, sir.
Q Is it not a fact that everybody living along the creek passes on top of this septic tank as they go out from the place and return to their place of residence, is that correct?
And this septic tank, rather the whole of the septic tank, is covered by lead . . .?
A Yes, sir. there is cover.
Q And there were three (3) of these lead covering the septic tank?
A Yes, sir.
Q And this has always been closed?
A Yes, sir. (TSN, November 26, 1979, pp. 21-23, emphasis supplied)
ATTY. JOVER, counsel for the plaintiffs:
Q You said you are residing at Davao City, is it not?
DAVID SEJOYA:
A Yes, sir.
Q How long have you been a resident of Agdao?
A Since 1953.
Q Where specifically in Agdao are you residing?
A At the Public Market.

3
Q Which part of the Agdao Public Market is your house located?
A Inside the market in front of the fish section.
Q Do you know where the Agdao septic tank is located?
A Yes, sir.
Q How far is that septic tank located from your house?
A Around thirty (30) meters.
Q Have you ever had a chance to use that septic tank (public toilet)?
A Yes, sir.
Q How many times, if you could remember?
A Many times, maybe more than 1,000 times.
Q Prior to November 22, 1975, have you ever used that septic tank (public toilet)?
A Yes, sir.
Q How many times have you gone to that septic tank (public toilet) prior to that date, November 22, 1975?
A Almost 1,000 times. (TSN, February 9, 1983, pp. 1-2)
The absence of any accident was due to the public respondent's compliance with the sanitary and plumbing specifications in constructing the toilet and the septic tank (TSN,
November 4, 1983, p. 51). Hence, the toxic gas from the waste matter could not have leaked out because the septic tank was air-tight (TSN, ibid, p. 49). The only indication
that the septic tank in the case at bar was full and needed emptying was when water came out from it (TSN, September 13, 1983, p. 41). Yet, even when the septic tank was
full, there was no report of any casualty of gas poisoning despite the presence of people living near it or passing on top of it or using the public toilet for their personal
necessities.
Petitioners made a lot of fuss over the lack of any ventilation pipe in the toilet to emphasize the negligence of the city government and presented witnesses to attest on this
lack. However, this strategy backfired on their faces. Their witnesses were not expert witnesses. On the other hand, Engineer Demetrio Alindada of the city government
testified and demonstrated by drawings how the safety requirements like emission of gases in the construction of both toilet and septic tank have been complied with. He
stated that the ventilation pipe need not be constructed outside the building as it could also be embodied in the hollow blocks as is usually done in residential buildings (TSN,
November 4, 1983, pp. 50-51). The petitioners submitted no competent evidence to corroborate their oral testimonies or rebut the testimony given by Engr. Alindada.
We also do not agree with the petitioner's submission that warning signs of noxious gas should have been put up in the toilet in addition to the signs of "MEN" and "WOMEN"
already in place in that area. Toilets and septic tanks are not nuisances per se as defined in Article 694 of the New Civil Code which would necessitate warning signs for the
protection of the public. While the construction of these public facilities demands utmost compliance with safety and sanitary requirements, the putting up of warning signs is
not one of those requirements. The testimony of Engr. Alindada on this matter is elucidative:
ATTY. ALBAY:
Q Mr. Witness, you mentioned the several aspects of the approval of the building permit which include the plans of an architect, senitary engineer and electrical plans. All of
these still pass your approval as building official, is that correct?
DEMETRIO ALINDADA:
A Yes.
Q So there is the sanitary plan submitted to and will not be approved by you unless the same is in conformance with the provisions of the building code or sanitary
requirements?
A Yes, for private building constructions.
Q How about public buildings?
A For public buildings, they are exempted for payment of building permits but still they have to have a building permit.
Q But just the same, including the sanitary plans, it require your approval?
A Yes, it requires also.
Q Therefore, under the National Building Code, you are empowered not to approve sanitary plans if they are not in conformity with the sanitary requirements?
A Yes.
Q Now, in private or public buildings, do you see any warning signs in the vicinity of septic tanks?
A There is no warning sign.
Q In residential buildings do you see any warning sign?
A There is none.
ATTY. AMPIG:
We submit that the matter is irrelevant and immaterial, Your Honor.
ATTY. ALBAY:
But that is in consonance with their cross-examination, your Honor.
COURT:
Anyway it is already answered.
ATTY. ALBAY:
Q These warning signs, are these required under the preparation of the plans?
A It is not required.
Q I will just reiterate, Mr. Witness. In residences, for example like the residence of Atty. Ampig or the residence of the honorable Judge, would you say that the same principle
of the septic tank, from the water closet to the vault, is being followed?
A Yes.
ATTY. ALBAY:
That will be all, Your Honor. (TSN, December 6, 1983, pp. 62-63)
In view of this factual milieu, it would appear that an accident such as toxic gas leakage from the septic tank is unlikely to happen unless one removes its covers. The accident
in the case at bar occurred because the victims on their own and without authority from the public respondent opened the septic tank. Considering the nature of the task of
emptying a septic tank especially one which has not been cleaned for years, an ordinarily prudent person should undoubtedly be aware of the attendant risks. The victims are
no exception; more so with Mr. Bertulano, an old hand in this kind of service, who is presumed to know the hazards of the job. His failure, therefore, and that of his men to
take precautionary measures for their safety was the proximate cause of the accident. In Culion Ice, Fish and Elect. Co., v. Phil. Motors Corporation (55 Phil. 129, 133), We
held that when a person holds himself out as being competent to do things requiring professional skill, he will be held liable for negligence if he fails to exhibit the care and skill
of one ordinarily skilled in the particular work which he attempts to do (emphasis Ours). The fatal accident in this case would not have happened but for the victims'
negligence. Thus, the appellate court was correct to observe that:
. . . Could the victims have died if they did not open the septic tank which they were not in the first place authorized to open? Who between the passive object (septic tank)
and the active subject (the victims herein) who, having no authority therefore, arrogated unto themselves, the task of opening the septic tank which caused their own deaths
should be responsible for such deaths. How could the septic tank which has been in existence since the 1950's be the proximate cause of an accident that occurred only on
November 22, 1975? The stubborn fact remains that since 1956 up to occurrence of the accident in 1975 no injury nor death was caused by the septic tank. The only
reasonable conclusion that could be drawn from the above is that the victims' death was caused by their own negligence in opening the septic tank. . . . (Rollo, p. 23)
Petitioners further contend that the failure of the market master to supervise the area where the septic tank is located is a reflection of the negligence of the public respondent.
We do not think so. The market master knew that work on the septic tank was still forthcoming. It must be remembered that the bidding had just been conducted. Although the
winning bidder was already known, the award to him was still to be made by the Committee on Awards. Upon the other hand, the accident which befell the victims who are not
in any way connected with the winning bidder happened before the award could be given. Considering that the case was yet no award to commence work on the septic tank,
the duty of the market master or his security guards to supervise the work could not have started (TSN, September 13, 1983, p. 40). Also, the victims could not have been
seen working in the area because the septic tank was hidden by a garbage storage which is more or less ten (10) meters away from the comfort room itself (TSN, ibid, pp. 38-
39). The surreptitious way in which the victims did their job without clearance from the market master or any of the security guards goes against their good faith. Even their
relatives or family members did not know of their plan to clean the septic tank.
Finally, petitioners' insistence on the applicability of Article 24 of the New Civil Code cannot be sustained. Said law states:
Art. 24. In all contractual, property or other relations, when one of the parties is at a disadvantage on account of his moral dependence, ignorance, indigence, mental
weakness, tender age or other handicap, the courts must be vigilant for his protection.
We approve of the appellate court's ruling that "(w)hile one of the victims was invited to bid for said project, he did not win the bid, therefore, there is a total absence of
contractual relations between the victims and the City Government of Davao City that could give rise to any contractual obligation, much less, any liability on the part of Davao
City." (Rollo, p. 24) The accident was indeed tragic and We empathize with the petitioners. However, the herein circumstances lead Us to no other conclusion than that the
proximate and immediate cause of the death of the victims was due to their own negligence. Consequently, the petitioners cannot demand damages from the public
respondent.
ACCORDINGLY, the amended decision of the Court of Appeals dated January 11, 1990 is AFFIRMED. No costs.
SO ORDERED.

PLDT vs. CA

Facts: On July, 30, 1968, respondent spouses Esteban had their jeep ran over a sand of earth and fell into an open trench, an excavation allegedly undertaken by PLDT for
the installation of its underground conduit system. Respondent Antonio Esteban failed to notice the open trench which was left uncovered because of the creeping darkness
and the lack of warning light or signs. Respondent spouses suffered physical injuries and their jeeps windshield was shattered. PLDT alleged that the respondents were
negligent and that it should be the independent contractor L.R. Barte and Company which undertook said conduit system to be the one liable.The latter claimed to have
complied with its contract and had installed necessary barricades.

Issue: WON PLDT and L.R. Barte and Co. are liable.

4
Ruling: Private Respondent´s negligence was not merely contributory but goes to the very cause of the accident, hence he has no right to recover damages for the injuries
which he and his wife suffered. Private respondent cannot recover notwithstanding the negligence he imputes on PLDT considering that he had ¨the last clear chance¨, to
avoid the injury. One who claims damages for the negligence of another has the burden of proof to show existence of such fault or negligence causative thereof.

G.R. No. L-57079 September 29, 1989

PHILIPPINE LONG DISTANCE TELEPHONE CO., INC., petitioner,
vs.
COURT OF APPEALS and SPOUSES ANTONIO ESTEBAN and GLORIA ESTEBAN, respondents.

This case had its inception in an action for damages instituted in the former Court of First Instance of Negros Occidental 1 by private respondent spouses against petitioner
Philippine Long Distance Telephone Company (PLDT, for brevity) for the injuries they sustained in the evening of July 30, 1968 when their jeep ran over a mound of earth and
fell into an open trench, an excavation allegedly undertaken by PLDT for the installation of its underground conduit system. The complaint alleged that respondent Antonio
Esteban failed to notice the open trench which was left uncovered because of the creeping darkness and the lack of any warning light or signs. As a result of the accident,
respondent Gloria Esteban allegedly sustained injuries on her arms, legs and face, leaving a permanent scar on her cheek, while the respondent husband suffered cut lips. In
addition, the windshield of the jeep was shattered.2
PLDT, in its answer, denies liability on the contention that the injuries sustained by respondent spouses were the result of their own negligence and that the entity which
should be held responsible, if at all, is L.R. Barte and Company (Barte, for short), an independent contractor which undertook the construction of the manhole and the conduit
system.3 Accordingly, PLDT filed a third-party complaint against Barte alleging that, under the terms of their agreement, PLDT should in no manner be answerable for any
accident or injuries arising from the negligence or carelessness of Barte or any of its employees.4 In answer thereto, Barte claimed that it was not aware nor was it notified of
the accident involving respondent spouses and that it had complied with the terms of its contract with PLDT by installing the necessary and appropriate standard signs in the
vicinity of the work site, with barricades at both ends of the excavation and with red lights at night along the excavated area to warn the traveling public of the presence of
excavations.5
On October 1, 1974, the trial court rendered a decision in favor of private respondents, the decretal part of which reads:
IN VIEW OF THE FOREGOING considerations the defendant Philippine Long Distance Telephone Company is hereby ordered (A) to pay the plaintiff Gloria Esteban the sum
of P20,000.00 as moral damages and P5,000.00 exemplary damages; to plaintiff Antonio Esteban the sum of P2,000.00 as moral damages and P500.00 as exemplary
damages, with legal rate of interest from the date of the filing of the complaint until fully paid. The defendant is hereby ordered to pay the plaintiff the sum of P3,000.00 as
attorney's fees.
(B) The third-party defendant is hereby ordered to reimburse whatever amount the defendant-third party plaintiff has paid to the plaintiff. With costs against the defendant. 6
From this decision both PLDT and private respondents appealed, the latter appealing only as to the amount of damages. Third-party defendant Barte did not appeal.
On September 25, 1979, the Special Second Division of the Court of Appeals rendered a decision in said appealed case, with Justice Corazon Juliano Agrava as ponente,
reversing the decision of the lower court and dismissing the complaint of respondent spouses. It held that respondent Esteban spouses were negligent and consequently
absolved petitioner PLDT from the claim for damages.7 A copy of this decision was received by private respondents on October 10, 1979. 8 On October 25, 1979, said
respondents filed a motion for reconsideration dated October 24, 1979. 9 On January 24, 1980, the Special Ninth Division of the Court of Appeals denied said motion for
reconsideration.10 This resolution was received by respondent spouses on February 22, 1980.11
On February 29, 1980, respondent Court of Appeals received private respondents' motion for leave of court to file a second motion for reconsideration, dated February 27,
1980. 12 On March 11, 1980, respondent court, in a resolution likewise penned by Justice Agrava, allowed respondents to file a second motion for reconsideration, within ten
(10) days from notice thereof. 13 Said resolution was received by private respondents on April 1, 1980 but prior thereto, private respondents had already filed their second
motion for reconsideration on March 7, 1980. 14
On April 30,1980 petitioner PLDT filed an opposition to and/or motion to dismiss said second motion for reconsideration. 15 The Court of Appeals, in view of the divergent
opinions on the resolution of the second motion for reconsideration, designated two additional justices to form a division of five.16 On September 3, 1980, said division of five
promulgated its resolution, penned by Justice Mariano A. Zosa, setting aside the decision dated September 25, 1979, as well as the resolution dated, January 24,1980, and
affirming in toto the decision of the lower court.17
On September 19, 1980, petitioner PLDT filed a motion to set aside and/or for reconsideration of the resolution of September 3, 1980, contending that the second motion for
reconsideration of private respondent spouses was filed out of time and that the decision of September 25, 1979 penned by Justice Agrava was already final. It further
submitted therein that the relationship of Barte and petitioner PLDT should be viewed in the light of the contract between them and, under the independent contractor rule,
PLDT is not liable for the acts of an independent contractor.18 On May 11, 1981, respondent Court of Appeals promulgated its resolution denying said motion to set aside
and/or for reconsideration and affirming in toto the decision of the lower court dated October 1, 1974. 19
Coming to this Court on a petition for review on certiorari, petitioner assigns the following errors:
1. Respondent Court of Appeals erred in not denying private respondents' second motion for reconsideration on the ground that the decision of the Special Second Division,
dated September 25, 1979, and the resolution of the Special Ninth Division, dated January 24, 1980, are already final, and on the additional ground that said second motion
for reconsideration is pro forma.
2. Respondent court erred in reversing the aforesaid decision and resolution and in misapplying the independent contractor rule in holding PLDT liable to respondent Esteban
spouses.
A convenient resume of the relevant proceedings in the respondent court, as shown by the records and admitted by both parties, may be graphically presented as follows:
(a) September 25, 1979, a decision was rendered by the Court of Appeals with Justice Agrava as ponente;
(b) October 10, 1979, a copy of said decision was received by private respondents;
(c) October 25, 1979, a motion for reconsideration was filed by private respondents;
(d) January 24, 1980, a resolution was issued denying said motion for reconsideration;
(e) February 22, 1980, a copy of said denial resolution was received by private respondents;
(f) February 29, 1980, a motion for leave to file a second motion for reconsideration was filed by private respondents
(g) March 7, 1980, a second motion for reconsideration was filed by private respondents;
(h) March 11, 1980, a resolution was issued allowing respondents to file a second motion for reconsideration within ten (10) days from receipt; and
(i) September 3, 1980, a resolution was issued, penned by Justice Zosa, reversing the original decision dated September 25, 1979 and setting aside the resolution dated
January 24, 1980.
From the foregoing chronology, we are convinced that both the motion for leave to file a second motion for reconsideration and, consequently, said second motion for
reconsideration itself were filed out of time.
Section 1, Rule 52 of the Rules of Court, which had procedural governance at the time, provided that a second motion for reconsideration may be presented within fifteen (15)
days from notice of the order or judgment deducting the time in which the first motion has been pending. 20 Private respondents having filed their first motion for
reconsideration on the last day of the reglementary period of fifteen (15) days within which to do so, they had only one (1) day from receipt of the order denying said motion to
file, with leave of court, a second motion for reconsideration. 21 In the present case, after their receipt on February 22, 1980 of the resolution denying their first motion for
reconsideration, private respondents had two remedial options. On February 23, 1980, the remaining one (1) day of the aforesaid reglementary period, they could have filed a
motion for leave of court to file a second motion for reconsideration, conceivably with a prayer for the extension of the period within which to do so. On the other hand, they
could have appealed through a petition for review on certiorari to this Court within fifteen (15) days from February 23, 1980. 22 Instead, they filed a motion for leave to file a
second motion 'for reconsideration on February 29, 1980, and said second motion for reconsideration on March 7, 1980, both of which motions were by then time-barred.
Consequently, after the expiration on February 24, 1980 of the original fifteen (15) day period, the running of which was suspended during the pendency of the first motion for
reconsideration, the Court of Appeals could no longer validly take further proceedings on the merits of the case, much less to alter, modify or reconsider its aforesaid decision
and/or resolution. The filing of the motion for leave to file a second motion for reconsideration by herein respondents on February 29, 1980 and the subsequent filing of the
motion itself on March 7, 1980, after the expiration of the reglementary period to file the same, produced no legal effects. Only a motion for re-hearing or reconsideration filed
in time shall stay the final order or judgment sought to be re-examined. 23
The consequential result is that the resolution of respondent court of March 11, 1980 granting private respondents' aforesaid motion for leave and, giving them an extension of
ten (10) days to file a second motion for reconsideration, is null and void. The period for filing a second motion for reconsideration had already expired when private
respondents sought leave to file the same, and respondent court no longer had the power to entertain or grant the said motion. The aforesaid extension of ten (10) days for
private respondents to file their second motion for reconsideration was of no legal consequence since it was given when there was no more period to extend. It is an
elementary rule that an application for extension of time must be filed prior to the expiration of the period sought to be extended. 24 Necessarily, the discretion of respondent
court to grant said extension for filing a second motion for reconsideration is conditioned upon the timeliness of the motion seeking the same.
No appeal having been taken seasonably, the respondent court's decision, dated September 25, 1979, became final and executory on March 9, 1980. The subsequent
resolutions of respondent court, dated March 11, 1980 and September 3, 1980, allowing private respondents to file a second motion for reconsideration and reversing the
original decision are null and void and cannot disturb the finality of the judgment nor restore jurisdiction to respondent court. This is but in line with the accepted rule that once
a decision has become final and executory it is removed from the power and jurisdiction of the court which rendered it to further alter or amend, much less revoke it.25 The
decision rendered anew is null and void.26 The court's inherent power to correct its own errors should be exercised before the finality of the decision or order sought to be
corrected, otherwise litigation will be endless and no question could be considered finally settled. Although the granting or denial of a motion for reconsideration involves the
exercise of discretion,27 the same should not be exercised whimsically, capriciously or arbitrarily, but prudently in conformity with law, justice, reason and equity.28
Prescinding from the aforesaid procedural lapses into the substantive merits of the case, we find no error in the findings of the respondent court in its original decision that the
accident which befell private respondents was due to the lack of diligence of respondent Antonio Esteban and was not imputable to negligent omission on the part of petitioner
PLDT. Such findings were reached after an exhaustive assessment and evaluation of the evidence on record, as evidenced by the respondent court's resolution of January
24, 1980 which we quote with approval:
First. Plaintiff's jeep was running along the inside lane of Lacson Street. If it had remained on that inside lane, it would not have hit the ACCIDENT MOUND.
Exhibit B shows, through the tiremarks, that the ACCIDENT MOUND was hit by the jeep swerving from the left that is, swerving from the inside lane. What caused the
swerving is not disclosed; but, as the cause of the accident, defendant cannot be made liable for the damages suffered by plaintiffs. The accident was not due to the absence
of warning signs, but to the unexplained abrupt swerving of the jeep from the inside lane. That may explain plaintiff-husband's insistence that he did not see the ACCIDENT
MOUND for which reason he ran into it.
Second. That plaintiff's jeep was on the inside lane before it swerved to hit the ACCIDENT MOUND could have been corroborated by a picture showing Lacson Street to the
south of the ACCIDENT MOUND.
It has been stated that the ditches along Lacson Street had already been covered except the 3 or 4 meters where the ACCIDENT MOUND was located. Exhibit B-1 shows
that the ditches on Lacson Street north of the ACCIDENT MOUND had already been covered, but not in such a way as to allow the outer lane to be freely and conveniently

5
passable to vehicles. The situation could have been worse to the south of the ACCIDENT MOUND for which reason no picture of the ACCIDENT MOUND facing south was
taken.
Third. Plaintiff's jeep was not running at 25 kilometers an hour as plaintiff-husband claimed. At that speed, he could have braked the vehicle the moment it struck the
ACCIDENT MOUND. The jeep would not have climbed the ACCIDENT MOUND several feet as indicated by the tiremarks in Exhibit B. The jeep must have been running quite
fast. If the jeep had been braked at 25 kilometers an hour, plaintiff's would not have been thrown against the windshield and they would not have suffered their injuries.
Fourth. If the accident did not happen because the jeep was running quite fast on the inside lane and for some reason or other it had to swerve suddenly to the right and had
to climb over the ACCIDENT MOUND, then plaintiff-husband had not exercised the diligence of a good father of a family to avoid the accident. With the drizzle, he should not
have run on dim lights, but should have put on his regular lights which should have made him see the ACCIDENT MOUND in time. If he was running on the outside lane at 25
kilometers an hour, even on dim lights, his failure to see the ACCIDENT MOUND in time to brake the car was negligence on his part. The ACCIDENT MOUND was relatively
big and visible, being 2 to 3 feet high and 1-1/2 feet wide. If he did not see the ACCIDENT MOUND in time, he would not have seen any warning sign either. He knew of the
existence and location of the ACCIDENT MOUND, having seen it many previous times. With ordinary precaution, he should have driven his jeep on the night of the accident
so as to avoid hitting the ACCIDENT MOUND.29
The above findings clearly show that the negligence of respondent Antonio Esteban was not only contributory to his injuries and those of his wife but goes to the very cause of
the occurrence of the accident, as one of its determining factors, and thereby precludes their right to recover damages.30 The perils of the road were known to, hence
appreciated and assumed by, private respondents. By exercising reasonable care and prudence, respondent Antonio Esteban could have avoided the injurious consequences
of his act, even assuming arguendo that there was some alleged negligence on the part of petitioner.
The presence of warning signs could not have completely prevented the accident; the only purpose of said signs was to inform and warn the public of the presence of
excavations on the site. The private respondents already knew of the presence of said excavations. It was not the lack of knowledge of these excavations which caused the
jeep of respondents to fall into the excavation but the unexplained sudden swerving of the jeep from the inside lane towards the accident mound. As opined in some quarters,
the omission to perform a duty, such as the placing of warning signs on the site of the excavation, constitutes the proximate cause only when the doing of the said omitted act
would have prevented the injury.31 It is basic that private respondents cannot charge PLDT for their injuries where their own failure to exercise due and reasonable care was
the cause thereof. It is both a societal norm and necessity that one should exercise a reasonable degree of caution for his own protection. Furthermore, respondent Antonio
Esteban had the last clear chance or opportunity to avoid the accident, notwithstanding the negligence he imputes to petitioner PLDT. As a resident of Lacson Street, he
passed on that street almost everyday and had knowledge of the presence and location of the excavations there. It was his negligence that exposed him and his wife to
danger, hence he is solely responsible for the consequences of his imprudence.
Moreover, we also sustain the findings of respondent Court of Appeals in its original decision that there was insufficient evidence to prove any negligence on the part of PLDT.
We have for consideration only the self-serving testimony of respondent Antonio Esteban and the unverified photograph of merely a portion of the scene of the accident. The
absence of a police report of the incident and the non-submission of a medical report from the hospital where private respondents were allegedly treated have not even been
satisfactorily explained.
As aptly observed by respondent court in its aforecited extended resolution of January 24, 1980 —
(a) There was no third party eyewitness of the accident. As to how the accident occurred, the Court can only rely on the testimonial evidence of plaintiffs themselves, and such
evidence should be very carefully evaluated, with defendant, as the party being charged, being given the benefit of any doubt. Definitely without ascribing the same motivation
to plaintiffs, another person could have deliberately engineered a similar accident in the hope and expectation that the Court can grant him substantial moral and exemplary
damages from the big corporation that defendant is. The statement is made only to stress the disadvantageous position of defendant which would have extreme difficulty in
contesting such person's claim. If there were no witness or record available from the police department of Bacolod, defendant would not be able to determine for itself which of
the conflicting testimonies of plaintiffs is correct as to the report or non-report of the accident to the police department.32
A person claiming damages for the negligence of another has the burden of proving the existence of such fault or negligence causative thereof. The facts constitutive of
negligence must be affirmatively established by competent evidence.33 Whosoever relies on negligence for his cause of action has the burden in the first instance of proving
the existence of the same if contested, otherwise his action must fail.
WHEREFORE, the resolutions of respondent Court of Appeals, dated March 11, 1980 and September 3,1980, are hereby SET ASIDE. Its original decision, promulgated on
September 25,1979, is hereby REINSTATED and AFFIRMED.
SO ORDERED.

Pantaleon vs American Express

G.R. No. 174269, May 8 2009

FACTS:

After the Amsterdam incident that happened involving the delay of American Express Card to approve his credit card purchases worth US$13,826.00 at the Coster store,
Pantaleon commenced a complaint for moral and exemplary damages before the RTC against American Express. He said that he and his family experienced inconvenience
and humiliation due to the delays in credit authorization. RTC rendered a decision in favor of Pantaleon. CA reversed the award of damages in favor of Pantaleon, holding that
AmEx had not breached its obligations to Pantaleon, as the purchase at Coster deviated from Pantaleon's established charge purchase pattern.

ISSUE:
1. Whether or not AmEx had committed a breach of its obligations to Pantaleon.
2. Whether or not AmEx is liable for damages.

RULING:
1. Yes. The popular notion that credit card purchases are approved “within seconds,” there really is no strict, legally determinative point of demarcation on how long must it
take for a credit card company to approve or disapprove a customer’s purchase, much less one specifically contracted upon by the parties. One hour appears to be patently
unreasonable length of time to approve or disapprove a credit card purchase.

The culpable failure of AmEx herein is not the failure to timely approve petitioner’s purchase, but the more elemental failure to timely act on the same, whether favorably or
unfavorably. Even assuming that AmEx’s credit authorizers did not have sufficient basis on hand to make a judgment, we see no reason why it could not have promptly
informed Pantaleon the reason for the delay, and duly advised him that resolving the same could take some time.

2. Yes. The reason why Pantaleon is entitled to damages is not simply because AmEx incurred delay, but because the delay, for which culpability lies under Article 1170, led
to the particular injuries under Article 2217 of the Civil Code for which moral damages are remunerative. The somewhat unusual attending circumstances to the purchase at
Coster – that there was a deadline for the completion of that purchase by petitioner before any delay would redound to the injury of his several traveling companions – gave
rise to the moral shock, mental anguish, serious anxiety, wounded feelings and social humiliation sustained by Pantaleon, as concluded by the RTC.

G.R. No. 174269 May 8, 2009

POLO S. PANTALEON, Petitioner, vs. AMERICAN EXPRESS INTERNATIONAL, INC., Respondent.

The petitioner, lawyer Polo Pantaleon, his wife Julialinda, daughter Anna Regina and son Adrian Roberto, joined an escorted tour of Western Europe organized by Trafalgar
Tours of Europe, Ltd., in October of 1991. The tour group arrived in Amsterdam in the afternoon of 25 October 1991, the second to the last day of the tour. As the group had
arrived late in the city, they failed to engage in any sight-seeing. Instead, it was agreed upon that they would start early the next day to see the entire city before ending the
tour.
The following day, the last day of the tour, the group arrived at the Coster Diamond House in Amsterdam around 10 minutes before 9:00 a.m. The group had agreed that the
visit to Coster should end by 9:30 a.m. to allow enough time to take in a guided city tour of Amsterdam. The group was ushered into Coster shortly before 9:00 a.m., and
listened to a lecture on the art of diamond polishing that lasted for around ten minutes.1 Afterwards, the group was led to the store’s showroom to allow them to select items
for purchase. Mrs. Pantaleon had already planned to purchase even before the tour began a 2.5 karat diamond brilliant cut, and she found a diamond close enough in
approximation that she decided to buy.2 Mrs. Pantaleon also selected for purchase a pendant and a chain,3 all of which totaled U.S. $13,826.00.
To pay for these purchases, Pantaleon presented his American Express credit card together with his passport to the Coster sales clerk. This occurred at around 9:15 a.m., or
15 minutes before the tour group was slated to depart from the store. The sales clerk took the card’s imprint, and asked Pantaleon to sign the charge slip. The charge
purchase was then referred electronically to respondent’s Amsterdam office at 9:20 a.m.
Ten minutes later, the store clerk informed Pantaleon that his AmexCard had not yet been approved. His son, who had already boarded the tour bus, soon returned to Coster
and informed the other members of the Pantaleon family that the entire tour group was waiting for them. As it was already 9:40 a.m., and he was already worried about further
inconveniencing the tour group, Pantaleon asked the store clerk to cancel the sale. The store manager though asked plaintiff to wait a few more minutes. After 15 minutes, the
store manager informed Pantaleon that respondent had demanded bank references. Pantaleon supplied the names of his depositary banks, then instructed his daughter to
return to the bus and apologize to the tour group for the delay.
At around 10:00 a.m, or around 45 minutes after Pantaleon had presented his AmexCard, and 30 minutes after the tour group was supposed to have left the store, Coster
decided to release the items even without respondent’s approval of the purchase. The spouses Pantaleon returned to the bus. It is alleged that their offers of apology were
met by their tourmates with stony silence.4 The tour group’s visible irritation was aggravated when the tour guide announced that the city tour of Amsterdam was to be
canceled due to lack of remaining time, as they had to catch a 3:00 p.m. ferry at Calais, Belgium to London.5 Mrs. Pantaleon ended up weeping, while her husband had to
take a tranquilizer to calm his nerves.
It later emerged that Pantaleon’s purchase was first transmitted for approval to respondent’s Amsterdam office at 9:20 a.m., Amsterdam time, then referred to respondent’s
Manila office at 9:33 a.m, then finally approved at 10:19 a.m., Amsterdam time.6 The Approval Code was transmitted to respondent’s Amsterdam office at 10:38 a.m., several
minutes after petitioner had already left Coster, and 78 minutes from the time the purchases were electronically transmitted by the jewelry store to respondent’s Amsterdam
office.

6
After the star-crossed tour had ended, the Pantaleon family proceeded to the United States before returning to Manila on 12 November 1992. W hile in the United States,
Pantaleon continued to use his AmEx card, several times without hassle or delay, but with two other incidents similar to the Amsterdam brouhaha. On 30 October 1991,
Pantaleon purchased golf equipment amounting to US $1,475.00 using his AmEx card, but he cancelled his credit card purchase and borrowed money instead from a friend,
after more than 30 minutes had transpired without the purchase having been approved. On 3 November 1991, Pantaleon used the card to purchase children’s shoes worth
$87.00 at a store in Boston, and it took 20 minutes before this transaction was approved by respondent.
On 4 March 1992, after coming back to Manila, Pantaleon sent a letter7 through counsel to the respondent, demanding an apology for the "inconvenience, humiliation and
embarrassment he and his family thereby suffered" for respondent’s refusal to provide credit authorization for the aforementioned purchases.8 In response, respondent sent a
letter dated 24 March 1992,9 stating among others that the delay in authorizing the purchase from Coster was attributable to the circumstance that the charged purchase of
US $13,826.00 "was out of the usual charge purchase pattern established."10 Since respondent refused to accede to Pantaleon’s demand for an apology, the aggrieved
cardholder instituted an action for damages with the Regional Trial Court (RTC) of Makati City, Branch 145.11 Pantaleon prayed that he be awarded ₱2,000,000.00, as moral
damages; ₱500,000.00, as exemplary damages; ₱100,000.00, as attorney’s fees; and ₱50,000.00 as litigation expenses.12
On 5 August 1996, the Makati City RTC rendered a decision13 in favor of Pantaleon, awarding him ₱500,000.00 as moral damages, ₱300,000.00 as exemplary damages,
₱100,000.00 as attorney’s fees, and ₱85,233.01 as expenses of litigation. Respondent filed a Notice of Appeal, while Pantaleon moved for partial reconsideration, praying that
the trial court award the increased amount of moral and exemplary damages he had prayed for.14 The RTC denied Pantaleon’s motion for partial reconsideration, and
thereafter gave due course to respondent’s Notice of Appeal.15
On 18 August 2006, the Court of Appeals rendered a decision16 reversing the award of damages in favor of Pantaleon, holding that respondent had not breached its
obligations to petitioner. Hence, this petition.
The key question is whether respondent, in connection with the aforementioned transactions, had committed a breach of its obligations to Pantaleon. In addition, Pantaleon
submits that even assuming that respondent had not been in breach of its obligations, it still remained liable for damages under Article 21 of the Civil Code.
The RTC had concluded, based on the testimonial representations of Pantaleon and respondent’s credit authorizer, Edgardo Jaurigue, that the normal approval time for
purchases was "a matter of seconds." Based on that standard, respondent had been in clear delay with respect to the three subject transactions. As it appears, the Court of
Appeals conceded that there had been delay on the part of respondent in approving the purchases. However, it made two critical conclusions in favor of respondent. First, the
appellate court ruled that the delay was not attended by bad faith, malice, or gross negligence. Second, it ruled that respondent "had exercised diligent efforts to effect the
approval" of the purchases, which were "not in accordance with the charge pattern" petitioner had established for himself, as exemplified by the fact that at Coster, he was
"making his very first single charge purchase of US$13,826," and "the record of [petitioner]’s past spending with [respondent] at the time does not favorably support his ability
to pay for such purchase."17
On the premise that there was an obligation on the part of respondent "to approve or disapprove with dispatch the charge purchase," petitioner argues that the failure to timely
approve or disapprove the purchase constituted mora solvendi on the part of respondent in the performance of its obligation. For its part, respondent characterizes the
depiction by petitioner of its obligation to him as "to approve purchases instantaneously or in a matter of seconds."
Petitioner correctly cites that under mora solvendi, the three requisites for a finding of default are that the obligation is demandable and liquidated; the debtor delays
performance; and the creditor judicially or extrajudicially requires the debtor’s performance.18 Petitioner asserts that the Court of Appeals had wrongly applied the principle of
mora accipiendi, which relates to delay on the part of the obligee in accepting the performance of the obligation by the obligor. The requisites of mora accipiendi are: an offer
of performance by the debtor who has the required capacity; the offer must be to comply with the prestation as it should be performed; and the creditor refuses the
performance without just cause.19 The error of the appellate court, argues petitioner, is in relying on the invocation by respondent of "just cause" for the delay, since while just
cause is determinative of mora accipiendi, it is not so with the case of mora solvendi.
We can see the possible source of confusion as to which type of mora to appreciate. Generally, the relationship between a credit card provider and its card holders is that of
creditor-debtor,20 with the card company as the creditor extending loans and credit to the card holder, who as debtor is obliged to repay the creditor. This relationship already
takes exception to the general rule that as between a bank and its depositors, the bank is deemed as the debtor while the depositor is considered as the creditor.21 Petitioner
is asking us, not baselessly, to again shift perspectives and again see the credit card company as the debtor/obligor, insofar as it has the obligation to the customer as
creditor/obligee to act promptly on its purchases on credit.
Ultimately, petitioner’s perspective appears more sensible than if we were to still regard respondent as the creditor in the context of this cause of action. If there was delay on
the part of respondent in its normal role as creditor to the cardholder, such delay would not have been in the acceptance of the performance of the debtor’s obligation (i.e., the
repayment of the debt), but it would be delay in the extension of the credit in the first place. Such delay would not fall under mora accipiendi, which contemplates that the
obligation of the debtor, such as the actual purchases on credit, has already been constituted. Herein, the establishment of the debt itself (purchases on credit of the jewelry)
had not yet been perfected, as it remained pending the approval or consent of the respondent credit card company.
Still, in order for us to appreciate that respondent was in mora solvendi, we will have to first recognize that there was indeed an obligation on the part of respondent to act on
petitioner’s purchases with "timely dispatch," or for the purposes of this case, within a period significantly less than the one hour it apparently took before the purchase at
Coster was finally approved.
The findings of the trial court, to our mind, amply established that the tardiness on the part of respondent in acting on petitioner’s purchase at Coster did constitute culpable
delay on its part in complying with its obligation to act promptly on its customer’s purchase request, whether such action be favorable or unfavorable. We quote the trial court,
thus:
As to the first issue, both parties have testified that normal approval time for purchases was a matter of seconds.
Plaintiff testified that his personal experience with the use of the card was that except for the three charge purchases subject of this case, approvals of his charge purchases
were always obtained in a matter of seconds.
Defendant’s credit authorizer Edgardo Jaurique likewise testified:
Q. – You also testified that on normal occasions, the normal approval time for charges would be 3 to 4 seconds?
A. – Yes, Ma’am.
Both parties likewise presented evidence that the processing and approval of plaintiff’s charge purchase at the Coster Diamond House was way beyond the normal approval
time of a "matter of seconds".
Plaintiff testified that he presented his AmexCard to the sales clerk at Coster, at 9:15 a.m. and by the time he had to leave the store at 10:05 a.m., no approval had yet been
received. In fact, the Credit Authorization System (CAS) record of defendant at Phoenix Amex shows that defendant’s Amsterdam office received the request to approve
plaintiff’s charge purchase at 9:20 a.m., Amsterdam time or 01:20, Phoenix time, and that the defendant relayed its approval to Coster at 10:38 a.m., Amsterdam time, or 2:38,
Phoenix time, or a total time lapse of one hour and [18] minutes. And even then, the approval was conditional as it directed in computerese [sic] "Positive Identification of Card
holder necessary further charges require bank information due to high exposure. By Jack Manila."
The delay in the processing is apparent to be undue as shown from the frantic successive queries of Amexco Amsterdam which reads: "US$13,826. Cardmember buying
jewels. ID seen. Advise how long will this take?" They were sent at 01:33, 01:37, 01:40, 01:45, 01:52 and 02:08, all times Phoenix. Manila Amexco could be unaware of the
need for speed in resolving the charge purchase referred to it, yet it sat on its hand, unconcerned.
xxx
To repeat, the Credit Authorization System (CAS) record on the Amsterdam transaction shows how Amexco Netherlands viewed the delay as unusually frustrating. In
sequence expressed in Phoenix time from 01:20 when the charge purchased was referred for authorization, defendants own record shows:
01:22 – the authorization is referred to Manila Amexco
01:32 – Netherlands gives information that the identification of the cardmember has been presented and he is buying jewelries worth US $13,826.
01:33 – Netherlands asks "How long will this take?"
02:08 – Netherlands is still asking "How long will this take?"
The Court is convinced that defendants delay constitute[s] breach of its contractual obligation to act on his use of the card abroad "with special handling."22 (Citations omitted)
xxx
Notwithstanding the popular notion that credit card purchases are approved "within seconds," there really is no strict, legally determinative point of demarcation on how long
must it take for a credit card company to approve or disapprove a customer’s purchase, much less one specifically contracted upon by the parties. Yet this is one of those
instances when "you’d know it when you’d see it," and one hour appears to be an awfully long, patently unreasonable length of time to approve or disapprove a credit card
purchase. It is long enough time for the customer to walk to a bank a kilometer away, withdraw money over the counter, and return to the store.
Notably, petitioner frames the obligation of respondent as "to approve or disapprove" the purchase "in timely dispatch," and not "to approve the purchase instantaneously or
within seconds." Certainly, had respondent disapproved petitioner’s purchase "within seconds" or within a timely manner, this particular action would have never seen the light
of day. Petitioner and his family would have returned to the bus without delay – internally humiliated perhaps over the rejection of his card – yet spared the shame of being
held accountable by newly-made friends for making them miss the chance to tour the city of Amsterdam.
We do not wish do dispute that respondent has the right, if not the obligation, to verify whether the credit it is extending upon on a particular purchase was indeed contracted
by the cardholder, and that the cardholder is within his means to make such transaction. The culpable failure of respondent herein is not the failure to timely approve
petitioner’s purchase, but the more elemental failure to timely act on the same, whether favorably or unfavorably. Even assuming that respondent’s credit authorizers did not
have sufficient basis on hand to make a judgment, we see no reason why respondent could not have promptly informed petitioner the reason for the delay, and duly advised
him that resolving the same could take some time. In that way, petitioner would have had informed basis on whether or not to pursue the transaction at Coster, given the
attending circumstances. Instead, petitioner was left uncomfortably dangling in the chilly autumn winds in a foreign land and soon forced to confront the wrath of foreign folk.
Moral damages avail in cases of breach of contract where the defendant acted fraudulently or in bad faith, and the court should find that under the circumstances, such
damages are due. The findings of the trial court are ample in establishing the bad faith and unjustified neglect of respondent, attributable in particular to the "dilly-dallying" of
respondent’s Manila credit authorizer, Edgardo Jaurique.23 Wrote the trial court:
While it is true that the Cardmembership Agreement, which defendant prepared, is silent as to the amount of time it should take defendant to grant authorization for a charge
purchase, defendant acknowledged that the normal time for approval should only be three to four seconds. Specially so with cards used abroad which requires "special
handling", meaning with priority. Otherwise, the object of credit or charge cards would be lost; it would be so inconvenient to use that buyers and consumers would be better
off carrying bundles of currency or traveller’s checks, which can be delivered and accepted quickly. Such right was not accorded to plaintiff in the instances complained off for
reasons known only to defendant at that time. This, to the Court’s mind, amounts to a wanton and deliberate refusal to comply with its contractual obligations, or at least abuse
of its rights, under the contract.24
xxx
The delay committed by defendant was clearly attended by unjustified neglect and bad faith, since it alleges to have consumed more than one hour to simply go over plaintiff’s
past credit history with defendant, his payment record and his credit and bank references, when all such data are already stored and readily available from its computer. This
Court also takes note of the fact that there is nothing in plaintiff’s billing history that would warrant the imprudent suspension of action by defendant in processing the
purchase. Defendant’s witness Jaurique admits:
Q. – But did you discover that he did not have any outstanding account?
A. – Nothing in arrears at that time.

7
Q. – You were well aware of this fact on this very date?
A. – Yes, sir.
Mr. Jaurique further testified that there were no "delinquencies" in plaintiff’s account.25
It should be emphasized that the reason why petitioner is entitled to damages is not simply because respondent incurred delay, but because the delay, for which culpability
lies under Article 1170, led to the particular injuries under Article 2217 of the Civil Code for which moral damages are remunerative.26 Moral damages do not avail to soothe
the plaints of the simply impatient, so this decision should not be cause for relief for those who time the length of their credit card transactions with a stopwatch. The
somewhat unusual attending circumstances to the purchase at Coster – that there was a deadline for the completion of that purchase by petitioner before any delay would
redound to the injury of his several traveling companions – gave rise to the moral shock, mental anguish, serious anxiety, wounded feelings and social humiliation sustained
by the petitioner, as concluded by the RTC.27 Those circumstances are fairly unusual, and should not give rise to a general entitlement for damages under a more mundane
set of facts.
We sustain the amount of moral damages awarded to petitioner by the RTC. There is no hard-and-fast rule in determining what would be a fair and reasonable amount of
moral damages, since each case must be governed by its own peculiar facts, however, it must be commensurate to the loss or injury suffered.28 Petitioner’s original prayer
for ₱5,000,000.00 for moral damages is excessive under the circumstances, and the amount awarded by the trial court of ₱500,000.00 in moral damages more
seemly.1avvphi1
Likewise, we deem exemplary damages available under the circumstances, and the amount of ₱300,000.00 appropriate. There is similarly no cause though to disturb the
determined award of ₱100,000.00 as attorney’s fees, and ₱85,233.01 as expenses of litigation.
WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals is REVERSED and SET ASIDE. The Decision of the Regional Trial Court of Makati,
Branch 145 in Civil Case No. 92-1665 is hereby REINSTATED. Costs against respondent.
SO ORDERED.

EXCEPTION: DOCTRINE OF ATTRACTIVE NUISANCE

TAYLOR vs MANILA ELECTRIC RAILROAD& LIGHT CO.,

David Taylor was a 15 year old boy who spent time as a cabin boy at sea; he was also able to learn some principles of mechanical engineering and mechanical drawing from
his dad’s office (his dad was a mechanical engineer); he was also employed as a mechanical draftsman earning P2.50 a day – all said, Taylor was mature well beyond his
age.
One day in 1905, he and another boy entered into the premises of Manila Electric power plant where they found 20-30 blasting caps which they took home. In an effort to
explode the said caps, Taylor experimented until he succeeded in opening the caps and then he lighted it using a match which resulted to the explosion of the caps causing
severe injuries to his companion and to Taylor losing one eye.
Taylor sued Manila Electric alleging that because the company left the caps exposed to children, they are liable for damages due to the company’s negligence.
ISSUE: Whether or not Manila Electric is liable for damages.
HELD: No. The SC reiterated the elements of quasi delict as follows:
(1) Damages to the plaintiff.
(2) Negligence by act or omission of which defendant personally, or some person for whose acts it must respond, was guilty.
(3) The connection of cause and effect between the negligence and the damage.
In the case at bar, it is true that Manila Electric has been negligent in disposing off the caps which they used for the power plant, and that said caps caused damages to
Taylor. However, the causal connection between the company’s negligence and the injuries sustained by Taylor is absent. It is in fact the direct acts of Taylor which led to the
explosion of the caps as he even, in various experiments and in multiple attempts, tried to explode the caps. It is from said acts that led to the explosion and hence the
injuries.
Taylor at the time of the accident was well-grown youth of 15, more mature both mentally and physically than the average boy of his age; he had been to sea as a cabin boy;
was able to earn P2.50 a day as a mechanical draftsman thirty days after the injury was incurred; and the record discloses throughout that he was exceptionally well qualified
to take care. The evidence of record leaves no room for doubt that he well knew the explosive character of the cap with which he was amusing himself. The series of
experiments made by him in his attempt to produce an explosion admit of no other explanation. His attempt to discharge the cap by the use of electricity, followed by his
efforts to explode it with a stone or a hammer, and the final success of his endeavors brought about by the applications of a match to the contents of the cap, show clearly that
he knew what he was about. Nor can there be any reasonable doubt that he had reason to anticipate that the explosion might be dangerous.
“The just thing is that a man should suffer the damage which comes to him through his own fault, and that he cannot demand reparation therefor from another.”

[G.R. No. 4977. March 22, 1910. ]

DAVID TAYLOR, Plaintiff-Appellee, v. THE MANILA ELECTRIC RAILROAD AND LIGHT COMPANY, Defendant-Appellant.

SYLLABUS
1. LIABILITY FOR DAMAGES; CONTRIBUTORY NEGLIGENCE. — When the immediate cause of an accident resulting in an injury is the plaintiff’s own act, which
contributed to the principal occurrence as one of its determining factors, he can not recover damages for the injury.

An action to recover damages for the loss of an eye and other injuries, instituted by David Taylor, a minor, by his father, his nearest relative.

The defendant is a foreign corporation engaged in the operation of a street railway and an electric light system in the city of Manila. Its power plant is situated at the eastern
end of a small island in the Pasig River within the city of Manila, known as the Isla del Provisor. The power plant may be reached by boat or by crossing a footbridge,
impassable for vehicles, at the westerly end of the island.
The plaintiff, David Taylor, was at the same time when he received the injuries complained of, 15 years of age, the son of a mechanical engineer, more mature than the
average boy of his age, and having considerable aptitude and training in mechanics.

On the 30th of September, 1905, plaintiff, with a boy named Manuel Claparols, about 12 years of age, crossed the footbridge of the Isla del Provisor, for the purpose of visiting
one Murphy, an employee of the defendant, who had promised to make them a cylinder for a miniature engine. Finding on inquiry that Mr. Murphy was not in his quarters, the
boys, impelled apparently by youthful curiosity and perhaps by the unusual interest which both seem to have taken in machinery, spent some time in wandering about the
company’s premises. The visit made on a Sunday afternoon, and it does not appear that they saw or spoke to anyone after leaving the power house where they had asked for
Mr. Murphy.

After watching the operation of the traveling crane used in handling the defendant’s coal, they walked across the open space in the neighborhood of the place where the
company dumped the cinders and ashes from its furnaces. Here they found some twenty or thirty brass fulminating caps scattered on the ground. These caps are
approximately of the size and appearance of small pistol cartridges and each has attached to it two long thin wires by means of which it may be discharged by the use of
electricity. They are intended for use in the explosion of blasting charges of dynamite, and have in themselves considerable explosive power. After some discussion as to the
ownership of caps, and their right to take them, the boys picked up all they could find, hung them of a stick, of which each took one end, and carried them home. After
crossing the footbridge, they met a little girl named Jessie Adrian, less than 9 years old, and all three went to the home of the boy Manuel. The boys then made a series of
experiments with the caps. They thrust the ends of the wires into an electric light socket and obtained no result. They next tried to break the cap with a stone and failed.
Manuel looked for a hammer, but could not find one. They then opened one of the caps with a knife, and finding that it was filled with a yellowish substance they got matches,
and David held the cap while Manuel applied a lighted match to the contents. An explosion followed, causing more or less serious injuries to all three. Jessie, who, when the
boys proposed purring a match to the contents of the cap, became frightened and started to run away, received a slight cut in the neck. Manuel had his hand burned and
wounded, and David was struck in the face by several particles of the metal capsule, one of which injured his right eye to such an extent as to necessitate its removal by the
surgeons who were called in to care for his wounds.

The evidence does not definitely and conclusively disclose how the caps came to be on the defendant’s premises, not how long they had been there when the boys found
them. It appeared, however, that some months before the accident, during the construction of the defendant’s plant, detonating caps of the same kind as those found by the
boys were used in sinking a well at the power plant near the place where the caps were found; and it also appears that at or about the time when these caps were found,
similar caps were in use in the construction of an extension of defendant’s street car line to Fort William McKinley. The caps when found appeared to the boys who picked
them up to have been lying there for a considerable time, and from the place where they were found would seem to have been discarded as defective or worthless and fir only
to be thrown upon the rubbish heap.

No measures seem to have been adapted by the defendant company to prohibit or prevent visitors from entering and walking about its premises unattended, when they felt
disposed as to do. As admitted in defendant counsel’s brief, "it is undoubtedly true that children in their play sometimes crossed the footbridge to the island;" and, we may
add, roamed about at will on the unenclosed premises of the defendant, in the neighborhood of the place where the caps were found. There is no evidence that any effort ever
was made to forbid these children from visiting the defendant company’s premises, although it must be assumed that the company or its employees were aware of the fact
that they not infrequently did so.

8
Two years before the accident, plaintiff spent four months at sea, as a cabin boy on one of the interisland transports. later he took upon work in his father’s office learning
mechanical drawing and mechanical engineering. About a month after his accident he obtained employment as a mechanical draftsman and continued in the employment for
six months at a salary of P2.50 a day; and it appears that he was a boy of more than average intelligence, taller and more mature both mentally and physically than most boys
of fifteen.
The facts set our in the foregoing statement are to our mind fully and conclusively established by the evidence of record, and are substantially admitted by counsel. The only
questions of fact which are seriously disputed are plaintiff’s allegations that the caps which were found by plaintiff on defendant company’s premises were the property of the
defendant, or that they had come from its possession and control, and that the company or some of its employees left them exposed on its premises at the point where they
were found.

The evidence in support of these allegations is meager, and the defendant company, apparently relying on the rule of law which places the burden of proof of such allegations
upon the plaintiff, offered no evidence in rebuttal, and insists that plaintiff failed in his proof. We think, however, the plaintiff’s evidence is sufficient to sustain a findings in
accord with his allegations in this regard.

It was proven that caps, similar to those found by the plaintiff, were used, more or less extensively, on the McKinley extension of the defendant company’s track; that some of
these caps were used in blasting a well on the company’s premises a few months before the accident; that not far from the place where the caps were found the company has
a storehouse for the materials, supplies, and so forth, used by it in its operations as a street railway and a a purveyor of electric light; and that the place, in the neighborhood
of which the caps were found, was being used by the company as a short of dumping ground for ashes and cinders. Fulminating caps or detonators for the discharge by
electricity of blasting charges by dynamite are not articles in common use by the average citizen, and under all the circumstances, and in the absence of all evidence to the
contrary, we thing that the discovery of twenty or thirty of these caps at the place where they were found by the plaintiff on defendant’s premises fairly justifies the inference
that the defendant company was either the owner of the caps in question or had these caps under its possession and control. W e think also that the evidence tends to
disclose that these caps or detonators were willfully and knowingly thrown by the company or its employees at the spot where they were found, with the expectations that they
would be buried out of sight by the ashes which it was engaged in dumping in that neighborhood, they being old and perhaps defective; and, however this may be, we are
satisfied that the evidence is sufficient to sustained a finding that the company or some of employees either willfully or through an oversight left them exposed at a point on its
premises which the general public including children at play, were not prohibited from visiting, and over which the company knew or ought to have known that young boys
were likely to roam abound in pastime or in play.

Counsel for appellant endeavors to weaken or destroy the probative value of the facts on which these conclusions are based by intimating or rather assuming that the blasting
worked on the company’s well and on its McKinley extension was done by contractors. It was conclusively proven, however, that while the workman employed in blasting the
well was regularly employed by J.G. White & Co., a firm of contractors, he did the work on the well directly and immediately under the supervision and control of one of
defendant company’s foremen, and there is no proof whatever in the record that the blasting on the McKinley extension was done by independent contractors. Only one
witness testified upon this point, and while he stated that he understood that a part of this work was done by contract, he could not say so of his own knowledge, and knew
nothing of the terms and conditions of the alleged contract, or of the relations of the alleged contractor to the defendant company. The fact having been proven that detonating
caps were more or less extensively employed on work done by the defendant company’s directions and on its behalf, we think that the company should have introduced the
necessary evidence to support its contention if it wished to avoid the not unreasonable inference that it was the owner of the material used in these operations and that it was
responsible for tortious of negligent acts of the agents employed therein, on the ground that this work had been intrusted to independent contractors as to whose acts the
maxim respondent superior should not be applied. If the company did not in fact own or make use of caps such as those found on its premises, as intimated by counsel, it was
a very simple matter for it to prove that fact, and in the absence of such proof we think that the other evidence in the record sufficiently establishes the contrary, and justifies
the court in drawing the reasonable inference that the caps found on its premises were its property, and were left where they were found by the company or some of its
employees.

Plaintiff appears to have rested his case, as did the trial judge his decision in plaintiff’s favor, upon the provisions of article 1089 of the Civil Code read together with articles
1902, 1903, and 1908 of that Code.

"ART. 1089. Obligations are created by law, by contracts, by quasi—contracts, and by illicit acts and omissions or by those in which any kind of fault or negligence
occurs."cralaw virtua1aw library

"ART. 1902. Any person who by an act or omission causes damage to another when there is fault or negligence shall be obliged to repair the damage so done.

"ART. 1903. The obligation imposed by the preceding article is demandable, not only for personal acts and omission, but also for those of the persons for whom they should
be responsible.

"The father, and on his death or incapacity the mother, is liable for the damages caused by the minors who alive with them.

x x x

"Owners or directors of an establishment or enterprises are equally liable for the damages caused by their employees in the service of the branches in which the latter may be
employed or on account of their duties.

x x x

"The liability referred to in this article shall cease when the persons mentioned therein prove that they employed all the diligence of a good father of a family to avoid the
damage."cralaw virtua1aw library

"ART. 1908. The owners shall be also be liable for the damages caused —

"1. By the explosion of machines which may not have been cared for with due diligence, and for kindling of explosive substance which may not have been placed in a safe and
proper place."cralaw virtua1aw library

Counsel for defendant and appellant rests his appeal strictly upon his contention that the facts proven at the trial do not establish the liability of the defendant company under
the provisions of these articles, and since we agree with this view of the case, it is not necessary for us to consider the various questions as to the form and the right of action
(analogous to those raised in the case of Rakes v. Atlantic, Gulf & Pacific Co., 7 Phil. Rep., 359), which would perhaps, be involved in a decision affirming the judgment of the
court below.

We agree with counsel for appellant that under the Civil Code, as under the generally accepted doctrine in the United States, the plaintiff in an action such as that under
consideration, in order to establish his right to a recovery, must establish by competent evidence:chanrob1es virtual 1aw library

(1) Damages to the plaintiff.

(2) Negligence by act or omission of which defendant personally, or some person for whose acts it must respond, was guilty.

(3) The connection of cause and effect between the negligence and the damage.

The propositions are, or course, elementary, and do not admit of discussion, the real difficulty arising in the application of these principles to the particular facts developed in
the case under consideration.

It is clear that the accident could not have happened had not the fulminating caps been left exposed at the point where they were found, or if their owner had exercised due
care in keeping them in a appropriate place; but it is equally clear that plaintiff would not have been injured had he not, for his own pleasure and convenience, entered upon
defendant’s premised, and strolled around thereon without the express permission of the defendant, and had he not picked up and carried away the property of the defendant
which he found on its premises, and had he not thereafter deliberately cut open one of the caps and applied a match to its contents.

But counsel for plaintiff contends that because of plaintiff’s youth and inexperience, his entry upon defendant company’s premises, and the intervention of his action between
the negligent act of defendant in leaving the caps exposed on its premises and the accident which resulted in his injury should not be held to have contributed in any wise
accident, which should be deemed to be the direct result of defendant’s negligence in leaving the caps exposed at the pace where they were found by the plaintiff, and this
latter the proximate cause of the accident which occasioned the injuries sustained by him.

In support of his contention, counsel for plaintiff relied on the doctrine laid down in many of the courts of last result in the United States in the cases known as the "Torpedo"
and "Turntable" cases, and the cases based thereon.

In the typical cases, the question involved has been whether a railroad company is liable for an injury received by an infant of tender years, who from mere idle curiosity, or for
purposes of amusement, enters upon the railroad company’s premises, at a place where the railroad company’s premises, at a place where the railroad company knew, or
had a good reason to suppose, children who would likely to come, and there found explosive signal torpedoes left exposed by the railroad company’s employees, one of
which when carried away by the visitor, exploded and injured him; or where such infant found upon the premises a dangerous machine, such as a turntable left in such
condition as to make it probable that children in playing with it would be exposed to accident or injury therefrom and where the infant did in fact suffer injury in playing with
such machine.

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In these, and in a great variety of similar cases, the great weight of authority holds the owner of the premises liable.

As laid down in Railroad Co. v. Stout (17 Wall. (84 U.S.) , 657), (wherein the principal question was whether a railroad company was liable for an injury received by an infant
while upon its premises, from idle curiosity, or for purposed of amusement, if such injury was, under the circumstances, attributable to the negligence of the company), the
principles on which these cases turn are that "while railroad company is not bound to the same degree of care in regard to mere strangers who are unlawfully upon its
premises that it owes to passengers conveyed by it, it is not exempt from responsibility to such strangers for injuries arising from its negligence or from its tortious acts;" and
that "the conduct of an infant of tender years is not to be judged by the same rule which governs that of an adult. While it is the general rule in regard to an adult that to entitle
him to recover damages for an injury resulting from the fault or negligence of another he must himself have been free from fault, such is not the rule in regard to an infant of
tender years. The care and caution required of a child is according to his maturity and capacity only, and this is to be determined in such case by the circumstances of the
case."cralaw virtua1aw library

The doctrine of the case of Railroad Company v. Stout was vigorously controverted and sharply criticized in severally state courts, and the supreme court of Michigan in the
case of Ryan v. Towar (128 Mich., 463) formally repudiated and disapproved the doctrine of the Turntable cased, especially that laid down in Railroad Company v. Stout, in a
very able decision wherein it held, in the language of the syllabus: (1) That the owner of land is not liable to trespassers thereon for injuries sustained by them, not due to his
wanton or willful acts; (2) that no exception to this rule exists in favor of children who are injured by dangerous machinery naturally calculated to attract them to the premises;
(3) that an invitation of license to cross the premises of another can not be predicated on the mere fact that no steps have been taken to interfere with such practice; (4) that
there is no difference between children and adults of an invitation or a license to enter upon another’s premises.

Similar criticisms of the opinion in the case of Railroad Company v. Stout were indulged in by the courts in Connecticut and Massachusetts. (Nolan v. Railroad Co., 53 Conn.,
461; 154 Mass., 349). And the doctrine has been questioned in Wisconsin, Pennsylvania, New Hampshire, and perhaps in other States.

On the other hand, many if not most of the courts of last resort in the United States, citing and approving the doctrine laid down in England in the leading case of Lynch v.
Nurding (1 Q.B., 29, 35, 36), lay down the rule in these cases in accord with that announced in Railroad Company v. Stout (supra), and the Supreme Court of the United
States, in a unanimous opinion delivered by Justice Harlan in the case of Union Pacific Railway Co. v. McDonald (152 U.S, 262) on the 5th of March, 1894, reexamined and
reconsidered the doctrine laid down in Railroad Co. v. Stout, and after an exhaustive and critical analysis and review of may of the adjudged cases, both English and America,
formally declared that it adhered "to the principles announced in the case of Railroad Co. v. Stout."cralaw virtua1aw library

In the case of Union Pacific Railway Co. v. McDonald (supra) the facts were as follows: The plaintiff, a boy 12 years of age, our of curiosity and for his own pleasure, entered
upon and visited the defendant’s premises, without defendant’s express permission or invitation, and, while there, was by an accident injured by failing into a burning slack pile
of whose existence he had knowledge, but which had been left by defendant on its premises without any fence around it or anything to give warning of its dangerous
condition, although defendant knew or had reason to believe that it was in a place where it would attract the interest or curiosity of passers-by. On these facts the court held
that the plaintiff could not be regarded as a mere trespasser, for whose safety and protection while on the premises in question, against the unseen danger referred to, the
defendant was under no obligation to make provision.

We quote at length from the discussion by the court of the application of the principles involved to the facts in that case, because what is said there is strikingly applicable in
the case at bar, and would seem to dispose of defendant’s contention that, the plaintiff in this case being a trespasser, the defendant’s company owed him no duty, and in no
case could be held liable for injuries which would not have resulted but for the entry of plaintiff on defendant’s premises.

"We adhere to the principle announced in Railroad Co., v. Stout (supra). Applied to the case now before us, they require us to hold that the defendant was guilty of negligence
in leaving unguarded the slack pile, made by it in the vicinity of its depot building. It could have forbidden all the persons from coming to its coal mine for purposes merely of
curiosity and pleasure. But it did not do so. On the contrary, it permitted all, without regard to age, to visit its mine, and witness its operation. It knew that the usual approach to
the mine was by a narrow path skirting its slack pit, close to its depot building, at which the people of the village, old and young, would often assemble. It knew that children
were in the habit of frequenting that locality and playing around the shaft house in the immediate vicinity of the slack pit. The slightest regard for the safety of these children
would have suggested that they were in danger from being so near a pit, beneath the surface of which was concealed (except when snow, wind, or rain prevailed) a mass of
burning coals into which a child might accidentally fall and be burned to death. Under all the circumstances, the railroad company ought not to be heard to say that the plaintiff,
a mere lad, moved by curiosity to see the mine, in the vicinity of the slack pit, was a trespasser, to whom it owed no duty, or for whose protection it was under no obligation to
make provisions.

"In Townsend v. Wathen (9 East., 277, 281) it was held that if a man place dangerous traps, baited with flesh, in his own ground, so near to a highway, or to the premises of
another, that dogs passing along the highway, or kept in his neighbors premises, would probably be attracted by their instinct into the traps, and in consequence of such act
his neighbor’s dog be so attracted and thereby injured, an action on the case would lie.’What difference,’ said Lord Ellenborough, C.J., ’is there a reason between drawing the
animal into the trap by means of his instinct which he can not resist, and putting him there by manual force?’ What difference, in reason we may observe in this case, is there
between an express license to the children of this village to visit the defendant’s coal mine, in the vicinity of its slack pile, and an implied license, resulting from the habit of the
defendant to permit them, without objection or warning, to do so at will, for purposes of curiosity or pleasure? Referring to the case of Townsend v. Wathen, Judge Thompson,
in his work on the Law of negligence, volume 1, page 305, note, well ways: "It would be a barbarous rule of law that would make the owner of land liable for setting a trap
thereon, baited with stinking meat, so that his neighbor’s dog attracted by his natural instincts, might run into it and be killed, and which would exempt him from liability for the
consequences of leaving exposed and unguarded on his land a dangerous machine, so that his neighbor’s child attracted to it and tempted to intermeddle with it by instincts
equally strong, might thereby be killed of maimed for life."cralaw virtua1aw library

Chief Justice Cooley, voicing the opinion of the supreme court of Michigan, in the case of Powers v. Marlow (53 Mich., 507), said that (p. 515):jgc:chanrobles.com.ph

"Children, wherever they go, must be expected to act upon childlike instincts and impulses; and others who are chargeable with a duty of care and caution toward them must
calculate upon this, and take precautions accordingly. If they leave exposed to the observation of children anything which would be tempting to them, and which they in their
immature judgment might naturally suppose they were at liberty to handle or play with, they should expect that liberty to be taken."cralaw virtua1aw library

And the same eminent jurist in his treaties on torts, alluding to the doctrines of implied invitations to visit the premises of another, says:jgc:chanrobles.com.ph

"In the case of young children, and other persons not fully sui juris, an implied license might sometimes arise when it would not on behalf of others. Thus leaving a tempting
thing for children to play with exposed, where they would be likely to gather for that purpose, may be equivalent to an invitation to them to make use of it; and, perhaps if one
were to throw away upon his premises, near the common way, things tempting to children, the same implication should arise." (Chap. 10, p. 303.)

The reasoning which led the Supreme Court of the United States to its conclusions in the cases of Railroad Co., v. Stout (supra) and Union Pacific Railroad Co. v. McDonald
(supra) is not less cogent and convincing in this jurisdiction than in that than in that wherein those cases originated. Children here are actuated by similar childish instincts and
impulses. Drawn by curiosity and impelled by the restless spirit of youth, boys here as well as there will usually be found wherever the public permitted to congregate. The
movement of machinery, and indeed anything which arouses the attention of the young and inquiring mind, will draw them to the neighborhood as inevitably as does the
magnet draw the iron which comes within the range of its magnetic influence. The owners of premises, therefore, whereon things attractive to children are exposed, or upon
which the public are expressively or impliedly permitted to enter to or upon which the owner knows or ought to know children are likely to roam about for pastime and in play,
"must calculate upon this, and take precautions accordingly." In such cases the owner of the premises can not be heard to say that because the child has entered upon his
premises without his express permission he is a trespasser to whom the owner owes no duty or obligation whatever. The owner’s failure to take reasonable precautions to
prevent the child form entering premises at a place where he knows or ought to know that children are accustomed to roam about or to which their childish instincts and
impulses are likely to attract them is at least equivalent to an implied license to enter, and where the child does not enter under such conditions the owner’s failure to make
reasonable precaution to guard the child against the injury from unknown or unseen dangers, placed upon such premises by the owner, is clearly a breach of duty, a negligent
omission, for which he may and should be held responsible, if the child is actually injured, without other fault on its part than that it had entered on the premises of a stranger
without his express invitation or permission. To hold otherwise would be expose to all the children in the community to unknown perils and unnecessary danger at the whim of
the owners or occupants of land upon which they might naturally and reasonably be expected to enter.

This conclusion is founded on reason, justice, and necessary, and neither the contention that a man has a right to do what he will with his own property of that children should
be kept under the care of the parents or guardian, so as to prevent their entering on the premises of others is of sufficient weight to put it in doubt. In this jurisdiction as well as
in the United States all private property is acquired and held under the tacit condition that it shall not be so used as to injure the equal rights of others or greatly impair the
public rights and interests of the community (see U.S. v. Toribio, 1 No. 5060, decided January 26, 1910), and except as to infants of very tender years it would be absurd and
unreasonable in community organized as is that in which we live to hold that parents or guardians are guilty of negligence or imprudence in every case wherein they permit
growing boys and girls to leave the parental roof unattended, even if in the event of accident to the child the negligence of the parents could in any event be imputed to the
child so as to deprive it of a right to recover in such cases — a point which we neither discuss not decide.

But while we hold that the entry of the plaintiff upon defendant’s property without defendant’s express invitation or permission would not have relieved defendant from
responsibility for injuries incurred there by the plaintiff, without other fault on his part, if such injury were attributable to the negligence of the defendant, we are of opinion that
under all the circumstances of this case the negligence of the defendant in leaving the caps exposed on its premises was not the proximate cause of the injury received by the
plaintiff, which therefore was not, properly speaking, "attributable to the negligence of the defendant," and, on the other hand, we are satisfied that plaintiff’s action in cutting
open the detonating cap and putting a match to its contents was the proximate cause of the explosion and of the resultant injuries inflicted upon the plaintiff, and that the
defendant, therefore, is not civilly responsible for the injuries thus incurred.

Plaintiff contends, upon the authority of the Turntable and Torpedo cases, that because of plaintiff’s youth the intervention of his action between the negligent act of the
defendant leaving the caps exposed on its premises and the explosion which resulted in his injury should not be held to have contributed in any wise to the accident; and it is
because we can not agree with this proposition, although we accept the doctrine on the Turntable and Torpedo cases, that we have thought of proper to discuss and to
consider that doctrine at length in this decision. As was said in case of Railroad Co. v. Stout (supra), "While it is the general rule in regard to an adult that entitle him to recover

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damages for an injury resulting from the fault or negligence of another he must himself have been free from fault, such is not the rule in regard to an infant of tender years.
The care and caution required of a child is according to his maturity and capacity only, and this is to be determined in each case by the circumstance of the case." As we think
we have shown, under the reasoning on which rests the doctrine of the Turntable and Torpedo cases, no fault which would relieve defendant of responsibility for injuries
resulting from negligence can be attributed to the plaintiff, a well-grown boy of 15 years of age, because of his entry upon defendant’s uninclosed premises without express
permission or invitation; but it is a wholly different question whether such a youth can be said to have been free from fault when he willfully and deliberately cut upon the
detonating cap, and placed a match to the contents, knowing, as he undoubtedly did, that his action would result in an explosion. On this point, which must be determined by
"the particular circumstances of this case," the doctrine laid down in the Turntable and Torpedo cases lends us no direct aid, although it is worthy of observation that in all of
the "Torpedo" and analogous cases to which our attention has been directed, the record discloses that the plaintiffs, is whose favor judgments have been affirmed, were of
such tender years that they were held not to have the capacity to understand the nature or character of the explosive instruments which fell into their hands.

In the case at bar, plaintiff at the time of the accident was well—grown youth of 15, more mature both mentally and physically than the average boy of his age; he had been to
sea as a cabin boy; was able to earn P2.50 a day as a mechanical draftsman thirty days after the injury was incurred; and the record discloses throughout that he was
exceptionally well qualified to take care. The evidence of record leaves no room for doubt that, despite his denials on the witness stands, he well knew the explosive character
of the cap with which he was amusing himself. The series of experiments made by him in his attempt to produce an explosion, as described by the little girl who was present,
admit of no other explanation. His attempt to discharge the cap by the use of electricity, followed by his efforts to explode it with a stone or a hammer, and the final success of
his endeavors brought about by the applications of a match to the contents of the cap, show clearly that he knew what he was about. Nor can there be any reasonable doubt
that he had reason to anticipate that the explosion might be dangerous, in view of the fact that the little girl, 9 years of age, who was with him at the time when he put the
match to the contents of the cap, became frightened and ran away.

True, he may not have known and probably did not know the precise nature of the explosion which might be expected from the ignition of the contents of the cap, and of
course he did not anticipate the resultant injuries which he incurred; but he well knew that a more or less dangerous explosion might be expected from his act, and yet he
willfully, recklessly, and knowingly produced the explosion. It would be going far to say that "according to his maturity and capacity" he exercised such "care and caution" as
might reasonably be required of him, or that the defendant or anyone else should be held civilly responsible for injuries incurred by him under such circumstances.

The law fixed no arbitrary age at which a minor can be said to have the necessary capacity to understand and appreciate the nature and consequences of his own acts, so as
to make it negligence on his part to fail to exercise with due care an precaution in the commission of such acts; and indeed it would be impracticable and perhaps impossible
so to do, for in the very nature of things the question of negligence necessarily depends on the ability of the minor to understand the character of his own acts and their
consequences; and the age at which a minor can be said to have such ability will necessarily vary in accordance with the varying nature of the infinite variety of acts which
may be done by him. But some idea of the presumed capacity of infants under the laws in force in these Islands may be gathered from an examination of the varying ages
fixed by our laws at which minors are conclusively presumed to be capable to exercising certain rights and incurring certain responsibilities, through it can not be said that
these provisions of law are of much practical assistance in cases such as that at bar, except so far as they illustrate the rule that the capacity of a minor to become
responsible for his own acts varies with the varying circumstances of each case. Under the provisions of the Penal code a minor over fifteen years of age is presumed to be
capable of committing a crime and is to be held criminally responsible therefore, although the fact that he is less than eighteen years of age will be taken into consideration as
an extenuating circumstance (Penal code, arts, 8 and 9). At 10 years of age a child may, under certain circumstances, choose which parent it prefers to live with (Code of Civil
Procedure, sec. 771). At 14 it may petition for the appointment of a guardian (Id., sec. 551), and may consent or refuse to be adopted (Id., sec. 765). And males of 14 and
females of 12 are capable of contracting of legal marriage (Civil Code, art. 83; G.O., No., 68, sec. 1).

We are satisfied that the plaintiff in this case had sufficient capacity and understanding to be sensible to the danger to which he exposed himself when he put the match to the
contents of the cap; that he was sui juris in the sense that his age and his experience qualified him to understand and appreciate the necessity for the exercise of that degree
of caution which would have avoided the injury which resulted from his own deliberate act; and that the injury incurred by him must be held to have been the direct and
immediate result of his own willful and reckless act, so that while it may be true that these injuries would not have been incurred but for the negligent act of the defendant in
leaving the caps exposed on its premises, nevertheless plaintiff’s own act was the proximate and principal cause of the accident which inflicted the injury.

The rule of the Roman law was: Quod quis ex culpa sua damnum sentit, non intelligitur damnum sentire. (Digest, book 50, tit. 17, rule 203.)

The partidas contain the following provisions:jgc:chanrobles.com.ph

"The just thing is that a man should suffer the damage which comes to him through his own fault, and that he can not demand reparation therefore from another." (Law 25, tit.
5 Partida 3.)

"And they even said that when a man received an injury through his own negligence he should blame himself for it." (Rule 22, tit. 34 Partida 7.)

"According to ancient sages, when a man received an injury through his own acts the grievance should be against himself and not against another." (Law 2, tit. 7 Partida 2.)

And while there does not appear to be anything in the Civil Code which expressly lays down the law touching contributory negligence in this jurisdiction, nevertheless, the
interpretation placed upon its provisions by the supreme court of Spain, and by this court in the case of Rakes v. Atlantic Gulf and Pacific Co., (7 Phil. Rep., 359), clearly deny
to the plaintiff in the case at bar the right to recover damages from the defendant, in whole or in part, for the injuries sustained by him.

The judgment of the supreme court of Spain of the 7th of March, 1902 (93 Jurispredencia Civil, 391), is directly in point. In that case the court

"According to the doctrine expressed in article 1902 of the Civil Code, fault or negligence is a source of obligation when between such negligence and the injury there exists,
the relation of cause and effect: but if the injury produced should not be the result of acts or omissions of a third party, the latter has no obligation to repair the same, although
such acts or omissions were imprudent or unlawful, and much less when it is shown that the immediate cause of the injury was the negligence of the injured party
himself."cralaw virtua1aw library

The same court, in its decision of June 12, 1900, said that "the existence of the alleged fault or negligence is not sufficient without proof that it, and no other cause, gave rise
to the damage."cralaw virtua1aw library

See also judgment of October 21, 1903.

To similar effect Scaevola, the learned Spanish writer, writing under that title in his Jurisprudencia del Codigo Civil (1902 Anuario, p. 455), commenting on the decision of
March 7, 1902, says that "in accordance with the doctrine expressed by article 1902 of the Civil Code, fault or negligence gives rise to an obligation when between it and the
damage there exists the relation of cause and effect’ but if the damage caused does not arise from acts or omissions of a third person, there is no obligation to make good
upon the latter, even though such acts or omissions be imprudent or illegal, and much less so when it is shown that the immediate cause of the damage has been the
recklessness the injured party himself."cralaw virtua1aw library

And again —

"In accordance with the fundamental principle of proof, that the burden thereof is upon the plaintiff, it is apparent that it is the duty of him who shall claim damages to establish
their existence. The decisions of April 9, 1896, and March 18, July 6, and September 27, 1898, have especially supported the principle, the first setting forth in detail the
necessary points of the proof, which are two: An act or omission on the part of the person who is to be charged with the liability, and the production of the damage by said act
or omission.

"This includes, by inference, the establishment of a relation of cause or effect between the act or the omission and the damage; the latter must be direct result of one of the
first two. As the decision of March 22, 1881, said, it is necessary that damages result immediately and directly from an act performed culpably and wrongfully’ ’necessarily
presupposing a legal ground for imputability.’" (Decision of October 29, 1877.)

"Negligence is not presumed, but be proven by him who alleges it." (Scaevola, Jurisprudencia del Codigo Civil, vol. 6, pp. 551, 552.)

(Cf. decisions of supreme court of Spain of June 12, 1900. and June 23, 1900.)

Finally, we think the doctrine is in this jurisdiction applicable to the case at bar was definitely settled in this court in the maturely considered case of Rakes v. Atlantic, Gulf and
Pacific Co. (supra), wherein we held that while "There are many cases (personal injury cases) in the supreme court of Spain in which the defendant was exonerated." on the
ground that "the negligence of the plaintiff was immediate cause of the casualty" (decisions of the 15th of January, the 19th of February, and the 7th of March, 1902, stated in
Alcubilla’s Index of that year); none of the cases decided by the supreme court of Spain "define the effect to be given the negligence of a plaintiff which contributed to his injury
as one of its causes, though not the principal one, and we left to seek the theory of the civil law in the law in the practice of another countries;" and in such cases we declared
the law in this jurisdiction to require the application of ’the principle of proportional damages," but expressly and definitely denied the right of recovery when the acts of the
injured party were the immediate causes of the accident.

The doctrine as laid down in that case as follows:

"Difficulty seems to be apprehended in deciding which acts of the injured party shall be considered immediate causes of the accident. The test is simple. Distinction must be
made between the accident and the injury, between the event itself, without which there could have been no accident, and those acts of the victim not entering into it,
independence of it, but contributing to his own proper hurt. For instance, the cause of the accident under review was the displacement of the crosspiece or the failure to

11
replace it. This produced the event giving occasion for damages — that is, sinking of the track and the sliding of the iron rails. To this event, the act of the plaintiff in walking by
the side of the car did not contribute, although it was an element of the damage which came to himself. Had the crosspiece been out of place wholly or partly through this act
or omission of duty, that would have been one of the determining causes of the event or accident, for which he would have been responsible. Where he contributes to the
principal occurrence, as one of its determining factors, he can not recover. Where, in conjunction with the occurrence, he contributes only to his own injury, he may recover
the amount that the defendant responsible for the event should pay for such injury, less a sum deemed a suitable equivalent for his own imprudence."We think it is quite clear
that under the doctrine thus stated, the immediate cause of the explosion , the accident which resulted in plaintiff’s injury, was his own act of putting a match to the contents of
the cap, and that having "contributed to the principal occurrence, as one of its determining factors, he can not recover."

We have not deemed it necessary to examine the effect of plaintiff’s action in picking up upon defendant’s premises the detonating caps, the property of the defendant, and
carrying them sway to the home of his friend, as interrupting the relation of cause and effect between the negligent act or omission of the defendant in leaving the caps
exposed on its premises and the injuries inflicted upon the plaintiff by the explosion of one of these caps. Under the doctrine of the Torpedo cases, such action on the part of
an infant of very tender years would have no effect in relieving defendant of responsibility, but whether in view of the well known facts admitted in defendant’s brief that "boys
are snappers-up of unconsidered trifles," a youth of the age and maturity of plaintiff should be deemed without fault in picking up the caps in question under all the
circumstances of this case, we neither discuss not decide.

Twenty days after the date of this decision let judgment be entered reversing the judgment of the court below, without costs to either party in this instance, and ten days
thereafter let the record be returned to the court wherein it originated, where judgment will be entered in favor of the defendant for the costs in first instance and the complaint
dismissed without day. So ordered.

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