3. LASAM vs.

SMITH

G.R. No. L-19495 February 2, 1924

HONORIO LASAM, ET AL., plaintiffs-appellants,

vs.
FRANK SMITH, JR., defendant-appellant.

Palma and Leuterio for plaintiffs-appellants.

Mariano Alisangco for defendant-appellant.

OSTRAND, J.:

The plaintiff are husband and wife and this action is brought to recover damages in the sum of
P20,000 for physical injuries sustained by them in an automobile accident. The trial court rendered a
judgment in their favor for the sum of P1,254.10, with legal interest from the date of the judgment.
Both the plaintiffs and the defendant appeal, the former maintaining that the damages awarded are
insufficient while the latter denies all liability for any damages whatever.

It appears from the evidence that on February 27, 1918, the defendant was the owner of a public
garage in the town of San Fernando, La Union, and engaged in the business of carrying passengers
for hire from the one point to another in the Province of La Union and the surrounding provinces. On
the date mentioned, he undertook to convey the plaintiffs from San Fernando to Currimao, Ilocos
Norte, in a Ford automobile. On leaving San Fernando, the automobile was operated by a licensed
chauffeur, but after having reached the town of San Juan, the chauffeur allowed his assistant,
Remigio Bueno, to drive the car. Bueno held no driver's license, but had some experience in driving,
and with the exception of some slight engine trouble while passing through the town of Luna, the car
functioned well until after the crossing of the Abra River in Tagudin, when, according to the
testimony of the witnesses for the plaintiffs, defects developed in the steering gear so as to make
accurate steering impossible, and after zigzagging for a distance of about half a kilometer, the car
left the road and went down a steep embankment.

The defendant, in his testimony, maintains that there was no defect in the steering gear, neither
before nor after the accident, and expresses the opinion that the swaying or zigzagging of the car
must have been due to its having been driven at an excessive rate of speed. This may possibly be
true, but it is, from our point of view, immaterial whether the accident was caused by negligence on
the part of the defendant's employees, or whether it was due to defects in the automobile; the result
would be practically the same in either event.

In going over the bank of the road, the automobile was overturned and the plaintiffs pinned down
under it. Mr. Lasam escaped with a few contusions and a "dislocated" rib , but his wife, Joaquina
Sanchez, received serious injuries, among which was a compound fracture of one of the bones in
her left wrist. She also appears to have suffered a nervous breakdown from which she had not fully
recovered at the time of the trial.

The complaint in the case was filed about a year and a half after the occurrence above related. It
alleges, among other things, that the accident was due to defects in the automobile as well as to the
incompetence and negligence of the chauffeur, and the case appears to have been tried largely
upon the theory that it sounds in tort and that the liability of the defendant is governed by article 1903
of the Civil Code. The trial court held, however, that the cause of action rests on the defendant's
breach of the contract of carriage and that, consequently, articles 1101-1107 of the Civil Code, and
not article 1903, are applicable. The court further found that the breach of the contract was not due
to fortuitous events and that, therefore, the defendant was liable in damages.

In our opinion, the conclusions of the court below are entirely correct. That upon the facts stated the
defendant's liability, if any, is contractual, is well settled by previous decisions of the court, beginning
with the case of Rakes vs. Atlantic, Gulf & Pacific Co. (7 Phil., 359), and the distinction between
extra-contractual liability and contractual liability has been so ably and exhaustively discussed in
various other cases, that nothing further need here be said upon that subject. (See Cangco vs.
Manila Railroad Co., 38 Phil., 768; Manila Railroad Co. vs. Compania Trasatlantica and Atlantic, Gulf
& Pacific Co., 38 Phil., 875; De Guia vs. Manila Electric Railroad & Light Co., 40 Phil., 706.) It is
sufficient to reiterate that the source of the defendant's legal liability is the contract of carriage; that
by entering into that contract he bound himself to carry the plaintiffs safely and securely to their
destination; and that having failed to do so he is liable in damages unless he shows that the failure
to fulfill his obligation was due to causes mentioned in article 1105 of the Civil Code, which reads as
follows:

No one shall be liable for events which could not be foreseen or which, even if foreseen,
were inevitable, with the exception of the cases in which the law expressly provides
otherwise and those in which the obligation itself imposes such liability.

This brings us to the principal question in the case:

What is meant by "events which cannot be foreseen and which, having been foreseen, are
inevitable?" The Spanish authorities regard the language employed as an effort to define the
term caso fortuito and hold that the two expressions are synonymous. (Manresa, Comentarios al
Codigo Civil Espaol, vol. 8, pp. 88 et seq.; Scvola, Codigo Civil, vol. 19, pp. 526 et seq.)

The antecedent to article 1105 is found in Law 11, Title 33, Partida 7, which defines caso fortuito as
"occasion que a case por aventura de que non se puede ante ver. E son estos, derrivamientos de
casas e fuego que se enciende a so ora, e quebrantamiento de navio, fuerca de ladrones. . . . (An
event that takes place by accident and could not have been foreseen. Examples of this are
destruction of houses, unexpected fire, shipwreck, violence of robbers. . . .)"

Escriche defines caso fortuito as "an unexpected event or act of God which could either be foreseen
nor resisted, such as floods, torrents, shipwrecks, conflagrations, lightning, compulsion,
insurrections, destructions, destruction of buildings by unforseen accidents and other occurrences of
a similar nature."

In discussing and analyzing the term caso fortuito the Enciclopedia Juridica Espaola says: "In a
legal sense and, consequently, also in relation to contracts, a caso fortuito presents the following
essential characteristics: (1) The cause of the unforeseen and unexpected occurrence, or of the
failure of the debtor to comply with his obligation, must be independent of the human will. (2) It must
be impossible to foresee the event which constitutes the caso fortuito, or if it can be foreseen, it must
be impossible to avoid. (3) The occurrence must be such as to render it impossible for the debtor to
fulfill his obligation in a normal manner. And (4) the obligor (debtor) must be free from any
participation in the aggravation of the injury resulting to the creditor." (5 Enciclopedia Juridica
Espaola, 309.)

As will be seen, these authorities agree that some extraordinary circumstance independent of the
will of the obligor, or of his employees, is an essential element of a caso fortuito. Turning to the
present case, it is at once apparent that this element is lacking. It is not suggested that the accident
in question was due to an act of God or to adverse road conditions which could not have been
foreseen. As far as the records shows, the accident was caused either by defects in the automobile
or else through the negligence of its driver. That is not a caso fortuito.

We agree with counsel that neither under the American nor Spanish law is a carrier of passengers
an absolute insurer against the risks of travel from which the passenger may protect himself by
exercising ordinary care and diligence. The case of Alba vs. Sociedad Anonima de
Tranvias, Jurisprudencia Civil, vol. 102, p. 928, cited by the defendant in support of his contentions,
affords a good illustration of the application of this principle. In that case Alba, a passenger on a
street car, was standing on the platform of the car while it was in motion. The car rounded a curve
causing Alba to lose his balance and fall off the platform, sustaining severe injuries. In an action
brought by him to recover damages, the supreme court of Spain held that inasmuch as the car at the
time of the accident was travelling at a moderate rate of speed and there was no infraction of the
regulations, and the plaintiff was exposed to no greater danger than that inherent in that particular
mode of travel, the plaintiff could not recover, especially so since he should have been on his guard
against a contingency as natural as that of losing his balance to a greater or less extent when the
car rounded the curve.

But such is not the present case; here the passengers had no means of avoiding the danger or
escaping the injury.

The plaintiffs maintain that the evidence clearly establishes that they are entitled to damages in the
sum of P7,832.80 instead of P1,254.10 as found by the trial court, and their assignments of error
relate to this point only.
There can be no doubt that the expenses incurred by the plaintiffs as a result of the accident greatly
exceeded the amount of the damages awarded. But bearing in mind that in determining the extent of
the liability for losses or damages resulting from negligence in the fulfillment of a contractual
obligation, the courts have "a discretionary power to moderate the liability according to the
circumstances" (De Guia vs. Manila Electric Railroad & Light Co., 40 Phil., 706; art. 1103, Civil
Code), we do not think that the evidence is such as to justify us in interfering with the discretion of
the court below in this respect. As pointed out by that court in its well-reasoned and well-considered
decision, by far the greater part of the damages claimed by the plaintiffs resulted from the fracture of
a bone in the left wrist of Joaquina Sanchez and from her objections to having a decaying splinter of
the bone removed by a surgical operation. As a consequence of her refusal to submit such an
operation, a series of infections ensued and which required constant and expensive medical
treatment for several years. We agree with the court below that the defendant should not be charged
with these expenses.

For the reasons stated, the judgment appealed from is affirmed, without costs in this instance. So
ordered.

Araullo, C.J., Street, Malcolm, Johns and Romualdez, JJ., concur.