Republic of the Philippines Herran, and that for the purpose of delivery

SUPREME COURT thereof the cochero driving the team as

Manila defendant's employee tied the driving lines
of the horses to the front end of the delivery
EN BANC wagon and then went back inside of the
wagon for the purpose of unloading the
G.R. No. L-5691 December 27, 1910 forage to be delivered; that while unloading
the forage and in the act of carrying some of
S. D. MARTINEZ and his wife, CARMEN ONG it out, another vehicle drove by, the driver of
DE MARTINEZ, plaintiffs-appellees, which cracked a whip and made some other
vs. noises, which frightened the horses attached
WILLIAM VAN BUSKIRK, defendant-appellant. to the delivery wagon and they ran away,
and the driver was thrown from the inside of
Lionel D. Hargis for appellant. the wagon out through the rear upon the
Sanz and Oppisso for appellee. ground and was unable to stop the horses;
that the horses then ran up and on which
street they came into collision with the
carromata in which the plaintiff, Carmen
Ong de Martinez, was riding.
MORELAND, J.: The defendant himself was not with the vehicle on
the day in question.
The facts found by the trial court are undisputed by
either party in this case. They are — Upon these facts the court below found the
defendant guilty of negligence and gave judgment
That on the 11th day of September, 1908, against him for P442.50, with interest thereon at the
the plaintiff, Carmen Ong de Martinez, was rate of 6 per cent per annum from the 17th day of
riding in a carromata on Calle Real, district October, 1908, and for the costs of the action. The
of Ermita, city of Manila, P.I., along the left- case is before us on an appeal from that judgment.
hand side of the street as she was going,
when a delivery wagon belonging to the There is no general law of negligence in the
defendant used for the purpose of Philippine Islands except that embodied in the Civil
transportation of fodder by the defendant, Code. The provisions of that code pertinent to this
and to which was attached a pair of horses, case are —
came along the street in the opposite
direction to that the in which said plaintiff
Art. 1902. A person who by an act or
was proceeding, and that thereupon the
omission causes damage to another when
driver of the said plaintiff's carromata,
there is fault or negligence shall be obliged
observing that the delivery wagon of the
to repair the damage so done.
defendant was coming at great speed,
crowded close to the sidewalk on the left-
hand side of the street and stopped, in order Art. 1903. The obligation imposed by
to give defendant's delivery wagon an preceding article is demandable, not only for
opportunity to pass by, but that instead of personal acts and omissions, but also for
passing by the defendant's wagon and horses those of the persons for whom they should
ran into the carromata occupied by said be responsible.
plaintiff with her child and overturned it,
severely wounding said plaintiff by making The father, and on his death or incapacity
a serious cut upon her head, and also the mother, is liable for the damages caused
injuring the carromata itself and the harness by the minors who live with them.
upon the horse which was drawing it.
Guardians are liable for the damages caused
x x x           x x x          x x x by minors or incapacitated persons who are
under their authority and live with them.
These facts are not dispute, but the
defendant presented evidence to the effect Owners of directors of an establishment or
that the cochero, who was driving his enterprise are equally liable for the damages
delivery wagon at the time the accident caused by the employees in the service of
occurred, was a good servant and was the branches in which the latter may be
considered a safe and reliable cochero; that employed or on account of their duties.
the delivery wagon had sent to deliver some
forage at Paco Livery Stable on Calle
 The State is liable in this sense when it acts In our judgment, the cochero of the defendant was
through a special agent, but not when the not negligent in leaving the horses in the manner
damages should have been caused by the described by the evidence in this case, either under
official to whom properly it pertained to do Spanish or American jurisprudence.
the act performed, in which case the (Lynch vs. Nurdin, 1 Q. B., 422; Rumsey vs. Nelson,
provisions of the preceding article shall be 58 Vt., 590; Drake vs. Mount, 33 N. J. L., 442;
applicable. Hoboken Land and Improvement Co. vs. Lally, 48
N. J. L., 604; Wasmer vs. D. L. & W. R. R. Co., 80
Finally, masters or directors of arts and N. Y., 212.) lawphi1.net
trades are liable for the damages caused by
their pupils or apprentices while they are In the case of Hayman vs. Hewitt (Peake N. P. Cas.,
under their custody. pt. 2, p. 170), Lord Kenyon said:

The liability referred to in this article shall He was performing his duty while removing
cease when the persons mentioned therein the goods into the house, and, if every
prove that they employed all the diligence of person who suffered a cart to remain in the
a good father of a family to avoid the street while he took goods out of it was
damage. obliged to employ another to look after the
horses, it would be impossible for the
Passing the question whether or not an employer business of the metropolis to go on.
who has furnished a gentle and tractable team and a
trusty and capable driver is, under the last paragraph In the case of Griggs vs. Fleckenstein (14 Minn.,
of the above provisions, liable for the negligence of 81), the court said:
such driver in handling the team, we are of the
opinion that the judgment must be reversed upon the The degree of care required of the plaintiff,
ground that the evidence does not disclose that the or those in charged of his horse, at the time
cochero was negligent. of the injury, is that which would be
exercised by a person of ordinary care and
While the law relating to negligence in this prudence under like circumstances. It can
jurisdiction may possibly be some what different not be said that the fact of leaving the horse
from that in Anglo-Saxon countries, a question we unhitched is in itself negligence. Whether it
do not now discuss, the rules under which the fact of is negligence to leave a horse unhitched
negligence is determined are, nevertheless, generally must be depend upon the disposition of the
the same. That is to say, while the law designating horse; whether he was under the observation
the person responsible for a negligent act may not and control of some person all the time, and
be the same here as in many jurisdictions, the law many other circumstances; and is a question
determining what is a negligent act is the same here, to be determined by the jury from the facts
generally speaking, as elsewhere. (Supreme court of of each case.
Spain, 4 December, 1903; 16 May, 1893; 27 June,
1894; 9 April, 1896; 14 March, 1901; 2 March, In the case of Belles vs. Kellner (67 N. J. L., 255), it
1904; 7 February, 1905; 16 June, 1905; 23 June, was held that it was error on the part of the trial
1905; 13 April, 1903; 7 March, 1902; 12 June, 1900; court to refuse to charge that "it is not negligence for
2 March, 1907; 18 March, 1898; 3 June, 1901.) the driver of a quite, gentle horse to leave him
unhitched and otherwise unattended on the side of a
It appears from the undisputed evidence that the public highways while the driver is upon the
horses which caused the damage were gentle and sidewalk loading goods on the wagon." The said
tractable; that the cochero was experienced and court closed its opinion with these words:
capable; that he had driven one of the horses several
years and the other five or six months; that he had There was evidence which could have fully
been in the habit, during all that time, of leaving justified the jury in finding that the horse
them in the condition in which they were left on the was quite and gentle, and that the driver was
day of the accident; that they had never run away up upon the sidewalk loading goods on the
to that time and there had been, therefore, no wagon, at time of the alleged injury, and that
accident due to such practice; that to leave the horses the horse had been used for years in that
and assist in unloading the merchandise in the way without accident. The refusal of the trial
manner described on the day of the accident was the court to charge as requested left the jury free
custom of all cochero who delivered merchandise of to find was verdict against the defendant,
the character of that which was being delivered by although the jury was convinced that these
the cochero of the defendant on the day in question, facts were proven.lawphil.net
which custom was sanctioned by their employers.
In the case of Southworth vs. Ry. Co. (105 Mass., such force against a wharf properly built, as
342), it was held: to tear up some of the planks of the flooring,
this would be prima facie evidence of
That evidence that a servant, whom traders negligence on the part of the defendant's
employed to deliver goods, upon stopping agent in making the landing, unless upon the
with his horse and wagon to deliver a parcel whole evidence in the case this prima
at a house from fifty to a hundred rods from facie evidence was rebutted. As such
a railroad crossing, left the horse unfastened damage to a wharf is not ordinarily done by
for four or five minutes while he was in the a steamboat under control of her officers and
house, knowing that it was not afraid of cars, carefully managed by them, evidence that
and having used it for three or four months such damage was done in this case
without ever hitching it or knowing it to was prima facie, and, if unexplained,
start, is not conclusive, as a matter of law, of sufficient evidence of negligence on their
a want of due care on his part. part, and the jury might properly be so
instructed.
The duty, a violation of which is claimed to be
negligence in the respect in question, is to exercise There was presented in this case, and by the
reasonable care and prudence. Where reasonable plaintiffs themselves, not only the fact of the runway
care is employed in doing an act not itself illegal or and the accident resulting therefrom, but also the
inherently likely to produce damage to others, there conditions under which the runaway occurred. Those
will be no liability, although damage in fact ensues. conditions showing of themselves that the
(Milwaukee Ry. Co. vs. Arms, 91 U. S., 489; defendant's cochero was not negligent in the
Parrott vs. Wells, 15 Wall., 524; Brown vs. Kendall, management of the horse, the prima facie case in
6 Cushing, 292; Jackson Architectural Iron plaintiffs' favor, if any, was destroyed as soon as
Works vs. Hurlbut, 158 N. Y., 34 made.
Westerfield vs. Levis, 43 La. An., 63;
Niosi vs. Empire Steam Laundry, 117 Cal., 257.) It is a matter of common knowledge as well as proof
that it is the universal practice of merchants to
The act of defendant's driver in leaving the horses in deliver merchandise of the kind of that being
the manner proved was not unreasonable or delivered at the time of the injury, in the manner in
imprudent. Acts the performance of which has not which that was then being delivered; and that it is
proved destructive or injurious and which have, the universal practice to leave the horses in the
therefore, been acquiesced in by society for so long manner in which they were left at the time of the
a time that they have ripened into custom, can not be accident. This is the custom in all cities. It has not
held to be themselves unreasonable or imprudent. been productive of accidents or injuries. The public,
Indeed the very reason why they have been finding itself unprejudiced by such practice, has
permitted by society is that they beneficial rather acquiesced for years without objection. Ought the
than prejudicial.itc-alf Accidents sometimes happen public now, through the courts, without prior
and injuries result from the most ordinary acts of objection or notice, to be permitted to reverse the
life. But such are not their natural or customary practice of decades and thereby make culpable and
results. To hold that, because such an act once guilty one who had every reason and assurance to
resulted in accident or injury, the actor is necessarily believe that he was acting under the sanction of the
negligent, is to go far. The fact that the doctrine strongest of all civil forces, the custom of a people?
of res ipsa loquitur is sometimes successfully We think not.
invoked in such a case, does not in any sense
militate against the reasoning presented. That maxim The judgement is reversed, without special finding
at most only creates a prima facie case, and that as to costs. So ordered.
only in the absence of proof of the circumstances
under which the act complained of was performed. It G.R. No. L-9671 August 23, 1957
is something invoked in favor of the plaintiff before
defendant's case showing the conditions and CESAR L. ISAAC, Plaintiff-Appellant, vs. A. L.
circumstances under which the injury occurred, the AMMEN TRANSPORTATION CO.,
creative reason for the doctrine of res ipsa INC., Defendant-Appellee.
loquitur disappears. This is demonstrated by the
case of Inland and Seaboard Costing Co. vs. Angel S. Gamboa for appellant.
Tolson (139 U.S., 551), where the court said (p. Manuel O. Chan for appellee.
554):
BAUTISTA ANGELO, J.:
. . . The whole effect of the instruction in
question, as applied to the case before the A. L. Ammen Transportation Co., Inc., hereinafter
jury, was that if the steamboat, on a calm referred to as defendant, is a corporation engaged in
day and in smooth water, was thrown with
the business of transporting passengers by land for decision.chanroblesvirtualawlibrary chanrobles
compensation in the Bicol provinces and one of the virtual law library
lines it operates is the one connecting Legaspi City,
Albay with Naga City, Camarines Sur. One of the It appears that plaintiff boarded a bus of defendant
buses which defendant was operating is Bus No. 31. as paying passenger from Ligao, Albay, bound for
On May 31, 1951, plaintiff boarded said bus as a Pili, Camarines Sur, but before reaching his
passenger paying the required fare from Ligao, destination, the bus collided with a pick-up car
Albay bound for Pili, Camarines Sur, but before which was coming from the opposite direction and,
reaching his destination, the bus collided with a as a, result, his left arm was completely severed and
motor vehicle of the pick-up type coming from the fell inside the back part of the bus. Having this
opposite direction, as a result of which plaintiff's left background in view, and considering that plaintiff
arm was completely severed and the severed portion chose to hold defendant liable on its contractual
fell inside the bus. Plaintiff was rushed to a hospital obligation to carry him safely to his place of
in Iriga, Camarines Sur where he was given blood destination, it becomes important to determine the
transfusion to save his life. After four days, he was nature and extent of the liability of a common carrier
transferred to another hospital in Tabaco, Albay, to a passenger in the light of the law applicable in
where he under went treatment for three months. He this
was moved later to the Orthopedic Hospital where jurisdiction.chanroblesvirtualawlibrary chanrobles
he was operated on and stayed there for another two virtual law library
months. For these services, he incurred expenses
amounting to P623.40, excluding medical fees In this connection, appellant invokes the rule that,
which were paid by "when an action is based on a contract of carriage, as
defendant.chanroblesvirtualawlibrary chanrobles in this case, all that is necessary to sustain recovery
virtual law library is proof of the existence of the contract of the breach
thereof by act or omission", and in support thereof,
As an aftermath, plaintiff brought this action against he cites several Philippine cases. 1 With the ruling in
defendants for damages alleging that the collision mind, appellant seems to imply that once the
which resulted in the loss of his left arm was mainly contract of carriage is established and there is proof
due to the gross incompetence and recklessness of that the same was broken by failure of the carrier to
the driver of the bus operated by defendant and that transport the passenger safely to his destination, the
defendant incurred in culpa contractual arising from liability of the former attaches. On the other hand,
its non-compliance with its obligation to transport appellee claims that is a wrong presentation of the
plaintiff safely to his, destination. Plaintiff prays for rule. It claims that the decisions of this Court in the
judgment against defendant as follows: (1) P5,000 as cases cited do not warrant the construction sought to
expenses for his medical treatment, and P3,000 as be placed upon, them by appellant for a mere perusal
the cost of an artificial arm, or a total of P8,000; (2) thereof would show that the liability of the carrier
P6,000 representing loss of earning; (3) P75,000 for was predicated not upon mere breach of its contract
diminution of his earning capacity; (4) P50,000 as of carriage but upon the finding that its negligence
moral damages; and (5) P10,000 as attorneys' fees was found to be the direct or proximate cause of the
and costs of injury complained of. Thus, appellee contends that
suit.chanroblesvirtualawlibrary chanrobles virtual "if there is no negligence on the part of the common
law library carrier but that the accident resulting in injuries is
due to causes which are inevitable and which could
Defendant set up as special defense that the injury not have been avoided or anticipated
suffered by plaintiff was due entirely to the fault or notwithstanding the exercise of that high degree of
negligence of the driver of the pick-up car which care and skill which the carrier is bound to exercise
collided with the bus driven by its driver and to the for the safety of his passengers", neither the common
contributory negligence of plaintiff himself. carrier nor the driver is liable
Defendant further claims that the accident which therefor.chanroblesvirtualawlibrary chanrobles
resulted in the injury of plaintiff is one which virtual law library
defendant could not foresee or, though foreseen, was
inevitable.chanroblesvirtualawlibrary chanrobles We believe that the law concerning the liability of a
virtual law library common carrier has now suffered a substantial
modification in view of the innovations introduced
The after trial found that the collision occurred due by the new Civil Code. These innovations are the
to the negligence of the driver of the pick-up car and ones embodied in Articles 1733, 1755 and 1756 in
not to that of the driver of the bus it appearing that so far as the relation between a common carrier and
the latter did everything he could to avoid the same its passengers is concerned, which, for ready
but that notwithstanding his efforts, he was not able reference, we quote hereunder:
to avoid it. As a consequence, the court dismissed
complaint, with costs against plaintiff. This is an ART. 1733. Common carriers, from the nature of
appeal from said their business and for reasons of public policy, are
bound to observe extra ordinary diligence in the travel.chanroblesvirtualawlibrary chanrobles virtual
vigilance over the goods and for the safety of the law library
passengers transported by them according to all the
circumstances of each The question that now arises is: Has defendant
case.chanroblesvirtualawlibrary chanrobles virtual observed extraordinary diligence or the utmost
law library diligence of every cautious person, having due
regard for all circumstances, in avoiding the
Such extraordinary diligence in the vigilance over collision which resulted in the injury caused to the
the goods is further expressed in articles 1734, 1735, plaintiff?chanrobles virtual law library
and 1745, Nos. 5, 6, and 7, while the extraordinary
diligence for the safety of the passengers is further After examining the evidence in connection with
set forth in articles 1755 and how the collision occurred, the lower court made the
1756.chanroblesvirtualawlibrary chanrobles virtual following finding:
law library
Hemos examinado muy detenidamente las pruebas
ART. 1755. A common carrier is bound to carry the presentadas en la vista, principalmente, las
passengers safely as far as human care and foresight declaraciones que hemos acotado arriba, y hernos
can provide, using the utmost diligence of very Ilegado a la conclusion de que el demandado ha
cautious persons, with a due regard for all the hecho, todo cuanto estuviere de su parte para evitar
circumstances.chanroblesvirtualawlibrary chanroble el accidente, pero sin embargo, no ha podido
s virtual law library evitarlo.chanroblesvirtualawlibrary chanrobles
virtual law library
ART. 1756. In case of death of or injuries to
passengers, common carriers are presumed to have EI hecho de que el demandado, antes del choque,
been at fault or to have acted negligently, unless tuvo que hacer pasar su truck encima de los
they prove that they observed extraordinary montones de grava que estaban depositados en la
diligence as prescribed in articles 1733 and 1755. orilla del camino, sin que haya ido mas alla, por el
grave riesgo que corrian las vidas de sus pasajeros,
The Code Commission, in justifying this es prueba concluyente de lo que tenemos dicho, a
extraordinary diligence required of a common saber: - que el cuanto esuba de su parte, para evitar
carrier, says the following: el accidente, sin que haya podidoevitardo, por estar
fuera de su control.
A common carrier is bound to carry the passengers
safely as far as human care and foresight can The evidence would appear to support the above
provide, using the utmost deligence of very cautions finding. Thus, it appears that Bus No. 31,
persons, with due regard for all circumstances. This immediately prior to the collision, was running at a
extraordinary diligence required of common carriers moderate speed because it had just stopped at the
is calculated to protect the passengers from the school zone of Matacong, Polangui, Albay. The
tragic mishaps that frequently occur in connection pick-up car was at full speed and was running
with rapid modern transportation. This high standard outside of its proper lane. The driver of the bus,
of care is imperatively demanded by the upon seeing the manner in which the pick-up was
precariousness of human life and by the then running, swerved the bus to the very extreme
consideration that every person must in every way right of the road until its front and rear wheels have
be safeguarded against all injury. (Report of the gone over the pile of stones or gravel situated on the
Code Commission, pp. 35-36)" (Padilla, Civil Code rampart of the road. Said driver could not move the
of the Philippines, Vol. IV, 1956 ed., p. 197). bus farther right and run over a greater portion of the
pile, the peak of which was about 3 feet high,
From the above legal provisions, we can make the without endangering the safety of his passengers.
following restatement of the principles governing And notwithstanding all these efforts, the rear left
the liability of a common carrier: (1) the liability of side of the bus was hit by the pick-up
a carrier is contractual and arises upon breach of its car.chanroblesvirtualawlibrary chanrobles virtual
obligation. There is breach if it fails to exert law library
extraordinary diligence according to all
circumstances of each case; (2) a carrier is obliged to Of course, this finding is disputed by appellant who
carry its passenger with the utmost diligence of a cannot see eye to eye with the evidence for the
very cautious person, having due regard for all the appellee and insists that the collision took place
circumstances; (3) a carrier is presumed to be at fault because the driver of the bus was going at a fast
or to have acted negligently in case of death of, or speed. He contends that, having seen that a car was
injury to, passengers, it being its duty to prove that it coming from the opposite direction at a distance
exercised extraordinary diligence; and (4) the carrier which allows the use of moderate care and prudence
is not an insurer against all risks of to avoid an accident, and knowing that on the side of
the road along which he was going there was a pile the window, this being his position in the bus when
of gravel, the driver of the bus should have stopped the collision took place. It is for this reason that the
and waited for the vehicle from the opposite collision resulted in the severance of said left arm
direction to pass, and should have proceeded only from the body of appellant thus doing him a great
after the other vehicle had passed. In other words, damage. It is therefore apparent that appellant is
according to appellant, the act of the driver of the guilty of contributory negligence. Had he not placed
bus in squeezing his way through of the bus in his left arm on the window sill with a portion thereof
squeezing his way through between the oncoming protruding outside, perhaps the injury would have
pick-up and the pile of gravel under the been avoided as is the case with the other passenger.
circumstances was considered It is to be noted that appellant was the only victim of
negligent.chanroblesvirtualawlibrary chanrobles the collision.chanroblesvirtualawlibrary chanrobles
virtual law library virtual law library

But this matter is one of credibility and evaluation of It is true that such contributory negligence cannot
the evidence. This is evidence. This is the function relieve appellee of its liability but will only entitle it
of the trial court. The trial court has already spoken to a reduction of the amount of damage caused
on this matter as we have pointed out above. This is (Article 1762, new Civil Code), but this is a
also a matter of appreciation of the situation on the circumstance which further militates against the
part of the driver. While the position taken by position taken by appellant in this case.
appellant appeals more to the sense of caution that
one should observe in a given situation to avoid an It is the prevailing rule that it is negligence per se for
accident or mishap, such however can not always be a passenger on a railroad voluntarily or inadvertently
expected from one who is placed suddenly in a to protrude his arm, hand, elbow, or any other part of
predicament where he is not given enough time to his body through the window of a moving car
take the course of action as he should under ordinary beyond the outer edge of the window or outer
circumstances. One who is placed in such a surface of the car, so as to come in contact with
predicament cannot exercise such coolness or objects or obstacles near the track, and that no
accuracy of judgment as is required of him under recovery can be had for an injury which but for such
ordinary circumstances and he cannot therefore be negligence would not have been sustained. (10 C. J.
expected to observe the same judgment, care and 1139)chanrobles virtual law library
precaution as in the latter. For this reason,
authorities abound where failure to observe the same Plaintiff, (passenger) while riding on an interurban
degree of care that as ordinary prudent man would car, to flick the ashes, from his cigar, thrust his hand
exercise under ordinary circumstances when over the guard rail a sufficient distance beyond the
confronted with a sadden emergency was held to be side line of the car to bring it in contact with the
warranted and a justification to exempt the carrier trunk of a tree standing beside the track; the force of
from liability. Thus, it was held that "where a the blow breaking his wrist. Held, that he was guilty
carrier's employee is confronted with a sudden of contributory negligence as a matter of law.
emergency, the fact that he is obliged to act quickly (Malakia vs. Rhode Island Co., 89 A., 337.)
and without a chance for deliberation must be taken
into account, and he is held to the some degree of Wherefore, the decision appealed from is affirmed,
care that he would otherwise be required to exercise with cost against
in the absence of such emergency but must exercise appellant.chanroblesvirtualawlibrary chanrobles
only such care as any ordinary prudent person would virtual law library
exercise under like circumstances and conditions,
and the failure on his part to exercise the best I am of the opinion that the judgment should be
judgement the case renders possible does not affirmed.
establish lack of care and skill on his part which
renders the company, liable. . . . (13 C. J. S., 1412;
G.R. No. 130547               October 3, 2000
10 C. J.,970). Considering all the circumstances, we
are persuaded to conclude that the driver of the bus
has done what a prudent man could have done to LEAH ALESNA REYES, ROSE NAHDJA,
avoid the collision and in our opinion this relieves JOHNNY, and minors LLOYD and KRISTINE,
appellee from legibility under our all surnamed REYES, represented by their
law.chanroblesvirtualawlibrary chanrobles virtual mother, LEAH ALESNA REYES, petitioners,
law library vs.
SISTERS OF MERCY HOSPITAL, SISTER
ROSE PALACIO, DR. MARVIE BLANES, and
A circumstances which miliates against the stand of
DR. MARLYN RICO, respondents.
appellant is the fact borne out by the evidence that
when he boarded the bus in question, he seated
himself on the left side thereof resting his left arm DECISION
on the window sill but with his left elbow outside
MENDOZA, J.: convulsions. Dr. Blanes put him under oxygen, used
a suction machine, and administered hydrocortisone,
This is a petition for review of the decision1 of the temporarily easing the patient’s convulsions. When
Court of Appeals in CA-G.R. CV No. 36551 he regained consciousness, the patient was asked by
affirming the decision of the Regional Trial Court, Dr. Blanes whether he had a previous heart ailment
Branch IX, Cebu City which dismissed a complaint or had suffered from chest pains in the past. Jorge
for damages filed by petitioners against respondents. replied he did not.5 After about 15 minutes, however,
Jorge again started to vomit, showed restlessness,
The facts are as follows: and his convulsions returned. Dr. Blanes re-applied
the emergency measures taken before and, in
Petitioner Leah Alesna Reyes is the wife of the late addition, valium was administered. Jorge, however,
Jorge Reyes. The other petitioners, namely, Rose did not respond to the treatment and slipped into
Nahdja, Johnny, Lloyd, and Kristine, all surnamed cyanosis, a bluish or purplish discoloration of the
Reyes, were their children. Five days before his skin or mucous membrane due to deficient
death on January 8, 1987, Jorge had been suffering oxygenation of the blood. At around 2:00 a.m., Jorge
from a recurring fever with chills. After he failed to died. He was forty years old. The cause of his death
get relief from some home medication he was was "Ventricular Arrythemia Secondary to
taking, which consisted of analgesic, antipyretic, and Hyperpyrexia and typhoid fever."
antibiotics, he decided to see the doctor.
On June 3, 1987, petitioners filed before the
On January 8, 1987, he was taken to the Mercy Regional Trial Court of Cebu City a complaint6 for
Community Clinic by his wife. He was attended to damages against respondents Sisters of Mercy, Sister
by respondent Dr. Marlyn Rico, resident physician Rose Palacio, Dr. Marvie Blanes, Dr. Marlyn Rico,
and admitting physician on duty, who gave Jorge a and nurse Josephine Pagente. On September 24,
physical examination and took his medical history. 1987, petitioners amended their complaint to
She noted that at the time of his admission, Jorge implead respondent Mercy Community Clinic as
was conscious, ambulatory, oriented, coherent, and additional defendant and to drop the name of
with respiratory distress.2 Typhoid fever was then Josephine Pagente as defendant since she was no
prevalent in the locality, as the clinic had been longer connected with respondent hospital. Their
getting from 15 to 20 cases of typhoid per principal contention was that Jorge did not die of
month.3 Suspecting that Jorge could be suffering typhoid fever.7 Instead, his death was due to the
from this disease, Dr. Rico ordered a Widal Test, a wrongful administration of chloromycetin. They
standard test for typhoid fever, to be performed on contended that had respondent doctors exercised due
Jorge. Blood count, routine urinalysis, stool care and diligence, they would not have
examination, and malarial smear were also recommended and rushed the performance of the
made.4 After about an hour, the medical technician Widal Test, hastily concluded that Jorge was
submitted the results of the test from which Dr. Rico suffering from typhoid fever, and administered
concluded that Jorge was positive for typhoid fever. chloromycetin without first conducting sufficient
As her shift was only up to 5:00 p.m., Dr. Rico tests on the patient’s compatibility with said drug.
indorsed Jorge to respondent Dr. Marvie Blanes. They charged respondent clinic and its directress,
Sister Rose Palacio, with negligence in failing to
Dr. Marvie Blanes attended to Jorge at around six in provide adequate facilities and in hiring negligent
the evening. She also took Jorge’s history and gave doctors and nurses.8
him a physical examination. Like Dr. Rico, her
impression was that Jorge had typhoid fever. Respondents denied the charges. During the pre-trial
Antibiotics being the accepted treatment for typhoid conference, the parties agreed to limit the issues on
fever, she ordered that a compatibility test with the the following: (1) whether the death of Jorge Reyes
antibiotic chloromycetin be done on Jorge. Said test was due to or caused by the negligence,
was administered by nurse Josephine Pagente who carelessness, imprudence, and lack of skill or
also gave the patient a dose of triglobe. As she did foresight on the part of defendants; (2) whether
not observe any adverse reaction by the patient to respondent Mercy Community Clinic was negligent
chloromycetin, Dr. Blanes ordered the first five in the hiring of its employees; and (3) whether either
hundred milligrams of said antibiotic to be party was entitled to damages. The case was then
administered on Jorge at around 9:00 p.m. A second heard by the trial court during which, in addition to
dose was administered on Jorge about three hours the testimonies of the parties, the testimonies of
later just before midnight. doctors as expert witnesses were presented.

At around 1:00 a.m. of January 9, 1987, Dr. Blanes Petitioners offered the testimony of Dr. Apolinar
was called as Jorge’s temperature rose to 41°C. The Vacalares, Chief Pathologist at the Northern
patient also experienced chills and exhibited Mindanao Training Hospital, Cagayan de Oro City.
respiratory distress, nausea, vomiting, and On January 9, 1987, Dr. Vacalares performed an
autopsy on Jorge Reyes to determine the cause of his
death. However, he did not open the skull to Petitioners raise the following assignment of errors:
examine the brain. His findings9 showed that the
gastro-intestinal tract was normal and without any I. THE HONORABLE COURT OF
ulceration or enlargement of the nodules. Dr. APPEALS COMMITTED A REVERSIBLE
Vacalares testified that Jorge did not die of typhoid ERROR WHEN IT RULED THAT THE
fever. He also stated that he had not seen a patient DOCTRINE OF RES IPSA LOQUITUR IS
die of typhoid fever within five days from the onset NOT APPLICABLE IN THE INSTANT
of the disease. CASE.

For their part, respondents offered the testimonies of II. THE HONORABLE COURT OF
Dr. Peter Gotiong and Dr. Ibarra Panopio. Dr. APPEALS COMMITTED REVERSIBLE
Gotiong is a diplomate in internal medicine whose ERROR WHEN IT MADE AN
expertise is microbiology and infectious diseases. He UNFOUNDED ASSUMPTION THAT THE
is also a consultant at the Cebu City Medical Center LEVEL OF MEDICAL PRACTICE IS
and an associate professor of medicine at the South LOWER IN ILIGAN CITY.
Western University College of Medicine in Cebu
City. He had treated over a thousand cases of III. THE HONORABLE COURT OF
typhoid patients. According to Dr. Gotiong, the APPEALS GRAVELY ERRED WHEN IT
patient’s history and positive Widal Test results ratio RULED FOR A LESSER STANDARD OF
of 1:320 would make him suspect that the patient CARE AND DEGREE OF DILIGENCE
had typhoid fever. As to Dr. Vacalares’ observation FOR MEDICAL PRACTICE IN ILIGAN
regarding the absence of ulceration in Jorge’s gastro- CITY WHEN IT APPRECIATE[D] NO
intestinal tract, Dr. Gotiong said that such DOCTOR’S NEGLIGENCE IN THE
hyperplasia in the intestines of a typhoid victim may TREATMENT OF JORGE REYES.
be microscopic. He noted that since the toxic effect
of typhoid fever may lead to meningitis, Dr. Petitioner’s action is for medical malpractice. This is
Vacalares’ autopsy should have included an a particular form of negligence which consists in the
examination of the brain.10 failure of a physician or surgeon to apply to his
practice of medicine that degree of care and skill
The other doctor presented was Dr. Ibarra Panopio, a which is ordinarily employed by the profession
member of the American Board of Pathology, generally, under similar conditions, and in like
examiner of the Philippine Board of Pathology from surrounding circumstances.12 In order to successfully
1978 to 1991, fellow of the Philippine Society of pursue such a claim, a patient must prove that the
Pathologist, associate professor of the Cebu Institute physician or surgeon either failed to do something
of Medicine, and chief pathologist of the Andres which a reasonably prudent physician or surgeon
Soriano Jr. Memorial Hospital in Toledo City. Dr. would have done, or that he or she did something
Panopio stated that although he was partial to the use that a reasonably prudent physician or surgeon
of the culture test for its greater reliability in the would not have done, and that the failure or action
diagnosis of typhoid fever, the Widal Test may also caused injury to the patient.13 There are thus four
be used. Like Dr. Gotiong, he agreed that the 1:320 elements involved in medical negligence cases,
ratio in Jorge’s case was already the maximum by namely: duty, breach, injury, and proximate
which a conclusion of typhoid fever may be made. causation.
No additional information may be deduced from a
higher dilution.11 He said that Dr. Vacalares’ autopsy In the present case, there is no doubt that a
on Jorge was incomplete and thus inconclusive. physician-patient relationship existed between
respondent doctors and Jorge Reyes. Respondents
On September 12, 1991, the trial court rendered its were thus duty-bound to use at least the same level
decision absolving respondents from the charges of of care that any reasonably competent doctor would
negligence and dismissing petitioners’ action for use to treat a condition under the same
damages. The trial court likewise dismissed circumstances. It is breach of this duty which
respondents’ counterclaim, holding that, in seeking constitutes actionable malpractice.14 As to this aspect
damages from respondents, petitioners were of medical malpractice, the determination of the
impelled by the honest belief that Jorge’s death was reasonable level of care and the breach thereof,
due to the latter’s negligence. expert testimony is essential. Inasmuch as the causes
of the injuries involved in malpractice actions are
Petitioners brought the matter to the Court of determinable only in the light of scientific
Appeals. On July 31, 1997, the Court of Appeals knowledge, it has been recognized that expert
affirmed the decision of the trial court. testimony is usually necessary to support the
conclusion as to causation.15
Hence this petition.
Res Ipsa Loquitur
There is a case when expert testimony may be Petitioners asserted in the Court of Appeals that the
dispensed with, and that is under the doctrine of res doctrine of res ipsa loquitur applies to the present
ipsa loquitur. As held in Ramos v. Court of case because Jorge Reyes was merely experiencing
Appeals:16 fever and chills for five days and was fully
conscious, coherent, and ambulant when he went to
Although generally, expert medical testimony is the hospital. Yet, he died after only ten hours from
relied upon in malpractice suits to prove that a the time of his admission.
physician has done a negligent act or that he has
deviated from the standard medical procedure, when This contention was rejected by the appellate court.
the doctrine of res ipsa loquitor is availed by the
plaintiff, the need for expert medical testimony is Petitioners now contend that all requisites for the
dispensed with because the injury itself provides the application of res ipsa loquitur were present,
proof of negligence. The reason is that the general namely: (1) the accident was of a kind which does
rule on the necessity of expert testimony applies not ordinarily occur unless someone is negligent; (2)
only to such matters clearly within the domain of the instrumentality or agency which caused the
medical science, and not to matters that are within injury was under the exclusive control of the person
the common knowledge of mankind which may be in charge; and (3) the injury suffered must not have
testified to by anyone familiar with the been due to any voluntary action or contribution of
facts. Ordinarily, only physicians and surgeons of the person injured.18
skill and experience are competent to testify as to
whether a patient has been treated or operated upon The contention is without merit. We agree with the
with a reasonable degree of skill and care. However, ruling of the Court of Appeals. In the Ramos case,
testimony as to the statements and acts of physicians the question was whether a surgeon, an
and surgeons, external appearances, and manifest anesthesiologist, and a hospital should be made
conditions which are observable by any one may be liable for the comatose condition of a patient
given by non-expert witnesses. Hence, in cases scheduled for cholecystectomy.19 In that case, the
where the res ipsa loquitur is applicable, the court is patient was given anesthesia prior to her operation.
permitted to find a physician negligent upon proper Noting that the patient was neurologically sound at
proof of injury to the patient, without the aid of the time of her operation, the Court applied the
expert testimony, where the court from its fund of doctrine of res ipsa loquitur as mental brain damage
common knowledge can determine the proper does not normally occur in a gallblader operation in
standard of care. Where common knowledge and the absence of negligence of the anesthesiologist.
experience teach that a resulting injury would not Taking judicial notice that anesthesia procedures had
have occurred to the patient if due care had been become so common that even an ordinary person
exercised, an inference of negligence may be drawn could tell if it was administered properly, we
giving rise to an application of the doctrine of res allowed the testimony of a witness who was not an
ipsa loquitur without medical evidence, which is expert. In this case, while it is true that the patient
ordinarily required to show not only what occurred died just a few hours after professional medical
but how and why it occurred. When the doctrine is assistance was rendered, there is really nothing
appropriate, all that the patient must do is prove a unusual or extraordinary about his death. Prior to his
nexus between the particular act or omission admission, the patient already had recurring fevers
complained of and the injury sustained while under and chills for five days unrelieved by the analgesic,
the custody and management of the defendant antipyretic, and antibiotics given him by his wife.
without need to produce expert medical testimony to This shows that he had been suffering from a serious
establish the standard of care. Resort to res ipsa illness and professional medical help came too late
loquitor is allowed because there is no other way, for him.
under usual and ordinary conditions, by which the
patient can obtain redress for injury suffered by him. Respondents alleged failure to observe due care was
not immediately apparent to a layman so as to justify
Thus, courts of other jurisdictions have applied the application of res ipsa loquitur. The question
doctrine in the following situations: leaving of a required expert opinion on the alleged breach by
foreign object in the body of the patient after an respondents of the standard of care required by the
operation, injuries sustained on a healthy part of the circumstances. Furthermore, on the issue of the
body which was not under, or in the area, of correctness of her diagnosis, no presumption of
treatment, removal of the wrong part of the body negligence can be applied to Dr. Marlyn Rico.As
when another part was intended, knocking out a held in Ramos:
tooth while a patient’s jaw was under anesthetic for
the removal of his tonsils, and loss of an eye while . . . . Res ipsa loquitur is not a rigid or ordinary
the patient was under the influence of anesthetic, doctrine to be perfunctorily used but a rule to be
during or following an operation for appendicitis, cautiously applied, depending upon the
among others.17 circumstances of each case. It is generally restricted
to situations in malpractice cases where a layman is
able to say, as a matter of common knowledge and Q But you have not performed an autopsy of a
observation, that the consequences of professional patient who died of typhoid fever?
care were not as such as would ordinarily have
followed if due care had been exercised. A A I have not seen one.
distinction must be made between the failure to
secure results, and the occurrence of something Q And you testified that you have never seen a
more unusual and not ordinarily found if the service patient who died of typhoid fever within five days?
or treatment rendered followed the usual procedure
of those skilled in that particular practice. It must be A I have not seen one.
conceded that the doctrine of res ipsa loquitur  can
have no application in a suit against a physician or a Q How many typhoid fever cases had you seen
surgeon which involves the merits of a diagnosis or while you were in the general practice of medicine?
of a scientific treatment. The physician or surgeon is
not required at his peril to explain why any
A In our case we had no widal test that time so we
particular diagnosis was not correct, or why any
cannot consider that the typhoid fever is like this and
particular scientific treatment did not produce the
like that. And the widal test does not specify the
desired result.20
time of the typhoid fever.
Specific Acts of Negligence
Q The question is: how many typhoid fever cases
had you seen in your general practice regardless of
We turn to the question whether petitioners have the cases now you practice?
established specific acts of negligence allegedly
committed by respondent doctors.
A I had only seen three cases.
Petitioners contend that: (1) Dr. Marlyn Rico hastily
Q And that was way back in 1964?
and erroneously relied upon the Widal test,
diagnosed Jorge’s illness as typhoid fever, and
immediately prescribed the administration of the A Way back after my training in UP.
antibiotic chloromycetin;21 and (2) Dr. Marvie
Blanes erred in ordering the administration of the Q Clinically?
second dose of 500 milligrams of chloromycetin
barely three hours after the first was A Way back before my training.
given.22 Petitioners presented the testimony of Dr.
Apolinar Vacalares, Chief Pathologist of the He is thus not qualified to prove that Dr. Marlyn
Northern Mindanao Training Hospital, Cagayan de Rico erred in her diagnosis. Both lower courts were
Oro City, who performed an autopsy on the body of therefore correct in discarding his testimony, which
Jorge Reyes. Dr. Vacalares testified that, based on is really inadmissible.
his findings during the autopsy, Jorge Reyes did not
die of typhoid fever but of shock undetermined, In Ramos, the defendants presented the testimony of
which could be due to allergic reaction or a pulmonologist to prove that brain injury was due to
chloromycetin overdose. We are not persuaded. oxygen deprivation after the patient had
bronchospasms24 triggered by her allergic response
First. While petitioners presented Dr. Apolinar to a drug,25 and not due to faulty intubation by the
Vacalares as an expert witness, we do not find him anesthesiologist. As the issue was whether the
to be so as he is not a specialist on infectious intubation was properly performed by an
diseases like typhoid fever. Furthermore, although anesthesiologist, we rejected the opinion of the
he may have had extensive experience in performing pulmonologist on the ground that he was not: (1) an
autopsies, he admitted that he had yet to do one on anesthesiologist who could enlighten the court about
the body of a typhoid victim at the time he anesthesia practice, procedure, and their
conducted the postmortem on Jorge Reyes. It is also complications; nor (2) an allergologist who could
plain from his testimony that he has treated only properly advance expert opinion on allergic
about three cases of typhoid fever. Thus, he testified mediated processes; nor (3) a pharmacologist who
that:23 could explain the pharmacologic and toxic effects of
the drug allegedly responsible for the
ATTY. PASCUAL: bronchospasms.

Q Why? Have you not testified earlier that you have Second. On the other hand, the two doctors
never seen a patient who died of typhoid fever? presented by respondents clearly were experts on the
subject. They vouched for the correctness of Dr.
A In autopsy. But, that was when I was a resident Marlyn Rico’s diagnosis. Dr. Peter Gotiong, a
physician yet. diplomate whose specialization is infectious diseases
and microbiology and an associate professor at the
Southwestern University College of Medicine and A I would then think of toxemia, which was toxic
the Gullas College of Medicine, testified that he has meningitis and probably a toxic meningitis because
already treated over a thousand cases of typhoid of the high cardiac rate.
fever.26 According to him, when a case of typhoid
fever is suspected, the Widal test is normally Q Even if the same patient who, after having given
used,27 and if the 1:320 results of the Widal test on intramuscular valium, became conscious and
Jorge Reyes had been presented to him along with coherent about 20 minutes later, have seizure and
the patient’s history, his impression would also be cyanosis and rolling of eyeballs and vomitting . . .
that the patient was suffering from typhoid and death: what significance would you attach to
fever.28 As to the treatment of the disease, he stated this development?
that chloromycetin was the drug of choice.29 He also
explained that despite the measures taken by A We are probably dealing with typhoid to
respondent doctors and the intravenous meningitis.
administration of two doses of chloromycetin,
complications of the disease could not be Q In such case, Doctor, what finding if any could
discounted. His testimony is as follows:30 you expect on the post-mortem examination?

ATTY. PASCUAL: A No, the finding would be more on the meninges or

covering of the brain.
Q If with that count with the test of positive for 1 is
to 320, what treatment if any would be given? Q And in order to see those changes would it require
opening the skull?
A If those are the findings that would be presented
to me, the first thing I would consider would be A Yes.
typhoid fever.
As regards Dr. Vacalares’ finding during the autopsy
Q And presently what are the treatments commonly that the deceased’s gastro-intestinal tract was
used? normal, Dr. Rico explained that, while
hyperplasia31 in the payer’s patches or layers of the
A Drug of choice of chloramphenical. small intestines is present in typhoid fever, the same
may not always be grossly visible and a microscope
Q Doctor, if given the same patient and after you was needed to see the texture of the cells. 32
have administered chloramphenical about 3 1/2
hours later, the patient associated with chills, Respondents also presented the testimony of Dr.
temperature - 41oC, what could possibly come to Ibarra T. Panopio who is a member of the Philippine
your mind? and American Board of Pathology, an examiner of
the Philippine Board of Pathology, and chief
A Well, when it is change in the clinical finding, you pathologist at the MetroCebu Community Hospital,
have to think of complication. Perpetual Succor Hospital, and the Andres Soriano
Jr. Memorial Medical Center. He stated that, as a
Q And what will you consider on the complication clinical pathologist, he recognized that the Widal
of typhoid? test is used for typhoid patients, although he did not
encourage its use because a single test would only
A One must first understand that typhoid fever is give a presumption necessitating that the test be
toximia. The problem is complications are caused by repeated, becoming more conclusive at the second
toxins produced by the bacteria . . . whether you and third weeks of the disease.33 He corroborated Dr.
have suffered complications to think of -- heart toxic Gotiong’s testimony that the danger with typhoid
myocardities; then you can consider a toxic fever is really the possible complications which
meningitis and other complications and perforations could develop like perforation, hemorrhage, as well
and bleeding in the ilium. as liver and cerebral complications.34 As regards the
1:320 results of the Widal test on Jorge Reyes, Dr.
Q Even that 40-year old married patient who Panopio stated that no additional information could
received medication of chloromycetin of 500 be obtained from a higher ratio.35 He also agreed
milligrams intravenous, after the skin test, and with Dr. Gotiong that hyperplasia in the payer’s
received a second dose of chloromycetin of 500 patches may be microscopic.36
miligrams, 3 hours later, the patient developed chills
. . . rise in temperature to 41oC, and then about 40 Indeed, the standard contemplated is not what is
minutes later the temperature rose to 100oF, cardiac actually the average merit among all known
rate of 150 per minute who appeared to be coherent, practitioners from the best to the worst and from the
restless, nauseating, with seizures: what significance most to the least experienced, but the reasonable
could you attach to these clinical changes? average merit among the ordinarily good
physicians.37 Here, Dr. Marlyn Rico did not depart (Decision, pp. 16-17) Once more, this Court rejects
from the reasonable standard recommended by the any claim of professional negligence in this regard.
experts as she in fact observed the due care required
under the circumstances. Though the Widal test is ....
not conclusive, it remains a standard diagnostic test
for typhoid fever and, in the present case, greater As regards anaphylactic shock, the usual way of
accuracy through repeated testing was rendered guarding against it prior to the administration of a
unobtainable by the early death of the patient. The drug, is the skin test of which, however, it has been
results of the Widal test and the patient’s history of observed: "Skin testing with haptenic drugs is
fever with chills for five days, taken with the fact generally not reliable. Certain drugs cause
that typhoid fever was then prevalent as indicated by nonspecific histamine release, producing a weal-
the fact that the clinic had been getting about 15 to and-flare reaction in normal individuals.
20 typhoid cases a month, were sufficient to give Immunologic activation of mast cells requires a
upon any doctor of reasonable skill the impression polyvalent allergen, so a negative skin test to a
that Jorge Reyes had typhoid fever. univalent haptenic drug does not rule out
anaphylactic sensitivity to that drug." (Terr,
Dr. Rico was also justified in recommending the "Anaphylaxis and Urticaria" in Basic and Clinical
administration of the drug chloromycetin, the drug Immunology, p. 349) What all this means legally is
of choice for typhoid fever. The burden of proving that even if the deceased suffered from an
that Jorge Reyes was suffering from any other anaphylactic shock, this, of itself, would not yet
illness rested with the petitioners. As they failed to establish the negligence of the appellee-physicians
present expert opinion on this, preponderant for all that the law requires of them is that they
evidence to support their contention is clearly perform the standard tests and perform standard
absent. procedures. The law cannot require them to predict
every possible reaction to all drugs administered.
Third. Petitioners contend that respondent Dr. The onus probandi was on the appellants to
Marvie Blanes, who took over from Dr. Rico, was establish, before the trial court, that the appellee-
negligent in ordering the intravenous administration physicians ignored standard medical procedure,
of two doses of 500 milligrams of chloromycetin at prescribed and administered medication with
an interval of less than three hours. Petitioners claim recklessness and exhibited an absence of the
that Jorge Reyes died of anaphylactic shock38 or competence and skills expected of general
possibly from overdose as the second dose should practitioners similarly situated.39
have been administered five to six hours after the
first, per instruction of Dr. Marlyn Rico. As held by Fourth. Petitioners correctly observe that the
the Court of Appeals, however: medical profession is one which, like the business of
a common carrier, is affected with public interest.
That chloromycetin was likewise a proper Moreover, they assert that since the law imposes
prescription is best established by medical authority. upon common carriers the duty of observing
Wilson, et. al., in Harrison’s Principle of Internal extraordinary diligence in the vigilance over the
Medicine, 12th ed. write that chlorampenicol (which goods and for the safety of the
is the generic of chloromycetin) is the drug of choice passengers,40 physicians and surgeons should have
for typhoid fever and that no drug has yet proven the same duty toward their patients.41 They also
better in promoting a favorable clinical response. contend that the Court of Appeals erred when it
"Chlorampenicol (Chloromycetin) is specifically allegedly assumed that the level of medical practice
indicated for bacterial meningitis, typhoid fever, is lower in Iligan City, thereby reducing the standard
rickettsial infections, bacteriodes infections, etc." of care and degree of diligence required from
(PIMS Annual, 1994, p. 211) The dosage likewise physicians and surgeons in Iligan City.
including the first administration of five hundred
milligrams (500 mg.) at around nine o’clock in the The standard of extraordinary diligence is peculiar to
evening and the second dose at around 11:30 the common carriers. The Civil Code provides:
same night was still within medically acceptable
limits, since the recommended dose of Art. 1733. Common carriers, from the nature of their
chloromycetin is one (1) gram every six (6) business and for reasons of public policy, are bound
hours. (cf. Pediatric Drug Handbook, 1st Ed., to observe extraordinary diligence in the vigilance
Philippine Pediatric Society, Committee on over the goods and for the safety of the passengers
Therapeutics and Toxicology, 1996). The transported by them, according to the circumstances
intravenous route is likewise correct. (Mansser, of each case. . . .
O’Nick, Pharmacology and Therapeutics) Even if
the test was not administered by the physician-on- The practice of medicine is a profession engaged in
duty, the evidence introduced that it was Dra. Blanes only by qualified individuals.1âwphi1 It is a right
who interpreted the results remain uncontroverted. earned through years of education, training, and by
first obtaining a license from the state through The antecedent facts are briefly narrated by the trial
professional board examinations. Such license may, court, as follows:
at any time and for cause, be revoked by the
government. In addition to state regulation, the From the evidence presented we see
conduct of doctors is also strictly governed by the the following facts: On November 7,
Hippocratic Oath, an ancient code of discipline and 1975, Bibiano Morta, market master
ethical rules which doctors have imposed upon of the Agdao Public Market filed a
themselves in recognition and acceptance of their requisition request with the Chief of
great responsibility to society. Given these Property of the City Treasurer's
safeguards, there is no need to expressly require of Office for the re-emptying of the
doctors the observance of "extraordinary" diligence. septic tank in Agdao. An invitation
As it is now, the practice of medicine is already to bid was issued to Aurelio
conditioned upon the highest degree of diligence. Bertulano, Lito Catarsa, Feliciano
And, as we have already noted, the standard Bascon, Federico Bolo and Antonio
contemplated for doctors is simply the reasonable Suñer, Jr. Bascon won the bid. On
average merit among ordinarily good physicians. November 26, 1975 Bascon was
That is reasonable diligence for doctors or, as the notified and he signed the purchase
Court of Appeals called it, the reasonable "skill and order. However, before such date,
competence . . . that a physician in the same or specifically on November 22, 1975,
similar locality . . . should apply." bidder Bertulano with four other
companions namely Joselito Garcia,
WHEREFORE, the instant petition is DENIED and William Liagoso, Alberto Fernando
the decision of the Court of Appeals is AFFIRMED. and Jose Fajardo, Jr. were found
dead inside the septic tank. The
SO ORDERED. bodies were removed by a fireman.
One body, that of Joselito Garcia,
G.R. No. 92087 May 8, 1992 was taken out by his uncle, Danilo
Garcia and taken to the Regional
SOFIA FERNANDO, in her behalf and as the Hospital but he expired there. The
legal guardian of her minor children, namely: City Engineer's office investigated
ALBERTO & ROBERTO, all surnamed the case and learned that the five
FERNANDO, ANITA GARCIA, NICOLAS victims entered the septic tank
LIAGOSO, ROSALIA BERTULANO, in her without clearance from it nor with
behalf and as the legal guardian of her minor the knowledge and consent of the
children, namely: EDUARDO, ROLANDO, market master. In fact, the septic
DANIEL, AND JOCELYN, all surnamed tank was found to be almost empty
BERTULANO, PRIMITIVA FAJARDO in her and the victims were presumed to be
behalf and as legal guardian of her minor the ones who did the re-emptying.
children, namely: GILBERT, GLEN, JOCELYN Dr. Juan Abear of the City Health
AND JOSELITO, all surnamed FAJARDO, and Office autopsied the bodies and in
EMETERIA LIAGOSO, in her behalf and as his reports, put the cause of death of
guardian ad litem, of her minor grandchildren, all five victims as "asphyxia" caused
namely: NOEL, WILLIAM, GENEVIEVE and by the diminution of oxygen supply
GERRY, all surnamed LIAGOSO, petitioners, in the body working below normal
vs. conditions. The lungs of the five
THE HONORABLE COURT OF APPEALS victims burst, swelled in
AND CITY OF DAVAO, respondents. 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,
MEDIALDEA, J.:
Records)
This is a petition for review on certiorari praying
On August 28, 1984, the trial court rendered a
that the amended decision of the Court of Appeals
decision, the dispositive portion of which reads:
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 IN VIEW OF THE FOREGOING,
dated January 31, 1986 be reinstated subject to the this case is hereby DISMISSED
modification sought by the petitioners in their without pronouncement as to costs.
motion for partial reconsideration dated March 6,
1986. SO ORDERED. (Records, p. 181)
From the said decision, the petitioners appealed to a) Compensatory
the then Intermediate Appellate Court (now Court of damages for his
Appeals). On January 3, 1986, the appellate court death P30,000.00
issued a decision, the dispositive portion of which
reads: b) Moral damages
P20,000.00
WHEREFORE, in view of the facts
fully established and in the liberal 5. Ordering the defendant to pay to
interpretation of what the the plaintiffs Norma Liagoso,
Constitution and the law intended to Nicolas Liagoso and Emeteria
protect the plight of the poor and the Liagoso and her minor
needy, the ignorant and the grandchildren the following sums of
indigent –– more entitled to social money:
justice for having, in the
unforgettable words of Magsaysay, a) Compensatory
"less in life," We hereby reverse and damages for his
set aside the appealed judgment and death P30,000.00
render another one:
b) Moral damages
1. Ordering the defendant to pay to P20,000.00
the plaintiffs Dionisio Fernando,
Sofia Fernando and her minor The death compensation is fixed at
children the following sums of P30,000.00 in accordance with the
money: rulings of the Supreme Court
starting with People vs. De la
a) Compensatory Fuente, Nos. L-63251-52,
damages for his December 29, 1983, 126 SCRA 518
death P30,000.00 reiterated in the recent case
of People vs. Nepomuceno, No. L-
b) Moral damages 41412, May 27, 1985. Attorney's
P20,000.00 fees in the amount of P10,000.00 for
the handling of the case for the 5
2. Ordering the defendant to pay to victims is also awarded.
the plaintiffs David Garcia and
Anita Garcia the following sums of No pronouncement as to costs.
money:
SO ORDERED. (Rollo, pp. 33-34)
a) Compensatory
damages for his Both parties filed their separate motions for
death P30,000.00 reconsideration. On January 11, 1990, the Court of
Appeals rendered an Amended Decision, the
b) Moral damages dispositive portion of which reads:
P20,000.00
WHEREFORE, finding merit in the
3. Ordering the defendant to pay to motion for reconsideration of the
the plaintiff Rosalia Bertulano (sic) defendant-appellee Davao City, the
and her minor children the same is hereby GRANTED. The
following sums of money decision of this Court dated January
31, 1986 is reversed and set aside
a) Compensatory and another one is hereby rendered
damages for his dismissing the case. No
death P30,000.00 pronouncement as to costs.

b) Moral damages SO ORDERED. (Rollo, p. 25)

P20,000.00
Hence, this petition raising the following issues for
4. Ordering the defendant to pay to resolution:
the plaintiff Primitiva Fajardo and
her minor children the following 1. Is the respondent Davao City
sums of money: guilty of negligence in the case at
bar?
 2. If so, is such negligence the under consideration, foresee harm as
immediate and proximate cause of a result of the course actually
deaths of the victims hereof? (p. pursued? If so, it was the duty of the
72, Rollo) actor to take precautions to guard
against that harm. Reasonable
Negligence has been defined as the failure to foresight of harm, followed by the
observe for the protection of the interests of another ignoring of the suggestion born of
person that degree of care, precaution, and vigilance this provision, is always necessary
which the circumstances justly demand, whereby before negligence can be held to
such other person suffers injury (Corliss v. Manila exist. Stated in these terms, the
Railroad Company, L-21291, March 28, 1969, 27 proper criterion for determining the
SCRA 674, 680). Under the law, a person who by existence of negligence in a given
his omission causes damage to another, there being case is this: Conduct is said to be
negligence, is obliged to pay for the damage done negligent when a prudent man in
(Article 2176, New Civil Code). As to what would the position of the tortfeasor would
constitute a negligent act in a given situation, the have foreseen that an effect harmful
case of Picart v. Smith (37 Phil. 809, 813) provides to another was sufficiently probable
Us the answer, to wit: warrant his foregoing the conduct
or guarding against its
The test by which to determine the consequences. (emphasis supplied)
existence of negligence in a
particular case may be stated as To be entitled to damages for an injury resulting
follows: Did the defendant in doing from the negligence of another, a claimant must
the alleged negligent act use that establish the relation between the omission and the
reasonable care and caution which damage. He must prove under Article 2179 of the
an ordinarily prudent person would New Civil Code that the defendant's negligence was
have used in the same situation? If the immediate and proximate cause of his injury.
not, then he is guilty of negligence. Proximate cause has been defined as that cause,
The law here in effect adopts the which, in natural and continuous sequence unbroken
standard supposed to be supplied by by any efficient intervening cause, produces the
the imaginary conduct of the injury, and without which the result would not have
discreet pater familias of the occurred (Vda. de Bataclan, et al. v. Medina, 102
Roman law. The existence of Phil. 181, 186). Proof of such relation of cause and
negligence in a given case is not effect is not an arduous one if the claimant did not in
determined by reference to the any way contribute to the negligence of the
personal judgment of the actor in the defendant. However, where the resulting injury was
situation before him. The law the product of the negligence of both parties, there
considers what would be reckless, exists a difficulty to discern which acts shall be
blameworthy, or negligent in the considered the proximate cause of the accident.
man of ordinary intelligence and In Taylor v. Manila Electric Railroad and Light Co.
prudence and determines liability by (16 Phil. 8, 29-30), this Court set a guideline for a
that. judicious assessment of the situation:

The question as to what would Difficulty seems to be apprehended

constitute the conduct of a prudent in deciding which acts of the injured
man in a given situation must of party shall be considered immediate
course be always determined in the causes of the accident. The test is
light of human experience and in simple. Distinction must be made
view of the facts involved in the between the accident and the injury,
particular case. Abstract between the event itself, without
speculation cannot here be of much which there could have been no
value but this much can be accident, and those acts of the
profitably said: Reasonable men victim not entering into it,
govern their conduct by the independent of it, but contributing
circumstances which are before to his own proper hurt. For instance,
them or known to them. They are the cause of the accident under
not, and are not supposed to be, review was the displacement of the
omniscient of the future. Hence they crosspiece or the failure to replace
can be expected to take care only it. This produced the event giving
when there is something before occasion for damages — that is, the
them to suggest or warn of danger. sinking of the track and the sliding
Could a prudent man, in the case of the iron rails. To this event, the
 act of the plaintiff in walking by the defendant Davao
side of the car did not contribute, City:
although it was an element of the
damage which came to himself. Had x x x           x x x          x x x
the crosspiece been out of place
wholly or partly through his act or The place where
omission of duty, that would have you live is right
been one of the determining causes along the Agdao
of the event or accident, for which creek, is that
he would have been responsible. correct?
Where he contributes to the
principal occurrence, as one of its DANILO
determining factors, he can not GARCIA:
recover. Where, in conjunction with
the occurrence, he contributes only A Yes, sir.
to his own injury, he may recover
the amount that the defendant
Q And to be able to
responsible for the event should pay
go to the market
for such injury, less a sum deemed a
place, where you
suitable equivalent for his own
claim you have a
imprudence. (emphasis Ours)
stall,, you have to
pass on the septic
Applying all these established doctrines in the case tank?
at bar and after a careful scrutiny of the records, We
find no compelling reason to grant the petition. We
A Yes, sir.
affirm.
Q Day in and day
Petitioners fault the city government of Davao for
out, you pass on top
failing to clean a septic tank for the period of 19
of the septic tank?
years resulting in an accumulation of hydrogen
sulfide gas which killed the laborers. They contend
that such failure was compounded by the fact that A Yes, sir.
there was no warning sign of the existing danger and
no efforts exerted by the public respondent to Q Is it not a fact
neutralize or render harmless the effects of the toxic that everybody
gas. They submit that the public respondent's gross living along the
negligence was the proximate cause of the fatal creek passes on top
incident. of this septic tank as
they go out from the
We do not subscribe to this view. While it may be place and return to
true that the public respondent has been remiss in its their place of
duty to re-empty the septic tank annually, such residence, is that
negligence was not a continuing one. Upon learning correct?
from the report of the market master about the need
to clean the septic tank of the public toilet in Agdao And this septic
Public Market, the public respondent immediately tank, rather the
responded by issuing invitations to bid for such whole of the septic
service. Thereafter, it awarded the bid to the lowest tank, is covered by
bidder, Mr. Feliciano Bascon (TSN, May 24, 1983, lead . . .?
pp. 22-25). The public respondent, therefore, lost no
time in taking up remedial measures to meet the A Yes, sir. there is
situation. It is likewise an undisputed fact that cover.
despite the public respondent's failure to re-empty
the septic tank since 1956, people in the market have Q And there were
been using the public toilet for their personal three (3) of these
necessities but have remained unscathed. The lead covering the
testimonies of Messrs. Danilo Garcia and David septic tank?
Secoja (plaintiffs'-petitioners' witnesses) on this
point are relevant, to wit: A Yes, sir.

Atty. Mojica, Q And this has

counsel for always been closed?
A Yes, sir. (TSN, Q How many times,
November 26, if you could
1979, pp. 21-23, remember?
emphasis supplied)
A Many times,
ATTY. JOVER, maybe more than
counsel for the 1,000 times.
plaintiffs:
Q Prior to
Q You said you are November 22,
residing at Davao 1975, have you ever
City, is it not? used that septic tank
(public toilet)?
DAVID SEJOYA:
A Yes, sir.
A Yes, sir.
Q How many times
Q How long have have you gone to
you been a resident that septic tank
of Agdao? (public toilet) prior
to that date,
A Since 1953. November 22,
1975?
Q Where
specifically in A Almost 1,000
Agdao are you times. (TSN,
residing? February 9, 1983,
pp. 1-2)
A At the Public
Market. The absence of any accident was due to the
public respondent's compliance with the
Q Which part of the sanitary and plumbing specifications in
Agdao Public constructing the toilet and the septic tank
Market is your (TSN, November 4, 1983, p. 51). Hence, the
house located? toxic gas from the waste matter could not
have leaked out because the septic tank was
A Inside the market air-tight (TSN, ibid, p. 49). The only
in front of the fish indication that the septic tank in the case at
section. 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
Q Do you know
was full, there was no report of any casualty
where the Agdao
of gas poisoning despite the presence of
septic tank is
people living near it or passing on top of it
located?
or using the public toilet for their personal
necessities.
A Yes, sir.
Petitioners made a lot of fuss over the lack of any
Q How far is that ventilation pipe in the toilet to emphasize the
septic tank located negligence of the city government and presented
from your house? witnesses to attest on this lack. However, this
strategy backfired on their faces. Their witnesses
A Around thirty were not expert witnesses. On the other hand,
(30) meters. Engineer Demetrio Alindada of the city government
testified and demonstrated by drawings how the
Q Have you ever safety requirements like emission of gases in the
had a chance to use construction of both toilet and septic tank have been
that septic tank complied with. He stated that the ventilation pipe
(public toilet)? need not be constructed outside the building as it
could also be embodied in the hollow blocks as is
A Yes, sir. usually done in residential buildings (TSN,
November 4, 1983, pp. 50-51). The petitioners A For public
submitted no competent evidence to corroborate buildings, they are
their oral testimonies or rebut the testimony given by exempted for
Engr. Alindada. payment of building
permits but still
We also do not agree with the petitioner's they have to have a
submission that warning signs of noxious gas should building permit.
have been put up in the toilet in addition to the signs
of "MEN" and "WOMEN" already in place in that Q But just the same,
area. Toilets and septic tanks are not nuisances per including the
se as defined in Article 694 of the New Civil Code sanitary plans, it
which would necessitate warning signs for the require your
protection of the public. While the construction of approval?
these public facilities demands utmost compliance
with safety and sanitary requirements, the putting up A Yes, it requires
of warning signs is not one of those requirements. also.
The testimony of Engr. Alindada on this matter is
elucidative: Q Therefore, under
the National
ATTY. ALBAY: Building Code, you
are empowered not
Q Mr. Witness, you to approve sanitary
mentioned the plans if they are not
several aspects of in conformity with
the approval of the the sanitary
building permit requirements?
which include the
plans of an A Yes.
architect, senitary
engineer and Q Now, in private
electrical plans. All or public buildings,
of these still pass do you see any
your approval as warning signs in the
building official, is vicinity of septic
that correct? tanks?

DEMETRIO A There is no
ALINDADA: warning sign.

A Yes. Q In residential
buildings do you
Q So there is the see any warning
sanitary plan sign?
submitted to and
will not be A There is none.
approved by you
unless the same is ATTY. AMPIG:
in conformance
with the provisions We submit that the
of the building code matter is irrelevant
or sanitary and immaterial,
requirements? Your Honor.
A Yes, for private ATTY. ALBAY:
building
constructions.
But that is in
consonance with
Q How about public their cross-
buildings? examination, your
Honor.
 COURT: in the particular work which he attempts to
do (emphasis Ours). The fatal accident in this case
Anyway it is would not have happened but for the victims'
already answered. negligence. Thus, the appellate court was correct to
observe that:
ATTY. ALBAY:
. . . Could the victims have died if
Q These warning they did not open the septic tank
signs, are these which they were not in the first
required under the place authorized to open? Who
preparation of the between the passive object (septic
plans? tank) and the active subject (the
victims herein) who, having no
A It is not required. authority therefore, arrogated unto
themselves, the task of opening the
Q I will just septic tank which caused their own
reiterate, Mr. deaths should be responsible for
Witness. In such deaths. How could the septic
residences, for tank which has been in existence
example like the since the 1950's be the proximate
residence of Atty. cause of an accident that occurred
Ampig or the only on November 22, 1975? The
residence of the stubborn fact remains that since
honorable Judge, 1956 up to occurrence of the
would you say that accident in 1975 no injury nor death
the same principle was caused by the septic tank. The
of the septic tank, only reasonable conclusion that
from the water could be drawn from the above is
closet to the vault, that the victims' death was caused
is being followed? by their own negligence in opening
the septic tank. . . . (Rollo, p. 23)
A Yes.
Petitioners further contend that the failure of the
market master to supervise the area where the septic
ATTY. ALBAY:
tank is located is a reflection of the negligence of the
public respondent.
That will be all,
Your Honor. (TSN,
We do not think so. The market master knew that
December 6, 1983,
work on the septic tank was still forthcoming. It
pp. 62-63)
must be remembered that the bidding had just been
conducted. Although the winning bidder was already
In view of this factual milieu, it would appear that an known, the award to him was still to be made by the
accident such as toxic gas leakage from the septic Committee on Awards. Upon the other hand, the
tank is unlikely to happen unless one removes its accident which befell the victims who are not in any
covers. The accident in the case at bar occurred way connected with the winning bidder happened
because the victims on their own and without before the award could be given. Considering that
authority from the public respondent opened the the case was yet no award to commence work on the
septic tank. Considering the nature of the task of septic tank, the duty of the market master or his
emptying a septic tank especially one which has not security guards to supervise the work could not have
been cleaned for years, an ordinarily prudent person started (TSN, September 13, 1983, p. 40). Also, the
should undoubtedly be aware of the attendant risks. victims could not have been seen working in the area
The victims are no exception; more so with Mr. because the septic tank was hidden by a garbage
Bertulano, an old hand in this kind of service, who is storage which is more or less ten (10) meters away
presumed to know the hazards of the job. His failure, from the comfort room itself (TSN, ibid, pp. 38-39).
therefore, and that of his men to take precautionary The surreptitious way in which the victims did their
measures for their safety was the proximate cause of job without clearance from the market master or any
the accident. In Culion Ice, Fish and Elect. Co., of the security guards goes against their good faith.
v. Phil. Motors Corporation (55 Phil. 129, 133), We Even their relatives or family members did not know
held that when a person holds himself out as being of their plan to clean the septic tank.
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
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.