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LBC Air Cargo v. Ca
LBC Air Cargo v. Ca
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THIRD DIVISION.
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VITUG, J.:
In this petition for review, the application of the doctrines
of "proximate cause" and "last clear chance" is, once again,
being put to test. The petition questions the decision of the
Court of Appeals, dated 18 July 1991, which has reversed
that of the trial court.
The case arose from a vehicular collision which occurred
at about 11:30 in the morning of 15 November 1987.
Rogelio Monterola, a licensed driver, was traveling on
board his Suzuki motorcycle towards Mangagoy on the
right lane along a dusty national road in Bislig, Surigao del
Sur. At about the same time, a cargo van of the LBC Air
Cargo Incorporated, driven by defendant Jaime Tano, Jr.,
was coming from the opposite direction on its way to the
Bislig Airport. On board were passengers Fernando Yu,
Manager of LBC Air Cargo, and his son who was seated
beside Tano. When Tano was approaching the vicinity of
the airport road entrance on his left, he saw two vehicles
racing against each other from the opposite direction. Tano
stopped his vehicle and waited for the two racing vehicles
to pass by. The stirred cloud of dust made visibility
extremely bad. Instead of waiting for the dust to settle,
Tano started to make a sharp left turn towards the airport
road. When he was about to reach the center of the right
lane, the motorcycle driven by Monterola suddenly
emerged from the dust and smashed headon against the
right side of the LBC van. Monterola died from the severe
injuries he sustained.
A criminal case for "homicide thru reckless imprudence"
was filed against Tano. A civil suit was likewise instituted
by the heirs of deceased Monterola against Tano, along
with Fernando Yu and LBC Air Cargo Incorporated, for the
recovery of damages. The two cases were tried jointly by
the Regional Trial Court, Branch 29, of Surigao del Sur.
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Rollo, p. 17.
622
"A
"Q
So much so that you could no longer see the vehicles from the
opposite direction following these vehicles?
"A
"Q
What do you mean by it was not clear, you could not see the
incoming vehicles?
"A
"Q
"A
"x x x x x x x x x
"Q
In other words when you said that it was slightly clear, you
would like to tell the Honorable Court that you could only
clearly see big vehicles x x x but not small vehicles like a
motorcycle?
"A
I could see clearly big vehicles but not small vehicles like a
motorcycle.
"Q
"A
Yes, sir. I could not see clearly. (Tano, tsn, April 18, 1989, pp.
2630) (p. 15, Appellant's brief).
'Tano should not have made a left turn under the conditions
admitted by him. Under the Land Transportation and Traffic
Code, the driver of any vehicle upon a highway, before starting,
stopping or turning from a direct line, is called upon to first see
that such movement can be made in safety, and whenever the
operation of any other vehicle approaching may be affected by
such movement, shall give a signal plainly visible to the driver of
such other vehicles of the intention to make such movement (Sec.
44, R.A. 4136, as amended). This means that before a driver turns
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from a direct line, in this case to the left, the driver must first see
to it that there are no approaching vehicles and, if there are, to
make the turn only if it can be made in safety, or at the very least
give a signal that is plainly visible to the driver of such other
vehicle. Tano did neither in this case, for he recklessly made a left
turn even as visibility was still very poor, and thus failed to see
the approaching motorcycle and warn the latter of his intention to
make a left turn. This is plain and simple negligence.
"In thus making the left turn, he placed his vehicle directly at
the path of the motorcycle which, unaware of Tano's intention to
make a left turn, smashed at Tano's vehicle. It was Tano's
negligence that created the risk or the condition of danger that set
into operation the
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Inc., et al. vs. Phil. American Forwarders, Inc., 63 SCRA 231, that
the term 'Manager' in Article 2180 is used in the sense of
'employer.' Hence, no tortuous or quasidelictual liability can be
fastened on Fernando Yu as branch manager of LBC Air Cargo,
Inc.
"Now for the amount of damages. Aside from the indemnity for
death which has been pegged at P50,000.00 (Resolution En Banc,
August 30, 1990, cited in People vs. Sazon, 189 SCRA 700), the
evidence disclose that as a result of the accident, Rogelio
Monterola's motorcycle was damaged, the repair cost of which
amounted to P7,361.00 (Exh. E1), for the hospitalization, wake
and burial expenses, plaintiff spent P15,000.00. There is likewise
no question that by reason of Rogelio Monterola's untimely death,
his only child 14 years old Sherwin Monterola, suffered mental
anguish, fright, serious anxiety, wounded feelings and moral
shock that entitles him to moral damages which we hereby fix at
P20,000.00. Because of defendants' refusal to indemnify the
plaintiff for his father's death, the latter was compelled to litigate
and engage the services of counsel. He is therefore entitled to an
additional amount of P10,000.00 for attorney's fees and expenses
of
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litigation.
"Considering, however, the contributory negligence of Rogelio
Monterola in driving at a fast clip despite the fact that the road
was dusty, we reduce the aggregate amount of damages to which
the plaintiff is entitled by twenty per cent (Phoenix
Construction,
3
Inc. vs. Intermediate Appellate Court, Supra)."
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