THIRD DIVISION

[G.R. Nos. 79050-51. November 14, 1989.]

PANTRANCO NORTH EXPRESS, INC . petitioner, vs. MARICAR

BASCOS BAESA, thru her personal guardian FRANCISCA O.
BASCOS, FE O. ICO, in her behalf and in behalf of her minor
children, namely ERWIN, OLIVE, EDMUNDO and SHARON
ICO, respondents.

Efren N. Ambrosio & Associates for petitioner PNEI.

Emiliano S. Micu for respondents.

SYLLABUS

1. CIVIL LAW; DAMAGES; LAST CLEAR CHANCE DOCTRINE; WHEN

APPLICABLE. — The doctrine of last clear chance applies only in a situation
where the defendant, having the last fair chance to avoid the impending
harm and failed to do so, becomes liable for all the consequences of the
accident notwithstanding the prior negligence of the plaintiff.
2. ID.; ID.; ID.; CONDITION TO MAKE DOCTRINE APPLICABLE. — In
order that the doctrine of last clear chance may be applied, it must be shown
that the person who allegedly had the last opportunity to avert the accident
was aware of the existence of the peril or with exercise of due care should
have been aware of it.
3. ID.; ID.; ID.; NOT APPLICABLE TO PERSON ACTING
INSTANTANEOUSLY OR BY AVAILABLE MEANS. — This doctrine of last chance
has no application to a case where a person is to act instantaneously, and if
the injury cannot be avoided by using all means available after the peril is or
should have been discovered.
4. ID.; ID.; PROVISION OF R.A. NO. 4136 RE VEHICLE ENTERING A
THROUGH HIGHWAY OR A STOP INTERSECTION. — Section 43 (c), Article III,
Chapter IV of Republic Act No. 1436 cannot apply to case a bar where at the
time of the accident, the jeepney had already crossed the intersection.
5. ID.; ID.; NEGLIGENCE; BURDEN OF PROOF LIES ON THE
EMPLOYER. — A finding of negligence on the part of the driver establishes a
presumption that the employer has been negligent and the latter has the
burden of proof that it has exercised due negligence not only in the selection
of its employees but also in adequately supervising their work.
6. ID.; ID.; FAILURE TO PRESENT EVIDENCE TO SUPPORT CLAIM FOR
DAMAGES. — Plaintiff's failure to present documentary evidence to support
their claim for damages for loss of earning capacity of the deceased victim
does not bar recovery of the damages, if such loss may be based sufficiently
on their testimonies.
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 7. ID.; ID.; INDEMNITY FIXED AT P30,000. — The indemnity for the
death of a person was fixed by this Court at (P30,000.00).

DECISION

CORTES, J : p

In this Petition, Pantranco North Express Inc. (PANTRANCO), asks the

Court to review the decision of the Court of Appeals in CA-G.R. No. 05494-95
which affirmed the decisions of the Court of First Instance of Rosales,
Pangasinan in Civil Case No. 561-R and Civil Case No. 589-R wherein
PANTRANCO was ordered to pay damages and attorney's fees to herein
private respondents. Cdpr

The pertinent fact are as follows:

At about 7:00 o'clock in the morning of June 12, 1981, the spouses
Ceasar and Marilyn Baesa and their children Harold Jim, Marcelino and
Maricar, together with spouses David Ico and Fe O. Ico with their son Erwin
Ico and seven other persons, were aboard a passenger jeepney on their way
to a picnic at Malalam River, Ilagan, Isabela, to celebrate the fifth wedding
anniversary of Ceasar and Marilyn Baesa.
The group, numbering fifteen (15) persons, rode in the passenger
jeepney driven by David Ico, who was also the registered owner thereof.
From Ilagan, Isabela, they proceeded to Barrio Capayacan to deliver some
viands to one Mrs. Bascos and thenceforth to San Felipe, taking the highway
going to Malalam River. Upon reaching the highway, the jeepney turned right
and proceeded to Malalam River at a speed of about 20 kph. While they were
proceeding towards Malalam River, a speeding PANTRANCO bus from Aparri,
on its regular route to Manila, encroached on the jeepney's lane while
negotiating a curve, and collided with it.
As a result of the accident David Ico, spouses Ceasar Baesa and
Marilyn Baesa and their children, Harold Jim and Marcelino Baesa, died while
the rest of the passengers suffered injuries. The jeepney was extensively
damaged. After the accident the driver of the PANTRANCO Bus, Ambrosio
Ramirez, boarded a car and proceeded to Santiago, Isabela. From that time
on up to the present, Ramirez has never been seen and has apparently
remained in hiding.
All the victims and/or their surviving heirs except herein private
respondents settled the case amicably under the "No Fault" insurance
coverage of PANTRANCO.
Maricar Baesa through her guardian Francisca O. Bascos and Fe O. Ico
for herself and for her minor children, filed separate actions for damages
arising from quasi-delict against PANTRANCO, respectively docketed as Civil
Case No. 561-R and 589-R of the Court of First Instance of Pangasinan.
In its answer, PANTRANCO, aside from pointing to the late David Ico's
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 alleged negligence as the proximate cause of the accident, invoked the
defense of due diligence in the selection and supervision of its driver,
Ambrosio Ramirez. cdll

On July 3, 1984, the CFI of Pangasinan rendered a decision against

PANTRANCO awarding the total amount of Two Million Three Hundred Four
Thousand Six Hundred Forty-Seven (P2,304,647.00) as damages, plus 10%
thereof as attorney's fees and costs to Maricar Baesa in Civil Case No. 561-R,
and the total amount of Six Hundred Fifty Two Thousand Six Hundred
Seventy-Two Pesos (P652,672.00) as damages, plus 10% thereof as
attorney's fees and costs to Fe Ico and her children in Civil Case No. 589-R.
On appeal, the cases were consolidated and the Court of Appeals modified
the decision of the trial court by ordering PANTRANCO to pay the total
amount of One Million One Hundred Eighty-Nine Thousand Nine Hundred
Twenty Seven Pesos (P1,189,927.00) as damages, plus Twenty Thousand
Pesos (P20,000.00) as attorney's fees to Maricar Baesa, and the total amount
of Three Hundred Forty-Four Thousand Pesos (P344,000.00) plus Ten
Thousand Pesos (P10,000.00) as attorney's fees to Fe Ico and her children,
and to pay the costs in both cases. The dispositive portion of the assailed
decision reads as follows:
WHEREFORE, the decision appealed from is hereby modified by
ordering the defendant PANTRANCO North Express, Inc. to pay:

I. The plaintiff in Civil Case No. 561-R, Maricar Bascos Baesa,

the following damages:

A) As compensatory damages for the death of Ceasar Baesa

— P30,000.00;

B) As compensatory damages for the death of Marilyn Baesa

— P30,000.00;

C) As compensatory damages for the death of Harold Jim

Baesa and Marcelino Baesa — P30,000.00;

D) For the loss of earnings of Ceasar Baesa — P630,000.00;

E) For the loss of earnings of Marilyn Bascos Baesa —

P375,000.00;

F) For the burial expenses of the deceased Ceasar and

Marilyn Baesa — P41,200.00;

G) For hospitalization expenses of Maricar Baesa —

P3,727.00;

H) As moral damages — P50,000.00;

I) As attorney's fees — P20,000.00;

II. The plaintiffs in Civil Case No. 589-R, the following

damages:

A) As compensatory damages for the death of David Ico —

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 P30,000.00;

B) For loss of earning capacity of David Ico — P252,000.00;

C) As moral damages for the death of David Ico and the injury
of Fe Ico — P30,000.00

D) As payment for the jeepney — P20,000.00;

E) For the hospitalization of Fe Ico — P12,000.00;

F) And for attorney's fees — P10,000.00;

and to pay the costs in both cases.

The amount of P25,000 paid to Maricar Bascos Baesa, plaintiff in
Civil Case No. 561-R, and the medical expenses in the sum of
P3,273.55, should be deducted from the award in her favor. Cdpr

All the foregoing amounts herein awarded except the costs shall
earn interest at the legal rate from date of this decision until fully paid.
[CA Decision, pp. 14-15; Rollo, pp. 57-58.]

PANTRANCO filed a motion for reconsideration of the Court of Appeal's

decision, but on June 26, 1987, it denied the same for lack of merit.
PANTRANCO then filed the instant petition for review.
I
Petitioner faults the Court of Appeals for not applying the doctrine of
the "last clear chance" against the jeepney driver. Petitioner claims that
under the circumstances of the case, it was the driver of the passenger
jeepney who had the last clear chance to avoid the collision and was
therefore negligent in failing to utilize with reasonable care and competence
his then existing opportunity to avoid the harm.
The doctrine of the last clear chance was defined by this Court in the
case of Ong v. Metropolitan Water District, 104 Phil. 397 (1958), in this wise:
The doctrine of the last clear chance simply, means that the
negligence of a claimant does not preclude a recovery for the
negligence of defendant where it appears that the latter, by exercising
reasonable care and prudence, might have avoided injurious
consequences to claimant notwithstanding his negligence.

The doctrine applies only in a situation where the plaintiff was guilty of
prior or antecedent negligence but the defendant, who had the last fair
chance to avoid the impending harm and failed to do so, is made liable for all
the consequences of the accident notwithstanding the prior negligence of
the plaintiff [Picart v. Smith, 37 Phil. 809 (1918); Glan People's Lumber and
Hardware, et al. v. Intermediate Appellate Court, Cecilia Alferez Vda. de
Calibo, et al., G.R. No. 70493, May 18, 1989]. The subsequent negligence of
the defendant in failing to exercise ordinary care to avoid injury to plaintiff
becomes the immediate or proximate cause of the accident which
intervenes between the accident and the more remote negligence of the
plaintiff, thus making the defendant liable to the plaintiff [Picart v. Smith,
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 supra].
Generally, the last clear chance doctrine is invoked for the purpose of
making a defendant liable to a plaintiff who was guilty of prior or antecedent
negligence, although it may also be raised as a defense to defeat claim for
damages. llcd

To avoid liability for the negligence of its driver, petitioner claims that
the original negligence of its driver was not the proximate cause of the
accident and that the sole proximate cause was the supervening negligence
of the jeepney driver David Ico in failing to avoid the accident. It is
petitioner's position that even assuming arguendo, that the bus encroached
into the lane of the jeepney, the driver of the latter could have swerved the
jeepney towards the spacious dirt shoulder on his right without danger to
himself or his passengers.
The above contention of petitioner is manifestly devoid of merit.
Contrary to the petitioner's contention, the doctrine of "last clear
chance" finds no application in this case. For the doctrine to be applicable, it
is necessary to show that the person who allegedly had the last opportunity
to avert the accident was aware of the existence of the peril or should, with
exercise of due care, have been aware of it. One cannot be expected to
avoid an accident or injury if he does not know or could not have known the
existence of the peril. In this case, there is nothing to show that the jeepney
driver David Ico knew of the impending danger. When he saw at a distance
that the approaching bus was encroaching on his lane, he did not
immediately swerve the jeepney to the dirt shoulder on his right since he
must have assumed that the bus driver will return the bus to its own lane
upon seeing the jeepney approaching from the opposite direction. As held by
this Court in the case of Vda. De Bonifacio v. BLTB, G.R. No. L-26810, August
31, 1970, 34 SCRA 618, a motorist who is properly proceeding on his own
side of the highway is generally entitled to assume that an approaching
vehicle coming towards him on the wrong side, will return to his proper lane
of traffic. There was nothing to indicate to David Ico that the bus could not
return to its own lane or was prevented from returning to the proper lane by
anything beyond the control of its driver. Leo Marantan, an alternate driver
of the Pantranco bus who was seated beside the driver Ramirez at the time
of the accident, testified that Ramirez had no choice but to swerve the
steering wheel to the left and encroach on the jeepney's lane because there
was a steep precipice on the right [CA Decision, p. 2; Rollo, p. 45]. However,
this is belied by the evidence on record which clearly shows that there was
enough space to swerve the bus back to its own lane without any danger [CA
Decision, p. 7; Rollo, p. 50].
Moreover, both the trial court and the Court of Appeals found that at
the time of the accident the Pantranco bus was speeding towards Manila [CA
Decision, p. 2; Rollo, p. 45]. By the time David Ico must have realized that
the bus was not returning to its own lane, it was already too late to swerve
the jeepney to his right to prevent an accident. The speed at which the
approaching bus was running prevented David Ico from swerving the
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 jeepney to the right shoulder of the road in time to avoid the collision. Thus,
even assuming that the jeepney driver perceived the danger a few seconds
before the actual collision, he had no opportunity to avoid it. This Court has
held that the last clear chance doctrine "can never apply where the party
charged is required to act instantaneously, and if the injury cannot be
avoided by the application of all means at hand after the peril is or should
have been discovered" [Ong v. Metropolitan Water District, supra]. prcd

Petitioner likewise insists that David Ico was negligent in failing to

observe Section 43 (c), Article III Chapter IV of Republic Act No. 4136 * which
provides that the driver of a vehicle entering a through highway or a stop
intersection shall yield the right of way to all vehicles approaching in either
direction on such through highway.
Petitioner's misplaced reliance on the aforesaid law is readily apparent
in this case. The cited law itself provides that it applies only to vehicles
entering a through highway or a stop intersection. At the time of the
accident, the jeepney had already crossed the intersection and was on its
way to Malalam River. Petitioner itself cited Fe Ico's testimony that the
accident occurred after the jeepney had travelled a distance of about two (2)
meters from the point of intersection [Petition p. 10; Rollo, p. 27]. In fact,
even the witness for the petitioner, Leo Marantan, testified that both
vehicles were coming from opposite directions [CA Decision, p. 7; Rollo, p.
50], clearly indicating that the jeepney had already crossed the intersection.
Considering the foregoing, the Court finds that the negligence of
petitioner's driver in encroaching into the lane of the incoming jeepney and
in failing to return the bus to its own lane immediately upon seeing the
jeepney coming from the opposite direction was the sole and proximate
cause of the accident without which the collision would not have occurred.
There was no supervening or intervening negligence on the part of the
jeepney driver which would have made the prior negligence of petitioner's
driver a mere remote cause of the accident.
II
On the issue of its liability as an employer, petitioner claims that it had
observed the diligence of a good father of a family to prevent damage,
conformably to the last paragraph of Article 2180 of the Civil Code. Petitioner
adduced evidence to show that in hiring its drivers, the latter are required to
have professional driver's license and police clearance. The drivers must
also pass written examinations, interviews and practical driving tests, and
are required to undergo a six-month training period. Rodrigo San Pedro,
petitioner's Training Coordinator, testified on petitioner's policy of
conducting regular and continuing training programs and safety seminars for
its drivers, conductors, inspectors and supervisors at a frequency rate of at
least two (2) seminars a month.
On this point, the Court quotes with approval the following findings of
the trial court which was adopted by the Court of Appeals in its challenged
decision:

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 When an injury is caused by the negligence of an employee,
there instantly arises a presumption that the employer has been
negligent either in the selection of his employees or in the supervision
over their acts. Although this presumption is only a disputable
presumption which could be overcome by proof of diligence of a good
father of a family, this Court believes that the evidence submitted by
the defendant to show that it exercised the diligence of a good father
of a family in the case of Ramirez, as a company driver is far from
sufficient. No support evidence has been adduced. The professional
driver's license of Ramirez has not been produced. There is no proof
that he is between 25 to 38 years old. There is also no proof as to his
educational attainment, his age, his weight and the fact that he is
married or not. Neither are the result of the written test, psychological
and physical test, among other tests, have been submitted in evidence
[sic]. His NBI or police clearances and clearances from previous
employment were not marked in evidence. No evidence was presented
that Ramirez actually and really attended the seminars. Vital evidence
should have been the certificate of attendance or certificate of
participation or evidence of such participation like a logbook signed by
the trainees when they attended the seminars. If such records are not
available, the testimony of the classmates that Ramirez was their
classmate in said seminar (should have been presented) [CA Decision,
pp. 8-9; Rollo, pp. 51-52].
LLphil

Petitioner contends that the fact that Ambrosio Ramirez was employed
and remained as its driver only means that he underwent the same rigid
selection process and was subjected to the same strict supervision imposed
by petitioner on all applicants and employees. It is argued by the petitioner
that unless proven otherwise, it is presumed that petitioner observed its
usual recruitment procedure and company polices on safety and efficiency
[Petition, p. 20; Rollo, p. 37].
The Court finds the above contention unmeritorious.
The finding of negligence on the part of its driver Ambrosio Ramirez
gave rise to the presumption of negligence on the part of petitioner and the
burden of proving that it exercised due diligence not only in the selection of
its employees but also in adequately supervising their work rests with the
petitioner [Lilius v. Manila Railroad Company, 59 Phil. 758 (1934); Umali v.
Bacani, G.R. No. L-40570, June 30, 1976, 69 SCRA 623]. Contrary to
petitioner's claim, there is no presumption that the usual recruitment
procedures and safety standards were observed. The mere issuance of rules
and regulations and the formulation of various company policies on safety,
without showing that they are being complied with, are not sufficient to
exempt petitioner from liability arising from the negligence of its employee.
It is incumbent upon petitioner to show that in recruiting and employing the
erring driver, the recruitment procedures and company policies on efficiency
and safety were followed. Petitioner failed to do this. Hence, the Court finds
no cogent reason to disturb the finding of both the trial court and the Court
of Appeals that the evidence presented by the petitioner, which consists
mainly of the uncorroborated testimony of its Training Coordinator, is
insufficient to overcome the presumption of negligence against petitioner. LexLib

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 III
On the question of damages, petitioner claims that the Court of
Appeals erred in fixing the damages for the loss of earning capacity of the
deceased victims. Petitioner assails respondent court's findings because no
documentary evidence in support thereof, such as income tax returns, pay-
rolls, pay slips or invoices obtained in the usual course of business, were
presented [Petition, p. 22; Rollo, p. 39]. Petitioner argues that the "bare and
self-serving testimonies of the wife of the deceased David Ico and the
mother of the deceased Marilyn Baesa . . . have no probative value to
sustain in law the Court of Appeals' conclusion on the respective earnings of
the deceased victims." [Petition, pp. 21-22; Rollo, pp. 38-39.] It is petitioner's
contention that the evidence presented by the private respondent does not
meet the requirements of clear and satisfactory evidence to prove actual
and compensatory damages.
The Court finds that the Court of Appeals committed no reversible error
in fixing the amount of damages for the loss of earning capacity of the
deceased victims. While it is true that private respondents should have
presented documentary evidence to support their claim for damages for loss
of earning capacity of the deceased victims, the absence thereof does not
necessarily bar the recovery of the damages in question. The testimony of
Fe Ico and Francisca Bascos as to the earning capacity of David Ico, and the
spouses Baesa, respectively, are sufficient to establish a basis from which
the court can make a fair and reasonable estimate of the damages for the
loss of earning capacity of the three deceased victims. Moreover, in fixing
the damages for loss of earning capacity of a deceased victim, the court can
consider the nature of his occupation, his educational attainment and the
state of his health at the time of death.
In the instant case, David Ico was thirty eight (38) years old at the time
of his death in 1981 and was driving his own passenger jeepney. The
spouses Ceasar and Marilyn Baesa were both thirty (30) years old at the time
of their death. Ceasar Baesa was a commerce degree holder and the
proprietor of the Cauayan Press, printer of the Cauayan Valley Newspaper
and the Valley Times at Cauayan, Isabela. Marilyn Baesa graduated as a
nurse in 1976 and at the time of her death, was the company nurse,
personnel manager, treasurer and cashier of the Ilagan Press at Ilagan,
Isabela. Respondent court duly considered these factors, together with the
uncontradicted testimonies of Fe Ico and Francisca Bascos, in fixing the
amount of damages for the loss of earning capacity of David Ico and the
spouses Baesa. LibLex

However, it should be pointed out that the Court of Appeals committed

error in fixing the compensatory damages for the death of Harold Jim Baesa
and Marcelino Baesa. Respondent court awarded to plaintiff (private
respondent) Maricar Baesa Thirty Thousand Pesos (P30,000.00) as
"compensatory damages for the death of Harold Jim Baesa and Marcelino
Baesa." [CA Decision, p. 14; Rollo, 57]. In other words, the Court of Appeals
awarded only Fifteen Thousand Pesos (P15,000.00) as indemnity for the
death of Harold Jim Baesa and another Fifteen Thousand Pesos (P15,000.00)
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 for the death of Marcelino Baesa. This is clearly erroneous. In the case of
People v. de la Fuente, G.R. Nos. 63251-52, December 29, 1983, 126 SCRA
518, the indemnity for the death of a person was fixed by this Court at Thirty
Thousand Pesos (P30,000.00). Plaintiff Maricar Baesa should therefore be
awarded Sixty Thousand Pesos (P60,000.00) as indemnity for the death of
her brothers, Harold Jim Baesa and Marcelino Baesa or Thirty Thousand
Pesos (P30,000.00) for the death of each brother.
The other items of damages awarded by respondent court which were
not challenged by the petitioner are hereby affirmed.
WHEREFORE, premises considered, the petition is DENIED, and the
decision of respondent Court of Appeals is hereby AFFIRMED with the
modification that the amount of compensatory damages for the death of
Harold Jim Baesa and Marcelino Baesa are increased to Thirty Thousand
Pesos (P30,000.00) each. LLphil

SO ORDERED.
Fernan (C.J.), Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

Footnotes

*R.A. 4136 is entitled "An Act to Compile the Laws Relative to Land Transportation
and Traffic Rules, To Create A Land Transportation Commission and other
Purposes."

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