HIDALGO ENTERPRISES, INC. vs. GUILLERMO BALANDAN, ANSELMA ANILA and THE COURT OF APPEALSFacts: Hidalgo Enterprises, Inc. "was the owner of an ice-plant factory where two tanks full of water, nine feet deep, for cooling purposes of its engine were installed. While the factory compound was surrounded with fence, the tanks themselves were not provided with any kind of fence or top covers. The edges of the tanks were barely a foot high from the surface of the ground. Through the wide gate entrance, which is continually open, motor vehicles hauling ice and persons buying said commodity passed, and any one could easily enter the said factory. There was no guard assigned on the gate. At about noon of April 16, 1948, plaintiff's son, Mario Balandan, while playing with and in company of other boys of his age entered the factory premises through the gate, to take a bath in one of said tanks; and while bathing, Mario sank to the bottom of the tank, to be fished out later, already a cadaver, having been died of "asphyxia secondary to drowning."CFI & CA - petitioner maintained an attractive nuisance (the tanks), and neglected to adopt the necessary precautions to avoid accidents to persons entering its premisesIssue: Is a swimming pool or water tank an instrumentality or appliance likely to attract the little children in play? In other words is the body of water an attractive nuisance?Ruling: Appealed decision is reversed and the Hidalgo Enterprises, Inc. is absolved from liability. No costs.Ration: No. Petitioner's tanks are not classified as attractive nuisance. The great majority of American decisions say no. The attractive nuisance doctrine generally is not applicable to bodies of water, artificial as well as natural, in the absence of some unusual condition or artificial feature other than the mere water and its location. There are numerous cases in which the attractive nuisance doctrine has not been held not to be applicable to ponds or reservoirs, pools of water, streams, canals, dams, ditches, culverts, drains, cesspools or sewer pools. The reason why a swimming pool or pond or reservoir of water is not considered an attractive nuisance was lucidly explained by the Indiana Appellate Court as follows:Nature has created streams, lakes and pools which attract children. Lurking in their waters is always the danger of drowning. Against this danger children are early instructed so that they are sufficiently presumed to know the danger; and if the owner of private property creates an artificial pool on his own property, merely duplicating the work of nature without adding any new danger, he is not liable because of having created an "attractive nuisance."

SOFIA FERNANDO, in her behalf and as the legal guardian of her minor children, ,petitioners,vs.THE HONORABLE COURT OF APPEALS AND CITY OF DAVAO,respondents.FACTS:1) 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 whereinBascon won2) 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.3) The bodies were removed by a fireman.4) The body of Joselito Garcia, was taken out by his uncle, Danilo Garcia and taken to the Regional Hospital but he died there.5) The City Engineer's office investigated the case and learned they entered the septic tank withoutclearancefrom it nor with the knowledge and consent of the market master.6) Since the septic tank was found to be almost empty, they were presumed to be the ones who did the re-emptying.7) Dr. Juan Abear of the City Health Office found them to have died from"asphyxia" - diminution of oxygen supply in the body andintake of toxic gas8) November 26, 1975: Basconsigned the purchase order

RTC: Dismissed the case CA (Jan. 1986): Reversed -law intended to protect the plight of the poor and the needy, the ignorant and theindigent

(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:) CA (Jan. 1990) GRANTED. The decision of this Court dated January 31, 1986 is REVERSED AND SET ASIDE in favor of RESPONDENDT DAVAO CITY.

ISSUES:

W/N Davao city is negligent and its negligence is the proximate cause therefore can be liable for damages

HELD:

NO. 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.

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.

DOCTRINE: ASSUMPTION OF RISK:

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. The fatal accident in this case would not have happened but for the victims' negligence.

WHEREFORE, the amended decision of the Court of Appeals dated January 11, 1990 is AFFIRMED. No costs

[G.R. No. 68102. July 16, 1992.]GEORGE MCKEE and ARACELI KOH MCKEE,Petitioners, v. INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA MANALO,Respondents.

[G.R. No. 68103. July 16, 1992]CARMEN DAYRIT KOH, LETICIA KOH, JULIETA KOH TUQUERO, ARACELI KOH MCKEE, ANTONIO KOH and ELIZABETH KOH TURLA,Petitioners, v. INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA MANALO,Respondents.

Facts:

Between nine and ten oclock in the morning of 8 January 1977, in Pulong Pulo Bridge along Mac Arthur Highway, between Angeles City and San Fernando, Pampanga, a head-on-collision took place between an International cargo truck, Loadstar, with Plate No. RF912-T Philippines `76 owned by private respondents, and driven by Ruben Galang, and a Ford Escort car bearing Plate No. S2-850 Pampanga 76 driven by Jose Koh.

Immediately before the collision, the cargo truck, which was loaded with two hundred (200) cavans of rice weighing about 10,000 kilos, was traveling southward from Angeles City to San Fernando Pampanga, and was bound for Manila. The Ford Escort, on the other hand, was on its way to Angeles City from San Fernando. When the northbound car was about ten (10) meters away from the southern approach of the bridge, two (2) boys suddenly darted from the right side of the road and into the lane of the car. The boys were moving back and forth, unsure of whether to cross all the way to the other side or turn back. Jose Koh blew the horn of the car, swerved to the left and entered the lane of the truck; he then switched on the headlights of the car, applied the brakes and thereafter attempted to return to his lane. Before he could do so, his car collided with the truck. The collision occurred in the lane of the truck, which was the opposite lane, on the said bridge.

An information was filed against Ruben Galang, charging him for reckless imprudence resulting in multiple homicide, physical injuries, and damage to property. He was found guilty beyond reasonable doubt of the charges in the information. The conviction was affirmed by the CA and achieved finality after the denial by the CA of his MR and the denial by the SC of his Petition for Review Thereafter, two civil cases were filed based on quasi delict, these were then consolidated.

The trial court dismissed the two civil cases finding the preponderance of evidence to be in favor of the respondents. The CA ruled that the decision appealed from shall be reversed and set aside and another one is rendered, ordering defendants-appellees to pay plaintiffs-appellants. A motion for reconsideration alleging improper appreciation of the facts was subsequently filed by private respondents on the basis of which the respondent Court set aside its previous decision and affirmed in toto the trial courts judgment based on the fact that Kohs car invaded the lane of the truck and the collision occurred while still in Galangs lane gave rise to the presumption that Koh was negligent.

Issue: Whether or not Jose Koh was negligent

Held: On the basis of the definition and the test of negligence, no negligence can be imputed to Koh. Any reasonable and ordinary prudent man would have tried to avoid running over the two boys by swerving the car away from where they were even if this would mean entering the opposite lane. Avoiding such immediate peril would be the natural course to take particularly where the vehicle in the opposite lane would be several meters away and could very well slow down, move to the side of the road and give way to the oncoming car.

THE EMERGENCY RULE: one who suddenly finds himself in a place of danger, and is required to act without time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence, if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.

Jose Koh adopted the best means possible in the given situation. This means he cannot be considered negligent.ASSUMING, ARGUENDO, THAT JOSE WAS NEGLIGENT, THE COLLISION STILL WOULD NOT BE IMPUTED TO HIM BECAUSE: 1. Proximate Cause: 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. Galangs negligent act of not slowing down or stopping and allowing the Escort to return to the right lane was the sufficient intervening cause and the actual cause of the tragedy (failure to take the necessary measures and the degree of care necessary to avoid the collision) The entry of the car into the lane of the truck would not have resulted in the collision had the latter heeded the emergency signals given by the former to slow down and give the car an opportunity to go back into its proper lane. Instead of slowing down and swerving to the far right of the road, which was the proper precautionary measure under the given circumstances, the truck driver continued at full speed towards the car. The truck drivers negligence becomes more apparent in view of the fact that the road is 7.50 meters wide while the car measures 1.598 meters and the truck, 2.286 meters, in width. This would mean that both car and truck could pass side by side with a clearance of 3.661 meters to spare. Furthermore, the bridge has a level sidewalk, which could have partially accommodated the truck. Any reasonable man finding himself in the given situation would have tried to avoid the car instead of meeting it head-on. Negligence of Galang apparent in the records: He himself said that his truck was running at 30 miles (48 kilometers) per hour along the bridge while the maximum speed allowed by law on a bridge52 is only 30 kilometers per hour. Under Article 2185 of the Civil Code, a person driving a vehicle is presumed negligent if at the time of the mishap, he was violating any traffic regulation. 2. Last Clear Chance Doctrine: A doctrine in the law of torts which states that the contributory negligence of the party injured will not defeat the claim for damages if it is shown that the defendant might, by the exercise of reasonable care and prudence, have avoided the consequences of the negligence of the injured party. In such cases, the person who had the last clear chance to avoid the mishap is considered in law solely responsible for the consequences thereof. A person who has the last clear chance or opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent or that of a third person imputed to the opponent is considered in law solely responsible for the consequences of the accident. The doctrine applies only in a situation where the plaintiff was guilty of prior or antecedent negligence but the defendant, who had the last fair chance to avoid the impending harm and failed to do so, is made liable for all the consequences of the accident notwithstanding the prior negligence of the plaintiff. Basically, the last clear chance was with Galang, as can be gleaned from the evidence presented.

Therefore, respondents are found, under Article 2180, directly and primarily responsible for the acts of their employee. Their negligence flows from the negligence of their employee. Such presumption is juris tantum (rebuttable) and not juris et de jure (conclusive). They did not present evidence that showed that the diligence of a good father of a family in the selection and supervision of their employee, Galang.

HEDY GAN y YU,Petitioner, v. THE HONORABLE COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES,Respondents. [G.R. No. L-44264. September 19, 1988.]

Doctrine: EMERGENCY RULE. A corollary rule is what is known in the law as the emergency rule. "Under that rule, one who suddenly finds himself in a place of danger, and is required to act without time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence, if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence."

Prior Proceedings: CFI Manila- Gan was convicted of Homicide thru Reckless Imprudence.CA- Judgment modified, Homicide thru simple imprudence.SC- Reversed CA, acquitted Gan.

Facts of the Case: Hedy Gan was driving a Toyota car along North Bay Boulevard, Tondo, Manila. While in front of house no. 694 of North Bay Boulevard, there were two vehicles, a truck and a jeepney parked on one side of the road, one following the other about two to three meters from each other. As the car driven by the accused approached the place where the two vehicles were parked, there was a vehicle coming from the opposite direction, followed by another which tried to overtake and bypass the one in front of it and thereby encroached the lane of the car driven by the accused. To avoid a head-on collision with the oncoming vehicle, the defendant swerved to the right and as a consequence, the front bumper of the Toyota Crown Sedan hit an old man who was about to cross the boulevard from south to north, pinning him against the rear of the parked jeepney. The force of the impact caused the parked jeepney to move forward hitting the rear of the parked truck ahead of it. The pedestrian was injured, the Toyota Sedan was damaged on its front, the jeep suffered damages on its rear and front parts, and the truck sustained scratches at the wooden portion of its rear. The body of Isidoro Casino was immediately brought to the hospital but was (pronounced) dead on arrival.

Issue: Did the CA erred in holding that when the petitioner saw a car travelling directly towards her, she should have stepped on the brakes immediately or in swerving her vehicle to the right should have also stepped on the brakes or lessened her speed, to avoid the death of a pedestrian?

Held and Ratio: YES.

The test for determining whether or not a person is negligent in doing an act whereby injury or damage results to the person or property of another is this: Would a prudent man in the position of the person to whom negligence is attributed foresee harm to the person injured as a reasonable consequence of the course about to be pursued? If so, the law imposes the duty on the doer to take precaution against its mischievous results and the failure to do so constitutes negligence.

Applying the emergency rule (as defined above), petitioner is not guilty of the crime. The amount of time afforded to the petitioner to react to the situation she was in should be taken into account for it is undeniable that the suggested course of action presupposes sufficient time for appellant to analyze the situation confronting her and to ponder on which of the different courses of action would result in the least possible harm to herself and to others.

Under the circumstances narrated by petitioner, we find that the appellate court is asking too much from a mere mortal like the petitioner who in the blink of an eye had to exercise her best judgment to extricate herself from a difficult and dangerous situation caused by the driver of the overtaking vehicle. Petitioner certainly could not be expected to act with all the coolness of a person under normal conditions. The danger confronting petitioner was real and imminent, threatening her very existence. She had no opportunity for rational thinking but only enough time to heed the very powerful instinct of self-preservation.

Also, the respondent court itself pronounced that the petitioner was driving her car within the legal limits. We therefore rule that the "emergency rule" enunciated above applies with full force to the case at bar and consequently absolve petitioner from any criminal negligence in connection with the incident under consideration.

VALENZUELA VS CAFacts: June 24, 19902 am: While driving from her restaurant at Araneta avenue towards the direction of Manila,Ma. Lourdes Valenzuela noticed that she had a flat tire so she parked along the sidewalk about 1 1/2 feet away, place her emergency lights and looked for help. While she was pointing her tools to the man who will help her fixed the tires, she was suddenly hit by another Mitsubishi Lancer driven by Richard Li who was intoxicated and she slammed accross his windshield and fell to the ground. The car was registered in the name of Alexander Commercial inc. She was sent to UERM where she stayed for20 daysand her leg wasamputatedand was replaced with an artificial one.In her complaint, Valenzuela asked for the payment of damages she suffered. However, Li defended that he was not negligent stating that he was driving only at 55kph and that it was raining very hard and it was difficult for him to see. Furthermore, he alleged that he was just trying to avoid an oncoming vehicle thats why he swerved to the right where he bumped Valenzuela. According to him, Valenzuelas car was not parked properly as it was almost at the middle and there were neither parking lights nor early warning device. RTC: Richard Li guilty ofgrossnegligenceand liable for damages under Article 2176 of the Civil Code.Alexander Commercial, Inc., Lis employer, jointly and severally liable for damages pursuant to Article 2180CA: there was ample evidence that the car was parked at the side but absolved Li's employer

Issue:1) Whether or notValenzuela was guilty of contributory negligence 2) Whether or not Alexander Commercial Inc as Lis employer should be held liable

Ruling:1) No, Valenzuela was not guilty of contributory negligence. Contributory negligence is conduct on the part of the injured party, contributing as a legal cause to the harm he has suffered, which falls below the standard to which he is required to conform for his own protection. Under emergency rule, an individual who suddenly finds himself in a situation of danger and is required to act without much time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence if he fails to undertake what subsequently and upon reflection may appear to be a better solution, unless the emergency was brought by his own negligence. She is not expected to run the entire boulevard in search for a parking zone or turn on a dark Street or alley where she would likely find no one to help her. 2) Yes, Alexander Commercial Inc should be held liable. Respondent employer is liable Not under theprinciple of respondeat superior, which holds the master liable for acts of the servant (must be in the course of business), but that of pater familias, in which the liability ultimately falls upon the employer, for his failure to exercise the diligence of a good father of the family in the selection and supervision of his employees. . Once evidence is introduced showing that the employer exercised the required amount of care in selecting its employees, half of the employers burden is overcome. The question of diligent supervision however, depends on the circumstances of employment.

Alexander Commercial, Inc. has not demonstrated, to our satisfaction that it exercised the care and diligence of a good father of the family in entrusting its company car to Li. No allegations were made as to whether or not the company took the steps necessary to determine or ascertain the driving proficiency and history of Li, to whom it gave full and unlimited use of a company car.

Separate concurring opinion of Vitug:Pursuant to Article 2180 of the Civil Code that acknowledges responsibility under a relationship of patria potestas, a person may be held accountable not only for his own direct culpable act or negligence but also for those of others albeit predicated on his own supposed failure to exercise due care in his supervisory authority and functions. In the case of an employer, that vicarious liability attaches only when the tortious conduct of the employee relates to, or is in the course of, his employment. The question to ask should be whether,-at the time of the damage or injury, the employee is engaged in the affairs or concerns of the employer or, independently, in that of his own. While an employer incurs no liability when an employees conduct, act or omission is beyond the range of employment, a minor deviation from the assigned task of an employee, however, does not affect the liability of an employer.

G.R. No. 83491 August 27, 1990MA-AO SUGAR CENTRAL CO., INC. and GUILLERMO ARANETA,petitioners,vs.HON. COURT OF APPEALS and HERMINIA FAMOSO,respondents.

FACTS:

On March 22, 1980, Famoso was riding with a co-employee in the caboose or "carbonera" of Plymouth No. 12, a cargo train of the petitioner, when the locomotive was suddenly derailed. He and his companion jumped off to escape injury, but the train fell on its side, caught his legs by its wheels and pinned him down. He was declared dead on the spot. The claims for death and other benefits having been denied by the petitioner, the herein private respondent filed suit in the Regional Trial Court of Bago City. Judge Marietta Hobilla-Alinio ruled in her favor but deducted from the total damages awarded 25% thereof for the decedent's contributory negligence and the total pension of P41,367.60 private respondent and her children would be receiving from the SSS for the next five years The widow appealed, claiming that the eductions were illegal. So did the petitioner, but on the ground that it was not negligent and therefore not liable at all. In its own decision, the Court of Appeals 2 sustained the rulings of the trial court except as to the contributory negligence of the deceased and disallowed the deductions protested by the private respondent.

ISSUE:Whether or not the respondent court is at fault for finding the petitioner guilty of negligence notwithstanding its defense of due diligence under Article 2176 of the Civil Code.

RULING:

To say the least, the Court views with regret the adamant refusal of petitioner Ma-ao Sugar Central to recompense the private respondent for the death of Julio Famoso, their main source of support, who was killed in line of duty while in its employ. It is not only a matter of law but also of compassion on which we are called upon to rule today. We shall state at the outset that on both counts the petition must fail.

Investigation of the accident revealed that the derailment of the locomotive was caused by protruding rails which had come loose because they were not connected and fixed in place by fish plates. Fish plates are described as strips of iron 8" to 12" long and 3 1/2" thick which are attached to the rails by 4 bolts, two on each side, to keep the rails aligned. Although they could be removed only with special equipment, the fish plates that should have kept the rails aligned could not be found at the scene of the accident.

There is no question that the maintenance of the rails, for the purpose inter alia of preventing derailments, was the responsibility of the petitioner, and that this responsibility was not discharged. According to Jose Treyes, its own witness, who was in charge of the control and supervision of its train operations, cases of derailment in the milling district were frequent and there were even times when such derailments were reported every hour. 3 The petitioner should therefore have taken more prudent steps to prevent such accidents instead of waiting until a life was finally lost because of its negligence.

The argument that no one had been hurt before because of such derailments is of course not acceptable. And neither are we impressed by the claim that the brakemen and the conductors were required to report any defect in the condition of the railways and to fill out prescribed forms for the purpose. For what is important is that the petitioner should act on these reports and not merely receive and file them. The fact that it is not easy to detect if the fish plates are missing is no excuse either. Indeed, it should stress all the more the need for the responsible employees of the petitioner to make periodic checks and actually go down to the railroad tracks and see if the fish plates were in place.It is argued that the locomotive that was derailed was on its way back and that it had passed the same rails earlier without accident. The suggestion is that the rails were properly aligned then, but that does not necessarily mean they were still aligned afterwards. It is possible that the fish plates were loosened and detached during its first trip and the rails were as a result already mis-aligned during the return trip. But the Court feels that even this was unlikely, for, as earlier noted, the fish plates were supposed to have been bolted to the rails and could be removed only with special tools. The fact that the fish plates were not found later at the scene of the mishap may show they were never there at all to begin with or had been removed long before.

At any rate, the absence of the fish plates whatever the cause or reason is by itself alone proof of the negligence of the petitioner. Res ipsa loquitur, bitches.