SOFIA FERNANDO, IN HER BEHALF AND AS THE LEGAL GUARDIAN OF HER MINOR CHILDREN, NAMELY: ALBERTO & ROBERTO, ALL SURNAMED FERNANDO, ANITA GARCIA, NICOLAS LIAGOSO, ROSALIA BERTULANO…

This is a petition for review on certiorari praying that
the amended decision of the Court of Appeals dated January 11, 1990 in CA-G.R.
No. C.V. 04846, entitled “Sofia Fernando, etc., et al. v. The City of
Davao,” be reversed and that its original decision dated January 31, 1986
be reinstated subject to the modification sought by the petitioners in their
motion for partial reconsideration dated March 6, 1986.

The antecedent facts are briefly narrated by the trial court, as
follows:

“From the evidence presented we see the following facts: On November 7, 1975, Bibiano Morta, market
master of the Agdao Public Market filed a requisition request with the Chief of
Property of the City Treasurer’s Office for the re-emptying of the septic tank
in Agdao. An invitation to bid was
issued to Aurelio Bertulano, Lito Catarsa, Feliciano Bascon, Federico Bolo and
Antonio Suñer, Jr. Bascon won the bid. On November 26, 1975 Bascon was notified and he signed the purchase
order. However, before such date,
specifically on November 22, 1975, bidder Bertulano with
four other companions namely Joselito Garcia, William Liagoso, Alberto Fernando
and Jose Fajardo, Jr. were found dead inside the septic tank. The bodies were removed by a fireman. One body, that of Joselito Garcia, was taken
out by his uncle, Danilo Garcia and taken to the Regional Hospital but he
expired there. The City Engineer’s
office investigated the case and learned that the five victims entered the
septic tank without clearance
from it nor with the knowledge and consent of the market master. In fact, the septic tank was found to be
almost empty and the victims were presumed to be the ones who did the
re-emptying. Dr. Juan Abear of the City Health Office autopsied the bodies and
in his reports, put the cause of death of all five victims as ‘asphyxia’ caused
by the diminution of oxygen supply in the body working below normal
conditions. The lungs of the five
victims burst, swelled in hemmorrhagic areas and this was due to their intake
of toxic gas, which, in this case, was sulfide gas produced from the waste
matter inside the septic tank.” (p. 177, Records)

On August 28, 1984, the trial court rendered a decision, the
dispositive portion of which reads:

“IN VIEW OF THE FOREGOING, this case is hereby DISMISSED
without pronouncement as to
costs.

“SO ORDERED.” (Records, p. 181)

From the said decision, the
petitioners appealed to the then Intermediate Appellate Court (now Court of
Appeals). On January 3, 1986, the
appellate court issued a decision, the dispositive portion of which reads:

“WHEREFORE, in view of the facts fully established and in the
liberal interpretation of what the Constitution and the law intended to protect
the plight of the poor and the needy, the ignorant and the indigent — more
entitled to social justice for having, in the unforgettable words of Magsaysay,
‘less in life,’ We hereby reverse and set aside the appealed judgment and
render another one:

“1. Ordering the defendant
to pay to the plaintiffs
Dionisio Fernando, Sofia Fernando and her minor children the following sums of
money:

a)    Compensatory
damages for his death….. P30,000.00

b)    Moral damages …………………………… P20,000.00

“2. Ordering the defendant to pay to the plaintiffs David Garcia and Anita
Garcia the following sums of money:

a)    Compensatory damages for his death…. P30,000.00

b)    Moral damages…………………………… P20,000.00

“3. Ordering the defendant to pay to the
plaintiff Rosalia Bertulado (sic) and her minor children the following sums of
money

a)    Compensatory damages for his death….. P30,000.00

b)    Moral damages………………………….. . P20,000.00

“4. Ordering the defendant to pay to the
plaintiff Primitiva Fajardo and her minor children the following sums of money:

a)    Compensatory damages for his death….. P30,000.00

b)    Moral damages……………………………. P20,000.00

“5. Ordering the defendant to pay to the plaintiffs Norma Liagoso, Nicolas
Liagoso and Emeteria Liagoso and her minor grandchildren the following sums of
money:

a)    Compensatory damages for his death…. .
P30,000.00

b)    Moral damages……..………………………. P20,000.00

The death compensation is fixed at P30,000.00 in accordance with
the rulings of the Supreme Court starting with People vs. Dela Fuente Nos.
L-63251-52, December 29, 1983, 126 SCRA 518 reiterated in the recent case of
People vs. Nepomuceno, No. L-41412, May 27, 1985. Attorney’s fees in the amount of P10,000.00 for the handling of
the case for the 5 victims is also awarded.

“No pronouncement as to costs.

“SO ORDERED.” (Rollo, pp. 33-34)

Both parties filed their separate motions for
reconsideration. On January 11, 1990,
the Court of Appeals rendered an Amended Decision, the dispositive portion of which reads:

“WHEREFORE, finding merit in the motion for reconsideration of the defendant-appellee Davao
City, the same is hereby GRANTED. The
decision of this Court dated January 31, 1986 is reversed and set aside and
another one is hereby rendered dismissing the case. No pronouncement as to costs.

“SO ORDERED.” (Rollo, p. 25)

Hence, this petition raising the following issues for resolution:

“1. Is the respondent Davao
City guilty of negligence in the case at bar?

“2. If so, is such negligence the immediate and
proximate cause of deaths of the victims hereof?” (p. 73, Rollo)

Negligence has been defined as the failure to observe for the
protection of the interests of another person that degree of care, precaution,
and vigilance which the circumstances justly demand, whereby such other person
suffers injury (Corliss v. Manila Railroad Company, L-21291, March 28, 1969, 27
SCRA 674, 680). Under the law, a person
who by his omission causes damage to another, there being negligence, is
obliged to pay for the damage done (Article 2176; New Civil Code). As to what would constitute a negligent act
in a given situation, the case of Picart v. Smith (37 Phil. 809, 813) provides
us the answer, to wit:

“The test by which to determine the existence of negligence in
a particular case may be stated as follows: Did the defendant in doing the alleged negligent act use
that reasonable care and caution which
an ordinarily prudent person would have
used in the same situation? If not, then he is
guilty of negligence. The law here in effect adopts the standard supposed to be supplied by the
imaginary conduct of the discreet paterfamilias of the Roman law. The
existence of negligence in a given case is not determined by reference to the
personal judgment of the actor in the situation before him. The law considers what would be reckless, blameworthy,
or negligent in the man of ordinary intelligence and prudence and determines
liability by that.

“The question as
to what would constitute the conduct of
a prudent man in a given situation
must of course be always determined in
the light of human experience and in
view of the facts involved in the
particular case. Abstract
speculation cannot here be of much value but this much can be profitably
said: Reasonable men govern their
conduct by the circumstances which are before them or known to them. They are not, and are not supposed to be,
omniscient of the future. Hence they
can be expected to take care only when there is something before them to
suggest or warn of danger. Could a
prudent man, in the case under consideration, foresee harm as a result of the
course actually pursued? If so, it was
the duty of the actor to take precautions to guard against that harm. Reasonable foresight of
harm, followed by the
ignoring of the suggestion born of this
provision, is always necessary before negligence
can be held to exist. Stated in these terms, the proper criterion
for determining the existence of negligence in a given case is this: Conduct is said to
be negligent when a prudent man in
the position of the tortfeasor would have
foreseen that an effect harmful to another
was sufficiently probable to warrant his
foregoing the conduct or guarding against
its consequences.” (underlining supplied)

To be entitled to damages for an injury resulting from the
negligence of another, a claimant must establish the relation between the
omission and the damage. He must prove
under Article 2179 of the New Civil Code that the defendant’s negligence was
the immediate and proximate cause of his injury. Proximate cause has been defined as that cause, which, in natural
and continuous sequence unbroken by any efficient intervening cause, produces
the injury, and without which the result would not have occurred (Vda. De
Bataclan, et al. v. Medina, 102 Phil 181, 186). Proof of such relation of cause and effect is not an arduous one
if the claimant did not in any way contribute to the negligence of the
defendant. However, where the resulting
injury was the product of the negligence of both parties, there exists a
difficulty to discern which acts shall be considered the proximate cause of the
accident. In Taylor v. Manila Electric
Railroad and Light Co. (16 Phil. 8, 29-30), this Court set a guideline for a
judicious assessment of the situation:

“Difficulty seems to be
apprehended in deciding which acts of the injured party shall be
considered immediate causes of the accident. The test is simple. Distinction must be made
between the accident and the injury, between
the event itself, without which there
could have been no accident, and those
acts of the victim not entering into
it, independent of it, but contributing
to his own proper hurt. For instance, the cause of the accident under
review was the displacement of the crosspiece or the failure to replace
it. This produced the event giving
occasion for damages–that is, the sinking of the track and the sliding of the
iron rails. To this event, the act of
the plaintiff in walking by the side of the car did not contribute, although it
was an element of the damage which came to himself. Had the crosspiece been out of
place wholly or partly through his
act or omission of duty, that would have been one of the determining
causes of the event or accident, for which he would have been responsible. Where he contributes to the principal
occurrence, as one of its determining factors, he can not recover. Where, in conjunction with the occurrence,
he contributes only to his own injury, he may recover the amount that the
defendant responsible for the event should pay for such injury, less a sum
deemed a suitable equivalent for his own imprudence.” (underscoring Ours)

Applying all these established doctrines in the case at bar and
after a careful scrutiny of the records, We find no compelling reason to grant
the petition. We affirm.

Petitioners fault the city government of Davao for failing to
clean a septic tank for the period of 19 years resulting in an accumulation of
hydrogen sulfide gas which killed the laborers. They contend that such failure was compounded by the fact that
there was no warning sign of the existing danger and no efforts exerted by the
public respondent to neutralize or render harmless the effects of the toxic
gas. They submit that the public
respondent’s gross negligence was the proximate cause of the fatal incident.

We do not subscribe to this view. While it may be true that the public respondent has been remiss in its duty to re-empty the septic
tank annually, such negligence was not a continuing one. Upon learning from the report of the market
master about the need to clean the septic tank of the public toilet in Agdao
Public Market, the public respondent immediately responded by issuing
invitations to bid for such service. Thereafter, it awarded the bid to the lowest bidder, Mr. Feliciano
Bascon (TSN, May 24, 1983, pp. 22-25). The public respondent, therefore, lost no time in taking up remedial
measures to meet the situation. It is
likewise an undisputed fact that despite the public respondent’s failure to
re-empty the septic tank since 1956, people in the market have been using the
public toilet for their personal necessities but have remained unscathed. The testimonies of Messrs. Danilo Garcia and
David Secoja (plaintiffs’-petitioners’ witnesses) on this point are relevant,
to wit:

“Atty. Mojica, counsel for
defendant Davao City:

x        x          x

The place where you live
is right along the Agdao creek, is that correct?

“DANILO GARCIA:

“A    Yes, sir.

“Q   And to be able to
go to the market
place, where you claim you have a
stall, you have to pass on the
septic tank?

“A    Yes, sir.

“Q   Day in and day out, you pass on top of the
septic tank?

“A    Yes, sir.

“Q   Is it not a fact that everybody living along
the creek passes on top of this septic
tank as they go out from the place and return to their place of residence, is
that correct?

And this septic
tank, rather the whole of the septic
tank, is covered by a lead…?

“A    Yes,
sir. there is a
cover.

“Q   And
there were three (3) of these lead
covering the septic tank?

“A    Yes,
sir.

“Q   And
this has always been closed?

“A    Yes,
sir.” (TSN, November 26,1979, pp. 21-23, underscoring supplied)

“ATTY. JOVER, counsel for the
plaintiffs:

“Q   You
said you are residing at Davao City, is it not?

“DAVID SEJOYA:

“A    Yes,
sir.

“Q   How
long have you been a resident of Agdao?

“A    Since
1953.

“Q   Where
specifically in Agdao are you residing?

“A    At
the Public Market.

“Q   Which part of the Agdao Public Market
is your house located?

“A    Inside
the market in front of the fish section.

“Q   Do
you know where the Agdao septic tank is located?

“A    Yes,
sir.

“Q   How
far is that septic tank located from your house?

“A    Around
thirty (30) meters.

“Q   Have
you ever had a chance to use that septic tank (public toilet)?

“A    Yes,
sir.

“Q   How
many times, if you could remember?

“A    Many
times, maybe more than 1,000 times.

“Q   Prior
to November 22, 1975, have you ever used that septic tank (public toilet)?

“A    Yes,
sir.

“Q   How
many times have you gone to that septic
tank (public toilet) prior to that date, November 22, 1975?

“A    Almost
1,000 times.” (TSN, February 9, 1983, pp. 1-2)

The absence of any accident was due to
the public respondent’s compliance with the sanitary and plumbing
specifications in constructing the toilet and the septic tank (TSN, November 4,
1983, p. 51). Hence, the toxic gas from
the waste matter could not have leaked out because the septic tank was
air-tight (TSN, ibid, p. 49). The only indication that the septic tank in the case at bar was full and
needed emptying was when water came out from it (TSN, September 13, 1983, p.
41). Yet, even when the septic tank was
full, there was no report of any casualty of gas poisoning despite the presence
of people living near it or passing on top of it or using the public toilet for
their personal necessities.

Petitioners made a lot of fuss over the lack of any ventilation
pipe in the toilet to emphasize the negligence of the city government and
presented witnesses to attest on this lack. However, this strategy backfired on
their faces. Their witnesses were not
expert witnesses. On the other hand,
Engineer Demetrio Alindada of the city government testified and demonstrated by
drawings how the safety requirements like emission of gases in the construction of both toilet and
septic tank have been complied with. He
stated that the ventilation pipe need not be constructed outside the building
as it could also be embodied in the hollow blocks as is usually done in
residential buildings (TSN, November 4, 1983, pp. 50-51). The petitioners submitted no competent
evidence to corroborate their oral testimonies or rebut the testimony given by Engr. Alindada.

We also do not agree with the petitioner’s submission that
warning signs of noxious gas should have been put up in the toilet in addition
to the signs of “MEN” and “WOMEN” already in place in that
area. Toilets and septic tanks are not
nuisances per se as defined in Article 694 of the New Civil Code
which would necessitate warning signs for the protection of the public. While the construction of these public
facilities demands utmost compliance with safety and sanitary requirements, the
putting up of warning signs is not one of those requirements. The testimony of Engr. Alindada on this
matter is elucidative:

“ATTY. ALBAY:

“Q  Mr. Witness, you mentioned the several aspects
of the approval of the building permit which include the plans of an architect,
sanitary engineer and electrical plans. All of these still pass your approval as building official, is that
correct?

DEMETRIO ALINDADA:

“A    Yes.

“Q    So there is the sanitary plan submitted to
and will not be approved by you unless the same is in conformance with the
provisions of the building code or sanitary requirements?

“A    Yes,
for private building constructions.

“Q   How
about public buildings?

“A    For
public buildings, they are exempted for payment of building permits but still
they have to have a building permit.

“Q   But
just the same, including the sanitary plans, it requires your approval?

“A    Yes,
it requires also.

“Q    Therefore, under the National Building Code,
you are empowered not to approve sanitary plans if they are not in conformity
with the sanitary requirements?

“A    Yes.

“Q   Now,
in private or public buildings, do you see any warning signs in the vicinity of
septic tanks?

“A    There
is no warning sign.

“Q   In
residential buildings do you see any warning sign?

“A    There
is none.

“ATTY. AMPIG:

We submit that the
matter is irrelevant and immaterial, Your Honor.

“ATTY. ALBAY:

But that is in
consonance with their cross-examination, your Honor.

“COURT:

Anyway it is already
answered.

“ATTY. ALBAY:

“Q   These
warning signs, are these required under the preparation of the plans?

“A    It
is not required.

“Q   I
will just reiterate, Mr. Witness. In
residences, for example like the residence of Atty. Ampig or the residence of
the honorable Judge, would you say that the same principle of the septic tank,
from the water closet to the vault, is being followed?

“A    Yes.

“ATTY. ALBAY:

That will be all, Your
Honor.” (TSN, December 6, 1983, pp. 62-63)

In view of this factual milieu, it would appear that an accident
such as toxic gas leakage from the septic
tank is unlikely to happen unless one removes its covers. The accident in the case at bar occurred
because the victims on their own and without authority from the public
respondent opened the septic tank. Considering the nature of the task of emptying a septic tank especially
one which has not been cleaned for years, an ordinarily prudent person should undoubtedly
be aware of the attendant risks. The victims are no exception; more so with
Mr. Bertulano, an old hand in this
kind of service, who is presumed to know the hazards of the job. His failure, therefore, and that of his men
to take precautionary measures for their safety was the proximate cause of the
accident. In Culion Ice, Fish and
Elect. Co., v. Phil. Motors Corporation (55 Phil. 129, 133), We held that when
a person holds himself out as being competent to do things requiring
professional skill, he will be held liable for
negligence if he fails to exhibit the
care and skill of one ordinarily skilled
in the particular work which he attempts
to do (underscoring ours). The fatal accident in this case would not have happened but for the
victims’ negligence. Thus, the
appellate court was correct to observe that:

“x x x. Could the
victims have died if they did not open the septic tank which they were not in
the first place authorized to open? Who
between the passive object (septic tank) and the active subject (the victims
herein) who, having no authority therefore, arrogated unto themselves, the task
of opening the septic tank which caused their own deaths should be responsible
for such deaths. How could the septic
tank which has been in existence since the 1950’s be the proximate cause of an
accident that occurred only on November 22, 1975? The stubborn fact remains that since 1956 up to occurrence of the
accident in 1975 no injury nor death was caused by the septic tank. The only reasonable conclusion that could be
drawn from the above is that the victims’ death was caused by their own
negligence in opening the septic tank. x x x.” (Rollo, p. 23)

Petitioners further contend that the failure of the market master
to supervise the area where the septic tank is located is a reflection of the
negligence of the public respondent.

We do not think so. The
market master knew that work on the septic tank was still forthcoming. It must be remembered that the bidding had
just been conducted. Although the
winning bidder was already known, the award to him was still to be made by the
Committee on Awards. Upon the other
hand, the accident which befell the victims who are not in any way connected
with the winning bidder happened before the award could be given. Considering that there was yet no award and
order to commence work on the septic tank, the duty of the market master or his
security guards to supervise the work could not have started (TSN, September
13, 1983, p. 40). Also, the victims
could not have been seen working in the area because the septic tank was hidden
by a garbage storage which is more or less ten (10) meters away from the
comfort room itself (TSN, ibid, pp. 38-39). The surreptitious way in which the victims did their job without
clearance from the market master or any of the security guards goes against
their good faith. Even their relatives
or family members did not know of their plan to clean the septic tank.

Finally, petitioners’ insistence on the applicability of Article
24 of the New Civil Code cannot be sustained. Said law states:

“Art. 24. In all
contractual, property or other relations, when one of the parties is at a
disadvantage on account of his moral dependence, ignorance, indigence, mental
weakness, tender age or other handicap, the courts must be vigilant for his
protection.”

We approve of the appellate court’s
ruling that “(w)hile one of the victims was invited to bid for said
project, he did not win the bid, therefore, there is a total absence of contractual
relations between the victims and the City Government of Davao City that could
give rise to any contractual obligation, much less, any liability on the part
of Davao City.” (Rollo, p. 24) The accident was indeed tragic and We
empathize with the petitioners. However, the herein circumstances lead Us to no other conclusion than
that the proximate and immediate cause of the death of the victims was due to
their own negligence. Consequently, the
petitioners cannot demand damages from the public respondent.

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

SO ORDERED.

Narvasa, C.J., Cruz, Grino-Aquino, and Bellosillo, JJ., concur.