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[ G.R. No. 124152. September 13, 1999]

BERNABE B. ALABASTRO vs. CA, et al.

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated SEPT 13 1999.

G.R. No. 124152 (Bernabe B. Alabastro vs. Court of Appeals, et al.)

This case arose out of a collision between a Volkswagen Beetle owned and driven by petitioner Bernabe Alabastro and a public utility jeepney (PUJ) driven by private respondent Edgardo Magpusao at the intersection of A. Loyola and Porras streets in Davao City on December 21, 1991.

The case was tried by the Regional Trial Court, Branch 15, Davao City. It held private respondent Edgardo Mapusao liable as it found that petitioner had entered the intersection first and that private respondent had the last clear chance of avoiding the accident. Accordingly, it ordered respondent spouses Edgardo and Ermelinda Magpusao to pay petitioner the amounts P12,678.50 as actual damages, P30,000.00 as moral damages, and P10,000.00 attorney's fees, and the costs.

On appeal, the Court of Appeals reversed and dismissed petitioner's complaint. It later denied his motion for reconsideration. Hence this petition for review on certiorari. Petitioner contends that the Court of Appeals erred in (1) disregarding evidence showing that the reason why he did not yield the right of way to private respondent Edgardo Magpusao was because he reached the intersection ahead of the latter; (2) not finding that respondent's jeepney had defective brakes and a protruding spare tire mounted on its left front side which caused extensive damage to his (petitioner's) Volkswagen; and (3) disregarding private respondents' admission of their liability for the damage caused to petitioner's Volkswagen.

After due deliberation, the Court found petitioner's contentions to be without merit.

First. Section 42(a) of the Land Transportation and Traffic Code provides that "When two vehicles approached an intersection at approximately the same time, the driver of the vehicle on the left shall yield the right of way to the vehicle on the right." It is not disputed that respondents' jeepney, entering the intersection of A. Loyola and Porras streets, was on the right of petitioner's Volkswagen. As such, it had the right of way.

Petitioner contends, however, that he entered the intersection "much ahead" of respondents' jeepney. If this were so, however, no collision would have occurred as both the trial and appellate courts found that petitioner's Volkswagen was travelling at a fast clip. This would be true even if respondents' jeepney was being driven at a similarly fast pace. However, the police sketch shows that the jeepney had already crossed the center of the intersection when the Volkswagen hit it. As the Court of Appeals correctly held:

[I]t was the [petitioner's] failure to comply with the traffic regulation on yielding the right of way to the jeepney which caused the collision. Not only regulation but also simple prudence required him not to cross the intersection until after it would have been safe from any oncoming vehicle. Had [petitioner] made a full stop or slowed down at the intersection as traffic regulation dictated, the collision would not have occurred. Furthermore, as pointed out by [respondent], the [petitioner] who lived nearby must have been aware of the loose gravel on the road and knowing this he should have been more cautious. From every indication, the cause of the collision was the negligence of the [petitioner].

Second. Nor is it true, as petitioner contends, that respondents' jeepney had defective brakes. The policemen who investigated the collision as well as the RTC and the Court of Appeals found as a fact that the jeepney's brakes were working. This is a finding of fact which is binding on the Court. (E.g., P.M. Pastera Brokerage v. Court of Appeals, 266 SCRA 365 (1997))

Anent petitioner's contention that respondents were negligent in operating a jeepney with a protruding spare tire mounted at its left front side, which tire was the cause of much of the damage to his Volkswagen, suffice it to say that petitioner did not at all raise this issue during the trial and only did so in his motion for reconsideration in the Court of Appeals. He cannot therefore raise it here in the present petition.

Third. Nor is it true that private respondents admitted their liability to petitioner. Precisely private respondents' liability for the accident was the only issue defined by the parties at their pre-trial conference.

WHEREFORE, the petition is DENIED for lack of showing that the Court of Appeals committed any reversible error.

Very truly yours,

(Sgd.) TOMASITA M. DRIS

Clerk of Court

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