G.R. No.

L-47822 December 22, 1988

PEDRO DE GUZMAN, petitioner,

vs.

Only 150 boxes of Liberty filled milk were delivered to petitioner. The other
600 boxes never reached petitioner, since the truck which carried these
boxes was hijacked somewhere along the MacArthur Highway in Paniqui,
Tarlac, by armed men who took with them the truck, its driver, his helper
and the cargo.

COURT OF APPEALS and ERNESTO CENDANA, respondents.

Vicente D. Millora for petitioner.

Jacinto Callanta for private respondent.

On 6 January 1971, petitioner commenced action against private

respondent in the Court of First Instance of Pangasinan, demanding
payment of P 22,150.00, the claimed value of the lost merchandise, plus
damages and attorney's fees. Petitioner argued that private respondent,
being a common carrier, and having failed to exercise the extraordinary
diligence required of him by the law, should be held liable for the value of
the undelivered goods.

In his Answer, private respondent denied that he was a common carrier and
argued that he could not be held responsible for the value of the lost goods,
such loss having been due to force majeure.
FELICIANO, J.:

Respondent Ernesto Cendana, a junk dealer, was engaged in buying up

used bottles and scrap metal in Pangasinan. Upon gathering sufficient
quantities of such scrap material, respondent would bring such material to
Manila for resale. He utilized two (2) six-wheeler trucks which he owned for
hauling the material to Manila. On the return trip to Pangasinan, respondent
would load his vehicles with cargo which various merchants wanted
delivered to differing establishments in Pangasinan. For that service,
respondent charged freight rates which were commonly lower than regular
commercial rates.

Sometime in November 1970, petitioner Pedro de Guzman a merchant and

authorized dealer of General Milk Company (Philippines), Inc. in Urdaneta,
Pangasinan, contracted with respondent for the hauling of 750 cartons of
Liberty filled milk from a warehouse of General Milk in Makati, Rizal, to
petitioner's establishment in Urdaneta on or before 4 December 1970.
Accordingly, on 1 December 1970, respondent loaded in Makati the
merchandise on to his trucks: 150 cartons were loaded on a truck driven by
respondent himself, while 600 cartons were placed on board the other truck
which was driven by Manuel Estrada, respondent's driver and employee.

On 10 December 1975, the trial court rendered a Decision 1 finding private

respondent to be a common carrier and holding him liable for the value of
the undelivered goods (P 22,150.00) as well as for P 4,000.00 as damages
and P 2,000.00 as attorney's fees.

On appeal before the Court of Appeals, respondent urged that the trial
court had erred in considering him a common carrier; in finding that he had
habitually offered trucking services to the public; in not exempting him
from liability on the ground of force majeure; and in ordering him to pay
damages and attorney's fees.

The Court of Appeals reversed the judgment of the trial court and held that
respondent had been engaged in transporting return loads of freight "as a
casual
occupation a sideline to his scrap iron business" and not as a common
carrier. Petitioner came to this Court by way of a Petition for Review
assigning as errors the following conclusions of the Court of Appeals:

1.

that private respondent was not a common carrier;

2.

that the hijacking of respondent's truck was force majeure; and

3.
that respondent was not liable for the value of the undelivered
cargo. (Rollo, p. 111)

We consider first the issue of whether or not private respondent Ernesto

Cendana may, under the facts earlier set forth, be properly characterized
as a common carrier.

The Civil Code defines "common carriers" in the following terms:

Article 1732.
Common carriers are persons, corporations, firms or
associations engaged in the business of carrying or transporting
passengers or goods or both, by land, water, or air for compensation,
offering their services to the public.

The above article makes no distinction between one whose principal

business activity is the carrying of persons or goods or both, and one who
does such carrying only as an ancillary activity (in local Idiom as "a
sideline"). Article 1732 also carefully avoids making any distinction
between a person or enterprise offering transportation service on a regular
or scheduled basis and one offering such service on an occasional, episodic
or unscheduled basis. Neither does Article 1732 distinguish between a
carrier offering its services to the "general public," i.e., the general
community or population, and one who offers services or solicits business
only from a narrow segment of the general population. We think that Article
1733 deliberaom making such distinctions.

So understood, the concept of "common carrier" under Article 1732 may be

seen to coincide neatly with the notion of "public service," under the Public
Service Act (Commonwealth Act No. 1416, as amended) which at least

partially supplements the law on common carriers set forth in the Civil
Code. Under Section 13, paragraph (b) of the Public Service Act, "public
service" includes:

... every person that now or hereafter may own, operate, manage, or
control in the Philippines, for hire or compensation, with general or limited
clientele, whether permanent, occasional or accidental, and done for
general business purposes, any common carrier, railroad, street railway,
traction railway, subway motor vehicle, either for freight or passenger, or
both, with or without fixed route and whatever may be its classification,
freight or carrier service of any class, express service, steamboat, or
steamship line, pontines, ferries and water craft, engaged in the
transportation of passengers or freight or both, shipyard, marine repair
shop, wharf or dock, ice plant,
ice-refrigeration plant, canal, irrigation system, gas, electric light, heat and
power, water supply and power petroleum, sewerage system, wire or
wireless communications systems, wire or wireless broadcasting stations
and other similar public services. ... (Emphasis supplied)

It appears to the Court that private respondent is properly characterized as

a common carrier even though he merely "back-hauled" goods for other
merchants from Manila to Pangasinan, although such back-hauling was
done on a periodic or occasional rather than regular or scheduled manner,
and even though private respondent's principal occupation was not the
carriage of goods for others. There is no dispute that private respondent
charged his customers a fee for hauling their goods; that fee frequently fell
below commercial freight rates is not relevant here.

The Court of Appeals referred to the fact that private respondent held no
certificate of public convenience, and concluded he was not a common
carrier. This is palpable error. A certificate of public convenience is not a
requisite for the incurring of liability under the Civil Code provisions
governing common carriers. That liability arises the moment a person or
firm acts as a common carrier, without regard to whether or not such
carrier has also complied with the requirements of the applicable regulatory
statute and implementing regulations and has been granted a certificate of
public convenience or other franchise. To exempt private respondent from
the liabilities of a common carrier because he has not secured the
necessary certificate of public convenience, would be offensive to sound
public policy; that would be to reward private respondent precisely for
failing to comply with applicable statutory requirements. The business of a

common carrier impinges directly and intimately upon the safety and well
being and property of those members of the general community who
happen to deal with such carrier. The law imposes duties and liabilities
upon common carriers for the safety and protection of those who utilize
their services and the law cannot allow a common carrier to render such
duties and liabilities merely facultative by simply failing to obtain the
necessary permits and authorizations.

We turn then to the liability of private respondent as a common carrier.

Common carriers, "by the nature of their business and for reasons of public
policy" 2 are held to a very high degree of care and diligence
("extraordinary diligence") in the carriage of goods as well as of
passengers. The specific import of extraordinary diligence in the care of
goods transported by a common carrier is, according to Article 1733,
"further expressed in Articles 1734,1735 and 1745, numbers 5, 6 and 7" of
the Civil Code.

Article 1734 establishes the general rule that common carriers are
responsible for the loss, destruction or deterioration of the goods which
they carry, "unless the same is due to any of the following causes only:

(1)
Flood, storm, earthquake, lightning or other natural disaster or
calamity;
(2)

Act of the public enemy in war, whether international or civil;

(3)

Act or omission of the shipper or owner of the goods;

In all cases other than those mentioned in numbers 1, 2, 3, 4 and 5 of the

preceding article, if the goods are lost, destroyed or deteriorated, common
carriers are presumed to have been at fault or to have acted negligently,
unless they prove that they observed extraordinary diligence as required in
Article 1733. (Emphasis supplied)

Applying the above-quoted Articles 1734 and 1735, we note firstly that the
specific cause alleged in the instant case the hijacking of the carrier's
truck does not fall within any of the five (5) categories of exempting
causes listed in Article 1734. It would follow, therefore, that the hijacking of
the carrier's vehicle must be dealt with under the provisions of Article 1735,
in other words, that the private respondent as common carrier is presumed
to have been at fault or to have acted negligently. This presumption,
however, may be overthrown by proof of extraordinary diligence on the
part of private respondent.

Petitioner insists that private respondent had not observed extraordinary

diligence in the care of petitioner's goods. Petitioner argues that in the
circumstances of this case, private respondent should have hired a security
guard presumably to ride with the truck carrying the 600 cartons of Liberty
filled milk. We do not believe, however, that in the instant case, the
standard of extraordinary diligence required private respondent to retain a
security guard to ride with the truck and to engage brigands in a firelight at
the risk of his own life and the lives of the driver and his helper.

The precise issue that we address here relates to the specific requirements
of the duty of extraordinary diligence in the vigilance over the goods
carried in the specific context of hijacking or armed robbery.

(4)
The character-of the goods or defects in the packing or-in the
containers; and
(5)

Order or act of competent public authority.

It is important to point out that the above list of causes of loss, destruction
or deterioration which exempt the common carrier for responsibility
therefor, is a closed list. Causes falling outside the foregoing list, even if
they appear to constitute a species of force majeure fall within the scope of
Article 1735, which provides as follows:

As noted earlier, the duty of extraordinary diligence in the vigilance over

goods is, under Article 1733, given additional specification not only by
Articles 1734 and 1735 but also by Article 1745, numbers 4, 5 and 6, Article
1745 provides in relevant part:

Any of the following or similar stipulations shall be considered

unreasonable, unjust and contrary to public policy:

xxx

xxx

xxx

(5)
that the common carrier shall not be responsible for the acts or
omissions of his or its employees;

(6)
that the common carrier's liability for acts committed by thieves,
or of robbers who do not act with grave or irresistible threat, violence or
force, is dispensed with or diminished; and

(7)
that the common carrier shall not responsible for the loss,
destruction or deterioration of goods on account of the defective condition
of the car vehicle, ship, airplane or other equipment used in the contract of
carriage. (Emphasis supplied)

Under Article 1745 (6) above, a common carrier is held responsible and
will not be allowed to divest or to diminish such responsibility even for
acts of strangers like thieves or robbers, except where such thieves or
robbers in fact acted "with grave or irresistible threat, violence or force."
We believe and so hold that the limits of the duty of extraordinary diligence
in the vigilance over the goods carried are reached where the goods are
lost as a result of a robbery which is attended by "grave or irresistible
threat, violence or force."

and later releasing them in another province (in Zambales). The hijacked
truck was subsequently found by the police in Quezon City. The Court of
First Instance convicted all the accused of robbery, though not of robbery in
band. 4

In these circumstances, we hold that the occurrence of the loss must

reasonably be regarded as quite beyond the control of the common carrier
and properly regarded as a fortuitous event. It is necessary to recall that
even common carriers are not made absolute insurers against all risks of
travel and of transport of goods, and are not held liable for acts or events
which cannot be foreseen or are inevitable, provided that they shall have
complied with the rigorous standard of extraordinary diligence.

We, therefore, agree with the result reached by the Court of Appeals that
private respondent Cendana is not liable for the value of the undelivered
merchandise which was lost because of an event entirely beyond private
respondent's control.

ACCORDINGLY, the Petition for Review on certiorari is hereby DENIED and

the Decision of the Court of Appeals dated 3 August 1977 is AFFIRMED. No
pronouncement as to costs.

SO ORDERED.

In the instant case, armed men held up the second truck owned by private
respondent which carried petitioner's cargo. The record shows that an
information for robbery in band was filed in the Court of First Instance of
Tarlac, Branch 2, in Criminal Case No. 198 entitled "People of the Philippines
v. Felipe Boncorno, Napoleon Presno, Armando Mesina, Oscar Oria and one
John Doe." There, the accused were charged with willfully and unlawfully
taking and carrying away with them the second truck, driven by Manuel
Estrada and loaded with the 600 cartons of Liberty filled milk destined for
delivery at petitioner's store in Urdaneta, Pangasinan. The decision of the
trial court shows that the accused acted with grave, if not irresistible,
threat, violence or force. 3 Three (3) of the five (5) hold-uppers were armed
with firearms. The robbers not only took away the truck and its cargo but
also kidnapped the driver and his helper, detaining them for several days

Spouses Dante and Leonora Cruz (petitioners) lodged a Complaint on

January 25, 20011 against Sun Holidays, Inc. (respondent) with the
Regional Trial Court (RTC) of Pasig City for damages arising from the death
of their son Ruelito C. Cruz (Ruelito) who perished with his wife on
September 11, 2000 on board the boat M/B Coco Beach III that capsized en
route to Batangas from Puerto Galera, Oriental Mindoro where the couple
had stayed at Coco Beach Island Resort (Resort) owned and operated by
respondent.

The stay of the newly wed Ruelito and his wife at the Resort from
September 9 to 11, 2000 was by virtue of a tour package-contract with
respondent that included transportation to and from the Resort and the
point of departure in Batangas.

Miguel C. Matute (Matute),2 a scuba diving instructor and one of the

survivors, gave his account of the incident that led to the filing of the
complaint as follows:

Matute stayed at the Resort from September 8 to 11, 2000. He was

originally scheduled to leave the Resort in the afternoon of September 10,
2000, but was advised to stay for another night because of strong winds
and heavy rains.

G.R. No. 186312

June 29, 2010

SPOUSES DANTE CRUZ and LEONORA CRUZ, Petitioners,

On September 11, 2000, as it was still windy, Matute and 25 other Resort
guests including petitioners son and his wife trekked to the other side of
the Coco Beach mountain that was sheltered from the wind where they
boarded M/B Coco Beach III, which was to ferry them to Batangas.

vs.
SUN HOLIDAYS, INC., Respondent.

DECISION

Shortly after the boat sailed, it started to rain. As it moved farther away
from Puerto Galera and into the open seas, the rain and wind got stronger,
causing the boat to tilt from side to side and the captain to step forward to
the front, leaving the wheel to one of the crew members.

CARPIO MORALES, J.:

The waves got more unwieldy. After getting hit by two big waves which
came one after the other, M/B Coco Beach III capsized putting all
passengers underwater.

The passengers, who had put on their life jackets, struggled to get out of
the boat. Upon seeing the captain, Matute and the other passengers who
reached the surface asked him what they could do to save the people who
were still trapped under the boat. The captain replied "Iligtas niyo na lang
ang sarili niyo" (Just save yourselves).

Help came after about 45 minutes when two boats owned by Asia Divers in
Sabang, Puerto Galera passed by the capsized M/B Coco Beach III. Boarded
on those two boats were 22 persons, consisting of 18 passengers and four
crew members, who were brought to Pisa Island. Eight passengers,
including petitioners son and his wife, died during the incident.

At the time of Ruelitos death, he was 28 years old and employed as a

contractual worker for Mitsui Engineering & Shipbuilding Arabia, Ltd. in
Saudi Arabia, with a basic monthly salary of $900.3

Petitioners, by letter of October 26, 2000,4 demanded indemnification from

respondent for the death of their son in the amount of at least P4,000,000.

Replying, respondent, by letter dated November 7, 2000,5 denied any

responsibility for the incident which it considered to be a fortuitous event. It
nevertheless offered, as an act of commiseration, the amount of P10,000 to
petitioners upon their signing of a waiver.

As petitioners declined respondents offer, they filed the Complaint, as

earlier reflected, alleging that respondent, as a common carrier, was guilty
of negligence in allowing M/B Coco Beach III to sail notwithstanding storm
warning bulletins issued by the Philippine Atmospheric, Geophysical and
Astronomical Services Administration (PAGASA) as early as 5:00 a.m. of
September 11, 2000.6

In its Answer,7 respondent denied being a common carrier, alleging that its
boats are not available to the general public as they only ferry Resort
guests and crew members. Nonetheless, it claimed that it exercised the
utmost diligence in ensuring the safety of its passengers; contrary to
petitioners allegation, there was no storm on September 11, 2000 as the
Coast Guard in fact cleared the voyage; and M/B Coco Beach III was not
filled to capacity and had sufficient life jackets for its passengers. By way of
Counterclaim, respondent alleged that it is entitled to an award for
attorneys fees and litigation expenses amounting to not less than
P300,000.

Carlos Bonquin, captain of M/B Coco Beach III, averred that the Resort
customarily requires four conditions to be met before a boat is allowed to
sail, to wit: (1) the sea is calm, (2) there is clearance from the Coast Guard,
(3) there is clearance from the captain and (4) there is clearance from the
Resorts assistant manager.8 He added that M/B Coco Beach III met all four
conditions on September 11, 2000,9 but a subasco or squall, characterized
by strong winds and big waves, suddenly occurred, causing the boat to
capsize.10

By Decision of February 16, 2005,11 Branch 267 of the Pasig RTC dismissed
petitioners Complaint and respondents Counterclaim.

Petitioners Motion for Reconsideration having been denied by Order dated

September 2, 2005,12 they appealed to the Court of Appeals.

By Decision of August 19, 2008,13 the appellate court denied petitioners

appeal, holding, among other things, that the trial court correctly ruled that
respondent is a private carrier which is only required to observe ordinary
diligence; that respondent in fact observed extraordinary diligence in
transporting its guests on board M/B Coco Beach III; and that the proximate
cause of the incident was a squall, a fortuitous event.

Petitioners Motion for Reconsideration having been denied by Resolution

dated January 16, 2009,14 they filed the present Petition for Review.15

Petitioners maintain the position they took before the trial court, adding
that respondent is a common carrier since by its tour package, the
transporting of its guests is an integral part of its resort business. They
inform that another division of the appellate court in fact held respondent
liable for damages to the other survivors of the incident.

Upon the other hand, respondent contends that petitioners failed to present
evidence to prove that it is a common carrier; that the Resorts ferry
services for guests cannot be considered as ancillary to its business as no
income is derived therefrom; that it exercised extraordinary diligence as
shown by the conditions it had imposed before allowing M/B Coco Beach III
to sail; that the incident was caused by a fortuitous event without any
contributory negligence on its part; and that the other case wherein the
appellate court held it liable for damages involved different plaintiffs, issues
and evidence.16

The petition is impressed with merit.

Petitioners correctly rely on De Guzman v. Court of Appeals17 in

characterizing respondent as a common carrier.

only from a narrow segment of the general population. We think that Article
1733 deliberately refrained from making such distinctions.

So understood, the concept of "common carrier" under Article 1732 may be

seen to coincide neatly with the notion of "public service," under the Public
Service Act (Commonwealth Act No. 1416, as amended) which at least
partially supplements the law on common carriers set forth in the Civil
Code. Under Section 13, paragraph (b) of the Public Service Act, "public
service" includes:

. . . every person that now or hereafter may own, operate, manage, or

control in the Philippines, for hire or compensation, with general or limited
clientele, whether permanent, occasional or accidental, and done for
general business purposes, any common carrier, railroad, street railway,
traction railway, subway motor vehicle, either for freight or passenger, or
both, with or without fixed route and whatever may be its classification,
freight or carrier service of any class, express service, steamboat, or
steamship line, pontines, ferries and water craft, engaged in the
transportation of passengers or freight or both, shipyard, marine repair
shop, wharf or dock, ice plant, ice-refrigeration plant, canal, irrigation
system, gas, electric light, heat and power, water supply and power
petroleum, sewerage system, wire or wireless communications systems,
wire or wireless broadcasting stations and other similar public services . . .
18 (emphasis and underscoring supplied.)

The Civil Code defines "common carriers" in the following terms:

Article 1732. Common carriers are persons, corporations, firms or

associations engaged in the business of carrying or transporting
passengers or goods or both, by land, water, or air for compensation,
offering their services to the public.

The above article makes no distinction between one whose principal

business activity is the carrying of persons or goods or both, and one who
does such carrying only as an ancillary activity (in local idiom, as "a
sideline"). Article 1732 also carefully avoids making any distinction
between a person or enterprise offering transportation service on a regular
or scheduled basis and one offering such service on an occasional, episodic
or unscheduled basis. Neither does Article 1732 distinguish between a
carrier offering its services to the "general public," i.e., the general
community or population, and one who offers services or solicits business

Indeed, respondent is a common carrier. Its ferry services are so

intertwined with its main business as to be properly considered ancillary
thereto. The constancy of respondents ferry services in its resort
operations is underscored by its having its own Coco Beach boats. And the
tour packages it offers, which include the ferry services, may be availed of
by anyone who can afford to pay the same. These services are thus
available to the public.

That respondent does not charge a separate fee or fare for its ferry services
is of no moment. It would be imprudent to suppose that it provides said
services at a loss. The Court is aware of the practice of beach resort
operators offering tour packages to factor the transportation fee in arriving
at the tour package price. That guests who opt not to avail of respondents
ferry services pay the same amount is likewise inconsequential. These
guests may only be deemed to have overpaid.

As De Guzman instructs, Article 1732 of the Civil Code defining "common

carriers" has deliberately refrained from making distinctions on whether the
carrying of persons or goods is the carriers principal business, whether it is
offered on a regular basis, or whether it is offered to the general public. The
intent of the law is thus to not consider such distinctions. Otherwise, there
is no telling how many other distinctions may be concocted by
unscrupulous businessmen engaged in the carrying of persons or goods in
order to avoid the legal obligations and liabilities of common carriers.

A very cautious person exercising the utmost diligence would thus not
brave such stormy weather and put other peoples lives at risk. The
extraordinary diligence required of common carriers demands that they
take care of the goods or lives entrusted to their hands as if they were their
own. This respondent failed to do.

Respondents insistence that the incident was caused by a fortuitous event

does not impress either.

Under the Civil Code, common carriers, from the nature of their business
and for reasons of public policy, are bound to observe extraordinary
diligence for the safety of the passengers transported by them, according
to all the circumstances of each case.19 They are 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.20

The elements of a "fortuitous event" are: (a) the cause of the unforeseen
and unexpected occurrence, or the failure of the debtors to comply with
their obligations, must have been independent of human will; (b) the event
that constituted the caso fortuito must have been impossible to foresee or,
if foreseeable, impossible to avoid; (c) the occurrence must have been such
as to render it impossible for the debtors to fulfill their obligation in a
normal manner; and (d) the obligor must have been free from any
participation in the aggravation of the resulting injury to the creditor.24

When a passenger dies or is injured in the discharge of a contract of

carriage, it is presumed that the common carrier is at fault or negligent. In
fact, there is even no need for the court to make an express finding of fault
or negligence on the part of the common carrier. This statutory
presumption may only be overcome by evidence that the carrier exercised
extraordinary diligence.21

To fully free a common carrier from any liability, the fortuitous event must
have been the proximate and only cause of the loss. And it should have
exercised due diligence to prevent or minimize the loss before, during and
after the occurrence of the fortuitous event.25

Respondent nevertheless harps on its strict compliance with the earlier

mentioned conditions of voyage before it allowed M/B Coco Beach III to sail
on September 11, 2000. Respondents position does not impress.

Respondent cites the squall that occurred during the voyage as the
fortuitous event that overturned M/B Coco Beach III. As reflected above,
however, the occurrence of squalls was expected under the weather
condition of September 11, 2000. Moreover, evidence shows that M/B Coco
Beach III suffered engine trouble before it capsized and sank.26 The
incident was, therefore, not completely free from human intervention.

The evidence shows that PAGASA issued 24-hour public weather forecasts
and tropical cyclone warnings for shipping on September 10 and 11, 2000
advising of tropical depressions in Northern Luzon which would also affect
the province of Mindoro.22 By the testimony of Dr. Frisco Nilo, supervising
weather specialist of PAGASA, squalls are to be expected under such
weather condition.23

The Court need not belabor how respondents evidence likewise fails to
demonstrate that it exercised due diligence to prevent or minimize the loss
before, during and after the occurrence of the squall.

Article 176427 vis--vis Article 220628 of the Civil Code holds the common
carrier in breach of its contract of carriage that results in the death of a

passenger liable to pay the following: (1) indemnity for death, (2) indemnity
for loss of earning capacity and (3) moral damages.

of the gross income, the living expenses are fixed at half of the gross
income.

Petitioners are entitled to indemnity for the death of Ruelito which is fixed
at P50,000.29

Applying the above guidelines, the Court determines Ruelito's life

expectancy as follows:

As for damages representing unearned income, the formula for its

computation is:

Life expectancy =

2/3 x [80 - age of deceased at the time of death]

2/3 x [80 - 28]

2/3 x [52]

Net Earning Capacity = life expectancy x (gross annual income - reasonable

and necessary living expenses).

Life expectancy is determined in accordance with the formula:

Life expectancy =

35

Documentary evidence shows that Ruelito was earning a basic monthly

salary of $90035 which, when converted to Philippine peso applying the
annual average exchange rate of $1 = P44 in 2000,36 amounts to P39,600.
Ruelitos net earning capacity is thus computed as follows:

2 / 3 x [80 age of deceased at the time of death]30

Net Earning Capacity
= life expectancy x (gross annual income reasonable and necessary living expenses).
The first factor, i.e., life expectancy, is computed by applying the formula
(2/3 x [80 age at death]) adopted in the American Expectancy Table of
Mortality or the Actuarial of Combined Experience Table of Mortality.31

= 35 x (P475,200 - P237,600)
= 35 x (P237,600)
Net Earning Capacity

The second factor is computed by multiplying the life expectancy by the

net earnings of the deceased, i.e., the total earnings less expenses
necessary in the creation of such earnings or income and less living and
other incidental expenses.32 The loss is not equivalent to the entire
earnings of the deceased, but only such portion as he would have used to
support his dependents or heirs. Hence, to be deducted from his gross
earnings are the necessary expenses supposed to be used by the deceased
for his own needs.33

In computing the third factor necessary living expense, Smith Bell Dodwell
Shipping Agency Corp. v. Borja34 teaches that when, as in this case, there
is no showing that the living expenses constituted the smaller percentage

= P8,316,000

Respecting the award of moral damages, since respondent common

carriers breach of contract of carriage resulted in the death of petitioners
son, following Article 1764 vis--vis Article 2206 of the Civil Code,
petitioners are entitled to moral damages.

Since respondent failed to prove that it exercised the extraordinary

diligence required of common carriers, it is presumed to have acted
recklessly, thus warranting the award too of exemplary damages, which are
granted in contractual obligations if the defendant acted in a wanton,
fraudulent, reckless, oppressive or malevolent manner.37

Under the circumstances, it is reasonable to award petitioners the amount

of P100,000 as moral damages and P100,000 as exemplary
damages.381avvphi1

Pursuant to Article 220839 of the Civil Code, attorney's fees may also be
awarded where exemplary damages are awarded. The Court finds that 10%
of the total amount adjudged against respondent is reasonable for the
purpose.

Finally, Eastern Shipping Lines, Inc. v. Court of Appeals40 teaches that

when an obligation, regardless of its source, i.e., law, contracts, quasicontracts, delicts or quasi-delicts is breached, the contravenor can be held
liable for payment of interest in the concept of actual and compensatory
damages, subject to the following rules, to wit

1. When the obligation is breached, and it consists in the payment of a sum

of money, i.e., a loan or forbearance of money, the interest due should be
that which may have been stipulated in writing. Furthermore, the interest
due shall itself earn legal interest from the time it is judicially demanded. In
the absence of stipulation, the rate of interest shall be 12% per annum to
be computed from default, i.e., from judicial or extrajudicial demand under
and subject to the provisions of Article 1169 of the Civil Code.

3. When the judgment of the court awarding a sum of money becomes final
and executory, the rate of legal interest, whether the case falls under
paragraph 1 or paragraph 2, above, shall be 12% per annum from such
finality until its satisfaction, this interim period being deemed to be by then
an equivalent to a forbearance of credit. (emphasis supplied).

Since the amounts payable by respondent have been determined with

certainty only in the present petition, the interest due shall be computed
upon the finality of this decision at the rate of 12% per annum until
satisfaction, in accordance with paragraph number 3 of the immediately
cited guideline in Easter Shipping Lines, Inc.
WHEREFORE, the Court of Appeals Decision of August 19, 2008 is
REVERSED and SET ASIDE. Judgment is rendered in favor of petitioners
ordering respondent to pay petitioners the following: (1) P50,000 as
indemnity for the death of Ruelito Cruz; (2) P8,316,000 as indemnity for
Ruelitos loss of earning capacity; (3) P100,000 as moral damages; (4)
P100,000 as exemplary damages; (5) 10% of the total amount adjudged
against respondent as attorneys fees; and (6) the costs of suit.
The total amount adjudged against respondent shall earn interest at the
rate of 12% per annum computed from the finality of this decision until full
payment.

G.R. No. L-8937

2. When an obligation, not constituting a loan or forbearance of money, is
breached, an interest on the amount of damages awarded may be imposed
at the discretion of the court at the rate of 6% per annum. No interest,
however, shall be adjudged on unliquidated claims or damages except
when or until the demand can be established with reasonable certainty.
Accordingly, where the demand is established with reasonable certainty,
the interest shall begin to run from the time the claim is made judicially or
extrajudicially (Art. 1169, Civil Code) but when such certainty cannot be so
reasonably established at the time the demand is made, the interest shall
begin to run only from the date the judgment of the court is made (at which
time the quantification of damages may be deemed to have been
reasonably ascertained). The actual base for the computation of legal
interest shall, in any case, be on the amount finally adjudged.

November 29, 1957

OLEGARIO BRITO SY, plaintiff-appellee,

vs.
MALATE TAXI CAB & GARAGE, INC., defendant-appelant;

MALATE TAXICAB & GARAGE, INC., third-party plaintiff-appellant,

vs.
JESUS DEQUITO Y DUPY, third-party defendant-appellee.

Paredes, Gaw and Acevedo for appellee.

10

Diaz and Baizas for appellant.

ENDENCIA, J.:

On June 26, 1952, at Dewey Boulevard in front of the Selecta Restaurant,

Olegario Brito Sy engaged a taxicab bearing plate No. Taxi-1130, owned
and operated by Malate Taxicab and Garage, Inc. and driven by Catalino
Ermino, to take him to his place of business at Dencia's Restaurant on the
Escolta where he was the general manager. Upon reaching the Rizal
Monument he told the driver to turn to the right, but the latter did not heed
him and instead countered that they better pass along Katigbak Drive. At
the intersection of Dewey Bolevard and Katigbak Drive, the taxi collided
with an army wagon with plate No. TPI-695 driven by Sgt. Jesus De quito, as
a result of which Olegario Brito Sy was jarred, jammed and jolted. He was
taken to the Santa Isabel Hospital suffering from bruises and contusions as
well as fractured right leg. Thereafter he was transferred to the Gonzales
Orthopedic Clinic and was accordingly operated on. He spent some
P2,266.45 for medical bills and hospitalization.

On September 30, 1952, Sy filed action against the Malate Taxicab &
Garage, Inc., based upon a contract of carriage, to recover the sums of
P7,200 as actual or compensatory damages, P20,000 as moral damages,
P15,000 as nominal and exemplary damages, and P3,000 a attorney's fees.
On October 2, 1952, a copy of the complaint was served on and received by
the defendant, but the latter filed its answer only on October 20, 1952,
wherein it alleged that the collision subject of the complaint was not due to
the negligence of its driver but to that of Sgt. Jesus Dequito, the driver of
the army wagon; and, by way of counterclaim, sought to recover the sum of
P1,000 as damages caused by the alleged malicious and frivolous action
filed against it.

The record reveals that upon plaintiff's motion filed on October 23, 1952,
the lower court ordered on October 25, 1952 that the answer which was
filed by defendant out of time be stricken out, and declared the Malate
Taxicab & Garage, Inc. in default. Thereafter, on October 30, 1952, plaintiff
presented his evidence, and on November 20, 1952 judgment was rendered
awarding plaintiff the sum of P14.000 as actual, compensatory, moral,
nominal and exemplary damages including attorney's fees and costs, with
interest at the legal rate from the filing of the action. Defendant then filed a
motion on December 17, 1952, for relief from the order of default and for

new trial, which was granted. Hence, plaintiff filed his reply to defendant's
answer and counterelaim, and by leave of court, the latter filed on February
24, 1953 a third-party complaint against Sgt. Jesus Dequito alleging that
the cause of the collision between the taxicab and the army wagon was the
negligence of the army sergeant, and praying that whatever amount the
court may assess against it in the action filed by plaintiff, be paid to said
third-party plaintiff, plus an additional amount of P1,000 representing
attorney's fees. It appears, however, that the summons and copy of the
third-party complaint were never served upon third-party defendant
Dequito in view of his continued assignment from place to place in
connection with his army duties, and for this reason the main case was set
for trial on May 10, 1953, obviously for the sole purpose of disposing of the
issue arising from plaintiffs complaint. On the day of the trial, defendant
failed to appear, whereupon plaintiff presented his evidence, and judgment
was rendered against the defendant in the total sum of P4,200 representing
actual, compensatory and moral damages, as well as attorney's fees, with
interest at the legal rate from the filing of the action, plus costs of suit. Aga
nst said judgment defendant appealed to the Court of Appeals and
assigned in its brief two errors of the lower court, namely:

1.
The trial court erred in not finding that the third-party complaint
involves a prejudicial question, and therefore, the main complaint cannot
be decided until the third-party complaint is decided.

2.
The trial court erred in not deciding or making an express finding
as to whether the defendant appellant Malate Taxicab & Garage, Inc. was
responsible for the collision, and hence, civilly responsible to the plaintiffappellee.

Finding the quoted assignment of errors as involving a purely question of

law, the Court of Appeals, by virtue of the provisions of section 17,
paragraph 6 of the judiciary Act of 1948, as amended, certified the case to
this Court for adjudication, in its Resolution of February 7, 1955.

We find no merit in the first assignment of error that the third-party

complaint is a pre-judicial question. As enunciated by this Court in Berbari
vs. Concepcion, 40 Phil. 837, "Pre-judicial question in understood in law to
be that which precedes the criminal action, or that which requires a
decision before final judgment is rendered in the principal action with which
said question is closely connected. Not all previous questions are pre-

11

judicial questions are necessarily previous", although all pre-judicial

questions are necessarily previous." In the present case, the third-party
complaint is not a pre-judicial question, as the issue in the main action is
not entirely dependent upon those in the third-party complaint; on the
contrary, it is the third-party complaint that is dependent upon the main
case at least in the amount of damages which defendant appellant seeks to
be reimbursed in its third-party complaint. Furthermore, the complaint is
based on a contractual obligation of transportation of passenger which
defendant-appellant failed to carry out, and the action is entirely different
and independent from that in the third-party complaint which is based an
alleged tortious act committed by the third-party defendant Sgt. Dequito.
The main case, therefore, is entirely severable and may be litigated
independently. Moreover, whatever the outcome of the third-party
complaint might be would not in any way affect or alter the contractual
liability of the appellant to plaintiff. If the collision was due to the
negligence of the third-party defendant, as alleged, then defendant
appellant may file a separate civil action for damages based on tort exdelicto or upon quasi-delict, as the case may be.

Coming to the second assignment of error that the lower court erred in not
making an express findings as to whether defendant appellant was
responsible for the collision, we find the same to be unjustified. The
pertinent, provisions of the new Civil Code under the heading Common
Carriers, are the following:

ART. 1733. Common carriers, from the nature of their business and for
reason 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 to safety 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. (Emphasis supplied.)

Evidently, under these provisions of law, the court need not make an
express finding of fault or negligence on the part of the defendant appellant
in order to hold it responsible to pay the damages sought for by the
plaintiff, for the action initiated therefor is based on a contract of carriage
and not on tort. When plaintiff rode on defendant-appellant's taxicab, the
latter assumed the express obligation to transport him 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, supra). This is an exception to the general rule that negligence must
be proved, and it was 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. It is noteworthy, however, that at the hearing in
the lower court defendant-appellant failed to appear and has not presented
any evidence at all to overcome and overwhelm the presumption of
negligence imposed upon it by law; hence, there was no need for the lower
court to make an express finding thereon in view of the provisions of the
aforequoted Article 1756 of the new Civil Code.

Wherefore, the decision of the lower court is hereby affirmed with cost
against the appellant.

Paras, C. J., Bengzon, Montemayor, Bautista Angelo, Labrador, and

Concepcion, JJ., concur,.

REYES, J. B. L., J. concurring:

I concur for the additional reason that the concurrent negligence of a third
person will not exempt the appellant from responsibility; in other words, if
the driver of the taxicab was negligent and thereby caused the collision,
the fact that another driver's negligence also contributed thereto will not

12

exempt the taxicab company. Hence, the negligence of the other driver is
not a prejudicial question to the present action.

G.R. Nos. L-21353 and L-21354

May 20, 1966

GREGORIO ANURAN, MARIA MALIGAYA, LAPAZ LARO, ET AL., petitioners,

13

vs.
PEPITO BUO, PEDRO GAHOL, LUISA ALCANTARA, GUILLERMO RAZON,
ANSELMO MALIGAYA and CEFERINA ARO, respondents.

Victoriano A. Endaya for petitioners.

Trinidad and Borromeo for respondents Buo, et al.
Contreras and Adapon for respondents Razon, et al.

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 illstarred 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

14

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.

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 defendantsrespondents the amounts fixed by the appealed decision. Costs of both
appeals against said three defendants. So ordered.

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

15

The antecedent facts are as follows:

G.R. Nos. 66102-04

August 30, 1990

PHILIPPINE RABBIT BUS LINES, INC., petitioner,

vs.
THE HONORABLE INTERMEDIATE APPELLATE COURT AND CASIANO PASCUA,
ET AL., respondents.

Santiago & Santiago for petitioner.

Federico R. Vinluan for private respondents.

MEDIALDEA, J.:

This is a petition for review on certiorari of the decision of the Intermediate

Appellate Court (now Court of Appeals) dated July 29, 1983 in AC-G.R. Nos.
CV-65885, CV-65886 and CV-65887 which reversed the decision of the
Court of First Instance (now Regional Trial Court) of Pangasinan dated
December 27, 1978; and its resolution dated November 28, 1983 denying
the motion for reconsideration.

It is an established principle that the factual findings of the Court of

Appeals are final and may not be reviewed by this Court on appeal.
However, this principle is subject to certain exceptions. One of these is
when the findings of the appellate court are contrary to those of the trial
court (see Sabinosa v. The Honorable Court of Appeals, et al., G.R. No. L47981, July 24, 1989) in which case, a re-examination of the facts and
evidence may be undertaken. This is Our task now.

About 11:00 o'clock in the morning on December 24, 1966, Catalina

Pascua, Caridad Pascua, Adelaida Estomo, Erlinda Meriales, Mercedes
Lorenzo, Alejandro Morales and Zenaida Parejas boarded the jeepney
owned by spouses Isidro Mangune and Guillerma Carreon and driven by
Tranquilino Manalo at Dau, Mabalacat, Pampanga bound for Carmen,
Rosales, Pangasinan to spend Christmas at their respective homes.
Although they usually ride in buses, they had to ride in a jeepney that day
because the buses were full. Their contract with Manalo was for them to
pay P24.00 for the trip. The private respondents' testimonial evidence on
this contractual relationship was not controverted by Mangune, Carreon
and Manalo, nor by Filriters Guaranty Assurance Corporation, Inc., the
insurer of the jeepney, with contrary evidence. Purportedly riding on the
front seat with Manalo was Mercedes Lorenzo. On the left rear passenger
seat were Caridad Pascua, Alejandro Morales and Zenaida Parejas. On the
right rear passenger seat were Catalina Pascua, Adelaida Estomo, and
Erlinda Meriales. After a brief stopover at Moncada, Tarlac for refreshment,
the jeepney proceeded towards Carmen, Rosales, Pangasinan.

Upon reaching barrio Sinayoan, San Manuel, Tarlac, the right rear wheel of
the jeepney was detached, so it was running in an unbalanced position.
Manalo stepped on the brake, as a result of which, the jeepney which was
then running on the eastern lane (its right of way) made a U-turn, invading
and eventually stopping on the western lane of the road in such a manner
that the jeepney's front faced the south (from where it came) and its rear
faced the north (towards where it was going). The jeepney practically
occupied and blocked the greater portion of the western lane, which is the
right of way of vehicles coming from the north, among which was Bus No.
753 of petitioner Philippine Rabbit Bus Lines, Inc. (Rabbit) driven by Tomas
delos Reyes. Almost at the time when the jeepney made a sudden U-turn
and encroached on the western lane of the highway as claimed by Rabbit
and delos Reyes, or after stopping for a couple of minutes as claimed by
Mangune, Carreon and Manalo, the bus bumped from behind the right rear
portion of the jeepney. As a result of the collision, three passengers of the
jeepney (Catalina Pascua, Erlinda Meriales and Adelaida Estomo) died while
the other jeepney passengers sustained physical injuries. What could have
been a festive Christmas turned out to be tragic.

16

The causes of the death of the three jeepney passengers were as follows
(p. 101, Record on Appeal):

positions of the two vehicles as well as the alleged point of impact (p. 100,
Record on Appeal):

The deceased Catalina Pascua suffered the following injuries, to wit:

fracture of the left parietal and temporal regions of the skull; fracture of the
left mandible; fracture of the right humenous; compound fracture of the left
radious and ullma middle third and lower third; fracture of the upper third
of the right tibia and fillnea; avulsion of the head, left internal; and multiple
abrasions. The cause of her death was shock, secondary to fracture and
multiple hemorrhage. The fractures were produced as a result of the hitting
of the victim by a strong force. The abrasions could be produced when a
person falls from a moving vehicles (sic) and rubs parts of her body against
a cement road pavement. . . .

. . . The point of collision was a cement pave-portion of the Highway, about

six (6) meters wide, with narrow shoulders with grasses beyond which are
canals on both sides. The road was straight and points 200 meters north
and south of the point of collision are visible and unobstructed. Purportedly,
the point of impact or collision (Exh. "K-4", Pascua on the sketch Exh. "K"Pascua) was on the western lane of the highway about 3 feet (or one yard)
from the center line as shown by the bedris (sic), dirt and soil (obviously
from the undercarriage of both vehicles) as well as paint, marron (sic) from
the Rabbit bus and greenish from the jeepney. The point of impact encircled
and marked with the letter "X" in Exh. "K"-4 Pascua, had a diameter of two
meters, the center of which was about two meters from the western edge
of cement pavement of the roadway. Pictures taken by witness Bisquera in
the course of the investigation showed the relative positions of the point of
impact and center line (Exh. "P"-Pascua) the back of the Rabbit bus (Exh.
"P"-1-Pascua"), the lifeless body of Catalina Pascua (Exh. "P-2 Pascua"), and
the damaged front part of the Rabbit bus (Exh. "P-3 Pascua"). No skid
marks of the Rabbit bus was found in the vicinity of the collision, before or
after the point of impact. On the other hand, there was a skid mark about
45 meters long purportedly of the jeepney from the eastern shoulder of the
road south of, and extending up to the point of impact.

Erlinda Mariles (sic) sustained external lesions such as contusion on the left
parietal region of the skull; hematoma on the right upper lid; and abrasions
(sic) on the left knee. Her internal lesions were: hematoma on the left
thorax; multiple lacerations of the left lower lobe of the lungs; contusions
on the left lower lobe of the lungs; and simple fractures of the 2nd, 3rd, 4th,
5th, 6th, 7th, and 8th ribs, left. The forcible impact of the jeep caused the
above injuries which resulted in her death. . . .

The cause of death of Erlinda or Florida Estomo (also called as per autopsy
of Dr. Panlasiqui was due to shock due to internal hemorrhage, ruptured
spleen and trauma. . . .

Caridad Pascua suffered physical injuries as follows (p. 101, Record on

Appeal):

. . . lacerated wound on the forehead and occipital region, hematoma on

the forehead, multiple abrasions on the forearm, right upper arm, back and
right leg. . . .

The police investigators of Tacpal and policemen of San Manuel, Tarlac,

Tarlac, upon arrival at the scene of the mishap, prepared a sketch (common
exhibit "K" for private respondents "19" for Rabbit) showing the relative

At the time and in the vicinity of the accident, there were no vehicles
following the jeepney, neither were there oncoming vehicles except the
bus. The weather condition of that day was fair.

After conducting the investigation, the police filed with the Municipal Court
of San Manuel, Tarlac, a criminal complaint against the two drivers for
Multiple Homicide. At the preliminary investigation, a probable cause was
found with respect to the case of Manalo, thus, his case was elevated to the
Court of First Instance. However, finding no sufficiency of evidence as
regards the case of delos Reyes, the Court dismissed it. Manalo was
convicted and sentenced to suffer imprisonment. Not having appealed, he
served his sentence.

Complaints for recovery of damages were then filed before the Court of
First Instance of Pangasinan. In Civil Case No. 1136, spouses Casiano
Pascua and Juana Valdez sued as heirs of Catalina Pascua while Caridad

17

Pascua sued in her behalf. In Civil Case No. 1139, spouses Manuel Millares
and Fidencia Arcica sued as heirs of Erlinda Meriales. In Civil Case No. 1140,
spouses Mariano Estomo and Dionisia Sarmiento also sued as heirs of
Adelaida Estomo.

On December 27, 1978, the trial court rendered its decision finding Manalo
negligent, the dispositive portion of which reads (pp. 113-114, Record on
Appeal):

PREMISES CONSIDERED, this Court is of the opinion and so holds:

In all three cases, spouses Mangune and Carreon, Manalo, Rabbit and delos
Reyes were all impleaded as defendants. Plaintiffs anchored their suits
against spouses Mangune and Carreon and Manalo on their contractual
liability. As against Rabbit and delos Reyes, plaintiffs based their suits on
their culpability for a quasi-delict. Filriters Guaranty Assurance Corporation,
Inc. was also impleaded as additional defendant in Civil Case No. 1136 only.

For the death of Catalina Pascua, plaintiffs in Civil Case No. 1136 sought to
collect the aggregate amount of P70,060.00 in damages, itemized as
follows: P500.00 for burial expenses; P12,000.00 for loss of wages for 24
years; P10,000.00 for exemplary damages; P10,000.00 for moral damages;
and P3,000.00 for attorney's fees. In the same case, plaintiff Caridad
Pascua claimed P550.00 for medical expenses; P240.00 for loss of wages
for two months; P2,000.00 for disfigurement of her face; P3,000.00 for
physical pain and suffering; P2,500.00 as exemplary damages and
P2,000.00 for attorney's fees and expenses of litigation.

In Civil Case No. 1139, plaintiffs demanded P500.00 for burial expenses;
P6,000.00 for the death of Erlinda, P63,000.00 for loss of income;
P10,000.00 for moral damages and P3,000.00 for attorney's fees or total of
P80,000.00.

In Civil Case No. 1140, plaintiffs claimed P500.00 for burial expenses;
P6,000.00 for the death of Adelaide, P56,160.00 for loss of her income or
earning capacity; P10,000.00 for moral damages; and P3,000.00 for
attorney's fees.

Rabbit filed a cross-claim in the amount of P15,000.00 for attorney's fees

and expenses of litigation. On the other hand, spouses Mangune and
Carreon filed a cross-claim in the amount of P6,168.00 for the repair of the
jeepney and P3,000.00 for its non-use during the period of repairs.

1)
That defendants Isidro Mangune, Guillerma Carreon and
Tranquilino Manalo thru their negligence, breached contract of carriage with
their passengers the plaintiffs' and/or their heirs, and this Court renders
judgment ordering said defendants, jointly and severally, to pay the
plaintiffs

a)
In Civil Case No. 1136, for the death of Catalina Pascua, to pay her
heirs the amounts of P12,000.00 for indemnity for loss of her life;
P41,760.00 for loss of earnings; P324.40 for actual expenses and P2,000.00
for moral damages;

b)
In the same Civil Case No.1136 for the injuries of Caridad Pascua,
to pay her the amounts of P240.00 for loss of wages, P328.20 for actual
expenses and P500.00 for moral damages;

c)
In Civil Case No.1139 for the death of Erlinda Meriales, to pay her
heirs (the plaintiffs) the amount of P12,000.00 for indemnity for loss of
her life; P622.00 for actual expenses, P60,480.00 for loss of wages or
income and P2,000.00 for moral damages;

d)
In Civil Case No. 1140, for the death of Erlinda (also called Florida
or Adelaida Estomo), to pay her heirs (the plaintiff the amount of
P12,000.00 for indemnity for the loss of her life; P580.00 for actual
expenses; P53,160.00 for loss of wages or income and P2,000.00 for moral
damages.

2)
The defendant Filriters Guaranty Insurance Co., having contracted
to ensure and answer for the obligations of defendants Mangune and
Carreon for damages due their passengers, this Court renders judgment

18

against the said defendants Filriters Guaranty Insurance Co., jointly and
severally with said defendants (Mangune and Carreon) to pay the plaintiffs
the amount herein above adjudicated in their favor in Civil Case No. 1136
only. All the amounts awarded said plaintiff, as set forth in paragraph one
(1) hereinabove;

and another judgment is hereby rendered in favor of plaintiffs-appellants

Casiana Pascua, Juan Valdez and Caridad Pascua, ordering the Philippine
Rabbit Bus Lines, Inc. and its driver Tomas delos Reyes to pay the former
jointly and severally damages in amounts awarded as follows:

For the death of Catalina Pascua, the parents and/or heirs are awarded
3)
On the cross claim of Phil. Rabbit Bus Lines, Inc. ordering the
defendant, Isidro Mangune, Guillerma Carreon and Tranquilino Manalo, to
pay jointly and severally, cross-claimant Phil. Rabbit Bus Lines, Inc., the
amounts of P216.27 as actual damages to its Bus No. 753 and P2,173.60
for loss of its earning.

Civil Case No. 1136

a)

Indemnity for the loss of life

P12,000.00

b)

Loss of Salaries or earning capacity

14,000.00

Costs are adjudged against defendants Mangune, Carreon and Manalo and
Filriters Guaranty.

c)

Actual damages (burial expenses)

800.00

SO ORDERED

d)

For moral damages

10,000.00

On appeal, the Intermediate Appellate Court reversed the above-quoted

decision by finding delos Reyes negligent, the dispositive portion of which
reads (pp. 55-57, Rollo):

e)

Exemplary damages

3,000.00

f)

For attorney's fees

3,000.00

All of the above amount, shall bear legal interest from the filing of the
complaints.

WHEREFORE, PREMISES CONSIDERED, the lower court's decision is hereby

REVERSED as to item No. 3 of the decision which reads:

3)
On the cross claim of Philippine Rabbit Bus Lines, Inc. ordering the
defendants Isidro Mangune, Guillerma Carreon and Tranquilino Manalo, to
pay jointly and severally, the amounts of P216.27 as actual damages to its
Bus No. 753 and P2,173.60 for loss of its earnings.

Total

P38,200.00 (sic)

For the physical injuries suffered by Caridad Pascua:

19

Civil Case No. 1136

a)

Actual damages (hospitalization expenses)

b)

Moral damages (disfigurement of the

face and physical suffering

8,000.00

c)

Exemplary damages

P550.00

Exemplary damages

f)

Attorney's fees

3,000.00

15,000.00

Total

2,000.00

P65,500.00

For the death of Florida Sarmiento Estomo:

Total

e)

Civil Case No. 1140

P10,550.00

a)

Indemnity for loss of life

For the death of Erlinda Arcega Meriales. the parents and/or heirs:

b)

Loss of Salary or Earning capacity

Civil Case No. 1139

c)

Actual damages (burial expenses)

d)

Moral damages

a)

Indemnity for loss of life

b)

Loss of Salary or Earning Capacity

20,000.00

e)

Exemplary damages

c)

Actual damages (burial expenses)

500.00

f)

Attorney's fees

3,000.00

d)

Moral damages

P12,000.00

15,000.00

P12,000.00

20,000.00

500.00

3,000.00

3,000.00

20

Total

P41,500.00

With costs against the Philippine Rabbit Bus Lines, Inc.

SO ORDERED.

The motion for reconsideration was denied. Hence, the present petition.

The issue is who is liable for the death and physical injuries suffered by the
passengers of the jeepney?

The trial court, in declaring that Manalo was negligent, considered the
following (p. 106, Record on Appeal):

(1)
That the unrebutted testimony of his passenger plaintiff Caridad
Pascua that a long ways (sic) before reaching the point of collision, the
Mangune jeepney was "running fast" that his passengers cautioned driver
Manalo to slow down but did not heed the warning: that the right rear
wheel was detached causing the jeepney to run to the eastern shoulder of
the road then back to the concrete pavement; that driver Manalo applied
the brakes after which the jeepney made a U-turn (half-turn) in such a
manner that it inverted its direction making it face South instead of north;
that the jeepney stopped on the western lane of the road on the right of
way of the oncoming Phil. Rabbit Bus where it was bumped by the latter;

(2)
The likewise unrebutted testimony of Police Investigator Tacpal of
the San Manuel (Tarlac) Police who, upon responding to the reported
collission, found the real evidence thereat indicate in his sketch (Exh. K,
Pascua ), the tracks of the jeepney of defendant Mangune and Carreon
running on the Eastern shoulder (outside the concrete paved road) until it
returned to the concrete road at a sharp angle, crossing the Eastern lane
and the (imaginary) center line and encroaching fully into the western lane
where the collision took place as evidenced by the point of impact;

(3)
The observation of witness Police Corporal Cacalda also of the San
Manuel Police that the path of the jeepney they found on the road and
indicated in the sketch (Exh. K-Pascua) was shown by skid marks which he
described as "scratches on the road caused by the iron of the jeep, after its
wheel was removed;"

(4)
His conviction for the crime of Multiple Homicide and Multiple
Serious Physical Injuries with Damage to Property thru Reckless
Imprudence by the Court of First Instance of Tarlac (Exh. 24-Rabbit) upon
the criminal Information by the Provincial Fiscal of Tarlac (Exh. 23-Rabbit),
as a result of the collision, and his commitment to prison and service of his
sentence (Exh. 25-Rabbit) upon the finality of the decision and his failure to
appeal therefrom; and

(5)
The application of the doctrine of res-ipsa loquitar (sic) attesting to
the circumstance that the collision occured (sic) on the right of way of the
Phil. Rabbit Bus.

The respondent court had a contrary opinion. Applying primarily (1) the
doctrine of last clear chance, (2) the presumption that drivers who bump
the rear of another vehicle guilty and the cause of the accident unless
contradicted by other evidence, and (3) the substantial factor test.
concluded that delos Reyes was negligent.

The misappreciation of the facts and evidence and the misapplication of the
laws by the respondent court warrant a reversal of its questioned decision
and resolution.

We reiterate that "[t]he 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." This was Our ruling
in Anuran, et al. v. Buo et al., G.R. Nos. L-21353 and L-21354, May 20,
1966, 17 SCRA 224. 1 Thus, the respondent court erred in applying said
doctrine.

21

On the presumption that drivers who bump the rear of another vehicle
guilty and the cause of the accident, unless contradicted by other evidence,
the respondent court said (p. 49, Rollo):

. . . the jeepney had already executed a complete turnabout and at the time
of impact was already facing the western side of the road. Thus the jeepney
assumed a new frontal position vis a vis, the bus, and the bus assumed a
new role of defensive driving. The spirit behind the presumption of guilt on
one who bumps the rear end of another vehicle is for the driver following a
vehicle to be at all times prepared of a pending accident should the driver
in front suddenly come to a full stop, or change its course either through
change of mind of the front driver, mechanical trouble, or to avoid an
accident. The rear vehicle is given the responsibility of avoiding a collision
with the front vehicle for it is the rear vehicle who has full control of the
situation as it is in a position to observe the vehicle in front of it.

The above discussion would have been correct were it not for the
undisputed fact that the U-turn made by the jeepney was abrupt (Exhibit
"K," Pascua). The jeepney, which was then traveling on the eastern
shoulder, making a straight, skid mark of approximately 35 meters, crossed
the eastern lane at a sharp angle, making a skid mark of approximately 15
meters from the eastern shoulder to the point of impact (Exhibit "K"
Pascua). Hence, delos Reyes could not have anticipated the sudden U-turn
executed by Manalo. The respondent court did not realize that the
presumption was rebutted by this piece of evidence.

With regard to the substantial factor test, it was the opinion of the
respondent court that (p. 52, Rollo):

. . . It is the rule under the substantial factor test that if the actor's conduct
is a substantial factor in bringing about harm to another, the fact that the
actor neither foresaw nor should have foreseen the extent of the harm or
the manner in which it occurred does not prevent him from being liable
(Restatement, Torts, 2d). Here, We find defendant bus running at a fast
speed when the accident occurred and did not even make the slightest
effort to avoid the accident, . . . . The bus driver's conduct is thus a
substantial factor in bringing about harm to the passengers of the jeepney,
not only because he was driving fast and did not even attempt to avoid the

mishap but also because it was the bus which was the physical force which
brought about the injury and death to the passengers of the jeepney.

The speed of the bus was calculated by respondent court as follows (pp. 5455, Rollo):

According to the record of the case, the bus departed from Laoag, Ilocos
Norte, at 4:00 o'clock A.M. and the accident took place at approximately
around 12:30 P.M., after travelling roughly for 8 hours and 30 minutes.
Deduct from this the actual stopover time of two Hours (computed from the
testimony of the driver that he made three 40-minute stop-overs), We will
have an actual travelling time of 6 hours and 30 minutes.

Under the circumstances, We calculate that the Laoag-Tarlac route (365

kms.) driving at an average of 56 km. per hour would take 6 hours and 30
minutes. Therefore, the average speed of the bus, give and take 10
minutes, from the point of impact on the highway with excellent visibility
factor would be 80 to 90 kms. per hour, as this is the place where buses
would make up for lost time in traversing busy city streets.

Still, We are not convinced. It cannot be said that the bus was travelling at
a fast speed when the accident occurred because the speed of 80 to 90
kilometers per hour, assuming such calculation to be correct, is yet within
the speed limit allowed in highways. We cannot even fault delos Reyes for
not having avoided the collision. As aforestated, the jeepney left a skid
mark of about 45 meters, measured from the time its right rear wheel was
detached up to the point of collision. Delos Reyes must have noticed the
perilous condition of the jeepney from the time its right rear wheel was
detached or some 90 meters away, considering that the road was straight
and points 200 meters north and south of the point of collision, visible and
unobstructed. Delos Reyes admitted that he was running more or less 50
kilometers per hour at the time of the accident. Using this speed, delos
Reyes covered the distance of 45 meters in 3.24 seconds. If We adopt the
speed of 80 kilometers per hour, delos Reyes would have covered that
distance in only 2.025 seconds. Verily, he had little time to react to the
situation. To require delos Reyes to avoid the collision is to ask too much
from him. Aside from the time element involved, there were no options
available to him. As the trial court remarked (pp. 107-108, Record on
Appeal):

22

. . . They (plaintiffs) tried to impress this Court that defendant de los Reyes,
could have taken either of two options: (1) to swerve to its right (western
shoulder) or (2) to swerve to its left (eastern lane), and thus steer clear of
the Mangune jeepney. This Court does not so believe, considering the
existing exigencies of space and time.

As to the first option, Phil. Rabbit's evidence is convincing and unrebutted

that the Western shoulder of the road was narrow and had tall grasses
which would indicate that it was not passable. Even plaintiffs own evidence,
the pictures (Exhs. P and P-2, Pascua) are mute confirmation of such fact.
Indeed, it can be noticed in the picture (Exh. P-2, Pascua) after the Rabbit
bus came to a full stop, it was tilted to right front side, its front wheels
resting most probably on a canal on a much lower elevation that of the
shoulder or paved road. It too shows that all of the wheels of the Rabbit bus
were clear of the roadway except the outer left rear wheel. These
observation appearing in said picture (Exh P-2, Pascua) clearly shows
coupled with the finding the Rabbit bus came to a full stop only five meters
from the point of impact (see sketch, Exh. K-Pascua) clearly show that
driver de los Reyes veered his Rabbit bus to the right attempt to avoid
hitting the Mangune's jeepney. That it was not successful in fully clearing
the Mangune jeepney as its (Rabbit's) left front hit said jeepney (see picture
Exh. 10-A-Rabbit) must have been due to limitations of space and time.

Plaintiffs alternatively claim that defendant delos Reyes of the Rabbit bus
could also have swerved to its left (eastern lane) to avoid bumping the
Mangune jeepney which was then on the western lane. Such a claim is
premised on the hypothesis (sic) that the eastern lane was then empty. This
claim would appear to be good copy of it were based alone on the sketch
made after the collision. Nonetheless, it loses force it one were to consider
the time element involved, for moments before that, the Mangune jeepney
was crossing that very eastern lane at a sharp angle. Under such a situation
then, for driver delos Reyes to swerve to the eastern lane, he would run the
greater risk of running smack in the Mangune jeepney either head on or
broadside.

After a minute scrutiny of the factual matters and duly proven evidence, We
find that the proximate cause of the accident was the negligence of Manalo
and spouses Mangune and Carreon. They all failed to exercise the
precautions that are needed precisely pro hac vice.

In culpa contractual, the moment a passenger dies or is injured, the carrier

is presumed to have been at fault or to have acted negligently, and this
disputable presumption may only be overcome by evidence that he had
observed extra-ordinary diligence as prescribed in Articles 1733, 1755 and
1756 of the New Civil Code 2 or that the death or injury of the passenger
was due to a fortuitous event 3 (Lasam v. Smith, Jr., 45 Phil. 657).

The negligence of Manalo was proven during the trial by the unrebutted
testimonies of Caridad Pascua, Police Investigator Tacpal, Police Corporal
Cacalda, his (Manalo's) conviction for the crime of Multiple Homicide and
Multiple Serious Injuries with Damage to Property thru Reckless
Imprudence, and the application of the doctrine of res ipsa loquitur supra.
The negligence of spouses Mangune and Carreon was likewise proven
during the trial (p. 110, Record on Appeal):

To escape liability, defendants Mangune and Carreon offered to show thru

their witness Natalio Navarro, an alleged mechanic, that he periodically
checks and maintains the jeepney of said defendants, the last on Dec. 23,
the day before the collision, which included the tightening of the bolts. This
notwithstanding the right rear wheel of the vehicle was detached while in
transit. As to the cause thereof no evidence was offered. Said defendant did
not even attempt to explain, much less establish, it to be one caused by a
caso fortuito. . . .

In any event, "[i]n an action for damages against the carrier for his failure
to safely carry his passenger to his destination, an accident caused either
by defects in the automobile or through the negligence of its driver, is not a
caso fortuito which would avoid the carriers liability for damages (Son v.
Cebu Autobus Company, 94 Phil. 892 citing Lasam, et al. v. Smith, Jr., 45
Phil. 657; Necesito, etc. v. Paras, et al., 104 Phil. 75).

The trial court was therefore right in finding that Manalo and spouses
Mangune and Carreon were negligent. However, its ruling that spouses
Mangune and Carreon are jointly and severally liable with Manalo is
erroneous The driver cannot be held jointly and severally liable with the
carrier in case of breach of the contract of carriage. The rationale behind
this is readily discernible. Firstly, the contract of carriage is between the
carrier and the passenger, and in the event of contractual liability, the

23

carrier is exclusively responsible therefore to the passenger, even if such

breach be due to the negligence of his driver (see Viluan v. The Court of
Appeals, et al., G.R. Nos. L-21477-81, April 29, 1966, 16 SCRA 742). In other
words, the carrier can neither shift his liability on the contract to his driver
nor share it with him, for his driver's negligence is his. 4 Secondly, if We
make the driver jointly and severally liable with the carrier, that would
make the carrier's liability personal instead of merely vicarious and
consequently, entitled to recover only the share which corresponds to the
driver, 5 contradictory to the explicit provision of Article 2181 of the New
Civil Code. 6

G.R. No. L-10605

June 30, 1958

We affirm the amount of damages adjudged by the trial court, except with
respect to the indemnity for loss of life. Under Article 1764 in relation to
Article 2206 of the New Civil Code, the amount of damages for the death of
a passenger is at least three thousand pesos (P3,000.00). The prevailing
jurisprudence has increased the amount of P3,000.00 to P30,000.00 (see
Heirs of Amparo delos Santos, et al. v. Honorable Court of Appeals, et al.,
G.R. No. 51165, June 21, 1990 citing De Lima v. Laguna Tayabas Co., G.R.
Nos. L-35697-99, April 15, 1988, 160 SCRA 70).

PRECILLANO NECESITO, ETC., plaintiff-appellant,

ACCORDINGLY, the petition is hereby GRANTED. The decision of the

Intermediate Appellate Court dated July 29, 1983 and its resolution dated
November 28, 1983 are SET ASIDE. The decision of the Court of First
Instance dated December 27, 1978 is REINSTATED MODIFICATION that only
Isidro Mangune, Guillerma Carreon and Filriters Guaranty Assurance
Corporation, Inc. are liable to the victims or their heirs and that the amount
of indemnity for loss of life is increased to thirty thousand pesos
(P30,000.00).

G.R. No. L-10606

SO ORDERED.

Tomas Besa and Federico Agrava for appellants.

vs.
NATIVIDAD PARAS, ET AL., defendants-appellees.

x---------------------------------------------------------x

June 30, 1958

GERMAN NECESITO, ET AL., plaintiffs-appellants,

vs.
NATIVIDAD PARAS, ET AL., defendants-appellees.

Jose W. Diokno for appellees.

REYES, J. B. L., J.:

These cases involve ex contractu against the owners and operators of the
common carrier known as Philippine Rabbit Bus Lines, filed by one

24

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

25

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

26

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.

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.

RESOLUTION
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,

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.

27

(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:

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)

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.

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.

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

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.

28

(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.

29

G.R. No. L-12163

March 4, 1959

PAZ FORES, petitioner,

vs.
IRENEO MIRANDA, respondent.

Alberto O. Villaraza for petitioner.

Almazan and Ereneta for respondent.

REYES, J.B.L., J.:

Defendant-petitioner Paz Fores brings this petition for review of the decision
of the Court of Appeals (C.A. Case No. 1437-R) awarding to the plaintiffrespondent Ireneo Miranda the sums of P5,000 by way of actual damages
and counsel fees, and P10,000 as moral damages, with costs.

The contention that the evidence did not sufficiently establish the identity
of the vehicle as the belonging to the petitioner was rejected by the
appellate court which found, among other things, that is carried plate No.
TPU-1163, SERIES OF 1952, Quezon City, registered in the name of Paz
Fores, (appellant herein) and that the vehicle even had the name of "Doa
Paz" painted below its wind shield. No evidence to the contrary was
introduced by the petitioner, who relied on an attack upon the credibility of
the two policemen who went to the scene of the incident.

A point to be further remarked is petitioner's contention that on March 21,

1953, or one day before the accident happened, she allegedly sold the
passenger jeep that was involved therein to a certain Carmen Sackerman.

The initial problem raised by the petitioner in this appeal may be

formulated thus "Is the approval of the Public Service Commission
necessary for the sale of a public service vehicle even without conveying
therewith the authority to operate the same?" Assuming the dubious sale to
be a fact, the court of Appeals answered the query in the affirmative. The
ruling should be upheld.

Section 20 of the Public Service Act (Commonwealth Act No. 146) provides:
Respondent was one of the passengers on a jeepney driven by Eugenio
Luga. While the vehicle was descending the Sta. Mesa bridge at an
excessive rate of speed, the driver lost control thereof, causing it to swerve
and to his the bridge wall. The accident occurred on the morning of March
22, 1953. Five of the passengers were injured, including the respondent
who suffered a fracture of the upper right humerus. He was taken to the
National Orthopedic Hospital for treatment, and later was subjected to a
series of operations; the first on May 23, 1953, when wire loops were
wound around the broken bones and screwed into place; a second, effected
to insert a metal splint, and a third one to remove such splint. At the time
of the trial, it appears that respondent had not yet recovered the use of his
right arm.

The driver was charged with serious physical injuries through reckless
imprudence, and upon interposing a plea of guilty was sentenced
accordingly.

Sec. 20. Subject to established limitations and exceptions and saving

provisions to the contrary, it shall be unlawful for any public service or for
the owner, lessee or operator thereof, without the previous approval and
authority of the Commission previously had

xxx

xxx

xxx

(g) To sell, alienate, mortgage, encumber or lease its property, franchises,

certificates, privileges, or rights, or any part thereof; or merge or
consolidate its property, franchises, privileges or rights, or any part thereof,
with those of any other public service. The approval herein required shall be
given, after notice to the public and after hearing the persons interested at
a public hearing, if it be shown that there are just and reasonable grounds
for making the mortgage or encumbrance, for liabilities of more than one
year maturity, or the sale, alienation, lease, merger, or consolidation to be

30

approved and that the same are not detrimental to the public interest, and
in case of a sale, the date on which the same is to be consummated shall
be fixed in the order of approval: Provided, however, That nothing herein
contained shall be construed to prevent the transaction from being
negotiated or completed before its approval or to prevent the sale,
alienation, or lease by any public service of any of its property in the
ordinary course of its business.

Interpreting the effects of this particular provision of law, we have held in

the recent cases of Montoya vs. Ignacio, * 50 Off. Gaz. No. 1, p. 108; Timbol
vs. Osias, et al., G. R. No. L-7547, April 30, 1955, and Medina vs. Cresencia,
99 Phil., 506; 52 Off. Gaz. No. 10, p. 4606, that a transfer contemplated by
the law, if made without the requisite approval of the Public Service
Commission, is not effective and binding in so far as the responsibility of
the grantee under the franchise in relation to the public is concerned.
Petitioner assails, however, the applicability of these rulings to the instant
case, contending that in those cases, the operator did not convey, by lease
or by sale, the vehicle independently of his rights under the franchise. This
line of reasoning does not find support in the law. The provisions of the
statute are clear and prohibit the sale, alienation, lease, or encumbrance of
the property, franchise, certificate, privileges or rights, or any part thereof
of the owner or operator of the public service Commission. The law was
designed primarily for the protection of the public interest; and until the
approval of the public Service Commission is obtained the vehicle is, in
contemplation of law, still under the service of the owner or operator
standing in the records of the Commission which the public has a right to
rely upon.

The proviso contained in the aforequoted law, to the effect that nothing
therein shall be construed "to prevent the transaction from being
negotiated or complete before its approval", means only that the sale
without the required approval is still valid and binding between the parties
(Montoya vs. Ignacio, supra). The phrase "in the ordinary course of its
business" found in the other proviso" or to prevent the sale, alienation, or
lease by any public service of any of its property". As correctly observed by
the lower court, could not have been intended to include the sale of the
vehicle itself, but at most may refer only to such property that may be
conceivably disposed or by the carrier in the ordinary course of its
business, like junked equipment or spare parts.

The case of Indalecio de Torres vs. Vicente Ona (63 Phil., 594, 597) is
enlightening; and there, it was held:

Under the law, the Public Service Commission has not only general
supervision and regulation of, but also full jurisdiction and control over all
public utilities including the property, equipment and facilities used, and
the property rights and franchise enjoyed by every individual and company
engaged i the performance of a public service in the sense this phrase is
used in the Public Service Act or Act No. 3108). By virtue of the provisions
of said Act, motor vehicles used in the performance of a service, as the
transportation of freight from one point to another, have to this date been
considered and they cannot but be so considered-public service
property; and, by reason of its own nature, a TH truck, which means that
the operator thereof places it at the disposal of anybody who is willing to
pay a rental of its use, when he desires to transfer or carry his effects,
merchandise or any other cargo from one place to another, is necessarily a
public service property. (Emphasis supplied)

Of course, this court has held in the case of Bachrach Motor co. vs.
Zamboanga Transportation Co., 52 Phil., 244, that there may be a nunc pro
tunc authorization which has the effect of having the approval retroact to
the date of the transfer; but such outcome cannot prejudice rights
intervening in the meantime. It appears that no such approval was given by
the Commission before the accident occurred.

The P10,000 actual damages awarded by the Court of First Instance of

Manila were reduced by the Court of Appeals to only P2,000, on the ground
that a review of the records failed to disclose a sufficient basis for the trial
court's appraisal, since the only evidence presented on this point consisted
of respondent's bare statement that his expenses and loss of income
amounted to P20,000. On the other hand, "it cannot be denied," the lower
court said, "that appellee (respondent) did incur expenses"' It is well to
note further that respondent was a painter by profession and a professor of
Fine Arts, so that the amount of P2,000 awarded cannot be said to be
excessive (see Arts. 2224 and 2225, Civil Code of the Philippines). The
attorney's fees in the sum of P3,000 also awarded to the respondent are
assailed on the ground that the Court of First Instance did not provided for
the same, and since no appeal was interposed by said respondent, it was
allegedly error for the Court of Appeals to award them motu proprio.
Petitioner fails to note that attorney's fees are included in the concept of
actual damages under the Civil Code and may be awarded whenever the

31

court deems it is just and equitable (Art. 2208, Civil Code of the
Philippines). We see no reason to alter these awards.

Anent the moral damages ordered to be paid to the respondent, the same
must be discarded. We have repeatedly ruled (Cachero vs. Manila Yellow
Taxicab Co. Inc., 101 Phil., 523; 54 Off. Gaz., [26], 6599; Necesito, et al vs.
Paras, 104 Phil., 75; 56 Off. Gaz., [23] 4023, that moral damages are not
recoverable in damage actions predicted on a breach of the contract of
transportation, in view of Articles 2219 and 2220 of the new Civil Code,
which provide as follows:

(b) That a breach of contract can not be considered included in the

descriptive term "analogous cases" used in Art. 2219; not only because Art.
2220 specifically provides for the damages that are caused by contractual
breach, but because the definition of quasi-delict in Art. 2176 of the Code
expressly excludes the cases where there is a "preexisting contractual
relation between the parties."

Art. 2176. Whoever by act or omission causes damage to another, there

being fault or negligence, is obliged to pay for the damage dome. Such
fault or negligence, if there is no pre-existing contractual relation between
the parties, is called a quasi-delict and is governed by the provisions of this
Chapter.

Art. 2219. Moral damages may be recovered in the following and analogous
cases:

(1) A criminal offense resulting in physical injuries;

(2) Quasi-delicts causing physical injuries;

xxx

xxx

xxx

Art. 2220. Willful injury to property may be a legal ground for awarding
moral damages if the court should find that, under circumstances, such
damages are justify due. The same rule applies to breaches of contract
where the defendant acted fraudulently or in bad faith.

By contrasting the provisions of these two article it immediately becomes

apparent that:

(a) In case of breach of contract (including one of transportation) proof of

bad faith or fraud (dolus), i.e., wanton or deliberately injurious conduct, is
essential to justify an award of moral damages; and

The exception to the basic rule of damages now under consideration is a

mishap resulting in the death of a passenger, in which case Article 1764
makes the common carrier expressly subject to the rule of Art. 2206, that
entitles the deceased passenger to "demand moral damages for mental
anguish by reason of the death of the deceased" (Necesito vs. Paras, 104
Phil., 84, Resolution on motion to reconsider, September 11, 1958). But the
exceptional rule of Art. 1764 makes it all the more evident that where the
injured passenger does not die, moral damages are not recoverable unless
it is proved that the carrier was guilty of malice or bad faith. We think it is
clear that the mere carelessness of the carrier's driver does not per se
constitute of justify an inference of malice or bad faith on the part of the
carrier; and in the case at bar there is no other evidence of such malice to
support the award of moral damages by the Court of Appeals. To award
moral damages for breach of contract, therefore, without proof of bad faith
or malice on the part of the defendant, as required by Art. 220, would be to
violate the clear provisions of the law, and constitute unwarranted judicial
legislation.

The Court of Appeals has invoked our rulings in Castro vs. Acro Taxicab Co.,
G.R. No. 49155, December 14, 1948 and Layda vs. Court of Appeals, 90
Phil., 724; but these doctrines were predicated upon our former law of
damages, before judicial discretion in fixing them became limited by the
express provisions of the new Civil Code (previously quoted). Hence, the
aforesaid rulings are now inapplicable.

Upon the other hand, the advantageous position of a party suing a carrier
for breach of the contract of transportations explains, to some extent, the

32

limitations imposed by the new Code on the amount of the recovery. The
action for breach of contract imposes on the defendant carrier a
presumption of liability upon mere proof of injury to the passenger; that
latter is relieved from the duty to established the fault of the carrier, or of
his employees, and the burden is placed on the carrier to prove that it was
due to an unforseen event or to force majeure (Cangco vs. Manila Railroad
Co., 38 Phil., 768, 777). Moreover, the carrier, unlike in suits for quasidelict, may not escape liability by proving that it has exercised due
diligence in the selection and supervision of its employees (Art. 1759, new
civil code; Cangco vs. Manila Railroad Co., supra; Prado vs. Manila Electric
Co., 51 Phil., 900).

The difference in conditions, defenses and proof, as well as the codal

concept of quasi-delict as essentially extra contractual negligence, compel
us to differentiate between action ex contractu, and actions quasi ex
delicto, and prevent us from viewing the action for breach of contract as
simultaneously embodying an action on tort. Neither can this action be
taken as one to enforce on employee's liability under Art. 103 of the
Revised Penal Code, since the responsibility is not alleged to be subsidiary,
nor is there on record any averment or proof that the driver of appellant
was insolvent. In fact, he is not even made a party to the suit.

It is also suggested that a carrier's violation of its engagement to safety

transport the passenger involves a breach of the passenger's confidence,
and therefore should be regarded as a breach of contract in bad faith,
justifying recovery of moral damages under Art. 2220. This theory is
untenable, for under it the carrier would always be deemed in bad faith, in
every case its obligation to the passenger is infringed, and it would be
never accountable for simple negligence; while under the law (Art. 1756).
the presumption is that common carriers acted negligently (and not
maliciously), and Art. 1762 speaks of negligence of the common carrier.

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
article 1733 and 1755.

thereof is the negligence of the common carrier, but the amount of

damages shall be equitably reduced.

The distinction between fraud, bad faith or malice in the sense of deliberate
or wanton wrong doing and negligence (as mere carelessness) is too
fundamental in our law to be ignored (Arts. 1170-1172); their consequences
being clearly differentiated by the Code.

ART. 2201. In contracts and quasi-contracts, the damages for which the
obligor who acted in good faith is liable shall be those that are the natural
and probable consequences of the breach of the obligation, and which the
parties have foreseen or could have reasonably foreseen at the time the
obligation was constituted.

In case of fraud, bad faith, malice or wanton attitude, the obligor shall be
responsible for all damages which may be reasonably attributed to the nonperformance of the obligation.

It is to be presumed, in the absence of statutory provision to the contrary,

that this difference was in the mind of the lawmakers when in Art. 2220
they limited recovery of moral damages to breaches of contract in bad
faith. It is true that negligence may be occasionally so gross as to amount
to malice; but that fact must be shown in evidence, and a carrier's bad faith
is not to be lightly inferred from a mere finding that the contract was
breached through negligence of the carrier's employees.

In view of the foregoing considerations, the decision of the Court of Appeals

is modified by eliminating the award of P5,000.00 by way of moral
damages. (Court of Appeals Resolution of May 5, 1957). In all other
respects, the judgment is affirmed. No costs in this instance. So ordered.

ART. 1762. The contributory negligence of the passenger does not bar
recovery of damages for his death or injuries, if the proximate cause

33

Kincaid & Hartigan for 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.

G.R. No. L-12191

October 14, 1918

JOSE CANGCO, plaintiff-appellant,

vs.

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.

MANILA RAILROAD CO., defendant-appellee.

Ramon Sotelo for appellant.

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.

34

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 culpa aquiliana
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

35

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 extracontractual 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 a presumption 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

36

to repair the damage and the one who, by his act or omission, was the
cause of it.

status, occupy a position of dependency with respect to the person made

liable for their conduct.

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.

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.

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 vinculum exists 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 welldefined 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

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

37

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

38

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 extracontractual 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

39

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.

40

motorman. The car had proceeded only a short distance, however, when
the plaintiff, Ignacio del Prado, ran across the street to catch the car, his
approach being made from the left. The car was of the kind having
entrance and exist at either end, and the movement of the plaintiff was so
timed that he arrived at the front entrance of the car at the moment when
the car was passing.

G.R. No. L-29462

March 7, 1929

IGNACIO DEL PRADO, plaintiff-appellee,

vs.
MANILA ELECTRIC CO., defendant-appellant.

Ross, Lawrence and Selph and Antonio T. Carrascoso, jr., for appellant.
Vicente Sotto for appellee.

STREET, J.:

This action was instituted in the Court of First Instance of Manila by Ignacio
del Prado to recover damages in the amount of P50,000 for personal
injuries alleged to have been caused by the negligence of te defendant, the
Manila Electric Company, in the operation of one of its street cars in the
City of Manila. Upon hearing the cause the trial court awarded to the
plaintiff the sum of P10,000, as damages, with costs of suit, and the
defendant appealed.

The appellant, the Manila Electric Company, is engaged in operating street

cars in the City for the conveyance of passengers; and on the morning of
November 18, 1925, one Teodorico Florenciano, as appellant's motorman,
was in charge of car No. 74 running from east to west on R. Hidalgo Street,
the scene of the accident being at a point near the intersection of said
street and Mendoza Street. After the car had stopped at its appointed place
for taking on and letting off passengers, just east of the intersection, it
resumed its course at a moderate speed under the guidance of the

The testimony of the plaintiff and of Ciriaco Guevara, one of his witnesses,
tends to shows that the plaintiff, upon approaching the car, raised his hand
as an indication to the motorman of his desire to board the car, in response
to which the motorman eased up a little, without stopping. Upon this the
plaintiff seized, with his hand, the front perpendicular handspot, at the
same time placing his left foot upon the platform. However, before the
plaintiff's position had become secure, and even before his raised right foot
had reached the flatform, the motorman applied the power, with the result
that the car gave a slight lurch forward. This sudden impulse to the car
caused the plaintiff's foot to slip, and his hand was jerked loose from the
handpost, He therefore fell to the ground, and his right foot was caught and
crushed by the moving car. The next day the member had to be amputated
in the hospital. The witness, Ciriaco Guevara, also stated that, as the
plaintiff started to board the car, he grasped the handpost on either side
with both right and left hand. The latter statement may possibly be
incorrect as regards the use of his right hand by the plaintiff, but we are of
the opinion that the finding of the trial court to the effect that the
motorman slowed up slightly as the plaintiff was boarding the car that the
plaintiff's fall was due in part at lease to a sudden forward movement at the
moment when the plaintiff put his foot on the platform is supported by the
evidence and ought not to be disturbed by us.

The motorman stated at the trial that he did not see the plaintiff attempting
to board the car; that he did not accelerate the speed of the car as claimed
by the plaintiff's witnesses; and that he in fact knew nothing of the incident
until after the plaintiff had been hurt and some one called to him to stop.
We are not convinced of the complete candor of this statement, for we are
unable to see how a motorman operating this car could have failed to see a
person boarding the car under the circumstances revealed in this case. It
must be remembered that the front handpost which, as all witness agree,
was grasped by the plaintiff in attempting to board the car, was
immediately on the left side of the motorman.

41

With respect to the legal aspects of the case we may observe at the outset
that there is no obligation on the part of a street railway company to stop
its cars to let on intending passengers at other points than those appointed
for stoppage. In fact it would be impossible to operate a system of street
cars if a company engage in this business were required to stop any and
everywhere to take on people who were too indolent, or who imagine
themselves to be in too great a hurry, to go to the proper places for
boarding the cars. Nevertheless, although the motorman of this car was not
bound to stop to let the plaintiff on, it was his duty to do act that would
have the effect of increasing the plaintiff's peril while he was attempting to
board the car. The premature acceleration of the car was, in our opinion, a
breach of this duty.

The relation between a carrier of passengers for hire and its patrons is of a
contractual nature; and in failure on the part of the carrier to use due care
in carrying its passengers safely is a breach of duty (culpa contructual)
under articles 1101, 1103 and 1104 of the Civil Code. Furthermore, the duty
that the carrier of passengers owes to its patrons extends to persons
boarding the cars as well as to those alighting therefrom. The case of
Cangco vs. Manila Railroad Co. (38 Phil., 768), supplies an instance of the
violation of this duty with respect to a passenger who was getting off of a
train. In that case the plaintiff stepped off of a moving train, while it was
slowing down in a station, and at the time when it was too dark for him to
see clearly where he was putting his feet. The employees of the company
had carelessly left watermelons on the platform at the place where the
plaintiff alighted, with the result that his feet slipped and he fell under the
car, where his right arm badly injured. This court held that the railroad
company was liable for breach positive duty (culpa contractual), and the
plaintiff was awarded damages in the amount of P2,500 for the loss of his
arm. In the opinion in that case the distinction is clearly drawn between a
liability for negligence arising from breach of contructual duty and that
arising articles 1902 and 1903 of the Civil Code (culpa aquiliana).

The distiction between these two sorts of negligence is important in this

jurisdiction, for the reason that where liability arises from a mere tort (culpa
aquiliana), not involving a breach of positive obligation, an employer, or
master, may exculpate himself, under the last paragraph of article 1903 of
the Civil Code, by providing that he had exercised due degligence to
prevent the damage; whereas this defense is not available if the liability of
the master arises from a breach of contrauctual duty (culpa contractual). In
the case bfore us the company pleaded as a special defense that it had
used all the deligence of a good father of a family to prevent the damage
suffered by the plaintiff; and to establish this contention the company

introduced testimony showing that due care had been used in training and
instructing the motorman in charge of this car in his art. But this proof is
irrelevant in view of the fact that the liability involved was derived from a
breach of obligation under article 1101 of the Civil Code and related
provisions. (Manila Railroad Co. vs. Compana Transatlantica and Atlantic,
Gulf & Pacific Co., 38 Phil., 875, 887; De Guia vs. Manila Electric Railroad &
Light Co., 40 Phil., 706, 710.)

Another practical difference between liability for negligence arising under

1902 of the Civil Code and liability arising from negligence in the
performance of a positive duty, under article 1101 and related provisions of
the Civil Code, is that, in dealing with the latter form of negligence, the
court is given a discretion to mitigate liability according to the
circumstances of the case (art 1103). No such general discretion is given by
the Code in dealing with liability arising under article 1902; although
possibly the same end is reached by courts in dealing with the latter form
of liability because of the latitude of the considerations pertinent to cases
arising under this article.

As to the contributory negligence of the plaintiff, we are of the opinion that

it should be treated, as in Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil.,
359), as a mitigating circumstance under article 1103 of the Civil Code. It is
obvious that the plaintiff's negligence in attempting to board the moving
car was not the proximate cause of the injury. The direct and proximate
cause of the injury was the act of appellant's motorman in putting on the
power prematurely. A person boarding a moving car must be taken to
assume the risk of injury from boarding the car under the conditions open
to his view, but he cannot fairly be held to assume the risk that the
motorman, having the situation in view, will increase his peril by
accelerating the speed of the car before he is planted safely on the
platform. Again, the situation before us is one where the negligent act of
the company's servant succeeded the negligent act of the plaintiff, and the
negligence of the company must be considered the proximate cause of the
injury. The rule here applicable seems to be analogous to, if not identical
with that which is sometimes referred to as the doctrine of "the last clear
chance." In accordance with this doctrine, the contributory negligence of
the party injured will not defeat the action if it be shown that the defendant
might, by the exercise of reasonable care and prudence, have avoided the
consequences of the negligence of the injured party (20 R. C. L., p. 139;
Carr vs. Interurban Ry. Co., 185 Iowa, 872; 171 N. W., 167). The negligence
of the plaintiff was, however, contributory to the accident and must be
considered as a mitigating circumstance.

42

With respect to the effect of this injury upon the plaintiff's earning power,
we note that, although he lost his foot, he is able to use an artificial
member without great inconvenience and his earning capacity has probably
not been reduced by more than 30 per centum. In view of the precedents
found in our decisions with respect to the damages that ought to be
awarded for the loss of limb, and more particularly Rakes vs. Atlantic, Gulf
and Pacific Co. (7 Phil., 359); Cangco vs. Manila Railroad Co. (38 Phil., 768);
and Borromeo vs. Manila Electric Railroad and Light Co. (44 Phil., 165), and
in view of all the circumstances connected with the case, we are of the
opinion that the plaintiff will be adequately compensated by an award of
P2,500.

It being understood, therefore, that the appealed judgment is modified by

reducing the recovery to the sum of P2,500, the judgment, as thus
modified, is affirmed. So ordered, with costs against the appellant.

(b) That the appellee acted with imprudence and lack of due care in
attempting to board a street car while the same was in motion; and

(c) That he contributed to his own injury, without any negligence or malice
or imprudence on the part of the defendant.

There is nothing in the record which even remotely justifies a contribution

of damages between the appellee and the appellant. The appellee should
be required to suffer the damages which he himself, through his own
negligence, occasioned, without any negligence, imprudence or malice on
the part of the appellant.

Therefore, the judgment of the court a quo should be revoked, and the
appellant absolved from all liability under the complaint.
Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.
Johns, J., concur.

Separate Opinions

JOHNSON, J., dissenting:

This appeal presents a hard case, whichever way it is decided.

I read the entire record in this case before it was submitted to the second
division for decision. I was then the ponente. I was then convinced, as I am
now, after a re-examination of the record, that the judgment of the lower
court should be revoked for the following reasons:

(a) That the motorman managed the car carefully and with ordinary
prudence at the moment the alleged accident occured;

43

Pedro Panganiban for plaintiff-appellant.

Magno T. Bueser for defendant-appellant.

BENGZON, J.P., J.:

Rogelio Corachea, on October 18, 1960, was a passenger in a taxicab

owned and operated by Pascual Perez when he was stabbed and killed by
the driver, Simeon Valenzuela.

Valenzuela was prosecuted for homicide in the Court of First Instance of

Batangas. Found guilty, he was sentenced to suffer imprisonment and to
indemnify the heirs of the deceased in the sum of P6,000. Appeal from said
conviction was taken to the Court of Appeals.1wph1.t

On December 6 1961, while appeal was pending in the Court of Appeals,

Antonia Maranan, Rogelio's mother, filed an action in the Court of First
Instance of Batangas to recover damages from Perez and Valenzuela for the
death of her son. Defendants asserted that the deceased was killed in selfdefense, since he first assaulted the driver by stabbing him from behind.
Defendant Perez further claimed that the death was a caso fortuito for
which the carrier was not liable.

G.R. No. L-22272

June 26, 1967

ANTONIA MARANAN, plaintiff-appellant,

The court a quo, after trial, found for the plaintiff and awarded her P3,000
as damages against defendant Perez. The claim against defendant
Valenzuela was dismissed. From this ruling, both plaintiff and defendant
Perez appealed to this Court, the former asking for more damages and the
latter insisting on non-liability. Subsequently, the Court of Appeals affirmed
the judgment of conviction earlier mentioned, during the pendency of the
herein appeal, and on May 19, 1964, final judgment was entered therein.
(Rollo, p. 33).

vs.
PASCUAL PEREZ, ET AL., defendants.
PASCUAL PEREZ, defendant appellant.

Defendant-appellant relies solely on the ruling enunciated in Gillaco v.

Manila Railroad Co., 97 Phil. 884, that the carrier is under no absolute
liability for assaults of its employees upon the passengers. The attendant
facts and controlling law of that case and the one at bar are very different

44

however. In the Gillaco case, the passenger was killed outside the scope
and the course of duty of the guilty employee. As this Court there found:

intentional assaults committed by its employees upon its passengers, by

the wording of Art. 1759 which categorically states that

x x x when the crime took place, the guard Devesa had no duties to
discharge in connection with the transportation of the deceased from
Calamba to Manila. The stipulation of facts is clear that when Devesa shot
and killed Gillaco, Devesa was assigned to guard the Manila-San Fernando
(La Union) trains, and he was at Paco Station awaiting transportation to
Tutuban, the starting point of the train that he was engaged to guard. In
fact, his tour of duty was to start at 9:00 two hours after the commission of
the crime. Devesa was therefore under no obligation to safeguard the
passengers of the Calamba-Manila train, where the deceased was riding;
and the killing of Gillaco was not done in line of duty. The position of
Devesa at the time was that of another would be passenger, a stranger also
awaiting transportation, and not that of an employee assigned to discharge
any of the duties that the Railroad had assumed by its contract with the
deceased. As a result, Devesa's assault can not be deemed in law a breach
of Gillaco's contract of transportation by a servant or employee of the
carrier. . . . (Emphasis supplied)

Common carriers are liable for the death of or injuries to passengers

through the negligence or willful acts of the former's employees, although
such employees may have acted beyond the scope of their authority or in
violation of the orders of the common carriers.

Now here, the killing was perpetrated by the driver of the very cab
transporting the passenger, in whose hands the carrier had entrusted the
duty of executing the contract of carriage. In other words, unlike the Gillaco
case, the killing of the passenger here took place in the course of duty of
the guilty employee and when the employee was acting within the scope of
his duties.

Moreover, the Gillaco case was decided under the provisions of the Civil
Code of 1889 which, unlike the present Civil Code, did not impose upon
common carriers absolute liability for the safety of passengers against
wilful assaults or negligent acts committed by their employees. The death
of the passenger in the Gillaco case was truly a fortuitous event which
exempted the carrier from liability. It is true that Art. 1105 of the old Civil
Code on fortuitous events has been substantially reproduced in Art. 1174 of
the Civil Code of the Philippines but both articles clearly remove from their
exempting effect the case where the law expressly provides for liability in
spite of the occurrence of force majeure. And herein significantly lies the
statutory difference between the old and present Civil Codes, in the
backdrop of the factual situation before Us, which further accounts for a
different result in the Gillaco case. Unlike the old Civil Code, the new Civil
Code of the Philippines expressly makes the common carrier liable for

The Civil Code provisions on the subject of Common Carriers1 are new and
were taken from Anglo-American Law.2 There, the basis of the carrier's
liability for assaults on passengers committed by its drivers rests either on
(1) the doctrine of respondeat superior or (2) the principle that it is the
carrier's implied duty to transport the passenger safely.3

Under the first, which is the minority view, the carrier is liable only when
the act of the employee is within the scope of his authority and duty. It is
not sufficient that the act be within the course of employment only.4

Under the second view, upheld by the majority and also by the later cases,
it is enough that the assault happens within the course of the employee's
duty. It is no defense for the carrier that the act was done in excess of
authority or in disobedience of the carrier's orders.5 The carrier's liability
here is absolute in the sense that it practically secures the passengers from
assaults committed by its own employees.6

As can be gleaned from Art. 1759, the Civil Code of the Philippines
evidently follows the rule based on the second view. At least three very
cogent reasons underlie this rule. As explained in Texas Midland R.R. v.
Monroe, 110 Tex. 97, 216 S.W. 388, 389-390, and Haver v. Central Railroad
Co., 43 LRA 84, 85: (1) the special undertaking of the carrier requires that it
furnish its passenger that full measure of protection afforded by the
exercise of the high degree of care prescribed by the law, inter alia from
violence and insults at the hands of strangers and other passengers, but
above all, from the acts of the carrier's own servants charged with the
passenger's safety; (2) said liability of the carrier for the servant's violation
of duty to passengers, is the result of the formers confiding in the servant's
hands the performance of his contract to safely transport the passenger,
delegating therewith the duty of protecting the passenger with the utmost

45

care prescribed by law; and (3) as between the carrier and the passenger,
the former must bear the risk of wrongful acts or negligence of the carrier's
employees against passengers, since it, and not the passengers, has power
to select and remove them.

G.R. No. 52159

December 22, 1989

JOSE PILAPIL, petitioner,

vs.

Accordingly, it is the carrier's strict obligation to select its drivers and

similar employees with due regard not only to their technical competence
and physical ability, but also, no less important, to their total personality,
including their patterns of behavior, moral fibers, and social attitude.

HON. COURT OF APPEALS and ALATCO TRANSPORTATION COMPANY, INC.,

respondents.

Martin Badong, Jr. for petitioner.

Applying this stringent norm to the facts in this case, therefore, the lower
court rightly adjudged the defendant carrier liable pursuant to Art. 1759 of
the Civil Code. The dismissal of the claim against the defendant driver was
also correct. Plaintiff's action was predicated on breach of contract of
carriage7 and the cab driver was not a party thereto. His civil liability is
covered in the criminal case wherein he was convicted by final judgment.

In connection with the award of damages, the court a quo granted only
P3,000 to plaintiff-appellant. This is the minimum compensatory damages
amount recoverable under Art. 1764 in connection with Art. 2206 of the
Civil Code when a breach of contract results in the passenger's death. As
has been the policy followed by this Court, this minimal award should be
increased to P6,000. As to other alleged actual damages, the lower court's
finding that plaintiff's evidence thereon was not convincing,8 should not be
disturbed. Still, Arts. 2206 and 1764 award moral damages in addition to
compensatory damages, to the parents of the passenger killed to
compensate for the mental anguish they suffered. A claim therefor, having
been properly made, it becomes the court's duty to award moral
damages.9 Plaintiff demands P5,000 as moral damages; however, in the
circumstances, We consider P3,000 moral damages, in addition to the
P6,000 damages afore-stated, as sufficient. Interest upon such damages
are also due to plaintiff-appellant. 10

Wherefore, with the modification increasing the award of actual damages in

plaintiff's favor to P6,000, plus P3,000.00 moral damages, with legal
interest on both from the filing of the complaint on December 6, 1961 until
the whole amount is paid, the judgment appealed from is affirmed in all
other respects. No costs. So ordered.

Eufronio K. Maristela for private respondent.

PADILLA, J.:

This is a petition to review on certiorari the decision* rendered by the Court

of Appeals dated 19 October 1979 in CA-G.R. No. 57354-R entitled "Jose
Pilapil, plaintiff-appellee versus Alatco Transportation Co., Inc., defendantappellant," which reversed and set aside the judgment of the Court of First
Instance of Camarines Sur in Civil Case No. 7230 ordering respondent
transportation company to pay to petitioner damages in the total sum of
sixteen thousand three hundred pesos (P 16,300.00).

The record discloses the following facts:

Petitioner-plaintiff Jose Pilapil, a paying passenger, boarded respondentdefendant's bus bearing No. 409 at San Nicolas, Iriga City on 16 September
1971 at about 6:00 P.M. While said bus No. 409 was in due course
negotiating the distance between Iriga City and Naga City, upon reaching
the vicinity of the cemetery of the Municipality of Baao, Camarines Sur, on
the way to Naga City, an unidentified man, a bystander along said national

46

highway, hurled a stone at the left side of the bus, which hit petitioner
above his left eye. Private respondent's personnel lost no time in bringing
the petitioner to the provincial hospital in Naga City where he was confined
and treated.

Considering that the sight of his left eye was impaired, petitioner was taken
to Dr. Malabanan of Iriga City where he was treated for another week. Since
there was no improvement in his left eye's vision, petitioner went to V. Luna
Hospital, Quezon City where he was treated by Dr. Capulong. Despite the
treatment accorded to him by Dr. Capulong, petitioner lost partially his left
eye's vision and sustained a permanent scar above the left eye.

Thereupon, petitioner instituted before the Court of First Instance of

Camarines Sur, Branch I an action for recovery of damages sustained as a
result of the stone-throwing incident. After trial, the court a quo rendered
judgment with the following dispositive part:

SO ORDERED 1

From the judgment, private respondent appealed to the Court of Appeals

where the appeal was docketed as CA-G.R. No. 57354R. On 19 October
1979, the Court of Appeals, in a Special Division of Five, rendered judgment
reversing and setting aside the judgment of the court a quo.

Hence the present petition.

In seeking a reversal of the decision of the Court of Appeals, petitioner

contends that said court has decided the issue not in accord with law.
Specifically, petitioner argues that the nature of the business of a
transportation company requires the assumption of certain risks, and the
stoning of the bus by a stranger resulting in injury to petitioner-passenger is
one such risk from which the common carrier may not exempt itself from
liability.

Wherefore, judgment is hereby entered:

We do not agree.
1.
Ordering defendant transportation company to pay plaintiff Jose
Pilapil the sum of P 10,000.00, Philippine Currency, representing actual and
material damages for causing a permanent scar on the face and injuring
the eye-sight of the plaintiff;

2.
Ordering further defendant transportation company to pay the
sum of P 5,000.00, Philippine Currency, to the plaintiff as moral and
exemplary damages;

3.
Ordering furthermore, defendant transportation company to
reimburse plaintiff the sum of P 300.00 for his medical expenses and
attorney's fees in the sum of P 1,000.00, Philippine Currency; and

4.

To pay the costs.

In consideration of the right granted to it by the public to engage in the

business of transporting passengers and goods, a common carrier does not
give its consent to become an insurer of any and all risks to passengers and
goods. It merely undertakes to perform certain duties to the public as the
law imposes, and holds itself liable for any breach thereof.

Under Article 1733 of the Civil Code, common carriers are required to
observe extraordinary diligence for the safety of the passenger transported
by them, according to all the circumstances of each case. The requirement
of extraordinary diligence imposed upon common carriers is restated in
Article 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." Further,
in case of death of or injuries to passengers, the law presumes said
common carriers to be at fault or to have acted negligently. 2

47

While the law requires the highest degree of diligence from common
carriers in the safe transport of their passengers and creates a presumption
of negligence against them, it does not, however, make the carrier an
insurer of the absolute safety of its passengers. 3

Article 1755 of the Civil Code qualifies the duty of extraordinary care,
vigilance and precaution in the carriage of passengers by common carriers
to only such as human care and foresight can provide. what constitutes
compliance with said duty is adjudged with due regard to all the
circumstances.

Article 1756 of the Civil Code, in creating a presumption of fault or

negligence on the part of the common carrier when its passenger is injured,
merely relieves the latter, for the time being, from introducing evidence to
fasten the negligence on the former, because the presumption stands in
the place of evidence. Being a mere presumption, however, the same is
rebuttable by proof that the common carrier had exercised extraordinary
diligence as required by law in the performance of its contractual
obligation, or that the injury suffered by the passenger was solely due to a
fortuitous event. 4

In fine, we can only infer from the law the intention of the Code
Commission and Congress to curb the recklessness of drivers and operators
of common carriers in the conduct of their business.

Thus, it is clear that neither the law nor the nature of the business of a
transportation company makes it an insurer of the passenger's safety, but
that its liability for personal injuries sustained by its passenger rests upon
its negligence, its failure to exercise the degree of diligence that the law
requires. 5

Petitioner contends that respondent common carrier failed to rebut the

presumption of negligence against it by proof on its part that it exercised
extraordinary diligence for the safety of its passengers.

First, as stated earlier, the presumption of fault or negligence against the

carrier is only a disputable presumption. It gives in where contrary facts are
established proving either that the carrier had exercised the degree of
diligence required by law or the injury suffered by the passenger was due
to a fortuitous event. Where, as in the instant case, the injury sustained by
the petitioner was in no way due to any defect in the means of transport or
in the method of transporting or to the negligent or willful acts of private
respondent's employees, and therefore involving no issue of negligence in
its duty to provide safe and suitable cars as well as competent employees,
with the injury arising wholly from causes created by strangers over which
the carrier had no control or even knowledge or could not have prevented,
the presumption is rebutted and the carrier is not and ought not to be held
liable. To rule otherwise would make the common carrier the insurer of the
absolute safety of its passengers which is not the intention of the
lawmakers.

Second, while as a general rule, common carriers are bound to exercise

extraordinary diligence in the safe transport of their passengers, it would
seem that this is not the standard by which its liability is to be determined
when intervening acts of strangers is to be determined directly cause the
injury, while the contract of carriage Article 1763 governs:

Article 1763.
A common carrier is responsible for injuries suffered by a
passenger on account of the wilful acts or negligence of other passengers
or of strangers, if the common carrier's employees through the exercise of
the diligence of a good father of a family could have prevented or stopped
the act or omission.

Clearly under the above provision, a tort committed by a stranger which

causes injury to a passenger does not accord the latter a cause of action
against the carrier. The negligence for which a common carrier is held
responsible is the negligent omission by the carrier's employees to prevent
the tort from being committed when the same could have been foreseen
and prevented by them. Further, under the same provision, it is to be noted
that when the violation of the contract is due to the willful acts of strangers,
as in the instant case, the degree of care essential to be exercised by the
common carrier for the protection of its passenger is only that of a good
father of a family.

We do not agree.

48

Petitioner has charged respondent carrier of negligence on the ground that

the injury complained of could have been prevented by the common carrier
if something like mesh-work grills had covered the windows of its bus.

We do not agree.

Although the suggested precaution could have prevented the injury

complained of, the rule of ordinary care and prudence is not so exacting as
to require one charged with its exercise to take doubtful or unreasonable
precautions to guard against unlawful acts of strangers. The carrier is not
charged with the duty of providing or maintaining vehicles as to absolutely
prevent any and all injuries to passengers. Where the carrier uses cars of
the most approved type, in general use by others engaged in the same
occupation, and exercises a high degree of care in maintaining them in
suitable condition, the carrier cannot be charged with negligence in this
respect. 6

Finally, petitioner contends that it is to the greater interest of the State if a

carrier were made liable for such stone-throwing incidents rather than have
the bus riding public lose confidence in the transportation system.

G.R. No. L-10126

October 22, 1957

SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA,

LUZVIMINDA, ELENITA, OSCAR and ALFREDO BATACLAN, represented by
their Natural guardian, SALUD VILLANUEVA VDA. DE BATACLAN, plaintiffsappellants,
vs.

Sad to say, we are not in a position to so hold; such a policy would be

better left to the consideration of Congress which is empowered to enact
laws to protect the public from the increasing risks and dangers of
lawlessness in society.

MARIANO MEDINA, defendant-appellant.

Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for plaintiffsappellants.

WHEREFORE, the judgment appealed from is hereby AFFIRMED.

SO ORDERED.

Melencio-Herrera (Chairperson), Sarmiento and Regalado, concur.

Paras, J., took no part.

Fortunato Jose for defendant and appellant.

MONTEMAYOR, J.:

Shortly after midnight, on September 13, 1952 bus no. 30 of the Medina
Transportation, operated by its owner defendant Mariano Medina under a
certificate of public convenience, left the town of Amadeo, Cavite, on its
way to Pasay City, driven by its regular chauffeur, Conrado Saylon. There

49

were about eighteen passengers, including the driver and conductor.

Among the passengers were Juan Bataclan, seated beside and to the right
of the driver, Felipe Lara, sated to the right of Bataclan, another passenger
apparently from the Visayan Islands whom the witnesses just called Visaya,
apparently not knowing his name, seated in the left side of the driver, and a
woman named Natalia Villanueva, seated just behind the four last
mentioned. At about 2:00 o'clock that same morning, while the bus was
running within the jurisdiction of Imus, Cavite, one of the front tires burst
and the vehicle began to zig-zag until it fell into a canal or ditch on the right
side of the road and turned turtle. Some of the passengers managed to
leave the bus the best way they could, others had to be helped or pulled
out, while the three passengers seated beside the driver, named Bataclan,
Lara and the Visayan and the woman behind them named Natalia
Villanueva, could not get out of the overturned bus. Some of the
passengers, after they had clambered up to the road, heard groans and
moans from inside the bus, particularly, shouts for help from Bataclan and
Lara, who said they could not get out of the bus. There is nothing in the
evidence to show whether or not the passengers already free from the
wreck, including the driver and the conductor, made any attempt to pull out
or extricate and rescue the four passengers trapped inside the vehicle, but
calls or shouts for help were made to the houses in the neighborhood. After
half an hour, came about ten men, one of them carrying a lighted torch
made of bamboo with a wick on one end, evidently fueled with petroleum.
These men presumably approach the overturned bus, and almost
immediately, a fierce fire started, burning and all but consuming the bus,
including the four passengers trapped inside it. It would appear that as the
bus overturned, gasoline began to leak and escape from the gasoline tank
on the side of the chassis, spreading over and permeating the body of the
bus and the ground under and around it, and that the lighted torch brought
by one of the men who answered the call for help set it on fire.

That same day, the charred bodies of the four deemed passengers inside
the bus were removed and duly identified that of Juan Bataclan. By reason
of his death, his widow, Salud Villanueva, in her name and in behalf of her
five minor children, brought the present suit to recover from Mariano
Medina compensatory, moral, and exemplary damages and attorney's fees
in the total amount of P87,150. After trial, the Court of First Instance of
Cavite awarded P1,000 to the plaintiffs plus P600 as attorney's fee, plus
P100, the value of the merchandise being carried by Bataclan to Pasay City
for sale and which was lost in the fire. The plaintiffs and the defendants
appealed the decision to the Court of Appeals, but the latter endorsed the
appeal to us because of the value involved in the claim in the complaint.

Our new Civil Code amply provides for the responsibility of common carrier
to its passengers and their goods. For purposes of reference, we are
reproducing the pertinent codal provisions:

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
extra ordinary 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

ART. 1759. Common carriers are liable for the death of or injuries to
passengers through the negligence or willful acts of the former's
employees, although such employees may have acted beyond the scope of
their authority or in violation of the order of the common carriers.

This liability of the common carriers does not cease upon proof that they
exercised all the diligence of a good father of a family in the selection and
supervision of their employees.

ART. 1763. A common carrier responsible for injuries suffered by a

passenger on account of the willful acts or negligence of other passengers
or of strangers, if the common carrier's employees through the exercise of

50

the diligence of a good father of a family could have prevented or stopped

the act or omission.

ground to expect at the moment of his act or default that an injury to some
person might probably result therefrom.

We agree with the trial court that the case involves a breach of contract of
transportation for hire, the Medina Transportation having undertaken to
carry Bataclan safely to his destination, Pasay City. We also agree with the
trial court that there was negligence on the part of the defendant, through
his agent, the driver Saylon. There is evidence to show that at the time of
the blow out, the bus was speeding, as testified to by one of the
passengers, and as shown by the fact that according to the testimony of
the witnesses, including that of the defense, from the point where one of
the front tires burst up to the canal where the bus overturned after zigzaging, there was a distance of about 150 meters. The chauffeur, after the
blow-out, must have applied the brakes in order to stop the bus, but
because of the velocity at which the bus must have been running, its
momentum carried it over a distance of 150 meters before it fell into the
canal and turned turtle.

It may be that ordinarily, when a passenger bus overturns, and pins down a
passenger, merely causing him physical injuries, if through some event,
unexpected and extraordinary, the overturned bus is set on fire, say, by
lightning, or if some highwaymen after looting the vehicle sets it on fire,
and the passenger is burned to death, one might still contend that the
proximate cause of his death was the fire and not the overturning of the
vehicle. But in the present case under the circumstances obtaining in the
same, we do not hesitate to hold that the proximate cause was the
overturning of the bus, this for the reason that when the vehicle turned not
only on its side but completely on its back, the leaking of the gasoline from
the tank was not unnatural or unexpected; that the coming of the men with
a lighted torch was in response to the call for help, made not only by the
passengers, but most probably, by the driver and the conductor
themselves, and that because it was dark (about 2:30 in the morning), the
rescuers had to carry a light with them, and coming as they did from a rural
area where lanterns and flashlights were not available; and what was more
natural than that said rescuers should innocently approach the vehicle to
extend the aid and effect the rescue requested from them. In other words,
the coming of the men with a torch was to be expected and was a natural
sequence of the overturning of the bus, the trapping of some of its
passengers and the call for outside help. What is more, the burning of the
bus can also in part be attributed to the negligence of the carrier, through
is driver and its conductor. According to the witness, the driver and the
conductor were on the road walking back and forth. They, or at least, the
driver should and must have known that in the position in which the
overturned bus was, gasoline could and must have leaked from the
gasoline tank and soaked the area in and around the bus, this aside from
the fact that gasoline when spilled, specially over a large area, can be
smelt and directed even from a distance, and yet neither the driver nor the
conductor would appear to have cautioned or taken steps to warn the
rescuers not to bring the lighted torch too near the bus. Said negligence on
the part of the agents of the carrier come under the codal provisions abovereproduced, particularly, Articles 1733, 1759 and 1763.

There is no question that under the circumstances, the defendant carrier is

liable. The only question is to what degree. The trial court was of the
opinion that the proximate cause of the death of Bataclan was not the
overturning of the bus, but rather, the fire that burned the bus, including
himself and his co-passengers who were unable to leave it; that at the time
the fire started, Bataclan, though he must have suffered physical injuries,
perhaps serious, was still alive, and so damages were awarded, not for his
death, but for the physical injuries suffered by him. We disagree. A
satisfactory definition of proximate cause is found in Volume 38, pages 695696 of American jurisprudence, cited by plaintiffs-appellants in their brief. It
is as follows:

. . . 'that cause, which, in natural and continuous sequence, unbroken by

any efficient intervening cause, produces the injury, and without which the
result would not have occurred.' And more comprehensively, 'the proximate
legal cause is that acting first and producing the injury, either immediately
or by setting other events in motion, all constituting a natural and
continuous chain of events, each having a close causal connection with its
immediate predecessor, the final event in the chain immediately effecting
the injury as a natural and probable result of the cause which first acted,
under such circumstances that the person responsible for the first event
should, as an ordinary prudent and intelligent person, have reasonable

As regard the damages to which plaintiffs are entitled, considering the

earning capacity of the deceased, as well as the other elements entering
into a damage award, we are satisfied that the amount of SIX THOUSAND
(P6,000) PESOS would constitute satisfactory compensation, this to include
compensatory, moral, and other damages. We also believe that plaintiffs
are entitled to attorney's fees, and assessing the legal services rendered by

51

plaintiffs' attorneys not only in the trial court, but also in the course of the
appeal, and not losing sight of the able briefs prepared by them, the
attorney's fees may well be fixed at EIGHT HUNDRED (P800) PESOS for the
loss of merchandise carried by the deceased in the bus, is adequate and
will not be disturbed.

Paras, C. J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador,

Concepcion, Reyes, J. B. L., Endencia, and Felix, JJ., concur.

There is one phase of this case which disturbs if it does not shock us.
According to the evidence, one of the passengers who, because of the
injuries suffered by her, was hospitalized, and while in the hospital, she was
visited by the defendant Mariano Medina, and in the course of his visit, she
overheard him speaking to one of his bus inspectors, telling said inspector
to have the tires of the bus changed immediately because they were
already old, and that as a matter of fact, he had been telling the driver to
change the said tires, but that the driver did not follow his instructions. If
this be true, it goes to prove that the driver had not been diligent and had
not taken the necessary precautions to insure the safety of his passengers.
Had he changed the tires, specially those in front, with new ones, as he had
been instructed to do, probably, despite his speeding, as we have already
stated, the blow out would not have occurred. All in all, there is reason to
believe that the driver operated and drove his vehicle negligently, resulting
in the death of four of his passengers, physical injuries to others, and the
complete loss and destruction of their goods, and yet the criminal case
against him, on motion of the fiscal and with his consent, was provisionally
dismissed, because according to the fiscal, the witnesses on whose
testimony he was banking to support the complaint, either failed or appear
or were reluctant to testify. But the record of the case before us shows the
several witnesses, passengers, in that bus, willingly and unhesitatingly
testified in court to the effect of the said driver was negligent. In the public
interest the prosecution of said erring driver should be pursued, this, not
only as a matter of justice, but for the promotion of the safety of
passengers on public utility buses. Let a copy of this decision be furnished
the Department of Justice and the Provincial Fiscal of Cavite.

In view of the foregoing, with the modification that the damages awarded
by the trial court are increased from ONE THOUSAND (P1,000) PESOS TO
SIX THOUSAND (P6,000) PESOS, and from SIX HUNDRED PESOS TO EIGHT
HUNDRED (P800) PESOS, for the death of Bataclan and for the attorney's
fees, respectively, the decision appealed is from hereby affirmed, with
costs.

52

G.R. No. L-9671

CESAR L. ISAAC, plaintiff-appellant,

capacity; (4) P50,000 as moral damages; and (5) P10,000 as attorneys' fees
and costs of suit.

vs.
A. L. AMMEN TRANSPORTATION CO., INC., defendant-appellee.

Angel S. Gamboa for appellant.

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.

Manuel O. Chan for appellee.

BAUTISTA ANGELO, J.:

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

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

53

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.

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.

The Code Commission, in justifying this extraordinary diligence required of

a common carrier, says the following:

54

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.

55

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.

56