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[G.R. No. L-7664. August 29, 1958.]

MR. AND MRS. AMADOR C. ONG, Plaintiffs-Appellants, v. METROPOLITAN

WATER DISTRICT, Defendant-Appellee.

Tomas Tria Tirona for Appellants.

Government Corporate Counsel Ambrosio Padilla and Juan C. Jimenez

for Appellee.

SYLLABUS

1. DAMAGES; FAULT OR NEGLIGENCE; CLAIMANT HAS BURDEN TO PROVE. — The

person claiming damages has the burden of proving that the damages is caused by
the fault or negligence of the person from whom the damage is claimed, or of one of
his employees (Walter A. Smith & Co. v. Cadwallader Gibson Lumber Co., 55 Phil.,
517).

2. ID.; ABSENCE OF NEGLIGENCE OF OPERATOR OF SWIMMING POOLS;

DROWNING OR DEATH OF PATRON. — The operator of swimming pools will not be
held liable for the drowning or death of 3 patron, if said operator had exercised due
diligence in the election of, and supervision over, its employees and that it had
observed the diligence required by law under the circumstances — in that it has
taken all necessary precautions to avoid danger to the lives of its patrons or prevent
accident. which may cause their death.

3. WORDS AND PHRASES; "DOCTRINE OF LAST CLEAR CHANCE." — The doctrine of

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. Or "As the doctrine
usually is stated, a person who has the last clear chance or opportunity of avoiding
an accident, notwithstanding the negligent acts of his opponent or the negligence of
a third person which is imputed to his opponent, is considered in law solely
responsible for the consequences of the accident." (38 Am. Jur. pp. 900-902.)

DECISION

BAUTISTA ANGELO, J.:

Plaintiffs spouses seek to recover from defendant, a government-owned corporation,

the sum of P50,000 as damages, P5,000 as funeral expenses, and P11,000 as
attorneys’ fees, for the death of their son Dominador Ong in one of the swimming
pools operated by defendant.

Defendant admits the fact that plaintiffs’ son was drowned in one of its swimming
pools but avers that his death was caused by his own negligence or by unavoidable
accident. Defendant also avers that it had exercised due diligence in the selection of,
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and supervision over, its employees and that it had observed the diligence required
by law under the circumstances.

After trial, the lower court found that the action of plaintiffs is untenable and
dismissed the complaint without pronouncement as to costs. Plaintiffs took the case
on appeal directly to this Court because the amount involved exceeds the sum of
P50,000.

Defendant owns and operates three recreational swimming pools at its Balara filters,
Diliman, Quezon City, to which people are invited and for which a nominal fee of
P0.50 for adults and P0.20 for children is charged. The main pool is between two
small pools of oval shape known as the "Wading pool" and the "Beginners Pool."
There are diving boards in the big pools and the depths of the water at different
parts are indicated by appropriate marks on the wall. The care and supervision of
the pools and the users thereof is entrusted to a recreational section composed of
Simeon Chongco as chief, Armando Rule, a male nurse, and six lifeguards who had
taken the life-saving course given by the Philippine Red Cross at the YMCA in Manila.
For the safety of its patrons, defendant has provided the pools with a ring buoy, toy
roof, towing line, saving kit and a resuscitator. There is also a sanitary inspector who
is in charge of a clinic established for the benefit of the patrons. Defendant has also
on display in a conspicuous place certain rules and regulations governing the use of
the pools, one of which prohibits the swimming in the pool alone or without any
attendant. Although defendant does not maintain a full- time physician in the
swimming pool compound, it has however a nurse and a sanitary inspector ready to
administer injections or operate the oxygen resuscitator if the need should arise.

In the afternoon of July 5, 1952, at about 1:00 o’clock, Dominador Ong, a 14-year
old high school student and a boy scout, and his brothers Ruben and Eusebio, went
to defendant’s swimming pools. This was not the first time that the three brothers
had gone to said natatorium for they had already been there four or five times
before. They arrived at the natatorium at about 1:45 p.m. After paying the requisite
admission fee, they immediately went to one of the small pools where the water was
shallow. At about 4:35 p.m., Dominador Ong told his brothers that he was going to
the locker room in an adjoining building to drink a bottle of coke. Upon hearing this,
Ruben and Eusebio went to the bigger pool leaving Dominador in the small pool and
so they did not see the latter when he left the pool to get a bottle of coke. In that
afternoon, there were two lifeguards on duty in the pool compound, namely, Manuel
Abaño and Mario Villanueva. The tour of duty of Abaño was from 8:00 to 12:00 in
the morning and from 2:00 to 6:00 in the afternoon, and of Villanueva from 7:30 to
11:30 a.m. and from 12:30 to 4:30 p.m. Between 4:00 to 5:00 that afternoon,
there were about twenty bathers inside the pool area and Manuel Abaño was going
around the pools to observe the bathers in compliance with the instructions of his
chief.

Between 4:40 to 4:45 p.m., some boys who were in the pool area informed a bather
by the name of Andres Hagad, Jr., that somebody was swimming under water for
quite a long time. Another boy informed lifeguard Manuel Abaño of the same
happening and Abaño immediately jumped into the big swimming pool and retrieved
the apparently lifeless body of Dominador Ong from the bottom. The body was
placed at the edge of the pool and Abaño immediately applied manual artificial
respiration. Soon after, male nurse Armando Rule came to render assistance,
followed by sanitary inspector Iluminado Vicente who, after being called by phone
from the clinic by one of the security guards, boarded a jeep carrying with him the
resuscitator and a medicine kit, and upon arriving he injected the boy with
 3

camphorated oil. After the injection, Vicente left on a jeep in order to fetch Dr.
Ayuyao from the University of the Philippines. Meanwhile, Abaño continued the
artificial manual respiration, and when this failed to revive him, they applied the
resuscitator until the two oxygen tanks were exhausted. Not long thereafter, Dr.
Ayuyao arrived with another resuscitator, but the same became of no use because
he found the boy already dead. The doctor ordered that the body be taken to the
clinic.

In the evening of the same day, July 5, 1952, the incident was investigated by the
Police Department of Quezon City and in the investigation boys Ruben Ong and
Andres Hagad, Jr. gave written statements. On the following day, July 6, 1952, an
autopsy was performed by Dr. Enrique V. de los Santos, Chief, Medico Legal
Division, National Bureau of Investigation, who found in the body of the deceased
the following: an abrasion on the right elbow lateral aspect; contusion on the right
forehead; hematoma on the scalp, frontal region, right side; a congestion in the
brain with petechial subcortical hemorrhage, frontal lobe; cyanosis on the face and
on the nails; the lung was soggy with fine froth in the bronchioles; dark fluid blood
in the heart; congestion in the visceral organs, and brownish fluid in the stomach.
The death was due to asphyxia by submersion in water.

The issue posed in this appeal is whether the death of minor Dominador Ong can be
attributed to the negligence of defendant and/or its employees so as to entitle
plaintiffs to recover damages.

The present action is governed by Article 2176 in relation to Article 2080 of the new
Civil Code. The first article provides that "whoever by act or omission causes
damage to another, there being fault or negligence, is obliged to pay for the
damages done." Such fault or negligence is called quasi-delict. Under the second
article, this obligation is demandable not only for one’s own acts or omissions but
also for those of persons for whom one is responsible. In addition, we may quote the
following authorities cited in the decision of the trial court:
jgc:chanrobles.com.ph

"‘The rule is well settled that the owners of resorts to which people generally are
expressly or by implication invited are legally bound to exercise ordinary care and
prudence in the management and maintenance of such resorts, to the end of making
them reasonably safe for visitors’ (Larkin v. Saltair Beach Co., 30 Utah 86, 83 Pac.
688).

"‘Although the proprietor of a natatorium is liable for injuries to a patron, resulting

from lack of ordinary care in providing for his safety, without the fault of the patron,
he is not, however, in any sense deemed to be the insurer of the safety of patrons.
And the death of a patron within his premises does not cast upon him the burden of
excusing himself from any presumption of negligence’ (Bertalot v. Kinnare. 72 Ill.
App. 52, 22 A. L. R. 635; Flora v. Bimini Water Co., 161 Cal. 495, 119 Pac. 661).
Thus in Bertalot v. Kinnare, supra, it was held that there could be no recovery for
the death by drowning of a fifteen-year boy in defendant’s natatorium, where it
appeared merely that he was lastly seen alive in water at the shallow end of the
pool, and some ten or fifteen minutes later was discovered unconscious, and
perhaps lifeless, at the bottom of the pool, all efforts to resuscitate him being
without avail."cralaw virtua1aw library

Since the present action is one for damages founded on culpable negligence, the
principle to be observed is that the person claiming damages has the burden of
proving that the damage is caused by the fault or negligence of the person from
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whom the damage is claimed, or of one of his employees (Walter A. Smith & Co. v.
Cadwallader Gibson Lumber Co., 55 Phil., 517). The question then that arises is:
Have appellants established by sufficient evidence the existence of fault or
negligence on the part of appellee so as to render it liable for damages for the death
of Dominador Ong?

There is no question that appellants had striven to prove that appellee failed to take
the necessary precaution to protect the lives of its patrons by not placing at the
swimming pools efficient and competent employees who may render help at a
moment’s notice, and they ascribed such negligence to appellee because the
lifeguard it had on the occasion minor Ong was drowning was not available or was
attending to something else with the result that his help came late. Thus, appellants
tried to prove through the testimony of Andres Hagad, Jr. and Ruben Ong that when
Eusebio Ong and Hagad, Jr. detected that there was a drowning person in the
bottom of the big swimming pool and shouted to the lifeguard for help, lifeguard
Manuel Abaño did not immediately respond to the alarm and it was only upon the
third call that he threw away the magazine he was reading and allowed three or four
minutes to elapse before retrieving the body from the water. This negligence of
Abaño, they contend, is attributable to appellee.

But the claim of these two witnesses not only was vehemently denied by lifeguard
Abaño, but is belied by the written statements given by them in the investigation
conducted by the Police Department of Quezon City approximately three hours after
the happening of the accident. Thus, these two boys admitted in the investigation
that they narrated in their statements everything they knew of the accident, but, as
found by the trial nowhere in said statements do they state that the lifeguard was
chatting with the security guard at the gate of the swimming pool or was reading a
comic magazine when the alarm was given for which reason he failed to immediately
respond to the alarm. On the contrary, what Ruben Ong particularly emphasized
therein was that after the lifeguard heard the shouts for help, the latter immediately
dived into the pool to retrieve the person under water who turned out to be his
brother. For this reason, the trial court made this conclusion: "The testimony of
Ruben Ong and Andres Hagad, Jr. as to the alleged failure of the lifeguard Abaño to
immediately respond to their call may therefore be disregarded because they are
belied by their written statements." (Emphasis supplied.) .

On the other hand, there is sufficient evidence to show that appellee has taken all
necessary precautions to avoid danger to the lives of its patrons or prevent accident
which may cause their death. Thus, it has been shown that the swimming pools of
appellee are provided with a ring buoy, toy roof, towing line, oxygen resuscitator
and a first aid medicine kit. The bottom of the pools is painted with black colors so
as to insure clear visibility. There is on display in a conspicuous place within the area
certain rules and regulations governing the use of the pools. Appellee employs six
lifeguards who are all trained as they had taken a course for that purpose and were
issued certificates of proficiency. These lifeguards work on schedule prepared by
their chief and arranged in such a way as to have two guards at a time on duty to
look after the safety of the bathers. There is a male nurse and a sanitary inspector
with a clinic provided with oxygen resuscitator. And there are security guards who
are available always in case of emergency. .

The record also shows that when the body of minor Ong was retrieved from the
bottom of the pool, the employees of appellee did everything possible to bring him
back to life. Thus, after he was placed at the edge of the pool, lifeguard Abaño
immediately gave him manual artificial respiration. Soon thereafter, nurse Armando
 5

Rule arrived, followed by sanitary inspector Iluminado Vicente who brought with him
an oxygen resuscitator. When they found that the pulse of the boy was abnormal,
the inspector immediately injected him with camphorated oil. When the manual
artificial respiration proved ineffective they applied the oxygen resuscitator until its
contents were exhausted. And while all these efforts were being made, they sent for
Dr. Ayuyao from the University of the Philippines who however came late because
upon examining the body found him to be already dead. All of the foregoing shows
that appellee has done what is humanly possible under the circumstances to restore
life to minor Ong and for that reason it is unfair to hold it liable for his death.

Sensing that their former theory as regards the liability of appellee may not be of
much help, appellants now switch to the theory that even if it be assumed that the
deceased is partly to be blamed for the unfortunate incident, still appellee may be
held liable under the doctrine of "last clear chance" for the reason that, having the
last opportunity to save the victim, it failed to do so.

We do not see how this doctrine may apply, considering that the record does not
show how minor Ong came into the big swimming pool. The only thing the record
discloses is that minor Ong informed his elder brothers that he was going to the
locker room to drink a bottle of coke but that from that time on nobody knew what
happened to him until his lifeless body was retrieved. The doctrine of 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. Or, "As the doctrine usually is stated, a
person who has the last clear chance or opportunity of avoiding an accident,
notwithstanding the negligent acts of his opponent or the negligence of a third
person which is imputed to his opponent, is considered in law solely responsible for
the consequences of the accident." (38 Am. Jur. pp. 900-902)

"It goes without saying that the plaintiff himself was not free from fault, for he was
guilty of antecedent negligence in planting himself in the wrong side of the road. But
as we have already stated, the defendant was also negligent; and in such case the
problem always is to discover which agent is immediately and directly responsible. It
will be noted that the negligent acts of the two parties were not contemporaneous,
since the negligence of the defendant succeeded the negligence of the plaintiff by an
appreciable interval. Under these circumstances, the law is that a person who has
the last clear chance to avoid the impending harm and fails to do so is chargeable
with the consequences, without reference to the prior negligence of the other party."
(Picart v. Smith, 37 Phil., 809)

Since it is not known how minor Ong came into the big swimming pool and it being
apparent that he went there without any companion in violation of one of the
regulations of appellee as regards the use of the pools, and it appearing that
lifeguard Abaño responded to the call for help as soon as his attention was called to
it and immediately after retrieving the body all efforts at the disposal of appellee had
been put into play in order to bring him back to life, it is clear that there is no room
for the application of the doctrine now invoked by appellants to impute liability to
appellee.

"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; at least in cases in
which any previous negligence of the party charged cannot be said to have
 6

contributed to the injury. O’Mally v. Eagan, 77 ALR 582, 43 Wyo. 233, 350, 2, P2d
1063." (A.L.R. Digest, Vol. 8, pp. 955-956)

Before closing, we wish to quote the following observation of the trial court, which
we find supported by the evidence: "There is (also) a strong suggestion coming from
the expert evidence presented by both parties that Dominador Ong might have
dived where the water was only 5.5 feet deep, and in so doing he might have hit or
bumped his forehead against the bottom of the pool, as a consequence of which he
was stunned, and which eventually led to his drowning. As a boy scout he must have
received instructions in swimming. He knew, or must have known, that it was
dangerous for him to dive in that part of the pool."
cralaw virtua1aw library

Wherefore, the decision appealed from being in accordance with law and the
evidence, we hereby affirm the same, without pronouncement as to costs.

Paras, C.J., Bengzon, Padilla, Montemayor, Reyes, A., Concepcion, Reyes, J.B.L.,

Endencia and Felix, JJ., concur.
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G.R. No. L-14088             September 30, 1961

CONCEPCION PELLOSA VDA. DE IMPERIAL, in her own behalf and as

Guardian Ad Litem of her minor child,
REX IMPERIAL, JR., Plaintiffs-Appellants, vs. HEALD LUMBER
COMPANY, Defendant-Appellee.

--------------------------------

G.R. No. L-14089             September 30, 1961

LOURDES FERRER VDA. DE HERNANDEZ, in her own behalf and as Guardian

Ad Litem of her minor children,
JULIO HERNANDEZ, GABRIEL HERNANDEZ, JR., and ROSARIO
HERNANDEZ, Plaintiffs-Appellants, vs. HEALD LUMBER COMPANY, Defendant-
Appellee.

--------------------------------

G.R. No. L-14112             September 30, 1961

PHILIPPINE AIR LINES, INC., Plaintiff-Appellant, vs. HEALD LUMBER

COMPANY, Defendant-Appellee.

Ponce Enrile, Siguion Reyna, Montecillo and Belo for plaintiffs-appellants.

Ross, Selph and Carrascoso for defendant-appellee.

CONCEPCION, J.: chanrobles virtual law library

          Appeal from a decision of the Court of First Instance of Baguio dismissing the
complaints in the above entitled three (3) cases, with costs against the plaintiffs.
virtual law library
chanroblesvirtualawlibrary chanrobles

          On June 4, 1954, at about 6:50 a.m., a helicopter (PIC361) of the Philippine

Air Lines, Inc. (PAL), which had been chartered by the Lepanto Consolidated Mining
Co., took off from Nichols Fields, in Makati, Rizal, headed for Mankayan, Mt.
Province, via Rosales, Pangasinan. On board the helicopter were Capt. Gabriel
Hernandez and Lt. Rex Imperial. The helicopter reached Rosales at 8:22 a.m., and,
fifty-three (53) minutes later, or at 9:15 a.m., it undertook the last leg of its flight
to Mankayan. However, the helicopter did not reach this place for it crashed on the
way. A search party - composed of, among others, Capts. Willis Rohlings and Jaime
Manzano, both of the PAL - organized to track down the missing helicopter, found it
in a ravine located in the barrio of Ampusungan, Benguet, Mt. Province within the
lumber concession of defendant-appellee, Heald Lumber Co. which is several
kilometers before reaching Mankayan. The helicopter was a total wreck and both
Capt. Hernandez and Lt. Imperial were dead. The body of the former was strapped
to his seat, but that of the latter was several feet away from the wreckage. At the
time of the flight, Capt. Hernandez was a duly licensed helicopter pilot, whereas Lt.
Imperial, although a licensed plane pilot, was then under training as helicopter
pilot. chanroblesvirtualawlibrary chanrobles virtual law library
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          Owing to this accident, three (3) actions were instituted in the court
aforementioned, against said defendant, namely: (1) case No. 580 (G.R. No. L-
14112), filed by PAL on March 2, 1956; (2) case No. 591 (G.R. No. L-14088), filed
by Concepcion Pellosa de Imperial, widow of the deceased Lt. Imperial, on April 13,
1956; and 3) case No. 592 (G.R. No. L-14089), filed by Lourdes Ferrer de
Hernandez, widow of Capt. Hernandez, on the date last mentioned. chanroblesvirtualawlibrary chanrobles virtual law library

          In the first case, the PAL sought to recover the following:

Value of the helicopter P80,000.00

Compensation for the death of Capt. Hernandez & Lt. Imperial at P20,000 each 40,000.00
Consequential damages due to the loss of the helicopter 53,400.00
Funeral expenses for Capt. Hernandez and Lt. Imperial 2,542.00
Expenses incurred in the training of Capt. Hernandez in the U.S. and Lt. 17,405.82
Imperial for operation of helicopter
Moral damages resulting from harmful publicity of the crash 30,000.00

TOTAL P223,347.82

          upon the ground that the mishap was due to the fact that the helicopter had
collided "with defendant's tramway steel cables strung in parallel of approximately
3,000 yards in length between two mountains approximately 3,000 to 5,000 feet
high in the vicinity of defendant's logging area in Ampusungan, Mountain
Province."  chanrobles virtual law library

          In each of the other cases, the respective plaintiffs therein prayed for
judgment as follows:

Actual and compensatory damages P150,000.00

Exemplary damages 50,000.00
Moral damages 50,000.00
Expenses of litigation 10,000.00
Attorney's fees 20,000.00

TOTAL P280,000.00

          upon the theory that the death of Lt. Imperial and Capt. Hernandez was due
to defendant's alleged "gross negligence" and "flagrant violation of applicable laws
and regulations."  chanrobles virtual law library

          Being interrelated, the three (3) cases were jointly heard, and, in due course,
thereafter, the lower court, presided by Hon. Jesus de Veyra, rendered the decision
appealed from, finding that plaintiffs had "failed to make out a case of negligence on
the part of the defendant" and, accordingly, dismissing the three (3) complaints.
Hence, this appeal by the plaintiffs. The three (3) cases are before us the amount of
the demand in each being in excess of P200,000, exclusive of costs and interest.
law library
chanroblesvirtualawlibrary chanrobles virtual

          Appellants maintain that the accident is imputable to the defendant, because

the helicopter, particularly its main rotor blades, had hit or collided with defendant's
aforementioned steel cables. chanroblesvirtualawlibrary chanrobles virtual law library
 9

          In this connection, Capt. Rohlings, who, at the time of the occurrence, was
Assistant Superintendent of the Flight Control of the PAL, testified that, during the
investigation conducted by him at the site of the crash, he found on the rotor blades
of the helicopter.

          several long marks which contained small indentations which were parallel to
each other, parallel lines, if you would put it that way, these marks were covered by
blackish substance of some kind which I took to be of grease of some kind. (t.s.n, p.
95.)

          Capt. Manzano, the Superintendent of Helicopter Operations of the PAL, tried

to corroborate this testimony of Capt. Rohlings. Both opined that the marks were
due to the contact of said rotor blades with the steel cables of defendant herein.
Photographs (Exhibits E-21, E-22 and E-24) allegedly taken by Capt. Rohlings - of
the rotor blades, purporting to show the aforementioned markings, were introduced
in evidence in lieu of said rotor blades. chanroblesvirtualawlibrary chanrobles virtual law library

          It is admitted, however, that the helicopter had hit a tree before falling into a
ravine. Moreover, commenting on appellants' evidence, His Honor, the trial Judge,
had the following to say:

          The evidence for the plaintiffs as to the cause of the crash is not conclusive.
The main rotor blade was not preserved, so this Court was not able to satisfy itself
as to the nature of the two long seriated streaks on the main rotor blade. The
composition of these streaks was not determined - whether they were grease from
the steel cable or marks from hitting a pine tree - for it can be equally argued that
these seriated streaks could have been caused by the strands of a greasy steel cable
or the rough bark of a pine tree. (Decision, Record on Appeal, pp. 19-20.)

          Upon the other hand, defendant endeavored to prove that the mishap had
been due to two (2) causes, namely: (1) exhaustion of the fuel; and (2) negligence
of the pilot.
chanroblesvirtualawlibrary chanrobles virtual law library

          The record shows that the helicopter had a main tank and an auxiliary tank
with a capacity of twenty-seven (27) and fifteen (15) gallons of fuel, respectively.
The main tank was connected to the engine, but the auxiliary tank was not. In order
to transfer gasoline from the latter to the former, it was necessary to land the
helicopter, as the process could not be undertaken during flight. This was, in all
probability, the reason why the aircraft had to land in Rosales, Pangasinan, before
proceeding to Mankayan. chanroblesvirtualawlibrary chanrobles virtual law library

          Having left Rosales at 9:15 a.m., after its flight from Nichols Field, of one (1)
hour and thirty-two (32) minutes (from 6:50 to 8:22), the helicopter was supposed
to reach Mankayan at 10:44 a.m., the estimated flying time between Rosales and
Mankayan being one (1) hour and twenty-nine (29) minutes. Upon the other hand,
the time of the crash was placed at around 11:30 a.m., or between 11:00 and 11:30
a.m. By that time the helicopter had already flown from one (1) hour and forty-five
(45) minutes to two (2) hours and fifteen (15) minutes, since it took off from
Rosales, thus exceeding by sixteen (16) to forty-six (46) minutes the
aforementioned estimated flying time. Considering that, with twenty-seven (27)
gallons of gasoline, the helicopter had to refuel after a flight of one (1) hour and
thirty-two (32) minutes (from Nichols Field to Rosales), it is apparent that, after
flying for a longer period of one (1) hour and forty-five (45) minutes to two (2)
hours and fifteen (15) minutes, with a little over fifteen (15) gallons - or at most
 10

twenty-seven (27) gallons of gasoline, the provision of fuel must have already been
exhausted. chanroblesvirtualawlibrary chanrobles virtual law library

          Col. Arnaiz, aircraft dispatcher of PAL, testified that the "maximum flight
endurance" of the helicopter was "two hours and fifty minutes including the auxiliary
tank." The Flight Plan (Exhibit B-1), as explained by Col. Arnaiz, shows that the
estimated flying time from Nichols Field to Rosales was one (1) hour and forty-two
(42) minutes, and from Rosales to Mankayan, one (1) hour and twenty-nine (29)
minutes, or an aggregate estimated flying time of three (3) hours and eleven (11)
minutes, or twenty-one (21) minutes longer than the estimated "maximum flight
endurance" of the helicopter. Even if we deduct from said total estimated flying
time, from Nichols Field to Mankayan, the ten (10) minutes saved in the flight from
Nichols Field to Rosales, Pangasinan, the result would still be eleven (11) minutes
beyond the said "maximum flight endurance" of the helicopter. In fact, the crash site
(Ampusungan) is only about sixteen (16) kilometers, or ten (10) minutes flying
time, to Mankayan. In other words, the accident took place in the area in which the
helicopter was to have fully consumed its entire supply of gasoline, thus justifying
the belief that it was forced to land in Ampusungan due to lack of gasoline, and that,
as the engine ceased to function, its maneuverability must have become impaired, in
view of which it crashed, thus causing it to fall into a ravine in defendant's
concession. chanroblesvirtualawlibrary chanrobles virtual law library

          Several factors indicate strongly that this was in all likelihood what happened
for: (1) the site of the crash was more than a mile (over three [3] miles, according
to the defendant) off the plotted course, altho, under normal conditions, no
reasonably prudent pilot - according to appellants witness, Capt. Manzano - would
have attempted to land in the vicinity of the scene of the occurrence; (2) the
wrecked helicopter emitted no smell of gasoline and there was no sign of fire
resulting from the crash, despite the fact that the helicopter was using high octane
gasoline, which, admittedly, is highly inflammable and would have probably set the
craft aflame upon hitting the pine tree above referred to, had there been some
gasoline in the tank at that time; and (3) the helicopter was a total wreck, thus
showing that the impact must have been strong. chanroblesvirtualawlibrary chanrobles virtual law library

          The foregoing considerations suggest, also, that Capt. Hernandez and Lt.
Imperial had acted recklessly in undertaking the flight with a supply of fuel hardly
sufficient to enable them to reach their destination. Besides, the landing report
(Exhibit 9) shows that the portions thereof pertaining to the pilot were accomplished
or filled in by Lt. Imperial upon landing at the Rosales airport. In fact, he signed said
report as pilot of the helicopter. Again, it appears that during the flight from Rosales
to Mankayan, the helicopter had deviated from one to three miles from the course
plotted by Capt. Hernandez, in which Col. Arnaiz concurred "because that was the
most logical route to follow." Had Capt. Hernandez been piloting the machine from
Rosales to Mankayan, he would have had no reason to deviate from the course
planned by him, for the "visibility and ceiling were unlimited in the area and vicinity
where the helicopter fell." All indications are, therefore, to the effect that, at the
time of the accident, the helicopter was being piloted, not by Capt. Hernandez but
by Lt. Imperial, in violation of Aeronautics Bulletin No. 1, Civil Aviation Regulations,
of the Bureau of Aeronautics (CAA)1 as well as of Republic Act No. 776, Section 42
(H),2 for Lt. Imperial was not a lincesed helicopter pilot and was merely in the initial
stage of his training as such pilot. chanroblesvirtualawlibrary chanrobles virtual law library

          It is next urged that defendant was negligent in failing to give notice to the
Civil Aeronautics Administration of the presence of the aforementioned tram cables,
 11

which, appellants maintain, constituted a hazard to aerial navigation. However, this

pretense is not borne out by the record. Appellants' witness, Capt. Manzano,
testified that although, in searching for the missing helicopter, his plane flew so low
that there was danger of collision with the mountains, he did not notice said cables.
The same were not, therefore, within the navigable air space. Similarly, Capt.
Rohlings described the area over which the cables were strung as "a congested area
full of pine trees" and a "mountainous terrain - slopping valley," thereby implying
that the space from the cables down was not suitable for air navigation. In short, it
has not been satisfactorily shown that the cables were a hazard to aerial navigation,
or that the defendant should have or could have reasonably foreseen that aircrafts
would fly so low over the place as to get entangled with said cables, for the area is
dangerous to navigation owing to its mountainous terrain "full of pine trees."  chanrobles virtual law library

          In short plaintiffs-appellants have failed to establish their pretense by a

preponderance of evidence, in view of which the decision appealed from must be, as
it is hereby affirmed, with costs against them. It is so ordered.

Bengzon, C.J., Padilla, Labrador, Reyes, J.B.L., Paredes and De Leon, JJ., concur.
Bautista Angelo, J., is on leave.

Endnotes:

1
"CHAPTER VII - OPERATIONS OF LICENSED AIRCRAFT.

xxx     xxx     xxx chanrobles virtual law library

          "Sec. 5. Aircraft to be Flown by Appropriately Licensed Pilot. chanroblesvirtualawlibrary chanrobles virtual law library

          "The registered owner or the operator of a licensed aircraft shall not permit it

to be flown by any person other than one possessed with a pilot's license valid for
the type of aircraft and operation involved, and shall not allow such aircraft to
engage in air commerce in a schedule or non-schedule operation unless such aircraft
is operating on their permit in accordance with the provisions of Section 6(h) of
Commonwealth Act No. 168, as amended by Section 2, paragraph (h) of
Commonwealth Act No. 529.

xxx     xxx     xxx chanrobles virtual law library

          "CHAPTER IX - LICENSED PILOTS  chanrobles virtual law library

          "Sec. 1. Licensing Pilots, Regulations of. chanroblesvirtualawlibrary chanrobles virtual law library

          "It shall be unlawful for any person to operate any aircraft in the Philippines,
unless such person is the holder of an appropriate effective pilot's license issued by
the Bureau of Aeronautics. Provided, however, that this restriction shall not apply to
licensed pilots of the United States or to foreign pilots operating aircraft of foreign
countries with which the United States or the Philippines has a reciprocal or other
agreement covering commercial pilot privileges in the Philippines. chanroblesvirtualawlibrary chanrobles virtual law library
 12

          "The term 'airman' shall be taken to mean and include any individual
(including the person in command, and any pilot, mechanic, or member of the crew)
who engages or assists in the navigation or operation of aircraft while on their way,
and any individual who is in charge of the inspection, overhauling, or repairing of
aircraft or of parachutes." (Emphasis supplied.)  chanrobles virtual law library

2
"Any person serving in any capacity as an airman in connection with any civil
aircraft without an airman's certificate, or in violation of the terms of any such
certificate or in excess of the rating of such certificate shall be punished by a fine not
exceeding five thousand pesos. The repetition of this offense shall be sufficient
cause for the revocation of the airman's certificate."