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[G.R. No. 150319.January 16, 2002]

MA�AGO vs. SPS. FRANCO, et al.

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JAN 16 2002.

G.R. No. 150319(Joseph Ma�ago vs. Spouses Noel and Librada Franco, et al.)

Petitioner Joseph Ma�ago is a contractor of the Department of Public Works and Highways in Malolos, Bulacan, in connection with the repair of General Alejo S. Santos Highway along Barangays Cambaog and Talampas in Bustos, Bulacan. He and two of his employees, Cornelio N. Algoso and Michael F. Santos, were sued for damages by respondent Spouses Noel and Librada Franco for the death of their son, Norwin Franco. It appears that between 8 and 9 o'clock in the evening of June 10, 1996, while Norwin Franco was riding on his three-wheeled motorcycle along the General Alejo S. Santos Highway, his motorcycle hit mounds of earth dumped on the highway by petitioner's men, causing the motorcycle to turn turtle. As a result, Norwin Franco suffered injuries from which he died four days later, on June 14, 1996.

The case was filed in the Regional Trial Court, Branch 82, in Malolos, Bulacan. A witness for respondents, Felicisimo Ramos, barangay captain of Barangay Malamig in Bustos, Bulacan, testified that there were about 15 mounds of earth placed along Barangay Cambaog at the time he saw the victim and that there were no lights or guard rails. Another witness, a tricycle driver, Hermies dela Cruz, claimed that he also met an accident along Barangay Cambaog at about the same time. He said that he and one Rolando Pinella were on their way to the hospital when they were stopped by Felicisimo Ramos and the injured victim and all of them proceeded to the Sto. Ni�o Hospital in Bustos. Mayor Pablito V. Mendoza of Bustos, Bulacan issued a certification that the petitioner, as contractor, did not inform his office of the rerouting of traffic for the duration of the repair, and that the dumping of the mounds of earth along General Alejo S. Santos Highway was a violation of a municipal ordinance.

The trial court found petitioner Joseph Ma�ago solely liable for the death of the victim as the respondents failed to present any evidence to prove that Cornelio N. Algoso and Michael F. Santos were employees of petitioner or that they were the ones who placed the mounds of earth on the highway. It was held that the proximate cause of the death of the victim was the negligent dumping of the mounds of earth on a strip of the highway. The dispositive portion of this decision reads:

PREMISES CONSIDERED, judgment is rendered in favor of the plaintiffs-spouses and against defendant Joseph [Ma�ago] ordering the latter to pay the following amounts:

1.�������� P220,442.50 as actual damages;

2.�������� P50,000.00 as moral damages;

3.�������� P50,000.00 as exemplary damages;

4.�������� P20,000.00 as attorney's fees; and

5.�������� Cost of suit

The counterclaim of defendant [Ma�ago] is hereby DISMISSED for lack of merit.

SO ORDERED.

On appeal, the Court of Appeals affirmed the decision of the trial court and denied petitioner's motion for reconsideration. Hence, this petition. Petitioner contends that the Court of Appeals erred in finding that the proximate cause of the accident was the mounds of earth on the highway and that he was the one who dumped the same.

The petition has no merit. The determination of whether petitioner is liable for the death of the victim, Norwin Franco, is a question of fact. This Court finds no cogent reason for setting aside the findings of facts made by the trial court, which were subsequently affirmed by the appeals court, that petitioner was responsible for the dumping of the mounds of earth on the highway, that he was negligent in failing to install warning devices to warn motorists and passersby of the danger posed by the mounds of earth, and that the proximate cause of the death of the victim was petitioner's negligence, as, indeed, there was no proof to the contrary adduced by petitioner. There is no merit in petitioner's argument that there was no competent direct, circumstantial, nor scientific evidence to establish a causal connection between the mounds of earth he allegedly carelessly dumped on the highway and the resulting death of the victim. The test as laid down in Picart v. Smith, 37 Phil. 809 (1918) is, "Would a prudent man, in the position of the person to whom negligence is attributed, foresee harm to the person injured as a reasonable consequence of the course about to be pursued? If so, the law imposes a duty on the actor to refrain from that course or to take precaution against its mischievous results, and the failure to do so constitutes negligence. Reasonable foresight of harm, followed by the ignoring of the admonition born of this pr[o]vision, is the constitutive fact in negligence." (See also Jarco Marketing Corporation v. Court of Appeals, 321 SCRA 375 (1999)) Applying this test to the case at bar, petitioner should have foreseen that the mounds of earth along the road posed a danger to motorists and passersby, especially at night. Petitioner should, therefore, have placed early warning devices and provided adequate light in the area in order to prevent accidents. Petitioner was clearly negligent.

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

Very truly yours,

(Sgd.)TOMASITA B. MAGAY-DRIS

Clerk of Court

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