PHOENIX CONSTRUCTION, INC. AND ARMANDO U. CARBONEL, PETITIONERS, VS. THE INTERMEDIATE APPELLATE COURT AND LEONARDO DIONISIO, RESPONDENTS.

In the early morning of 15 November 1975 — at about 1:30 a.m. — private
respondent Leonardo Dionisio was on his way home — he lived in 1214-B Zamora
Street, Bangkal, Makati – from a cocktails-and-dinner meeting with his boss, the
general manager of a marketing corporation.  During the cocktails phase of the
evening, Dionisio had taken “a shot or two” of liquor.  Dionisio was driving his
Volkswagen car and had just crossed the intersection of General Lacuna and
General Santos Streets at Bangkal, Makati, not far from his home, and was
proceeding down General Lacuna Street, when his car headlights (in his
allegation) suddenly failed.  He switched his headlights on “bright” and
thereupon he saw a Ford dump truck looming some 2-1/2 meters away from his car. 
The dump truck, owned by and registered in the name of petitioner Phoenix
Construction Inc.  (“Phoenix”), was parked on the right hand side of General
Lacuna Street (i.e., on the right hand side of a person facing in the
same direction toward which Dionisio’s car was proceeding), facing the oncoming
traffic.  The dump truck was parked askew (not parallel to the street curb) in
such a manner as to stick out onto the street, partly blocking the way of
oncoming traffic.  There were no lights nor any so-called “early warning”
reflector devices set anywhere near the dump truck, front or rear.  The dump
truck had earlier that evening been driven home by petitioner Armando U.
Carbonel, its regular driver, with the permission of his employer Phoenix, in
view of work scheduled to be carried out early the following morning.  Dionisio
claimed that he tried to avoid a collision by swerving his car to the left but
it was too late and his car smashed into the dump truck.  As a result of the
collision, Dionisio suffered some physical injuries including some permanent
facial scars, a “nervous breakdown” and loss of two gold bridge
dentures.

Dionisio commenced an action for damages in the Court of First
Instance of Pampanga basically claiming that the legal and proximate cause of
his injuries was the negligent manner in which Carbonel had parked the dump
truck entrusted to him by his employer Phoenix.  Phoenix and Carbonel, on the
other hand, countered that the proximate cause of Dionisio’s injuries was his
own recklessness in driving fast at the time of the accident, while under the
influence of liquor, without his headlights on and without a curfew pass. 
Phoenix also sought to establish that it had exercised due care in the selection
and supervision of the dump truck driver.

The trial court rendered
judgment in favor of Dionisio and against Phoenix and Carbonel and ordered the
latter:

“(1) To pay plaintiff jointly and severally the sum of
P15,000.00 for hospital bills and the  replacement of the lost dentures of
plaintiff;

(2) To pay plaintiff jointly and severally the sum of
P150,000.00 as loss of expected income for plaintiff brought about the
accident in controversy and which is the result of the negligence of the
defendants;

(3) To pay the plaintiff jointly and severally the sum of
P100,000.00 as moral damages for the unexpected and sudden withdrawal
of plaintiff from his lifetime career as a marketing man; mental anguish,
wounded feeling, serious anxiety, social humiliation, besmirched reputation,
feeling of economic insecurity, and the untold sorrows and frustration in life
experienced by plaintiff and his family since the accident in controversy up to
the present time;

(4) To pay plaintiff jointly and severally the sum of
P10,000.00 as exemplary damages for the wanton disregard of defendants
to settle amicably this case with the plaintiff before the filing of this case
in court for a smaller amount.

(5) To pay the plaintiff jointly and
severally the sum of P4,500.00 due as and  for attorney’s fees;
and

(6) The cost of suit.” (Underscoring supplied)

Phoenix and Carbonel appealed to the Intermediate Appellate Court.  That
court in CA-G.R. No. 65476 affirmed the decision of the trial court but modified
the award of damages to the following extent:

1. The award of P15,000.00 as compensatory damages was reduced to
   P6,460.71, the latter being the only amount that the appellate court
   found the plaintiff to have proved as actually sustained by him;

2. The award of P150,000.00 as loss of expected income was reduced to
   P100,000.00, basically because Dionisio had voluntarily resigned his
   job such that, in the opinion of the appellate court, his loss of income “was
   not solely attributable to the accident in question”; and

3. The award of P100,000.00 as moral damages was held by the appellate court as
   excessive and unconscionable and hence reduced to
   P50,000.00.

The award of P10,000.00 as exemplary damages and P4,500.00
as attorney’s fees and costs remained untouched.

This decision of the Intermediate Appellate Court is now before us on a
petition for review.

Both the trial court and the appellate court had
made fairly explicit findings of fact relating to the manner in which the dump
truck was parked along General Lacuna Street on the basis of which both courts
drew the inference that there was negligence on the part of Carbonel, the dump
truck driver, and that this negligence was the proximate cause of the accident
and Dionisio’s injuries.  We note, however, that both courts failed to pass upon
the defense raised by Carbonel and Phoenix that the true legal and proximate
cause of the accident was not the way in which the dump truck had been parked
but rather the reckless way in which Dionisio had driven his car that night when
he smashed into the dump truck.  The Intermediate Appellate Court in its
questioned decision casually conceded that Dionisio was “in some way, negligent”
but apparently failed to see the relevance of Dionisio’s negligence and made no
further mention of it.  We have examined the record both before the trial court
and the Intermediate Appellate Court and we find that both parties had placed
into the record sufficient evidence on the basis of which the trial court and
the appellate court could have and should have made findings of fact relating to
the alleged reckless manner in which Dionisio drove his car that night.  The
petitioners Phoenix and Carbonel contend that if there was negligence in the
manner in which the dump truck was parked, that negligence was merely a “passive
and static condition” and that private respondent Dionisio’s recklessness
constituted an intervening, efficient cause determinative of the accident and
the injuries he sustained.  The need to administer substantial justice as
between the parties in this case, without having to remand it back to the trial
court after eleven years, compels us to address directly the contention put
forward by the petitioners and to examine for ourselves the record pertaining to
Dionisio’s alleged negligence which must bear upon the liability, or extent of
liability, of Phoenix and Carbonel.

There are four factual issues that
need to be looked into:  (a) whether or not private respondent Dionisio had a
curfew pass valid and effective for that eventful night; (b) whether Dionisio
was driving fast or speeding just before the collision with the dump truck; (c)
whether Dionisio had purposely turned off his car’s headlights before contact
with the dump truck or whether those headlights accidentally malfunctioned
moments before the collision; and (d) whether Dionisio was intoxicated at the
time of the accident.

As to the first issue relating to the curfew pass,
it is clear that no curfew pass was found on the person of Dionisio immediately
after the accident nor was any found in his car.  Phoenix’s evidence here
consisted of the testimony of Patrolman Cuyno who had taken Dionisio,
unconscious, to the Makati Medical Center for emergency treatment immediately
after the accident.  At the Makati Medical Center, a nurse took off Dionisio’s
clothes and examined them along with the contents of pockets together with
Patrolman Cuyno.^[1] Private respondent
Dionisio was not able to produce any curfew pass during the trial.  Instead, he
offered the explanation that his family may have misplaced his curfew pass.  He
also offered a certification (dated two years after the accident) issued by one
Major Benjamin N. Libarnes of the Zone Integrated Police Intelligence Unit of
Camp Olivas, San Fernando, Pampanga, which was said to have authority to issue
curfew passes for Pampanga and Metro Manila.  This certification was to the
effect that private respondent Dionisio had a valid curfew pass.  This
certification did not, however, specify any pass serial number or date or period
of effectivity of the supposed curfew pass.  We find that private respondent
Dionisio was unable to prove possession of a valid curfew pass during the night
of the accident and that the preponderance of evidence shows that he did not
have such a pass during that night.  The relevance of possession or
non-possession of a curfew pass that night lies in the light it tends to shed on
the other related issues:  whether Dionisio was speeding home and whether he had
indeed purposely put out his headlights before the accident, in order to avoid
detection and possibly arrest by the police in the nearby police station for
travelling after the onset of curfew without a valid curfew pass.

On the
second issue — whether or not Dionisio was speeding home that night — both the
trial court and the appellate court were completely silent.

The
defendants in the trial court introduced the testimony of Patrolman Cuyno who
was at the scene of the accident almost immediately after it occurred, the
police station where he was based being barely 200 meters away.  Patrolman Cuyno
testified that people who had gathered at the scene of the accident told him
that Dionisio’s car was “moving fast” and did not have its headlights on.^[2] Dionisio, on the other hand, claimed that
he was travelling at a moderate speed at 30 kilometers per hour and had just
crossed the intersection of General Santos and General Lacuna Streets and had
started to accelerate when his headlights failed just before the collision took
place.^[3]

Private respondent
Dionisio asserts that Patrolman Cuyno’s testimony was hearsay and did not fall
within any of the recognized exceptions to the hearsay rule since the facts he
testified to were not acquired by him through official information and had not
been given by the informants pursuant to any duty to do so.  Private
respondent’s objection fails to take account of the fact that the testimony of
Patrolman Cuyno is admissible not under the official records exception to the
hearsay rule^[4] but rather as part of the
res gestae.^[5] Testimonial evidence under
this exception to the hearsay rule consists of excited utterances made on the
occasion of an occurrence or event sufficiently startling in nature so as to
render inoperative the normal reflective thought processes of the observer and
hence made as a spontaneous reaction to the occurrence or event, and not the
result of reflective thought.^[6]

We think that an automobile
speeding down a street and suddenly smashing into a stationary object in the
dead of night is a sufficiently startling event as to evoke spontaneous, rather
than reflective, reactions from observers who happened to be around at that
time.  The testimony of Patrolman Cuyno was therefore admissible as part of the
res gestae and should have been considered by the trial court.  Clearly,
substantial weight should have been ascribed to such testimony, even though it
did not, as it could not, have purported to describe quantitatively the precise
velocity at which Dionisio was travelling just before impact with the Phoenix
dump truck.

A third related issue is whether Dionisio purposely turned
off his headlights, or whether his headlights accidentally malfunctioned, just
moments before the accident.  The Intermediate Appellate Court expressly found
that the headlights of Dionisio’s car went off as he crossed the intersection
but was non-committal as to why they did so.  It is the petitioners’ contention
that Dionisio purposely shut off his headlights even before he reached the
intersection so as not to be detected by the police in the police precinct which
he (being a resident in the area) knew was not far away from the intersection. 
We believe that the petitioners’ theory is a more credible explanation than that
offered by private respondent Dionisio — i.e., that he had his
headlights on but that, at the crucial moment, these had in some mysterious if
convenient way malfunctioned and gone off, although he succeeded in switching
his lights on again at “bright” split seconds before contact with the dump
truck.

A fourth and final issue relates to whether Dionisio was
intoxicated at the time of the accident.  The evidence here consisted of the
testimony of Patrolman Cuyno to the effect that private respondent Dionisio
smelled of liquor at the time he was taken from his smashed car and brought to
the Makati Medical Center in an unconscious condition.^[7] This testimony has to be taken in
conjunction with the admission of Dionisio that he had taken “a shot or two” of
liquor before dinner with his boss that night.  We do not believe that this
evidence is sufficient to show that Dionisio was so heavily under the influence
of liquor as to constitute his driving a motor vehicle per se an act of
reckless imprudence.^[8] There simply is
not enough evidence to show how much liquor he had in fact taken and the effects
of that upon his physical faculties or upon his judgment or mental alertness. 
We are also aware that “one shot or two” of hard liquor may affect different
people differently.

The conclusion we draw from the factual circumstances
outlined above is that private respondent Dionisio was negligent the night of
the accident.  He was hurrying home that night and driving faster than he should
have been.  Worse, he extinguished his headlights at or near the intersection of
General Lacuna and General Santos Streets and thus did not see the dump truck
that was parked askew and sticking out onto the road lane.

Nonetheless,
we agree with the Court of First Instance and the Intermediate Appellate Court
that the legal and proximate cause of the accident and of Dionisio’s injuries
was the wrongful or negligent manner in which the dump truck was parked — in
other words, the negligence of petitioner Carbonel.  That there was a reasonable
relationship between petitioner Carbonel’s negligence on the one hand and the
accident and respondent’s injuries on the other hand, is quite clear.  Put in a
slightly different manner, the collision of Dionisio’s car with the dump truck
was a natural and foreseeable consequence of the truck driver’s
negligence.

The petitioners, however, urge that the truck driver’s
negligence was merely a “passive and static condition” and that private
respondent Dionisio’s negligence was an “efficient intervening cause”, and that
consequently Dionisio’s negligence must be regarded as the legal and proximate
cause of the accident rather than the earlier negligence of Carbonel.  We note
that the petitioners’ arguments are drawn from a reading of some of the older
cases in various jurisdictions in the United States but we are unable to
persuade ourselves that these arguments have any validity for our jurisdiction. 
We note, firstly, that even in the United States, the distinctions between
“cause” and “condition” which the petitioners would have us adopt have already
been “almost entirely discredited”.  Professors Prosser and Keeton make this
quite clear:

“Cause and Condition.  Many courts have sought to
distinguish between the active “cause” of the harm and the existing “conditions”
upon which that cause operated.  If the defendant has created only a passive
static condition which made the damage possible, the defendant is said not to be
liable.  But so far as the fact of causation is concerned, in the sense of
necessary antecedents which have played an important part in producing the
result, it is quite impossible to distinguish between active forces and passive
situations, particularly since, as is invariably the case, the latter are the
result of other active forces which have gone before.  The defendant who
spills gasoline about the premises creates a “condition;” but the act may be
culpable because of the danger of fire.  When a spark ignites the gasoline, the
condition has done quite as much to bring about the fire as the spark; and since
that is the very risk which the defendant has created, the defendant will not
escape responsibility.  Even the lapse of a considerable time during which
the “condition” remains static will not necessarily affect liability; one who
digs a trench in the highway may still be liable to another who falls into it a
month afterward.  “Cause” and “condition” still find occasional mention in the
decisions; but the distinction is now almost entirely discredited.  So far
as it has any validity at all, it must refer to the type of case where the
forces set in operation by the defendant have come to rest in a position of
apparent safety, and some new force intervenes.  But even in such cases, it
is not the distinction between “cause” and “condition” which is important, but
the nature of the risk and the character of the intervening cause.”^[9]

We believe, secondly, that the
truck driver’s negligence far from being a “passive and static condition” was
rather an indispensable and efficient cause.  The collision between the dump
truck and the private respondent’s car would in all probability not have
occurred had the dump truck not been parked askew without any warning lights or
reflector devices.  The improper parking of the dump truck created an
unreasonable risk of injury for anyone driving down General Lacuna Street and
for having so created this risk, the truck driver must be held responsible.  In
our view, Dionisio’s negligence, although later in point of time than the truck
driver’s negligence and therefore closer to the accident, was not an efficient
intervening or independent cause.  What the petitioners describe as an
“intervening cause” was no more than a foreseeable consequence of the risk
created by the negligent manner in which the truck driver had parked the dump
truck.  In other words, the petitioner truck driver owed a duty to private
respondent Dionisio and others similarly situated not to impose upon them the
very risk the truck driver had created.  Dionisio’s negligence was not of an
independent and overpowering nature as to cut, as it were, the chain of
causation in fact between the improper parking of the dump truck and the
accident, nor to sever the juris vinculum of liability.  It is helpful
to quote once more from Prosser and Keeton:

“Foreseeable Intervening
Causes.  If the intervening cause is one which in ordinary human experience is
reasonably to be anticipated, or one which the defendant has reason to
anticipate under the particular circumstances, the defendant may be negligent,
among other reasons, because of failure to guard against it; or the defendant
may be negligent only for that reason.  Thus one who sets a fire may be
required to foresee that an ordinary, usual and customary wind arising later
will spread it beyond the defendant’s own property, and therefore to take
precautions to prevent that event.  The person who leaves combustible or
explosive material exposed in a public place may foresee the risk of fire from
some independent source.  x x x In all of these cases there is an
intervening cause combining with the defendant’s conduct to produce the result,
and in each case the defendant’s  negligence consists in failure to protect the
plaintiff against that very risk.

Obviously the defendant cannot
be relieved from liability by the fact that the risk or a substantial and
important part of the risk, to which the defendant has subjected the plaintiff
has indeed come to pass.  Foreseeable intervening forces are within the scope of
the original risk, and hence of the defendant’s negligence.  The courts are
quite generally agreed that intervening causes which fall fairly in this
category will not supersede the defendant’s responsibility.

Thus it
has been held that a defendant will be required to anticipate the usual weather
of the vicinity, including all ordinary forces of nature such as usual wind or
rain, or snow or frost or fog or even lightning; that one who leaves an
obstruction on the road or a railroad track should foresee that a vehicle or a
train will run into it; x x x.

The risk created by the defendant
may include the intervention of the foreseeable negligence of others.  x x x
[T]he standard of reasonable conduct may require the defendant to  protect the
plaintiff against ‘that occasional  negligence  which is one of the ordinary 
incidents of human life, and therefore to be anticipated’.  Thus, a
defendant who blocks the sidewalk and forces the plaintiff to walk in a street
where the plaintiff will be exposed to the risks of heavy traffic becomes liable
when the plaintiff is run down by a car, even though the car is negligently
driven; and one who parks an automobile on the highway without lights at
night is not relieved of responsibility when another negligently drives into
it. —”^[10]

We hold that
private respondent Dionisio’s negligence was “only contributory”, that the
“immediate and proximate cause” of the injury remained the truck driver’s “lack
of due care” and that consequently respondent Dionisio may recover damages
though such damages are subject to mitigation by the courts (Article 2179, Civil
Code of the Philippines).

Petitioners also ask us to apply what they
refer to as the “last clear chance” doctrine.  The theory here of petitioners is
that while the petitioner truck driver was negligent, private respondent
Dionisio had the “last clear chance” of avoiding the accident and hence his
injuries, and that Dionisio having failed to take that “last clear chance” must
bear his own injuries alone.  The last clear chance doctrine of the common law
was imported into our jurisdiction by Picart vs. Smith^[11] but it is a matter for debate whether, or
to what extent, it has found its way into the Civil Code of the Philippines. 
The historical function of that doctrine in the common law was to mitigate the
harshness of another common law doctrine or rule — that of contributory
negligence.^[12] The common law rule of
contributory negligence prevented any recovery at all by a plaintiff who was
also negligent, even if the plaintiff’s negligence was relatively minor as
compared with the wrongful act or omission of the defendant.^[13] The common law notion of last clear
chance permitted courts to grant recovery to a plaintiff who had also been
negligent provided that the defendant had the last clear chance to avoid the
casualty and failed to do so.^[14]
Accordingly, it is difficult to see what role, if any, the common law last clear
chance doctrine has to play in a jurisdiction where the common law concept of
contributory negligence as an absolute bar to recovery by the plaintiff, has
itself been rejected, as it has been in Article 2179 of the Civil Code of the
Philippines.^[15]

Is there perhaps
a general concept of “last clear chance” that may be extracted from its common
law matrix and utilized as a general rule in negligence cases in a civil law
jurisdiction like ours?  We do not believe so.  Under Article 2179, the task of
a court, in technical terms, is to determine whose negligence — the plaintiff’s
or the defendant’s — was the legal or proximate cause of the injury.  That task
is not simply or even primarily an exercise in chronology or physics, as the
petitioners seem to imply by the use of terms like “last” or “intervening” or
“immediate”.  The relative location in the continuum of time of the plaintiff’s
and the defendant’s negligent acts or omissions, is only one of the relevant
factors that may be taken into account.  Of more fundamental importance are the
nature of the negligent act or omission of each party and the character and
gravity of the risks created by such act or omission for the rest of the
community.  The petitioners urge that the truck driver (and therefore his
employer) should be absolved from responsibility for his own prior negligence
because the unfortunate plaintiff failed to act with that increased diligence
which had become necessary to avoid the peril precisely created by the truck
driver’s own wrongful act or omission.  To accept this proposition is to come
too close to wiping out the fundamental principle of law that a man must respond
for the forseeable consequences of his own negligent act or omission.  Our law
on quasi-delicts seeks to reduce the risks and burdens of living in society and
to allocate them among the members of society.  To accept the petitioners’
proposition must tend to weaken the very bonds of society.

Petitioner
Carbonel’s proven negligence creates a presumption of negligence on the part of
his employer Phoenix^[16] in supervising
its employees properly and adequately.  The respondent appellate court in effect
found, correctly in our opinion, that Phoenix was not able to overcome this
presumption of negligence.  The circumstance that Phoenix had allowed its truck
driver to bring the dump truck to his home whenever there was work to be done
early the following morning, when coupled with the failure to show any effort on
the part of Phoenix to supervise the manner in which the dump truck is parked
when away from company premises, is an affirmative showing of culpa in
vigilando on the part of Phoenix.

Turning to the award of damages
and taking into account the comparative negligence of private respondent
Dionisio on one hand and petitioners Carbonel and Phoenix upon the other
hand,^[17] we believe that the demands of
substantial justice are satisfied by allocating most of the damages on a 20-80
ratio.  Thus, 20% of the damages awarded by the respondent appellate court,
except the award of P10,000.00 as exemplary damages and P4,500.00 as attorney’s
fees and costs, shall be borne by private respondent Dionisio; only the balance
of 80% needs to be paid by petitioners Carbonel and Phoenix who shall be
solidarily liable therefor to the former.  The award of exemplary damages and
attorney’s fees and costs shall be borne exclusively by the petitioners. 
Phoenix is of course entitled to reimbursement from Carbonel.^[18] We see no sufficient reason for
disturbing the reduce award of damages made by the respondent appellate
court.

WHEREFORE, the decision of the respondent
appellate court is modified by reducing the aggregate amount of compensatory
damages, loss of expected income and moral damages private respondent Dionisio
is entitled to by 20% of such amount.  Costs against the
petitioners.

SO ORDERED.

Yap, (Chairman), Narvasa, Cruz, Gancayco, and Sarmiento,
JJ., concur.

Melencio-Herrera, J., took no part being on official
leave.

^[2] TSN, 16 March 1978, p.
13.

^[3] TSN, 23 February 1977, pp.
13-14; TSN, 7 October 1977, pp. 24-25.

^[4] Rule 130, Section 38, Rules of
Court.

^[5] Rule 130, Section 36,
Rules of Court.

^[6] People v.
Berame, 72 SCRA 184 ^[1976];
McCormick on Evidence, Section 297 [3rd ed., 1984].

^[7] TSN, 16 March 1978, pp. 18-19.

^[8] Compare Wright v. Manila Railroad
Co., 28 Phil. 116 (1914), where it was held, among others, that “[m]ere
intoxication is not negligence, nor does the mere fact of intoxication establish
a want of ordinary care.  It is but a circumstance to be considered with the
other evidence tending to prove negligence.” Id., at 125.

^[9] The Law on Torts [5^th ed.;
1984], pp. 277-278; underlining supplied; footnotes omitted.

^[10] Ibid, pp. 303-305; underlining
supplied; footnotes omitted.

^[11]
37 Phil. 809 (1918).

^[12]
Prosser & Keeton, supra note 9, p. 464 and note 11.

^[13] See Rakes v. Manila Railroad
Co., 7 Phil. 359, at 370 (1907).

^[14] MacIntyre, The Rationale of Last
Clear Chance, 53 Harv. L. Rev. 1225 (1940) and James, Last Clear
Chance:  A Transitional Doctrine, 47 Yale L.J. 704 (1938).

^[15] See Rakes, 7 Phil. at 374.

^[16] Poblete v. Fabros, 93 SCRA 202
(1979); Umali v. Bacani, 69 SCRA 263 (1976); and Saludares v.
Martinez, 29 SCRA 745 (1969).

^[17] See Rakes v. Atlantic, Gulf and
Pacific Co., 7 Phil. 359, 370-375 (1907), where the Court allocated the
damages on a 50-50 basis between plaintiff and defendant applying the notion of
comparative negligence or proportional damages.  Cf. Taylor v. Manila
Electric Railroad and Light Co., 16 Phil. 8 at 29 (1910).

^[18] Lanuzo v. Ping, 100 SCRA 205
(1980).