G.R. No. 96781 October 1, 1993EMILIANO MANUEL and SUPERLINES TRANSPORTATION CO., INC.,petitioners,vs.HONORABLE COURT OF APPEALS, ERNESTO A. RAMOS substituted by Goyena Z. Ramos, Grace, David, Jobet, Portia and Banjo, all surnamed RAMOS; and GOYENA ZANAROSA-RAMOS, for herself and as GuardianAd Litemfor the minors JOBET, BANJO, DAVID and GRACE, all surnamed RAMOS; FERNANDO ABCEDE, SR., for himself and as GuardianAd Litemfor minor FERNANDO G. ABCEDE, JR.; MIGUEL JERNZ MAGO, as GuardianAd Litemfor minor ARLEEN R. MAGO, and ANACLETA J. ZANAROSA,respondents.Benito P. Fabie for petitioners.Constante Banayos for private respondents.QUIASON,J.:This is an appeal bycertiorariunder Rule 45 of the Revised Rules of Court from the decision of the Court of Appeals in CA-G.R. CV No. 11780, and its Resolution dated January 8, 1991, denying petitioner's motion for reconsideration. The decision subject of the appeal was an affirmation of the judgement of the Court of First Instance of Camarines Norte, in Civil Case No. 3020 and whose dispositive portion states:PREMISES CONSIDERED, judgment is hereby rendered : (1) finding the defendant Emiliano Manuel negligent, reckless and imprudent in the operation of Superlines Bus No. 406, which was the proximate cause of the injuries suffered by the plaintiffs and damage of the Scout Car in which they were riding; (2) ordering the said defendant, jointly and solidarily, with the defendant Superlines Bus Co., Inc. to pay plaintiffs the amounts of P49,954,86, as itemized elsewhere in this decision and the costs.It appearing that the defendants Superlines Transportation Co., Inc. is insured with the defendant Perla Compania de Seguros, which has admitted such insurance, the latter is hereby ordered to pay the former the amounts so stated up to the extent of its insurance coverage" (Rollo, pp. 70-71).The operative facts culled from the decision of the Court of Appeals are as follows:Private respondents were passengers of an International Harvester Scout Car (Scout Car) owned by respondent Ramos, which left Manila for Camarines Norte in the morning of December 27, 1977 with respondent Fernando Abcede, Sr. as the driver of the vehicle.There was a drizzle at about 4:10 P.M. when the Scout car, which was then negotiating the zigzag road of Bo. Paraiso, Sta. Elena, Camarines Norte, was hit on its left side by a bus. The bus was owned by petitioner Emiliano Manuel. Due to the impact, the Scout car was thrown backwards against a protective railing. Were it not for the railing, the Scout car would have fallen into a deep ravine. All its ten occupants, which included four children were injured, seven of the victims sustained serious physical injuries (Rollo, p. 28).Emiliano Manuel, the driver of the bus, was prosecuted for multiple physical injuries through reckless imprudence in the Municipal Court of Sta. Elena, Camarines Norte. As he could not be found after he ceased reporting for work a few days following the incident, the private respondents filed the instant action for damages based onquasi-delict.After trial, the courta quorendered judgment against petitioners and Perla Compania de Seguros, that covered the insurance of the bus. The court ordered them to pay, jointly and severally, the amount of P49,954.86 in damages to respondents.On appeal, the Court of Appeals, affirmed the decision of the trial court.In their appeal before us, petitioners contend that it was Fernando Abcede, Jr., driver of the Scout car, who was at fault. Besides, petitioners claim the Fernando Abcede, Jr., who was only 19-years old at the time of the incident, did not have a driver's license (Rollo, p. 10).Proof of this, according to petitioners, was that:Immediately after the incident, the bus conductor Cesar Pica and passengers, including Maximino Jaro, alighted from the bus. A woman passenger of the IH Scout car, Mrs. Ramos, was heard saying: "Iyan na nga ba ang sinasabi ko, napakalakas ng loob," referring to young man, Fernando Abcede, Jr. who was the driver of the IH Scout car (tsn., p. 43, November 19, 1979; tsn, p. 23-A. February 7, 1980) . . . (Rollo, p. 75).Likewise, petitioner questioned the accuracy of the pictures and sketches submitted by private respondents as evidence that the Superlines bus encroached on the lane of the Scout car. According to them, the sketch made by the police investigator showing the skid marks of the bus, is inadmissible as evidence because it was prepared the day after the incident and the alleged "tell-tale" skid marks and other details had already been obliterated by the heavy downpour which lasted for at least an hour after the accident (Rollo, p. 87). Likewise, they claim that the policeman who prepared the sketch was not the police officer assigned to conduct the investigation (Rollo, pp. 88-89).While it may be accepted that some of the skid marks may have been erased by the "heavy downpour" on or about the time of the accident, it remains a possibility that not all skid marks were washed away. The strong presumption of regularity in the performance of official duty (Rule 131, Sec. 3(m), 1989 Rules on Evidence) erases, in the absence of evidence to the contrary, any suspicions that the police investigator just invented the skid marks indicated in his report.Granting, however, that the skid marks in the questioned sketch were inaccurate, nonetheless, the finding of the Court of Appeals that the collision took place within the lane of the Scout car was supported by other conclusive evidence. "Indeed, a trail of broken glass which was scattered along the car's side of the road, whereas the bus lane was entirely clear of debris (Exhibit "L-1," p. 34, Records, pp. 56-65; TSN, Session of March 14, 1979)" (Rollo, p. 31).Furthermore, the fact that the Scout car was found after the impact at rest against the guard railing shows that it must have been hit and thrown backwards by the bus (Rollo, p. 103). The physical evidence do not show that the Superlines Bus while traveling at high speed, usurped a portion of the lane occupied by the Scout car before hitting it on its left side. On collision, the impact due to the force exerted by a heavier and bigger passenger bus on the smaller and lighter Scout car, heavily damaged the latter and threw it against the guard railing.Petitioner's contention that the Scout car must have been moved backwards is not only a speculation but is contrary to human experience. There was no reason to move it backwards against the guard railing. If the purpose was to clear the road, all that was done was to leave it where it was at the time of the collision, which was well inside its assigned lane. Besides, even petitioners accept the fact that when the police arrived at the scene of the accident, they found no one thereat (Rollo, p. 13). This further weakens the possibility that some persons moved the Scout car to rest on the guard railing.The evidence with respect to the issue that Fernando Abcede, Jr. who was not duly licensed, was the one driving the Scout car at the time of the accident, could not simply exempt petitioner's liability because they were parties at fault for encroaching on the Scout car's lane (Rollo, pp. 29-30).Nevertheless, the witnesses presented by petitioners who allegedly saw "the younger Abcede pined behind the driver's wheels," testified on matters that transpired after the accident. Discrediting this allegation, the Court of Appeals noted that none of the aforesaid witnesses actually saw the younger Abcede driving the car and that the younger Abcede could have simply been thrown off his seat toward the steering wheel (Rollo, p. 29).Be that as it may, this Court has followed a well-entrenched principle that the factual findings of the Court of Appeals are normally given great weight, more so when the findings tally with the findings of the trial court and are supported by the evidence (Francisco v. Magbitang, 173 SCRA 382 [1989]; New Owners/Management of TML Garments, Inc. v. Zaragosa, 170 SCRA 563-564 [1989]).The reason for this entrenched principle is given inChemplex (Phils.), Inc., et al.v.Ramon C.Pamatian, et al.,57 SCRA 408 [1974], thus:This Court is not a trier of facts, and it is beyond its function to make its own findings of certain vital facts different from those of the trial court, especially on the basis of the conflicting claims of the parties and without the evidence being properly before it. For this Court to make such factual conclusions is entirely unjustified first, because if material facts are controverted, as in this case, and they are issues being litigated before the lower court, the petition forcertiorariwould not be in aid of the appellate jurisdiction of this Court; and, secondly, because it preempts the primary function of the lower court, namely, to try the case on the merits, receive all the evidence to presented by the parties, and only then come to a definite decision, including either the maintenance or the discharge of the preliminary injunction it has issued.Appellants, likewise, contested the awarded damages as excessive and unsubstantiated. The trial court's findings show otherwise, as can be gleaned from the following excerpt of this decision:Plaintiffs were able to prove their injuries and submitted evidence to show expenses for their treatment, hospitalization and incidental disbursement (Exhs. AA to HH and their submarkings), having a total amount of P12,204.86 which had admittedly (sic) shouldered by plaintiff Ernesto Ramos. Considering the nature of the injuries as shown by the respective Medical Certificates (Exhs. A to J and their submarkings) said amount is very reasonable. It was also shown that the Scout car is a total wreck, the value of which was estimated to be P20,000.00 which may be the same amount to put (sic) into a running condition. We consider, likewise said amount reasonable taking into account its brand (International Harvester Scout car). The above mentioned damages are considered actual or compensatory (Par. 1 Art. 2197 in relation to Art. 2199, New Civil Code). Evidence was also adduced showing that as a result of the incident and the resultant injuries there had been an impairment on the earning capacity of some of the plaintiffs (Fernando Abcede, Sr., Anacleta Zanarosa, Ernesto Ramos and Goyena Ramos) which are recoverable pursuant to Article 2205 of the New Civil Code. Considering the nature of their injuries one month each loss of income seem reasonable. Attorney's fees and expenses of litigation is also proper. Since the act complained of falls under the aegis ofquasi-delict(culpa aquilina), moral damages is likewise available to plaintiffs pursuant to Article 2219 also of the New Civil Code (Rollo, pp. 113-114).In addition, moral damages may be recovered if they are the proximate results of defendant's wrongful acts or omission as in this case (Banson vs. CA, 175 SCRA 297 [1989]).WHEREFORE, the petition is DENIED and the Decision of the Court of Appeals is AFFIRMED, with costs against petitioners.SO ORDERED.

G.R. No. 129792 December 21, 1999JARCO MARKETING CORPORATION, LEONARDO KONG, JOSE TIOPE and ELISA PANELO,petitioners,vs.HONORABLE COURT OF APPEALS, CONRADO C. AGUILAR and CRISELDA R. AGUILAR,respondents.DAVIDE, JR.,J.:In this petition for review oncertiorariunder Rule 45 of the Rules of Court, petitioners seek the reversal of the 17 June 1996 decision1of the Court of Appeals in C.A. G.R. No. CV 37937 and the resolution2denying their motion for reconsideration. The assailed decision set aside the 15 January 1992 judgment of the Regional Trial Court (RTC), Makati City, Branch 60 in Civil Case No. 7119 and ordered petitioners to pay damages and attorney's fees to private respondents Conrado and Criselda (CRISELDA) Aguilar.Petitioner Jarco Marketing Corporation is the owner of Syvel's Department Store, Makati City. Petitioners Leonardo Kong, Jose Tiope and Elisa Panelo are the store's branch manager, operations manager, and supervisor, respectively. Private respondents are spouses and the parents of Zhieneth Aguilar (ZHIENETH).In the afternoon of 9 May 1983, CRISELDA and ZHIENETH were at the 2nd floor of Syvel's Department Store, Makati City. CRISELDA was signing her credit card slip at the payment and verification counter when she felt a sudden gust of wind and heard a loud thud. She looked behind her. She then beheld her daughter ZHIENETH on the floor, her young body pinned by the bulk of the store's gift-wrapping counter/structure. ZHIENETH was crying and screaming for help. Although shocked, CRISELDA was quick to ask the assistance of the people around in lifting the counter and retrieving ZHIENETH from the floor.3ZHIENETH was quickly rushed to the Makati Medical Center where she was operated on. The next day ZHIENETH lost her speech and thereafter communicated with CRISELDA by writing on a magic slate. The injuries she sustained took their toil on her young body. She died fourteen (14) days after the accident or on 22 May 1983, on the hospital bed. She was six years old.4The cause of her death was attributed to the injuries she sustained. The provisional medical certificate5issued by ZHIENETH's attending doctor described the extent of her injuries:Diagnoses:1. Shock, severe, sec. to intra-abdominal injuries due to blunt injury2. Hemorrhage, massive, intraperitoneal sec. to laceration, (L) lobe liver3. Rupture, stomach, anterior & posterior walls4. Complete transection, 4th position, duodenum5. Hematoma, extensive, retroperitoneal6. Contusion, lungs, severeCRITICALAfter the burial of their daughter, private respondents demanded upon petitioners the reimbursement of the hospitalization, medical bills and wake and funeral expenses6which they had incurred. Petitioners refused to pay. Consequently, private respondents filed a complaint for damages, docketed as Civil Case No. 7119 wherein they sought the payment of P157,522.86 for actual damages, P300,000 for moral damages, P20,000 for attorney's fees and an unspecified amount for loss of income and exemplary damages.In their answer with counterclaim, petitioners denied any liability for the injuries and consequent death of ZHIENETH. They claimed that CRISELDA was negligent in exercising care and diligence over her daughter by allowing her to freely roam around in a store filled with glassware and appliances. ZHIENETH too, was guilty of contributory negligence since she climbed the counter, triggering its eventual collapse on her. Petitioners also emphasized that the counter was made of sturdy wood with a strong support; it never fell nor collapsed for the past fifteen years since its construction.Additionally, petitioner Jarco Marketing Corporation maintained that it observed the diligence of a good father of a family in the selection, supervision and control of its employees. The other petitioners likewise raised due care and diligence in the performance of their duties and countered that the complaint was malicious for which they suffered besmirched reputation and mental anguish. They sought the dismissal of the complaint and an award of moral and exemplary damages and attorney's fees in their favor.In its decision7the trial court dismissed the complaint and counterclaim after finding that the preponderance of the evidence favored petitioners. It ruled that the proximate cause of the fall of the counter on ZHIENETH was her act of clinging to it. It believed petitioners' witnesses who testified that ZHIENETH clung to the counter, afterwhich the structure and the girl fell with the structure falling on top of her, pinning her stomach. In contrast, none of private respondents' witnesses testified on how the counter fell. The trial court also held that CRISELDA's negligence contributed to ZHIENETH's accident.In absolving petitioners from any liability, the trial court reasoned that the counter was situated at the end or corner of the 2nd floor as a precautionary measure hence, it could not be considered as an attractive nuisance.8The counter was higher than ZHIENETH. It has been in existence for fifteen years. Its structure was safe and well-balanced. ZHIENETH, therefore, had no business climbing on and clinging to it.Private respondents appealed the decision, attributing as errors of the trial court its findings that: (1) the proximate cause of the fall of the counter was ZHIENETH's misbehavior; (2) CRISELDA was negligent in her care of ZHIENETH; (3) petitioners were not negligent in the maintenance of the counter; and (4) petitioners were not liable for the death of ZHIENETH.Further, private respondents asserted that ZHIENETH should be entitled to the conclusive presumption that a child below nine (9) years is incapable of contributory negligence. And even if ZHIENETH, at six (6) years old, was already capable of contributory negligence, still it was physically impossible for her to have propped herself on the counter. She had a small frame (four feet high and seventy pounds) and the counter was much higher and heavier than she was. Also, the testimony of one of the store's former employees, Gerardo Gonzales, who accompanied ZHIENETH when she was brought to the emergency room of the Makati Medical Center belied petitioners' theory that ZHIENETH climbed the counter. Gonzales claimed that when ZHIENETH was asked by the doctor what she did, ZHIENETH replied, "[N]othing, I did not come near the counter and the counter just fell on me."9Accordingly, Gonzales' testimony on ZHIENETH's spontaneous declaration should not only be considered as part ofres gestaebut also accorded credit.Moreover, negligence could not be imputed to CRISELDA for it was reasonable for her to have let go of ZHIENETH at the precise moment that she was signing the credit card slip.Finally, private respondents vigorously maintained that the proximate cause of ZHIENETH's death, was petitioners' negligence in failing to institute measures to have the counter permanently nailed.On the other hand, petitioners argued that private respondents raised purely factual issues which could no longer be disturbed. They explained that ZHIENETH's death while unfortunate and tragic, was an accident for which neither CRISELDA nor even ZHIENETH could entirely be held faultless and blameless. Further, petitioners adverted to the trial court's rejection of Gonzales' testimony as unworthy of credence.As to private respondent's claim that the counter should have been nailed to the ground, petitioners justified that it was not necessary. The counter had been in existence for several years without any prior accident and was deliberately placed at a corner to avoid such accidents. Truth to tell, they acted without fault or negligence for they had exercised due diligence on the matter. In fact, the criminal case10for homicide through simple negligence filed by private respondents against the individual petitioners was dismissed; a verdict of acquittal was rendered in their favor.The Court of Appeals, however, decided in favor of private respondents and reversed the appealed judgment. It found that petitioners were negligent in maintaining a structurally dangerous counter. The counter was shaped like an inverted "L"11with a top wider than the base. It was top heavy and the weight of the upper portion was neither evenly distributed nor supported by its narrow base. Thus, the counter was defective, unstable and dangerous; a downward pressure on the overhanging portion or a push from the front could cause the counter to fall. Two former employees of petitioners had already previously brought to the attention of the management the danger the counter could cause. But the latter ignored their concern. The Court of Appeals faulted the petitioners for this omission, and concluded that the incident that befell ZHIENETH could have been avoided had petitioners repaired the defective counter. It was inconsequential that the counter had been in use for some time without a prior incident.The Court of Appeals declared that ZHIENETH, who was below seven (7) years old at the time of the incident, was absolutely incapable of negligence or other tort. It reasoned that since a child under nine (9) years could not be held liable even for an intentional wrong, then the six-year old ZHIENETH could not be made to account for a mere mischief or reckless act. It also absolved CRISELDA of any negligence, finding nothing wrong or out of the ordinary in momentarily allowing ZHIENETH to walk while she signed the document at the nearby counter.The Court of Appeals also rejected the testimonies of the witnesses of petitioners. It found them biased and prejudiced. It instead gave credit to the testimony of disinterested witness Gonzales. The Court of Appeals then awarded P99,420.86 as actual damages, the amount representing the hospitalization expenses incurred by private respondents as evidenced by the hospital's statement of account.12It denied an award for funeral expenses for lack of proof to substantiate the same. Instead, a compensatory damage of P50,000 was awarded for the death of ZHIENETH.We quote the dispositive portion of the assailed decision,13thus:WHEREFORE, premises considered, the judgment of the lower court is SET ASIDE and another one is entered against [petitioners], ordering them to pay jointly and severally unto [private respondents] the following:1. P50,000.00 by way of compensatory damages for the death of Zhieneth Aguilar, with legal interest (6% p.a.) from 27 April 1984;2. P99,420.86 as reimbursement for hospitalization expenses incurred; with legal interest (6% p.a.) from 27 April 1984;3. P100,000.00 as moral and exemplary damages;4. P20,000.00 in the concept of attorney's fees; and5. Costs.Private respondents sought a reconsideration of the decision but the same was denied in the Court of Appeals' resolution14of 16 July 1997.Petitioners now seek the reversal of the Court of Appeals' decision and the reinstatement of the judgment of the trial court. Petitioners primarily argue that the Court of Appeals erred in disregarding the factual findings and conclusions of the trial court. They stress that since the action was based on tort, any finding of negligence on the part of the private respondents would necessarily negate their claim for damages, where said negligence was the proximate cause of the injury sustained. The injury in the instant case was the death of ZHIENETH. The proximate cause was ZHIENETH's act of clinging to the counter. This act in turn caused the counter to fall on her. This and CRISELDA's contributory negligence, through her failure to provide the proper care and attention to her child while inside the store, nullified private respondents' claim for damages. It is also for these reasons that parents are made accountable for the damage or injury inflicted on others by their minor children. Under these circumstances, petitioners could not be held responsible for the accident that befell ZHIENETH.Petitioners also assail the credibility of Gonzales who was already separated from Syvel's at the time he testified; hence, his testimony might have been tarnished by ill-feelings against them.For their part, private respondents principally reiterated their arguments that neither ZHIENETH nor CRISELDA was negligent at any time while inside the store; the findings and conclusions of the Court of Appeals are substantiated by the evidence on record; the testimony of Gonzales, who heard ZHIENETH comment on the incident while she was in the hospital's emergency room should receive credence; and finally, ZHIENETH's part of theres gestaedeclaration "that she did nothing to cause the heavy structure to fall on her" should be considered as the correct version of the gruesome events.We deny the petition.The two issues to be resolved are: (1) whether the death of ZHIENETH was accidental or attributable to negligence; and (2) in case of a finding of negligence, whether the same was attributable to private respondents for maintaining a defective counter or to CRISELDA and ZHIENETH for failing to exercise due and reasonable care while inside the store premises.An accident pertains to an unforeseen event in which no fault or negligence attaches to the defendant.15It is "a fortuitous circumstance, event or happening; an event happening without any human agency, or if happening wholly or partly through human agency, an event which under the circumstances is unusual or unexpected by the person to whom it happens."16On the other hand, negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do.17Negligence is "the failure to observe, for the protection of the interest of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury."18Accident and negligence are intrinsically contradictory; one cannot exist with the other. Accident occurs when the person concerned is exercising ordinary care, which is not caused by fault of any person and which could not have been prevented by any means suggested by common prudence.19The test in determining the existence of negligence is enunciated in the landmark case ofPlicart v. Smith,20thus: 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.21We rule that the tragedy which befell ZHIENETH was no accident and that ZHIENETH's death could only be attributed to negligence.We quote the testimony of Gerardo Gonzales who was at the scene of the incident and accompanied CRISELDA and ZHIENETH to the hospital:Q While at the Makati Medical Center, did you hear or notice anything while the child was being treated?A At the emergency room we were all surrounding the child. And when the doctor asked the child "what did you do," the child said "nothing, I did not come near the counter and the counter just fell on me."Q (COURT TO ATTY. BELTRAN)You want the words in Tagalog to be translated?ATTY. BELTRANYes, your Honor.COURTGranted. Intercalate "wala po, hindi po ako lumapit doon. Basta bumagsak."22This testimony of Gonzales pertaining to ZHIENETH's statement formed (and should be admitted as) part of theres gestaeunder Section 42, Rule 130 of the Rules of Court, thus:Part ofres gestae. Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of theres gestae. So, also, statements accompanying an equivocal act material to the issue, and giving it a legal significance, may be received as part of theres gestae.It is axiomatic that matters relating to declarations of pain or suffering and statements made to a physician are generally considered declarations and admissions.23All that is required for their admissibility as part of theres gestaeis that they be made or uttered under the influence of a startling event before the declarant had the time to think and concoct a falsehood as witnessed by the person who testified in court. Under the circumstances thus described, it is unthinkable for ZHIENETH, a child of such tender age and in extreme pain, to have lied to a doctor whom she trusted with her life. We therefore accord credence to Gonzales' testimony on the matter,i.e., ZHIENETH performed no act that facilitated her tragic death. Sadly, petitioners did, through their negligence or omission to secure or make stable the counter's base.Gonzales' earlier testimony on petitioners' insistence to keep and maintain the structurally unstable gift-wrapping counter proved their negligence, thus:Q When you assumed the position as gift wrapper at the second floor, will you please describe the gift wrapping counter, were you able to examine?A Because every morning before I start working I used to clean that counter and since not nailed and it was only standing on the floor, it was shaky.xxx xxx xxxQ Will you please describe the counter at 5:00 o'clock [sic] in the afternoon on [sic] May 9 1983?A At that hour on May 9, 1983, that counter was standing beside the verification counter. And since the top of it was heavy and considering that it was not nailed, it can collapse at anytime, since the top is heavy.xxx xxx xxxQ And what did you do?A I informed Mr. Maat about that counter which is [sic] shaky and since Mr. Maat is fond of putting display decorations on tables, he even told me that I would put some decorations. But since I told him that it not [sic] nailed and it is shaky he told me "better inform also the company about it." And since the company did not do anything about the counter, so I also did not do anything about the counter.24[Emphasis supplied]Ramon Guevarra, another former employee, corroborated the testimony of Gonzales, thus:Q Will you please described [sic] to the honorable Court the counter where you were assigned in January 1983?xxx xxx xxxA That counter assigned to me was when my supervisor ordered me to carry that counter to another place. I told him that the counter needs nailing and it has to be nailed because it might cause injury or accident to another since it was shaky.Q When that gift wrapping counter was transferred at the second floor on February 12, 1983, will you please describe that to the honorable Court?A I told her that the counter wrapper [sic] is really in good [sic] condition; it was shaky. I told her that we had to nail it.Q When you said she, to whom are you referring to [sic]?A I am referring to Ms. Panelo, sir.Q And what was the answer of Ms. Panelo when you told her that the counter was shaky?A She told me "Why do you have to teach me. You are only my subordinate and you are to teach me?" And she even got angry at me when I told her that.xxx xxx xxxQ From February 12, 1983 up to May 9, 1983, what if any, did Ms. Panelo or any employee of the management do to that (sic)xxx xxx xxxWitness:None, sir. They never nailed the counter.They only nailed the counter after the accident happened.25[Emphasis supplied]Without doubt, petitioner Panelo and another store supervisor were personally informed of the danger posed by the unstable counter. Yet, neither initiated any concrete action to remedy the situation nor ensure the safety of the store's employees and patrons as a reasonable and ordinary prudent man would have done. Thus, as confronted by the situation petitioners miserably failed to discharge the due diligence required of a good father of a family.On the issue of the credibility of Gonzales and Guevarra, petitioners failed to establish that the former's testimonies were biased and tainted with partiality. Therefore, the allegation that Gonzales and Guevarra's testimonies were blemished by "ill feelings" against petitioners since they (Gonzales and Guevarra) were already separated from the company at the time their testimonies were offered in court was but mere speculation and deserved scant consideration.It is settled that when the issue concerns the credibility of witnesses, the appellate courts will not as a general rule disturb the findings of the trial court, which is in a better position to determine the same. The trial court has the distinct advantage of actually hearing the testimony of and observing the deportment of the witnesses.26However, the rule admits of exceptions such as when its evaluation was reached arbitrarily or it overlooked or failed to appreciate some facts or circumstances of weight and substance which could affect the result of the case.27In the instant case, petitioners failed to bring their claim within the exception.Anent the negligence imputed to ZHIENETH, we apply the conclusive presumption that favors children below nine (9) years old in that they are incapable of contributory negligence. In his book,28former Judge Cezar S. Sangco stated:In our jurisdiction, a person under nine years of age is conclusively presumed to have acted without discernment, and is, on that account, exempt from criminal liability. The same presumption and a like exemption from criminal liability obtains in a case of a person over nine and under fifteen years of age, unless it is shown that he has acted with discernment. Since negligence may be a felony and aquasi-delictand required discernment as a condition of liability, either criminal or civil, a child under nine years of age is, by analogy, conclusively presumed to be incapable of negligence; and that the presumption of lack of discernment or incapacity for negligence in the case of a child over nine but under fifteen years of age is a rebuttable one, under our law. The rule, therefore, is that a child under nine years of age must be conclusively presumed incapable of contributory negligence as a matter of law. [Emphasis supplied]Even if we attribute contributory negligence to ZHIENETH and assume that she climbed over the counter, no injury should have occurred if we accept petitioners' theory that the counter was stable and sturdy. For if that was the truth, a frail six-year old could not have caused the counter to collapse. The physical analysis of the counter by both the trial court and Court of Appeals and a scrutiny of the evidence29on record reveal otherwise,i.e., it was not durable after all. Shaped like an inverted "L," the counter was heavy, huge, and its top laden with formica. It protruded towards the customer waiting area and its base was not secured.30CRISELDA too, should be absolved from any contributory negligence. Initially, ZHIENETH held on to CRISELDA's waist, later to the latter's hand.31CRISELDA momentarily released the child's hand from her clutch when she signed her credit card slip. At this precise moment, it was reasonable and usual for CRISELDA to let go of her child. Further, at the time ZHIENETH was pinned down by the counter, she was just a foot away from her mother; and the gift-wrapping counter was just four meters away from CRISELDA.32The time and distance were both significant. ZHIENETH was near her mother and did not loiter as petitioners would want to impress upon us. She even admitted to the doctor who treated her at the hospital that she did not do anything; the counter just fell on her.WHEREFORE, in view of all the foregoing, the instant petition is DENIED and the challenged decision of the Court of Appeals of 17 June 1996 in C.A. G.R. No. CV 37937 is hereby AFFIRMED.Costs against petitioners.SO ORDERED.

G.R. No. 89880 February 6, 1991EMMA ADRIANO BUSTAMANTE, in her own behalf as Guardian-Ad-Litem of minors: ROSSEL, GLORIA, YOLANDA, ERIC SON and EDERIC, all surnamed BUSTAMANTE, Spouses SALVADOR JOCSON and PATRIA BONE-JOCSON, Spouses JOSE RAMOS and ENRIQUETA CEBU-RAMOS, Spouses NARCISO-HIMAYA and ADORACION MARQUEZ-HIMAYA, and Spouses JOSE BERSAMINA and MA. COMMEMORACION PEREA-BUSTAMANTE,petitioners,vs.THE HONORABLE COURT OF APPEALS, FEDERICO DEL PILAR AND EDILBERTO MONTESIANO,respondents.Dolorfino and Dominguez Law Offices for petitioners.J.C. Baldoz & Associates for private respondents.

MEDIALDEA,J.:This is a petition for review oncertiorariseeking the reversal of the decision of the respondent Court of Appeals dated February 15, 1989 which reversed and set aside the decision of the Regional Trial Court of Cavite, Branch XV ordering the defendants to pay jointly and severally the plaintiffs indemnity for death and damages; and in further dismissing the complaint insofar as defendants-appellants Federico del Pilar and Edilberto Montesiano are concerned; and its resolution dated August 17, 1989 denying the motion for reconsideration for lack of merit.The facts giving rise to the controversy at bar are recounted by the trial court as follows:At about 6:30 in the morning of April 20, 1983, a collision occurred between a gravel and sand truck, with Plate No. DAP 717, and a Mazda passenger bus with Motor No. Y2231 and Plate No. DVT 259 along the national road at Calibuyo, Tanza, Cavite. The front left side portion (barandilla) of the body of the truck sideswiped the left side wall of the passenger bus, ripping off the said wall from the driver's seat to the last rear seat.Due to the impact, several passengers of the bus were thrown out and died as a result of the injuries they sustained, Among those killed were the following:1. Rogelio Bustamante, 40, husband of plaintiff Emma Adriano Bustamante and father of plaintiffs Rossel, Gloria, Yolanda, Ericson, and Ederic, all surnamed Bustamante;2. Maria Corazon Jocson, 16, daughter of plaintiffs spouses Salvador and Patria Jocson;3. Jolet C. Ramos, 16, daughter of plaintiffs spouses Jose and Enriqueta Ramos;4. Enrico Himaya, 18, son of plaintiffs spouses Narciso and Adoracion Himaya; and5. Noel Bersamina, 17, son of plaintiffs spouses Jose and Ma. Commemoracion Bersamina. (Rollo, p. 48)During the incident, the cargo truck was driven by defendant Montesiano and owned by defendant Del Pilar; while the passenger bus was driven by defendant Susulin. The vehicle was registered in the name of defendant Novelo but was owned and/or operated as a passenger bus jointly by defendants Magtibay and Serrado, under a franchise, with a line from Naic, Cavite, to Baclaran, Paranaque, Metro Manila, and vice versa, which Novelo sold to Magtibay on November 8, 1981, and which the latter transferred to Serrado (Cerrado) on January 18, 1983.Immediately before the collision, the cargo truck and the passenger bus were approaching each other, coming from the opposite directions of the highway. While the truck was still about 30 meters away, Susulin, the bus driver, saw the front wheels of the vehicle wiggling. He also observed that the truck was heading towards his lane. Not minding this circumstance due to his belief that the driver of the truck was merely joking, Susulin shifted from fourth to third gear in order to give more power and speed to the bus, which was ascending the inclined part of the road, in order to overtake or pass a Kubota hand tractor being pushed by a person along the shoulder of the highway. While the bus was in the process of overtaking or passing the hand tractor and the truck was approaching the bus, the two vehicles sideswiped each other at each other's left side. After the impact, the truck skidded towards the other side of the road and landed on a nearby residential lot, hitting a coconut tree and felling it." (Rollo, pp. 48-50)After a careful perusal of the circumstances of the case, the trial court reached the conclusion "that the negligent acts of both drivers contributed to or combined with each other in directly causing the accident which led to the death of the aforementioned persons. It could not be determined from the evidence that it was only the negligent act of one of them which was the proximate cause of the collision. In view of this, the liability of the two drivers for their negligence must be solidary. (Rollo, pp. 50-51) Accordingly, the trial court rendered a decision on March 7, 1986, the dispositive portion is hereunder quoted as follows:WHEREFORE, defendants Valeriano Magtibay, Simplicio Serrado, Ricardo Susulin, Efren Novelo, Federico del Pilar and Edilberto Montesiano are hereby ordered to pay jointly and severally to the plaintiffs, as follows:1. To plaintiffs Emma Adriano Bustamante and her minor children, the sum of P30,000.00 as indemnity for the death of Rogelio Bustamante; U.S. $127,680.00 as indemnity for the loss of the earning capacity of the said deceased, at its prevailing rate in pesos at the time this decision shall have become final and executory; P10,000.00 as moral damages; and P5,000.00 as exemplary damages;2. To plaintiffs Salvador and Patria Jocson, the sum of P30,000.00 as indemnity for the death of their daughter, Maria Corazon Jocson; P10,000.00 as moral damages; and P5,000.00 as exemplary damages;3. To plaintiffs Jose and Enriqueta Ramos, the sum of P30,000.00 as indemnity for the death of their daughter, Jolet Ramos; P10,000.00 as moral damages; and P5,000.00 as exemplary damages; and4. To plaintiffs Narciso and Adoracion Himaya, the amount of P30,000.00 as indemnity for the death of their son, Enrico Himaya, P10,000.00 as moral damages; and P5,000.00 as exemplary damages; and5. To plaintiffs Jose and Ma. Commemoracion Bersamina, the sum of P30,000.00 as indemnity for the death of their son, Noel Bersamina, P10,000.00 as moral damages and P5,000.00 as exemplary damages.The defendants are also required to pay the plaintiffs the sum of P10,000.00 as attorney's fees and to pay the costs of the suit.The cross-claim of defendant Novelo is hereby allowed, and defendants Magtibay and Serrado, the actual owners and/or operators of the passenger bus concerned, are hereby ordered to indemnify Novelo in such amount as he may be required to pay as damages to the plaintiffs.The cross-claims and counter-claims of the other defendants are hereby dismissed for lack of merit.SO ORDERED. (pp. 55-57,Rollo)From said decision, only defendants Federico del Pilar and Edilberto Montesiano, owner and driver, respectively, of the sand and gravel truck have interposed an appeal before the respondent Court of Appeals. The Court of Appeals decided the appeal on a different light. It rendered judgment on February 15, 1989, to wit:WHEREFORE, the appealed judgment is hereby REVERSED and SET ASIDE and the complaint dismissed insofar as defendants-appellants Federico del Pilar and Edilberto Montesiano are concerned. No costs in this instance.SO ORDERED. (p. 96,Rollo)On March 9, 1989, the plaintiffs-appellees filed a motion for reconsideration of the aforementioned Court of Appeals' decision. However, respondent Court of Appeals in a resolution dated August 17, 1989 denied the motion for lack of merit. Hence, this petition.Petitioners raised the following questions of law, namely:First. Whether the respondent Court can legally and validly absolve defendants-appellants from liability despite its own finding, as well as that of the trial court that defendant-appellant Edilberto Montesiano, the cargo truck driver, was driving an old vehicle very fast, with its wheels already wiggling, such that he had no more control of his truck.Second. Whether the respondent court can validly and legally disregard the findings of fact made by the trial court which was in a better position to observe the conduct and demeanor of the witnesses, particularly appellant Edilberto Montesiano, cargo truck driver, and which conclusively found appellant Montesiano as jointly and severally negligent in driving his truck very fast and had lost control of his truck.Third. Whether the respondent court has properly and legally applied the doctrine of "last clear chance" in the present case despite its own finding that appellant cargo truck driver Edilberto Montesiano was admittedly negligent in driving his cargo truck very fast on a descending road and in the presence of the bus driver coming from the opposite direction.Fourth. Whether the respondent court has applied the correct law and the correct doctrine so as to reverse and set aside the judgment with respect to defendants-appellants. (Rollo, pp. 133-134)As a rule, findings of fact of the Court of Appeals are final and conclusive and cannot be reviewed on appeal, provided, they are borne out by the record or are based on substantial evidence However, this rule admits of certain exceptions, as when the findings of facts are conclusions without citation of specific evidence on which they are based; or the appellate court's findings are contrary to those of the trial court. (Sese v. Intermediate Appellate Court, G.R. 66168, 31 July 1987, 152 SCRA 585).Furthermore, only questions of law may be raised in a petition for review oncertiorariunder Rule 45 of the Revised Rules of Court. The jurisdiction of the Supreme Court in cases brought to it from the Court of Appeals is limited to reviewing and revising the errors of law imputed to it, its findings of fact being conclusive. It is not the function of the Supreme Court to analyze or weigh such evidence all over again, its jurisdiction being limited to reviewing errors of law that might have been committed. Barring, therefore, a showing that the findings complained of are totally devoid of support in the records, or that they are so glaringly erroneous as to constitute serious abuse of discretion, such findings must stand for the Supreme Court is not expected or required to examine or contrast the oral and documentary evidence submitted by the parties. (Andres v. Manufacturers Hanover and Trust Corp., G.R. 82670, 15 September 1989, 177 SCRA 618).Bearing in mind these basic principles, We have opted to re-examine the findings of fact mainly because the appellate court's findings are contrary to those of the trial court.The trial court, in declaring that the negligent acts of both drivers directly caused the accident which led to the death of the aforementioned persons, considered the following:It was negligent on the part of driver Montesiano to have driven his truck fast, considering that it was an old vehicle, being a 1947 model as admitted by its owner, defendant Del Pilar; that its front wheels were wiggling; that the road was descending; and that there was a passenger bus approaching it. Likewise, driver Susulin was also guilty of negligence in not taking the necessary precaution to avoid the collision, in the light of his admission that, at a distance of 30 meters, he already saw the front wheels of the truck wiggling and that the vehicle was usurping his lane coming towards his direction. Had he exercised ordinary prudence, he could have stopped his bus or swerved it to the side of the road even down to its shoulder. And yet, Susulin shifted to third gear so as to, as claimed by him, give more power and speed to his bus in overtaking or passing a hand tractor which was being pushed along the shoulder of the road. (Rollo, p. 50)The respondent Court of Appeals ruling on the contrary, opined that "the bus driver had the last clear chance to avoid the collision and his reckless negligence in proceeding to overtake the hand tractor was the proximate cause of the collision." (Rollo, p. 95). Said court also noted that "the record also discloses that the bus driver was not a competent and responsible driver. His driver's license was confiscated for a traffic violation on April 17, 1983 and he was using a ticket for said traffic violation on the day of the accident in question (pp. 16-18, TSN, July 23, 1984). He also admitted that he was not a regular driver of the bus that figured in the mishap and was not given any practical examination. (pp. 11, 96, TSN, supra)." (Rollo, p96)The respondent Court quoting People v. Vender, CA-G.R. 11114-41-CR, August 28, 1975 held that "We are not prepared to uphold the trial court's finding that the truck was running fast before the impact. The national road, from its direction, was descending. Courts can take judicial notice of the fact that a motor vehicle going down or descending is more liable to get out of control than one that is going up or ascending for the simple reason that the one which is going down gains added momentum while that which is going up loses its initial speeding in so doing."On the other hand, the trial court found and We are convinced that the cargo truck was running fast. It did not overlook the fact that the road was descending as in fact it mentioned this circumstance as one of the factors disregarded by the cargo truck driver along with the fact that he was driving an old 1947 cargo truck whose front wheels are already wiggling and the fact that there is a passenger bus approaching it. In holding that the driver of the cargo truck was negligent, the trial court certainly took into account all these factors so it was incorrect for the respondent court to disturb the factual findings of the trial court, which is in a better position to decide the question, having heard the witness themselves and observed their deportment.The respondent court adopted the doctrine of "last clear chance." The doctrine, stated broadly, is that the negligence of the plaintiff does not preclude a recovery for the negligence of the defendant where it appears that the defendant, by exercising reasonable care and prudence, might have avoided injurious consequences to the plaintiff notwithstanding the plaintiff's negligence. In other words, the doctrine of last clear chance means that even though a person's own acts may have placed him in a position of peril, and an injury results, the injured person is entitled to recovery. As the doctrine is usually stated, a person who has the last clear chance or opportunity of avoiding an accident, notwithstanding the negligent acts of his opponent or that of a third person imputed to the opponent is considered in law solely responsible for the consequences of the accident. (Sangco,Torts and Damages,4th Ed., 1986, p. 165).The practical import of the doctrine is that a negligent defendant is held liable to a negligent plaintiff, or even to a plaintiff who has been grossly negligent in placing himself in peril, if he, aware of the plaintiffs peril, or according to some authorities, should have been aware of it in the reasonable exercise of due case, had in fact an opportunity later than that of the plaintiff to avoid an accident (57 Am. Jur., 2d, pp. 798-799).In the recent case of Philippine Rabbit Bus Lines, Inc. v. Intermediate Appellate Court, et al. (G.R. Nos. 66102-04, August 30, 1990), the Courtcitingthe landmark decision held in the case of Anuran, et al. v. Buno, et al. (123 Phil. 1073) ruled that the principle of "last clear chance" applies "in a suit between the owners and drivers of colliding vehicles. It does not arise where a passenger demands responsibility from the carrier to enforce its contractual obligations. For it would be inequitable to exempt the negligent driver of the jeepney and its owners on the ground that the other driver was likewise guilty of negligence."Furthermore, "as between defendants: The doctrine cannot be extended into the field of joint tortfeasors as a test of whether only one of them should be held liable to the injured person by reason of his discovery of the latter's peril, and it cannot be invoked as between defendants concurrently negligent. As against third persons, a negligent actor cannot defend by pleading that another had negligently failed to take action which could have avoided the injury." (57 Am. Jur. 2d, pp. 806-807).All premises considered, the Court is convinced that the respondent Court committed an error of law in applying the doctrine of last clear chance as between the defendants, since the case at bar is not a suit between the owners and drivers of the colliding vehicles but a suit brought by the heirs of the deceased passengers against both owners and drivers of the colliding vehicles. Therefore, the respondent court erred in absolving the owner and driver of the cargo truck from liability.Pursuant to the new policy of this Court to grant an increased death indemnity to the heirs of the deceased, their respective awards of P30,000.00 are hereby increased to P50,000.00.ACCORDINGLY, the petition is GRANTED; the appealed judgment and resolution of the Court of Appeals are hereby REVERSED and SET ASIDE and the judgment of the lower court is REINSTATED with the modification on the indemnity for death of each of the victims which is hereby increased to P50,000.00 each. No pronouncement as to costs.SO ORDERED.

G.R. No. L-68102 July 16, 1992GEORGE MCKEE and ARACELI KOH MCKEE,petitioners,vs.INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA MANALO,respondents.G.R. No. L-68103 July 16, 1992CARMEN DAYRIT KOH, LETICIA KOH, JULIETA KOH TUQUERO, ARACELI KOH MCKEE, ANTONIO KOH and ELIZABETH KOH TURLA,petitioners,vs.INTERMEDIATE APPELLATE COURT, JAIME TAYAG and ROSALINDA MANALO,respondents.DAVIDE,JR., J.:Petitioners urge this Court to review and reverse the Resolution of the Court of Appeals in C.A.-G.R. CV Nos. 69040-41, promulgated on 3 April 1984, which set aside its previous Decision dated 29 November 1983 reversing the Decision of the trial court which dismissed petitioners' complaints in Civil Case No. 4477 and Civil Case No. 4478 of the then Court of First Instance (now Regional Trial Court) of Pampanga entitled "Carmen Dayrit Koh, Leticia Koh, Julieta Koh Tuquero, Araceli Koh McKee and Elizabeth Koh Turla vs. Jaime Tayag and Rosalinda Manalo," and "George McKee and Araceli Koh McKee vs. Jaime Tayag and Rosalinda Manalo," respectively, and granted the private respondents' counterclaim for moral damages, attorney's fees and litigation expenses.The said civil cases for damages based onquasi-delictwere filed as a result of a vehicular accident which led to the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc and caused physical injuries to George Koh McKee, Christopher Koh McKee and petitioner Araceli Koh McKee.Petitioners in G.R. No. 68102, parents of the minors George Koh McKee, Christopher Koh McKee and the deceased Kim Koh McKee, were the plaintiffs in Civil Case No. 4478, while petitioner Carmen Dayrit Koh and her co-petitioners in G.R. No. 68103, who are the wife and children, respectively, of the late Jose Koh, were the plaintiffs in Civil Case No. 4477. Upon the other hand, private respondents are the owners of the cargo truck which figured in the mishap; a certain Ruben Galang was the driver of the truck at the time of the accident.The antecedent facts are not disputed.Between nine and ten o'clock in the morning of 8 January 1977, in Pulong Pulo Bridge along MacArthur Highway, between Angeles City and San Fernando, Pampanga, a head-on-collision took place between an International cargo truck, Loadstar, with Plate No. RF912-T Philippines '76 owned by private respondents, and driven by Ruben Galang, and a Ford Escort car bearing Plate No. S2-850 Pampanga '76 driven by Jose Koh. The collision resulted in the deaths of Jose Koh, Kim Koh McKee and Loida Bondoc, and physical injuries to George Koh McKee, Christopher Koh McKee and Araceli Koh McKee, all passengers of the Ford Escort.Jose Koh was the father of petitioner Araceli Koh McKee, the mother of minors George, Christopher and Kim Koh McKee. Loida Bondoc, on the other hand, was the baby sitter of one and a half year old Kim. At the time of the collision, Kim was seated on the lap of Loida Bondoc who was at the front passenger's seat of the car while Araceli and her two (2) sons were seated at the car's back seat.Immediately before the collision, the cargo truck, which was loaded with two hundred (200) cavans of rice weighing about 10,000 kilos, was traveling southward from Angeles City to San Fernando Pampanga, and was bound for Manila. The Ford Escort, on the other hand, was on its way to Angeles City from San Fernando. When the northbound car was about (10) meters away from the southern approach of the bridge, two (2) boys suddenly darted from the right side of the road and into the lane of the car. The boys were moving back and forth, unsure of whether to cross all the way to the other side or turn back. Jose Koh blew the horn of the car, swerved to the left and entered the lane of the truck; he then switched on the headlights of the car, applied the brakes and thereafter attempted to return to his lane. Before he could do so, his car collided with the truck. The collision occurred in the lane of the truck, which was the opposite lane, on the said bridge.The incident was immediately reported to the police station in Angeles City; consequently, a team of police officers was forthwith dispatched to conduct an on the spot investigation. In the sketch1prepared by the investigating officers, the bridge is described to be sixty (60) "footsteps" long and fourteen (14) "footsteps" wide seven (7) "footsteps" from the center line to the inner edge of the side walk on both sides.2Pulong Pulo Bridge, which spans a dry brook, is made of concrete with soft shoulders and concrete railings on both sides about three (3) feet high.The sketch of the investigating officer discloses that the right rear portion of the cargo truck was two (2) "footsteps" from the edge of the right sidewalk, while its left front portion was touching the center line of the bridge, with the smashed front side of the car resting on its front bumper. The truck was about sixteen (16) "footsteps" away from the northern end of the bridge while the car was about thirty-six (36) "footsteps" from the opposite end. Skid marks produced by the right front tire of the truck measured nine (9) "footsteps", while skid marks produced by the left front tire measured five (5) "footsteps." The two (2) rear tires of the truck, however, produced no skid marks.In his statement to the investigating police officers immediately after the accident, Galang admitted that he was traveling at thirty (30) miles (48 kilometers) per hour.As a consequence of the collision, two (2) cases, Civil Case No. 4477 and No. 4478, were filed on 31 January 1977 before the then Court of First Instance of Pampanga and were raffled to Branch III and Branch V of the said court, respectively. In the first, herein petitioners in G.R. No. 68103 prayed for the award of P12,000.00 as indemnity for the death of Jose Koh, P150,000.00 as moral damages, P60,000.00 as exemplary damages, P10,000.00 for litigation expenses, P6,000.00 for burial expenses, P3,650.00 for the burial lot and P9,500.00 for the tomb, plus attorney's fees.3In the second case, petitioners in G.R. No. 68102 prayed for the following: (a) in connection with the death of Kim McKee, the sum of P12,000.00 as death benefit, P3,150.00 for funeral services, P3,650.00 for the cemetery lot, P3,000.00 for the tomb, P50,000.00 as moral damages, P10,000.00 as exemplary damages and P2,000.00 as miscellaneous damages; (b) in the case of Araceli Koh McKee, in connection with the serious physical injuries suffered, the sum of P100,000.00 as moral damages, P20,000.00 as exemplary damages, P12,000.00 for loss of earnings, P5,000.00 for the hospitalization expenses up to the date of the filing of the complaint; and (c) with respect to George McKee, Jr., in connection with the serious physical injuries suffered, the sum of P50,000.00 as moral damages, P20,000.00 as exemplary damages and the following medical expenses: P3,400 payable to the Medical Center, P3,500.00 payable to the St. Francis Medical Center, P5,175.00 payable to the Clark Air Base Hospital, and miscellaneous expenses amounting to P5,000.00. They also sought an award of attorney's fees amounting to 25% of the total award plus traveling and hotel expenses, with costs.4On 1 March 1977, an Information charging Ruben Galang with the crime of "Reckless Imprudence Resulting to (sic) Multiple Homicide and Physical Injuries and Damage to Property" was filed with the trial court. It was docketed as Criminal Case No. 3751 and was raffled to Branch V of the court, the same Branch where Civil Case No. 4478 was assigned.5In their Answer with Counterclaim in Civil Case No. 4477, private respondents asserted that it was the Ford Escort car which "invaded and bumped (sic) the lane of the truck driven by Ruben Galang and, as counterclaim, prayed for the award of P15,000.00 as attorney's fees, P20,000.00 as actual and liquidated damages, P100,000.00 as moral damages and P30,000.00 as business losses.6In Civil Case No. 4478, private respondents first filed a motion to dismiss on grounds of pendency of another action (Civil Case No. 4477) and failure to implead an indispensable party, Ruben Galang, the truck driver; they also filed a motion to consolidate the case with Civil Case No. 4477 pending before Branch III of the same court, which was opposed by the plaintiffs.7Both motions were denied by Branch V, then presided over by Judge Ignacio Capulong. Thereupon, private respondents filed their Answer with Counter-claim8wherein they alleged that Jose Koh was the person "at fault having approached the lane of the truck driven by Ruben Galang, . . . which was on the right lane going towards Manila and at a moderate speed observing all traffic rules and regulations applicable under the circumstances then prevailing;" in their counterclaim, they prayed for an award of damages as may be determined by the court after due hearing, and the sums of P10,000.00 as attorney's fees and P5,000.00 as expenses of litigation.Petitioners filed their Answers to the Counterclaims in both cases.To expedite the proceedings, the plaintiffs in Civil Case No. 4478 filed on 27 March 1978 a motion to adopt the testimonies of witnesses taken during the hearing of Criminal Case No. 3751, which private respondents opposed and which the court denied.9Petitioners subsequently moved to reconsider the order denying the motion for consolidation,10which Judge Capulong granted in the Order of 5 September 1978; he then directed that Civil Case No. 4478 be consolidated with Civil Case No. 4477 in Branch III of the court then presided over by Judge Mario Castaeda, Jr.Left then with Branch V of the trial court was Criminal Case No. 3751.In the civil cases, the plaintiffs presented as witnesses Araceli Koh McKee, Fernando Nuag, Col. Robert Fitzgerald, Primitivo Parel, Eugenio Tanhueco, Carmen Koh and Antonio Koh,11and offered several documentary exhibits. Upon the other hand, private respondents presented as witnesses Ruben Galang, Zenaida Soliman, Jaime Tayag and Roman Dayrit.12In the criminal case, the prosecution presented as witnesses Mrs. Araceli McKee, Salud Samia, Pfc. Fernando Nuag, Dr. Ramon Panlilio, Dr. Robert Fitzgerald, Dr. Roberto Yuson, Dr. Hector, Ulanday, Pfc. Benigno de Leon, Marina Bolos, Primitivo Parel, Rogelio Pineda, Benito Caraan and Eugenio Tanhueco, and offered several documentary exhibits.13Upon the other hand, the defense presented the accused Ruben Galang, Luciano Punzalan, Zenaida Soliman and Roman Dayrit, and offered documentary exhibits.14On 1 October 1980, Judge Capulong rendered a decision against the accused Ruben Galang in the aforesaid criminal case. The dispositive portion of the decision reads as follows:WHEREFORE, in view of the foregoing, judgment is hereby rendered finding the accused Ruben Galang guilty beyond reasonable doubt of the crime charged in the information and after applying the provisions of Article 365 of the Revised Penal Code and indeterminate sentence law, this Court, imposes upon said accused Ruben Galang the penalty of six (6) months ofarresto mayoras minimum to two (2) years, four (4) months and one (1) day ofprision correccionalas maximum; the accused is further sentenced to pay and indemnify the heirs of Loida Bondoc the amount of P12,000.00 as indemnity for her death; to reimburse the heirs of Loida Bondoc the amount of P2,000.00 representing the funeral expenses; to pay the heirs of Loida Bondoc the amount of P20,000.00 representing her loss of income; to indemnify and pay the heirs of the deceased Jose Koh the value of the car in the amount of P53,910.95, and to pay the costs.15The aforecited decision was promulgated only on 17 November 1980; on the same day, counsel for petitioners filed with Branch III of the court where the two (2) civil cases were pending a manifestation to that effect and attached thereto a copy of the decision.16Upon the other hand, Judge Mario Castaeda, Jr. dismissed the two (2) civil cases on 12 November 1980 and awarded the private respondents moral damages, exemplary damages and attorney's fees.17The dispositive portion of the said decision reads as follows:WHEREFORE, finding the preponderance of evidence to be in favor of the defendants and against the plaintiffs, these cases are hereby ordered DISMISSED with costs against the plaintiffs. The defendants had proven their counter-claim, thru evidences (sic) presented and unrebutted. Hence, they are hereby awarded moral and exemplary damages in the amount of P100,000.00 plus attorney's fee of P15,000.00 and litigation expenses for (sic) P2,000.00. The actual damages claimed for (sic) by the defendants is (sic) hereby dismissing for lack of proof to that effect (sic).18A copy of the decision was sent by registered mail to the petitioners on 28 November 1980 and was received on 2 December 1980.19Accused Ruben Galang appealed the judgment of conviction to the Court of Appeals. The appeal was docketed as C.A.-G.R. Blg. 24764-CR and was assigned to the court's Third Division. Plaintiffs in Civil Cases Nos. 4477 and 4478 likewise separately appealed the 12 November 1980 decision to the appellate court. The appeals were docketed as C.A.-G.R. No. 69041-R and C.A.-G.R. No. 69040-R, respectively, and were assigned to the Fourth Civil Cases Division.On 4 October 1982, the respondent Court promulgated its decision20in C.A.-G.R. Blg. 24764-CR affirming the conviction of Galang.21The dispositive portion of the decision reads:DAHIL DITO, ang hatol na paksa ng naritong paghahabol ay Aming pinagtitibay sa kanyang kabuuan. Ang naghahabol pa rin ang pinagbabayad ng gugol ng paghahabol.A motion for reconsideration of the decision was denied by the respondent Court in itsKapasiyahanpromulgated on 25 November 1982.22A petition for its review23was filed with this Court; said petition was subsequently denied. A motion for its reconsideration was denied with finality in the Resolution of 20 April 1983.24On 29 November 1983, respondent Court, by then known as the Intermediate Appellate Court, promulgated its consolidated decision in A.C.-G.R. CV Nos. 69040 and 69041,25the dispositive portion of which reads:WHEREFORE, the decision appealed from it hereby reversed and set aside and another one is rendered, ordering defendants-appellees to pay plaintiffs-appellants as follows:For the death of Jose Koh:P 50,000.00 as moral damagesP 12,000.00 as death indemnityP 16,000.00 for the lot and tomb (Exhs. U and U-1)P 4,000.00 expenses for holding a wake (p. 9, tsn April 19, 1979)P 950.00 for the casket (Exh. M)P 375.00 for the vault services (Exhs. V and V-1)For the death of Kim Koh McKee:P 50,000.00 as moral damagesP 12,000.00 as death indemnityP 1,000.00 for the purchase of the burial lot (Exh. M)P 950.00 for funeral services (Exh. M-1)P 375.00 for vault services (Exhs. V and V-1)For the physical injuries suffered by George Koh McKee:P 25,000.00 as moral damagesP 672.00 for Clark Field Hospital (Exh. E)P 4,384.00 paid to Angeles Medical Clinic (Exhs. D, D-1 andD-2)P 1,555.00 paid to St. Francis Medical Center (Exhs. B and B-1)For the physical injuries suffered by Araceli Koh McKee:P 25,000.00 as moral damagesP 1,055.00 paid to St. Francis Medical Center (Exhs. G andG-1)P 75.00 paid to St. Francis Medical Center (Exhs. G-2 and G-3)P 428.00 to Carmelite General Hospital (Exh. F)P 114.20 to Muoz Clinic (Exh. MM)For the physical injuries suffered by Christopher Koh McKee:P 10,000.00 as moral damagesP 1,231.10 to St. Francis Medical Center (Exhs. L and L-1)P 321.95 to F.C.E.A. Hospital (Exhs. G and D-1)In addition, We award P10,000.00 as counsel (sic) fees in Civil Case No. 4477 and another P10,000.00; as counsel (sic) fees in Civil Case No. 4478.No pronouncement as to costs.SO ORDERED.26The decision is anchored principally on the respondent Court's findings that it was Ruben Galang's inattentiveness or reckless imprudence which caused the accident. The appellate court further said that the law presumes negligence on the part of the defendants (private respondents), as employers of Galang, in the selection and supervision of the latter; it was further asserted that these defendants did not allege in their Answers the defense of having exercised the diligence of a good father of a family in selecting and supervising the said employee.27This conclusion of reckless imprudence is based on the followingfindings of fact:In the face of these diametrically opposed judicial positions, the determinative issue in this appeal is posited in the fourth assigned error as follows:IVTHE TRIAL COURT ERRED WHEN IT HELD THE (sic) DRIVER OF THE TRUCK STOPPED HIS TRUCK BLEW HIS HORN SWITCHED ON HIS HEADLIGHTS AND COULD NOT SWERVE TO THE RIGHT.Supportive of plaintiffs' version, principal witness Araceli Koh McKee testified thus:Q What happened after that, as you approached the bridge?A When we were approaching the bridge, two (2) boys tried to cross the right lane on the right side of the highway going to San Fernando. My father, who is (sic) the driver of the car tried to avoid the two (2) boys who were crossing, he blew his horn and swerved to the left to avoid hitting the two (2) boys. We noticed the truck, he switched on the headlights to warn the truck driver, to slow down to give us the right of way to come back to our right lane.Q Did the truck slow down?A No, sir, it did not, just (sic) continued on its way.Q What happened after that?A After avoiding the two (2) boys, the car tried to go back to the right lane since the truck is (sic) coming, my father stepped on the brakes and all what (sic) I heard is the sound of impact (sic), sir. (tsn, pp. 5-6, July 22, 1977); or (Exhibit "O" in these Civil Cases).xxx xxx xxxQ Mrs. how did you know that the truck driven by the herein accused, Ruben Galang did not reduce its speed before the actual impact of collision (sic) as you narrated in this Exhibit "1," how did you know (sic)?A It just kept on coming, sir. If only he reduced his speed, we could have got (sic) back to our right lane on side (sic) of the highway, sir. (tsn. pp. 33-34 July 22, 1977) or (Exhibit "O" in these Civil Cases) (pp. 30-31, Appellants' Brief).Plaintiffs' version was successfully corroborated to Our satisfaction by the following facts and circumstances:1. An impartial eye-witness to the mishap, Eugenio Tanhueco, declared that the truck stopped only when it had already collided with the car:xxx xxx xxxTanhueco repeated the same testimony during the hearing in the criminal case:xxx xxx xxxTanhueco could (sic) not be tagged as an accommodation witness because he was one of the first to arrive at the scene of the accident. As a matter of fact, he brought one of the injured passengers to the hospital.We are not prepared to accord faith and credit to defendants' witnesses, Zenaida Soliman, a passenger of the truck, and Roman Dayrit, who supposedly lived across the street.Regarding Soliman, experience has shown that in the ordinary course of events people usually take the side of the person with whom they are associated at the time of the accident, because, as a general rule, they do not wish to be identified with the person who was at fault. Thus an imaginary bond is unconsciously created among the several persons within the same group (People vs. Vivencio, CA-G.R. No. 00310-CR, Jan. 31, 1962).With respect to Dayrit, We can not help suspecting (sic) that he is an accommodation witness. He did not go to the succor of the injured persons. He said he wanted to call the police authorities about the mishap, but his phone had no dial tone. Be this (sic) as it may, the trial court in the criminal case acted correctly in refusing to believe Dayrit.2. Exhibit 2, the statement of Galang, does not include the claim that Galang stopped his truck at a safe distance from the car, according to plaintiffs (p. 25, Appellants' Brief). This contention of appellants was completely passedsub-silencioor was not refuted by appellees in their brief. Exhibit 2 is one of the exhibits not included in the record. According to the Table of Contents submitted by the court below, said Exhibit 2 was not submitted by defendants-appellees. In this light, it is not far-fetched to surmise that Galang's claim that he stopped was an eleventh-hour desperate attempt to exculpate himself from imprisonment and damages.3. Galang divulged that he stopped after seeing the car about 10 meters away:ATTY. SOTTO:Q Do I understand from your testimony that inspite of the fact that you admitted that the road is straight and you may be able to (sic) see 500-1000 meters away from you any vehicle, you first saw that car only about ten (10) meters away from you for the first time?xxx xxx xxxA I noticed it, sir, that it was about ten (10) meters away.ATTY. SOTTO:Q So, for clarification, you clarify and state under your oath that you have (sic) not noticed it before that ten (10) meters? (Tsn. 3 to 5, Sept. 18, 1979). (p. 16, Appellants' Brief)Galang's testimony substantiate (sic) Tanhueco's statement that Galang stopped only because of the impact. At ten (10) meters away, with the truck running at 30 miles per hour, as revealed in Galang's affidavit (Exh. 2; p. 25, Appellants' brief), it is well-nigh impossible to avoid a collision on a bridge.5. Galang's truck stopped because of the collision, and not because he waited for Jose Koh to return to his proper lane. The police investigator, Pfc. Fernando L. Nuag, stated that he found skid marks under the truck but there were not (sic) skid marks behind the truck (pp. 19-20, t.s.n., Nov. 3, 1978). The presence of skid marks show (sic) that the truck was speeding. Since the skid marks were found under the truck and none were found at the rear of the truck, the reasonable conclusion is that the skid marks under the truck were caused by the truck's front wheels when the trucks (sic) suddenly stopped seconds before the mishap in an endeavor to avoid the same. But, as aforesaid, Galang saw the car at barely 10 meters away, a very short distance to avoid a collision, and in his futile endeavor to avoid the collision he abruptly stepped on his brakes but the smashup happened just the same.For the inattentiveness or reckless imprudence of Galang, the law presumes negligence on the part of the defendants in the selection of their driver or in the supervision over him. Appellees did not allege such defense of having exercised the duties of a good father of a family in the selection and supervision of their employees in their answers. They did not even adduce evidence that they did in fact have methods of selection and programs of supervision. The inattentiveness or negligence of Galang was the proximate cause of the mishap. If Galang's attention was on the highway, he would have sighted the car earlier or at a very safe distance than (sic) 10 meters. He proceeded to cross the bridge, and tried to stop when a collision was already inevitable, because at the time that he entered the bridge his attention was not riveted to the road in front of him.On the question of damages, the claims of appellants were amply proven, but the items must be reduced.28A motion for reconsideration alleging improper appreciation of the facts was subsequently filed by private respondents on the basis of which the respondent Court, in its Resolution of 3 April 1984,29reconsidered and set aside its 29 November 1983 decision and affirmedin totothe trial court's judgment of 12 November 1980. A motion to reconsider this Resolution was denied by the respondent Court on 4 July 1984.30Hence, this petition.Petitioners allege that respondent Court:I. . . COMMITTED A VERY SERIOUS AND GRAVE ERROR WHEN IT TOTALLY REVERSED ITS DECISION BY MERELY BASING IT FROM (sic) A MERE "PRESUMPTION," TOTALLY DISREGARDING THE PRIVATE RESPONDENTS' DRIVER'S ADMISSIONS AND CONFESSIONS, WHO EXCLUSIVELY COMMITTED THE PROXIMATE CAUSE OF THE ACCIDENT (sic), FURTHER, IT ALSO DISREGARDED THE EVIDENCE ADDUCED AND FOUND IN THE RECORDS; THEREFORE, RESPONDENT COURT'S RESOLUTIONS (ANNEXES A and B, PETITION) ARE CLEARLY ERRONEOUS, PURELY BASED ON SPECULATIONS, CONJECTURES AND WITHOUT SURE FOUNDATION IN THE EVIDENCE.II. . . GRAVELY ABUSED ITS DISCRETION AND ERRED WHEN IN EFFECT IT DISREGARDED A DOCTRINE LAID DOWN BY THIS HONORABLE COURT BY STATING AMONG OTHERS, "IT CANNOT CATEGORICALLY ADOPT THE FINDINGS OF GUILT IN THE CRIMINAL CASE WHERE THE DRIVER OF THE TRUCK INVOLVED IN THE ACCIDENT WAS INDICTED.III. . . PATENTLY COMMITTED GRAVE ABUSE OF DISCRETION AND MADE A MISLEADING PRONOUNCEMENT, WHEN IT HELD: "IT IS THUS INCUMBENT UPON THE PLAINTIFFS-APPELLANTS (APPELLEES WRONGLY MENTIONED IN THE RESOLUTION) TO PROVE THEIR ALLEGATIONS THAT THE PROXIMATE CAUSE OF THE ACCIDENT WAS THE NEGLIGENCE OF PRIVATE RESPONDENTS' DRIVER.IV. . . COMMITTED ANOTHER GRIEVIOUS (sic) ERROR; COMMITTED GRAVE ABUSE OF DISCRETION AND CITED ANOTHER CASE WHICH IS CLEARLY INAPPLICABLE TO THESE CASES.V. . . COMMITTED A PATENT ERROR AND GRAVELY ABUSED ITS DISCRETION IN ADOPTING THE FINDINGS OF THE TRIAL COURT WHICH ARE CLEARLY ERRONEOUS AND CONTRARY TO THE EVIDENCE FOUND IN THE RECORDS, SPECIALLY THEY (sic) ARE CONTRARY TO THE ADMITTED FACTS AND JUDICIAL ADMISSIONS MADE BY THE PRIVATE RESPONDENTS' DRIVER.VI. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF DISCRETION AND GRAVELY ERRED WHEN IT AWARDED DAMAGES TO THE PRIVATE RESPONDENTS WHEN SAID AWARD IS NOT SUPPORTED BY EVIDENCE, IN THE RECORDS, AND SAID AWARD IS NOT ALLOWED BY LAW AND THE CONSISTENT DECISIONS OF THIS HONORABLE COURT.VII. . . EXCEEDED ITS JURISDICTION, COMMITTED GRAVE ABUSE OF DISCRETION AND GRAVELY ERRED WHEN IT ERRONEOUSLY SET ASIDE ITS DECISION AWARDING DAMAGES TO PETITIONERS WHICH IS CLEARLY IN ACCORDANCE WITH THE EVIDENCE, THE LAW AND JURISPRUDENCE RELATIVE TO THE AWARD OF DAMAGES.31In the Resolution of 12 September 1984, We required private respondents to Comment on the petition.32After the said Comment33was filed, petitioners submitted a Reply34thereto; this Court then gave due course to the instant petitions and required petitioners to file their Brief,35which they accordingly complied with.There is merit in the petition. Before We take on the main task of dissecting the arguments and counter-arguments, some observations on the procedural vicissitudes of these cases are in order.Civil Cases Nos. 4477 and 4478, which were for the recovery of civil liability arising from aquasi-delictunder Article 2176 in relation to Article 2180 of the Civil Code, were filed ahead of Criminal Case No. 3751. Civil Case No. 4478 was eventually consolidated with Civil Case No. 4477 for joint trial in Branch III of the trial court. The records do not indicate any attempt on the part of the parties, and it may therefore be reasonably concluded that none was made, to consolidate Criminal Case No. 3751 with the civil cases, orvice-versa. The parties may have then believed, and understandably so, since by then no specific provision of law or ruling of this Court expressly allowed such a consolidation, that an independent civil action, authorized under Article 33 in relation to Article 2177 of the Civil Code, such as the civil cases in this case, cannot be consolidated with the criminal case. Indeed, such consolidation could have been farthest from their minds as Article 33 itself expressly provides that the "civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence." Be that as it may, there was then no legal impediment against such consolidation. Section 1, Rule 31 of the Rules of Court, which seeks to avoid a multiplicity of suits, guard against oppression and abuse, prevent delays, clear congested dockets to simplify the work of the trial court, or in short, attain justice with the least expense to the parties litigants,36would have easily sustained a consolidation, thereby preventing the unseeming, if no ludicrous, spectacle of two (2) judges appreciating, according to their respective orientation, perception and perhaps even prejudice, the same factsdifferently,and thereafter renderingconflictingdecisions. Such was what happened in this case. It should not, hopefully, happen anymore. In the recent case ofCojuangco vs. Court or Appeals,37this Court held that the present provisions of Rule 111 of the Revised Rules of Court allow a consolidation of an independent civil action for the recovery of civil liability authorized under Articles 32, 33, 34 or 2176 of the Civil Code with the criminal action subject, however, to the condition that no final judgment has been rendered in that criminal case.Let it be stressed, however, that the judgment in Criminal Case No. 3751 finding Galang guilty of reckless imprudence, although already final by virtue of the denial by no less than this Court of his last attempt to set aside the respondent Court's affirmance of the verdict of conviction, has no relevance or importance to this case.As We held inDionisio vs. Alvendia,38the responsibility arising from fault or negligence in aquasi-delictis entirely separate and distinct from the civil liability arising from negligence under the Penal Code. And, as more concretely stated in the concurring opinion of Justice J.B.L. Reyes, "in the case of independent civil actions under the new Civil Code, the result of the criminal case, whether acquittal or conviction, would be entirely irrelevant to the civil action."39InSalta vs. De Veyra and PNB vs. Purisima,40this Court stated:. . . It seems perfectly reasonable to conclude that the civil actions mentioned in Article 33, permitted in the same manner to be filed separately from the criminal case, may proceed similarlyregardless of the result of the criminal case.Indeed, when the law has allowed a civil case related to a criminal case, to be filed separately and to proceed independently even during the pendency of the latter case, the intention is patent to make the court's disposition of the criminal case of no effect whatsoever on the separate civil case. This must be so because the offenses specified in Article 33 are of such a nature, unlike other offenses not mentioned, that they may be made the subject of a separate civil action because of the distinct separability of their respective juridical cause or basis of action . . . .What remains to be the most important consideration as to why the decision in the criminal case should not be considered in this appeal is the fact that private respondents were not parties therein. It would have been entirely different if the petitioners' cause of action was for damages arising from adelict,in which case private respondents' liability could only be subsidiary pursuant to Article 103 of the Revised Penal Code. In the absence of any collusion, the judgment of conviction in the criminal case against Galang would have been conclusive in the civil cases for the subsidiary liability of the private respondents.41And now to the merits of the petition.It is readily apparent from the pleadings that the principal issue raised in this petition is whether or not respondent Court's findings in its challenged resolution are supported by evidence or are based on mere speculations, conjectures and presumptions.The principle is well-established that this Court is not a trier of facts. Therefore, in an appeal bycertiorariunder Rule 45 of the Revised Rules of Court, only questions of law may be raised. The resolution of factual issues is the function of the lower courts whose findings on these matters are received with respect and are, as a rule, binding on this Court.42The foregoing rule, however, is not without exceptions. Findings of facts of the trial courts and the Court of Appeals may be set aside when such findings are not supported by the evidence or when the trial court failed to consider the material facts which would have led to a conclusion different from what was stated in its judgment.43The same is true where the appellate court's conclusions are grounded entirely on conjectures, speculations and surmises44or where the conclusions of the lower courts are based on a misapprehension of facts.45It is at once obvious to this Court that the instant case qualifies as one of the aforementioned exceptions as the findings and conclusions of the trial court and the respondent Court in its challenged resolution are not supported by the evidence, are based on an misapprehension of facts and the inferences made therefrom are manifestly mistaken. The respondent Court's decision of 29 November 1983 makes the correct findings of fact.In the assailed resolution, the respondent Court held that the fact that the car improperly invaded the lane of the truck and that the collision occurred in said lane gave rise to the presumption that the driver of the car, Jose Koh, was negligent. On the basis of this presumed negligence, the appellate court immediately concluded that it was Jose Koh's negligence that was the immediate and proximate cause of the collision. This is an unwarranted deduction as the evidence for the petitioners convincingly shows that the car swerved into the truck's lane because as it approached the southern end of the bridge, two (2) boys darted across the road from the right sidewalk into the lane of the car. As testified to by petitioner Araceli Koh McKee:Q What happened after that, as you approached the bridge?A When we were approaching the bridge, two (2) boys tried to cross the right lane on the right side of the highway going to San Fernando. My father, who is (sic) the driver of the car tried to avoid the two (2) boys who were crossing, he blew his horn and swerved to the left to avoid hitting the two (2) boys. We noticed the truck, he switched on the headlights to warn the truck driver, to slow down to give us the right of way to come back to our right lane.Q Did the truck slow down?A No sir, it did not, just (sic) continued on its way.Q What happened after that?A After avoiding the two (2) boys, the car tried to go back to the right lane since the truck is (sic) coming, my father stepped on the brakes and all what (sic) I heard is the sound of impact (sic), sir.46Her credibility and testimony remained intact even during cross examination. Jose Koh's entry into the lane of the truck was necessary in order to avoid what was, in his mind at that time, a greater peril death or injury to the two (2) boys. Such act can hardly be classified as negligent.Negligence was defined and described by this Court inLayugan vs. Intermediate Appellate Court,47thus:. . . Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do (Black's Law Dictionary, Fifth Edition, 930), or as Judge Cooley defines it, "(T)he 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." (Cooley on Torts, Fourth Edition, vol. 3, 265)In Picart vs. Smith (37 Phil 809, 813), decided more than seventy years ago but still a sound rule, (W)e held: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 discreetpaterfamiliasof the Romanlaw. . . .InCorliss vs. Manila Railroad Company,48We held:. . . Negligence is want of the care required by the circumstances. It is a relative or comparative, not an absolute, term and its application depends upon the situation of the parties and the degree of care and vigilance which the circumstances reasonably require. Where the danger is great, a high degree of care is necessary, and the failure to observe it is a want of ordinary care under the circumstances. (citing Ahern v. Oregon Telephone Co., 35 Pac. 549 (1894).On the basis of the foregoing definition, the test of negligence and the facts obtaining in this case, it is manifest that no negligence could be imputed to Jose Koh. Any reasonable and ordinary prudent man would have tried to avoid running over the two boys by swerving the car away from where they were even if this would mean entering the opposite lane. Avoiding such immediate peril would be the natural course to take particularly where the vehicle in the opposite lane would be several meters away and could very well slow down, move to the side of the road and give way to the oncoming car. Moreover, under what is known as the emergency rule, "one who suddenly finds himself in a place of danger, and is required to act without time to consider the best means that may be adopted to avoid the impending danger, is not guilty of negligence, if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence."49Considering the sudden intrusion of the two (2) boys into the lane of the car, We find that Jose Koh adopted the best means possible in the given situation to avoid hitting them. Applying the above test, therefore, it is clear that he was not guilty of negligence.In any case, assuming,arguendothat Jose Koh is negligent, it cannot be said that his negligence was the proximate cause of the collision. 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. And more comprehensively, the proximate legal cause is that acting first and producing the injury, either immediately or by setting other events in motion, all constituting a natural and continuous chain of events, each having a close causal connection with its immediate predecessor, the final event in the chain immediately effecting the injury as a natural and probable result of the cause which first