G.R. No.

L-12191 October 14, 1918

JOSE CANGCO, plaintiff-appellant, vs.
MANILA RAILROAD CO., defendant-appellee.
FISHER, J.:
At the time of the occurrence which gave rise to this litigation the plaintiff, Jose Cangco,
was in the employment of Manila Railroad Company in the capacity of clerk, with a
monthly wage of P25. He lived in the pueblo of San Mateo, in the province of Rizal, which
is located upon the line of the defendant railroad company; and in coming daily by train to
the company's office in the city of Manila where he worked, he used a pass, supplied by
the company, which entitled him to ride upon the company's trains free of charge. Upon
the occasion in question, January 20, 1915, the plaintiff arose from his seat in the second
class-car where he was riding and, making, his exit through the door, took his position
upon the steps of the coach, seizing the upright guardrail with his right hand for support.
On the side of the train where passengers alight at the San Mateo station there is a
cement platform which begins to rise with a moderate gradient some distance away from
the company's office and extends along in front of said office for a distance sufficient to
cover the length of several coaches. As the train slowed down another passenger, named
Emilio Zuiga, also an employee of the railroad company, got off the same car, alighting
safely at the point where the platform begins to rise from the level of the ground. When the
train had proceeded a little farther the plaintiff Jose Cangco stepped off also, but one or
both of his feet came in contact with a sack of watermelons with the result that his feet
slipped from under him and he fell violently on the platform. His body at once rolled from
the platform and was drawn under the moving car, where his right arm was badly crushed
and lacerated. It appears that after the plaintiff alighted from the train the car moved
forward possibly six meters before it came to a full stop.
The accident occurred between 7 and 8 o'clock on a dark night, and as the railroad station
was lighted dimly by a single light located some distance away, objects on the platform
where the accident occurred were difficult to discern especially to a person emerging from
a lighted car.
The explanation of the presence of a sack of melons on the platform where the plaintiff
alighted is found in the fact that it was the customary season for harvesting these melons
and a large lot had been brought to the station for the shipment to the market. They were
contained in numerous sacks which has been piled on the platform in a row one upon
another. The testimony shows that this row of sacks was so placed of melons and the
edge of platform; and it is clear that the fall of the plaintiff was due to the fact that his foot
alighted upon one of these melons at the moment he stepped upon the platform. His
statement that he failed to see these objects in the darkness is readily to be credited.
The plaintiff was drawn from under the car in an unconscious condition, and it appeared
that the injuries which he had received were very serious. He was therefore brought at
once to a certain hospital in the city of Manila where an examination was made and his
arm was amputated. The result of this operation was unsatisfactory, and the plaintiff was
then carried to another hospital where a second operation was performed and the
member was again amputated higher up near the shoulder. It appears in evidence that the
plaintiff expended the sum of P790.25 in the form of medical and surgical fees and for
other expenses in connection with the process of his curation.
Upon August 31, 1915, he instituted this proceeding in the Court of First Instance of the
city of Manila to recover damages of the defendant company, founding his action upon the
negligence of the servants and employees of the defendant in placing the sacks of melons
upon the platform and leaving them so placed as to be a menace to the security of
passenger alighting from the company's trains. At the hearing in the Court of First
Instance, his Honor, the trial judge, found the facts substantially as above stated, and
drew therefrom his conclusion to the effect that, although negligence was attributable to
the defendant by reason of the fact that the sacks of melons were so placed as to obstruct
passengers passing to and from the cars, nevertheless, the plaintiff himself had failed to
use due caution in alighting from the coach and was therefore precluded form recovering.
Judgment was accordingly entered in favor of the defendant company, and the plaintiff
appealed.
It can not be doubted that the employees of the railroad company were guilty of
negligence in piling these sacks on the platform in the manner above stated; that their
presence caused the plaintiff to fall as he alighted from the train; and that they therefore
constituted an effective legal cause of the injuries sustained by the plaintiff. It necessarily
follows that the defendant company is liable for the damage thereby occasioned unless
recovery is barred by the plaintiff's own contributory negligence. In resolving this problem
it is necessary that each of these conceptions of liability, to-wit, the primary responsibility
of the defendant company and the contributory negligence of the plaintiff should be
separately examined.
It is important to note that the foundation of the legal liability of the defendant is the
contract of carriage, and that the obligation to respond for the damage which plaintiff has
suffered arises, if at all, from the breach of that contract by reason of the failure of
defendant to exercise due care in its performance. That is to say, its liability is direct and
immediate, differing essentially, in legal viewpoint from that presumptive responsibility for
the negligence of its servants, imposed by article 1903 of the Civil Code, which can be
rebutted by proof of the exercise of due care in their selection and supervision. Article
1903 of the Civil Code is not applicable to obligations arising ex contractu, but only to
extra-contractual obligations or to use the technical form of expression, that article
relates only to culpaaquiliana and not to culpa contractual.
Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104 of the Civil
Code, clearly points out this distinction, which was also recognized by this Court in its
decision in the case of Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. rep., 359). In
commenting upon article 1093 Manresa clearly points out the difference between "culpa,
substantive and independent, which of itself constitutes the source of an obligation
between persons not formerly connected by any legal tie" and culpa considered as an
accident in the performance of an obligation already existing . . . ."
In the Rakes case (supra) the decision of this court was made to rest squarely upon the
proposition that article 1903 of the Civil Code is not applicable to acts of negligence which
constitute the breach of a contract.
Upon this point the Court said:
The acts to which these articles [1902 and 1903 of the Civil Code] are applicable
are understood to be those not growing out of pre-existing duties of the parties
to one another. But where relations already formed give rise to duties, whether
springing from contract or quasi-contract, then breaches of those duties are
subject to article 1101, 1103, and 1104 of the same code. (Rakes vs. Atlantic,
Gulf and Pacific Co., 7 Phil. Rep., 359 at 365.)
This distinction is of the utmost importance. The liability, which, under the Spanish law, is,
in certain cases imposed upon employers with respect to damages occasioned by the
negligence of their employees to persons to whom they are not bound by contract, is not
based, as in the English Common Law, upon the principle of respondeat superior if it
were, the master would be liable in every case and unconditionally but upon the
principle announced in article 1902 of the Civil Code, which imposes upon all persons who
by their fault or negligence, do injury to another, the obligation of making good the
damage caused. One who places a powerful automobile in the hands of a servant whom
he knows to be ignorant of the method of managing such a vehicle, is himself guilty of an
act of negligence which makes him liable for all the consequences of his imprudence. The
obligation to make good the damage arises at the very instant that the unskillful servant,
while acting within the scope of his employment causes the injury. The liability of the
master is personal and direct. But, if the master has not been guilty of any negligence
whatever in the selection and direction of the servant, he is not liable for the acts of the
latter, whatever done within the scope of his employment or not, if the damage done by
the servant does not amount to a breach of the contract between the master and the
person injured.
It is not accurate to say that proof of diligence and care in the selection and control of the
servant relieves the master from liability for the latter's acts on the contrary, that proof
shows that the responsibility has never existed. As Manresa says (vol. 8, p. 68) the liability
arising from extra-contractual culpa is always based upon a voluntary act or omission
which, without willful intent, but by mere negligence or inattention, has caused damage to
another. A master who exercises all possible care in the selection of his servant, taking
into consideration the qualifications they should possess for the discharge of the duties
which it is his purpose to confide to them, and directs them with equal diligence, thereby
performs his duty to third persons to whom he is bound by no contractual ties, and he
incurs no liability whatever if, by reason of the negligence of his servants, even within the
scope of their employment, such third person suffer damage. True it is that under article
1903 of the Civil Code the law creates apresumption that he has been negligent in the
selection or direction of his servant, but the presumption is rebuttable and yield to proof of
due care and diligence in this respect.
The supreme court of Porto Rico, in interpreting identical provisions, as found in the Porto
Rico Code, has held that these articles are applicable to cases of extra-
contractual culpa exclusively. (Carmona vs. Cuesta, 20 Porto Rico Reports, 215.)
This distinction was again made patent by this Court in its decision in the case of
Bahia vs. Litonjua and Leynes, (30 Phil. rep., 624), which was an action brought upon the
theory of the extra-contractual liability of the defendant to respond for the damage caused
by the carelessness of his employee while acting within the scope of his employment. The
Court, after citing the last paragraph of article 1903 of the Civil Code, said:
From this article two things are apparent: (1) That when an injury is caused by
the negligence of a servant or employee there instantly arises a presumption of
law that there was negligence on the part of the master or employer either in
selection of the servant or employee, or in supervision over him after the
selection, or both; and (2) that that presumption is juris tantum and not juris et de
jure, and consequently, may be rebutted. It follows necessarily that if the
employer shows to the satisfaction of the court that in selection and supervision
he has exercised the care and diligence of a good father of a family, the
presumption is overcome and he is relieved from liability.
This theory bases the responsibility of the master ultimately on
his own negligence and not on that of his servant. This is the notable peculiarity
of the Spanish law of negligence. It is, of course, in striking contrast to the
American doctrine that, in relations with strangers, the negligence of the servant
in conclusively the negligence of the master.
The opinion there expressed by this Court, to the effect that in case of extra-
contractual culpa based upon negligence, it is necessary that there shall have been some
fault attributable to the defendant personally, and that the last paragraph of article 1903
merely establishes a rebuttable presumption, is in complete accord with the authoritative
opinion of Manresa, who says (vol. 12, p. 611) that the liability created by article 1903 is
imposed by reason of the breach of the duties inherent in the special relations of authority
or superiority existing between the person called upon to repair the damage and the one
who, by his act or omission, was the cause of it.
On the other hand, the liability of masters and employers for the negligent acts or
omissions of their servants or agents, when such acts or omissions cause damages which
amount to the breach of a contact, is not based upon a mere presumption of the master's
negligence in their selection or control, and proof of exercise of the utmost diligence and
care in this regard does not relieve the master of his liability for the breach of his contract.
Every legal obligation must of necessity be extra-contractual or contractual. Extra-
contractual obligation has its source in the breach or omission of those mutual duties
which civilized society imposes upon it members, or which arise from these relations,
other than contractual, of certain members of society to others, generally embraced in the
concept of status. The legal rights of each member of society constitute the measure of
the corresponding legal duties, mainly negative in character, which the existence of those
rights imposes upon all other members of society. The breach of these general duties
whether due to willful intent or to mere inattention, if productive of injury, give rise to an
obligation to indemnify the injured party. The fundamental distinction between obligations
of this character and those which arise from contract, rests upon the fact that in cases of
non-contractual obligation it is the wrongful or negligent act or omission itself which
creates the vinculum juris, whereas in contractual relations the vinculumexists
independently of the breach of the voluntary duty assumed by the parties when entering
into the contractual relation.
With respect to extra-contractual obligation arising from negligence, whether of act or
omission, it is competent for the legislature to elect and our Legislature has so elected
whom such an obligation is imposed is morally culpable, or, on the contrary, for
reasons of public policy, to extend that liability, without regard to the lack of moral
culpability, so as to include responsibility for the negligence of those person who acts or
mission are imputable, by a legal fiction, to others who are in a position to exercise an
absolute or limited control over them. The legislature which adopted our Civil Code has
elected to limit extra-contractual liability with certain well-defined exceptions to cases
in which moral culpability can be directly imputed to the persons to be charged. This moral
responsibility may consist in having failed to exercise due care in the selection and control
of one's agents or servants, or in the control of persons who, by reason of their status,
occupy a position of dependency with respect to the person made liable for their conduct.
The position of a natural or juridical person who has undertaken by contract to render
service to another, is wholly different from that to which article 1903 relates. When the
sources of the obligation upon which plaintiff's cause of action depends is a negligent act
or omission, the burden of proof rests upon plaintiff to prove the negligence if he does
not his action fails. But when the facts averred show a contractual undertaking by
defendant for the benefit of plaintiff, and it is alleged that plaintiff has failed or refused to
perform the contract, it is not necessary for plaintiff to specify in his pleadings whether the
breach of the contract is due to willful fault or to negligence on the part of the defendant,
or of his servants or agents. Proof of the contract and of its nonperformance is
sufficient prima facie to warrant a recovery.
As a general rule . . . it is logical that in case of extra-contractual culpa, a suing
creditor should assume the burden of proof of its existence, as the only fact
upon which his action is based; while on the contrary, in a case of negligence
which presupposes the existence of a contractual obligation, if the creditor
shows that it exists and that it has been broken, it is not necessary for him to
prove negligence. (Manresa, vol. 8, p. 71 [1907 ed., p. 76]).
As it is not necessary for the plaintiff in an action for the breach of a contract to show that
the breach was due to the negligent conduct of defendant or of his servants, even though
such be in fact the actual cause of the breach, it is obvious that proof on the part of
defendant that the negligence or omission of his servants or agents caused the breach of
the contract would not constitute a defense to the action. If the negligence of servants or
agents could be invoked as a means of discharging the liability arising from contract, the
anomalous result would be that person acting through the medium of agents or servants
in the performance of their contracts, would be in a better position than those acting in
person. If one delivers a valuable watch to watchmaker who contract to repair it, and the
bailee, by a personal negligent act causes its destruction, he is unquestionably liable.
Would it be logical to free him from his liability for the breach of his contract, which
involves the duty to exercise due care in the preservation of the watch, if he shows that it
was his servant whose negligence caused the injury? If such a theory could be accepted,
juridical persons would enjoy practically complete immunity from damages arising from the
breach of their contracts if caused by negligent acts as such juridical persons can of
necessity only act through agents or servants, and it would no doubt be true in most
instances that reasonable care had been taken in selection and direction of such servants.
If one delivers securities to a banking corporation as collateral, and they are lost by
reason of the negligence of some clerk employed by the bank, would it be just and
reasonable to permit the bank to relieve itself of liability for the breach of its contract to
return the collateral upon the payment of the debt by proving that due care had been
exercised in the selection and direction of the clerk?
This distinction between culpa aquiliana, as the source of an obligation, and culpa
contractual as a mere incident to the performance of a contract has frequently been
recognized by the supreme court of Spain. (Sentencias of June 27, 1894; November 20,
1896; and December 13, 1896.) In the decisions of November 20, 1896, it appeared that
plaintiff's action arose ex contractu, but that defendant sought to avail himself of the
provisions of article 1902 of the Civil Code as a defense. The Spanish Supreme Court
rejected defendant's contention, saying:
These are not cases of injury caused, without any pre-existing obligation, by
fault or negligence, such as those to which article 1902 of the Civil Code relates,
but of damages caused by the defendant's failure to carry out the undertakings
imposed by the contracts . . . .
A brief review of the earlier decision of this court involving the liability of employers for
damage done by the negligent acts of their servants will show that in no case has the
court ever decided that the negligence of the defendant's servants has been held to
constitute a defense to an action for damages for breach of contract.
In the case of Johnson vs. David (5 Phil. Rep., 663), the court held that the owner of a
carriage was not liable for the damages caused by the negligence of his driver. In that
case the court commented on the fact that no evidence had been adduced in the trial
court that the defendant had been negligent in the employment of the driver, or that he
had any knowledge of his lack of skill or carefulness.
In the case of Baer Senior & Co's Successors vs. Compania Maritima (6 Phil. Rep., 215),
the plaintiff sued the defendant for damages caused by the loss of a barge belonging to
plaintiff which was allowed to get adrift by the negligence of defendant's servants in the
course of the performance of a contract of towage. The court held, citing Manresa (vol. 8,
pp. 29, 69) that if the "obligation of the defendant grew out of a contract made between it
and the plaintiff . . . we do not think that the provisions of articles 1902 and 1903 are
applicable to the case."
In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff sued the defendant
to recover damages for the personal injuries caused by the negligence of defendant's
chauffeur while driving defendant's automobile in which defendant was riding at the time.
The court found that the damages were caused by the negligence of the driver of the
automobile, but held that the master was not liable, although he was present at the time,
saying:
. . . unless the negligent acts of the driver are continued for a length of time as to
give the owner a reasonable opportunity to observe them and to direct the driver
to desist therefrom. . . . The act complained of must be continued in the
presence of the owner for such length of time that the owner by his
acquiescence, makes the driver's acts his own.
In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage & Taxicab Co. (33
Phil. Rep., 8), it is true that the court rested its conclusion as to the liability of the
defendant upon article 1903, although the facts disclosed that the injury complaint of by
plaintiff constituted a breach of the duty to him arising out of the contract of transportation.
The express ground of the decision in this case was that article 1903, in dealing with the
liability of a master for the negligent acts of his servants "makes the distinction between
private individuals and public enterprise;" that as to the latter the law creates a rebuttable
presumption of negligence in the selection or direction of servants; and that in the
particular case the presumption of negligence had not been overcome.
It is evident, therefore that in its decision Yamada case, the court treated plaintiff's action
as though founded in tort rather than as based upon the breach of the contract of carriage,
and an examination of the pleadings and of the briefs shows that the questions of law
were in fact discussed upon this theory. Viewed from the standpoint of the defendant the
practical result must have been the same in any event. The proof disclosed beyond doubt
that the defendant's servant was grossly negligent and that his negligence was the
proximate cause of plaintiff's injury. It also affirmatively appeared that defendant had been
guilty of negligence in its failure to exercise proper discretion in the direction of the
servant. Defendant was, therefore, liable for the injury suffered by plaintiff, whether the
breach of the duty were to be regarded as constituting culpa aquiliana or culpa
contractual. As Manresa points out (vol. 8, pp. 29 and 69) whether negligence occurs an
incident in the course of the performance of a contractual undertaking or its itself the
source of an extra-contractual undertaking obligation, its essential characteristics are
identical. There is always an act or omission productive of damage due to carelessness or
inattention on the part of the defendant. Consequently, when the court holds that a
defendant is liable in damages for having failed to exercise due care, either directly, or in
failing to exercise proper care in the selection and direction of his servants, the practical
result is identical in either case. Therefore, it follows that it is not to be inferred, because
the court held in the Yamada case that defendant was liable for the damages negligently
caused by its servants to a person to whom it was bound by contract, and made reference
to the fact that the defendant was negligent in the selection and control of its servants,
that in such a case the court would have held that it would have been a good defense to
the action, if presented squarely upon the theory of the breach of the contract, for
defendant to have proved that it did in fact exercise care in the selection and control of the
servant.
The true explanation of such cases is to be found by directing the attention to the relative
spheres of contractual and extra-contractual obligations. The field of non- contractual
obligation is much more broader than that of contractual obligations, comprising, as it
does, the whole extent of juridical human relations. These two fields, figuratively speaking,
concentric; that is to say, the mere fact that a person is bound to another by contract does
not relieve him from extra-contractual liability to such person. When such a contractual
relation exists the obligor may break the contract under such conditions that the same act
which constitutes the source of an extra-contractual obligation had no contract existed
between the parties.
The contract of defendant to transport plaintiff carried with it, by implication, the duty to
carry him in safety and to provide safe means of entering and leaving its trains (civil code,
article 1258). That duty, being contractual, was direct and immediate, and its non-
performance could not be excused by proof that the fault was morally imputable to
defendant's servants.
The railroad company's defense involves the assumption that even granting that the
negligent conduct of its servants in placing an obstruction upon the platform was a breach
of its contractual obligation to maintain safe means of approaching and leaving its trains,
the direct and proximate cause of the injury suffered by plaintiff was his own contributory
negligence in failing to wait until the train had come to a complete stop before alighting.
Under the doctrine of comparative negligence announced in the Rakes case (supra), if the
accident was caused by plaintiff's own negligence, no liability is imposed upon defendant's
negligence and plaintiff's negligence merely contributed to his injury, the damages should
be apportioned. It is, therefore, important to ascertain if defendant was in fact guilty of
negligence.
It may be admitted that had plaintiff waited until the train had come to a full stop before
alighting, the particular injury suffered by him could not have occurred. Defendant
contends, and cites many authorities in support of the contention, that it is negligence per
se for a passenger to alight from a moving train. We are not disposed to subscribe to this
doctrine in its absolute form. We are of the opinion that this proposition is too badly stated
and is at variance with the experience of every-day life. In this particular instance, that the
train was barely moving when plaintiff alighted is shown conclusively by the fact that it
came to stop within six meters from the place where he stepped from it. Thousands of
person alight from trains under these conditions every day of the year, and sustain no
injury where the company has kept its platform free from dangerous obstructions. There is
no reason to believe that plaintiff would have suffered any injury whatever in alighting as
he did had it not been for defendant's negligent failure to perform its duty to provide a safe
alighting place.
We are of the opinion that the correct doctrine relating to this subject is that expressed in
Thompson's work on Negligence (vol. 3, sec. 3010) as follows:
The test by which to determine whether the passenger has been guilty of
negligence in attempting to alight from a moving railway train, is that of ordinary
or reasonable care. It is to be considered whether an ordinarily prudent person,
of the age, sex and condition of the passenger, would have acted as the
passenger acted under the circumstances disclosed by the evidence. This care
has been defined to be, not the care which may or should be used by the
prudent man generally, but the care which a man of ordinary prudence would
use under similar circumstances, to avoid injury." (Thompson, Commentaries on
Negligence, vol. 3, sec. 3010.)
Or, it we prefer to adopt the mode of exposition used by this court in Picart vs. Smith (37
Phil. rep., 809), we may say that the test is this; Was there anything in the circumstances
surrounding the plaintiff at the time he alighted from the train which would have
admonished a person of average prudence that to get off the train under the conditions
then existing was dangerous? If so, the plaintiff should have desisted from alighting; and
his failure so to desist was contributory negligence.1awph!l.net
As the case now before us presents itself, the only fact from which a conclusion can be
drawn to the effect that plaintiff was guilty of contributory negligence is that he stepped off
the car without being able to discern clearly the condition of the platform and while the
train was yet slowly moving. In considering the situation thus presented, it should not be
overlooked that the plaintiff was, as we find, ignorant of the fact that the obstruction which
was caused by the sacks of melons piled on the platform existed; and as the defendant
was bound by reason of its duty as a public carrier to afford to its passengers facilities for
safe egress from its trains, the plaintiff had a right to assume, in the absence of some
circumstance to warn him to the contrary, that the platform was clear. The place, as we
have already stated, was dark, or dimly lighted, and this also is proof of a failure upon the
part of the defendant in the performance of a duty owing by it to the plaintiff; for if it were
by any possibility concede that it had right to pile these sacks in the path of alighting
passengers, the placing of them adequately so that their presence would be revealed.
As pertinent to the question of contributory negligence on the part of the plaintiff in this
case the following circumstances are to be noted: The company's platform was
constructed upon a level higher than that of the roadbed and the surrounding ground. The
distance from the steps of the car to the spot where the alighting passenger would place
his feet on the platform was thus reduced, thereby decreasing the risk incident to stepping
off. The nature of the platform, constructed as it was of cement material, also assured to
the passenger a stable and even surface on which to alight. Furthermore, the plaintiff was
possessed of the vigor and agility of young manhood, and it was by no means so risky for
him to get off while the train was yet moving as the same act would have been in an aged
or feeble person. In determining the question of contributory negligence in performing
such act that is to say, whether the passenger acted prudently or recklessly the age,
sex, and physical condition of the passenger are circumstances necessarily affecting the
safety of the passenger, and should be considered. Women, it has been observed, as a
general rule are less capable than men of alighting with safety under such conditions, as
the nature of their wearing apparel obstructs the free movement of the limbs. Again, it may
be noted that the place was perfectly familiar to the plaintiff as it was his daily custom to
get on and of the train at this station. There could, therefore, be no uncertainty in his mind
with regard either to the length of the step which he was required to take or the character
of the platform where he was alighting. Our conclusion is that the conduct of the plaintiff in
undertaking to alight while the train was yet slightly under way was not characterized by
imprudence and that therefore he was not guilty of contributory negligence.
The evidence shows that the plaintiff, at the time of the accident, was earning P25 a
month as a copyist clerk, and that the injuries he has suffered have permanently disabled
him from continuing that employment. Defendant has not shown that any other gainful
occupation is open to plaintiff. His expectancy of life, according to the standard mortality
tables, is approximately thirty-three years. We are of the opinion that a fair compensation
for the damage suffered by him for his permanent disability is the sum of P2,500, and that
he is also entitled to recover of defendant the additional sum of P790.25 for medical
attention, hospital services, and other incidental expenditures connected with the
treatment of his injuries.
The decision of lower court is reversed, and judgment is hereby rendered plaintiff for the
sum of P3,290.25, and for the costs of both instances. So ordered.
Arellano, C.J., Torres, Street and Avancea, JJ., concur.
Separate Opinions
MALCOLM, J., dissenting:
With one sentence in the majority decision, we are of full accord, namely, "It may be
admitted that had plaintiff waited until the train had come to a full stop before alighting, the
particular injury suffered by him could not have occurred." With the general rule relative to
a passenger's contributory negligence, we are likewise in full accord, namely, "An attempt
to alight from a moving train is negligence per se." Adding these two points together,
should be absolved from the complaint, and judgment affirmed.
Johnson, J., concur.






























CESAR L. ISAAC, plaintiff-appellant, vs. A. L. AMMEN TRANSPORTATION CO.,
INC., defendant-appellee. BAUTISTA ANGELO, J.:
G.R. No. L-9671 August 23, 1957
A. L. Ammen Transportation Co., Inc., hereinafter referred to as defendant, is a
corporation engaged in the business of transporting passengers by land for compensation
in the Bicol provinces and one of the lines it operates is the one connecting Legaspi City,
Albay with Naga City, Camarines Sur. One of the buses which defendant was operating is
Bus No. 31. On May 31, 1951, plaintiff boarded said bus as a passenger paying the
required fare from Ligao, Albay bound for Pili, Camarines Sur, but before reaching his
destination, the bus collided with a motor vehicle of the pick-up type coming from the
opposite direction, as a result of which plaintiff's left arm was completely severed and the
severed portion fell inside the bus. Plaintiff was rushed to a hospital in Iriga, Camarines
Sur where he was given blood transfusion to save his life. After four days, he was
transferred to another hospital in Tabaco, Albay, where he under went treatment for three
months. He was moved later to the Orthopedic Hospital where he was operated on and
stayed there for another two months. For these services, he incurred expenses amounting
to P623.40, excluding medical fees which were paid by defendant.
As an aftermath, plaintiff brought this action against defendants for damages alleging that
the collision which resulted in the loss of his left arm was mainly due to the gross
incompetence and recklessness of the driver of the bus operated by defendant and that
defendant incurred in culpa contractual arising from its non-compliance with its obligation
to transport plaintiff safely to his, destination. Plaintiff prays for judgment against
defendant as follows: (1) P5,000 as expenses for his medical treatment, and P3,000 as
the cost of an artificial arm, or a total of P8,000; (2) P6,000 representing loss of earning;
(3) P75,000 for diminution of his earning capacity; (4) P50,000 as moral damages; and (5)
P10,000 as attorneys' fees and costs of suit.
Defendant set up as special defense that the injury suffered by plaintiff was due entirely to
the fault or negligence of the driver of the pick-up car which collided with the bus driven by
its driver and to the contributory negligence of plaintiff himself. Defendant further claims
that the accident which resulted in the injury of plaintiff is one which defendant could not
foresee or, though foreseen, was inevitable.
The after trial found that the collision occurred due to the negligence of the driver of the
pick-up car and not to that of the driver of the bus it appearing that the latter did everything
he could to avoid the same but that notwithstanding his efforts, he was not able to avoid it.
As a consequence, the court dismissed complaint, with costs against plaintiff. This is an
appeal from said decision.
It appears that plaintiff boarded a bus of defendant as paying passenger from Ligao,
Albay, bound for Pili, Camarines Sur, but before reaching his destination, the bus collided
with a pick-up car which was coming from the opposite direction and, as a, result, his left
arm was completely severed and fell inside the back part of the bus. Having this
background in view, and considering that plaintiff chose to hold defendant liable on its
contractual obligation to carry him safely to his place of destination, it becomes important
to determine the nature and extent of the liability of a common carrier to a passenger in
the light of the law applicable in this jurisdiction.
In this connection, appellant invokes the rule that, "when an action is based on a contract
of carriage, as in this case, all that is necessary to sustain recovery is proof of the
existence of the contract of the breach thereof by act or omission", and in support thereof,
he cites several Philippine cases.
1
With the ruling in mind, appellant seems to imply that
once the contract of carriage is established and there is proof that the same was broken
by failure of the carrier to transport the passenger safely to his destination, the liability of
the former attaches. On the other hand, appellee claims that is a wrong presentation of
the rule. It claims that the decisions of this Court in the cases cited do not warrant the
construction sought to be placed upon, them by appellant for a mere perusal thereof
would show that the liability of the carrier was predicated not upon mere breach of its
contract of carriage but upon the finding that its negligence was found to be the direct or
proximate cause of the injury complained of. Thus, appellee contends that "if there is no
negligence on the part of the common carrier but that the accident resulting in injuries is
due to causes which are inevitable and which could not have been avoided or anticipated
notwithstanding the exercise of that high degree of care and skill which the carrier is
bound to exercise for the safety of his passengers", neither the common carrier nor the
driver is liable therefor.
We believe that the law concerning the liability of a common carrier has now suffered a
substantial modification in view of the innovations introduced by the new Civil Code.
These innovations are the ones embodied in Articles 1733, 1755 and 1756 in so far as the
relation between a common carrier and its passengers is concerned, which, for ready
reference, we quote hereunder:
ART. 1733. Common carriers, from the nature of their business and for reasons of
public policy, are bound to observe extra ordinary diligence in the vigilance over the goods
and for the safety of the passengers transported by them according to all the
circumstances of each case.
Such extraordinary diligence in the vigilance over the goods is further expressed in
articles 1734, 1735, and 1745, Nos. 5, 6, and 7, while the extraordinary diligence for the
safety of the passengers is further set forth in articles 1755 and 1756.
ART. 1755. A common carrier is bound to carry the passengers safely as far as
human care and foresight can provide, using the utmost diligence of very cautious
persons, with a due regard for all the circumstances.
ART. 1756. In case of death of or injuries to passengers, common carriers are
presumed to have been at fault or to have acted negligently, unless they prove that they
observed extraordinary diligence as prescribed in articles 1733 and 1755.
The Code Commission, in justifying this extraordinary diligence required of a common
carrier, says the following:
A common carrier is bound to carry the passengers safely as far as human care and
foresight can provide, using the utmost deligence of very cautions persons, with due
regard for all circumstances. This extraordinary diligence required of common
carriers is calculated to protect the passengers from the tragic mishaps that
frequently occur in connection with rapid modern transportation. This high standard
of care is imperatively demanded by the precariousness of human life and by the
consideration that every person must in every way be safeguarded against all injury.
(Report of the Code Commission, pp. 35-36)" (Padilla, Civil Code of the Philippines,
Vol. IV, 1956 ed., p. 197).
From the above legal provisions, we can make the following restatement of the principles
governing the liability of a common carrier: (1) the liability of a carrier is contractual and
arises upon breach of its obligation. There is breach if it fails to exert extraordinary
diligence according to all circumstances of each case; (2) a carrier is obliged to carry its
passenger with the utmost diligence of a very cautious person, having due regard for all
the circumstances; (3) a carrier is presumed to be at fault or to have acted negligently in
case of death of, or injury to, passengers, it being its duty to prove that it exercised
extraordinary diligence; and (4) the carrier is not an insurer against all risks of travel.
The question that now arises is: Has defendant observed extraordinary diligence or the
utmost diligence of every cautious person, having due regard for all circumstances, in
avoiding the collision which resulted in the injury caused to the plaintiff?
After examining the evidence in connection with how the collision occurred, the lower
court made the following finding:
Hemos examinado muy detenidamente las pruebas presentadas en la vista,
principalmente, las declaraciones que hemos acotado arriba, y hernos Ilegado a la
conclusion de que el demandado ha hecho, todo cuanto estuviere de su parte para evitar
el accidente, pero sin embargo, no ha podido evitarlo.
EI hecho de que el demandado, antes del choque, tuvo que hacer pasar su truck encima
de los montones de grava que estaban depositados en la orilla del camino, sin que haya
ido mas alla, por el grave riesgo que corrian las vidas de sus pasajeros, es prueba
concluyente de lo que tenemos dicho, a saber: que el cuanto esuba de su parte, para
evitar el accidente, sin que haya podidoevitardo, por estar fuera de su control.
The evidence would appear to support the above finding. Thus, it appears that Bus No.
31, immediately prior to the collision, was running at a moderate speed because it had just
stopped at the school zone of Matacong, Polangui, Albay. The pick-up car was at full
speed and was running outside of its proper lane. The driver of the bus, upon seeing the
manner in which the pick-up was then running, swerved the bus to the very extreme right
of the road until its front and rear wheels have gone over the pile of stones or gravel
situated on the rampart of the road. Said driver could not move the bus farther right and
run over a greater portion of the pile, the peak of which was about 3 feet high, without
endangering the safety of his passengers. And notwithstanding all these efforts, the rear
left side of the bus was hit by the pick-up car.
Of course, this finding is disputed by appellant who cannot see eye to eye with the
evidence for the appellee and insists that the collision took place because the driver of the
bus was going at a fast speed. He contends that, having seen that a car was coming from
the opposite direction at a distance which allows the use of moderate care and prudence
to avoid an accident, and knowing that on the side of the road along which he was going
there was a pile of gravel, the driver of the bus should have stopped and waited for the
vehicle from the opposite direction to pass, and should have proceeded only after the
other vehicle had passed. In other words, according to appellant, the act of the driver of
the bus in squeezing his way through of the bus in squeezing his way through between
the oncoming pick-up and the pile of gravel under the circumstances was considered
negligent.
But this matter is one of credibility and evaluation of the evidence. This is evidence. This
is the function of the trial court. The trial court has already spoken on this matter as we
have pointed out above. This is also a matter of appreciation of the situation on the part of
the driver. While the position taken by appellant appeals more to the sense of caution that
one should observe in a given situation to avoid an accident or mishap, such however can
not always be expected from one who is placed suddenly in a predicament where he is
not given enough time to take the course of action as he should under ordinary
circumstances. One who is placed in such a predicament cannot exercise such coolness
or accuracy of judgment as is required of him under ordinary circumstances and he
cannot therefore be expected to observe the same judgment, care and precaution as in
the latter. For this reason, authorities abound where failure to observe the same degree of
care that as ordinary prudent man would exercise under ordinary circumstances when
confronted with a sadden emergency was held to be warranted and a justification to
exempt the carrier from liability. Thus, it was held that "where a carrier's employee is
confronted with a sudden emergency, the fact that he is obliged to act quickly and without
a chance for deliberation must be taken into account, and he is held to the some degree
of care that he would otherwise be required to exercise in the absence of such emergency
but must exercise only such care as any ordinary prudent person would exercise under
like circumstances and conditions, and the failure on his part to exercise the best
judgement the case renders possible does not establish lack of care and skill on his part
which renders the company, liable. . . . (13 C. J. S., 1412; 10 C. J.,970). Considering all
the circumstances, we are persuaded to conclude that the driver of the bus has done what
a prudent man could have done to avoid the collision and in our opinion this relieves
appellee from legibility under our law.
A circumstances which miliates against the stand of appellant is the fact borne out by the
evidence that when he boarded the bus in question, he seated himself on the left side
thereof resting his left arm on the window sill but with his left elbow outside the window,
this being his position in the bus when the collision took place. It is for this reason that the
collision resulted in the severance of said left arm from the body of appellant thus doing
him a great damage. It is therefore apparent that appellant is guilty of contributory
negligence. Had he not placed his left arm on the window sill with a portion thereof
protruding outside, perhaps the injury would have been avoided as is the case with the
other passenger. It is to be noted that appellant was the only victim of the collision.
It is true that such contributory negligence cannot relieve appellee of its liability but will
only entitle it to a reduction of the amount of damage caused (Article 1762, new Civil
Code), but this is a circumstance which further militates against the position taken by
appellant in this case.
It is the prevailing rule that it is negligence per se for a passenger on a railroad voluntarily
or inadvertently to protrude his arm, hand, elbow, or any other part of his body through the
window of a moving car beyond the outer edge of the window or outer surface of the car,
so as to come in contact with objects or obstacles near the track, and that no recovery can
be had for an injury which but for such negligence would not have been sustained. (10 C.
J. 1139)
Plaintiff, (passenger) while riding on an interurban car, to flick the ashes, from his cigar,
thrust his hand over the guard rail a sufficient distance beyond the side line of the car to
bring it in contact with the trunk of a tree standing beside the track; the force of the blow
breaking his wrist. Held, that he was guilty of contributory negligence as a matter of law.
(Malakia vs. Rhode Island Co., 89 A., 337.) Wherefore, the
decision appealed from is affirmed, with cost against appellant. Paras, C.J., Bengzon,
Padilla, Montemayor, Reyes, A., Labrador, Concepcion, Endencia and Felix, JJ., concur.
G.R. No. L-23733 October 31, 1969
HERMINIO L. NOCUM, plaintiff-appellee, vs.
LAGUNA TAYABAS BUS COMPANY, defendant-appellant.
BARREDO, J.:
Appeal of the Laguna Tayabas Bus Co., defendant in the Court below, from a judgment of
the said court (Court of First Instance of Batangas) in its Civil Case No. 834, wherein
appellee Herminio L. Nocum was plaintiff, sentencing appellant to pay appellee the sum of
P1,351.00 for actual damages and P500.00 as attorney's fees with legal interest from the
filing of the complaint plus costs. Appellee, who was a passenger in appellant's Bus No.
120 then making a trip within the barrio of Dita, Municipality of Bay, Laguna, was injured
as a consequence of the explosion of firecrackers, contained in a box, loaded in said bus
and declared to its conductor as containing clothes and miscellaneous items by a co-
passenger. The findings of fact of the trial court are not assailed. The appeal is purely on
legal questions.
Appellee has not filed any brief. All that We have before Us is appellant's brief with the
following assignment of errors:
I
BASED ON THE FACTS THE LOWER COURT FOUND AS ESTABLISHED, IT ERRED
AS A MATTER OF LAW IN NOT ABSOLVING APPELLANT FROM LIABILITY
RESULTING FROM THE EXPLOSION OF FIRECRACKERS CONTAINED IN A
PACKAGE, THE CONTENTS OF WHICH WERE MISREPRESENTED BY A
PASSENGER.
II
THE LOWER COURT ERRED, AS A MATTER OF LAW, IN AWARDING DAMAGES
WITH LEGAL INTEREST IN FAVOR OF THE APPELLEE.
III
THE LOWER COURT ERRED IN NOT DISMISSING THE COMPLAINT, WITH COSTS
AGAINST THE APPELLEE.
Upon consideration of the points raised and discussed by appellant, We find the appeal to
be well taken.
The main basis of the trial court's decision is that appellant did not observe the
extraordinary or utmost diligence of a very cautious person required by the following
articles of the Civil Code:
ART. 1733. Common carriers, from the nature of their business and for reasons of
public policy, are bound to observe extraordinary diligence in the vigilance over the
goods and for the safety of the passengers transported by them, according to all the
circumstances of each case.
Such extraordinary diligence in the vigilance over the goods is further expressed in
articles 1734, 1735, and 1745, Nos. 5, 6, and 7, while the extraordinary diligence for
the safety of the passengers is further set forth in articles 1755 and 1756.
ART. 1755. A common carrier is bound to carry the passengers safely as far as
human care and foresight can provide, using the utmost diligence of very cautious
persons, with a due regard for all the circumstances.
ART 1756. In case of death of or injuries to passengers, common carriers are
presumed to have been at fault or to have acted negligently, unless they prove that
they observed extraordinary diligence as prescribed in articles 1733 and 1755.
Analyzing the evidence presented by the parties, His Honor found:
According to Severino Andaya, a witness for the plaintiff, a man with a box went up
the baggage compartment of the bus where he already was and said box was
placed under the seat. They left Azcarraga at about 11:30 in the morning and when
the explosion occurred, he was thrown out. PC investigation report states that thirty
seven (37) passengers were injured (Exhibits "O" and "2").
The bus conductor, Sancho Mendoza, testified that the box belonged to a passenger
whose name he does not know and who told him that it contained miscellaneous
items and clothes. He helped the owner in loading the baggage which weighed
about twelve (12) kilos and because of company regulation, he charged him for it
twenty-five centavos (P0.25). From its appearance there was no indication at all that
the contents were explosives or firecrackers. Neither did he open the box because
he just relied on the word of the owner.
Dispatcher Nicolas Cornista of defendant company corroborrated the testimony of
Mendoza and he said, among other things, that he was present when the box was
loaded in the truck and the owner agreed to pay its fare. He added that they were
not authorized to open the baggages of passengers because instruction from the
management was to call the police if there were packages containing articles which
were against regulations.
xxx xxx xxx
There is no question that Bus No. 120 was road worthy when it left its Manila
Terminal for Lucena that morning of December 5, 1960. The injuries suffered by the
plaintiff were not due to mechanical defects but to the explosion of firecrackers
inside the bus which was loaded by a co-passenger.
... Turning to the present case, it is quite clear that extraordinary or utmost diligence
of a very cautious person was not observed by the defendant company. The service
manual, exhibits "3" and "3-A," prohibits the employees to allow explosives, such as
dynamite and firecrackers to be transported on its buses. To implement this
particular rule for 'the safety of passengers, it was therefore incumbent upon the
employees of the company to make the proper inspection of all the baggages which
are carried by the passengers.
But then, can it not be said that the breach of the contract was due to fortuitous
event? The Supreme Court in the case of Lasam vs. Smith, 45 Phil. 657, quoted
Escriche's definition of caso fortuito as "an unexpected event or act of God which
could neither be foreseen nor resisted, such as floods, torrents, shipwrecks,
conflagrations, lightning, compulsions, insurrections, destructions of buildings by
unforeseen accidents and other occurrences of a similar nature." In other words, the
cause of the unexpected event must be independent of the will of man or something
which cannot be avoided. This cannot be said of the instant case. If proper and rigid
inspection were observed by the defendant, the contents of the box could have been
discovered and the accident avoided. Refusal by the passenger to have the package
opened was no excuse because, as stated by Dispatcher Cornista, employees
should call the police if there were packages containing articles against company
regulations. Neither was failure by employees of defendant company to detect the
contents of the packages of passengers because like the rationale in the Necesito
vs. Paras case (supra), a passenger has neither choice nor control in the exercise of
their discretion in determining what are inside the package of co-passengers which
may eventually prove fatal.
We cannot agree. No doubt, the views of His Honor do seem to be in line with the reasons
that the Code Commission had for incorporating the above-quoted provisions in its draft of
the Civil Code. Indeed, in approving the said draft, Congress must have concurred with
the Commission that by requiring the highest degree of diligence from common carriers in
the safe transport of their passengers and by creating a presumption of negligence
against them, the recklessness of their drivers which is a common sight even in crowded
areas and, particularly, on the highways throughout the country may, somehow, if not in a
large measure, be curbed. We are not convinced, however, that the exacting criterion of
said provisions has not been met by appellant in the circumstances of this particular case.
It is undisputed that before the box containing the firecrackers were allowed to be loaded
in the bus by the conductor, inquiry was made with the passenger carrying the same as to
what was in it, since its "opening ... was folded and tied with abaca." (Decision p. 16,
Record on Appeal.) According to His Honor, "if proper and rigid inspection were observed
by the defendant, the contents of the box could have been discovered and the accident
avoided. Refusal by the passenger to have the package opened was no excuse because,
as stated by Dispatcher Cornista, employees should call the police if there were packages
containing articles against company regulations." That may be true, but it is Our
considered opinion that the law does not require as much. Article 1733 is not as
unbending as His Honor has held, for it reasonably qualifies the extraordinary diligence
required of common carriers for the safety of the passengers transported by them to be
"according to all the circumstances of each case." In fact, Article 1755 repeats this same
qualification: "A common carrier is bound to carry the passengers safely as far as human
care and foresight can provide, using the utmost diligence of very cautious persons, with
due regard for all the circumstances."
In this particular case before Us, it must be considered that while it is true the passengers
of appellant's bus should not be made to suffer for something over which they had no
control, as enunciated in the decision of this Court cited by His Honor,
1
fairness demands
that in measuring a common carrier's duty towards its passengers, allowance must be
given to the reliance that should be reposed on the sense of responsibility of all the
passengers in regard to their common safety. It is to be presumed that a passenger will
not take with him anything dangerous to the lives and limbs of his co-passengers, not to
speak of his own. Not to be lightly considered must be the right to privacy to which each
passenger is entitled. He cannot be subjected to any unusual search, when he protests
the innocuousness of his baggage and nothing appears to indicate the contrary, as in the
case at bar. In other words, inquiry may be verbally made as to the nature of a
passenger's baggage when such is not outwardly perceptible, but beyond this,
constitutional boundaries are already in danger of being transgressed. Calling a
policeman to his aid, as suggested by the service manual invoked by the trial judge, in
compelling the passenger to submit to more rigid inspection, after the passenger had
already declared that the box contained mere clothes and other miscellaneous, could not
have justified invasion of a constitutionally protected domain. Police officers acting without
judicial authority secured in the manner provided by law are not beyond the pale of
constitutional inhibitions designed to protect individual human rights and liberties. Withal,
what must be importantly considered here is not so much the infringement of the
fundamental sacred rights of the particular passenger herein involved, but the constant
threat any contrary ruling would pose on the right of privacy of all passengers of all
common carriers, considering how easily the duty to inspect can be made an excuse for
mischief and abuse. Of course, when there are sufficient indications that the
representations of the passenger regarding the nature of his baggage may not be true, in
the interest of the common safety of all, the assistance of the police authorities may be
solicited, not necessarily to force the passenger to open his baggage, but to conduct the
needed investigation consistent with the rules of propriety and, above all, the
constitutional rights of the passenger. It is in this sense that the mentioned service manual
issued by appellant to its conductors must be understood.
Decisions in other jurisdictions cited by appellant in its brief, evidently because of the
paucity of local precedents squarely in point, emphasize that there is need, as We hold
here, for evidence of circumstances indicating cause or causes for apprehension that the
passenger's baggage is dangerous and that it is failure of the common carrier's employee
to act in the face of such evidence that constitutes the cornerstone of the common
carrier's liability in cases similar to the present one.
The principle that must control the servants of the carrier in a case like the one
before us is correctly stated in the opinion in the case of Clarke v. Louisville & N.R.
Co. 20 Ky L. Rep. 839, 49 S.W. 1120. In that case Clarke was a passenger on the
defendant's train. Another passenger took a quantity of gasoline into the same
coach in which Clarke was riding. It ignited and exploded, by reason of which he
was severely injured. The trial court peremptorily instructed the jury to find for the
defendant. In the opinion, affirming the judgment, it is said: "It may be stated briefly,
in assuming the liability of a railroad to its passengers for injury done by another
passenger, only where the conduct of this passenger had been such before the
injury as to induce a reasonably prudent and vigilant conductor to believe that there
was reasonable ground to apprehend violence and danger to the other passengers,
and in that case asserting it to be the duty of the conductor of the railroad train to
use all reasonable means to prevent such injury, and if he neglects this reasonable
duty, and injury is done, that then the company is responsible; that otherwise the
railroad is not responsible."
The opinion quotes with approval from the case of Gulf, C. & S. F. R. Co. vs.
Shields, 9 Tex. Civ. App. 652, 29 S. W. 652, in which case the plaintiff was injured
by alcohol which had been carried upon the train by another passenger. In the
opinion in that case it is said: "It was but a short period of time after the alcohol was
spilt when it was set on fire and the accident occurred, and it was not shown that
appellant's employees knew that the jug contained alcohol. In fact, it is not shown
that the conductor or any other employee knew that Harris had a jug with him until it
fell out of the sack, though the conductor had collected ... (his) fare, and doubtless
knew that he had the sack on the seat with him. ... It cannot be successfully denied
that Harris had the right as a passenger to carry baggage on the train, and that he
had a right to carry it in a sack if he chose to do so. We think it is equally clear that,
in the absence of some intimation or circumstance indicating that the sack contained
something dangerous to other passengers, it was not the duty of appellant's
conductor or any other employee to open the sack and examine its contents." Quinn
v. Louisville & N. R. Co. 98 Ky. 231, 32 S. W. 742; Wood v. Louisville & N. R. Co.
101 Ky. 703, 42 S. W. 349; Louisville & N. R. Co. v. Vincent, 29 Ky. L. Rep. 1049, 96
S. W. 898; Louisville & N. R. Co. v. Renfro, 142 Ky. 590, 33 L. R. A. (N. S.) 133, 135
S. W. 266.
2
(Emphasis supplied)
Explosive or Dangerous Contents. A carrier is ordinarily not liable for injuries to
passengers from fires or explosions caused by articles brought into its conveyances
by other passengers, in the absence of any evidence that the carrier, through its
employees, was aware of the nature of the article or had any reason to anticipate
danger therefrom. (Bogard v. Illinois C. R Co. 144 Ky. 649, 139 S. W. 855, 36 L. R.
A.[N. S.] 337; Clarke v. Louisville & N. R. Co. 101 Ky. 34, 39 S. W. 840, 36 L. R. A.
123 [explosion of can of gasoline]; East Indian R. Co. v. Mukerjee [1901] A. C. [Eng.]
396, 3 B. R. C. 420 P. C. [explosion of fireworks]; Annotation: 37 L. R. A. [N. S.]
725.)
3

Appellant further invokes Article 1174 of the Civil Code which relieves all obligors,
including, of course, common carriers like appellant, from the consequence of fortuitous
events. The court a quo held that "the breach of contract (in this case) was not due to
fortuitous event and that, therefore, the defendant is liable in damages." Since We hold
that appellant has succeeded in rebutting the presumption of negligence by showing that it
has exercised extraordinary diligence for the safety of its passengers, "according to the
circumstances of the (each) case", We deem it unnecessary to rule whether or not there
was any fortuitous event in this case.
ACCORDINGLY, the appealed judgment of the trial court is reversed and the case is
dismissed, without costs.

































G.R. No. L-19495 February 2, 1924
HONORIO LASAM, ET AL., plaintiffs-appellants, vs.
FRANK SMITH, JR., defendant-appellant.
OSTRAND, J.:
The plaintiff are husband and wife and this action is brought to recover damages in the
sum of P20,000 for physical injuries sustained by them in an automobile accident. The
trial court rendered a judgment in their favor for the sum of P1,254.10, with legal interest
from the date of the judgment. Both the plaintiffs and the defendant appeal, the former
maintaining that the damages awarded are insufficient while the latter denies all liability for
any damages whatever.
It appears from the evidence that on February 27, 1918, the defendant was the owner of a
public garage in the town of San Fernando, La Union, and engaged in the business of
carrying passengers for hire from the one point to another in the Province of La Union and
the surrounding provinces. On the date mentioned, he undertook to convey the plaintiffs
from San Fernando to Currimao, Ilocos Norte, in a Ford automobile. On leaving San
Fernando, the automobile was operated by a licensed chauffeur, but after having reached
the town of San Juan, the chauffeur allowed his assistant, Remigio Bueno, to drive the
car. Bueno held no driver's license, but had some experience in driving, and with the
exception of some slight engine trouble while passing through the town of Luna, the car
functioned well until after the crossing of the Abra River in Tagudin, when, according to
the testimony of the witnesses for the plaintiffs, defects developed in the steering gear so
as to make accurate steering impossible, and after zigzagging for a distance of about half
a kilometer, the car left the road and went down a steep embankment.
The defendant, in his testimony, maintains that there was no defect in the steering gear,
neither before nor after the accident, and expresses the opinion that the swaying or
zigzagging of the car must have been due to its having been driven at an excessive rate
of speed. This may possibly be true, but it is, from our point of view, immaterial whether
the accident was caused by negligence on the part of the defendant's employees, or
whether it was due to defects in the automobile; the result would be practically the same
in either event.
In going over the bank of the road, the automobile was overturned and the plaintiffs
pinned down under it. Mr. Lasam escaped with a few contusions and a "dislocated" rib ,
but his wife, Joaquina Sanchez, received serious injuries, among which was a compound
fracture of one of the bones in her left wrist. She also appears to have suffered a nervous
breakdown from which she had not fully recovered at the time of the trial.
The complaint in the case was filed about a year and a half after the occurrence above
related. It alleges, among other things, that the accident was due to defects in the
automobile as well as to the incompetence and negligence of the chauffeur, and the case
appears to have been tried largely upon the theory that it sounds in tort and that the
liability of the defendant is governed by article 1903 of the Civil Code. The trial court held,
however, that the cause of action rests on the defendant's breach of the contract of
carriage and that, consequently, articles 1101-1107 of the Civil Code, and not article
1903, are applicable. The court further found that the breach of the contract was not due
to fortuitous events and that, therefore, the defendant was liable in damages.
In our opinion, the conclusions of the court below are entirely correct. That upon the facts
stated the defendant's liability, if any, is contractual, is well settled by previous decisions of
the court, beginning with the case of Rakes vs. Atlantic, Gulf & Pacific Co. (7 Phil., 359),
and the distinction between extra-contractual liability and contractual liability has been so
ably and exhaustively discussed in various other cases, that nothing further need here be
said upon that subject. (See Cangco vs. Manila Railroad Co., 38 Phil., 768; Manila
Railroad Co. vs. Compania Trasatlantica and Atlantic, Gulf & Pacific Co., 38 Phil., 875; De
Guia vs. Manila Electric Railroad & Light Co., 40 Phil., 706.) It is sufficient to reiterate that
the source of the defendant's legal liability is the contract of carriage; that by entering into
that contract he bound himself to carry the plaintiffs safely and securely to their
destination; and that having failed to do so he is liable in damages unless he shows that
the failure to fulfill his obligation was due to causes mentioned in article 1105 of the Civil
Code, which reads as follows:
No one shall be liable for events which could not be foreseen or which, even if
foreseen, were inevitable, with the exception of the cases in which the law
expressly provides otherwise and those in which the obligation itself imposes
such liability.
This brings us to the principal question in the case:
What is meant by "events which cannot be foreseen and which, having been foreseen, are
inevitable?" The Spanish authorities regard the language employed as an effort to define
the term caso fortuito and hold that the two expressions are synonymous.
(Manresa, Comentarios al Codigo Civil Espaol, vol. 8, pp. 88 et seq.; Scvola, Codigo
Civil, vol. 19, pp. 526 et seq.)
The antecedent to article 1105 is found in Law 11, Title 33, Partida 7, which defines caso
fortuito as "occasion que a case por aventura de que non se puede ante ver. E son estos,
derrivamientos de casas e fuego que se enciende a so ora, e quebrantamiento de navio,
fuerca de ladrones. . . . (An event that takes place by accident and could not have been
foreseen. Examples of this are destruction of houses, unexpected fire, shipwreck, violence
of robbers. . . .)"
Escriche defines caso fortuito as "an unexpected event or act of God which could either
be foreseen nor resisted, such as floods, torrents, shipwrecks, conflagrations, lightning,
compulsion, insurrections, destructions, destruction of buildings by unforseen accidents
and other occurrences of a similar nature."
In discussing and analyzing the term caso fortuito the Enciclopedia Juridica
Espaola says: "In a legal sense and, consequently, also in relation to contracts, a caso
fortuito presents the following essential characteristics: (1) The cause of the unforeseen
and unexpected occurrence, or of the failure of the debtor to comply with his obligation,
must be independent of the human will. (2) It must be impossible to foresee the event
which constitutes the caso fortuito, or if it can be foreseen, it must be impossible to avoid.
(3) The occurrence must be such as to render it impossible for the debtor to fulfill his
obligation in a normal manner. And (4) the obligor (debtor) must be free from any
participation in the aggravation of the injury resulting to the creditor." (5 Enciclopedia
Juridica Espaola, 309.)
As will be seen, these authorities agree that some extraordinary circumstance
independent of the will of the obligor, or of his employees, is an essential element of
a caso fortuito. Turning to the present case, it is at once apparent that this element is
lacking. It is not suggested that the accident in question was due to an act of God or to
adverse road conditions which could not have been foreseen. As far as the records
shows, the accident was caused either by defects in the automobile or else through the
negligence of its driver. That is not a caso fortuito.
We agree with counsel that neither under the American nor Spanish law is a carrier of
passengers an absolute insurer against the risks of travel from which the passenger may
protect himself by exercising ordinary care and diligence. The case of Alba vs. Sociedad
Anonima de Tranvias, Jurisprudencia Civil, vol. 102, p. 928, cited by the defendant in
support of his contentions, affords a good illustration of the application of this principle. In
that case Alba, a passenger on a street car, was standing on the platform of the car while
it was in motion. The car rounded a curve causing Alba to lose his balance and fall off the
platform, sustaining severe injuries. In an action brought by him to recover damages, the
supreme court of Spain held that inasmuch as the car at the time of the accident was
travelling at a moderate rate of speed and there was no infraction of the regulations, and
the plaintiff was exposed to no greater danger than that inherent in that particular mode of
travel, the plaintiff could not recover, especially so since he should have been on his
guard against a contingency as natural as that of losing his balance to a greater or less
extent when the car rounded the curve.
But such is not the present case; here the passengers had no means of avoiding the
danger or escaping the injury.
The plaintiffs maintain that the evidence clearly establishes that they are entitled to
damages in the sum of P7,832.80 instead of P1,254.10 as found by the trial court, and
their assignments of error relate to this point only.
There can be no doubt that the expenses incurred by the plaintiffs as a result of the
accident greatly exceeded the amount of the damages awarded. But bearing in mind that
in determining the extent of the liability for losses or damages resulting from negligence in
the fulfillment of a contractual obligation, the courts have "a discretionary power to
moderate the liability according to the circumstances" (De Guia vs. Manila Electric
Railroad & Light Co., 40 Phil., 706; art. 1103, Civil Code), we do not think that the
evidence is such as to justify us in interfering with the discretion of the court below in this
respect. As pointed out by that court in its well-reasoned and well-considered decision, by
far the greater part of the damages claimed by the plaintiffs resulted from the fracture of a
bone in the left wrist of Joaquina Sanchez and from her objections to having a decaying
splinter of the bone removed by a surgical operation. As a consequence of her refusal to
submit such an operation, a series of infections ensued and which required constant and
expensive medical treatment for several years. We agree with the court below that the
defendant should not be charged with these expenses.
For the reasons stated, the judgment appealed from is affirmed, without costs in this
instance. So ordered.
Araullo, C.J., Street, Malcolm, Johns and Romualdez, JJ., concur.

























PRECILLANO NECESITO, ETC., plaintiff-appellant, vs.
NATIVIDAD PARAS, ET AL., defendants-appellees.
GERMAN NECESITO, ET AL., plaintiffs-appellants, vs.
NATIVIDAD PARAS, ET AL., defendants-appellees.
REYES, J. B. L., J.: G.R. No. L-10605 June 30, 1958
These cases involve ex contractu against the owners and operators of the common carrier
known as Philippine Rabbit Bus Lines, filed by one passenger, and the heirs of another,
who injured as a result of the fall into a river of the vehicle in which they were riding.
In the morning of January 28, 1964, Severina Garces and her one-year old son, Precillano
Necesito, carrying vegetables, boarded passenger auto truck or bus No. 199 of the
Philippine Rabbit Bus Lines at Agno, Pangasinan. The passenger truck, driven by
Francisco Bandonell, then proceeded on its regular run from Agno to Manila. After
passing Mangatarem, Pangasinan truck No. 199 entered a wooden bridge, but the front
wheels swerved to the right; the driver lost control, and after wrecking the bridge's wooden
rails, the truck fell on its right side into a creek where water was breast deep. The mother,
Severina Garces, was drowned; the son, Precillano Necesito, was injured, suffering
abrasions and fracture of the left femur. He was brought to the Provincial Hospital at
Dagupan, where the fracture was set but with fragments one centimeter out of line. The
money, wrist watch and cargo of vegetables were lost.
Two actions for damages and attorney's fees totalling over P85,000 having been filed in
the Court of First Instance of Tarlac (Cases Nos. 908 and 909) against the carrier, the
latter pleaded that the accident was due to "engine or mechanical trouble" independent or
beyond the control of the defendants or of the driver Bandonell.
After joint trial, the Court of First Instance found that the bus was proceeding slowly due to
the bad condition of the road; that the accident was caused by the fracture of the right
steering knuckle, which was defective in that its center or core was not compact but
"bubbled and cellulous", a condition that could not be known or ascertained by the carrier
despite the fact that regular thirty-day inspections were made of the steering knuckle,
since the steel exterior was smooth and shiny to the depth of 3/16 of an inch all around;
that the knuckles are designed and manufactured for heavy duty and may last up to ten
years; that the knuckle of bus No. 199 that broke on January 28, 1954, was last inspected
on January 5, 1954, and was due to be inspected again on February 5th. Hence, the trial
court, holding that the accident was exclusively due to fortuitous event, dismissed both
actions. Plaintiffs appealed directly to this Court in view of the amount in controversy.
We are inclined to agree with the trial court that it is not likely that bus No. 199 of the
Philippine Rabbit Lines was driven over the deeply rutted road leading to the bridge at a
speed of 50 miles per hour, as testified for the plaintiffs. Such conduct on the part of the
driver would have provoked instant and vehement protest on the part of the passengers
because of the attendant discomfort, and there is no trace of any such complaint in the
records. We are thus forced to assume that the proximate cause of the accident was the
reduced strength of the steering knuckle of the vehicle caused by defects in casting it.
While appellants hint that the broken knuckle exhibited in court was not the real fitting
attached to the truck at the time of the accident, the records they registered no objection
on that ground at the trial below. The issue is thus reduced to the question whether or not
the carrier is liable for the manufacturing defect of the steering knuckle, and whether the
evidence discloses that in regard thereto the carrier exercised the diligence required by
law (Art. 1755, new Civil Code).
ART. 1755. A common carrier is bound to carry the passengers safely as far as
human care and foresight can provide, using the utmost diligence of very cautious
persons, with a due regard for the all the circumstances.
It is clear that the carrier is not an insurer of the passengers' safety. His liability rests upon
negligence, his failure to exercise the "utmost" degree of diligence that the law requires,
and by Art. 1756, in case of a passenger's death or injury the carrier bears the burden of
satisfying the court that he has duly discharged the duty of prudence required. In the
American law, where the carrier is held to the same degree of diligence as under the new
Civil Code, the rule on the liability of carriers for defects of equipment is thus expressed:
"The preponderance of authority is in favor of the doctrine that a passenger is entitled to
recover damages from a carrier for an injury resulting from a defect in an appliance
purchased from a manufacturer, whenever it appears that the defect would have been
discovered by the carrier if it had exercised the degree of care which under the
circumstances was incumbent upon it, with regard to inspection and application of the
necessary tests. For the purposes of this doctrine, the manufacturer is considered as
being in law the agent or servant of the carrier, as far as regards the work of constructing
the appliance. According to this theory, the good repute of the manufacturer will not
relieve the carrier from liability" (10 Am. Jur. 205, s, 1324; see also Pennsylvania R. Co.
vs. Roy, 102 U. S. 451; 20 L. Ed. 141; Southern R. Co. vs. Hussey, 74 ALR 1172; 42 Fed.
2d 70; and Ed Note, 29 ALR 788; Ann. Cas. 1916E 929).
The rationale of the carrier's liability is the fact that the passenger has neither choice nor
control over the carrier in the selection and use of the equipment and appliances in use by
the carrier. Having no privity whatever with the manufacturer or vendor of the defective
equipment, the passenger has no remedy against him, while the carrier usually has. It is
but logical, therefore, that the carrier, while not in insurer of the safety of his passengers,
should nevertheless be held to answer for the flaws of his equipment if such flaws were at
all discoverable. Thus Hannen, J., in Francis vs. Cockrell, LR 5 Q. B. 184, said:
In the ordinary course of things, the passenger does not know whether the carrier
has himself manufactured the means of carriage, or contracted with someone else
for its manufacture. If the carrier has contracted with someone else the passenger
does not usually know who that person is, and in no case has he any share in the
selection. The liability of the manufacturer must depend on the terms of the contract
between him and the carrier, of which the passenger has no knowledge, and over
which he can have no control, while the carrier can introduce what stipulations and
take what securities he may think proper. For injury resulting to the carrier himself by
the manufacturer's want of care, the carrier has a remedy against the manufacturer;
but the passenger has no remedy against the manufacturer for damage arising from
a mere breach of contract with the carrier . . . . Unless, therefore, the presumed
intention of the parties be that the passenger should, in the event of his being injured
by the breach of the manufacturer's contract, of which he has no knowledge, be
without remedy, the only way in which effect can be given to a different intention is
by supposing that the carrier is to be responsible to the passenger, and to look for
his indemnity to the person whom he selected and whose breach of contract has
caused the mischief. (29 ALR 789)
And in the leading case of Morgan vs. Chesapeake & O. R. Co. 15 LRA (NS) 790, 16 Ann.
Cas. 608, the Court, in holding the carrier responsible for damages caused by the fracture
of a car axle, due to a "sand hole" in the course of moulding the axle, made the following
observations.
The carrier, in consideration of certain well-known and highly valuable rights granted
to it by the public, undertakes certain duties toward the public, among them being to
provide itself with suitable and safe cars and vehicles in which carry the traveling
public. There is no such duty on the manufacturer of the cars. There is no reciprocal
legal relation between him and the public in this respect. When the carrier elects to
have another build its cars, it ought not to be absolved by that facts from its duty to
the public to furnish safe cars. The carrier cannot lessen its responsibility by shifting
its undertaking to another's shoulders. Its duty to furnish safe cars is side by side
with its duty to furnish safe track, and to operate them in a safe manner. None of its
duties in these respects can be sublet so as to relieve it from the full measure
primarily exacted of it by law. The carrier selects the manufacturer of its cars, if it
does not itself construct them, precisely as it does those who grade its road, and lay
its tracks, and operate its trains. That it does not exercise control over the former is
because it elects to place that matter in the hands of the manufacturer, instead of
retaining the supervising control itself. The manufacturer should be deemed the
agent of the carrier as respects its duty to select the material out of which its cars
and locomotive are built, as well as in inspecting each step of their construction. If
there be tests known to the crafts of car builders, or iron moulders, by which such
defects might be discovered before the part was incorporated into the car, then the
failure of the manufacturer to make the test will be deemed a failure by the carrier to
make it. This is not a vicarious responsibility. It extends, as the necessity of this
business demands, the rule of respondeat superior to a situation which falls clearly
within its scope and spirit. Where an injury is inflicted upon a passenger by the
breaking or wrecking of a part of the train on which he is riding, it is presumably the
result of negligence at some point by the carrier. As stated by Judge Story, in Story
on Bailments, sec. 601a: "When the injury or damage happens to the passenger by
the breaking down or overturning of the coach, or by any other accident occurring on
the ground, the presumption prima facie is that it occurred by the negligence of the
coachmen, and onus probandi is on the proprietors of the coach to establish that
there has been no negligence whatever, and that the damage or injury has been
occasioned by inevitable casualty, or by some cause which human care and
foresight could not prevent; for the law will, in tenderness to human life and limb,
hold the proprietors liable for the slightest negligence, and will compel them to repel
by satisfactory proofs every imputation thereof." When the passenger has proved his
injury as the result of a breakage in the car or the wrecking of the train on which he
was being carried, whether the defect was in the particular car in which he was
riding or not, the burden is then cast upon the carrier to show that it was due to a
cause or causes which the exercise of the utmost human skill and foresight could
not prevent. And the carrier in this connection must show, if the accident was due to
a latent defect in the material or construction of the car, that not only could it not
have discovered the defect by the exercise of such care, but that the builders could
not by the exercise of the same care have discovered the defect or foreseen the
result. This rule applies the same whether the defective car belonged to the carrier
or not.
In the case now before us, the record is to the effect that the only test applied to the
steering knuckle in question was a purely visual inspection every thirty days, to see if any
cracks developed. It nowhere appears that either the manufacturer or the carrier at any
time tested the steering knuckle to ascertain whether its strength was up to standard, or
that it had no hidden flaws would impair that strength. And yet the carrier must have been
aware of the critical importance of the knuckle's resistance; that its failure or breakage
would result in loss of balance and steering control of the bus, with disastrous effects
upon the passengers. No argument is required to establish that a visual inspection could
not directly determine whether the resistance of this critically important part was not
impaired. Nor has it been shown that the weakening of the knuckle was impossible to
detect by any known test; on the contrary, there is testimony that it could be detected. We
are satisfied that the periodical visual inspection of the steering knuckle as practiced by
the carrier's agents did not measure up to the required legal standard of "utmost diligence
of very cautious persons" "as far as human care and foresight can provide", and
therefore that the knuckle's failure can not be considered a fortuitous event that exempts
the carrier from responsibility (Lasam vs. Smith, 45 Phil. 657; Son vs. Cebu Autobus Co.,
94 Phil., 892.)
It may be impracticable, as appellee argues, to require of carriers to test the strength of
each and every part of its vehicles before each trip; but we are of the opinion that a due
regard for the carrier's obligations toward the traveling public demands adequate
periodical tests to determine the condition and strength of those vehicle portions the
failure of which may endanger the safe of the passengers.
As to the damages suffered by the plaintiffs, we agree with appellee that no allowance
may be made for moral damages, since under Article 2220 of the new Civil Code, in case
of suits for breach of contract, moral damages are recoverable only where the defendant
acted fraudulently or in bad faith, and there is none in the case before us. As to exemplary
damages, the carrier has not acted in a "wanton, fraudulent, reckless, oppressive or
malevolent manner" to warrant their award. Hence, we believe that for the minor
Precillano Necesito (G. R. No. L-10605), an indemnity of P5,000 would be adequate for
the abrasions and fracture of the femur, including medical and hospitalization expenses,
there being no evidence that there would be any permanent impairment of his faculties or
bodily functions, beyond the lack of anatomical symmetry. As for the death of Severina
Garces (G. R. No. L-10606) who was 33 years old, with seven minor children when she
died, her heirs are obviously entitled to indemnity not only for the incidental loses of
property (cash, wrist watch and merchandise) worth P394 that she carried at the time of
the accident and for the burial expenses of P490, but also for the loss of her earnings
(shown to average P120 a month) and for the deprivation of her protection, guidance and
company. In our judgment, an award of P15,000 would be adequate (cf Alcantara vs.
Surro, 49 Off. Gaz. 2769; 93 Phil., 472).
The low income of the plaintiffs-appellants makes an award for attorney's fees just and
equitable (Civil Code, Art. 2208, par. 11). Considering that he two cases filed were tried
jointly, a fee of P3,500 would be reasonable.
In view of the foregoing, the decision appealed from is reversed, and the defendants-
appellees are sentenced to indemnify the plaintiffs-appellants in the following amounts:
P5,000 to Precillano Necesito, and P15,000 to the heirs of the deceased Severina
Garces, plus P3,500 by way of attorney's fees and litigation expenses. Costs against
defendants-appellees. So ordered.
Paras, C. J., Bengzon, Reyes, A., Bautista Angelo, Concepcion, and Endencia,
JJ., concur.
Felix, J., concurs in the result.



Neccesito VS Paras R E S O L U T I O N September 11, 1958
REYES, J. B. L., J.:
Defendants-appellees have Submitted a motion asking this Court to reconsider its
decision of June 30, 1958, and that the same be modified with respect to (1) its holding
the carrier liable for the breakage of the steering knuckle that caused the autobus No. 199
to overturn, whereby the passengers riding in it were injured; (2) the damages awarded,
that appellees argue to be excessive; and (3) the award of attorneys' fees.
(1) The rule prevailing in this jurisdiction as established in previous decisions of this Court,
cited in our main opinion, is that a carrier is liable to its passengers for damages caused
by mechanical defects of the conveyance. As early as 1924, in Lasam vs. Smith, 45 Phil.
659 this Court ruled:
As far as the record shows, the accident was caused either by defects in the
automobile or else through the negligence of its driver. That is not caso fortuito.
And in Son vs. Cebu Autobus Company, 94 Phil., 892, this Court held a common carrier
liable in damages to passenger for injuries cause by an accident due to the breakage of a
faulty drag-link spring.
It can be seen that while the courts of the United States are at variance on the question of
a carrier's liability for latent mechanical defects, the rule in this jurisdiction has been
consistent in holding the carrier responsible. This Court has quoted from American and
English decisions, not because it felt bound to follow the same, but merely in approval of
the rationale of the rule as expressed therein, since the previous Philippine cases did not
enlarge on the ideas underlying the doctrine established thereby.
The new evidence sought to be introduced do not warrant the grant of a new trial, since
the proposed proof available when the original trial was held. Said evidence is not newly
discovered.
(2) With regard to the indemnity awarded to the child Precilliano Necesito, the injuries
suffered by him are incapable of accurate pecuniary estimation, particularly because the
full effect of the injury is not ascertainable immediately. This uncertainty, however, does
not preclude the right to an indemnity, since the injury is patent and not denied (Civil
Code, Art. 2224). The reasons behind this award are expounded by the Code
Commission in its report:
There are cases where from the nature of the case, definite proof of pecuniary
loss cannot be offered, although the court is convinced that there has been such
loss. For instance, injury to one's commercial credit or to the goodwill of a
business firm is often hard to show with certainty in terms of money. Should
damages be denied for that reason? The judge should be empowered to
calculate moderate damages in such cases, rather than that the plaintiff should
suffer, without redress, from the defendant's wrongful act." (Report of the Code
Commission, p. 75)
In awarding to the heirs of the deceased Severina Garces an indemnity for the loss of her
"guidance, protection and company," although it is but moral damage, the Court took into
account that the case of a passenger who dies in the course of an accident, due to the
carrier's negligence constitutes an exception to the general rule. While, as pointed out in
the main decision, under Article 2220 of the new Civil Code there can be no recovery of
moral damages for a breach of contract in the absence of fraud malice or bad faith, the
case of a violation of the contract of carriage leading to a passenger's death escapes this
general rule, in view of Article 1764 in connection with Article 2206, No. 3 of the new Civil
Code.
ART. 1764. Damages in cases comprised in this Section shall be awarded in
accordance with Title XVIII of this Book, concerning Damages. Article 2206 shall
also apply to the death of a passenger caused by the breach of contract by a
comman carrier. ART. 2206. . . .
(3) The spouse, legitimate and eligimate descendants and ascendants of the
deceased may demand moral damages for mental anguish by reason of the
death of the deceased.
Being a special rule limited to cases of fatal injuries, these articles prevail over the general
rule of Art. 2220. Special provisions control general ones (Lichauco & Co. vs. Apostol, 44
Phil. 138; Sancio vs. Lizarraga, 55 Phil. 601).
It thus appears that under the new Civil Code, in case of accident due to a carrier's
negligence, the heirs of a deceased passenger may recover moral damages, even though
a passenger who is injured, but manages to survive, is not entitled to them. There is,
therefore, no conflict between our main decision in the instant case and that of Cachero
vs. Manila Yellow Taxi Cab Co., 101 Phil., 523, where the passenger suffered injuries, but
did not lose his life.
(3) In the Cachero case this Court disallowed attorneys' fees to the injured plaintiff
because the litigation arose out of his exaggerated and unreasonable deeds for an
indemnity that was out of proportion with the compensatory damages to which he was
solely entitled. But in the present case, plaintiffs' original claims can not be deemed a
priori wholly unreasonable, since they had a right to indemnity for moral damages besides
compensatory ones, and moral damages are not determined by set and invariable
bounds.
Neither does the fact that the contract between the passengers and their counsel was on
a contingent basis affect the former's right to counsel fees. As pointed out for appellants,
the Court's award is an party and not to counsel. A litigant who improvidently stipulate
higher counsel fees than those to which he is lawfully entitled, does not for that reason
earn the right to a larger indemnity; but, by parity of reasoning, he should not be deprived
of counsel fees if by law he is entitled to recover them.
We find no reason to alter the main decision heretofore rendered. Ultimately, the position
taken by this Court is that a common carrier's contract is not to be regarded as a game of
chance wherein the passenger stakes his limb and life against the carrier's property and
profits.
Wherefore, the motion for reconsideration is hereby denied. So ordered. Paras, C. J.,
Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Endencia, and
Felix, JJ.,concur.
G.R. No. L-21486 May 14, 1966
LA MALLORCA and PAMPANGA BUS COMPANY, petitioner, vs.
VALENTIN DE JESUS, MANOLO TOLENTINO and COURT OF
APPEALS, respondents.
MAKALINTAL, J.:
La Mallorca and Pampanga Bus Company, Inc., commonly known as La Mallorca-
Pambusco, filed this appeal bycertiorari from the decision of the Court of Appeals which
affirmed that rendered by the Court of First Instance of Bulacan in its civil case No. 2100,
entitled "Valentin de Jesus and Manolo Tolentino vs. La Mallorca-Pambusco." The court a
quo sentenced the defendant, now petitioner, "to pay to plaintiffs the amount of P2,132.50
for actual damages; P14,400.00 as compensatory damages; P10,000.00 to each plaintiff
by way of moral damages; and P3,000.00 as counsel fees."
Two errors are attributed to the appellate Court: (1) "in sustaining the decision (of the
court a quo) holding that the petitioners were liable for the accident which was caused by
a blow-out of one of the tires of the bus and in not considering the same as caso fortuito,"
and (2) in holding petitioners liable for moral damages.
The suit arose by reason of the death of Lolita de Jesus, 20-year old daughter of Valentin
de Jesus and wife of Manolo Tolentino, in a head-on collision between petitioner's bus, on
which she was a passenger, and a freight truck traveling in the opposite direction, in a
barrio in Marilao Bulacan, in the morning of October 8, 1959. The immediate cause of the
collision was the fact that the driver of the bus lost control of the wheel when its left front
tire suddenly exploded.
Petitioner maintains that a tire blow-out is a fortuitous event and gives rise to no liability for
negligence, citing the rulings of the Court of Appeals in Rodriguez vs. Red Line
Transportation Co., CA-G.R. No. 8136, December 29, 1954, and People vs. Palapad, CA-
G.R. No. 18480, June 27, 1958. These rulings, however, not only are not not binding on
this Court but were based on considerations quite different from those that obtain in the at
bar. The appellate Court there made no findings of any specified acts of negligence on the
part of the defendants and confined itself to the question of whether or not a tire blow-out,
by itself alone and without a showing as to the causative factors, would generate liability.
In the present case, the cause of the blow-out was known. The inner tube of the left front
tire, according to petitioner's own evidence and as found by the Court of Appeals "was
pressed between the inner circle of the left wheel and the rim which had slipped out of the
wheel." This was, said Court correctly held, a mechanical defect of the conveyance or a
fault in its equipment which was easily discoverable if the bus had been subjected to a
more thorough, or rigid check-up before it took to the road that morning.
Then again both the trial court and the Court of Appeals found as a fact that the bus was
running quite fast immediately before the accident. Considering that the tire which
exploded was not new petitioner describes it as "hindi masyadong kalbo," or not so
very worn out the plea of caso fortuito cannot be entertained.1wph1.t
The second issue raised by petitioner is already a settled one. In this jurisdiction moral
damages are recoverable by reason of the death of a passenger caused by the breach of
contract of a common carrier, as provided in Article 1764, in relation to Article 2206, of the
Civil Code. These articles have been applied by this Court in a number of cases, among
them Necesito, etc. vs. Paras, et al., L-10605-06, June 30, 1958; Mercado vs. Lira, L-
13328-29, Sept. 29, 1961; Villa-Rey Transit vs. Bello, L-18957, April 23, 1963.
Wherefore, the judgment appealed from is affirmed, with costs against petitioners.





















G.R. No. L-28014-15 May 29, 1970
SPOUSES MARCELO LANDINGIN and RACQUEL BOCASAS, plaintiffs-appellees, vs.
PANGASINAN TRANSPORTATION CO. and MARCELO OLIGAN, defendants-
appellants.
SPOUSES PEDRO GARCIA and EUFRACIA LANDINGIN, plaintiffs-appellees, vs.
PANGASINAN TRANSPORTATION CO. and MARCELO OLIGAN, defendants-
appellants.
VILLAMOR, J.:
Direct appeal on a question of law from the portion of the judgment of the Court of First
Instance of Manila ordering the defendants Pangasinan Transportation Co.
(PANTRANCO) and Marcelo Oligan to pay the plaintiffs in Civil Case No. D-1468
(L-28014) the sum of P6,500.00, and the plaintiffs in Civil Case No. 1470 (L-28015) the
sum of P3,500.00.
The complaints in said Civil Cases Nos. D-1468 and D-1470 were filed by the spouses
Marcelo Landingin and Racquel Bocasas, and the spouses Pedro Garcia and Eufracia
Landingin, respectively, for damages allegedly suffered by them in connection with the
death of their respective daughter, Leonila Landingin and Estrella Garcia, due to the
alleged negligence of the defendants and/or breach of contract of carriage. In their
complaints, plaintiffs averred, among others, that in the morning of April 20, 1963, their
above-mentioned daughters were among the passengers in the bus driven by defendant
Marcelo Oligan and owned and operated by defendant PANTRANCO on an excursion trip
from Dagupan City to Baguio City and back, that the bus was open on one side and
enclosed on the other, in gross violation of the rules of the Public Service Commission;
that defendant PANTRANCO acted with negligence, fraud and bad faith in pretending to
have previously secured a special permit for the trip when in truth it had not done so; that
upon reaching an uphill point at Camp 8, Kennon Road, Baguio City, on the onward trip,
defendant driver, through utter lack of foresight, experience and driving knowledge,
caused the bus to stall and stop for a few moments; that through the said defendant's fault
and mishandling, the motor ceased to function, causing the bus to slide back unchecked;
that when the said defendant suddenly swerved and steered the bus toward the
mountainside, Leonila and Estrella, together with several other passengers, were thrown
out of the bus through its open side unto the road, suffering serious injuries as a result of
which Leonila and Estrella died at the hospital and the same day; and that in connection
with the incident, defendant driver had been charged with and convicted of multiple
homicide and multiple slight physical injuries on account of the death of Leonila and
Estrella and of the injuries suffered by four others, although it may be said, by way of
parenthesis, that this case is now pending appeal in a higher court. The plaintiffs prayed
for awards of moral, actual and exemplary damages in the total sum of P40,000.00 in Civil
Case No. D-1468, and in the total sum of P25,000.00 in Civil Case No. D-1470 as well as
attorney's fees in the amounts of P5,000.00 and P4,000.00, respectively.
Defendants filed a joint answer to each of the two complaints alleging, among others, that
at the time of the accident, defendant driver was driving the bus at, the slow speed of
about 10 kilometers per hour; that while the said defendant was steering his bus toward
the mountainside after hearing a sound coming from under the rear end of the bus,
Leonila and Estrella recklessly, and in disobedience to his shouted warnings and advice,
jumped out of the bus causing their heads to hit the road or pavement; that the bus was
then being driven with extraordinary care, prudence and diligence; that defendant
PANTRANCO observed the care and diligence of a good father of a family to prevent the
accident as well as in the selection and supervision of its employees, particularly of
defendant driver; and that the decision convicting the said defendant was not yet final, the
same having been appealed to the Court of Appeals where it was still pending.
By agreement of the parties, the two cases were tried jointly. On October 17, 1966, the
court a quo rendered its decision therein in which it made the following findings; that upon
reaching the fatal spot at Camp 8, a sudden snapping or breaking of metal below the floor
of the bus was heard, and the bus abruptly stopped, rolling back a few moments later; that
as a result, some of the passengers jumped out of the bus, while others stepped down;
that defendant driver maneuvered the bus safely to and against the side of the mountain
where its rear end was made to rest, ensuring the safety of the many passengers still
inside the bus; that while defendant driver as steering the bus towards the mountainside,
he advised the passengers not to jump, but to remain seated; that Leonila and Estrella
were not thrown out of the bus, but that they panicked and jumped out; that the
malfunctioning of the motor resulted from the breakage of the cross-joint; that there was
no negligence on the part of either of the defendants; that only the day before, the said
cross-joint was duly inspected and found to be in order; and that defendant PANTRANCO
had exercised the requisite care in the selection and supervision of its employees,
including the defendant driver. The court concluded that "the accident was caused by a
fortuitous event or an act of God brought about by some extra-ordinary circumstances
independent of the will of the Pantranco or its employees."
One would wonder why in the face of such factual findings and conclusion of the trial
court, the defendants, instead of the plaintiffs, should come to this Court on appeal. The
answer lies in the dispositive portion of the decision, to wit:
IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court hereby renders
judgment: (a) Absolving the defendants from any liability on account of
negligence on their part and therefore dismissing the complaints in these two
cases; (b) However, as stated above, the Court hereby orders the defendant
Pantranco to pay to the plaintiffs spouses Marcelo Tandingin and Racquel
Bocasas in Civil Case No. D-1468 the amount of P6,500.00; and the amount of
P3,500.00 to the spouses Pedro Garcia and Eufracia Landingin in Civil Case No.
D-1470, not in payment of liability because of any negligence on the part of the
defendants but as an expression of sympathy and goodwill. (Emphasis
supplied.)
As to what impelled the court below to include item (b) in the dispositive portion of its
decision, can be gathered from the penultimate paragraph of the decision, which reads:
However, there is evidence to the effect that an offer of P8,500.00 in the instant
cases without any admission of fault or negligence had been made by the
defendant Pantranco and that actually in Civil Case No. D-1469 for the death of
Pacita Descalso, the other deceased passenger of the bus in question, the heirs
of the decease received P3,000.00 in addition to hospital and medical bills and
the coffin of the deceased for the dismissal of the said case without Pantranco
accepting liability. There was as a matter of fact during the pre-trial of these two
cases a continuing offer of settlement on the part of the defendant Pantranco
without accepting any liability for such damages, and the Court understood that
the Pantranco would be willing still to pay said amounts even if these cases
were to be tried on the merits. It is well-known that the defendant Pantranco is
zealous in the preservation of its public relations. In the spirit therefore of the
offer of the defendant Pantranco aforesaid, to assuage the feelings of the herein
plaintiffs an award of P6,500.00 for the spouses Marcelo Landingin and Racquel
Bocasas in Civil Case No. D-1468 whose daughter Leonila was, when she died,
a third-year Commerce student at the Far Eastern University, and P3,500.00 for
the spouses Pedro Garcia and Eufracia Landingin in Civil Case No. D-1470
whose daughter Estrella was in the fourth year High at the Dagupan Colleges
when she died, is hereby made in their favor. This award is in addition to what
Pantranco might have spent to help the parents of both deceased after the
accident.
Defendants-appellants complain that having found them to be absolutely free from fault or
negligence, and having in fact dismissed the complaints against them, the court should
not have ordered them to assume any pecuniary liability. There would be merit in his
argument but for the fact that defendant-appellant PANTRANCO was guilty of breach of
contract of carriage. It will be noted that in each of the two complaints it is averred that two
buses including the one in which the two deceased girls were riding, were hired to
transport the excursionist passengers from Dagupan City to Baguio City, and return, and
that the said two passengers did not reach destination safely.
As a common carrier, defendant-appellant PANTRANCO was duty bound to carry its
passengers "safely as far as human care and foresight can provide, using the utmost
diligence of very cautious persons, with a due regard for all the circumstances." (Article
1755, Civil Code.) Did defendant-appellant PANTRANCO measure up to the degree of
care and foresight required it under the circumstances? We think not. The court below
found that the cross-joint of the bus in which the deceased were riding broke, which
caused the malfunctioning of the motor, which in turn resulted in panic among some of the
passengers. This is a finding of fact which this Court may not disturb. We are of the
opinion, however, that the lower court's conclusion drawn from that fact, i.e., that "the
accident was caused by a fortuitous event or an act of God brought about by some
extraordinary circumstances independent of the will of the Pantranco or its employees," is
in large measure conjectural and speculative, and was arrived at without due regard to all
the circumstances, as required by Article 1755. In Lasam vs. Smith (45 Phil. 660), this
Court held that an accident caused by defects in the automobile is not a caso fortuito. The
rationale of the carrier's liability is the fact that "the passenger has neither the choice nor
control over the carrier in the selection and use of the equipment and appliances in use by
the carrier." (Necesito, et al. vs. Paras, et al., 104 Phil. 75.)
When a passenger dies or is injured, the presumption is that the common carrier is at fault
or that it acted negligently (Article 1756). This presumption is only rebutted by proof on the
carrier's part that it observed the "extraordinary diligence" required in Article 1733 and the
"utmost diligence of very cautious persons" required in Article 1755 (Article 1756). In the
instant case it appears that the court below considered the presumption rebutted on the
strength of defendants-appellants' evidence that only the day before the incident, the
crossjoint in question was duly inspected and found to be in order. It does not appear,
however, that the carrier gave due regard for all the circumstances in connection with the
said inspection. The bus in which the deceased were riding was heavily laden with
passengers, and it would be traversing mountainous, circuitous and ascending roads.
Thus the entire bus, including its mechanical parts, would naturally be taxed more heavily
than it would be under ordinary circumstances. The mere fact that the bus was inspected
only recently and found to be in order would not exempt the carrier from liability unless it is
shown that the particular circumstances under which the bus would travel were also
considered.
In the premises, it was error for the trial court to dismiss the complaints. The awards made
by the court should be considered in the concept of damages for breach of contracts of
carriage.
IN VIEW OF THE FOREGOING CONSIDERATIONS, the judgment appealed from is
modified as indicated above, and defendant-appellant PANTRANCO is ordered to pay to
plaintiffs-appellees the amounts stated in the judgment appealed from, as damages for
breach of contracts, with interest thereon at the legal rate from the date of the filing of the
complaints. Costs against defendant-appellant PANTRANCO.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Fernando, Teehankee and
Barredo, JJ., concur.
Castro, J., is on leave.
















ROBERTO JUNTILLA, petitioner, vs.
CLEMENTE FONTANAR, FERNANDO BANZON and BERFOL CAMORO, respondents.
GUTIERREZ, JR., J.: G.R. No. L-45637 May 31, 1985
This is a petition for review, on questions of law, of the decision of the Court of First
Instance of Cebu which reversed the decision of the City Court of Cebu and exonerated
the respondents from any liability arising from a vehicular accident.
The background facts which led to the filing of a complaint for breach of contract and
damages against the respondents are summarized by the Court of First Instance of Cebu
as follows:
The facts established after trial show that the plaintiff was a passenger of the public
utility jeepney bearing plate No. PUJ-71-7 on the course of the trip from Danao City
to Cebu City. The jeepney was driven by defendant Berfol Camoro. It was registered
under the franchise of defendant Clemente Fontanar but was actually owned by
defendant Fernando Banzon. When the jeepney reached Mandaue City, the right
rear tire exploded causing the vehicle to turn turtle. In the process, the plaintiff who
was sitting at the front seat was thrown out of the vehicle. Upon landing on the
ground, the plaintiff momentarily lost consciousness. When he came to his senses,
he found that he had a lacerated wound on his right palm. Aside from this, he
suffered injuries on his left arm, right thigh and on his back. (Exh. "D"). Because of
his shock and injuries, he went back to Danao City but on the way, he discovered
that his "Omega" wrist watch was lost. Upon his arrival in Danao City, he
immediately entered the Danao City Hospital to attend to his injuries, and also
requested his father-in-law to proceed immediately to the place of the accident and
look for the watch. In spite of the efforts of his father-in-law, the wrist watch, which
he bought for P 852.70 (Exh. "B") could no longer be found.
xxx xxx xxx
Petitioner Roberto Juntilla filed Civil Case No. R-17378 for breach of contract with
damages before the City Court of Cebu City, Branch I against Clemente Fontanar,
Fernando Banzon and Berfol Camoro.
The respondents filed their answer, alleging inter alia that the accident that caused losses
to the petitioner was beyond the control of the respondents taking into account that the tire
that exploded was newly bought and was only slightly used at the time it blew up.
After trial, Judge Romulo R. Senining of the Civil Court of Cebu rendered judgment in
favor of the petitioner and against the respondents. The dispositive portion of the decision
reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the
defendants and the latter are hereby ordered, jointly and severally, to pay the
plaintiff the sum of P750.00 as reimbursement for the lost Omega wrist watch, the
sum of P246.64 as unrealized salary of the plaintiff from his employer, the further
sum of P100.00 for the doctor's fees and medicine, an additional sum of P300.00 for
attorney's fees and the costs.
The respondents appealed to the Court of First Instance of Cebu, Branch XIV.
Judge Leonardo B. Canares reversed the judgment of the City Court of Cebu upon a
finding that the accident in question was due to a fortuitous event. The dispositive portion
of the decision reads:
WHEREFORE, judgment is hereby rendered exonerating the defendants from any
liability to the plaintiff without pronouncement as to costs.
A motion for reconsideration was denied by the Court of First Instance.
The petitioner raises the following alleged errors committed by the Court of First Instance
of Cebu on appeal
a. The Honorable Court below committed grave abuse of discretion in failing to take
cognizance of the fact that defendants and/or their employee failed to exercise
"utmost and/or extraordinary diligence" required of common carriers contemplated
under Art. 1755 of the Civil Code of the Philippines.
b. The Honorable Court below committed grave abuse of discretion by deciding the
case contrary to the doctrine laid down by the Honorable Supreme Court in the case
of Necesito et al. v. Paras, et al.
We find the petition impressed with merit.
The City Court and the Court of First Instance of Cebu found that the right rear tire of the
passenger jeepney in which the petitioner was riding blew up causing the vehicle to fall on
its side. The petitioner questions the conclusion of the respondent court drawn from this
finding of fact.
The Court of First Instance of Cebu erred when it absolved the carrier from any liability
upon a finding that the tire blow out is a fortuitous event. The Court of First Instance of
Cebu ruled that:
After reviewing the records of the case, this Court finds that the accident in question
was due to a fortuitous event. A tire blow-out, such as what happened in the case at
bar, is an inevitable accident that exempts the carrier from liability, there being
absence of a showing that there was misconduct or negligence on the part of the
operator in the operation and maintenance of the vehicle involved. The fact that the
right rear tire exploded, despite being brand new, constitutes a clear case of caso
fortuito which can be a proper basis for exonerating the defendants from liability. ...
The Court of First Instance relied on the ruling of the Court of Appeals in Rodriguez v. Red
Line Transportation Co.,CA G.R. No. 8136, December 29, 1954, where the Court of
Appeals ruled that:
A tire blow-out does not constitute negligence unless the tire was already old and
should not have been used at all. Indeed, this would be a clear case of fortuitous
event.
The foregoing conclusions of the Court of First Instance of Cebu are based on a
misapprehension of overall facts from which a conclusion should be drawn. The reliance
of the Court of First Instance on the Rodriguez case is not in order. In La Mallorca and
Pampanga Bus Co. v. De Jesus, et al. (17 SCRA 23), we held that:
Petitioner maintains that a tire blow-out is a fortuitous event and gives rise to no
liability for negligence, citing the rulings of the Court of Appeals in Rodriguez v. Red
Line Transportation Co., CA G.R. No. 8136, December 29, 1954, and People v.
Palapad, CA-G.R. No. 18480, June 27, 1958. These rulings, however, not only are
not binding on this Court but were based on considerations quite different from those
that obtain in the case at bar. The appellate court there made no findings of any
specific acts of negligence on the part of the defendants and confined itself to the
question of whether or not a tire blow-out, by itself alone and without a showing as to
the causative factors, would generate liability. ...
In the case at bar, there are specific acts of negligence on the part of the respondents.
The records show that the passenger jeepney turned turtle and jumped into a ditch
immediately after its right rear tire exploded. The evidence shows that the passenger
jeepney was running at a very fast speed before the accident. We agree with the
observation of the petitioner that a public utility jeep running at a regular and safe speed
will not jump into a ditch when its right rear tire blows up. There is also evidence to show
that the passenger jeepney was overloaded at the time of the accident. The petitioner
stated that there were three (3) passengers in the front seat and fourteen (14) passengers
in the rear.
While it may be true that the tire that blew-up was still good because the grooves of the
tire were still visible, this fact alone does not make the explosion of the tire a fortuitous
event. No evidence was presented to show that the accident was due to adverse road
conditions or that precautions were taken by the jeepney driver to compensate for any
conditions liable to cause accidents. The sudden blowing-up, therefore, could have been
caused by too much air pressure injected into the tire coupled by the fact that the jeepney
was overloaded and speeding at the time of the accident.
In Lasam v. Smith (45 Phil. 657), we laid down the following essential characteristics of
caso fortuito: xxx xxx xxx
... In a legal sense and, consequently, also in relation to contracts, a caso
fortuito presents the following essential characteristics: (1) The cause of the
unforeseen and unexpected occurrence, or of the failure of the debtor to comply with
his obligation, must be independent of the human will. (2) It must be impossible to
foresee the event which constitutes the caso fortuito, or if it can be foreseen, it must
be impossible to avoid. (3) The occurrence must be such as to render it impossible
for the debtor to fulfill his obligation in a normal manner. And (4) the obligor (debtor)
must be free from any participation in the aggravation of the injury resulting to the
creditor. (5 Encyclopedia Juridica Espanola, 309.)
In the case at bar, the cause of the unforeseen and unexpected occurrence was not
independent of the human will. The accident was caused either through the negligence of
the driver or because of mechanical defects in the tire. Common carriers should teach
their drivers not to overload their vehicles, not to exceed safe and legal speed limits, and
to know the correct measures to take when a tire blows up thus insuring the safety of
passengers at all times. Relative to the contingency of mechanical defects, we held
in Necesito, et al. v. Paras, et al. (104 Phil. 75), that:
... The preponderance of authority is in favor of the doctrine that a passenger is
entitled to recover damages from a carrier for an injury resulting from a defect in an
appliance purchased from a manufacturer, whenever it appears that the defect would
have been discovered by the carrier if it had exercised the degree of care which under
the circumstances was incumbent upon it, with regard to inspection and application of
the necessary tests. For the purposes of this doctrine, the manufacturer is considered
as being in law the agent or servant of the carrier, as far as regards the work of
constructing the appliance. According to this theory, the good repute of the
manufacturer will not relieve the carrier from liability' (10 Am. Jur. 205, s, 1324; see
also Pennsylvania R. Co. v. Roy, 102 U.S. 451; 20 L. Ed. 141; Southern R. Co. v.
Hussey, 74 ALR 1172; 42 Fed. 2d 70; and Ed Note, 29 ALR 788.: Ann. Cas. 1916E
929).
The rationale of the carrier's liability is the fact that the passenger has neither choice
nor control over the carrier in the selection and use of the equipment and appliances
in use by the carrier. Having no privity whatever with the manufacturer or vendor of the
defective equipment, the passenger has no remedy against him, while the carrier
usually has. It is but logical, therefore, that the carrier, while not an insurer of the
safety of his passengers, should nevertheless be held to answer for the flaws of his
equipment if such flaws were at all discoverable. ...
It is sufficient to reiterate that the source of a common carrier's legal liability is the contract
of carriage, and by entering into the said contract, it binds itself to carry the passengers
safely as far as human care and foresight can provide, using the utmost diligence of a
very cautious person, with a due regard for all the circumstances. The records show that
this obligation was not met by the respondents.
The respondents likewise argue that the petitioner cannot recover any amount for failure
to prove such damages during the trial. The respondents submit that if the petitioner was
really injured, why was he treated in Danao City and not in Mandaue City where the
accident took place. The respondents argue that the doctor who issued the medical
certificate was not presented during the trial, and hence not cross-examined. The
respondents also claim that the petitioner was not wearing any wrist watch during the
accident.
It should be noted that the City Court of Cebu found that the petitioner had a lacerated
wound on his right palm aside from injuries on his left arm, right thigh and on his back,
and that on his way back to Danao City, he discovered that his "Omega" wrist watch was
lost. These are findings of facts of the City Court of Cebu which we find no reason to
disturb. More so when we consider the fact that the Court of First Instance of Cebu
impliedly concurred in these matters when it confined itself to the question of whether or
not the tire blow out was a fortuitous event.
WHEREFORE, the decision of the Court of First Instance of Cebu, Branch IV appealed
from is hereby REVERSED and SET ASIDE, and the decision of the City Court of Cebu,
Branch I is REINSTATED, with the modification that the damages shall earn interest at
12% per annum and the attorney's fees are increased to SIX HUNDRED PESOS
(P600.00). Damages shall earn interests from January 27, 1975. SO ORDERED.
Teehankee (Chairman), Melencio-Herrera, Plana, Relova, De la Fuente and
Alampay, JJ., concur.

G.R. No. L-56487 October 21, 1991
REYNALDA GATCHALIAN, petitioner, vs.
ARSENIO DELIM and the HON. COURT OF APPEALS, respondents.
FELICIANO, J.:p
At noon time on 11 July 1973, petitioner Reynalda Gatchalian boarded, as a paying
passenger, respondent's "Thames" mini bus at a point in San Eugenio, Aringay, La Union,
bound for Bauang, of the same province. On the way, while the bus was running along the
highway in Barrio Payocpoc, Bauang, Union, "a snapping sound" was suddenly heard at
one part of the bus and, shortly thereafter, the vehicle bumped a cement flower pot on the
side of the road, went off the road, turned turtle and fell into a ditch. Several passengers,
including petitioner Gatchalian, were injured. They were promptly taken to Bethany
Hospital at San Fernando, La Union, for medical treatment. Upon medical examination,
petitioner was found to have sustained physical injuries on the leg, arm and forehead,
specifically described as follows: lacerated wound, forehead; abrasion, elbow, left;
abrasion, knee, left; abrasion, lateral surface, leg, left. 1
On 14 July 1973, while injured. passengers were confined in the hospital, Mrs. Adela
Delim, wife of respondent, visited them and later paid for their hospitalization and medical
expenses. She also gave petitioner P12.00 with which to pay her transportation expense
in going home from the hospital. However, before Mrs. Delim left, she had the injured
passengers, including petitioner, sign an already prepared Joint Affidavit which stated,
among other things:
That we were passengers of Thames with Plate No. 52-222 PUJ Phil. 73 and
victims after the said Thames met an accident at Barrio Payocpoc Norte,
Bauang, La Union while passing through the National Highway No. 3;
That after a thorough investigation the said Thames met the accident due to
mechanical defect and went off the road and turned turtle to the east canal of the
road into a creek causing physical injuries to us;
xxx xxx xxx
That we are no longer interested to file a complaint, criminal or civil against the
said driver and owner of the said Thames, because it was an accident and the
said driver and owner of the said Thames have gone to the extent of helping us
to be treated upon our injuries.
xxx xxx xxx 2
(Emphasis supplied)
Notwithstanding this document, petitioner Gathalian filed with the then Court of First
Instance of La Union an actionextra contractu to recover compensatory and moral
damages. She alleged in the complaint that her injuries sustained from the vehicular
mishap had left her with a conspicuous white scar measuring 1 by 1/2 inches on the
forehead, generating mental suffering and an inferiority complex on her part; and that as a
result, she had to retire in seclusion and stay away from her friends. She also alleged that
the scar diminished her facial beauty and deprived her of opportunities for employment.
She prayed for an award of: P10,000.00 for loss of employment and other opportunities;
P10,000.00 for the cost of plastic surgery for removal of the scar on her forehead;
P30,000.00 for moral damages; and P1,000.00 as attorney's fees.
In defense, respondent averred that the vehicular mishap was due to force majeure, and
that petitioner had already been paid and moreover had waived any right to institute any
action against him (private respondent) and his driver, when petitioner Gatchalian signed
the Joint Affidavit on 14 July 1973.
After trial, the trial court dismissed the complaint upon the ground that when petitioner
Gatchalian signed the Joint Affidavit, she relinquished any right of action (whether criminal
or civil) that she may have had against respondent and the driver of the mini-bus.
On appeal by petitioner, the Court of Appeals reversed the trial court's conclusion that
there had been a valid waiver, but affirmed the dismissal of the case by denying
petitioner's claim for damages:
We are not in accord, therefore, of (sic) the ground of the trial court's dismissal
of the complaint, although we conform to the trial court's disposition of the case
its dismissal.
IN VIEW OF THE FOREGOING considerations, there being no error committed
by the lower court in dismissing the plaintiff-appellant's complaint, the judgment
of dismissal is hereby affirmed.
Without special pronouncement as to costs.
SO ORDERED. 3
In the present Petition for Review filed in forma pauperis, petitioner assails the decision of
the Court of Appeals and ask this Court to award her actual or compensatory damages as
well as moral damages.
We agree with the majority of the Court of Appeals who held that no valid waiver of her
cause of action had been made by petitioner. The relevant language of the Joint Affidavit
may be quoted again:
That we are no longer interested to file a complaint, criminal or civil against the
said driver and owner of the said Thames, because it was an accident and the
said driver and owner of the said Thames have gone to the extent of helping us
to be treated upon our injuries. (Emphasis supplied)
A waiver, to be valid and effective, must in the first place be couched in clear and
unequivocal terms which leave no doubt as to the intention of a person to give up a
right or benefit which legally pertains to him. 4 A waiver may not casually be
attributed to a person when the terms thereof do not explicitly and clearly evidence
an intent to abandon a right vested in such person.
The degree of explicitness which this Court has required in purported waivers is illustrated
in Yepes and Susaya v. Samar Express Transit (supra), where the Court in reading and
rejecting a purported waiver said:
. . . It appears that before their transfer to the Leyte Provincial Hospital,
appellees were asked to sign as, in fact, they signed the document Exhibit I
wherein they stated that "in consideration of the expenses which said operator
has incurred in properly giving us the proper medical treatment, we hereby
manifest our desire to waive any and all claims against the operator of the
Samar Express Transit."
xxx xxx xxx
Even a cursory examination of the document mentioned above will readily show
that appellees did not actually waive their right to claim damages from appellant
for the latter's failure to comply with their contract of carriage. All that said
document proves is that they expressed a "desire" to make the waiver which
obviously is not the same as making an actual waiver of their right. A waiver of
the kind invoked by appellant must be clear and unequivocal (Decision of the
Supreme Court of Spain of July 8, 1887) which is not the case of the one
relied upon in this appeal. (Emphasis supplied)
If we apply the standard used in Yepes and Susaya, we would have to conclude that
the terms of the Joint Affidavit in the instant case cannot be regarded as a waiver
cast in "clear and unequivocal" terms. Moreover, the circumstances under which the
Joint Affidavit was signed by petitioner Gatchalian need to be considered. Petitioner
testified that she was still reeling from the effects of the vehicular accident, having
been in the hospital for only three days, when the purported waiver in the form of the
Joint Affidavit was presented to her for signing; that while reading the same, she
experienced dizziness but that, seeing the other passengers who had also suffered
injuries sign the document, she too signed without bothering to read the Joint
Affidavit in its entirety. Considering these circumstances there appears substantial
doubt whether petitioner understood fully the import of the Joint Affidavit (prepared
by or at the instance of private respondent) she signed and whether she actually
intended thereby to waive any right of action against private respondent.
Finally, because what is involved here is the liability of a common carrier for injuries
sustained by passengers in respect of whose safety a common carrier must
exercise extraordinary diligence, we must construe any such purported waiver most
strictly against the common carrier. For a waiver to be valid and effective, it must not be
contrary to law, morals, public policy or good
customs. 5 To uphold a supposed waiver of any right to claim damages by an injured
passenger, under circumstances like those exhibited in this case, would be to dilute and
weaken the standard of extraordinary diligence exacted by the law from common carriers
and hence to render that standard unenforceable. 6 We believe such a purported waiver
is offensive to public policy.
Petitioner Gatchalian also argues that the Court of Appeals, having by majority vote held
that there was no enforceable waiver of her right of action, should have awarded her
actual or compensatory and moral damages as a matter of course.
We have already noted that a duty to exercise extraordinary diligence in protecting the
safety of its passengers is imposed upon a common carrier. 7 In case of death or injuries
to passengers, a statutory presumption arises that the common carrier was at fault or had
acted negligently "unless it proves that it [had] observed extraordinary diligence as
prescribed in Articles 1733 and 1755." 8 In fact, because of this statutory presumption, it
has been held that a court need not even make an express finding of fault or negligence
on the part of the common carrier in order to hold it liable.9 To overcome this
presumption, the common carrier must slow to the court that it had exercised
extraordinary diligence to prevent the injuries. 10 The standard of extraordinary diligence
imposed upon common carriers is considerably more demanding than the standard of
ordinary diligence, i.e., the diligence of a goodpaterfamilias established in respect of the
ordinary relations between members of society. A common carrier is bound to carry its
passengers safely" as far as human care and foresight can provide, using the utmost
diligence of a very cautious person, with due regard to all the circumstances". 11
Thus, the question which must be addressed is whether or not private respondent has
successfully proved that he had exercised extraordinary diligence to prevent the mishap
involving his mini-bus. The records before the Court are bereft of any evidence showing
that respondent had exercised the extraordinary diligence required by law. Curiously,
respondent did not even attempt, during the trial before the court a quo, to prove that he
had indeed exercised the requisite extraordinary diligence. Respondent did try to
exculpate himself from liability by alleging that the mishap was the result of force
majeure. But allegation is not proof and here again, respondent utterly failed to
substantiate his defense of force majeure. To exempt a common carrier from liability for
death or physical injuries to passengers upon the ground of force majeure, the carrier
must clearly show not only that the efficient cause of the casualty was entirely
independent of the human will, but also that it was impossible to avoid. Any participation
by the common carrier in the occurrence of the injury will defeat the defense of force
majeure. In Servando v. Philippine Steam Navigation Company, 12 the Court summed up
the essential characteristics of force majeure by quoting with approval from
the Enciclopedia Juridica Espaola:
Thus, where fortuitous event or force majeure is the immediate and proximate
cause of the loss, the obligor is exempt from liability non-performance. The
Partidas, the antecedent of Article 1174 of the Civil Code, defines "caso fortuito"
as 'an event that takes place by accident and could not have been foreseen.
Examples of this are destruction of houses, unexpected fire, shipwreck, violence
of robber.
In its dissertation on the phrase "caso fortuito" the Enciclopedia Juridica
Espaola says: 'In legal sense and, consequently, also in relation to contracts, a
"caso fortuito" presents the following essential characteristics: (1) the cause of
the unforeseen and unexpected occurence, or of the failure of the debtor to
comply with his obligation, must be independent of the human will; (2) it must be
impossible to foresee the event which constitutes the "caso fortuito", or if it can
be foreseen, it must be impossible to avoid; (3) the occurrence must be such as
to render it impossible for the debtor to fulfill his obligation in a normal manner;
and (4) the obligor must be free from any participation in the aggravation of the
injury resulting to the creditor.
Upon the other hand, the record yields affirmative evidence of fault or negligence on the
part of respondent common carrier. In her direct examination, petitioner Gatchalian
narrated that shortly before the vehicle went off the road and into a ditch, a "snapping
sound" was suddenly heard at one part of the bus. One of the passengers, an old woman,
cried out, "What happened?" ("Apay addan samet nadadaelen?"). The driver replied,
nonchalantly, "That is only normal" ("Ugali ti makina dayta"). The driver did not stop to
check if anything had gone wrong with the bus. Moreover, the driver's reply necessarily
indicated that the same "snapping sound" had been heard in the bus on previous
occasions. This could only mean that the bus had not been checked physically or
mechanically to determine what was causing the "snapping sound" which had occurred so
frequently that the driver had gotten accustomed to it. Such a sound is obviously alien to a
motor vehicle in good operating condition, and even a modicum of concern for life and
limb of passengers dictated that the bus be checked and repaired. The obvious continued
failure of respondent to look after the roadworthiness and safety of the bus, coupled with
the driver's refusal or neglect to stop the mini-bus after he had heard once again the
"snapping sound" and the cry of alarm from one of the passengers, constituted wanton
disregard of the physical safety of the passengers, and hence gross negligence on the
part of respondent and his driver.
We turn to petitioner's claim for damages. The first item in that claim relates to revenue
which petitioner said she failed to realize because of the effects of the vehicular mishap.
Petitioner maintains that on the day that the mini-bus went off the road, she was supposed
to confer with the district supervisor of public schools for a substitute teacher's job, a job
which she had held off and on as a "casual employee." The Court of Appeals, however,
found that at the time of the accident, she was no longer employed in a public school
since, being a casual employee and not a Civil Service eligible, she had been laid off. Her
employment as a substitute teacher was occasional and episodic, contingent upon the
availability of vacancies for substitute teachers. In view of her employment status as such,
the Court of Appeals held that she could not be said to have in fact lost any employment
after and by reason of the accident. 13 Such was the factual finding of the Court of
Appeals, a finding entitled to due respect from this Court. Petitioner Gatchalian has not
submitted any basis for overturning this finding of fact, and she may not be awarded
damages on the basis of speculation or conjecture. 14
Petitioner's claim for the cost of plastic surgery for removal of the scar on her forehead, is
another matter. A person is entitled to the physical integrity of his or her body; if that
integrity is violated or diminished, actual injury is suffered for which actual or
compensatory damages are due and assessable. Petitioner Gatchalian is entitled to be
placed as nearly as possible in the condition that she was before the mishap. A scar,
especially one on the face of the woman, resulting from the infliction of injury upon her, is
a violation of bodily integrity, giving raise to a legitimate claim for restoration to
her conditio ante. If the scar is relatively small and does not grievously disfigure the victim,
the cost of surgery may be expected to be correspondingly modest. In Araneta, et al. vs.
Areglado, et al., 15 this Court awarded actual or compensatory damages for, among other
things, the surgical removal of the scar on the face of a young boy who had been injured
in a vehicular collision. The Court there held:
We agree with the appellants that the damages awarded by the lower court for
the injuries suffered by Benjamin Araneta are inadequate. In allowing not more
than P1,000.00 as compensation for the "permanent deformity and something
like an inferiority complex" as well as for the "pathological condition on the left
side of the jaw" caused to said plaintiff, the court below overlooked the clear
evidence on record that to arrest the degenerative process taking place in the
mandible and restore the injured boy to a nearly normal condition, surgical
intervention was needed, for which the doctor's charges would amount to
P3,000.00, exclusive of hospitalization fees, expenses and
medicines.Furthermore, the operation, according to Dr. Dio, would probably
have to be repeated in order to effectuate a complete cure, while removal of the
scar on the face obviously demanded plastic surgery.
xxx xxx xxx
The father's failure to submit his son to a plastic operation as soon as possible
does not prove that such treatment is not called for. The damage to the jaw and
the existence of the scar in Benjamin Araneta's face are physical facts that can
not be reasoned out of existence. That the injury should be treated in order to
restore him as far as possible to his original condition is undeniable. The father's
delay, or even his negligence, should not be allowed to prejudice the son who
has no control over the parent's action nor impair his right to a full indemnity.
. . . Still, taking into account the necessity and cost of corrective measures to
fully repair the damage;the pain suffered by the injured party; his feelings of
inferiority due to consciousness of his present deformity, as well as the voluntary
character of the injury inflicted; and further considering that a repair, however,
skillfully conducted, is never equivalent to the original state, we are of the
opinion that the indemnity granted by the trial court should be increased to a
total of P18,000.00. (Emphasis supplied)
Petitioner estimated that the cost of having her scar surgically removed was somewhere
between P10,000.00 to P15,000.00. 16 Upon the other hand, Dr. Fe Tayao Lasam, a
witness presented as an expert by petitioner, testified that the cost would probably be
between P5,000.00 to P10,000.00. 17 In view of this testimony, and the fact that a
considerable amount of time has lapsed since the mishap in 1973 which may be expected
to increase not only the cost but also very probably the difficulty of removing the scar, we
consider that the amount of P15,000.00 to cover the cost of such plastic surgery is not
unreasonable.
Turning to petitioner's claim for moral damages, the long-established rule is that moral
damages may be awarded where gross negligence on the part of the common carrier is
shown. 18 Since we have earlier concluded that respondent common carrier and his
driver had been grossly negligent in connection with the bus mishap which had injured
petitioner and other passengers, and recalling the aggressive manuevers of respondent,
through his wife, to get the victims to waive their right to recover damages even as they
were still hospitalized for their injuries, petitioner must be held entitled to such moral
damages. Considering the extent of pain and anxiety which petitioner must have suffered
as a result of her physical injuries including the permanent scar on her forehead, we
believe that the amount of P30,000.00 would be a reasonable award. Petitioner's claim for
P1,000.00 as atttorney's fees is in fact even more modest. 19
WHEREFORE, the Decision of the Court of Appeals dated 24 October 1980, as well as
the decision of the then Court of First Instance of La Union dated 4 December 1975 are
hereby REVERSED and SET ASIDE.Respondent is hereby ORDERED to pay petitioner
Reynalda Gatchalian the following sums: 1) P15,000.00 as actual or compensatory
damages to cover the cost of plastic surgery for the removal of the scar on petitioner's
forehead; 2) P30,000.00 as moral damages; and 3) P1,000.00 as attorney's fees, the
aggregate amount to bear interest at the legal rate of 6% per annum counting from the
promulgation of this decision until full payment thereof. Costs against private respondent.
SO ORDERED. Fernan, C.J., Gutierrez, Jr., Bidin and Davide, Jr., JJ., concur.
[G.R. No. 113003. October 17, 1997]
ALBERTA YOBIDO and CRESENCIO YOBIDO, petitioners, vs. COURT OF APPEALS,
LENY TUMBOY, ARDEE TUMBOY and JASMIN TUMBOY, respondents.
ROMERO, J.:
In this petition for review on certiorari of the decision of the Court of Appeals, the issue is
whether or not the explosion of a newly installed tire of a passenger vehicle is a fortuitous
event that exempts the carrier from liability for the death of a passenger.
On April 26, 1988, spouses Tito and Leny Tumboy and their minor children named Ardee
and Jasmin, boarded at Mangagoy, Surigao del Sur, a Yobido Liner bus bound for Davao
City. Along Picop Road in Km. 17, Sta. Maria, Agusan del Sur, the left front tire of the bus
exploded. The bus fell into a ravine around three (3) feet from the road and struck a
tree. The incident resulted in the death of 28-year-old Tito Tumboy and physical injuries
to other passengers.
On November 21, 1988, a complaint for breach of contract of carriage, damages and
attorneys fees was filed by Leny and her children against Alberta Yobido, the owner of
the bus, and Cresencio Yobido, its driver, before the Regional Trial Court of Davao
City. When the defendants therein filed their answer to the complaint, they raised the
affirmative defense of caso fortuito. They also filed a third-party complaint against
Philippine Phoenix Surety and Insurance, Inc. This third-party defendant filed an answer
with compulsory counterclaim. At the pre-trial conference, the parties agreed to a
stipulation of facts.[1]
Upon a finding that the third party defendant was not liable under the insurance contract,
the lower court dismissed the third party complaint. No amicable settlement having been
arrived at by the parties, trial on the merits ensued.
The plaintiffs asserted that violation of the contract of carriage between them and the
defendants was brought about by the drivers failure to exercise the diligence required of
the carrier in transporting passengers safely to their place of destination. According to
Leny Tumboy, the bus left Mangagoy at 3:00 oclock in the afternoon. The winding road it
traversed was not cemented and was wet due to the rain; it was rough with crushed
rocks. The bus which was full of passengers had cargoes on top. Since it was running
fast, she cautioned the driver to slow down but he merely stared at her through the
mirror. At around 3:30 p.m., in Trento, she heard something explode and immediately, the
bus fell into a ravine.
For their part, the defendants tried to establish that the accident was due to a fortuitous
event. Abundio Salce, who was the bus conductor when the incident happened, testified
that the 42-seater bus was not full as there were only 32 passengers, such that he himself
managed to get a seat. He added that the bus was running at a speed of 60 to 50 and
that it was going slow because of the zigzag road. He affirmed that the left front tire that
exploded was a brand new tire that he mounted on the bus on April 21, 1988 or only five
(5) days before the incident. The Yobido Liner secretary, Minerva Fernando, bought the
new Goodyear tire from Davao Toyo Parts on April 20, 1988 and she was present when it
was mounted on the bus by Salce. She stated that all driver applicants in Yobido Liner
underwent actual driving tests before they were employed. Defendant Cresencio Yobido
underwent such test and submitted his professional drivers license and clearances from
the barangay, the fiscal and the police.
On August 29, 1991, the lower court rendered a decision[2] dismissing the action for lack
of merit. On the issue of whether or not the tire blowout was a caso fortuito, it found that
the falling of the bus to the cliff was a result of no other outside factor than the tire blow-
out. It held that the ruling in the La Mallorca and Pampanga Bus Co. v. De Jesus[3] that a
tire blowout is a mechanical defect of the conveyance or a fault in its equipment which
was easily discoverable if the bus had been subjected to a more thorough or rigid check-
up before it took to the road that morning is inapplicable to this case. It reasoned out that
in said case, it was found that the blowout was caused by the established fact that the
inner tube of the left front tire was pressed between the inner circle of the left wheel and
the rim which had slipped out of the wheel. In this case, however, the cause of the
explosion remains a mystery until at present. As such, the court added, the tire blowout
was acaso fortuito which is completely an extraordinary circumstance independent of the
will of the defendants who should be relieved of whatever liability the plaintiffs may have
suffered by reason of the explosion pursuant to Article 1174[4] of the Civil Code.
Dissatisfied, the plaintiffs appealed to the Court of Appeals. They ascribed to the lower
court the following errors: (a) finding that the tire blowout was a caso fortuito; (b) failing to
hold that the defendants did not exercise utmost and/or extraordinary diligence required of
carriers under Article 1755 of the Civil Code, and (c) deciding the case contrary to the
ruling in Juntilla v. Fontanar,[5] and Necesito v. Paras.[6]
On August 23, 1993, the Court of Appeals rendered the Decision[7] reversing that of the
lower court. It held that:
To Our mind, the explosion of the tire is not in itself a fortuitous event. The cause of the
blow-out, if due to a factory defect, improper mounting, excessive tire pressure, is not an
unavoidable event. On the other hand, there may have been adverse conditions on the
road that were unforeseeable and/or inevitable, which could make the blow-out a caso
fortuito. The fact that the cause of the blow-out was not known does not relieve the carrier
of liability. Owing to the statutory presumption of negligence against the carrier and its
obligation to exercise the utmost diligence of very cautious persons to carry the passenger
safely as far as human care and foresight can provide, it is the burden of the defendants
to prove that the cause of the blow-out was a fortuitous event. It is not incumbent upon
the plaintiff to prove that the cause of the blow-out is not caso-fortuito.
Proving that the tire that exploded is a new Goodyear tire is not sufficient to discharge
defendants burden. As enunciated in Necesito vs. Paras, the passenger has neither
choice nor control over the carrier in the selection and use of its equipment, and the good
repute of the manufacturer will not necessarily relieve the carrier from liability.
Moreover, there is evidence that the bus was moving fast, and the road was wet and
rough. The driver could have explained that the blow-out that precipitated the accident
that caused the death of Toto Tumboy could not have been prevented even if he had
exercised due care to avoid the same, but he was not presented as witness.
The Court of Appeals thus disposed of the appeal as follows:
WHEREFORE, the judgment of the court a quo is set aside and another one entered
ordering defendants to pay plaintiffs the sum of P50,000.00 for the death of Tito
Tumboy, P30,000.00 in moral damages, and P7,000.00 for funeral and burial expenses.
SO ORDERED.
The defendants filed a motion for reconsideration of said decision which was denied on
November 4, 1993 by the Court of Appeals. Hence, the instant petition asserting the
position that the tire blowout that caused the death of Tito Tumboy was a caso
fortuito. Petitioners claim further that the Court of Appeals, in ruling contrary to that of the
lower court, misapprehended facts and, therefore, its findings of fact cannot be considered
final which shall bind this Court. Hence, they pray that this Court review the facts of the
case.
The Court did re-examine the facts and evidence in this case because of the
inapplicability of the established principle that the factual findings of the Court of Appeals
are final and may not be reviewed on appeal by this Court. This general principle is
subject to exceptions such as the one present in this case, namely, that the lower court
and the Court of Appeals arrived at diverse factual findings.[8] However, upon such re-
examination, we found no reason to overturn the findings and conclusions of the Court of
Appeals.
As a rule, when a passenger boards a common carrier, he takes the risks incidental to the
mode of travel he has taken. After all, a carrier is not an insurer of the safety of its
passengers and is not bound absolutely and at all events to carry them safely and without
injury.[9] However, when a passenger is injured or dies while travelling, the law presumes
that the common carrier is negligent. Thus, the Civil Code provides:
Art. 1756. In case of death or injuries to passengers, common carriers are presumed to
have been at fault or to have acted negligently, unless they prove that they observed
extraordinary diligence as prescribed in articles 1733 and 1755.
Article 1755 provides that (a) common carrier is bound to carry the passengers safely as
far as human care and foresight can provide, using the utmost diligence of very cautious
persons, with a due regard for all the circumstances. Accordingly, in culpa contractual,
once a passenger dies or is injured, the carrier is presumed to have been at fault or to
have acted negligently. This disputable presumption may only be overcome by evidence
that the carrier had observed extraordinary diligence as prescribed by Articles
1733,[10] 1755 and 1756 of the Civil Code or that the death or injury of the passenger was
due to a fortuitous event.[11] Consequently, the court need not make an express finding of
fault or negligence on the part of the carrier to hold it responsible for damages sought by
the passenger.[12]
In view of the foregoing, petitioners contention that they should be exempt from liability
because the tire blowout was no more than a fortuitous event that could not have been
foreseen, must fail. A fortuitous event is possessed of the following characteristics: (a) the
cause of the unforeseen and unexpected occurrence, or the failure of the debtor to comply
with his obligations, must be independent of human will; (b) it must be impossible to
foresee the event which constitutes the caso fortuito, or if it can be foreseen, it must be
impossible to avoid; (c) the occurrence must be such as to render it impossible for the
debtor to fulfill his obligation in a normal manner; and (d) the obligor must be free from any
participation in the aggravation of the injury resulting to the creditor.[13] As Article 1174
provides, no person shall be responsible for a fortuitous event which could not be
foreseen, or which, though foreseen, was inevitable. In other words, there must be an
entire exclusion of human agency from the cause of injury or loss.[14]
Under the circumstances of this case, the explosion of the new tire may not be considered
a fortuitous event. There are human factors involved in the situation. The fact that the tire
was new did not imply that it was entirely free from manufacturing defects or that it was
properly mounted on the vehicle. Neither may the fact that the tire bought and used in the
vehicle is of a brand name noted for quality, resulting in the conclusion that it could not
explode within five days use. Be that as it may, it is settled that an accident caused either
by defects in the automobile or through the negligence of its driver is not a caso
fortuito that would exempt the carrier from liability for damages.[15]
Moreover, a common carrier may not be absolved from liability in case of force majeure or
fortuitous event alone. The common carrier must still prove that it was not negligent in
causing the death or injury resulting from an accident.[16] This Court has had occasion to
state:
While it may be true that the tire that blew-up was still good because the grooves of the
tire were still visible, this fact alone does not make the explosion of the tire a fortuitous
event. No evidence was presented to show that the accident was due to adverse road
conditions or that precautions were taken by the jeepney driver to compensate for any
conditions liable to cause accidents. The sudden blowing-up, therefore, could have been
caused by too much air pressure injected into the tire coupled by the fact that the jeepney
was overloaded and speeding at the time of the accident.[17]
It is interesting to note that petitioners proved through the bus conductor, Salce, that the
bus was running at 60-50 kilometers per hour only or within the prescribed lawful speed
limit. However, they failed to rebut the testimony of Leny Tumboy that the bus was
running so fast that she cautioned the driver to slow down. These contradictory facts
must, therefore, be resolved in favor of liability in view of the presumption of negligence of
the carrier in the law. Coupled with this is the established condition of the road rough,
winding and wet due to the rain. It was incumbent upon the defense to establish that it
took precautionary measures considering partially dangerous condition of the road. As
stated above, proof that the tire was new and of good quality is not sufficient proof that it
was not negligent. Petitioners should have shown that it undertook extraordinary
diligence in the care of its carrier, such as conducting daily routinary check-ups of the
vehicles parts. As the late Justice J.B.L. Reyes said:
It may be impracticable, as appellee argues, to require of carriers to test the strength of
each and every part of its vehicles before each trip; but we are of the opinion that a due
regard for the carriers obligations toward the traveling public demands adequate
periodical tests to determine the condition and strength of those vehicle portions the
failure of which may endanger the safety of the passengers.[18]
Having failed to discharge its duty to overthrow the presumption of negligence with clear
and convincing evidence, petitioners are hereby held liable for damages. Article
1764[19] in relation to Article 2206[20] of the Civil Code prescribes the amount of at least
three thousand pesos as damages for the death of a passenger. Under prevailing
jurisprudence, the award of damages under Article 2206 has been increased to fifty
thousand pesos (P50,000.00).[21]
Moral damages are generally not recoverable in culpa contractual except when bad faith
had been proven. However, the same damages may be recovered when breach of
contract of carriage results in the death of a passenger,[22] as in this case. Exemplary
damages, awarded by way of example or correction for the public good when moral
damages are awarded,[23] may likewise be recovered in contractual obligations if the
defendant acted in wanton, fraudulent, reckless, oppressive, or malevolent
manner.[24] Because petitioners failed to exercise the extraordinary diligence required of
a common carrier, which resulted in the death of Tito Tumboy, it is deemed to have acted
recklessly.[25] As such, private respondents shall be entitled to exemplary damages.
WHEREFORE, the Decision of the Court of Appeals is hereby AFFIRMED subject to the
modification that petitioners shall, in addition to the monetary awards therein, be liable for
the award of exemplary damages in the amount of P20,000.00. Costs against petitioners.
SO ORDERED.
Narvasa, C.J., (Chairman), Melo, Francisco, and Panganiban, JJ., concur.



































G.R. No. L-16086 May 29, 1964
M. RUIZ HIGHWAY TRANSIT, INC. and MARTIN BUENA, petitioners, vs.
COURT OF APPEALS, GUILLERMO MONSERRAT and MARTA
CONSIGNADO, respondents.
BENGZON, C.J.:
Appeal by certiorari from a decision of the Court of Appeals.
In the Laguna court of first instance, the spouses Guillermo Monserrat and Marta
Consignado sued M. Ruiz Highway Transit, Inc., and Martin Buena to recover damages
for the death of their four-year old daughter Victoria.
In the morning of May 22, 1954, said child and her parents were paying passengers in a
bus of defendant transportation company driven by co-defendant Buena, bound for
Antipolo, Rizal. In Sta. Rosa, Laguna, while the bus was running, a rear tire exploded,
blasting a hole in the very place where Victoria was standing in front of her mother. As a
result, the child fell through the hole, and died that same morning from injuries sustained
in the fall.1wph1.t
The court of first instance dismissed the complaint on the ground that (1) the accident was
not due to negligence of the carrier, but was an act of God; and (2) even if negligence was
attributable to defendants, their liability had been discharged, as evidenced by Exhibits 2
and 3 quoted in the footnote.
1

On appeal by plaintiffs, the Court of Appeals reversed the judgment, upon the finding that
(1) defendants failed to prove the extraordinary diligence required of carriers; and (2)
Exhibits 2 and 3 did not effect a waiver of plaintiffs' right to damages. Said appellate court,
therefore, required defendants to pay plaintiffs P6,000.00 as indemnity for the child's
death; P2,000.00 as moral damages and P500.00 as attorney's fees, with interest from
the date of its decision, (minus the P150.00 that had been given to plaintiff Guillermo
Monserrat, thru Exhibit 3).
In their petition for review by certiorari, the carrier and the driver raise the following issues:
(1) whether in a contract of carriage breached by the passenger's death, his parents may
be granted moral damages; and (2) whether the sum of P6,000.00 may be awarded as
death indemnity for a child passenger. In their brief, they pose the following questions in
addition to the above issues; (3) was there a contract of carriage between the deceased
child and petitioner transportation company; (4) have petitioners rebutted the presumption
that they have been negligent; (5) was the bus crowded; (6) was the bus running fast
when the tire exploded; (7) what caused the bursting of the tire; (8) was the bus floor
weak; (9) was the blow-out of the tire caso fortuito; and (10) was petitioners' liability
cancelled by Exhibits 2 and 3?
The alleged lack of a contract of carriage between the deceased child and petitioner
transportation company, if true, is a complete defense against claimants' cause of action.
However, the issue is now inarguable, it being partly factual, on which the appellate court
made its finding.
Respondents and the child were paying passengers in the bus; petitioners were duty
bound to transport them, using the utmost diligence of very cautious persons (Art. 1755,
New Civil Code). Therein they failed. The child died because the floor of the bus gave
way; this reinforces the presumption that petitioners had neglected to provide a safe
conveyance (Art. 1756, New Civil Code). Evidence of the required extraordinary diligence
was not introduced to rebut the presumption.
On the contrary, the appellate court found that the bus was overcrowded and
overspeeding, and the floor thereof was weak persuasive indications of negligence;
and reasoned out that the tire exploded due to one or a combination of the following: "The
tire was not strong and safe; the air pressure was not properly checked; the load was
heavy; the excessive speed of the bus must have overstrained the tire; and the high
velocity generated heat in the tire which could have expanded the already compressed air
therein."
2

Petitioners venture to guess that it was due either to accidental puncture by a sharp
instrument, as a nail, or to latent defect in the tire. Evidence should have been but was
not presented to establish such defense.
Even conceding that the tire blow-out was accidental, we could still hold the carrier liable
for failure to provide a safe floor in the bus.
Exhibits 2 and 3 are not proof that petitioners have discharged their legal liability to
claimants. What is expressed there is the latter's belief clearly erroneous that
petitioners are not liable to them and acknowledgment of the voluntary help extended by
petitioner transportation company. The belief is baseless. That respondents entertained
such an ill-founded impression is not to be wondered at. They are ignorant, illiterate,
indigent, and, at the time they signed Exhibits 2 and 3, thoroughly confused and distracted
by the death of their child.
The minimum death indemnity is P3,000
3
, although this Court has in various instances
granted P6,000.00. As for moral damages, the carrier is liable therefor to the parents of a
child who meets death while a passenger in any of the carrier's vehicles (Arts. 2206 and
1764, New Civil Code). Since respondents are indigents, and have litigated as paupers,
they should be allowed attorney's fees of P500.00.
FOR THESE REASONS, the appealed decision is affirmed, with costs.
Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Paredes, Regala and Makalintal,
JJ., concur.
Padilla, Labrador and Dizon, JJ., took no part.




G.R. No. L-22459 October 31, 1967
ANTONIO V. ROQUE, petitioner, vs.
BIENVENIDO P. BUAN, ET AL., respondents.
Francisco R. Sotto and Associates for petitioner.
Angel A. Sison for respondents.
ANGELES, J.:
An appeal by certiorari from a decision of the Court of Appeals, reversing in toto the
decision of the Court of First Instance of Pampanga which sentenced the defendants "to
pay the plaintiff (Antonio V. Roque) the sums of P515.70 (hospital bill) and P840.00 (six
months salary), or a total of P1,355.70, with legal interest from February 12, 1955, plus
the sum of P500.00 as attorney's fees and an equivalent amount of P500.00 as moral
damages, and the costs."
Upon the record, it appears that on 7 June 1955, Antonio V. Roque filed this suit for
damages against Bienvenido P. Buan and Natividad Paras, co-administrators of the
Estate of the deceased spouses Florencio P. Buan and Rizalina Paras, in the Court of
First Instance of Pampanga, for alleged breach of contract of carriage, resulting from a
traffic accident which occurred at Sulipan Bridge in Apalit, Pampanga.
The circumstances surrounding the occurrence of the unfortunate accident has been
narrated in court during the trial by the plaintiff himself, whose testimony was corroborated
by a passenger of the bus. The defense did not summon any other passenger of the bus
to testify. Neither was the conductor of the bus presented in court. It relied solely on the
testimony of the driver Celestino Soliman.
The evidence of the plaintiff, substantiated by his testimony and that of a passenger in the
bus, demonstrate that Florencio P. Buan, in his lifetime was an operator of land
transportation for passengers, under the name of "Philippine Rabbit Bus Lines", with a
certificate of Public Convenience issued by the Public Service Commission. The
defendants co-administrators, sued herein in their legal capacity as such, have been duly
authorize by the court to continue the operation of the bus transportation for passengers.
On February 12, 1955, at about 2:00 o'clock in the afternoon, the plaintiff Antonio V.
Roque, was a paying passenger in bus No. 397, operated by the defendants. The bus left
Manila for Angeles City, Pampanga, driven by Celestino Soliman, an employee of the
operator. All along the way, the speed of the bus was about 60 kms. per hour. When the
bus was over the Sulipan bridge at Apalit, Pampanga, it met a cargo truck coming from
the opposite direction. To avoid colliding with the truck, the driver swerved the bus to the
right, which, however, sideswiped the railing of the bridge. So violent was the impact that
the two iron grills of a window of the bus were detached, dangling thereat, and the rear
right portion of the bus was dented inward. The plaintiff was seated by the side of the
window where the iron grills were detached with his right arm resting on the sill of the
frame of the window. The injuries suffered by him as a result of the impact are: "1.
Abrasion multiple, upper extreme right; 2. fracture simple complete; 3. Wound
lacerated, exposing elbow point right." (Exhibit A.)
For the defendants, the driver of the bus declared that the rate of speed of his bus all the
way from Manila, was between 40 to 50 kms. per hour. As the bus was approaching the
Sulipan bridge, he reduced the speed to 10 kms. per hour, which he maintained while
passing over the bridge. When the bus was over the bridge, a freight truck came along
from the opposite direction, and to avoid colliding with the truck, he swerved the bus to the
right, and as he did so, he suddenly heard the conductor of the bus shout "para" (stop).
Asking why, the conductor replied: "This arm which was protruding hit the bridge."
Addressing the passenger indicated by the conductor, who happened to be the plaintiff,
the driver asked: "Why did you put out your arm?" The passenger replied: "I fell asleep."
In avoidance of liability, the thesis of the defense is that plaintiff's arm was injured
because he extended it outside the window, and struck it against the railing of the bridge.
To sustain the contention, four witnesses were summoned to the witness-stand who
declared in substance that the bus suffered no damage at all. However, the trial court's
finding shows that the bus suffered substantial damage. Thus:
To establish that the bus was not damaged, not even a scratch, the defendants
introduced the mechanic, the carpenter and the administrative officer, all of the
Rabbit, and the police lieutenant of Apalit, who said, he saw the bus parked in front
of the San Fernando municipal building. All of these witnesses declared that they
found no dent nor a single scratch on the right rear side of the bus and that the grills
of the window, by which the plaintiff was seated, were in their places.
On the other hand, the plaintiff testified that before reaching the bridge, the bus was
running at about 60 kilometers per hour and that it did not slacken until it hit the
railing of the bridge after it had passed the cargo truck (Exhibit C-1), thereby causing
the injuries to his elbow and arm.
As to the bus, he declared that the rear right portion was dented, the top of the
window was damaged, and the grills were detached and dangling from the window.
xxx xxx xxx
From the evidence of the plaintiff and that of his witness, a co-passenger whom he
met for the first time on that fatal occasion, we have valid grounds to believe and to
hold that the driver, upon seeing the oncoming truck which he said was big and
which was occupying all the space up to the center of the line, and motivated
undoubtedly by the fear that it might collide with the left side of his bus, maneuvered
his vehicle to the right, but because he could not see the cargo truck as the windows
were closed, he went very near too close so that his bus hit the railing of the bridge
after it had passed the freight truck. In arriving at this finding and conclusion, we
have taken into consideration the fact, as admitted by Celestino Soliman that he had
driven the bus for only two weeks before the accident, and notwithstanding the
testimony of the administrative officers regarding seminars and the like, we believe
that the driver had not yet sufficiently familiarized himself with the behavior of his
bus so as to put it completely at all times under his control. In this, we believe there
was a lack of diligence in his selection to drive the Rabbit bus No. 397.
In regard to the injuries, we are inclined to believe the plaintiff that he rested his
arms on the sill, but within the frame of the window, and that, as denied in rebuttal,
he was not asleep. This fact is borne out by the circumstances that he was able to
determine the rate of speed of the bus. If, indeed, it were true that he extended out
his arm, the injuries would have certainly been more serious and fatal. That no other
passenger was harmed, this can be attributed to the fact that the impact was
concentrated at the point precisely where the victim was unfortunately seated. The
contact was localized.
Upon the foregoing facts, we are firmly convinced that the plaintiff was not at fault
and that the operator, through its driver and employee, failed to exercise that
extraordinary diligence which would have exempted it from civil liability.
On the same matter, the Court of Appeals said:
Inasmuch as plaintiff was injured, and as no scratch was found on the rear right side
of the bus, and as the only damage to the bus as found by the trial court, consisted
of the following: "The rear right portion was dented, the grills were detached and
dangling from the window, and the top of the window was damaged", the only
conclusion we can think of as to why plaintiff was injured is that he must have
extended his right elbow beyond or outside the grills of the window of the bus, as
some passengers are wont to do unconsciously, and when the bus moved towards
the right of the bridge as it passed the big freight truck going in the opposite
direction, the railing of the bridge must have caught plaintiff's elbow, and the impact
was so violent that the two grills of the window of the bus were thereby "detached
and dangling from the window" which must have been the cause of the dent on the
right portion of the bus." (Emphasis Ours.)
Analyzing the findings made by the trial court, on whether or not the bus suffered damage,
We observe that the court's findings in the affirmative are factually based on the testimony
of the plaintiff and of the corroborating witness, whose demeanor while testifying, was
within the observation of the trial court which, after appreciating their testimonies, found
no reason not to accord them credit. The decision of the Court of Appeals on the same
point, does not disagree with the findings of the trial court. It upheld the finding of the trial
court that the damage to the bus were "The rear right portion was dented, the grills
were detached and dangling from the window, and the top of the window was damaged, .
. . the impact was so violent that the two grills of the window which must have been the
cause of the dent on the right portion of the bus." Upon these established facts, the Court
of Appeals concluded, however, that the plaintiff's arm was injured because "he must
have extended his right elbow beyond or outside the grills of the window of the bus."
If the decision of the Court of Appeals on the controversial matter suffers, as it does, from
some ambiguity, the doubt should be resolved to sustain the trial court in the light of the
familiar and accepted rule that "the judge who tries a case in the court below, has vastly
superior advantage for the ascertainment of truth and the detection of falsehood over an
appellate court sitting as a court of review. The appellate court can merely follow with the
eye, the cold words of the witness as transcribed upon the record, knowing at the same
time, from actual experience, that more or less, of what the witness actually did say, is
always lost in the process of transcribing. But the main difficulty does not lie here. There is
an inherent impossibility of determining with any degree of accuracy what credit is justly
due to a witness from merely reading the words spoken by him, even if there was no
doubt as to the identity of the words." (Moran, Comments on the Rules of Court.)
We are not prepared to agree with the Court of Appeals' conclusion as to the reason why
the plaintiff's arm was injured - that "he must have extended his right elbow beyond or
outside the grills of the window of the bus." The conclusion is: firstly, contrary to the
established act; secondly, it is an inference based on mere assumption; thirdly, it is
contrary to the res ipsa loquitur rule; and fourthly, it is not in conformity with the physical
law of nature. With the undisputed fact on record that the bus was damaged to the extent
hereinabove described, and taking account of the fact that the human hand is tender and
fragile, to say that the violent contact of the hand with the railing, the bus running at a high
rate of speed, without the vehicle colliding with the railing, caused the iron grills to be
destroyed and detached from the frame of the window where they were imbedded, is to
tax one's credulity. The physical fact that the bus suffered damage to the extent as shown
by plaintiff's evidence, is demonstrative proof that that portion of the bus came into violent
contact with some protruding hard object on the railing capable of producing such
damage. We are persuaded to believe, as found by the trial court, that the violent contact
of the bus with the railing was what caused the damage to the bus.
Contrary to the testimony of the driver that the speed of the bus was only 10 kms. per
hour when it crossed the bridge, we are inclined to accord more credence to the evidence
of the plaintiff, that the bus was running at an unreasonable speed when it approached
and crossed the bridge. Judicial notice can be taken of the fact that Apalit bridge is part of
the main thorough fare for all kinds of vehicles, including big trucks and buses, cruising
along that national highway, wide enough to permit the simultaneous passage through the
bridge of two trucks or buses. If it is true that the speed of the bus was only 10 kms. per
hour when it was crossing the bridge, side-swiping the railing of the bridge at such a low
speed, would not have produced the extent of damage that the bus suffered. At most, the
physical contact would not have resulted in more than a scratch on the bus.
The testimony of the driver, regarding the exchange of questions and answers between
him and his conductor, and between him and plaintiff, is self-impeached by his statement
given before the Chief of Police of Apalit. We quote from the decision of the Court of
Appeals:
However, in his (driver's) "declaration" taken in the office of the Chief of Police of
Apalit, Pampanga, on February 13, 1955, in the Pampango dialect, subscribed and
sworn to by him before the Municipal Mayor, the said bus driver declared pertinently:
". . . upon reaching the bridge of Sulipan here in Apalit, Pampanga, I slowed
down because there was a cargo truck coming from the opposite direction. At
the same time, there was a jeep following me. The speed of my truck was more
or less 10 kms. per hour because the bridge was narrow and there was a truck
coming from the opposite direction. After meeting the said truck on the
bridge, my passengers said that there was a passenger on board my truck who
was injured. In view of the advice of the other passengers to bring the injured
passenger to the nearest drug store, what I did in order to have him treated was
to bring him to Ocampo Clinic in San Fernando. . . ."
The sworn statement of the driver belie his testimony in court; firstly, that it was the
conductor who called his attention about the injured passenger; and secondly, that Roque
admitted that he had put his arm out of the window and told him that he (Roque) was
"asleep", for if, Roque really gave these replies, the driver would have so stated in his
sworn statement to the Chief of Police. Such a significant fact, still fresh in the mind of the
driver when he gave his statement to the police, could not have been forgotten by him.
Negligence on the part of the common carrier is presumed where, as in the present case,
the passenger suffers injuries.
In case of death or injuries to passengers, common carriers are presumed to
have been at fault or to have acted negligently, unless they proved that they
observed extraordinary diligence as prescribed in Articles 1733 and 1755. (Art.
1756, New Civil Code.)
When the action is based on a contract of carriage and not of tort, the court need
not make an express finding of fault or negligence on the part of the carrier in
order to hold it responsible to any damages sought for by the plaintiff. For the
carrier by accepting the passenger assumes express obligation to transport him
to his destination safely, and to observe extraordinary diligence with due regard
for all the circumstances, and any injury that may be suffered: by the passenger
is right away attributable to the fault or negligence of the carrier. (Art. 1776, New
Civil Code) This is an exception to the general rule that negligence must be
proved and it is incumbent upon the carrier to prove that it exercised
extraordinary diligence as prescribed in Arts. 1733 and 1755 of the Civil Code.
(Dy Sy vs. Malate Taxicab etc., L-8937, November 29, 1957.)
The negligence of the defendants in the case at bar, rests on something more solid than a
legal presumption. We are persuaded, that the accident occurred because of want of care
and prudence on the part of bus driver. As the defendants failed to prove their observance
of extraordinary diligence in discharging their obligation unto plaintiff, their liability as
public utility operator is beyond question. Hence, the decision of the Court of Appeals
should be reversed. In arriving at this conclusion, we have not lost sight of the rule that
generally, the findings of fact by the Court of Appeals are deemed accepted as the basis
for review of the appellate's decision; but, the rule is not without exception. It is settled that
the findings of fact made by the Court of Appeals may be set aside: 1) when the
conclusion is a finding grounded entirely on speculation, surmises or conjectures;
1
2)
When the inference made is manifestly mistaken, absurd or impossible;
2
3) where there is
a grave abuse of discretion;
3
4) when the judgment is based on a misapprehension of
facts;
4
and 5) when the Court of Appeals, in making its findings, went beyond the issues of
the case and the same is contrary to the admission of both appellant and appellee.
5

But, while we must sustain the trial court's award of actual or compensatory damages, and
attorney's fees, the grant of moral damages cannot be upheld. The action herein is based
on a breach of contract of carriage. Unless it be proved that the common carrier, in
violating his contract to carry the passenger safely to his destination, acted fraudulently or
in bad faith, which proof is wanting, no moral damages can be awarded where the breach
did not result in death, but in mere physical injuries. (Art. 2220 in relation to Arts. 1764 and
2206 of the Civil Code.)
WHEREFORE, the decision of the Court of Appeals is hereby set aside. With the
modification that the award of moral damages is discarded, the decision of the trial court is
hereby affirmed with costs against the defendants-respondents.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez,
Castro and Fernando, JJ.,concur.


























G.R. No. L-22985 January 24, 1968
BATANGAS TRANSPORTATION COMPANY, petitioner, vs.
GREGORIO CAGUIMBAL, PANCRACIO CAGUIMBAL, MARIA MARANAN DE
CAGUIMBAL, BIAN TRANSPORTATION COMPANY and MARCIANO
ILAGAN, respondents.
CONCEPCION, C.J.:
Appeal by certiorari from a decision of the Court of Appeals.
The main facts are set forth in said decision from which we quote:
There is no dispute at all that the deceased Pedro Caguimbal, Barrio Lieutenant of
Barrio Calansayan, San Jose, Batangas, was a paying passenger of BTCO bus,
with plate TPU-507, going south on its regular route from Calamba, Laguna, to
Batangas, Batangas, driven by Tomas Perez, its regular driver, at about 5:30 o'clock
on the early morning of April 25, 1954. The deceased's destination was his
residence at Calansayan, San Jose, Batangas. The bus of the Bian Transportation
Company, bearing plate TPU-820, driven by Marciano Ilagan, was coming from the
opposite direction (north-bound). Along the national highway at Barrio Daraza,
Tanauan, Batangas, on the date and hour above indicated, a horse-driven rig
(calesa) managed by Benito Makahiya, which was then ahead of the Bian bus, was
also coming from the opposite direction, meaning proceeding towards the north. As
to what transpired thereafter, the lower court chose to give more credence to
defendant Batangas Transportation Company's version which, in the words of the
Court a quo, is as follows: "As the BTCO bus was nearing a house, a passenger
requested the conductor to stop as he was going to alight, and when he heard the
signal of the conductor, the driver Tomas Perez slowed down his bus swerving it
farther to the right in order to stop; at this juncture, a calesa, then driven by Benito
Makahiya was at a distance of several meters facing the BTCO bus coming from the
opposite direction; that at the same time the Bian bus was about 100 meters away
likewise going northward and following the direction of thecalesa; that upon seeing
the Bian bus the driver of the BTCO bus dimmed his light as established by Magno
Ilaw, the very conductor of the Bian bus at the time of the accident; that as
the calesa and the BTCO bus were passing each other from the opposite directions,
the Bian bus following the calesa swerved to its left in an attempt to pass between
the BTCO bus and the calesa; that without diminishing its speed of about seventy
(70) kilometers an hour, the Bian bus passed through the space between the
BTCO bus and the calesahitting first the left side of the BTCO bus with the left front
corner of its body and then bumped and struck thecalesa which was completely
wrecked; that the driver was seriously injured and the horse was killed; that the
second and all other posts supporting the top of the left side of the BTCO bus were
completely smashed and half of the back wall to the left was ripped open. (Exhibits 1
and 2). The BTCO bus suffered damages for the repair of its damaged portion.
As a consequence of this occurrence, two (2) passengers of BTCO died, namely, Pedro
Caguimbal and Guillermo Tolentino, apart from others who were injured. The widow and
children of Caguimbal instituted the present action, which was tried jointly with a similar
action of the Tolentinos, to recover damages from the Batangas Transportation Company,
hereinafter referred to as BTCO. The latter, in turn, filed a third-party complaint against the
Bian Transportation Company hereinafter referred to as Bian and its driver,
Marciano Ilagan. Subsequently, the Caguimbals amended their complaint, to include
therein, as defendants, said Bian and Ilagan.
After appropriate proceedings, the Court of First Instance of Batangas rendered a decision
dismissing the complaint insofar as the BTCO is concerned, without prejudice to plaintiff's
right to sue Bian which had stopped participating in the proceedings herein, owing
apparently, to a case in the Court of First Instance of Laguna for the insolvency of said
enterprise and Ilagan, and without pronouncement as to costs.
On appeal taken by the Caguimbals, the Court of Appeals reversed said decision and
rendered judgment for them, sentencing the BTCO, Bian and Ilagan to, jointly and
severally, pay to the plaintiffs the aggregate sum of P10,500.00
1
and the costs in both
instances. Hence, this appeal by BTCO, upon the ground that the Court of Appeals erred:
1) in finding said appellant liable for damages; and 2) in awarding attorney's fees.
In connection with the first assignment of error, we note that the recklessness of
defendant was, manifestly, a major factor in the occurrence of the accident which
resulted, inter alia, in the death of Pedro Caguimbal. Indeed, as driver of the Bian bus,
he overtook Benito Makahiya's horse-driven rig or calesa and passed between the same
and the BTCO bus despite the fact that the space available was not big enough therefor,
in view of which the Bian bus hit the left side of the BTCO bus and then the calesa. This
notwithstanding, the Court of Appeals rendered judgment against the BTCO upon the
ground that its driver, Tomas Perez, had failed to exercise the "extraordinary diligence,"
required in Article 1733 of the new Civil Code, "in the vigilance for the safety" of his
passengers.
2

The record shows that, in order to permit one of them to disembark, Perez drove his
BTCO bus partly to the right shoulder of the road and partly on the asphalted portion
thereof. Yet, he could have and should have seen to it had he exercised "extraordinary
diligence" that his bus was completely outside the asphalted portion of the road, and
fully within the shoulder thereof, the width of which being more than sufficient to
accommodate the bus. He could have and should have done this, because, when the
aforementioned passenger expressed his wish to alight from the bus, Ilagan had seen the
aforementioned "calesa", driven by Makahiya, a few meters away, coming from the
opposite direction, with the Bian bus about 100 meters behind the rig cruising at a good
speed.
3
When Perez slowed down his BTCO bus to permit said passenger to disembark,
he must have known, therefore, that the Bian bus would overtake the calesa at about the
time when the latter and BTCO bus would probably be on the same line, on opposite
sides of the asphalted portions of the road, and that the space between the BTCO bus
and the "calesa" would not be enough to allow the Bian bus to go through. It is true that
the driver of the Bian bus should have slowed down or stopped, and, hence, was
reckless in not doing so; but, he had no especial obligations toward the passengers of the
BTCO unlike Perez whose duty was to exercise "utmost" or "extraordinary" diligence for
their safety. Perez was thus under obligation to avoid a situation which would be
hazardous for his passengers, and, make their safety dependent upon the diligence of the
Bian driver. Such obligation becomes more patent when we considered the fact of
which the Court may take judicial cognizance that our motor vehicle drivers, particularly
those of public service utilities, have not distinguished themselves for their concern over
the safety, the comfort or the convenience of others. Besides, as correctly stated in the
syllabus to Brito Sy vs. Malate Taxicab & Garage, Inc.,
4

In an action based on a contract of carriage, the court need not make an
express finding of fault or negligence on the part of the carrier in order to hold it
responsible to pay the damages sought for by the passenger. By the contract of
carriage, the carrier assumes the express obligation to transport the passenger
to his destination safely and to observe extraordinary diligence with a due regard
for all the circumstances, and any injury that might be suffered by the passenger
is right away attributable to the fault or negligence of the carrier (Article 1756,
new Civil Code). This is an exception to the general rule that negligence must be
proved, and it is therefore incumbent upon the carrier to prove that it has
exercised extraordinary diligence as prescribed in Articles 1733 and 1755 of the
new Civil Code.
In the case at bar, BTCO has not proven the exercise of extraordinary diligence on its
part. For this reason, the case of Isaac vs. A. L. Ammen Trans. Co., Inc.
5
relied upon by
BTCO, is not in point, for, in said case, the public utility driver had done everything he
could to avoid the accident, and could not have possibly avoided it, for he "swerved the
bus to the very extreme right of the road," which the driver, in the present case, had failed
to do.
As regards the second assignment of error, appellant argues that the award of attorney's
fees is not authorized by law, because, of the eleven (11) cases specified in Article 1208
of the new Civil Code, only the fifth and the last are relevant to the one under
consideration; but the fifth case requires bad faith, which does not exist in the case at bar.
As regards the last case, which permits the award, "where the court deems it just and
equitable that attorney's fees . . . should be recovered," it is urged that the evidence on
record does not show the existence of such just and equitable grounds.
We, however, believe otherwise, for: (1) the accident in question took place on April 25,
1954, and the Caguimbals have been constrained to litigate for over thirteen (13) years to
vindicate their rights; and (2) it is high time to impress effectively upon public utility
operators the nature and extent of their responsibility in respect of the safety of their
passengers and their duty to exercise greater care in the selection of drivers and
conductor and in supervising the performance of their duties, in accordance, not only with
Article 1733 of the Civil Code of the Philippines, but, also, with Articles 1755 and 1756
thereof
6
and the spirit of these provisions, as disclosed by the letter thereof, and
elucidated by the Commission that drafted the same.
7

WHEREFORE, the decision appealed from, should be, as it is hereby, affirmed, with the
costs of this instance against appellant Batangas Transportation Company.
Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ.,
concur.
Bengzon, J.P., J., took no part.




























G.R. No. L-34597 November 5, 1982
ROSITO Z. BACARRO, WILLIAM SEVILLA, and FELARIO MONTEFALCON,
petitioners,
vs.
GERUNDIO B. CASTAO, and the COURT OF APPEALS, respondents.
RELOVA, J.:
Appeal taken by petitioners from a decision of the Court of Appeals, affirming that of the
Court of First Instance of Misamis Occidental, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered, ordering the defendants to jointly
and severally pay to the plaintiff the sum of (1) P973.10 for medical treatment
and hospitalization; (2) P840.20 for loss of salary during treatment; and (3)
P2,000.00 for partial permanent deformity, with costs against the defendants.
The facts are set forth in the decision of the Court of Appeals, from which We quote:
... In the afternoon of April 1, 1960, he (appellee) boarded the said jeep as a
paying passenger at Oroquieta bound for Jimenez, Misamis Occidental. It was
then fined to capacity, with twelve (12) passengers in all. 'The jeep was running
quite fast and the jeep while approaching the (Sumasap) bridge there was a
cargo truck which blew its horn for a right of way. The jeep gave way but did not
change speed. ... When the jeep gave way it turned to the right and continued
running with the same speed. In so doing ...the driver was not able to return the
jeep to the proper place ... instead, it ran obliquely towards the canal; that is
why, we fell to the ditch. ... When the jeep was running in the side of the road for
few meters, naturally, the jeep was already inclined and two passengers beside
me were the ones who pushed me. I was pushed by the two passengers beside
me; that is why, when I was clinging, my leg and half of my body were outside
the jeep when it reached the canal. ... My right leg was sandwiched by the body
of the jeep and the right side of the ditch. ... My right leg was broken.' He was
rushed to the Saint Mary's Hospital where he stayed for about two (2) months.
'My right leg is now shorter by one and one-half inches causing me to use
specially made shoes. ... I could not squat for a long time; I could not kneel for a
long time; and I could not even sit for a long time because I will suffer cramp. ...
With my three fingers I am still uneasy with my three fingers in my right hand.
There is a feeling of numbness with my three fingers even right now.
xxx xxx xxx
From appellee's version just set out, it appears that after he boarded the jeep in
question at Oroquieta, it was driven by defendant Montefalcon at around forty
(40) kilometers per hour bound for Jimenez; that while approaching Sumasap
Bridge at the said speed, a cargo truck coming from behind blew its horn to
signal its intention to overtake the jeep; that the latter, without changing its
speed, gave way by swerving to the right, such that both vehicles ran side by
side for a distance of around twenty (20) meters, and that thereafter as the jeep
was left behind, its driver was unable to return it to its former lane and instead it
obliquely or diagonally ran down an inclined terrain towards the right until it fell
into a ditch pinning down and crushing appellee's right leg in the process.
Throwing the blame for this accident on the driver of the cargo truck, appellants,
in turn, state the facts to be as follows:
In the afternoon of April 1, 1960, plaintiff Gerundio Castao boarded the said
jeepney at Oroquieta bound for Jimenez, Misamis occidental. While said
jeepney was negotiating the upgrade approach of the Sumasap Bridge at
Jimenez, Misamis Occidental and at a distance of about 44 meters therefrom, a
cargo truck, owned and operated by a certain Te Tiong alias Chinggim, then
driven by Nicostrato Digal, a person not duly licensed to drive motor vehicles,
overtook the jeepney so closely that in the process of overtaking sideswiped the
jeepney, hitting the reserve tire placed at the left side of the jeepney with the
hinge or bolt of the siding of the cargo truck, causing the jeepney to swerve from
its course and after running 14 meters from the road it finally fell into the canal.
The right side of the jeep fell on the right leg of the plaintiff-appellee, crushing
said leg against the ditch resulting in the injury to plaintiff-appellee consisting of
a broken right thigh.
and take the following stand: 'The main defense of defendants appellants is
anchored on the fact that the jeepney was sideswiped by the overtaking cargo
truck' (Appellants' Brief, pp. 3-4, 7).
It must be admitted, out of candor, that there is evidence of the sideswiping
relied upon by appellants. ....
This appeal by certiorari to review the decision of respondent Court of Appeals asserts
that the latter decided questions of substance which are contrary to law and the approved
decisions of this Court. Petitioners alleged that respondent Court of Appeals erred (1) in
finding contributory negligence on the part of jeepney driver appellant Montefalcon for
having raced with the overtaking cargo truck to the bridge instead of slackening its speed,
when the person solely responsible for the sideswiping is the unlicensed driver of the
overtaking cargo truck; (2) in finding the jeepney driver not to have exercised
extraordinary diligence, human care, foresight and utmost. diligence of very cautious
persons, when the diligence required pursuant to Article 1763 of the New Civil Code is
only that of a good father of a family since the injuries were caused by the negligence of a
stranger; and (3) in not considering that appellants were freed from any liability since the
accident was due to fortuitous event - the sideswiping of the jeepney by the overtaking
cargo truck.
We are not persuaded. The fact is, petitioner-driver Montefalcon did not slacken his speed
but instead continued to run the jeep at about forty (40) kilometers per hour even at the
time the overtaking cargo truck was running side by side for about twenty (20) meters and
at which time he even shouted to the driver of the truck. Hereunder is the testimony of
private respondent Gerundio B. Castao on this point:
Q At that time when you rode that jeep on your way to Jimenez, you said that
the jeep was running quite fast for a jeep, is that correct?
A Yes, sir.
xxx xxx xxx
Q When you said that it is quite fast for a jeep, do you mean to tell this Court that
the speed of that jeep could not be made by that particular jeepney?
A It can be made but it will not be very safe for that kind of transportation to run
that kind of speed.
Q What was the speed of that jeep in terms of miles or kilometers per hour?
A About 40 kilometers or about that time during that trip per hour.
Q And you said also that there was a cargo truck that was behind the jeep, is
that correct, while you were already approaching the Sumasap bridge?
A Yes.
xxx xxx xxx
Q How about the speed of that truck as the jeep you were riding was
approaching the Sumasap bridge? What was the speed of that truck, fast or not
fast?
A Naturally, the truck when it asks for a clearance that he will overtake it will run
fast.
xxx xxx xxx
Q Now comparing the speed that you mentioned that the jeep was negotiating in
that place and the cargo truck, which ran faster-the jeep or the cargo truck?
xxx xxx xxx
A Naturally, the truck was a little bit faster because he was able to overtake.
xxx xxx xxx
Q Now, how far more or less was the jeep from the bridge when the truck was
about to or in the process of overtaking the jeep you were riding?
A When the truck was asking for a clearance it was yet about less than 100
meters from the bridge when he was asking for a clearance to overtake.
xxx xxx xxx
Q Do you remember the distance when the truck and the jeep were already side
by side as they approach the bridge in relation to the bridge?
xxx xxx xxx
A They were about fifty meters ... from fifty to thirty meters when they were side
by side from the bridge.
xxx xxx xxx
Q .... You said before that the jeep and the truck were running side by side for a
few meters, is that correct?
A Yes, sir.
Q I am asking you now, how long were they running side by side-the jeep and
the cargo truck?
A About 20 meters, they were running side by side.
Q And after running side by side for 20 meters, the jeep and its passengers went
to the canal?
A Yes.
Q You said on direct examinaton that when the jeep (should be truck) was
blowing its horn and asking for a way, you said that the jeep gave way and
turned to the right and did not recover its position and the jeep fell into the ditch,
is that what you said before?
A The jeep did not recover. It was not able to return to the center of the road. It
was running outside until it reached the canal, running diagonally.
Q When the jeep gave way to the cargo truck, the jeep was at the right side of
the road?
A Already on the right side of the road.
Q And this jeep was running steadily at the right side of the road.
A Yes, sir.
xxx xxx xxx
Q When the jeep gave way to the cargo truck and it kept its path to the right, it
was still able to maintain that path to the right for about twenty meters and while
the jeep and the cargo truck were running side by side?
A Yes.
Q When the truck and the jeep were already running side by side and after
having run twenty meters side by side, do you know why the jeep careened to
the ditch or to the canal?
A I do not know why but I know it slowly got to the canal but I do not know why it
goes there.
xxx xxx xxx
Q You said when the jeep was about to be lodged in the canal, you stated that
the jeep was running upright, is that a fact?
A Yes.
Q So that the terrain was more or less level because the jeep was already
running upright, is that not correct?
A The jeep was running on its wheels but it is running on the side, the side was
inclining until it reached the ditch.
Q You mean to tell the Court that from the entire of the fifteen meters distance
from the side of the road up to the place where the jeep was finally lodged that
place is inclining towards the right?
A When the jeep left the road it was already inclining because it was running
part side of the road which is inclining. (Transcript of March 25 and 26, 1963).
Thus, had Montefalcon slackened the speed of the jeep at the time the truck was
overtaking it, instead of running side by side with the cargo truck, there would have been
no contact and accident. He should have foreseen that at the speed he was running, the
vehicles were getting nearer the bridge and as the road was getting narrower the truck
would be to close to the jeep and would eventually sideswiped it. Otherwise stated, he
should have slackened his jeep when he swerved it to the right to give way to the truck
because the two vehicles could not cross the bridge at the same time.
The second assigned error is centered on the alleged failure on the part of the jeepney
driver to exercise extraordinary diligence, human care, foresight and utmost diligence of a
very cautious person, when the diligence required pursuant to Article 1763 of the Civil
Code is only that of a good father of a family. Petitioners contend that the proximate cause
of the accident was the negligence of the driver of the truck. However, the fact is, there
was a contract of carriage between the private respondent and the herein petitioners in
which case the Court of Appeals correctly applied Articles 1733, 1755 and 1766 of the
Civil Code which require the exercise of extraordinary diligence on the part of petitioner
Montefalcon.
Art. 1733. Common carriers, from the nature of their business and for
reasons of public policy, are bound to observe extraordinary diligence
in the vigilance over the goods and for the safety of the passengers
transported by them, according to all the circumstances of each case.
Art. 1755. A common carrier is bound to carry the Passengers safely
as far as human care and foresight can provide, using the utmost
diligence of very cautious persons, with a due regard for all the
circumstances.
Art. 1766. In all matters not regulated by this Code, the rights and
obligations of common carriers shall be governed by the Code of
Commerce and by special laws.
Indeed, the hazards of modern transportation demand extraordinary diligence. A common
carrier is vested with public interest. Under the new Civil Code, instead of being required
to exercise mere ordinary diligence a common carrier is exhorted to carry the passengers
safely as far as human care and foresight can provide "using the utmost diligence of very
cautious persons." (Article 1755). Once a passenger in the course of travel is injured, or
does not reach his destination safely, the carrier and driver are presumed to be at fault.
The third assigned error of the petitioners would find fault upon respondent court in not
freeing petitioners from any liability, since the accident was due to a fortuitous event. But,
We repeat that the alleged fortuitous event in this case - the sideswiping of the jeepney by
the cargo truck, was something which could have been avoided considering the
narrowness of the Sumasap Bridge which was not wide enough to admit two vehicles. As
found by the Court of Appeals, Montefalcon contributed to the occurrence of the mishap.
WHEREFORE, the decision of the respondent Court of Appeals, dated September
30,1971, is hereby AFFIRMED. With costs.
SO ORDERED.
Melencio-Herrera, ** Plana, Vasquez and Gutierrez, Jr., JJ., concur.
Teehankee, J., is on leave.











G.R. No. L-30309 November 25, 1983
CLEMENTE BRIAS, petitioner, vs.
THE PEOPLE OF THE PHILIPPINES and HONORABLE COURT OF
APPEALS, respondents.
GUTIERREZ, JR., J.:
This is a petition to review the decision of respondent Court of Appeals, now Intermediate
Appellate Court, affirming the decision of the Court of First Instance of Quezon, Ninth
Judicial District, Branch 1, which found the accused Clemente Brias guilty of the crime of
DOUBLE HOMICIDE THRU RECKLESS IMPRUDENCE prior the deaths of Martina Bool
and Emelita Gesmundo.
The information charged the accused-appellant. and others as follows:
That on or about the 6th day of January, 1957, in the Municipality of Tiaong, Province of
Quezon, Philippines, and within the jurisdiction of this Hon. Court, the said accused Victor
Milan, Clemente Brias and Hermogenes Buencamino, being then persons in charge of
passenger Train No. 522-6 of the Manila Railroad Company, then running from
Tagkawayan to San Pablo City, as engine driver, conductor and assistant conductor,
respectively, wilfully and unlawfully drove and operated the same in a negligent, careless
and imprudent manner, without due regard to existing laws, regulations and ordinances,
that although there were passengers on board the passenger coach, they failed to provide
lamps or lights therein, and failed to take the necessary precautions for the safety of
passengers and to prevent accident to persons and damage to property, causing by such
negligence, carelessness and imprudence, that when said passenger Train No. 522-6 was
passing the railroad tracks in the Municipality of Tiaong, Quezon, two of its passengers,
Martina Bool, an old woman, and Emelita Gesmundo, a child about three years of age, fell
from the passenger coach of the said train, as a result of which, they were over run,
causing their instantaneous death. "
The facts established by the prosecution and accepted by the respondent court as basis
for the decision are summarized as follows:
The evidence of the prosecution tends to show that in the afternoon of January 6, 1957,
Juanito Gesmundo bought a train ticket at the railroad station in Tagkawayan, Quezon for
his 55-year old mother Martina Bool and his 3-year old daughter Emelita Gesmundo, who
were bound for Barrio Lusacan, Tiaong, same province. At about 2:00 p.m., Train No. 522
left Tagkawayan with the old woman and her granddaughter among the passengers. At
Hondagua the train's complement were relieved, with Victor Millan taking over as
engineman, Clemente Brias as conductor, and Hermogenes Buencamino as assistant
conductor. Upon approaching Barrio Lagalag in Tiaong at about 8:00 p.m. of that same
night, the train slowed down and the conductor shouted 'Lusacan', 'Lusacan'. Thereupon,
the old woman walked towards the left front door facing the direction of Tiaong, carrying
the child with one hand and holding her baggage with the other. When Martina and
Emelita were near the door, the train suddenly picked up speed. As a result the old
woman and the child stumbled and they were seen no more. It took three minutes more
before the train stopped at the next barrio, Lusacan, and the victims were not among the
passengers who disembarked thereat .t.hqw
Next morning, the Tiaong police received a report that two corpses were found
along the railroad tracks at Barrio Lagalag. Repairing to the scene to investigate,
they found the lifeless body of a female child, about 2 feet from the railroad
tracks, sprawled to the ground with her belly down, the hand resting on the
forehead, and with the back portion of the head crushed. The investigators also
found the corpse of an old woman about 2 feet away from the railroad tracks
with the head and both legs severed and the left hand missing. The head was
located farther west between the rails. An arm was found midway from the body
of the child to the body of the old woman. Blood, pieces of scattered brain and
pieces of clothes were at the scene. Later, the bodies were Identified as those of
Martina Bool and Emelita Gesmundo. Among the personal effects found on
Martina was a train ticket (Exhibits "B").
On January 7, 1957, the bodies of the deceased were autopsied by Dr. Pastor Huertas,
the Municipal Health Officer of Tiaong. Dr. Huertas testified on the cause of death of the
victims as follows: t.hqw
FISCAL YNGENTE:
Q What could have caused the death of those women?
A Shock.
Q What could have caused that shock?
A Traumatic injury.
Q What could have caused traumatic injury?
A The running over by the wheel of the train.
Q With those injuries, has a person a chance to survive?
A No chance to survive.
Q What would you say death would come?
A Instantaneous.
Q How about the girl, the young girl about four years old, what could have caused the
death?
A Shock too.
Q What could have caused the shock?
A Compound fracture of the skull and going out of the brain.
Q What could have caused the fracture of the skull and the going out of the brain?
A That is the impact against a steel object. (TSN., pp. 81-82, July 1, 1959)
The Court of First Instance of Quezon convicted defendant-appellant Clemente Brias for
double homicide thru reckless imprudence but acquitted Hermogenes Buencamino and
Victor Millan The dispositive portion of the decision reads: t.hqw
WHEREFORE, the court finds the defendant Clemente Brias guilty beyond
doubt of the crime of double homicide thru reckless imprudence, defined and
punished under Article 305 in connection with Article 249 of the Revised Penal
Code, and sentences him to suffer six (6) months and one (1) day ofprision
correccional to indemnify the heirs of the deceased Martina Bool and Emelita
Gesmundo in the amounts of P6,000 and P3,000, respectively, with subsidiary
imprisonment in case of insolvency not to exceed one-third of the principal
penalty, and to pay the costs.
For lack of sufficient evidence against the defendant Hermogenes Buencamino
and on the ground of reasonable doubt in the case of defendant Victor Millan the
court hereby acquits them of the crime charged in the information and their bail
bonds declared cancelled.
As to the responsibility of the Manila Railroad Company in this case, this will be
the subject of court determination in another proceeding.
On appeal, the respondent Court of Appeals affirmed the judgment of the lower court.
During the pendency of the criminal prosecution in the Court of First Instance of Quezon,
the heirs of the deceased victims filed with the same court, a separate civil action for
damages against the Manila Railroad Company entitled "Civil Case No. 5978, Manaleyo
Gesmundo, et al., v. Manila Railroad Company". The separate civil action was filed for the
recovery of P30,350.00 from the Manila Railroad Company as damages resulting from the
accident.
The accused-appellant alleges that the Court of Appeals made the following errors in its
decision:
I. THE HONORABLE COURT OF APPEALS ERRED IN CONVICTING PETITIONER-
APPELLANT UNDER THE FACTS AS FOUND BY SAID COURT; and
II .THE HONORABLE COURT OF APPEALS ERRED IN INCLUDING THE PAYMENT OF
DEATH INDEMNITY BY THE PETITIONER- APPELLANT, WITH SUBSIDIARY
IMPRISONMENT IN CASE OF INSOLVENCY, AFTER THE HEIRS OF THE DECEASED
HAVE ALREADY COMMENCED A SEPARATE CIVIL ACTION FOR DAMAGES
AGAINST THE RAILROAD COMPANY ARISING FROM THE SAME MISHAP.
We see no error in the factual findings of the respondent court and in the conclusion
drawn from those findings.
It is undisputed that the victims were on board the second coach where the petitioner-
appellant was assigned as conductor and that when the train slackened its speed and the
conductor shouted "Lusacan, Lusacan", they stood up and proceeded to the nearest exit.
It is also undisputed that the train unexpectedly resumed its regular speed and as a result
"the old woman and the child stumbled and they were seen no more.
In finding petitioner-appellant negligent, respondent Court t.hqw
xxx xxx xxx
The appellant's announcement was premature and erroneous, for it
took a full three minutes more before the next barrio of Lusacan was
reached. In making the erroneous and premature announcement,
appellant was negligent. He ought to have known that train passengers
invariably prepare to alight upon notice from the conductor that the
destination was reached and that the train was about to stop. Upon the
facts, it was the appellant's negligent act which led the victims to the
door. Said acts virtually exposed the victims to peril, for had not the
appellant mistakenly made the announcement, the victims would be
safely ensconced in their seats when the train jerked while picking up
speed, Although it might be argued that the negligent act of the
appellant was not the immediate cause of, or the cause nearest in time
to, the injury, for the train jerked before the victims stumbled, yet in
legal contemplation appellant's negligent act was the proximate cause
of the injury. As this Court held in Tucker v. Milan, CA G.R. No. 7059-
R, June 3, 1953: 'The proximate cause of the injury is not necessarily
the immediate cause of, or the cause nearest in time to, the injury. It is
only when the causes are independent of each other that the nearest is
to be charged with the disaster. So long as there is a natural, direct
and continuous sequence between the negligent act the injury (sic)
that it can reasonably be said that but for the act the injury could not
have occurred, such negligent act is the proximate cause of the injury,
and whoever is responsible therefore is liable for damages resulting
therefrom. One who negligently creates a dangerous condition cannot
escape liability for the natural and probable consequences thereof,
although the act of a third person, or an act of God for which he is not
responsible intervenes to precipitate the loss.
xxx xxx xxx
It is a matter of common knowledge and experience about common carriers like trains and
buses that before reaching a station or flagstop they slow down and the conductor
announces the name of the place. It is also a matter of common experience that as the
train or bus slackens its speed, some passengers usually stand and proceed to the
nearest exit, ready to disembark as the train or bus comes to a full stop. This is especially
true of a train because passengers feel that if the train resumes its run before they are
able to disembark, there is no way to stop it as a bus may be stopped.
It was negligence on the conductor's part to announce the next flag stop when said stop
was still a full three minutes ahead. As the respondent Court of Appeals correctly
observed, "the appellant's announcement was premature and erroneous.
That the announcement was premature and erroneous is shown by the fact that
immediately after the train slowed down, it unexpectedly accelerated to full speed.
Petitioner-appellant failed to show any reason why the train suddenly resumed its regular
speed. The announcement was made while the train was still in Barrio Lagalag.
The proximate cause of the death of the victims was the premature and erroneous
announcement of petitioner' appelant Brias. This announcement prompted the victims to
stand and proceed to the nearest exit. Without said announcement, the victims would
have been safely seated in their respective seats when the train jerked as it picked up
speed. The connection between the premature and erroneous announcement of
petitioner-appellant and the deaths of the victims is direct and natural, unbroken by any
intervening efficient causes.
Petitioner-appellant also argues that it was negligence per se for Martina Bool to go to the
door of the coach while the train was still in motion and that it was this negligence that
was the proximate cause of their deaths.
We have carefully examined the records and we agree with the respondent court that the
negligence of petitioner-appellant in prematurely and erroneously announcing the next
flag stop was the proximate cause of the deaths of Martina Bool and Emelita Gesmundo.
Any negligence of the victims was at most contributory and does not exculpate the
accused from criminal liability.
With respect to the second assignment of error, the petitioner argues that after the heirs of
Martina Bool and Emelita Gesmundo had actually commenced the separate civil action for
damages in the same trial court during the pendency of the criminal action, the said court
had no more power to include any civil liability in its judgment of conviction.
The source of the obligation sought to be enforced in Civil Case No. 5978 is culpa
contractual, not an act or omission punishable by law. We also note from the appellant's
arguments and from the title of the civil case that the party defendant is the Manila
Railroad Company and not petitioner-appellant Brias Culpa contractual and an act or
omission punishable by law are two distinct sources of obligation.
The petitioner-appellant argues that since the information did not allege the existence of
any kind of damages whatsoever coupled by the fact that no private prosecutors appeared
and the prosecution witnesses were not interrogated on the issue of damages, the trial
court erred in awarding death indemnity in its judgment of conviction.
A perusal of the records clearly shows that the complainants in the criminal action for
double homicide thru reckless imprudence did not only reserve their right to file an
independent civil action but in fact filed a separate civil action against the Manila Railroad
Company.
The trial court acted within its jurisdiction when, despite the filing with it of the separate
civil action against the Manila Railroad Company, it still awarded death indemnity in the
judgment of conviction against the petitioner-appellant.
It is well-settled that when death occurs as a result of the commission of a crime, the
following items of damages may be recovered: (1) an indemnity for the death of the victim;
(2) an indemnity for loss of earning capacity of the deceased; (3) moral damages; (4)
exemplary damages; (5) attorney's fees and expenses of litigation, and (6) interest in
proper cases.
The indemnity for loss of earning capacity, moral damages, exemplary damages,
attorney's fees, and interests are recoverable separately from and in addition to the fixed
slim of P12,000.00 corresponding to the indemnity for the sole fact of death. This
indemnity arising from the fact of death due to a crime is fixed whereas the others are still
subject to the determination of the court based on the evidence presented. The fact that
the witnesses were not interrogated on the issue of damages is of no moment because
the death indemnity fixed for death is separate and distinct from the other forms of
indemnity for damages.
WHEREFORE, the judgment appealed from is modified in that the award for death
indemnity is increased to P12,000.00 for the death of Martina Bool instead of P6,000.00
and P12,000.00 for the death of Emelita Gesmundo instead of P3,000.00, but deleting the
subsidiary imprisonment in case of insolvency imposed by the lower court. The judgment
is AFFIRMED in all other respects.
SO ORDERED.1wph1.t
Teehankee (Chairman), Melencio-Herrera; Plana and Relova, JJ., concur.













G.R. Nos. 74387-90 November 14, 1988
BATANGAS LAGUNA TAYABAS BUS COMPANY & ARMANDO PON, petitioners, vs.
INTERMEDIATE APPELLATE COURT, THE HEIRS OF PAZ VDA. DE PAMFILO, THE
HEIRS OF NORMA NERI, and BAYLON SALES and NENA VDA. DE
ROSALES, respondents.
PARAS, J.:
Before Us is a Petition to Review by Certiorari, the decision
1
of the respondent appellate
court which affirmed with modification the joint decision of the trial court in four (4) cases
involving similar facts and issues, finding favorably for the plaintiffs (private respondents
herein), the dispositive portion of said appellate judgment reading as follows:
WHEREFORE, with the modification that the death indemnity is raised to
P30,000.00 to each set of the victims' heirs, the rest of the judgment appealed
from is hereby affirmed in toto. Costs against the defendants-appellants.
SO ORDERED. (p. 20, Rollo)
From the records of the case We have gathered the following antecedent facts:
The collision between Bus No. 1046 of the Batangas Laguna Tayabas Bus Company
(BLTB, for brevity) driven by Armando Pon and Bus No. 404 of Superlines Transportation
Company (Superlines, for brevity) driven by Ruben Dasco took place at the highway
traversing Barangay Isabong, Tayabas, Quezon in the afternoon of August 11, 1978,
which collision resulted in the death of Aniceto Rosales, Francisco Pamfilo and Romeo
Neri and in several injuries to Nena Rosales (wife of Anecito) and Baylon Sales, all
passengers of the BLTB Bus No. 1046. The evidence shows that as BLTB Bus No. 1046
was negotiating the bend of the highway, it tried to overtake a Ford Fiera car just as Bus
No. 404 of Superlines was coming from the opposite direction. Seeing thus, Armando Pon
(driver of the BLTB Bus) made a belated attempt to slacken the speed of his bus and tried
to return to his proper lane. It was an unsuccessful try as the two (2) buses collided with
each other.
Nena Vda. de Rosales and Baylon Sales and the surviving heirs of the deceased
Francisco Pamfilo, Aniceto Rosales and Romeo Neri instituted separate cases in the
Court of First Instance of Marinduque against BLTB and Superlines together with their
respective drivers praying for damages, attorney's fees and litigation expenses plus costs.
Criminal cases against the drivers of the two buses were filed in the Court of First Instance
of Quezon.
Defendants BLTB and Superlines, together with their drivers Pon and Dasco, denied
liability by claiming that they exercised due care and diligence and shifted the fault,
against each other. They all interposed counterclaims against the plaintiffs and
crossclaims against each other.
After trial on the merits, the lower court exonerated defendants Superlines and its driver
Dasco from liability and attributed sole responsibility to defendants BLTB and its driver
Pon, and ordered them jointly and severally to pay damages to the plaintiffs. Defendants
BLTB and Armando Pon appealed from the decision of the lower court to respondent
appellate court which affirmed with modification the judgment of the lower court as earlier
stated.
Hence, this petition to review by certiorari of defendant BLTB assigning a lone error, to
wit:
THE INTERMEDIATE APPELLATE COURT ERRED IN ADJUDGING THAT
THE ACTIONS OF PRIVATE RESPONDENTS ARE BASED ON CULPA
CONTRACTUAL. (p. 12, Rollo)
It is argued by petitioners that if the intention of private respondents were to file an action
based on culpa contractual or breach of contract of carriage, they could have done so by
merely impleading BLTB and its driver Pon. As it was in the trial court, private
respondents filed an action against all the defendants basing their action onculpa
aquiliana or tort.
Petitioners' contentions deserve no merit. A reading of the respondent court's decision
shows that it anchored petitioners' liability both on culpa contractual and culpa aquiliana,
to wit:
The proximate cause of the collision resulting in the death of three and injuries to
two of the passengers of BLTB was the negligence of the driver of the BLTB
bus, who recklessly operated and drove said bus by overtaking a Ford Fiera car
as he was negotiating the ascending bend of the highway (tsn, October 4, 1979,
pp. 9-10, 35, 36, 61; Exhibit 6 Superlines, p. 47) which was divided into two
lanes by a continuous yellow strip (tsn, October 4, 1979, p. 36). The driver of the
BLTB bus admitted in his cross-examination that the continuous yellow line on
the ascending bend of the highway signifies a no-overtaking zone (tsn, October
4, 1979, p. 36). It is no surprise then that the driver of the Superlines bus was
exonerated by the lower court. He had a valid reason to presuppose that no one
would overtake in such a dangerous situation. These facts show that patient
imprudence of the BLTB driver.
It is well settled that a driver abandoning his proper lane for the purpose of
overtaking another vehicle in ordinary situation has the duty to see that the road
is clear and not to proceed if he can not do so in safety (People v. Enriquez, 40
O.G. No. 5, 984).
... Before attempting to pass the vehicle ahead, the rear driver must see that the
road is clear and if there is no sufficient room for a safe passage, or the driver
ahead does not turn out so as to afford opportunity to pass, or if, after attempting
to pass, the driver of the overtaking vehicle finds that he cannot make the
passage in safety, the latter must slacken his speed so as to avoid the danger of
a collision, even bringing his car to a stop if necessary. (3-4 Huddy Encyclopedia
of Automobile Law, Sec. 212, p. 195).
The above rule becomes more particularly applicable in this case when the
overtaking took place on an ascending curved highway divided into two lanes by
a continuous yellow line. Appellant Pon should have remembered that:
When a motor vehicle is approaching or rounding a curve there is special
necessity for keeping to the right side of the road and the driver has not the right
to drive on the left hand side relying upon having time to turn to the right if a car
is approaching from the opposite direction comes into view. (42 C.J. 42 906).
Unless there is proof to the contrary, it is presumed that a person driving a motor
vehicle has been negligent if at the time of the mishap, he was violating any
traffic regulation. (Art. 2165, Civil Code).
In failing to observe these simple precautions, BLTB's driver undoubtedly failed
to act with the diligence demanded by the circumstances.
We now come to the subject of liability of the appellants.
For his own negligence in recklessly driving the truck owned by his employer,
appellant Armando Pon is primarily liable (Article 2176, Civil
Code).<re||an1w>
On the other hand the liability of Pon's employer, appellant BLTB, is also
primary, direct and immediate in view of the fact that the death of or injuries to its
passengers was through the negligence of its employee (Marahan v. Mendoza,
24 SCRA 888, 894), and such liability does not cease even upon proof that
BLTB had exercised all the diligence of a good father of a family in the selection
and supervision of its employees (Article 1759, Civil Code).
The common carrier's liability for the death of or injuries to its passengers is
based on its contractual obligation to carry its passengers safely to their
destination. That obligation is so serious that the Civil Code requires "utmost
diligence of very cautious person (Article 1755, Civil Code). They are presumed
to have been at fault or to have acted negligently unless they prove that they
have observed extraordinary diligence" (Article 1756, Civil Code). In the present
case, the appellants have failed to prove extraordinary diligence. Indeed, this
legal presumption was confirmed by the fact that the bus driver of BLTB was
negligent. It must follow that both the driver and the owner must answer for
injuries or death to its passengers.
The liability of BLTB is also solidarily with its driver (Viluan v. Court of Appeals,
16 SCRA 742, 747) even though the liability of the driver springs from quasi
delict while that of the bus company from contract. (pp. 17-19, Rollo)
Conclusively therefore in consideration of the foregoing findings of the respondent
appellate court it is settled that the proximate cause of the collision resulting in the death
of three and injuries to two of the passengers of BLTB was the sole negligence of the
driver of the BLTB Bus, who recklessly operated and drove said bus in a lane where
overtaking is not allowed by Traffic Rules and Regulations. Such negligence and
recklessness is binding against petitioner BLTB, more so when We consider the fact that
in an action based on a contract of carriage, the court need not make an express finding
of fault or negligence on the part of the carrier in order to hold it responsible for the
payment of the damages sought by the passenger. By the contract of carriage, the carrier
BLTB assumed the express obligation to transport the passengers to their destination
safely and to observe extraordinary diligence with a due regard for all the circumstances,
and any injury that might be suffered by its passengers is right away attributable to the
fault or negligence of the carrier (Art. 1756, New Civil Code).
Petitioners also contend that "a common carrier is not an absolute insurer against all risks
of travel and are not liable for acts or accidents which cannot be foreseen or inevitable
and that responsibility of a common carrier for the safety of its passenger prescribed in
Articles 1733 and 1755 of the New Civil Code is not susceptible of a precise and definite
formulation." (p. 13, Rollo) Petitioners' contention holds no water because they had totally
failed to point out any factual basis for their defense of force majeure in the light of the
undisputed fact that the cause of the collision was the sole
negligence and recklessness of petitioner Armando Pon. For the defense of force
majeure or act of God to prosper the accident must be due to natural causes and
exclusively without human intervention.
WHEREFORE, premises considered, the appealed decision is hereby AFFIRMED.
SO ORDERED.















[G.R. No. 122039. May 31, 2000]
VICENTE CALALAS, petitioner, vs. COURT OF APPEALS, ELIZA JUJEURCHE
SUNGA and FRANCISCO SALVA, respondents.
MENDOZA, J.:
This is a petition for review on certiorari of the decision
[1]
of the Court of Appeals, dated
March 31, 1991, reversing the contrary decision of the Regional Trial Court, Branch 36,
Dumaguete City, and awarding damages instead to private respondent Eliza Jujeurche
Sunga as plaintiff in an action for breach of contract of carriage.
The facts, as found by the Court of Appeals, are as follows:
At 10 oclock in the morning of August 23, 1989, private respondent Eliza Jujeurche G.
Sunga, then a college freshman majoring in Physical Education at the Siliman University,
took a passenger jeepney owned and operated by petitioner Vicente Calalas. As the
jeepney was filled to capacity of about 24 passengers, Sunga was given by the conductor
an "extension seat," a wooden stool at the back of the door at the rear end of the
vehicle. Sclaw
On the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to let a
passenger off. As she was seated at the rear of the vehicle, Sunga gave way to the
outgoing passenger. Just as she was doing so, an Isuzu truck driven by Iglecerio Verena
and owned by Francisco Salva bumped the left rear portion of the jeepney. As a result,
Sunga was injured. She sustained a fracture of the "distal third of the left tibia-fibula with
severe necrosis of the underlying skin." Closed reduction of the fracture, long leg circular
casting, and case wedging were done under sedation. Her confinement in the hospital
lasted from August 23 to September 7, 1989. Her attending physician, Dr. Danilo V.
Oligario, an orthopedic surgeon, certified she would remain on a cast for a period of three
months and would have to ambulate in crutches during said period.
On October 9, 1989, Sunga filed a complaint for damages against Calalas, alleging
violation of the contract of carriage by the former in failing to exercise the diligence
required of him as a common carrier. Calalas, on the other hand, filed a third-party
complaint against Francisco Salva, the owner of the Isuzu truck. Korte
The lower court rendered judgment against Salva as third-party defendant and absolved
Calalas of liability, holding that it was the driver of the Isuzu truck who was responsible for
the accident. It took cognizance of another case (Civil Case No. 3490), filed by Calalas
against Salva and Verena, for quasi-delict, in which Branch 37 of the same court held
Salva and his driver Verena jointly liable to Calalas for the damage to his
jeepney. Rtcspped
On appeal to the Court of Appeals, the ruling of the lower court was reversed on the
ground that Sungas cause of action was based on a contract of carriage, not quasi-delict,
and that the common carrier failed to exercise the diligence required under the Civil Code.
The appellate court dismissed the third-party complaint against Salva and adjudged
Calalas liable for damages to Sunga. The dispositive portion of its decision reads:
WHEREFORE, the decision appealed from is hereby REVERSED and SET ASIDE, and
another one is entered ordering defendant-appellee Vicente Calalas to pay plaintiff-
appellant:
(1) P50,000.00 as actual and compensatory damages;
(2) P50,000.00 as moral damages;
(3) P10,000.00 as attorneys fees; and
(4) P1,000.00 as expenses of litigation; and
(5) to pay the costs.
SO ORDERED.
Hence, this petition. Petitioner contends that the ruling in Civil Case No. 3490 that the
negligence of Verena was the proximate cause of the accident negates his liability and
that to rule otherwise would be to make the common carrier an insurer of the safety of its
passengers. He contends that the bumping of the jeepney by the truck owned by Salva
was a caso fortuito. Petitioner further assails the award of moral damages to Sunga on the
ground that it is not supported by evidence. Sdaadsc
The petition has no merit.
The argument that Sunga is bound by the ruling in Civil Case No. 3490 finding the driver
and the owner of the truck liable for quasi-delict ignores the fact that she was never a
party to that case and, therefore, the principle of res judicata does not apply. Missdaa
Nor are the issues in Civil Case No. 3490 and in the present case the same. The issue in
Civil Case No. 3490 was whether Salva and his driver Verena were liable for quasi-delict
for the damage caused to petitioners jeepney. On the other hand, the issue in this case is
whether petitioner is liable on his contract of carriage. The first, quasi-delict, also known
as culpa aquiliana or culpa extra contractual, has as its source the negligence of the
tortfeasor. The second, breach of contract orculpa contractual, is premised upon the
negligence in the performance of a contractual obligation.
Consequently, in quasi-delict, the negligence or fault should be clearly established
because it is the basis of the action, whereas in breach of contract, the action can be
prosecuted merely by proving the existence of the contract and the fact that the obligor, in
this case the common carrier, failed to transport his passenger safely to his
destination.
[2]
In case of death or injuries to passengers, Art. 1756 of the Civil Code
provides that common carriers are presumed to have been at fault or to have acted
negligently unless they prove that they observed extraordinary diligence as defined in
Arts. 1733 and 1755 of the Code. This provision necessarily shifts to the common carrier
the burden of proof. Slxmis
There is, thus, no basis for the contention that the ruling in Civil Case No. 3490, finding
Salva and his driver Verena liable for the damage to petitioners jeepney, should be
binding on Sunga. It is immaterial that the proximate cause of the collision between the
jeepney and the truck was the negligence of the truck driver. The doctrine of proximate
cause is applicable only in actions for quasi-delict, not in actions involving breach of
contract. The doctrine is a device for imputing liability to a person where there is no
relation between him and another party. In such a case, the obligation is created by law
itself. But, where there is a pre-existing contractual relation between the parties, it is the
parties themselves who create the obligation, and the function of the law is merely to
regulate the relation thus created. Insofar as contracts of carriage are concerned, some
aspects regulated by the Civil Code are those respecting the diligence required of
common carriers with regard to the safety of passengers as well as the presumption of
negligence in cases of death or injury to passengers. It provides: Slxsc
Art. 1733. Common carriers, from the nature of their business and for reasons of
public policy, are bound to observe extraordinary diligence in the vigilance over
the goods and for the safety of the passengers transported by them, according
to all the circumstances of each case.
Such extraordinary diligence in the vigilance over the goods is further expressed
in articles 1734, 1735, and 1746, Nos. 5,6, and 7, while the extraordinary
diligence for the safety of the passengers is further set forth in articles 1755 and
1756.
Art. 1755. A common carrier is bound to carry the passengers safely as far as
human care and foresight can provide, using the utmost diligence of very
cautious persons, with due regard for all the circumstances.
Art. 1756. In case of death of or injuries to passengers, common carriers are
presumed to have been at fault or to have acted negligently, unless they prove
that they observed extraordinary diligence as prescribed by articles 1733 and
1755.
In the case at bar, upon the happening of the accident, the presumption of negligence at
once arose, and it became the duty of petitioner to prove that he had to observe
extraordinary diligence in the care of his passengers. Scslx
Now, did the driver of jeepney carry Sunga "safely as far as human care and foresight
could provide, using the utmost diligence of very cautious persons, with due regard for all
the circumstances" as required by Art. 1755? We do not think so. Several factors militate
against petitioners contention. Slx
First, as found by the Court of Appeals, the jeepney was not properly parked, its rear
portion being exposed about two meters from the broad shoulders of the highway, and
facing the middle of the highway in a diagonal angle. This is a violation of the R.A. No.
4136, as amended, or the Land Transportation and Traffic Code, which provides:
Sec. 54. Obstruction of Traffic. - No person shall drive his motor vehicle in such
a manner as to obstruct or impede the passage of any vehicle, nor, while
discharging or taking on passengers or loading or unloading freight, obstruct the
free passage of other vehicles on the highway.
Second, it is undisputed that petitioners driver took in more passengers than the allowed
seating capacity of the jeepney, a violation of 32(a) of the same law. It provides: Mesm
Exceeding registered capacity. - No person operating any motor vehicle shall
allow more passengers or more freight or cargo in his vehicle than its registered
capacity.
The fact that Sunga was seated in an "extension seat" placed her in a peril greater than
that to which the other passengers were exposed. Therefore, not only was petitioner
unable to overcome the presumption of negligence imposed on him for the injury
sustained by Sunga, but also, the evidence shows he was actually negligent in
transporting passengers. Calrky
We find it hard to give serious thought to petitioners contention that Sungas taking an
"extension seat" amounted to an implied assumption of risk. It is akin to arguing that the
injuries to the many victims of the tragedies in our seas should not be compensated
merely because those passengers assumed a greater risk of drowning by boarding an
overloaded ferry. This is also true of petitioners contention that the jeepney being bumped
while it was improperly parked constitutes caso fortuito. A caso fortuito is an event which
could not be foreseen, or which, though foreseen, was inevitable.
[3]
This requires that the
following requirements be present: (a) the cause of the breach is independent of the
debtors will; (b) the event is unforeseeable or unavoidable; (c) the event is such as to
render it impossible for the debtor to fulfill his obligation in a normal manner, and (d) the
debtor did not take part in causing the injury to the creditor.
[4]
Petitioner should have
foreseen the danger of parking his jeepney with its body protruding two meters into the
highway. Kycalr
Finally, petitioner challenges the award of moral damages alleging that it is excessive and
without basis in law. We find this contention well taken.
In awarding moral damages, the Court of Appeals stated: Kyle
Plaintiff-appellant at the time of the accident was a first-year college student in
that school year 1989-1990 at the Silliman University, majoring in Physical
Education. Because of the injury, she was not able to enroll in the second
semester of that school year. She testified that she had no more intention of
continuing with her schooling, because she could not walk and decided not to
pursue her degree, major in Physical Education "because of my leg which has a
defect already."
Plaintiff-appellant likewise testified that even while she was under confinement,
she cried in pain because of her injured left foot. As a result of her injury, the
Orthopedic Surgeon also certified that she has "residual bowing of the fracture
side." She likewise decided not to further pursue Physical Education as her
major subject, because "my left leg x x x has a defect already."
Those are her physical pains and moral sufferings, the inevitable bedfellows of
the injuries that she suffered. Under Article 2219 of the Civil Code, she is entitled
to recover moral damages in the sum of P50,000.00, which is fair, just and
reasonable.
As a general rule, moral damages are not recoverable in actions for damages predicated
on a breach of contract for it is not one of the items enumerated under Art. 2219 of the
Civil Code.
[5]
As an exception, such damages are recoverable: (1) in cases in which the
mishap results in the death of a passenger, as provided in Art. 1764, in relation to Art.
2206(3) of the Civil Code; and (2) in the cases in which the carrier is guilty of fraud or bad
faith, as provided in Art. 2220.
[6]

In this case, there is no legal basis for awarding moral damages since there was no
factual finding by the appellate court that petitioner acted in bad faith in the performance
of the contract of carriage. Sungas contention that petitioners admission in open court
that the driver of the jeepney failed to assist her in going to a nearby hospital cannot be
construed as an admission of bad faith. The fact that it was the driver of the Isuzu truck
who took her to the hospital does not imply that petitioner was utterly indifferent to the
plight of his injured passenger. If at all, it is merely implied recognition by Verena that he
was the one at fault for the accident. Exsm
WHEREFORE, the decision of the Court of Appeals, dated March 31, 1995, and its
resolution, dated September 11, 1995, are AFFIRMED, with the MODIFICATION that the
award of moral damages is DELETED.
SO ORDERED.
Bellosillo, (Chairman), and Buena, JJ., concur.
Quisumbing, and De Leon, Jr., JJ., on leave.




































[G.R. No. 128607. January 31, 2000]
ALFREDO MALLARI SR. and ALFREDO MALLARI JR., petitioners, vs. COURT OF
APPEALS and BULLETIN PUBLISHING CORPORATION, respondents.
BELLOSILLO, J.:
ALFREDO MALLARI SR. and ALFREDO MALLARI JR. in this petition for review
on certiorari seek to set aside the Decision of the Court of Appeals
[1]
which reversed the
court a quo and adjudged petitioners to be liable for damages due to negligence as a
common carrier resulting in the death of a passenger.
On 14 October 1987, at about 5:00 o'clock in the morning, the passenger jeepney driven
by petitioner Alfredo Mallari Jr. and owned by his co-petitioner Alfredo Mallari Sr. collided
with the delivery van of respondent Bulletin Publishing Corp. (BULLETIN, for brevity)
along the National Highway in Barangay San Pablo, Dinalupihan, Bataan. Petitioner
Mallari Jr. testified that he went to the left lane of the highway and overtook a Fiera which
had stopped on the right lane. Before he passed by the Fiera, he saw the van of
respondent BULLETIN coming from the opposite direction. It was driven by one Felix
Angeles. The sketch of the accident showed that the collision occurred after Mallari Jr.
overtook the Fiera while negotiating a curve in the highway. The points of collision were
the left rear portion of the passenger jeepney and the left front side of the delivery van of
BULLETIN. The two (2) right wheels of the delivery van were on the right shoulder of the
road and pieces of debris from the accident were found scattered along the shoulder of
the road up to a certain portion of the lane travelled by the passenger jeepney. The impact
caused the jeepney to turn around and fall on its left side resulting in injuries to its
passengers one of whom was Israel Reyes who eventually died due to the gravity of his
injuries. Manikan
On 16 December 1987 Claudia G. Reyes, the widow of Israel M. Reyes, filed a complaint
for damages with the Regional Trial Court of Olongapo City against Alfredo Mallari Sr. and
Alfredo Mallari Jr., and also against BULLETIN, its driver Felix Angeles, and the N.V.
Netherlands Insurance Company. The complaint alleged that the collision which resulted
in the death of Israel Reyes was caused by the fault and negligence of both drivers of the
passenger jeepney and the Bulletin Isuzu delivery van. The complaint also prayed that the
defendants be ordered jointly and severally to pay plaintiff P1,006,777.40 in compensatory
damages, P40,000.00 for hospital and medical expenses, P18,270.00 for burial expenses
plus such amounts as may be fixed by the trial court for exemplary damages and
attorneys fees.
The trial court found that the proximate cause of the collision was the negligence of Felix
Angeles, driver of the Bulletin delivery van, considering the fact that the left front portion of
the delivery truck driven by Felix Angeles hit and bumped the left rear portion of the
passenger jeepney driven by Alfredo Mallari Jr. Hence, the trial court ordered BULLETIN
and Felix Angeles to pay jointly and severally Claudia G. Reyes, widow of the deceased
victim, the sums of P42,106.93 for medical expenses; P8,600.00 for funeral and burial
expenses; P1,006,777.40 for loss of earning capacity; P5,000.00 for moral damages
and P10,000.00 for attorneys fees. The trial court also ordered N.V. Netherlands
Insurance Company to indemnify Claudia G. Reyes P12,000.00 as death indemnity
and P2,500.00 for funeral expenses which when paid should be deducted from the
liabilities of respondent BULLETIN and its driver Felix Angeles to the plaintiff. It also
dismissed the complaint against the other defendants Alfredo Mallari Sr. and Alfredo
Mallari Jr.
On appeal the Court of Appeals modified the decision of the trial court and found no
negligence on the part of Angeles and consequently of his employer, respondent
BULLETIN. Instead, the appellate court ruled that the collision was caused by the sole
negligence of petitioner Alfredo Mallari Jr. who admitted that immediately before the
collision and after he rounded a curve on the highway, he overtook a Fiera which had
stopped on his lane and that he had seen the van driven by Angeles before overtaking the
Fiera. The Court of Appeals ordered petitioners Mallari Jr. and Mallari Sr. to compensate
Claudia G. Reyes P1,006,777.50 for loss of earning capacity, P50,000.00 as indemnity for
death and P10,000.00 for attorneys fees. It absolved from any liability respondent
BULLETIN, Felix Angeles and N.V. Netherlands Insurance Company. Hence this
petition. Oldmis o
Petitioners contend that there is no evidence to show that petitioner Mallari Jr. overtook a
vehicle at a curve on the road at the time of the accident and that the testimony of
Angeles on the overtaking made by Mallari Jr. was not credible and unreliable. Petitioner
also submits that the trial court was in a better position than the Court of Appeals to
assess the evidence and observe the witnesses as well as determine their credibility;
hence, its finding that the proximate cause of the collision was the negligence of
respondent Angeles, driver of the delivery van owned by respondent BULLETIN, should
be given more weight and consideration.
We cannot sustain petitioners. Contrary to their allegation that there was no evidence
whatsoever that petitioner Mallari Jr. overtook a vehicle at a curve on the road at the time
of or before the accident, the same petitioner himself testified that such fact indeed did
occur -
Q:.......And what was that accident all about?
A:.......Well, what happened, sir, is that at about that time 5:00 oclock in that
morning of October 14 while I was negotiating on the highway at San Pablo,
Dinalupihan, Bataan, I was then following a blue Ford Fierra and my distance
behind was about twenty (20) feet and then I passed that blue Ford Fierra. I
overtook and when I was almost on the right lane of the highway towards
Olongapo City there was an oncoming delivery van of the Bulletin Publishing
Corporation which bumped the left rear portion of the jeepney which I was
driving and as a result of which the jeepney x x x turned around and fell on its
left side and as a result of which some of my passengers including me were
injured, sir x x x x
Q:.......Before you overtook the Ford Fierra jeepney did you look x x x whether
there was any vehicle coming towards you?
A:.......Yes, sir.
Q:.......Did you see the Bulletin van or the Press van coming towards you?
A:.......Yes, sir.
Q:.......At the moment the Ford Fierra xxx stop(ped) and in overtaking the Fierra,
did you not have an option to stop and not to overtake the Ford Fierra?
A:.......Well, at the time when the Ford Fierra stopped in front of me I slowed
down with the intention of applying the brake, however, when I saw the
oncoming vehicle which is the Press van is very far x x x which is 100 feet
distance, x x x it is sufficient to overtake the Ford Fierra so I overt(ook) it x x x x
Q:.......You said that you took into consideration the speed of the oncoming
Press van but you also could not estimate the speed of the press van because it
was dark at that time, which of these statements are true? Ncm
A:.......What I wanted to say, I took into consideration the speed of the oncoming
vehicle, the Press van, although at the moment I could not estimate the speed of
the oncoming vehicle x x x x
[2]

The Court of Appeals correctly found, based on the sketch and spot report of the police
authorities which were not disputed by petitioners, that the collision occurred immediately
after petitioner Mallari Jr. overtook a vehicle in front of it while traversing a curve on the
highway.
[3]
This act of overtaking was in clear violation of Sec. 41, pars. (a) and (b), of RA
4136 as amended, otherwise known as The Land Transportation and Traffic Code which
provides:
Sec. 41. Restrictions on overtaking and passing. - (a) The driver of a vehicle
shall not drive to the left side of the center line of a highway in overtaking or
passing another vehicle proceeding in the same direction, unless such left side
is clearly visible and is free of oncoming traffic for a sufficient distance ahead to
permit such overtaking or passing to be made in safety.
(b) The driver of a vehicle shall not overtake or pass another vehicle proceeding
in the same direction when approaching the crest of a grade, nor upon a curve in
the highway, where the drivers view along the highway is obstructed within a
distance of five hundred feet ahead except on a highway having two or more
lanes for movement of traffic in one direction where the driver of a vehicle may
overtake or pass another vehicle:
Provided That on a highway, within a business or residential district, having two
or more lanes for movement of traffic in one direction, the driver of a vehicle may
overtake or pass another vehicle on the right.
The rule is settled that a driver abandoning his proper lane for the purpose of overtaking
another vehicle in an ordinary situation has the duty to see to it that the road is clear and
not to proceed if he cannot do so in safety.
[4]
When a motor vehicle is approaching or
rounding a curve, there is special necessity for keeping to the right side of the road and
the driver does not have the right to drive on the left hand side relying upon having time to
turn to the right if a car approaching from the opposite direction comes into
view.
[5]
Ncmmis
In the instant case, by his own admission, petitioner Mallari Jr. already saw that the
BULLETIN delivery van was coming from the opposite direction and failing to consider the
speed thereof since it was still dark at 5:00 o'clock in the morning mindlessly occupied the
left lane and overtook two (2) vehicles in front of it at a curve in the highway. Clearly, the
proximate cause of the collision resulting in the death of Israel Reyes, a passenger of the
jeepney, was the sole negligence of the driver of the passenger jeepney, petitioner Alfredo
Mallari Jr., who recklessly operated and drove his jeepney in a lane where overtaking was
not allowed by traffic rules. Under Art. 2185 of the Civil Code, unless there is proof to the
contrary, it is presumed that a person driving a motor vehicle has been negligent if at the
time of the mishap he was violating a traffic regulation. As found by the appellate court,
petitioners failed to present satisfactory evidence to overcome this legal presumption.
The negligence and recklessness of the driver of the passenger jeepney is binding against
petitioner Mallari Sr., who admittedly was the owner of the passenger jeepney engaged as
a common carrier, considering the fact that in an action based on contract of carriage, the
court need not make an express finding of fault or negligence on the part of the carrier in
order to hold it responsible for the payment of damages sought by the passenger. Under
Art. 1755 of the Civil Code, a common carrier is bound to carry the passengers safely as
far as human care and foresight can provide using the utmost diligence of very cautious
persons with due regard for all the circumstances. Moreover, under Art. 1756 of the Civil
Code, in case of death or injuries to passengers, a common carrier is presumed to have
been at fault or to have acted negligently, unless it proves that it observed extraordinary
diligence. Further, pursuant to Art. 1759 of the same Code, it is liable for the death of or
injuries to passengers through the negligence or willful acts of the formers employees.
This liability of the common carrier does not cease upon proof that it exercised all the
diligence of a good father of a family in the selection of its employees. Clearly, by the
contract of carriage, the carrier jeepney owned by Mallari Sr. assumed the express
obligation to transport the passengers to their destination safely and to observe
extraordinary diligence with due regard for all the circumstances, and any injury or death
that might be suffered by its passengers is right away attributable to the fault or
negligence of the carrier. Scnc m
The monetary award ordered by the appellate court to be paid by petitioners to the widow
of the deceased passenger Israel M. Reyes of P1,006,777.50 for loss of earning
capacity, P50,000.00 as civil indemnity for death, and P10,000.00 for attorneys fees, all of
which were not disputed by petitioners, is a factual matter binding and conclusive upon
this Court.
WHEREFORE, the Petition is DENIED and the Decision of the Court of Appeals dated 20
September 1995 reversing the decision of the trial court being in accord with law and
evidence is AFFIRMED. Consequently, petitioners are ordered jointly and severally to pay
Claudia G. Reyes P1,006,777.50 for loss of earning capacity, P50,000.00 as civil
indemnity for death, and P10,000.00 for attorneys fees. Costs against petitioners.
SO ORDERED.
Mendoza, Quisumbing, Buena and De Leon, Jr., concur.2/22/00 9:44 A





G.R. Nos. L-21353 and L-21354 May 20, 1966
GREGORIO ANURAN, MARIA MALIGAYA, LAPAZ LARO, ET AL., petitioners, vs.
PEPITO BUO, PEDRO GAHOL, LUISA ALCANTARA, GUILLERMO RAZON,
ANSELMO MALIGAYA and CEFERINA ARO, respondents.
BENGZON, C.J.:
At noon of January 12, 1958, a passenger jeepney was parked on the road to Taal,
Batangas. A motor truck speeding along, negligently bumped it from behind, with such
violence that three of its passengers died, even as two others (passengers too) suffered
injuries that required their confinement at the Provincial Hospital for many days.
So, in February 1958 these suits were instituted by the representatives of the dead and of
the injured, to recover consequently damages against the driver and the owners of the
truck and also against the driver and the owners of the jeepney.
The Batangas Court of First Instance, after trial, rendered judgment absolving the driver of
the jeepney and its owners, but it required the truck driver and the owners thereof to make
compensation.
The plaintiffs appealed to the Court of Appeals insisting that the driver and the owners of
the jeepney should also be made liable for damages.
The last mentioned court, upon reviewing the record, declared that:
It is admitted that at about noontime on January 13, 1958, the passenger jeepney
owned by defendants spouses Pedro Gahol and Luisa Alcantara, bearing plate No.
TPU-13548, then being driven by their regular driver, defendant Pepito Buo was on
its regular route travelling from Mahabang Ludlud, Taal, Batangas, towards the
poblacion of the said municipality. When said passenger jeepney crossed the bridge
separating Barrios Mahabang Ludlud and Balisong, Taal, Batangas, it had fourteen
passengers, excluding the driver, according to the testimony of defendant Buo (pp.
12 and 18, t.s.n. July 17, 1958), or sixteen passengers according to the testimony of
plaintiff Edita de Sagun, (pp. 9, 12 and 13, t.s.n. June 26, 1958). However, the fact
remains that the vehicle was overloaded with passengers at the time, because
according to the partial stipulation of facts "the maximum capacity of the jeepney
bearing plate No. TPU-13548 of said defendants was eleven (11) passengers
including the driver. (Printed Record on Appeal, pp. 35, 37.)
After crossing the bridge, defendant Buo stopped his vehicle in order to allow one
of his passengers to alight. But he so parked his jeepney in such a way that one-half
of its width (the left wheels) was on the asphalted pavement of the road and the
other half, on the right shoulder of said road (pp. 21-22, t.s.n. May 26, 1958; p. 12
t.s.n. July 17, 1958). Approximately five minutes later and before Buo could start
his vehicle, a speeding water truck, which bore plate No. T-17526 and owned by
defendants-spouses Anselmo Maligaya and Ceferina Aro, then being driven by
Guillermo Razon from the direction of Mahabang Ludlud, Taal, Batangas, towards
the poblacion of that municipality, violently smashed against the parked jeepney
from behind, causing it to turn turtle into a nearby ditch.
Then said Appellate Court went on to affirm the exoneration of the jeepney driver and of
its owners. It explained that although "the driver of the ill-starred vehicle was not free from
fault, for he was guilty of an antecedent negligence in parking his vehicle with a portion
thereof occupying the asphalted road", it considered the truck driver guilty of greater
negligence which was the efficient cause of the collision; and applying the doctrine of the
"last clear chance"
1
said Court ordered the owners of the truck to pay, solidarily with its
driver, damages as follows:
x x x the sum of P6,000.00 for the death of their daughter Emelita, another sum of
P5,000.00 as moral damages and the sum of P500.00 as actual damages, and to
plaintiffs Simplicio, Alberto, Avelina and Alfredo, all surnamed Arriola, and
represented by their guardian ad litem Agustin Arriola, the sum of P6,000.00 for the
death of their natural mother, Leonor Masongsong, another sum of P5,000.00 as
moral damages the sum of P3,600.00 for loss of earning capacity of said deceased
and the sum of P850.00 as actual damages.
The plaintiffs brought the matter to this Supreme Court insisting that the driver and the
owners of the jeepney should also be made liable.
We gave due course to the petition for review, because we thought the decision meant
exoneration of the carrier from liability to its passengers, notwithstanding the negligence of
its driver.
Upon further and more extended consideration of the matter, we have become convinced
that error of law was committed in releasing the jeepney from liability. It must be
remembered that the obligation of the carrier to transport its passengers safely is such
that the New Civil Code requires "utmost diligence" from the carriers (Art. 1755) who are
"presumed to have been at fault or to have acted negligently, unless they prove that they
have observed extraordinary diligence" (Art. 1756). In this instance, this legal presumption
of negligence is confirmed by the Court of Appeals' finding that the driver of the jeepney in
question was at fault in parking the vehicle improperly. It must follow that the driver and
the owners of the jeepney must answer for injuries to its passengers.
The principle about the "last clear chance" would call for application in a suit between the
owners and drivers of the two colliding vehicles. It does not arise where a passenger
demands responsibility from the carrier to enforce its contractual obligations. For it would
be inequitable to exempt the negligent driver of the jeepney and its owners on the ground
that the other driver was likewise guilty of negligence.
Now as to damages. The driver and the owners of the truck have not appealed from the
Court of Appeals' assessment. The plaintiffs (petitioners) have not asked here for a
greater amount of indemnity. They merely pray for a declaration that Pepito Buo, Pedro
Gahol and Luisa Alcantara (the driver and the owners of the jeepney, respectively) be
declared jointly and severally liable with the other defendants.1wph1.t
Wherefore, affirming the decision under review, we hereby modify it in the sense prayed
for by plaintiffs-petitioners. The three defendants last mentioned are required to pay
solidarily with the other defendants-respondents the amounts fixed by the appealed
decision. Costs of both appeals against said three defendants. So ordered.
Bautista Angelo, Concepcion, J.B.L. Reyes, Dizon, Regala, Makalintal and Bengzon, J.P.,
JJ., concur. Barrera, Zaldivar and Sanchez, JJ., took no part.