1

Safety of the Passengers

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

HONORIO LASAM, ET AL., plaintiffs-appellants,
vs.
FRANK SMITH, JR., defendant-appellant.

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

It appears from the evidence that on February 27, 1918, the

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

The defendant, in his testimony, maintains that there was

no defect in the steering gear, neither before nor after the
accident, and expresses the opinion that the swaying or
zigzagging of the car must have been due to its having been
 2

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
 3

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 Español,
vol. 8, pp. 88 et seq.; Scævola, 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 Española says: "In a legal
sense and, consequently, also in relation to contracts, a caso
fortuito presents the following essential characteristics: (1) The
 4

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
Española, 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.
 5

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.
 6

G.R. No. L-5044, April 30, 1953

AMPANG (MORO), AMSIA (MORA) AND LUMPITAN

(MORO), PLAINTIFFS AND APPELLANTS, VS.
GUINOO TRANSPORTATION CO. AND VICENTE
GUINOO, DEFENDANTS AND APPELLEES.

DECISION
PARAS, C.J.:

On March 21, 1948, Moros Lambayong and Amsia were

paid passengers in bus No. 24, bearing TPU plate No. 7629, and
belonging to the Guinoo Transportation Company, on its return
trip from Digos to Davao City. When said bus came to kilometer
44, it capsized on the road, as a result of which Lambayong died
and Amsia suffered physical injuries Amsia, Ampang and
Lumpitan instituted the present action in the Court of First
Instance of Davao, to recover from the Guinoo Transportation
Company and its manager, Vicente Guinoo, P2,000.00 as
damages for the death of Lambayong and P1,000.00 as damages
suffered by Amsia for the physical injuries. After hearing, the
court dismissed the complaint on the following grounds: "Sin
embargo, del contenido de la declaracion jurada suscrita por
Amsia Puna y Lumpitan Dumingay se infiere claramente, que el
accidente que causo la muerte de Lambayong, las lessiones
causadas en la persona de Amsia, y la imposibilidad de los
pasajeros de llegar a su destino, se debio' a un caso forfuito que
estaba fuera del alcance de los demandados y del chofer Quirino
Piezas." The plaintiffs have appealed.

It appears that the case was submitted for decision

practically on the pleadings and the meager stipulation of facts
entered into by the parties in open court, without any attempt on
the part of the plaintiffs to show by proper evidence that the
accident in question was due to any fault of the defendants'
driver, and not to a fortuitous event. Upon the other hand, the
 7

records show that, as a result of the accident, a criminal case was

filed in the Justice of the Peace Court of Sta. Cruz against the
driver, Quirino Piezas, but said case was dismissed upon the
joint affidavit of Amsia and Lumpitan. This affidavit was
presented in evidence and the lower court based its decision
mainly thereon. In said affidavit Amsia and Lumpitan declared
as follows:

"That as the HABACCO bus No. 39 was overtaking the

QUITRANCO bus we felt that the HABACCO bus struck the
QUITRANCO bus somewhere on its left side, thus suddenly
pushing the said QUITRANCO bus toward the canal on the right
side of the road, and the driver of the QUITRANCO bus
swerved the truck to the left in order to prevent the truck from
falling into the canal, and striking a tree standing on the side of
the road, and the HABACCO bus which was running very fast
proceeded on its way.

"Then when the driver of the truck of the QUITRANCO

suddenly swerved the truck to the left in order to prevent it from
falling to the canal and striking a tree on the side of the road, the
truck skidded, thereby turning the truck upside down and as a
result of which we suffered injuries including Lamayong
Mantuching who later died because of the injuries she received."

It is obvious from these statements that the accident could

not be attributed in any manner to any fault or omission of the
defendants' driver. Of course, it is now pretended by counsel for
the appellants that "After investigation made by the PC officers
and policemen in charge of the case, the negligence imputed to
the driver of the HABACCO truck No. 39 was found not true,
because no sign or mark of any collision was found on said two
trucks and the driver of the Habacco truck and the passengers of
said two trucks denied that any such collision has ever taken
place." However, this allegation cannot be given any weight,
there being nothing in the record to sustain it. Upon the other
 8

hand, the affidavit of Amsia and Lumpitan was introduced at the

hearing without any objection from counsel for appellants.

It is urged for the appellants that the appellees are liable

under their contract as transport safely passengers Lambayong
and Amsia to their destination, regardless of any fault or
negligence that cause the accident, reliance being placed on the
case of Lasam vs. Smith, 45 Phil. 657. This authority, however,
comes to the aid of the appellees, because the carrier is
thereunder excused from liability if the accident is due to a
fortuitous event, and this was the ruling in the appealed decision.
This Court, in interpreting "fortuitous event", stated that "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." From the
facts of the case at bar it is clear that the defendants' bus which
carried Lambayong and Amsia capsized after being bumped on
the left side by Habacco bus No. 39, which caused the
defendants' driver to swerve his bus to the left so as to prevent it
from falling into the canal and striking a tree, a maneuver which
led the bus to skid and capsize. This, in our opinion, resulted
from the extraordinary circumstance of being resulted from the
extraordinary circumstance of being struck by the Habacco bus,
independent of the will of, and unforseen by the defendants'
driver, in the absence of any showing to the contrary.

Wherefore, the appealed decision is affirmed, and it is so

ordered without costs.
 9

G.R. No. L-22985 January 24, 1968

BATANGAS TRANSPORTATION COMPANY, petitioner,
vs.
GREGORIO CAGUIMBAL, PANCRACIO CAGUIMBAL,
MARIA MARANAN DE CAGUIMBAL, BIÑAN
TRANSPORTATION COMPANY and MARCIANO
ILAGAN, respondents.
Ozaeta, Gibbs and Ozaeta and Domingo E. de Lara for
petitioner.
Victoriano H. Endaya for respondents.
CONCEPCION, C.J.:
Appeal by certiorari from a decision of the Court of Appeals.
The main facts are set forth in said decision from which we
quote:
There is no dispute at all that the deceased Pedro
Caguimbal, Barrio Lieutenant of Barrio Calansayan, San
Jose, Batangas, was a paying passenger of BTCO bus, with
plate TPU-507, going south on its regular route from
Calamba, Laguna, to Batangas, Batangas, driven by Tomas
Perez, its regular driver, at about 5:30 o'clock on the early
morning of April 25, 1954. The deceased's destination was
his residence at Calansayan, San Jose, Batangas. The bus of
the Biñan Transportation Company, bearing plate TPU-
820, driven by Marciano Ilagan, was coming from the
opposite direction (north-bound). Along the national
highway at Barrio Daraza, Tanauan, Batangas, on the date
and hour above indicated, a horse-driven rig (calesa)
managed by Benito Makahiya, which was then ahead of the
Biñan bus, was also coming from the opposite direction,
meaning proceeding towards the north. As to what
transpired thereafter, the lower court chose to give more
credence to defendant Batangas Transportation Company's
version which, in the words of the Court a quo, is as
follows: "As the BTCO bus was nearing a house, a
passenger requested the conductor to stop as he was going
to alight, and when he heard the signal of the conductor, the
driver Tomas Perez slowed down his bus swerving it
 10

farther to the right in order to stop; at this juncture,

a calesa, then driven by Benito Makahiya was at a distance
of several meters facing the BTCO bus coming from the
opposite direction; that at the same time the Biñan bus was
about 100 meters away likewise going northward and
following the direction of the calesa; that upon seeing the
Biñan bus the driver of the BTCO bus dimmed his light as
established by Magno Ilaw, the very conductor of the Biñan
bus at the time of the accident; that as the calesa and the
BTCO bus were passing each other from the opposite
directions, the Biñan bus following the calesa swerved to
its left in an attempt to pass between the BTCO bus and
thecalesa; that without diminishing its speed of about
seventy (70) kilometers an hour, the Biñan bus passed
through the space between the BTCO bus and
the calesa hitting first the left side of the BTCO bus with
the left front corner of its body and then bumped and struck
the calesa which was completely wrecked; that the driver
was seriously injured and the horse was killed; that the
second and all other posts supporting the top of the left side
of the BTCO bus were completely smashed and half of the
back wall to the left was ripped open. (Exhibits 1 and 2).
The BTCO bus suffered damages for the repair of its
damaged portion.
As a consequence of this occurrence, two (2) passengers of
BTCO died, namely, Pedro Caguimbal and Guillermo Tolentino,
apart from others who were injured. The widow and children of
Caguimbal instituted the present action, which was tried jointly
with a similar action of the Tolentinos, to recover damages from
the Batangas Transportation Company, hereinafter referred to as
BTCO. The latter, in turn, filed a third-party complaint against
the Biñan Transportation Company — hereinafter referred to as
Biñan — and its driver, Marciano Ilagan. Subsequently, the
Caguimbals amended their complaint, to include therein, as
defendants, said Biñan and Ilagan.
After appropriate proceedings, the Court of First Instance of
Batangas rendered a decision dismissing the complaint insofar
as the BTCO is concerned, without prejudice to plaintiff's right
to sue Biñan — which had stopped participating in the
proceedings herein, owing apparently, to a case in the Court of
 11

First Instance of Laguna for the insolvency of said enterprise —

and Ilagan, and without pronouncement as to costs.
On appeal taken by the Caguimbals, the Court of Appeals
reversed said decision and rendered judgment for them,
sentencing the BTCO, Biñan and Ilagan to, jointly and severally,
pay to the plaintiffs the aggregate sum of P10,500.00 1 and the
costs in both instances. Hence, this appeal by BTCO, upon the
ground that the Court of Appeals erred: 1) in finding said
appellant liable for damages; and 2) in awarding attorney's fees.
In connection with the first assignment of error, we note that the
recklessness of defendant was, manifestly, a major factor in the
occurrence of the accident which resulted, inter alia, in the death
of Pedro Caguimbal. Indeed, as driver of the Biñan bus, he
overtook Benito Makahiya's horse-driven rig or calesa and
passed between the same and the BTCO bus despite the fact that
the space available was not big enough therefor, in view of
which the Biñan bus hit the left side of the BTCO bus and then
the calesa. This notwithstanding, the Court of Appeals rendered
judgment against the BTCO upon the ground that its driver,
Tomas Perez, had failed to exercise the "extraordinary
diligence," required in Article 1733 of the new Civil Code, "in
the vigilance for the safety" of his passengers. 2
The record shows that, in order to permit one of them to
disembark, Perez drove his BTCO bus partly to the right
shoulder of the road and partly on the asphalted portion thereof.
Yet, he could have and should have seen to it — had he
exercised "extraordinary diligence" — that his bus was
completely outside the asphalted portion of the road, and fully
within the shoulder thereof, the width of which being more than
sufficient to accommodate the bus. He could have and should
have done this, because, when the aforementioned passenger
expressed his wish to alight from the bus, Ilagan had seen the
aforementioned "calesa", driven by Makahiya, a few meters
away, coming from the opposite direction, with the Biñan bus
about 100 meters behind the rig cruising at a good speed.3 When
Perez slowed down his BTCO bus to permit said passenger to
disembark, he must have known, therefore, that the Biñan bus
would overtake the calesa at about the time when the latter and
BTCO bus would probably be on the same line, on opposite
 12

sides of the asphalted portions of the road, and that the space
between the BTCO bus and the "calesa" would not be enough to
allow the Biñan bus to go through. It is true that the driver of the
Biñan bus should have slowed down or stopped, and, hence, was
reckless in not doing so; but, he had no especial obligations
toward the passengers of the BTCO unlike Perez whose duty
was to exercise "utmost" or "extraordinary" diligence for their
safety. Perez was thus under obligation to avoid a situation
which would be hazardous for his passengers, and, make their
safety dependent upon the diligence of the Biñan driver. Such
obligation becomes more patent when we considered the fact —
of which the Court may take judicial cognizance — that our
motor vehicle drivers, particularly those of public service
utilities, have not distinguished themselves for their concern
over the safety, the comfort or the convenience of others.
Besides, as correctly stated in the syllabus to Brito Sy vs. Malate
Taxicab & Garage, Inc., 4
In an action based on a contract of carriage, the court need
not make an express finding of fault or negligence on the
part of the carrier in order to hold it responsible to pay the
damages sought for by the passenger. By the contract of
carriage, the carrier assumes the express obligation to
transport the passenger to his destination safely and to
observe extraordinary diligence with a due regard for all
the circumstances, and any injury that might be suffered by
the passenger is right away attributable to the fault or
negligence of the carrier (Article 1756, new Civil Code).
This is an exception to the general rule that negligence
must be proved, and it is therefore incumbent upon the
carrier to prove that it has exercised extraordinary
diligence as prescribed in Articles 1733 and 1755 of the
new Civil Code.
In the case at bar, BTCO has not proven the exercise of
extraordinary diligence on its part. For this reason, the case
of Isaac vs. A. L. Ammen Trans. Co., Inc. 5 relied upon by
BTCO, is not in point, for, in said case, the public utility driver
had done everything he could to avoid the accident, and could
not have possibly avoided it, for he "swerved the bus to the
very extreme right of the road," which the driver, in the present
case, had failed to do.
 13

As regards the second assignment of error, appellant argues that

the award of attorney's fees is not authorized by law, because, of
the eleven (11) cases specified in Article 1208 of the new Civil
Code, only the fifth and the last are relevant to the one under
consideration; but the fifth case requires bad faith, which does
not exist in the case at bar. As regards the last case, which
permits the award, "where the court deems it just and equitable
that attorney's fees . . . should be recovered," it is urged that the
evidence on record does not show the existence of such just and
equitable grounds.
We, however, believe otherwise, for: (1) the accident in question
took place on April 25, 1954, and the Caguimbals have been
constrained to litigate for over thirteen (13) years to vindicate
their rights; and (2) it is high time to impress effectively upon
public utility operators the nature and extent of their
responsibility in respect of the safety of their passengers and
their duty to exercise greater care in the selection of drivers and
conductor and in supervising the performance of their duties, in
accordance, not only with Article 1733 of the Civil Code of the
Philippines, but, also, with Articles 1755 and 1756 thereof 6 and
the spirit of these provisions, as disclosed by the letter thereof,
and elucidated by the Commission that drafted the same. 7
WHEREFORE, the decision appealed from, should be, as it is
hereby, affirmed, with the costs of this instance against appellant
Batangas Transportation Company.
Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro,
Angeles and Fernando, JJ., concur.
Bengzon, J.P., J., took no part.
 14

G.R. No. L-22272 June 26, 1967

ANTONIA MARANAN, plaintiff-appellant,

vs.
PASCUAL PEREZ, ET AL., defendants.
PASCUAL PEREZ, defendant appellant.
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.
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 self-defense, 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.
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).
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
 15

the passengers. The attendant facts and controlling law of that

case and the one at bar are very different 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:
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)
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
 16

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 intentional assaults
committed by its employees upon its passengers, by the wording
of Art. 1759 which categorically states that
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.
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
 17

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 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.
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.
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
 18

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.
 19

G.R. No. L-21486 May 14, 1966

LA MALLORCA and PAMPANGA BUS
COMPANY, petitioner,
vs.
VALENTIN DE JESUS, MANOLO TOLENTINO and
COURT OF APPEALS, respondents.
Manuel O. Chan for petitioners.
Sixto T. Antonio for respondents.
MAKALINTAL, J.:
La Mallorca and Pampanga Bus Company, Inc., commonly
known as La Mallorca-Pambusco, filed this appeal by
certiorari from the decision of the Court of Appeals which
affirmed that rendered by the Court of First Instance of Bulacan
in its civil case No. 2100, entitled "Valentin de Jesus and
Manolo Tolentino vs. La Mallorca-Pambusco." The court a
quo sentenced the defendant, now petitioner, "to pay to plaintiffs
the amount of P2,132.50 for actual damages; P14,400.00 as
compensatory damages; P10,000.00 to each plaintiff by way of
moral damages; and P3,000.00 as counsel fees."
Two errors are attributed to the appellate Court: (1) "in
sustaining the decision (of the court a quo) holding that the
petitioners were liable for the accident which was caused by a
blow-out of one of the tires of the bus and in not considering the
same as caso fortuito," and (2) in holding petitioners liable for
moral damages.
The suit arose by reason of the death of Lolita de Jesus, 20-year
old daughter of Valentin de Jesus and wife of Manolo Tolentino,
in a head-on collision between petitioner's bus, on which she
was a passenger, and a freight truck traveling in the opposite
direction, in a barrio in Marilao Bulacan, in the morning of
October 8, 1959. The immediate cause of the collision was the
fact that the driver of the bus lost control of the wheel when its
left front tire suddenly exploded.
Petitioner maintains that a tire blow-out is a fortuitous event and
gives rise to no liability for negligence, citing the rulings of the
Court of Appeals in Rodriguez vs. Red Line Transportation Co.,
CA-G.R. No. 8136, December 29, 1954, and People vs. Palapad,
 20

CA-G.R. No. 18480, June 27, 1958. These rulings, however, not
only are not not binding on this Court but were based on
considerations quite different from those that obtain in the at
bar. The appellate Court there made no findings of any specified
acts of negligence on the part of the defendants and confined
itself to the question of whether or not a tire blow-out, by itself
alone and without a showing as to the causative factors, would
generate liability. In the present case, the cause of the blow-out
was known. The inner tube of the left front tire, according to
petitioner's own evidence and as found by the Court of Appeals
"was pressed between the inner circle of the left wheel and the
rim which had slipped out of the wheel." This was, said Court
correctly held, a mechanical defect of the conveyance or a fault
in its equipment which was easily discoverable if the bus had
been subjected to a more thorough, or rigid check-up before it
took to the road that morning.
Then again both the trial court and the Court of Appeals found
as a fact that the bus was running quite fast immediately before
the accident. Considering that the tire which exploded was not
new — petitioner describes it as "hindi masyadong kalbo," or
not so very worn out — the plea of caso fortuito cannot be
entertained.
The second issue raised by petitioner is already a settled one. In
this jurisdiction moral damages are recoverable by reason of the
death of a passenger caused by the breach of contract of a
common carrier, as provided in Article 1764, in relation to
Article 2206, of the Civil Code. These articles have been applied
by this Court in a number of cases, among them Necesito, etc.
vs. Paras, et al., L-10605-06, June 30, 1958; Mercado vs. Lira,
L-13328-29, Sept. 29, 1961; Villa-Rey Transit vs. Bello, L-
18957, April 23, 1963.
Wherefore, the judgment appealed from is affirmed, with costs
against petitioners.
 21

G.R. No. L-9671 August 23, 1957

CESAR L. ISAAC, plaintiff-appellant,

vs.
A. L. AMMEN TRANSPORTATION CO., INC., defendant-
appellee.
Angel S. Gamboa for appellant.
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
 22

of his earning capacity; (4) P50,000 as moral damages; and (5)

P10,000 as attorneys' fees and costs of suit.
Defendant set up as special defense that the injury suffered by
plaintiff was due entirely to the fault or negligence of the driver
of the pick-up car which collided with the bus driven by its
driver and to the contributory negligence of plaintiff himself.
Defendant further claims that the accident which resulted in the
injury of plaintiff is one which defendant could not foresee or,
though foreseen, was inevitable.
The after trial found that the collision occurred due to the
negligence of the driver of the pick-up car and not to that of the
driver of the bus it appearing that the latter did everything he
could to avoid the same but that notwithstanding his efforts, he
was not able to avoid it. As a consequence, the court dismissed
complaint, with costs against plaintiff. This is an appeal from
said decision.
It appears that plaintiff boarded a bus of defendant as paying
passenger from Ligao, Albay, bound for Pili, Camarines Sur, but
before reaching his destination, the bus collided with a pick-up
car which was coming from the opposite direction and, as a,
result, his left arm was completely severed and fell inside the
back part of the bus. Having this background in view, and
considering that plaintiff chose to hold defendant liable on its
contractual obligation to carry him safely to his place of
destination, it becomes important to determine the nature and
extent of the liability of a common carrier to a passenger in the
light of the law applicable in this jurisdiction.
In this connection, appellant invokes the rule that, "when an
action is based on a contract of carriage, as in this case, all that
is necessary to sustain recovery is proof of the existence of the
contract of the breach thereof by act or omission", and in
support thereof, he cites several Philippine cases.1 With the
ruling in mind, appellant seems to imply that once the contract
of carriage is established and there is proof that the same was
broken by failure of the carrier to transport the passenger safely
to his destination, the liability of the former attaches. On the
other hand, appellee claims that is a wrong presentation of the
rule. It claims that the decisions of this Court in the cases cited
do not warrant the construction sought to be placed upon, them
 23

by appellant for a mere perusal thereof would show that the

liability of the carrier was predicated not upon mere breach of its
contract of carriage but upon the finding that its negligence was
found to be the direct or proximate cause of the injury
complained of. Thus, appellee contends that "if there is no
negligence on the part of the common carrier but that the
accident resulting in injuries is due to causes which are
inevitable and which could not have been avoided or anticipated
notwithstanding the exercise of that high degree of care and skill
which the carrier is bound to exercise for the safety of his
passengers", neither the common carrier nor the driver is liable
therefor.
We believe that the law concerning the liability of a common
carrier has now suffered a substantial modification in view of
the innovations introduced by the new Civil Code. These
innovations are the ones embodied in Articles 1733, 1755 and
1756 in so far as the relation between a common carrier and its
passengers is concerned, which, for ready reference, we quote
hereunder:
ART. 1733. Common carriers, from the nature of their
business and for reasons of public policy, are bound to
observe extra ordinary diligence in the vigilance over the
goods and for the safety of the passengers transported by
them according to all the circumstances of each case.
Such extraordinary diligence in the vigilance over the
goods is further expressed in articles 1734, 1735, and 1745,
Nos. 5, 6, and 7, while the extraordinary diligence for the
safety of the passengers is further set forth in articles 1755
and 1756.
ART. 1755. A common carrier is bound to carry the
passengers safely as far as human care and foresight can
provide, using the utmost diligence of very cautious
persons, with a due regard for all the circumstances.
ART. 1756. In case of death of or injuries to passengers,
common carriers are presumed to have been at fault or to
have acted negligently, unless they prove that they
observed extraordinary diligence as prescribed in articles
1733 and 1755.
 24

The Code Commission, in justifying this extraordinary diligence

required of a common carrier, says the following:
A common carrier is bound to carry the passengers safely
as far as human care and foresight can provide, using the
utmost deligence of very cautions persons, with due regard
for all circumstances. This extraordinary diligence required
of common carriers is calculated to protect the passengers
from the tragic mishaps that frequently occur in connection
with rapid modern transportation. This high standard of
care is imperatively demanded by the precariousness of
human life and by the consideration that every person must
in every way be safeguarded against all injury. (Report of
the Code Commission, pp. 35-36)" (Padilla, Civil Code of
the Philippines, Vol. IV, 1956 ed., p. 197).
From the above legal provisions, we can make the following
restatement of the principles governing the liability of a
common carrier: (1) the liability of a carrier is contractual and
arises upon breach of its obligation. There is breach if it fails to
exert extraordinary diligence according to all circumstances of
each case; (2) a carrier is obliged to carry its passenger with the
utmost diligence of a very cautious person, having due regard
for all the circumstances; (3) a carrier is presumed to be at fault
or to have acted negligently in case of death of, or injury to,
passengers, it being its duty to prove that it exercised
extraordinary diligence; and (4) the carrier is not an insurer
against all risks of travel.
The question that now arises is: Has defendant observed
extraordinary diligence or the utmost diligence of every cautious
person, having due regard for all circumstances, in avoiding the
collision which resulted in the injury caused to the plaintiff?
After examining the evidence in connection with how the
collision occurred, the lower court made the following finding:
Hemos examinado muy detenidamente las pruebas
presentadas en la vista, principalmente, las declaraciones
que hemos acotado arriba, y hernos Ilegado a la conclusion
de que el demandado ha hecho, todo cuanto estuviere de su
parte para evitar el accidente, pero sin embargo, no ha
podido evitarlo.
 25

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
 26

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,
 27

perhaps the injury would have been avoided as is the case with
the other passenger. It is to be noted that appellant was the only
victim of the collision.
It is true that such contributory negligence cannot relieve
appellee of its liability but will only entitle it to a reduction of
the amount of damage caused (Article 1762, new Civil Code),
but this is a circumstance which further militates against the
position taken by appellant in this case.
It is the prevailing rule that it is negligence per se for a
passenger on a railroad voluntarily or inadvertently to
protrude his arm, hand, elbow, or any other part of his body
through the window of a moving car beyond the outer edge
of the window or outer surface of the car, so as to come in
contact with objects or obstacles near the track, and that no
recovery can be had for an injury which but for such
negligence would not have been sustained. (10 C. J. 1139)
Plaintiff, (passenger) while riding on an interurban car, to
flick the ashes, from his cigar, thrust his hand over the
guard rail a sufficient distance beyond the side line of the
car to bring it in contact with the trunk of a tree standing
beside the track; the force of the blow breaking his wrist.
Held, that he was guilty of contributory negligence as a
matter of law. (Malakia vs. Rhode Island Co., 89 A., 337.)
Wherefore, the decision appealed from is affirmed, with cost
against appellant.
 28

G.R. No. L-45637 May 31, 1985

ROBERTO JUNTILLA, petitioner,
vs.
CLEMENTE FONTANAR, FERNANDO BANZON and
BERFOL CAMORO, respondents.
Valentin A. Zozobrado for petitioner.
Ruperto N. Alfarara for respondents.
GUTIERREZ, JR., J.:
This is a petition for review, on questions of law, of the decision
of the Court of First Instance of Cebu which reversed the
decision of the City Court of Cebu and exonerated the
respondents from any liability arising from a vehicular accident.
The background facts which led to the filing of a complaint for
breach of contract and damages against the respondents are
summarized by the Court of First Instance of Cebu as follows:
The facts established after trial show that the plaintiff
was a passenger of the public utility jeepney bearing
plate No. PUJ-71-7 on the course of the trip from
Danao City to Cebu City. The jeepney was driven by
defendant Berfol Camoro. It was registered under the
franchise of defendant Clemente Fontanar but was
actually owned by defendant Fernando Banzon. When
the jeepney reached Mandaue City, the right rear tire
exploded causing the vehicle to turn turtle. In the
process, the plaintiff who was sitting at the front seat
was thrown out of the vehicle. Upon landing on the
ground, the plaintiff momentarily lost consciousness.
When he came to his senses, he found that he had a
lacerated wound on his right palm. Aside from this, he
suffered injuries on his left arm, right thigh and on his
back. (Exh. "D"). Because of his shock and injuries,
he went back to Danao City but on the way, he
discovered that his "Omega" wrist watch was lost.
Upon his arrival in Danao City, he immediately
entered the Danao City Hospital to attend to his
injuries, and also requested his father-in-law to
proceed immediately to the place of the accident and
 29

look for the watch. In spite of the efforts of his father-

in-law, the wrist watch, which he bought for P 852.70
(Exh. "B") could no longer be found.
xxx xxx xxx
Petitioner Roberto Juntilla filed Civil Case No. R-17378 for
breach of contract with damages before the City Court of Cebu
City, Branch I against Clemente Fontanar, Fernando Banzon and
Berfol Camoro.
The respondents filed their answer, alleging inter alia that the
accident that caused losses to the petitioner was beyond the
control of the respondents taking into account that the tire that
exploded was newly bought and was only slightly used at the
time it blew up.
After trial, Judge Romulo R. Senining of the Civil Court of
Cebu rendered judgment in favor of the petitioner and against
the respondents. The dispositive portion of the decision reads:
WHEREFORE, judgment is hereby rendered in favor
of the plaintiff and against the defendants and the
latter are hereby ordered, jointly and severally, to pay
the plaintiff the sum of P750.00 as reimbursement for
the lost Omega wrist watch, the sum of P246.64 as
unrealized salary of the plaintiff from his employer,
the further sum of P100.00 for the doctor's fees and
medicine, an additional sum of P300.00 for attorney's
fees and the costs.
The respondents appealed to the Court of First Instance of Cebu,
Branch XIV.
Judge Leonardo B. Canares reversed the judgment of the City
Court of Cebu upon a finding that the accident in question was
due to a fortuitous event. The dispositive portion of the decision
reads:
WHEREFORE, judgment is hereby rendered
exonerating the defendants from any liability to the
plaintiff without pronouncement as to costs.
 30

A motion for reconsideration was denied by the Court of First

Instance.
The petitioner raises the following alleged errors committed by
the Court of First Instance of Cebu on appeal—
a. The Honorable Court below committed grave abuse
of discretion in failing to take cognizance of the fact
that defendants and/or their employee failed to
exercise "utmost and/or extraordinary diligence"
required of common carriers contemplated under Art.
1755 of the Civil Code of the Philippines.
b. The Honorable Court below committed grave abuse
of discretion by deciding the case contrary to the
doctrine laid down by the Honorable Supreme Court
in the case of Necesito et al. v. Paras, et al.
We find the petition impressed with merit.
The City Court and the Court of First Instance of Cebu found
that the right rear tire of the passenger jeepney in which the
petitioner was riding blew up causing the vehicle to fall on its
side. The petitioner questions the conclusion of the respondent
court drawn from this finding of fact.
The Court of First Instance of Cebu erred when it absolved the
carrier from any liability upon a finding that the tire blow out is
a fortuitous event. The Court of First Instance of Cebu ruled
that:
After reviewing the records of the case, this Court
finds that the accident in question was due to a
fortuitous event. A tire blow-out, such as what
happened in the case at bar, is an inevitable accident
that exempts the carrier from liability, there being
absence of a showing that there was misconduct or
negligence on the part of the operator in the operation
and maintenance of the vehicle involved. The fact that
the right rear tire exploded, despite being brand new,
constitutes a clear case of caso fortuito which can be a
proper basis for exonerating the defendants from
liability. ...
 31

The Court of First Instance relied on the ruling of the Court of

Appeals in Rodriguez v. Red Line Transportation Co., CA G.R.
No. 8136, December 29, 1954, where the Court of Appeals ruled
that:
A tire blow-out does not constitute negligence unless
the tire was already old and should not have been used
at all. Indeed, this would be a clear case of fortuitous
event.
The foregoing conclusions of the Court of First Instance of Cebu
are based on a misapprehension of overall facts from which a
conclusion should be drawn. The reliance of the Court of First
Instance on the Rodriguez case is not in order. In La Mallorca
and Pampanga Bus Co. v. De Jesus, et al. (17 SCRA 23), we
held that:
Petitioner maintains that a tire blow-out is a fortuitous
event and gives rise to no liability for negligence,
citing the rulings of the Court of Appeals in Rodriguez
v. Red Line Transportation Co., CA G.R. No. 8136,
December 29, 1954, and People v. Palapad, CA-G.R.
No. 18480, June 27, 1958. These rulings, however, not
only are not binding on this Court but were based on
considerations quite different from those that obtain in
the case at bar. The appellate court there made no
findings of any specific acts of negligence on the part
of the defendants and confined itself to the question of
whether or not a tire blow-out, by itself alone and
without a showing as to the causative factors, would
generate liability. ...
In the case at bar, there are specific acts of negligence on the
part of the respondents. The records show that the passenger
jeepney turned turtle and jumped into a ditch immediately after
its right rear tire exploded. The evidence shows that the
passenger jeepney was running at a very fast speed before the
accident. We agree with the observation of the petitioner that a
public utility jeep running at a regular and safe speed will not
jump into a ditch when its right rear tire blows up. There is also
evidence to show that the passenger jeepney was overloaded at
the time of the accident. The petitioner stated that there were
 32

three (3) passengers in the front seat and fourteen (14)

passengers in the rear.
While it may be true that the tire that blew-up was still good
because the grooves of the tire were still visible, this fact alone
does not make the explosion of the tire a fortuitous event. No
evidence was presented to show that the accident was due to
adverse road conditions or that precautions were taken by the
jeepney driver to compensate for any conditions liable to cause
accidents. The sudden blowing-up, therefore, could have been
caused by too much air pressure injected into the tire coupled by
the fact that the jeepney was overloaded and speeding at the
time of the accident.
In Lasam v. Smith (45 Phil. 657), we laid down the following
essential characteristics of caso fortuito:
xxx xxx xxx
... In a legal sense and, consequently, also in relation
to contracts, a caso fortuito presents the following
essential characteristics: (1) The cause of the
unforeseen and unexpected occurrence, or of the
failure of the debtor to comply with his obligation,
must be independent of the human will. (2) It must be
impossible to foresee the event which constitutes
the caso fortuito, or if it can be foreseen, it must be
impossible to avoid. (3) The occurrence must be such
as to render it impossible for the debtor to fulfill his
obligation in a normal manner. And (4) the obligor
(debtor) must be free from any participation in the
aggravation of the injury resulting to the creditor.
(5 Encyclopedia Juridica Espanola, 309.)
In the case at bar, the cause of the unforeseen and unexpected
occurrence was not independent of the human will. The accident
was caused either through the negligence of the driver or
because of mechanical defects in the tire. Common carriers
should teach their drivers not to overload their vehicles, not to
exceed safe and legal speed limits, and to know the correct
measures to take when a tire blows up thus insuring the safety of
passengers at all times. Relative to the contingency of
 33

mechanical defects, we held in Necesito, et al. v. Paras, et al.

(104 Phil. 75), that:
... The preponderance of authority is in favor of the
doctrine that a passenger is entitled to recover
damages from a carrier for an injury resulting from a
defect in an appliance purchased from a manufacturer,
whenever it appears that the defect would have been
discovered by the carrier if it had exercised the degree
of care which under the circumstances was incumbent
upon it, with regard to inspection and application of
the necessary tests. For the purposes of this doctrine,
the manufacturer is considered as being in law the
agent or servant of the carrier, as far as regards the
work of constructing the appliance. According to this
theory, the good repute of the manufacturer will not
relieve the carrier from liability' (10 Am. Jur. 205, s,
1324; see also Pennsylvania R. Co. v. Roy, 102 U.S.
451; 20 L. Ed. 141; Southern R. Co. v. Hussey, 74
ALR 1172; 42 Fed. 2d 70; and Ed Note, 29 ALR 788.:
Ann. Cas. 1916E 929).
The rationale of the carrier's liability is the fact that
the passenger has neither choice nor control over the
carrier in the selection and use of the equipment and
appliances in use by the carrier. Having no privity
whatever with the manufacturer or vendor of the
defective equipment, the passenger has no remedy
against him, while the carrier usually has. It is but
logical, therefore, that the carrier, while not an insurer
of the safety of his passengers, should nevertheless be
held to answer for the flaws of his equipment if such
flaws were at all discoverable. ...
It is sufficient to reiterate that the source of a common carrier's
legal liability is the contract of carriage, and by entering into the
said contract, it binds itself to carry the passengers safely as far
as human care and foresight can provide, using the utmost
diligence of a very cautious person, with a due regard for all the
circumstances. The records show that this obligation was not
met by the respondents.
 34

The respondents likewise argue that the petitioner cannot

recover any amount for failure to prove such damages during the
trial. The respondents submit that if the petitioner was really
injured, why was he treated in Danao City and not in Mandaue
City where the accident took place. The respondents argue that
the doctor who issued the medical certificate was not presented
during the trial, and hence not cross-examined. The respondents
also claim that the petitioner was not wearing any wrist watch
during the accident.
It should be noted that the City Court of Cebu found that the
petitioner had a lacerated wound on his right palm aside from
injuries on his left arm, right thigh and on his back, and that on
his way back to Danao City, he discovered that his "Omega"
wrist watch was lost. These are findings of facts of the City
Court of Cebu which we find no reason to disturb. More so
when we consider the fact that the Court of First Instance of
Cebu impliedly concurred in these matters when it confined
itself to the question of whether or not the tire blow out was a
fortuitous event.
WHEREFORE, the decision of the Court of First Instance of
Cebu, Branch IV appealed from is hereby REVERSED and SET
ASIDE, and the decision of the City Court of Cebu, Branch I is
REINSTATED, with the modification that the damages shall
earn interest at 12% per annum and the attorney's fees are
increased to SIX HUNDRED PESOS (P600.00). Damages shall
earn interests from January 27, 1975.
SO ORDERED.
 35

G.R. No. L-20761 July 27, 1966

LA MALLORCA, petitioner,
vs.
HONORABLE COURT OF APPEALS, MARIANO
BELTRAN, ET AL., respondents.
G. E. Yabut, R. Monterey and M.C. Lagman for petitioner.
Ahmed Garcia for respondents.
BARRERA, J.:
La Mallorca seeks the review of the decision of the Court of
Appeals in CA-G.R. No. 23267-R, holding it liable for quasi-
delict and ordering it to pay to respondents Mariano Beltran, et
al., P6,000.00 for the death of his minor daughter Raquel
Beltran, plus P400.00 as actual damages.
The facts of the case as found by the Court of Appeals, briefly
are:
On December 20, 1953, at about noontime, plaintiffs,
husband and wife, together with their minor daughters,
namely, Milagros, 13 years old, Raquel, about 4½ years
old, and Fe, over 2 years old, boarded the Pambusco Bus
No. 352, bearing plate TPU No. 757 (1953 Pampanga),
owned and operated by the defendant, at San Fernando,
Pampanga, bound for Anao, Mexico, Pampanga. At the
time, they were carrying with them four pieces of baggages
containing their personal belonging. The conductor of the
bus, who happened to be a half-brother of plaintiff Mariano
Beltran, issued three tickets (Exhs. A, B, & C) covering the
full fares of the plaintiff and their eldest child, Milagros.
No fare was charged on Raquel and Fe, since both were
below the height at which fare is charged in accordance
with the appellant's rules and regulations.
After about an hour's trip, the bus reached Anao whereat it
stopped to allow the passengers bound therefor, among
whom were the plaintiffs and their children to get off. With
respect to the group of the plaintiffs, Mariano Beltran, then
carrying some of their baggages, was the first to get down
the bus, followed by his wife and his children. Mariano led
his companions to a shaded spot on the left pedestrians side
 36

of the road about four or five meters away from the vehicle.
Afterwards, he returned to the bus in controversy to get his
other bayong, which he had left behind, but in so doing, his
daughter Raquel followed him, unnoticed by her father.
While said Mariano Beltran was on the running board of
the bus waiting for the conductor to hand him
his bayong which he left under one of its seats near the
door, the bus, whose motor was not shut off while
unloading, suddenly started moving forward, evidently to
resume its trip, notwithstanding the fact that the conductor
has not given the driver the customary signal to start, since
said conductor was still attending to the baggage left
behind by Mariano Beltran. Incidentally, when the bus was
again placed into a complete stop, it had travelled about ten
meters from the point where the plaintiffs had gotten off.
Sensing that the bus was again in motion, Mariano Beltran
immediately jumped from the running board without
getting his bayong from the conductor. He landed on the
side of the road almost in front of the shaded place where
he left his wife and children. At that precise time, he saw
people beginning to gather around the body of a child lying
prostrate on the ground, her skull crushed, and without life.
The child was none other than his daughter Raquel, who
was run over by the bus in which she rode earlier together
with her parents.
For the death of their said child, the plaintiffs commenced
the present suit against the defendant seeking to recover
from the latter an aggregate amount of P16,000 to cover
moral damages and actual damages sustained as a result
thereof and attorney's fees. After trial on the merits, the
court below rendered the judgment in question.
On the basis of these facts, the trial court found defendant liable
for breach of contract of carriage and sentenced it to pay
P3,000.00 for the death of the child and P400.00 as
compensatory damages representing burial expenses and costs.
On appeal to the Court of Appeals, La Mallorca claimed that
there could not be a breach of contract in the case, for the reason
that when the child met her death, she was no longer a passenger
of the bus involved in the incident and, therefore, the contract of
 37

carriage had already terminated. Although the Court of Appeals

sustained this theory, it nevertheless found the defendant-
appellant guilty of quasi-delict and held the latter liable for
damages, for the negligence of its driver, in accordance with
Article 2180 of the Civil Code. And, the Court of Appeals did
not only find the petitioner liable, but increased the damages
awarded the plaintiffs-appellees to P6,000.00, instead of
P3,000.00 granted by the trial court.
In its brief before us, La Mallorca contends that the Court of
Appeals erred (1) in holding it liable for quasi-delict,
considering that respondents complaint was one for breach of
contract, and (2) in raising the award of damages from
P3,000.00 to P6,000.00 although respondents did not appeal
from the decision of the lower court.
Under the facts as found by the Court of Appeals, we have to
sustain the judgement holding petitioner liable for damages for
the death of the child, Raquel Beltran. It may be pointed out that
although it is true that respondent Mariano Beltran, his wife, and
their children (including the deceased child) had alighted from
the bus at a place designated for disembarking or unloading of
passengers, it was also established that the father had to return to
the vehicle (which was still at a stop) to get one of his bags
or bayong that was left under one of the seats of the bus. There
can be no controversy that as far as the father is concerned,
when he returned to the bus for hisbayong which was not
unloaded, the relation of passenger and carrier between him and
the petitioner remained subsisting. For, the relation of carrier
and passenger does not necessarily cease where the latter, after
alighting from the car, aids the carrier's servant or employee in
removing his baggage from the car.1 The issue to be determined
here is whether as to the child, who was already led by the father
to a place about 5 meters away from the bus, the liability of the
carrier for her safety under the contract of carriage also
persisted.
It has been recognized as a rule that the relation of carrier and
passenger does not cease at the moment the passenger alights
from the carrier's vehicle at a place selected by the carrier at the
point of destination, but continues until the passenger has had a
reasonable time or a reasonable opportunity to leave the carrier's
 38

premises. And, what is a reasonable time or a reasonable delay

within this rule is to be determined from all the circumstances.
Thus, a person who, after alighting from a train, walks along the
station platform is considered still a passenger.2 So also, where a
passenger has alighted at his destination and is proceeding by
the usual way to leave the company's premises, but before
actually doing so is halted by the report that his brother, a fellow
passenger, has been shot, and he in good faith and without intent
of engaging in the difficulty, returns to relieve his brother, he is
deemed reasonably and necessarily delayed and thus continues
to be a passenger entitled as such to the protection of the railroad
and company and its agents.3
In the present case, the father returned to the bus to get one of
his baggages which was not unloaded when they alighted from
the bus. Raquel, the child that she was, must have followed the
father. However, although the father was still on the running
board of the bus awaiting for the conductor to hand him the bag
or bayong, the bus started to run, so that even he (the father) had
to jump down from the moving vehicle. It was at this instance
that the child, who must be near the bus, was run over and
killed. In the circumstances, it cannot be claimed that the
carrier's agent had exercised the "utmost diligence" of a "very
cautions person" required by Article 1755 of the Civil Code to
be observed by a common carrier in the discharge of its
obligation to transport safely its passengers. In the first place,
the driver, although stopping the bus, nevertheless did not put
off the engine. Secondly, he started to run the bus even before
the bus conductor gave him the signal to go and while the latter
was still unloading part of the baggages of the passengers
Mariano Beltran and family. The presence of said passengers
near the bus was not unreasonable and they are, therefore, to be
considered still as passengers of the carrier, entitled to the
protection under their contract of carriage.
But even assuming arguendo that the contract of carriage has
already terminated, herein petitioner can be held liable for the
negligence of its driver, as ruled by the Court of Appeals,
pursuant to Article 2180 of the Civil Code. Paragraph 7 of the
complaint, which reads —
 39

That aside from the aforesaid breach of contract, the death

of Raquel Beltran, plaintiffs' daughter, was caused by the
negligence and want of exercise of the utmost diligence of
a very cautious person on the part of the defendants and
their agent, necessary to transport plaintiffs and their
daughter safely as far as human care and foresight can
provide in the operation of their vehicle.
is clearly an allegation for quasi-delict. The inclusion of this
averment for quasi-delict, while incompatible with the other
claim under the contract of carriage, is permissible under
Section 2 of Rule 8 of the New Rules of Court, which allows a
plaintiff to allege causes of action in the alternative, be they
compatible with each other or not, to the end that the real matter
in controversy may be resolved and determined.4
The plaintiffs sufficiently pleaded the culpa or negligence upon
which the claim was predicated when it was alleged in the
complaint that "the death of Raquel Beltran, plaintiffs' daughter,
was caused by the negligence and want of exercise of the utmost
diligence of a very cautious person on the part of the defendants
and their agent." This allegation was also proved when it was
established during the trial that the driver, even before receiving
the proper signal from the conductor, and while there were still
persons on the running board of the bus and near it, started to
run off the vehicle. The presentation of proof of the negligence
of its employee gave rise to the presumption that the defendant
employer did not exercise the diligence of a good father of the
family in the selection and supervision of its employees. And
this presumption, as the Court of Appeals found, petitioner had
failed to overcome. Consequently, petitioner must be adjudged
peculiarily liable for the death of the child Raquel Beltran.
The increase of the award of damages from P3,000.00 to
P6,000.00 by the Court of Appeals, however, cannot be
sustained. Generally, the appellate court can only pass upon and
consider questions or issues raised and argued in appellant's
brief. Plaintiffs did not appeal from that portion of the judgment
of the trial court awarding them on P3,000.00 damages for the
death of their daughter. Neither does it appear that, as appellees
in the Court of Appeals, plaintiffs have pointed out in their brief
the inadequacy of the award, or that the inclusion of the figure
 40

P3,000.00 was merely a clerical error, in order that the matter

may be treated as an exception to the general rule.5 Herein
petitioner's contention, therefore, that the Court of Appeals
committed error in raising the amount of the award for damages
is, evidently, meritorious.1äwphï1.ñët
Wherefore, the decision of the Court of Appeals is hereby
modified by sentencing, the petitioner to pay to the respondents
Mariano Beltran, et al., the sum of P3,000.00 for the death of the
child, Raquel Beltran, and the amount of P400.00 as actual
damages. No costs in this instance. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Bengzon, J.P.,
Zaldivar, Sanchez and Castro, JJ., concur.
Makalintal, J., concurs in the result.
 41

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,
plaintiffs-appellants,
vs.
MARIANO MEDINA, defendant-appellant.
Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for
plaintiffs-appellants.
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 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
 42

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.
 43

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 the
diligence of a good father of a family could have prevented
or stopped the act or omission.
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 zig-zaging, 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
 44

momentum carried it over a distance of 150 meters before it fell

into the canal and turned turtle.
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 695-696 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 ground to
expect at the moment of his act or default that an injury to
some person might probably result therefrom.
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
 45

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 above-reproduced, particularly, Articles
1733, 1759 and 1763.
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 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
 46

merchandise carried by the deceased in the bus, is adequate and

will not be disturbed.
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.
 47

G.R. No. L-10605 June 30, 1958

PRECILLANO NECESITO, ETC., plaintiff-appellant,
vs.
NATIVIDAD PARAS, ET AL., defendants-appellees.
x---------------------------------------------------------x
G.R. No. L-10606 June 30, 1958
GERMAN NECESITO, ET AL., plaintiffs-appellants,
vs.
NATIVIDAD PARAS, ET AL., defendants-appellees.
Tomas Besa and Federico Agrava for appellants.
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 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
 48

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
 49

provide, using the utmost diligence of very cautious

persons, with a due regard for the all the circumstances.
It is clear that the carrier is not an insurer of the passengers'
safety. His liability rests upon negligence, his failure to exercise
the "utmost" degree of diligence that the law requires, and by
Art. 1756, in case of a passenger's death or injury the carrier
bears the burden of satisfying the court that he has duly
discharged the duty of prudence required. In the American law,
where the carrier is held to the same degree of diligence as under
the new Civil Code, the rule on the liability of carriers for
defects of equipment is thus expressed: "The preponderance of
authority is in favor of the doctrine that a passenger is entitled to
recover damages from a carrier for an injury resulting from a
defect in an appliance purchased from a manufacturer, whenever
it appears that the defect would have been discovered by the
carrier if it had exercised the degree of care which under the
circumstances was incumbent upon it, with regard to inspection
and application of the necessary tests. For the purposes of this
doctrine, the manufacturer is considered as being in law the
agent or servant of the carrier, as far as regards the work of
constructing the appliance. According to this theory, the good
repute of the manufacturer will not relieve the carrier from
liability" (10 Am. Jur. 205, s, 1324; see also Pennsylvania R.
Co. vs. Roy, 102 U. S. 451; 20 L. Ed. 141; Southern R. Co. vs.
Hussey, 74 ALR 1172; 42 Fed. 2d 70; and Ed Note, 29 ALR
788; Ann. Cas. 1916E 929).
The rationale of the carrier's liability is the fact that the
passenger has neither choice nor control over the carrier in the
selection and use of the equipment and appliances in use by the
carrier. Having no privity whatever with the manufacturer or
vendor of the defective equipment, the passenger has no remedy
against him, while the carrier usually has. It is but logical,
therefore, that the carrier, while not in insurer of the safety of his
passengers, should nevertheless be held to answer for the flaws
of his equipment if such flaws were at all discoverable. Thus
Hannen, J., in Francis vs. Cockrell, LR 5 Q. B. 184, said:
In the ordinary course of things, the passenger does not
know whether the carrier has himself manufactured the
means of carriage, or contracted with someone else for its
 50

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
 51

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.
 52

And the carrier in this connection must show, if the

accident was due to a latent defect in the material or
construction of the car, that not only could it not have
discovered the defect by the exercise of such care, but that
the builders could not by the exercise of the same care have
discovered the defect or foreseen the result. This rule
applies the same whether the defective car belonged to the
carrier or not.
In the case now before us, the record is to the effect that the only
test applied to the steering knuckle in question was a purely
visual inspection every thirty days, to see if any cracks
developed. It nowhere appears that either the manufacturer or
the carrier at any time tested the steering knuckle to ascertain
whether its strength was up to standard, or that it had no hidden
flaws would impair that strength. And yet the carrier must have
been aware of the critical importance of the knuckle's resistance;
that its failure or breakage would result in loss of balance and
steering control of the bus, with disastrous effects upon the
passengers. No argument is required to establish that a visual
inspection could not directly determine whether the resistance of
this critically important part was not impaired. Nor has it been
shown that the weakening of the knuckle was impossible to
detect by any known test; on the contrary, there is testimony that
it could be detected. We are satisfied that the periodical visual
inspection of the steering knuckle as practiced by the carrier's
agents did not measure up to the required legal standard of
"utmost diligence of very cautious persons" — "as far as human
care and foresight can provide", and therefore that the knuckle's
failure can not be considered a fortuitous event that exempts the
carrier from responsibility (Lasam vs. Smith, 45 Phil. 657; Son
vs. Cebu Autobus Co., 94 Phil., 892.)
It may be impracticable, as appellee argues, to require of carriers
to test the strength of each and every part of its vehicles before
each trip; but we are of the opinion that a due regard for the
carrier's obligations toward the traveling public demands
adequate periodical tests to determine the condition and strength
of those vehicle portions the failure of which may endanger the
safe of the passengers.
 53

As to the damages suffered by the plaintiffs, we agree with

appellee that no allowance may be made for moral damages,
since under Article 2220 of the new Civil Code, in case of suits
for breach of contract, moral damages are recoverable only
where the defendant acted fraudulently or in bad faith, and there
is none in the case before us. As to exemplary damages, the
carrier has not acted in a "wanton, fraudulent, reckless,
oppressive or malevolent manner" to warrant their award.
Hence, we believe that for the minor Precillano Necesito (G. R.
No. L-10605), an indemnity of P5,000 would be adequate for
the abrasions and fracture of the femur, including medical and
hospitalization expenses, there being no evidence that there
would be any permanent impairment of his faculties or bodily
functions, beyond the lack of anatomical symmetry. As for the
death of Severina Garces (G. R. No. L-10606) who was 33 years
old, with seven minor children when she died, her heirs are
obviously entitled to indemnity not only for the incidental loses
of property (cash, wrist watch and merchandise) worth P394 that
she carried at the time of the accident and for the burial expenses
of P490, but also for the loss of her earnings (shown to average
P120 a month) and for the deprivation of her protection,
guidance and company. In our judgment, an award of P15,000
would be adequate (cf Alcantara vs. Surro, 49 Off. Gaz. 2769;
93 Phil., 472).
The low income of the plaintiffs-appellants makes an award for
attorney's fees just and equitable (Civil Code, Art. 2208, par.
11). Considering that he two cases filed were tried jointly, a fee
of P3,500 would be reasonable.
In view of the foregoing, the decision appealed from is reversed,
and the defendants-appellees are sentenced to indemnify the
plaintiffs-appellants in the following amounts: P5,000 to
Precillano Necesito, and P15,000 to the heirs of the deceased
Severina Garces, plus P3,500 by way of attorney's fees and
litigation expenses. Costs against defendants-appellees. So
ordered.
Paras, C. J., Bengzon, Reyes, A., Bautista Angelo, Concepcion,
and Endencia, JJ., concur.
Felix, J., concurs in the result.
 54

RESOLUTION
September 11, 1958
REYES, J. B. L., J.:
Defendants-appellees have Submitted a motion asking this Court
to reconsider its decision of June 30, 1958, and that the same be
modified with respect to (1) its holding the carrier liable for the
breakage of the steering knuckle that caused the autobus No.
199 to overturn, whereby the passengers riding in it were
injured; (2) the damages awarded, that appellees argue to be
excessive; and (3) the award of attorneys' fees.
(1) The rule prevailing in this jurisdiction as established in
previous decisions of this Court, cited in our main opinion, is
that a carrier is liable to its passengers for damages caused by
mechanical defects of the conveyance. As early as 1924,
in Lasam vs. Smith, 45 Phil. 659 this Court ruled:
As far as the record shows, the accident was caused either
by defects in the automobile or else through the negligence
of its driver. That is not caso fortuito.
And in Son vs. Cebu Autobus Company, 94 Phil., 892, this Court
held a common carrier liable in damages to passenger for
injuries cause by an accident due to the breakage of a faulty
drag-link spring.
It can be seen that while the courts of the United States are at
variance on the question of a carrier's liability for latent
mechanical defects, the rule in this jurisdiction has been
consistent in holding the carrier responsible. This Court has
quoted from American and English decisions, not because it felt
bound to follow the same, but merely in approval of the
rationale of the rule as expressed therein, since the previous
Philippine cases did not enlarge on the ideas underlying the
doctrine established thereby.
The new evidence sought to be introduced do not warrant the
grant of a new trial, since the proposed proof available when the
original trial was held. Said evidence is not newly discovered.
(2) With regard to the indemnity awarded to the child Precilliano
Necesito, the injuries suffered by him are incapable of accurate
pecuniary estimation, particularly because the full effect of the
 55

injury is not ascertainable immediately. This uncertainty,

however, does not preclude the right to an indemnity, since the
injury is patent and not denied (Civil Code, Art. 2224). The
reasons behind this award are expounded by the Code
Commission in its report:
There are cases where from the nature of the case, definite
proof of pecuniary loss cannot be offered, although the
court is convinced that there has been such loss. For
instance, injury to one's commercial credit or to the
goodwill of a business firm is often hard to show with
certainty in terms of money. Should damages be denied for
that reason? The judge should be empowered to calculate
moderate damages in such cases, rather than that the
plaintiff should suffer, without redress, from the
defendant's wrongful act." (Report of the Code
Commission, p. 75)
In awarding to the heirs of the deceased Severina Garces an
indemnity for the loss of her "guidance, protection and
company," although it is but moral damage, the Court took into
account that the case of a passenger who dies in the course of an
accident, due to the carrier's negligence constitutes an exception
to the general rule. While, as pointed out in the main decision,
under Article 2220 of the new Civil Code there can be no
recovery of moral damages for a breach of contract in the
absence of fraud malice or bad faith, the case of a violation of
the contract of carriage leading to a passenger's death escapes
this general rule, in view of Article 1764 in connection with
Article 2206, No. 3 of the new Civil Code.
ART. 1764. Damages in cases comprised in this Section
shall be awarded in accordance with Title XVIII of this
Book, concerning Damages. Article 2206 shall also apply
to the death of a passenger caused by the breach of contract
by a comman carrier. ART. 2206. . . .
(3) The spouse, legitimate and eligimate descendants and
ascendants of the deceased may demand moral damages for
mental anguish by reason of the death of the deceased.
Being a special rule limited to cases of fatal injuries, these
articles prevail over the general rule of Art. 2220. Special
 56

provisions control general ones (Lichauco & Co. vs. Apostol, 44

Phil. 138; Sancio vs. Lizarraga, 55 Phil. 601).
It thus appears that under the new Civil Code, in case of
accident due to a carrier's negligence, the heirs of a deceased
passenger may recover moral damages, even though a passenger
who is injured, but manages to survive, is not entitled to them.
There is, therefore, no conflict between our main decision in the
instant case and that of Cachero vs. Manila Yellow Taxi Cab
Co., 101 Phil., 523, where the passenger suffered injuries, but
did not lose his life.
(3) In the Cachero case this Court disallowed attorneys' fees to
the injured plaintiff because the litigation arose out of his
exaggerated and unreasonable deeds for an indemnity that was
out of proportion with the compensatory damages to which he
was solely entitled. But in the present case, plaintiffs' original
claims can not be deemed a priori wholly unreasonable, since
they had a right to indemnity for moral damages besides
compensatory ones, and moral damages are not determined by
set and invariable bounds.
Neither does the fact that the contract between the passengers
and their counsel was on a contingent basis affect the former's
right to counsel fees. As pointed out for appellants, the Court's
award is an party and not to counsel. A litigant who
improvidently stipulate higher counsel fees than those to which
he is lawfully entitled, does not for that reason earn the right to a
larger indemnity; but, by parity of reasoning, he should not be
deprived of counsel fees if by law he is entitled to recover them.
We find no reason to alter the main decision heretofore
rendered. Ultimately, the position taken by this Court is that a
common carrier's contract is not to be regarded as a game of
chance wherein the passenger stakes his limb and life against the
carrier's property and profits.
Wherefore, the motion for reconsideration is hereby denied. So
ordered.
Paras, C. J., Bengzon, Padilla, Montemayor, Reyes, A., Bautista
Angelo, Concepcion, Endencia, and Felix, JJ.,concur.
 57

G.R. No. L-22143 April 30, 1966

LAGUNA TAYABAS BUS CO., petitioner,

vs.
ANTONIO TIONGSON and FELICITAS J.
TIONGSON, respondents.
Ozaeta, Gibbs and Ozaeta and D. E. de Lara and Associates for
petitioner.
Ejercito, Velilla and Balonkita for respondents.
DIZON, J.:
This is an appeal by certiorari taken by Laguna Tayabas Bus
Co., a common carrier engaged in the land transportation
business in the southern Tagalog provinces, to review the
decision of the Court of Appeals affirming that of the Court of
First Instance of Bulacan in Civil Case No. 1760 entitled
"Antonio Tiongson, Paz C. Tiongson and Felicitas J. Tiongson,
plaintiffs, vs. Laguna Tayabas Bus Company, defendant"
sentencing the latter to pay the former the sum of P50,000.00 by
way of actual, compensatory and moral damages, and the further
sum of P5,000.00 as attorney's fees and costs.
On June 3, 1958, about two kilometers past the poblacion of
Bay, Laguna, petitioner's LTB Bus No. 204, coming from San
Pablo City towards Manila, collided with a 7-Up delivery truck
coming from the opposite direction. As a consequence the bus
fell on its right side on the shoulder of the road resulting in
injuries to many of its passengers and the death of Ricardo C.
Tiongson and a woman passenger. Both drivers were prosecuted
for double homicide, multiple serious physical injuries and
damage to property, thru reckless imprudence, in the Court of
First Instance of Laguna, but a separate action for damages for
breach of contract of carriage was filed in the Court of First
Instance of Bulacan (Civil Case No. 1760) by respondents
herein, as heirs of the deceased Ricardo C. Tiongson, against
petitioner.
In its answer to the complaint, petitioner alleged that it had
observed utmost diligence in operating Bus No. 204 on June 3,
1958; that its driver could not have prevented or avoided the
accident which was fortuitous insofar as it was concerned; and
 58

that the proximate cause of the death of passenger Tiongson "as

the negligence and imprudence of one Porvenir Aralar Barretto
and his employer Santiago Syjuco, Inc. and/or Seven-Up
Bottling Company of the Philippines, or, in the alternative, the
gross negligence of the highway authorities in failing to keep
and maintain the national roads in good repair at all times and
safe condition for all motorists".
Finding petitioner's driver to blame for the accident, the trial
court, on December 28, 1959, rendered judgment as follows:
Wherefore, judgment is hereby rendered sentencing
defendant to pay to plaintiffs the sum of P50,000.00 by way
of actual, compensatory and moral damages, and the further
sum of P5,000.00 as counsel fees, with costs against
defendant.
Both parties appealed to the Court of Appeals — petitioner from
the portion thereof holding it liable for damages for breach of
contract, and respondents from the portion determining the
amount of damages awarded to them.
Meanwhile, on July 31, 1961, the Court of First Instance of
Laguna, in Criminal Case No. B-3311, acquitted Claro Samonte,
petitioner's driver, of the offense charged mentioned heretofore,
on the ground of reasonable doubt. Upon the other hand, on
October 28, 1963, the Court of Appeals rendered the decision
appealed from.
In its first assignment of error, petitioner contends that the Court
of Appeals erred in affirming instead of reversing the findings
made by the trial court to the effect that the driver of the LTB
bus and not the driver of the 7-Up truck was to blame for the
accident in question.
The following are the pertinent facts found established by the
trial court:
About two kilometers past the poblacion of Bay, Laguna,
defendant's LTB Bus No. 204 collided with the 7-Up
delivery truck which came from the opposite direction, that
is, from Manila towards San Pablo City. As a result of the
collision, defendant's bus fell on the right side on the
shoulder of the road, which resulted in injuries to many
 59

passengers, and the death of Ricardo C. Tiongson and a

woman passenger. ... Having been notified of the collision,
Gerardo Dilla, chief of police of Bay, Laguna, immediately
proceeded to the scene thereof. The Bay Chief of Police
made an on-the-spot investigation and prepared a sketch of
the spot where the collision occurred. From the findings of
the chief of police, it appears that the road had an asphalted
pavement, 5-1/2 meters wide, and shoulders on both sides,
the shoulder going towards the poblacion of Bay being 65
cm. wide and the one on the opposite side having a width
of 70 cm. The chief of police also saw on the asphalted
pavement a somewhat rectangular depression, 3 meters
long, 2 meters wide, and 12 cm. deep, on the left side of the
road going north, that is, going towards Manila . . . . .
Perhaps of most value to plaintiffs is the testimony of Rufo
Reaño, a farmer and a barrio lieutenant of Tabon, Bay,
Laguna. The substance of Rufo's testimony is that ... he saw
two LTB trucks, following each other, from south to north
at a distance of about 30 meters from each other; that he
also saw a 7-Up truck going from north to south; that the
leading LTB bus (presumably Bus No. 204) was travelling
faster than the 7-Up truck; that suddenly, he heard the
impact of a collision between the leading LTB bus and the
7-Up truck; that as a result of the collision, the LTB bus fell
on its side while the 7-Up truck turned crosswise on the
road; . . . .
Samonte testified that ... while he was in barrio Tabon,
Bay, Laguna, at about 5:45 that same afternoon, he first
saw the 7-Up truck from a distance of about 150 meters;
that he was then running at about 30 kilometers per hour;
that upon sighting the 7-Up truck, he slackened his speed
and placed his bus on the right side of the road; that when
the distance between his bus and the 7-Up truck had been
reduced to about ten (10) meters and foreseeing that he
could not avoid being hit by the truck which had swerved
to the left, he applied his brakes and maneuvered his bus
towards the right side of the road so much so that the right
wheels were already on the shoulder of the road; but that
before he could come to a complete stop, at a speed then of
 60

only 10 kilometers per hour, the left front mudguard of his

bus was hit by the 7-Up truck.
After thus evaluating the prosecution evidence and the testimony
of petitioner's witnesses, namely, Claro Samonte, its driver,
Ernesto Alcantara, its conductor, and Teotimo de Mesa, its Chief
Clerk, the trial court said:
In moving forward to a conclusion in this case, certain
general principles must be borne in mind, namely: (1) the
liability of a carrier is contractual and arises upon its breach
of the obligation, and there is a breach if it fails to exercise
extraordinary diligence according to all the circumstances
of each case; (2) a carrier is obliged to carry its passengers
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 its passengers, it being its duty to
prove that it exercised extra-ordinary diligence; (4) a carrier
is not an insurer against all risks of travel (Isaac vs. A.L.
Ammen Transportation Co., Inc., G.R. No. L-9671, August
28, 1957); and (5) that a carrier shall not be responsible for
events which could not be foreseen, or which, though
foreseen, were inevitable (Alfaro vs. Ayson, 54 O.G. 7922).
In the light of the foregoing principles and the evidence of
record, the main questions for determination are whether
defendant has successfully discharged its burden of
disproving its presumptive negligence because of its failure
to transport safely to his destination the deceased Ricardo
C. Tiongson, and whether defendant has sufficiently
established its defense of fortuitous event.
After a review of the record, the court believes that
defendant has not successfully discharged its burden.
Defendant's driver, Samonte, wanted to impress the court
that he was entirely free from fault or negligence in the
collision between his bus and the 7-Up truck. This he
testified that when he first sighted the 7-Up truck, 150
meters away from his bus, the said truck was then running
between 50 and 60 kilometers per hour, while he, for his
part, was then going only at about 30 kilometers per hour.
This testimony of Samonte is to be seriously doubted. In
 61

the first place, he and his conductor, Alcantara, must be

necessarily biased witnesses for they are both employed by
the defendant. In the second place, it is of common
knowledge that a delivery truck fully loaded with cases of
soft drinks is a slower-moving vehicle than a passenger
bus. A passenger bus is necessarily designed for speed
because travellers usually want to arrive at their
destinations within the shortest possible time, whereas soft
drinks delivery trucks are built for the safety of its bottled
cargo than for speed. In the third place, Samonte's claim
that when he applied the brakes of his bus when it was then
about 10 meters away from the 7-Up truck, the speed of his
bus was only about 10 kilometers per hour cannot be given
full credence. He stated that after applying the brakes, his
bus still moved less than 5 meters before being hit by the 7-
Up truck. If his speed had only been 10 kilometers per
hour, upon the application of the brakes, he would have
stopped the bus within a much shorter distance.
But even assuming that defendant's bus was then running
only at approximately 10 kilometers per hour when the
driver Samonte first applied the brakes, it would seem that
he applied the brakes too late. Samonte testified that upon
sighting the 7-Up truck at a distance of approximately 150
meters, he slackened his speed by first reducing it to 20 and
then to 10 kilometers per hour, and brought his bus towards
the right side of the road; and that it was only when the
distance between the two vehicles was only about 10
meters that he first stepped on the brakes. The court feels
that it was not enough for Samonte to slacken his speed
gradually until he came down to 10 kilometers per hour. He
should have stopped his bus immediately upon seeing the
7-Up truck veer towards his lane after jumping out of the
big depression on the asphalted pavement. He was not
unaware of such depression, and the location thereof for he
had been travelling on the same route for a considerable
length of time prior to 3 June 1958.1äwphï1.ñët
It will not do for defendant's driver to claim that he could
not avoid the 7-Up truck because if he did he would have
fallen into the ditch on his side of the highway. If he was
placed in the position claimed by him, it was entirely his
 62

fault, for he could have easily avoided the 7-Up truck if he

had applied his brakes on time, while the 7-Up truck was
still more than 10 meters away from him. Besides, instead
of applying the brakes while the 7-Up truck was still some
distance away from him, he could have veered to the left
side of the road, going north, where there was sufficient
space for him, taking into account that the asphalted
pavement of the road was 5-1/2 meters wide with a
shoulder of 65 cm. wide. In such posture, he could have
avoided collision with the 7-Up truck which, on the other
hand, would have also been free to right its direction after it
came out from the big depression.
An examination of the sketch prepared by the chief of
police of Bay, Laguna (Exhibit 1) shows that the collision
between defendant's bus and the 7-Up truck occurred only
8 meters away from the big depression. This short distance
would seem to indicate that defendant's driver, Samonte,
knowing exactly the location of the depression, and
anticipating that the 7-Up truck coming the opposite
direction would veer to the left of the said depression in
order to avoid the same, raced with the 7-Up truck in order
that he could first pass through the space between the
depression and what was left of the asphalted pavement of
the lane on which he was then travelling, obviously for the
purpose of avoiding delay. Because of this, the 7-Up truck
driver who must have intended to pass on the said space in
order to avoid going through the depression, was suddenly
forced into the depression, in order to avoid a head-on
collision with defendant's bus. But unfortunately, after
bumping out of the depression, the truck veered to the left
and hit defendant's bus on the left front side, thereby
causing the bus to overturn on its right side.
The Court of Appeals agreed with the above being of the
opinion that the testimony of Rufo Reaño, a barrio lieutenant
and a disinterested eye-witness of the accident, was credible;
that, to the contrary, the testimony of Claro Samonte and
Ernesto Alcantara, driver and conductor respectively of
petitioner's bus, was improbable and biased; that Samonte
actually applied the brakes on his bus too late to avoid the
accident because at that time the distance between the two
 63

vehicles was only ten meters; that Samonte was well aware of
the condition of the road, particularly of the existence of a
depression near the place where the two vehicles collided,
because he had been driving through and along the same route
for a considerable period of time prior to the accident; that on
May 16, 1958 or only two weeks before the fatal collission,
Samonte had been apprehended for overspeeding, and finally,
that certain admissions made on the witness stand by Teotimo de
Mesa, petitioner's chief clerk since 1948, sufficiently showed
that the company had not exercised due care and diligence in
connection with the hiring of Samonte. The Court of Appeals
therefore expressly found that petitioner not only failed to
disprove the presumption of negligence arising against it
(Articles 1733, 1755, and 1756 of the New Civil Code) but that,
on the contrary, its negligence had been established by more
than mere preponderance of evidence.
A thorough review of the record by Us has not disclosed any
material fact or circumstance showing that the trial court and the
Court of Appeals erred in the respects covered by the issue
under consideration.
The remaining assignment of errors refer to the correctness of
the decision appealed from in so far as it grantsmoral
damages to respondents, the amount of the award for loss of
earnings, and the additional award of P5,000 for attorney's fees.
Petitioner's liability for moral damages can not now be seriously
questioned in view of the provisions of Articles 1764 and 2206,
Nos. 1 and 3 of the New Civil Code and the ruling in Necesito,
et al. vs. Paras, et al., G.R. Nos. L-10605-06, Resolution on
motion to reconsider, September 11, 1958 where, speaking
through, Mr. Justice Jose B.L. Reyes, We said:
In awarding to the heirs of the deceased Severino Garces an
indemnity for the loss of "her guidance, protection and
company," although it is but moral damages, 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
 64

bad faith, the case of a violation of the contract or carrier

leading to a passenger's death escapes this general rule, in
view of Article 1764 in connection with Article 2206, No. 3
of the new Civil Code.
"Art. 1764. Damages in cases comprised in this
section shall be awarded in accordance with Title
XVIII of this Book, concerning Damages. Article
2206 shall also apply to the death of a passenger
caused by the breach of contract by a common carrier.
"Art. 2206. x x x xxx xxx
"(3) The spouse, legitimate and illegitimate
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 Article 2220. Special
provisions control general ones (Lichauco & Co. vs. Apostol, 44
Phil. 138; Sancho vs. Lizarrage, 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 Taxicab Co., G.R.
No. 8721, May 23, 1957, where the passenger suffered injuries,
but did not lose his life.
The above ruling was followed and applied in Cariaga vs.
L.T.B., G.R. No. L-11037, December 29, 1960;Bernardo vs.
Luna, G.R. Nos. L-13328-29, September 29, 1961; and Martinez
vs. Gonzales, G.R. No. L-17570, October 30, 1962.
Petitioner contends that the compensatory and moral damages
awarded are excessive. We do not find them to be so,
considering the pertinent facts of record. The deceased Ricardo
C. Tiongson, at the time of his death on June 3, 1958, was only
thirty-two years old. He was a Bachelor of Science in
Commerce (Far Eastern University - 1949) and obtained
employment with the San Pablo City Branch of the People's
 65

Bank in 1954 with a starting monthly salary of P150.00 which,

after six months in the service, was increased to P175.00. While
thus employed with the People's Bank, he was also
administering his mother's farm in Calamba, Laguna. He was the
only son of respondent spouses Antonio Tiongson and Paz
Cailles Tiongson, and had been married hardly three years when
he died. The foregoing circumstances, in our opinion, fully
justify the damages awarded in the appealed decision which are
substantially in accord with the rules of law contained in
Articles 1764 and 2206, Nos. 1 and 3 of the New Civil Code.
Lastly, it is contended that the Court of Appeals erred in
affirming the trial court's award for attorney's fees. This
contention is likewise untenable.
Considering the provisions of Article No. 2208, Nos. 2 and 11 of
the New Civil Code, and the proven fact that petitioner ignored
respondents' demand for an amicable settlement of their claim,
the award of attorney's fees in this case seems to be completely
justified (Rex Taxicab Co., Inc. vs. Bautista, G.R. No. L-15392,
September 30, 1960; Necesito vs. Paras, supra).
Wherefore, the decision appealed, from is affirmed, with costs.