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Only 150 boxes of Liberty filled milk were delivered to petitioner. The other
600 boxes never reached petitioner, since the truck which carried these
boxes was hijacked somewhere along the MacArthur Highway in Paniqui,
Tarlac, by armed men who took with them the truck, its driver, his helper
and the cargo.
In his Answer, private respondent denied that he was a common carrier and
argued that he could not be held responsible for the value of the lost goods,
such loss having been due to force majeure.
FELICIANO, J.:
On appeal before the Court of Appeals, respondent urged that the trial
court had erred in considering him a common carrier; in finding that he had
habitually offered trucking services to the public; in not exempting him
from liability on the ground of force majeure; and in ordering him to pay
damages and attorney's fees.
The Court of Appeals reversed the judgment of the trial court and held that
respondent had been engaged in transporting return loads of freight "as a
casual
occupation a sideline to his scrap iron business" and not as a common
carrier. Petitioner came to this Court by way of a Petition for Review
assigning as errors the following conclusions of the Court of Appeals:
1.
2.
3.
that respondent was not liable for the value of the undelivered
cargo. (Rollo, p. 111)
Article 1732.
Common carriers are persons, corporations, firms or
associations engaged in the business of carrying or transporting
passengers or goods or both, by land, water, or air for compensation,
offering their services to the public.
partially supplements the law on common carriers set forth in the Civil
Code. Under Section 13, paragraph (b) of the Public Service Act, "public
service" includes:
... every person that now or hereafter may own, operate, manage, or
control in the Philippines, for hire or compensation, with general or limited
clientele, whether permanent, occasional or accidental, and done for
general business purposes, any common carrier, railroad, street railway,
traction railway, subway motor vehicle, either for freight or passenger, or
both, with or without fixed route and whatever may be its classification,
freight or carrier service of any class, express service, steamboat, or
steamship line, pontines, ferries and water craft, engaged in the
transportation of passengers or freight or both, shipyard, marine repair
shop, wharf or dock, ice plant,
ice-refrigeration plant, canal, irrigation system, gas, electric light, heat and
power, water supply and power petroleum, sewerage system, wire or
wireless communications systems, wire or wireless broadcasting stations
and other similar public services. ... (Emphasis supplied)
The Court of Appeals referred to the fact that private respondent held no
certificate of public convenience, and concluded he was not a common
carrier. This is palpable error. A certificate of public convenience is not a
requisite for the incurring of liability under the Civil Code provisions
governing common carriers. That liability arises the moment a person or
firm acts as a common carrier, without regard to whether or not such
carrier has also complied with the requirements of the applicable regulatory
statute and implementing regulations and has been granted a certificate of
public convenience or other franchise. To exempt private respondent from
the liabilities of a common carrier because he has not secured the
necessary certificate of public convenience, would be offensive to sound
public policy; that would be to reward private respondent precisely for
failing to comply with applicable statutory requirements. The business of a
common carrier impinges directly and intimately upon the safety and well
being and property of those members of the general community who
happen to deal with such carrier. The law imposes duties and liabilities
upon common carriers for the safety and protection of those who utilize
their services and the law cannot allow a common carrier to render such
duties and liabilities merely facultative by simply failing to obtain the
necessary permits and authorizations.
Common carriers, "by the nature of their business and for reasons of public
policy" 2 are held to a very high degree of care and diligence
("extraordinary diligence") in the carriage of goods as well as of
passengers. The specific import of extraordinary diligence in the care of
goods transported by a common carrier is, according to Article 1733,
"further expressed in Articles 1734,1735 and 1745, numbers 5, 6 and 7" of
the Civil Code.
Article 1734 establishes the general rule that common carriers are
responsible for the loss, destruction or deterioration of the goods which
they carry, "unless the same is due to any of the following causes only:
(1)
Flood, storm, earthquake, lightning or other natural disaster or
calamity;
(2)
(3)
Applying the above-quoted Articles 1734 and 1735, we note firstly that the
specific cause alleged in the instant case the hijacking of the carrier's
truck does not fall within any of the five (5) categories of exempting
causes listed in Article 1734. It would follow, therefore, that the hijacking of
the carrier's vehicle must be dealt with under the provisions of Article 1735,
in other words, that the private respondent as common carrier is presumed
to have been at fault or to have acted negligently. This presumption,
however, may be overthrown by proof of extraordinary diligence on the
part of private respondent.
The precise issue that we address here relates to the specific requirements
of the duty of extraordinary diligence in the vigilance over the goods
carried in the specific context of hijacking or armed robbery.
(4)
The character-of the goods or defects in the packing or-in the
containers; and
(5)
It is important to point out that the above list of causes of loss, destruction
or deterioration which exempt the common carrier for responsibility
therefor, is a closed list. Causes falling outside the foregoing list, even if
they appear to constitute a species of force majeure fall within the scope of
Article 1735, which provides as follows:
xxx
xxx
xxx
(5)
that the common carrier shall not be responsible for the acts or
omissions of his or its employees;
(6)
that the common carrier's liability for acts committed by thieves,
or of robbers who do not act with grave or irresistible threat, violence or
force, is dispensed with or diminished; and
(7)
that the common carrier shall not responsible for the loss,
destruction or deterioration of goods on account of the defective condition
of the car vehicle, ship, airplane or other equipment used in the contract of
carriage. (Emphasis supplied)
Under Article 1745 (6) above, a common carrier is held responsible and
will not be allowed to divest or to diminish such responsibility even for
acts of strangers like thieves or robbers, except where such thieves or
robbers in fact acted "with grave or irresistible threat, violence or force."
We believe and so hold that the limits of the duty of extraordinary diligence
in the vigilance over the goods carried are reached where the goods are
lost as a result of a robbery which is attended by "grave or irresistible
threat, violence or force."
and later releasing them in another province (in Zambales). The hijacked
truck was subsequently found by the police in Quezon City. The Court of
First Instance convicted all the accused of robbery, though not of robbery in
band. 4
We, therefore, agree with the result reached by the Court of Appeals that
private respondent Cendana is not liable for the value of the undelivered
merchandise which was lost because of an event entirely beyond private
respondent's control.
SO ORDERED.
In the instant case, armed men held up the second truck owned by private
respondent which carried petitioner's cargo. The record shows that an
information for robbery in band was filed in the Court of First Instance of
Tarlac, Branch 2, in Criminal Case No. 198 entitled "People of the Philippines
v. Felipe Boncorno, Napoleon Presno, Armando Mesina, Oscar Oria and one
John Doe." There, the accused were charged with willfully and unlawfully
taking and carrying away with them the second truck, driven by Manuel
Estrada and loaded with the 600 cartons of Liberty filled milk destined for
delivery at petitioner's store in Urdaneta, Pangasinan. The decision of the
trial court shows that the accused acted with grave, if not irresistible,
threat, violence or force. 3 Three (3) of the five (5) hold-uppers were armed
with firearms. The robbers not only took away the truck and its cargo but
also kidnapped the driver and his helper, detaining them for several days
The stay of the newly wed Ruelito and his wife at the Resort from
September 9 to 11, 2000 was by virtue of a tour package-contract with
respondent that included transportation to and from the Resort and the
point of departure in Batangas.
On September 11, 2000, as it was still windy, Matute and 25 other Resort
guests including petitioners son and his wife trekked to the other side of
the Coco Beach mountain that was sheltered from the wind where they
boarded M/B Coco Beach III, which was to ferry them to Batangas.
vs.
SUN HOLIDAYS, INC., Respondent.
DECISION
Shortly after the boat sailed, it started to rain. As it moved farther away
from Puerto Galera and into the open seas, the rain and wind got stronger,
causing the boat to tilt from side to side and the captain to step forward to
the front, leaving the wheel to one of the crew members.
The waves got more unwieldy. After getting hit by two big waves which
came one after the other, M/B Coco Beach III capsized putting all
passengers underwater.
The passengers, who had put on their life jackets, struggled to get out of
the boat. Upon seeing the captain, Matute and the other passengers who
reached the surface asked him what they could do to save the people who
were still trapped under the boat. The captain replied "Iligtas niyo na lang
ang sarili niyo" (Just save yourselves).
Help came after about 45 minutes when two boats owned by Asia Divers in
Sabang, Puerto Galera passed by the capsized M/B Coco Beach III. Boarded
on those two boats were 22 persons, consisting of 18 passengers and four
crew members, who were brought to Pisa Island. Eight passengers,
including petitioners son and his wife, died during the incident.
In its Answer,7 respondent denied being a common carrier, alleging that its
boats are not available to the general public as they only ferry Resort
guests and crew members. Nonetheless, it claimed that it exercised the
utmost diligence in ensuring the safety of its passengers; contrary to
petitioners allegation, there was no storm on September 11, 2000 as the
Coast Guard in fact cleared the voyage; and M/B Coco Beach III was not
filled to capacity and had sufficient life jackets for its passengers. By way of
Counterclaim, respondent alleged that it is entitled to an award for
attorneys fees and litigation expenses amounting to not less than
P300,000.
Carlos Bonquin, captain of M/B Coco Beach III, averred that the Resort
customarily requires four conditions to be met before a boat is allowed to
sail, to wit: (1) the sea is calm, (2) there is clearance from the Coast Guard,
(3) there is clearance from the captain and (4) there is clearance from the
Resorts assistant manager.8 He added that M/B Coco Beach III met all four
conditions on September 11, 2000,9 but a subasco or squall, characterized
by strong winds and big waves, suddenly occurred, causing the boat to
capsize.10
By Decision of February 16, 2005,11 Branch 267 of the Pasig RTC dismissed
petitioners Complaint and respondents Counterclaim.
Petitioners maintain the position they took before the trial court, adding
that respondent is a common carrier since by its tour package, the
transporting of its guests is an integral part of its resort business. They
inform that another division of the appellate court in fact held respondent
liable for damages to the other survivors of the incident.
Upon the other hand, respondent contends that petitioners failed to present
evidence to prove that it is a common carrier; that the Resorts ferry
services for guests cannot be considered as ancillary to its business as no
income is derived therefrom; that it exercised extraordinary diligence as
shown by the conditions it had imposed before allowing M/B Coco Beach III
to sail; that the incident was caused by a fortuitous event without any
contributory negligence on its part; and that the other case wherein the
appellate court held it liable for damages involved different plaintiffs, issues
and evidence.16
only from a narrow segment of the general population. We think that Article
1733 deliberately refrained from making such distinctions.
That respondent does not charge a separate fee or fare for its ferry services
is of no moment. It would be imprudent to suppose that it provides said
services at a loss. The Court is aware of the practice of beach resort
operators offering tour packages to factor the transportation fee in arriving
at the tour package price. That guests who opt not to avail of respondents
ferry services pay the same amount is likewise inconsequential. These
guests may only be deemed to have overpaid.
A very cautious person exercising the utmost diligence would thus not
brave such stormy weather and put other peoples lives at risk. The
extraordinary diligence required of common carriers demands that they
take care of the goods or lives entrusted to their hands as if they were their
own. This respondent failed to do.
Under the Civil Code, common carriers, from the nature of their business
and for reasons of public policy, are bound to observe extraordinary
diligence for the safety of the passengers transported by them, according
to all the circumstances of each case.19 They are bound to carry the
passengers safely as far as human care and foresight can provide, using
the utmost diligence of very cautious persons, with due regard for all the
circumstances.20
The elements of a "fortuitous event" are: (a) the cause of the unforeseen
and unexpected occurrence, or the failure of the debtors to comply with
their obligations, must have been independent of human will; (b) the event
that constituted the caso fortuito must have been impossible to foresee or,
if foreseeable, impossible to avoid; (c) the occurrence must have been such
as to render it impossible for the debtors to fulfill their obligation in a
normal manner; and (d) the obligor must have been free from any
participation in the aggravation of the resulting injury to the creditor.24
To fully free a common carrier from any liability, the fortuitous event must
have been the proximate and only cause of the loss. And it should have
exercised due diligence to prevent or minimize the loss before, during and
after the occurrence of the fortuitous event.25
Respondent cites the squall that occurred during the voyage as the
fortuitous event that overturned M/B Coco Beach III. As reflected above,
however, the occurrence of squalls was expected under the weather
condition of September 11, 2000. Moreover, evidence shows that M/B Coco
Beach III suffered engine trouble before it capsized and sank.26 The
incident was, therefore, not completely free from human intervention.
The evidence shows that PAGASA issued 24-hour public weather forecasts
and tropical cyclone warnings for shipping on September 10 and 11, 2000
advising of tropical depressions in Northern Luzon which would also affect
the province of Mindoro.22 By the testimony of Dr. Frisco Nilo, supervising
weather specialist of PAGASA, squalls are to be expected under such
weather condition.23
The Court need not belabor how respondents evidence likewise fails to
demonstrate that it exercised due diligence to prevent or minimize the loss
before, during and after the occurrence of the squall.
Article 176427 vis--vis Article 220628 of the Civil Code holds the common
carrier in breach of its contract of carriage that results in the death of a
passenger liable to pay the following: (1) indemnity for death, (2) indemnity
for loss of earning capacity and (3) moral damages.
of the gross income, the living expenses are fixed at half of the gross
income.
Petitioners are entitled to indemnity for the death of Ruelito which is fixed
at P50,000.29
Life expectancy =
Life expectancy =
35
= 35 x (P475,200 - P237,600)
= 35 x (P237,600)
Net Earning Capacity
In computing the third factor necessary living expense, Smith Bell Dodwell
Shipping Agency Corp. v. Borja34 teaches that when, as in this case, there
is no showing that the living expenses constituted the smaller percentage
= P8,316,000
Pursuant to Article 220839 of the Civil Code, attorney's fees may also be
awarded where exemplary damages are awarded. The Court finds that 10%
of the total amount adjudged against respondent is reasonable for the
purpose.
3. When the judgment of the court awarding a sum of money becomes final
and executory, the rate of legal interest, whether the case falls under
paragraph 1 or paragraph 2, above, shall be 12% per annum from such
finality until its satisfaction, this interim period being deemed to be by then
an equivalent to a forbearance of credit. (emphasis supplied).
10
ENDENCIA, J.:
On September 30, 1952, Sy filed action against the Malate Taxicab &
Garage, Inc., based upon a contract of carriage, to recover the sums of
P7,200 as actual or compensatory damages, P20,000 as moral damages,
P15,000 as nominal and exemplary damages, and P3,000 a attorney's fees.
On October 2, 1952, a copy of the complaint was served on and received by
the defendant, but the latter filed its answer only on October 20, 1952,
wherein it alleged that the collision subject of the complaint was not due to
the negligence of its driver but to that of Sgt. Jesus Dequito, the driver of
the army wagon; and, by way of counterclaim, sought to recover the sum of
P1,000 as damages caused by the alleged malicious and frivolous action
filed against it.
The record reveals that upon plaintiff's motion filed on October 23, 1952,
the lower court ordered on October 25, 1952 that the answer which was
filed by defendant out of time be stricken out, and declared the Malate
Taxicab & Garage, Inc. in default. Thereafter, on October 30, 1952, plaintiff
presented his evidence, and on November 20, 1952 judgment was rendered
awarding plaintiff the sum of P14.000 as actual, compensatory, moral,
nominal and exemplary damages including attorney's fees and costs, with
interest at the legal rate from the filing of the action. Defendant then filed a
motion on December 17, 1952, for relief from the order of default and for
new trial, which was granted. Hence, plaintiff filed his reply to defendant's
answer and counterelaim, and by leave of court, the latter filed on February
24, 1953 a third-party complaint against Sgt. Jesus Dequito alleging that
the cause of the collision between the taxicab and the army wagon was the
negligence of the army sergeant, and praying that whatever amount the
court may assess against it in the action filed by plaintiff, be paid to said
third-party plaintiff, plus an additional amount of P1,000 representing
attorney's fees. It appears, however, that the summons and copy of the
third-party complaint were never served upon third-party defendant
Dequito in view of his continued assignment from place to place in
connection with his army duties, and for this reason the main case was set
for trial on May 10, 1953, obviously for the sole purpose of disposing of the
issue arising from plaintiffs complaint. On the day of the trial, defendant
failed to appear, whereupon plaintiff presented his evidence, and judgment
was rendered against the defendant in the total sum of P4,200 representing
actual, compensatory and moral damages, as well as attorney's fees, with
interest at the legal rate from the filing of the action, plus costs of suit. Aga
nst said judgment defendant appealed to the Court of Appeals and
assigned in its brief two errors of the lower court, namely:
1.
The trial court erred in not finding that the third-party complaint
involves a prejudicial question, and therefore, the main complaint cannot
be decided until the third-party complaint is decided.
2.
The trial court erred in not deciding or making an express finding
as to whether the defendant appellant Malate Taxicab & Garage, Inc. was
responsible for the collision, and hence, civilly responsible to the plaintiffappellee.
11
Coming to the second assignment of error that the lower court erred in not
making an express findings as to whether defendant appellant was
responsible for the collision, we find the same to be unjustified. The
pertinent, provisions of the new Civil Code under the heading Common
Carriers, are the following:
ART. 1733. Common carriers, from the nature of their business and for
reason of public policy, are bound to observe extraordinary diligence in the
vigilance over the goods and for the safety of the passengers transported
by them, according to all the circumstances of each case.
Evidently, under these provisions of law, the court need not make an
express finding of fault or negligence on the part of the defendant appellant
in order to hold it responsible to pay the damages sought for by the
plaintiff, for the action initiated therefor is based on a contract of carriage
and not on tort. When plaintiff rode on defendant-appellant's taxicab, the
latter assumed the express obligation to transport him to his destination
safely, and to observe extraordinary diligence with a due regard for all the
circumstances, and any injury that might be suffered by the passenger is
right away attributable to the fault or negligence of the carrier (Article
1756, supra). This is an exception to the general rule that negligence must
be proved, and it was therefore incumbent upon the carrier to prove that it
has exercised extraordinary diligence as prescribed in Articles 1733 and
1755 of the new Civil Code. It is noteworthy, however, that at the hearing in
the lower court defendant-appellant failed to appear and has not presented
any evidence at all to overcome and overwhelm the presumption of
negligence imposed upon it by law; hence, there was no need for the lower
court to make an express finding thereon in view of the provisions of the
aforequoted Article 1756 of the new Civil Code.
Wherefore, the decision of the lower court is hereby affirmed with cost
against the appellant.
I concur for the additional reason that the concurrent negligence of a third
person will not exempt the appellant from responsibility; in other words, if
the driver of the taxicab was negligent and thereby caused the collision,
the fact that another driver's negligence also contributed thereto will not
12
exempt the taxicab company. Hence, the negligence of the other driver is
not a prejudicial question to the present action.
13
vs.
PEPITO BUO, PEDRO GAHOL, LUISA ALCANTARA, GUILLERMO RAZON,
ANSELMO MALIGAYA and CEFERINA ARO, respondents.
BENGZON, C.J.:
At noon of January 12, 1958, a passenger jeepney was parked on the road
to Taal, Batangas. A motor truck speeding along, negligently bumped it
from behind, with such violence that three of its passengers died, even as
two others (passengers too) suffered injuries that required their
confinement at the Provincial Hospital for many days.
The plaintiffs appealed to the Court of Appeals insisting that the driver and
the owners of the jeepney should also be made liable for damages.
The last mentioned court, upon reviewing the record, declared that:
After crossing the bridge, defendant Buo stopped his vehicle in order to
allow one of his passengers to alight. But he so parked his jeepney in such
a way that one-half of its width (the left wheels) was on the asphalted
pavement of the road and the other half, on the right shoulder of said road
(pp. 21-22, t.s.n. May 26, 1958; p. 12 t.s.n. July 17, 1958). Approximately
five minutes later and before Buo could start his vehicle, a speeding water
truck, which bore plate No. T-17526 and owned by defendants-spouses
Anselmo Maligaya and Ceferina Aro, then being driven by Guillermo Razon
from the direction of Mahabang Ludlud, Taal, Batangas, towards the
poblacion of that municipality, violently smashed against the parked
jeepney from behind, causing it to turn turtle into a nearby ditch.
Then said Appellate Court went on to affirm the exoneration of the jeepney
driver and of its owners. It explained that although "the driver of the illstarred vehicle was not free from fault, for he was guilty of an antecedent
negligence in parking his vehicle with a portion thereof occupying the
asphalted road", it considered the truck driver guilty of greater negligence
which was the efficient cause of the collision; and applying the doctrine of
the "last clear chance"1 said Court ordered the owners of the truck to pay,
solidarily with its driver, damages as follows:
x x x the sum of P6,000.00 for the death of their daughter Emelita, another
sum of P5,000.00 as moral damages and the sum of P500.00 as actual
damages, and to plaintiffs Simplicio, Alberto, Avelina and Alfredo, all
surnamed Arriola, and represented by their guardian ad litem Agustin
14
Arriola, the sum of P6,000.00 for the death of their natural mother, Leonor
Masongsong, another sum of P5,000.00 as moral damages the sum of
P3,600.00 for loss of earning capacity of said deceased and the sum of
P850.00 as actual damages.
The plaintiffs brought the matter to this Supreme Court insisting that the
driver and the owners of the jeepney should also be made liable.
We gave due course to the petition for review, because we thought the
decision meant exoneration of the carrier from liability to its passengers,
notwithstanding the negligence of its driver.
The principle about the "last clear chance" would call for application in a
suit between the owners and drivers of the two colliding vehicles. It does
not arise where a passenger demands responsibility from the carrier to
enforce its contractual obligations. For it would be inequitable to exempt
the negligent driver of the jeepney and its owners on the ground that the
other driver was likewise guilty of negligence.
Now as to damages. The driver and the owners of the truck have not
appealed from the Court of Appeals' assessment. The plaintiffs (petitioners)
have not asked here for a greater amount of indemnity. They merely pray
for a declaration that Pepito Buo, Pedro Gahol and Luisa Alcantara (the
driver and the owners of the jeepney, respectively) be declared jointly and
severally liable with the other defendants.1wph1.t
15
MEDIALDEA, J.:
Upon reaching barrio Sinayoan, San Manuel, Tarlac, the right rear wheel of
the jeepney was detached, so it was running in an unbalanced position.
Manalo stepped on the brake, as a result of which, the jeepney which was
then running on the eastern lane (its right of way) made a U-turn, invading
and eventually stopping on the western lane of the road in such a manner
that the jeepney's front faced the south (from where it came) and its rear
faced the north (towards where it was going). The jeepney practically
occupied and blocked the greater portion of the western lane, which is the
right of way of vehicles coming from the north, among which was Bus No.
753 of petitioner Philippine Rabbit Bus Lines, Inc. (Rabbit) driven by Tomas
delos Reyes. Almost at the time when the jeepney made a sudden U-turn
and encroached on the western lane of the highway as claimed by Rabbit
and delos Reyes, or after stopping for a couple of minutes as claimed by
Mangune, Carreon and Manalo, the bus bumped from behind the right rear
portion of the jeepney. As a result of the collision, three passengers of the
jeepney (Catalina Pascua, Erlinda Meriales and Adelaida Estomo) died while
the other jeepney passengers sustained physical injuries. What could have
been a festive Christmas turned out to be tragic.
16
The causes of the death of the three jeepney passengers were as follows
(p. 101, Record on Appeal):
positions of the two vehicles as well as the alleged point of impact (p. 100,
Record on Appeal):
Erlinda Mariles (sic) sustained external lesions such as contusion on the left
parietal region of the skull; hematoma on the right upper lid; and abrasions
(sic) on the left knee. Her internal lesions were: hematoma on the left
thorax; multiple lacerations of the left lower lobe of the lungs; contusions
on the left lower lobe of the lungs; and simple fractures of the 2nd, 3rd, 4th,
5th, 6th, 7th, and 8th ribs, left. The forcible impact of the jeep caused the
above injuries which resulted in her death. . . .
The cause of death of Erlinda or Florida Estomo (also called as per autopsy
of Dr. Panlasiqui was due to shock due to internal hemorrhage, ruptured
spleen and trauma. . . .
At the time and in the vicinity of the accident, there were no vehicles
following the jeepney, neither were there oncoming vehicles except the
bus. The weather condition of that day was fair.
After conducting the investigation, the police filed with the Municipal Court
of San Manuel, Tarlac, a criminal complaint against the two drivers for
Multiple Homicide. At the preliminary investigation, a probable cause was
found with respect to the case of Manalo, thus, his case was elevated to the
Court of First Instance. However, finding no sufficiency of evidence as
regards the case of delos Reyes, the Court dismissed it. Manalo was
convicted and sentenced to suffer imprisonment. Not having appealed, he
served his sentence.
Complaints for recovery of damages were then filed before the Court of
First Instance of Pangasinan. In Civil Case No. 1136, spouses Casiano
Pascua and Juana Valdez sued as heirs of Catalina Pascua while Caridad
17
Pascua sued in her behalf. In Civil Case No. 1139, spouses Manuel Millares
and Fidencia Arcica sued as heirs of Erlinda Meriales. In Civil Case No. 1140,
spouses Mariano Estomo and Dionisia Sarmiento also sued as heirs of
Adelaida Estomo.
On December 27, 1978, the trial court rendered its decision finding Manalo
negligent, the dispositive portion of which reads (pp. 113-114, Record on
Appeal):
For the death of Catalina Pascua, plaintiffs in Civil Case No. 1136 sought to
collect the aggregate amount of P70,060.00 in damages, itemized as
follows: P500.00 for burial expenses; P12,000.00 for loss of wages for 24
years; P10,000.00 for exemplary damages; P10,000.00 for moral damages;
and P3,000.00 for attorney's fees. In the same case, plaintiff Caridad
Pascua claimed P550.00 for medical expenses; P240.00 for loss of wages
for two months; P2,000.00 for disfigurement of her face; P3,000.00 for
physical pain and suffering; P2,500.00 as exemplary damages and
P2,000.00 for attorney's fees and expenses of litigation.
In Civil Case No. 1139, plaintiffs demanded P500.00 for burial expenses;
P6,000.00 for the death of Erlinda, P63,000.00 for loss of income;
P10,000.00 for moral damages and P3,000.00 for attorney's fees or total of
P80,000.00.
In Civil Case No. 1140, plaintiffs claimed P500.00 for burial expenses;
P6,000.00 for the death of Adelaide, P56,160.00 for loss of her income or
earning capacity; P10,000.00 for moral damages; and P3,000.00 for
attorney's fees.
1)
That defendants Isidro Mangune, Guillerma Carreon and
Tranquilino Manalo thru their negligence, breached contract of carriage with
their passengers the plaintiffs' and/or their heirs, and this Court renders
judgment ordering said defendants, jointly and severally, to pay the
plaintiffs
a)
In Civil Case No. 1136, for the death of Catalina Pascua, to pay her
heirs the amounts of P12,000.00 for indemnity for loss of her life;
P41,760.00 for loss of earnings; P324.40 for actual expenses and P2,000.00
for moral damages;
b)
In the same Civil Case No.1136 for the injuries of Caridad Pascua,
to pay her the amounts of P240.00 for loss of wages, P328.20 for actual
expenses and P500.00 for moral damages;
c)
In Civil Case No.1139 for the death of Erlinda Meriales, to pay her
heirs (the plaintiffs) the amount of P12,000.00 for indemnity for loss of
her life; P622.00 for actual expenses, P60,480.00 for loss of wages or
income and P2,000.00 for moral damages;
d)
In Civil Case No. 1140, for the death of Erlinda (also called Florida
or Adelaida Estomo), to pay her heirs (the plaintiff the amount of
P12,000.00 for indemnity for the loss of her life; P580.00 for actual
expenses; P53,160.00 for loss of wages or income and P2,000.00 for moral
damages.
2)
The defendant Filriters Guaranty Insurance Co., having contracted
to ensure and answer for the obligations of defendants Mangune and
Carreon for damages due their passengers, this Court renders judgment
18
against the said defendants Filriters Guaranty Insurance Co., jointly and
severally with said defendants (Mangune and Carreon) to pay the plaintiffs
the amount herein above adjudicated in their favor in Civil Case No. 1136
only. All the amounts awarded said plaintiff, as set forth in paragraph one
(1) hereinabove;
For the death of Catalina Pascua, the parents and/or heirs are awarded
3)
On the cross claim of Phil. Rabbit Bus Lines, Inc. ordering the
defendant, Isidro Mangune, Guillerma Carreon and Tranquilino Manalo, to
pay jointly and severally, cross-claimant Phil. Rabbit Bus Lines, Inc., the
amounts of P216.27 as actual damages to its Bus No. 753 and P2,173.60
for loss of its earning.
a)
P12,000.00
b)
14,000.00
Costs are adjudged against defendants Mangune, Carreon and Manalo and
Filriters Guaranty.
c)
800.00
SO ORDERED
d)
10,000.00
e)
Exemplary damages
3,000.00
f)
3,000.00
All of the above amount, shall bear legal interest from the filing of the
complaints.
3)
On the cross claim of Philippine Rabbit Bus Lines, Inc. ordering the
defendants Isidro Mangune, Guillerma Carreon and Tranquilino Manalo, to
pay jointly and severally, the amounts of P216.27 as actual damages to its
Bus No. 753 and P2,173.60 for loss of its earnings.
Total
P38,200.00 (sic)
19
a)
b)
8,000.00
c)
Exemplary damages
P550.00
Exemplary damages
f)
Attorney's fees
3,000.00
15,000.00
Total
2,000.00
P65,500.00
Total
e)
P10,550.00
a)
For the death of Erlinda Arcega Meriales. the parents and/or heirs:
b)
c)
d)
Moral damages
a)
b)
20,000.00
e)
Exemplary damages
c)
500.00
f)
Attorney's fees
3,000.00
d)
Moral damages
P12,000.00
15,000.00
P12,000.00
20,000.00
500.00
3,000.00
3,000.00
20
Total
P41,500.00
SO ORDERED.
The motion for reconsideration was denied. Hence, the present petition.
The issue is who is liable for the death and physical injuries suffered by the
passengers of the jeepney?
The trial court, in declaring that Manalo was negligent, considered the
following (p. 106, Record on Appeal):
(1)
That the unrebutted testimony of his passenger plaintiff Caridad
Pascua that a long ways (sic) before reaching the point of collision, the
Mangune jeepney was "running fast" that his passengers cautioned driver
Manalo to slow down but did not heed the warning: that the right rear
wheel was detached causing the jeepney to run to the eastern shoulder of
the road then back to the concrete pavement; that driver Manalo applied
the brakes after which the jeepney made a U-turn (half-turn) in such a
manner that it inverted its direction making it face South instead of north;
that the jeepney stopped on the western lane of the road on the right of
way of the oncoming Phil. Rabbit Bus where it was bumped by the latter;
(2)
The likewise unrebutted testimony of Police Investigator Tacpal of
the San Manuel (Tarlac) Police who, upon responding to the reported
collission, found the real evidence thereat indicate in his sketch (Exh. K,
Pascua ), the tracks of the jeepney of defendant Mangune and Carreon
running on the Eastern shoulder (outside the concrete paved road) until it
returned to the concrete road at a sharp angle, crossing the Eastern lane
and the (imaginary) center line and encroaching fully into the western lane
where the collision took place as evidenced by the point of impact;
(3)
The observation of witness Police Corporal Cacalda also of the San
Manuel Police that the path of the jeepney they found on the road and
indicated in the sketch (Exh. K-Pascua) was shown by skid marks which he
described as "scratches on the road caused by the iron of the jeep, after its
wheel was removed;"
(4)
His conviction for the crime of Multiple Homicide and Multiple
Serious Physical Injuries with Damage to Property thru Reckless
Imprudence by the Court of First Instance of Tarlac (Exh. 24-Rabbit) upon
the criminal Information by the Provincial Fiscal of Tarlac (Exh. 23-Rabbit),
as a result of the collision, and his commitment to prison and service of his
sentence (Exh. 25-Rabbit) upon the finality of the decision and his failure to
appeal therefrom; and
(5)
The application of the doctrine of res-ipsa loquitar (sic) attesting to
the circumstance that the collision occured (sic) on the right of way of the
Phil. Rabbit Bus.
The respondent court had a contrary opinion. Applying primarily (1) the
doctrine of last clear chance, (2) the presumption that drivers who bump
the rear of another vehicle guilty and the cause of the accident unless
contradicted by other evidence, and (3) the substantial factor test.
concluded that delos Reyes was negligent.
The misappreciation of the facts and evidence and the misapplication of the
laws by the respondent court warrant a reversal of its questioned decision
and resolution.
We reiterate that "[t]he principle about "the last clear" chance, would call
for application in a suit between the owners and drivers of the two colliding
vehicles. It does not arise where a passenger demands responsibility from
the carrier to enforce its contractual obligations. For it would be inequitable
to exempt the negligent driver of the jeepney and its owners on the ground
that the other driver was likewise guilty of negligence." This was Our ruling
in Anuran, et al. v. Buo et al., G.R. Nos. L-21353 and L-21354, May 20,
1966, 17 SCRA 224. 1 Thus, the respondent court erred in applying said
doctrine.
21
On the presumption that drivers who bump the rear of another vehicle
guilty and the cause of the accident, unless contradicted by other evidence,
the respondent court said (p. 49, Rollo):
. . . the jeepney had already executed a complete turnabout and at the time
of impact was already facing the western side of the road. Thus the jeepney
assumed a new frontal position vis a vis, the bus, and the bus assumed a
new role of defensive driving. The spirit behind the presumption of guilt on
one who bumps the rear end of another vehicle is for the driver following a
vehicle to be at all times prepared of a pending accident should the driver
in front suddenly come to a full stop, or change its course either through
change of mind of the front driver, mechanical trouble, or to avoid an
accident. The rear vehicle is given the responsibility of avoiding a collision
with the front vehicle for it is the rear vehicle who has full control of the
situation as it is in a position to observe the vehicle in front of it.
The above discussion would have been correct were it not for the
undisputed fact that the U-turn made by the jeepney was abrupt (Exhibit
"K," Pascua). The jeepney, which was then traveling on the eastern
shoulder, making a straight, skid mark of approximately 35 meters, crossed
the eastern lane at a sharp angle, making a skid mark of approximately 15
meters from the eastern shoulder to the point of impact (Exhibit "K"
Pascua). Hence, delos Reyes could not have anticipated the sudden U-turn
executed by Manalo. The respondent court did not realize that the
presumption was rebutted by this piece of evidence.
With regard to the substantial factor test, it was the opinion of the
respondent court that (p. 52, Rollo):
. . . It is the rule under the substantial factor test that if the actor's conduct
is a substantial factor in bringing about harm to another, the fact that the
actor neither foresaw nor should have foreseen the extent of the harm or
the manner in which it occurred does not prevent him from being liable
(Restatement, Torts, 2d). Here, We find defendant bus running at a fast
speed when the accident occurred and did not even make the slightest
effort to avoid the accident, . . . . The bus driver's conduct is thus a
substantial factor in bringing about harm to the passengers of the jeepney,
not only because he was driving fast and did not even attempt to avoid the
mishap but also because it was the bus which was the physical force which
brought about the injury and death to the passengers of the jeepney.
The speed of the bus was calculated by respondent court as follows (pp. 5455, Rollo):
According to the record of the case, the bus departed from Laoag, Ilocos
Norte, at 4:00 o'clock A.M. and the accident took place at approximately
around 12:30 P.M., after travelling roughly for 8 hours and 30 minutes.
Deduct from this the actual stopover time of two Hours (computed from the
testimony of the driver that he made three 40-minute stop-overs), We will
have an actual travelling time of 6 hours and 30 minutes.
Still, We are not convinced. It cannot be said that the bus was travelling at
a fast speed when the accident occurred because the speed of 80 to 90
kilometers per hour, assuming such calculation to be correct, is yet within
the speed limit allowed in highways. We cannot even fault delos Reyes for
not having avoided the collision. As aforestated, the jeepney left a skid
mark of about 45 meters, measured from the time its right rear wheel was
detached up to the point of collision. Delos Reyes must have noticed the
perilous condition of the jeepney from the time its right rear wheel was
detached or some 90 meters away, considering that the road was straight
and points 200 meters north and south of the point of collision, visible and
unobstructed. Delos Reyes admitted that he was running more or less 50
kilometers per hour at the time of the accident. Using this speed, delos
Reyes covered the distance of 45 meters in 3.24 seconds. If We adopt the
speed of 80 kilometers per hour, delos Reyes would have covered that
distance in only 2.025 seconds. Verily, he had little time to react to the
situation. To require delos Reyes to avoid the collision is to ask too much
from him. Aside from the time element involved, there were no options
available to him. As the trial court remarked (pp. 107-108, Record on
Appeal):
22
. . . They (plaintiffs) tried to impress this Court that defendant de los Reyes,
could have taken either of two options: (1) to swerve to its right (western
shoulder) or (2) to swerve to its left (eastern lane), and thus steer clear of
the Mangune jeepney. This Court does not so believe, considering the
existing exigencies of space and time.
Plaintiffs alternatively claim that defendant delos Reyes of the Rabbit bus
could also have swerved to its left (eastern lane) to avoid bumping the
Mangune jeepney which was then on the western lane. Such a claim is
premised on the hypothesis (sic) that the eastern lane was then empty. This
claim would appear to be good copy of it were based alone on the sketch
made after the collision. Nonetheless, it loses force it one were to consider
the time element involved, for moments before that, the Mangune jeepney
was crossing that very eastern lane at a sharp angle. Under such a situation
then, for driver delos Reyes to swerve to the eastern lane, he would run the
greater risk of running smack in the Mangune jeepney either head on or
broadside.
After a minute scrutiny of the factual matters and duly proven evidence, We
find that the proximate cause of the accident was the negligence of Manalo
and spouses Mangune and Carreon. They all failed to exercise the
precautions that are needed precisely pro hac vice.
The negligence of Manalo was proven during the trial by the unrebutted
testimonies of Caridad Pascua, Police Investigator Tacpal, Police Corporal
Cacalda, his (Manalo's) conviction for the crime of Multiple Homicide and
Multiple Serious Injuries with Damage to Property thru Reckless
Imprudence, and the application of the doctrine of res ipsa loquitur supra.
The negligence of spouses Mangune and Carreon was likewise proven
during the trial (p. 110, Record on Appeal):
In any event, "[i]n an action for damages against the carrier for his failure
to safely carry his passenger to his destination, an accident caused either
by defects in the automobile or through the negligence of its driver, is not a
caso fortuito which would avoid the carriers liability for damages (Son v.
Cebu Autobus Company, 94 Phil. 892 citing Lasam, et al. v. Smith, Jr., 45
Phil. 657; Necesito, etc. v. Paras, et al., 104 Phil. 75).
The trial court was therefore right in finding that Manalo and spouses
Mangune and Carreon were negligent. However, its ruling that spouses
Mangune and Carreon are jointly and severally liable with Manalo is
erroneous The driver cannot be held jointly and severally liable with the
carrier in case of breach of the contract of carriage. The rationale behind
this is readily discernible. Firstly, the contract of carriage is between the
carrier and the passenger, and in the event of contractual liability, the
23
We affirm the amount of damages adjudged by the trial court, except with
respect to the indemnity for loss of life. Under Article 1764 in relation to
Article 2206 of the New Civil Code, the amount of damages for the death of
a passenger is at least three thousand pesos (P3,000.00). The prevailing
jurisprudence has increased the amount of P3,000.00 to P30,000.00 (see
Heirs of Amparo delos Santos, et al. v. Honorable Court of Appeals, et al.,
G.R. No. 51165, June 21, 1990 citing De Lima v. Laguna Tayabas Co., G.R.
Nos. L-35697-99, April 15, 1988, 160 SCRA 70).
SO ORDERED.
vs.
NATIVIDAD PARAS, ET AL., defendants-appellees.
x---------------------------------------------------------x
These cases involve ex contractu against the owners and operators of the
common carrier known as Philippine Rabbit Bus Lines, filed by one
24
passenger, and the heirs of another, who injured as a result of the fall into a
river of the vehicle in which they were riding.
In the morning of January 28, 1964, Severina Garces and her one-year old
son, Precillano Necesito, carrying vegetables, boarded passenger auto truck
or bus No. 199 of the Philippine Rabbit Bus Lines at Agno, Pangasinan. The
passenger truck, driven by Francisco Bandonell, then proceeded on its
regular run from Agno to Manila. After passing Mangatarem, Pangasinan
truck No. 199 entered a wooden bridge, but the front wheels swerved to the
right; the driver lost control, and after wrecking the bridge's wooden rails,
the truck fell on its right side into a creek where water was breast deep.
The mother, Severina Garces, was drowned; the son, Precillano Necesito,
was injured, suffering abrasions and fracture of the left femur. He was
brought to the Provincial Hospital at Dagupan, where the fracture was set
but with fragments one centimeter out of line. The money, wrist watch and
cargo of vegetables were lost.
Two actions for damages and attorney's fees totalling over P85,000 having
been filed in the Court of First Instance of Tarlac (Cases Nos. 908 and 909)
against the carrier, the latter pleaded that the accident was due to "engine
or mechanical trouble" independent or beyond the control of the
defendants or of the driver Bandonell.
After joint trial, the Court of First Instance found that the bus was
proceeding slowly due to the bad condition of the road; that the accident
was caused by the fracture of the right steering knuckle, which was
defective in that its center or core was not compact but "bubbled and
cellulous", a condition that could not be known or ascertained by the carrier
despite the fact that regular thirty-day inspections were made of the
steering knuckle, since the steel exterior was smooth and shiny to the
depth of 3/16 of an inch all around; that the knuckles are designed and
manufactured for heavy duty and may last up to ten years; that the knuckle
of bus No. 199 that broke on January 28, 1954, was last inspected on
January 5, 1954, and was due to be inspected again on February 5th.
Hence, the trial court, holding that the accident was exclusively due to
fortuitous event, dismissed both actions. Plaintiffs appealed directly to this
Court in view of the amount in controversy.
We are inclined to agree with the trial court that it is not likely that bus No.
199 of the Philippine Rabbit Lines was driven over the deeply rutted road
leading to the bridge at a speed of 50 miles per hour, as testified for the
plaintiffs. Such conduct on the part of the driver would have provoked
instant and vehement protest on the part of the passengers because of the
attendant discomfort, and there is no trace of any such complaint in the
records. We are thus forced to assume that the proximate cause of the
accident was the reduced strength of the steering knuckle of the vehicle
caused by defects in casting it. While appellants hint that the broken
knuckle exhibited in court was not the real fitting attached to the truck at
the time of the accident, the records they registered no objection on that
ground at the trial below. The issue is thus reduced to the question whether
or not the carrier is liable for the manufacturing defect of the steering
knuckle, and whether the evidence discloses that in regard thereto the
carrier exercised the diligence required by law (Art. 1755, new Civil Code).
ART. 1755. A common carrier is bound to carry the passengers safely as far
as human care and foresight can provide, using the utmost diligence of
very cautious persons, with a due regard for the all the circumstances.
It is clear that the carrier is not an insurer of the passengers' safety. His
liability rests upon negligence, his failure to exercise the "utmost" degree of
diligence that the law requires, and by Art. 1756, in case of a passenger's
death or injury the carrier bears the burden of satisfying the court that he
has duly discharged the duty of prudence required. In the American law,
where the carrier is held to the same degree of diligence as under the new
Civil Code, the rule on the liability of carriers for defects of equipment is
thus expressed: "The preponderance of authority is in favor of the doctrine
that a passenger is entitled to recover damages from a carrier for an injury
resulting from a defect in an appliance purchased from a manufacturer,
whenever it appears that the defect would have been discovered by the
carrier if it had exercised the degree of care which under the circumstances
was incumbent upon it, with regard to inspection and application of the
necessary tests. For the purposes of this doctrine, the manufacturer is
considered as being in law the agent or servant of the carrier, as far as
regards the work of constructing the appliance. According to this theory,
the good repute of the manufacturer will not relieve the carrier from
liability" (10 Am. Jur. 205, s, 1324; see also Pennsylvania R. Co. vs. Roy, 102
U. S. 451; 20 L. Ed. 141; Southern R. Co. vs. Hussey, 74 ALR 1172; 42 Fed.
2d 70; and Ed Note, 29 ALR 788; Ann. Cas. 1916E 929).
The rationale of the carrier's liability is the fact that the passenger has
neither choice nor control over the carrier in the selection and use of the
25
In the ordinary course of things, the passenger does not know whether the
carrier has himself manufactured the means of carriage, or contracted with
someone else for its manufacture. If the carrier has contracted with
someone else the passenger does not usually know who that person is, and
in no case has he any share in the selection. The liability of the
manufacturer must depend on the terms of the contract between him and
the carrier, of which the passenger has no knowledge, and over which he
can have no control, while the carrier can introduce what stipulations and
take what securities he may think proper. For injury resulting to the carrier
himself by the manufacturer's want of care, the carrier has a remedy
against the manufacturer; but the passenger has no remedy against the
manufacturer for damage arising from a mere breach of contract with the
carrier . . . . Unless, therefore, the presumed intention of the parties be that
the passenger should, in the event of his being injured by the breach of the
manufacturer's contract, of which he has no knowledge, be without
remedy, the only way in which effect can be given to a different intention is
by supposing that the carrier is to be responsible to the passenger, and to
look for his indemnity to the person whom he selected and whose breach of
contract has caused the mischief. (29 ALR 789)
And in the leading case of Morgan vs. Chesapeake & O. R. Co. 15 LRA (NS)
790, 16 Ann. Cas. 608, the Court, in holding the carrier responsible for
damages caused by the fracture of a car axle, due to a "sand hole" in the
course of moulding the axle, made the following observations.
its undertaking to another's shoulders. Its duty to furnish safe cars is side
by side with its duty to furnish safe track, and to operate them in a safe
manner. None of its duties in these respects can be sublet so as to relieve it
from the full measure primarily exacted of it by law. The carrier selects the
manufacturer of its cars, if it does not itself construct them, precisely as it
does those who grade its road, and lay its tracks, and operate its trains.
That it does not exercise control over the former is because it elects to
place that matter in the hands of the manufacturer, instead of retaining the
supervising control itself. The manufacturer should be deemed the agent of
the carrier as respects its duty to select the material out of which its cars
and locomotive are built, as well as in inspecting each step of their
construction. If there be tests known to the crafts of car builders, or iron
moulders, by which such defects might be discovered before the part was
incorporated into the car, then the failure of the manufacturer to make the
test will be deemed a failure by the carrier to make it. This is not a vicarious
responsibility. It extends, as the necessity of this business demands, the
rule of respondeat superior to a situation which falls clearly within its scope
and spirit. Where an injury is inflicted upon a passenger by the breaking or
wrecking of a part of the train on which he is riding, it is presumably the
result of negligence at some point by the carrier. As stated by Judge Story,
in Story on Bailments, sec. 601a: "When the injury or damage happens to
the passenger by the breaking down or overturning of the coach, or by any
other accident occurring on the ground, the presumption prima facie is that
it occurred by the negligence of the coachmen, and onus probandi is on the
proprietors of the coach to establish that there has been no negligence
whatever, and that the damage or injury has been occasioned by inevitable
casualty, or by some cause which human care and foresight could not
prevent; for the law will, in tenderness to human life and limb, hold the
proprietors liable for the slightest negligence, and will compel them to repel
by satisfactory proofs every imputation thereof." When the passenger has
proved his injury as the result of a breakage in the car or the wrecking of
the train on which he was being carried, whether the defect was in the
particular car in which he was riding or not, the burden is then cast upon
the carrier to show that it was due to a cause or causes which the exercise
of the utmost human skill and foresight could not prevent. And the carrier
in this connection must show, if the accident was due to a latent defect in
the material or construction of the car, that not only could it not have
discovered the defect by the exercise of such care, but that the builders
could not by the exercise of the same care have discovered the defect or
foreseen the result. This rule applies the same whether the defective car
belonged to the carrier or not.
In the case now before us, the record is to the effect that the only test
applied to the steering knuckle in question was a purely visual inspection
every thirty days, to see if any cracks developed. It nowhere appears that
26
either the manufacturer or the carrier at any time tested the steering
knuckle to ascertain whether its strength was up to standard, or that it had
no hidden flaws would impair that strength. And yet the carrier must have
been aware of the critical importance of the knuckle's resistance; that its
failure or breakage would result in loss of balance and steering control of
the bus, with disastrous effects upon the passengers. No argument is
required to establish that a visual inspection could not directly determine
whether the resistance of this critically important part was not impaired.
Nor has it been shown that the weakening of the knuckle was impossible to
detect by any known test; on the contrary, there is testimony that it could
be detected. We are satisfied that the periodical visual inspection of the
steering knuckle as practiced by the carrier's agents did not measure up to
the required legal standard of "utmost diligence of very cautious persons"
"as far as human care and foresight can provide", and therefore that the
knuckle's failure can not be considered a fortuitous event that exempts the
carrier from responsibility (Lasam vs. Smith, 45 Phil. 657; Son vs. Cebu
Autobus Co., 94 Phil., 892.)
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.
RESOLUTION
As to the damages suffered by the plaintiffs, we agree with appellee that no
allowance may be made for moral damages, since under Article 2220 of the
new Civil Code, in case of suits for breach of contract, moral damages are
recoverable only where the defendant acted fraudulently or in bad faith,
and there is none in the case before us. As to exemplary damages, the
carrier has not acted in a "wanton, fraudulent, reckless, oppressive or
malevolent manner" to warrant their award. Hence, we believe that for the
minor Precillano Necesito (G. R. No. L-10605), an indemnity of P5,000 would
be adequate for the abrasions and fracture of the femur, including medical
and hospitalization expenses, there being no evidence that there would be
any permanent impairment of his faculties or bodily functions, beyond the
lack of anatomical symmetry. As for the death of Severina Garces (G. R. No.
L-10606) who was 33 years old, with seven minor children when she died,
her heirs are obviously entitled to indemnity not only for the incidental
loses of property (cash, wrist watch and merchandise) worth P394 that she
carried at the time of the accident and for the burial expenses of P490, but
also for the loss of her earnings (shown to average P120 a month) and for
the deprivation of her protection, guidance and company. In our judgment,
27
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.
(2) With regard to the indemnity awarded to the child Precilliano Necesito,
the injuries suffered by him are incapable of accurate pecuniary estimation,
particularly because the full effect of the injury is not ascertainable
immediately. This uncertainty, however, does not preclude the right to an
indemnity, since the injury is patent and not denied (Civil Code, Art. 2224).
The reasons behind this award are expounded by the Code Commission in
its report:
There are cases where from the nature of the case, definite proof of
pecuniary loss cannot be offered, although the court is convinced that there
has been such loss. For instance, injury to one's commercial credit or to the
Being a special rule limited to cases of fatal injuries, these articles prevail
over the general rule of Art. 2220. Special provisions control general ones
(Lichauco & Co. vs. Apostol, 44 Phil. 138; Sancio vs. Lizarraga, 55 Phil. 601).
It thus appears that under the new Civil Code, in case of accident due to a
carrier's negligence, the heirs of a deceased passenger may recover moral
damages, even though a passenger who is injured, but manages to survive,
is not entitled to them. There is, therefore, no conflict between our main
decision in the instant case and that of Cachero vs. Manila Yellow Taxi Cab
Co., 101 Phil., 523, where the passenger suffered injuries, but did not lose
his life.
28
(3) In the Cachero case this Court disallowed attorneys' fees to the injured
plaintiff because the litigation arose out of his exaggerated and
unreasonable deeds for an indemnity that was out of proportion with the
compensatory damages to which he was solely entitled. But in the present
case, plaintiffs' original claims can not be deemed a priori wholly
unreasonable, since they had a right to indemnity for moral damages
besides compensatory ones, and moral damages are not determined by set
and invariable bounds.
Neither does the fact that the contract between the passengers and their
counsel was on a contingent basis affect the former's right to counsel fees.
As pointed out for appellants, the Court's award is an party and not to
counsel. A litigant who improvidently stipulate higher counsel fees than
those to which he is lawfully entitled, does not for that reason earn the right
to a larger indemnity; but, by parity of reasoning, he should not be
deprived of counsel fees if by law he is entitled to recover them.
29
March 4, 1959
Defendant-petitioner Paz Fores brings this petition for review of the decision
of the Court of Appeals (C.A. Case No. 1437-R) awarding to the plaintiffrespondent Ireneo Miranda the sums of P5,000 by way of actual damages
and counsel fees, and P10,000 as moral damages, with costs.
The contention that the evidence did not sufficiently establish the identity
of the vehicle as the belonging to the petitioner was rejected by the
appellate court which found, among other things, that is carried plate No.
TPU-1163, SERIES OF 1952, Quezon City, registered in the name of Paz
Fores, (appellant herein) and that the vehicle even had the name of "Doa
Paz" painted below its wind shield. No evidence to the contrary was
introduced by the petitioner, who relied on an attack upon the credibility of
the two policemen who went to the scene of the incident.
Section 20 of the Public Service Act (Commonwealth Act No. 146) provides:
Respondent was one of the passengers on a jeepney driven by Eugenio
Luga. While the vehicle was descending the Sta. Mesa bridge at an
excessive rate of speed, the driver lost control thereof, causing it to swerve
and to his the bridge wall. The accident occurred on the morning of March
22, 1953. Five of the passengers were injured, including the respondent
who suffered a fracture of the upper right humerus. He was taken to the
National Orthopedic Hospital for treatment, and later was subjected to a
series of operations; the first on May 23, 1953, when wire loops were
wound around the broken bones and screwed into place; a second, effected
to insert a metal splint, and a third one to remove such splint. At the time
of the trial, it appears that respondent had not yet recovered the use of his
right arm.
The driver was charged with serious physical injuries through reckless
imprudence, and upon interposing a plea of guilty was sentenced
accordingly.
xxx
xxx
xxx
30
approved and that the same are not detrimental to the public interest, and
in case of a sale, the date on which the same is to be consummated shall
be fixed in the order of approval: Provided, however, That nothing herein
contained shall be construed to prevent the transaction from being
negotiated or completed before its approval or to prevent the sale,
alienation, or lease by any public service of any of its property in the
ordinary course of its business.
The proviso contained in the aforequoted law, to the effect that nothing
therein shall be construed "to prevent the transaction from being
negotiated or complete before its approval", means only that the sale
without the required approval is still valid and binding between the parties
(Montoya vs. Ignacio, supra). The phrase "in the ordinary course of its
business" found in the other proviso" or to prevent the sale, alienation, or
lease by any public service of any of its property". As correctly observed by
the lower court, could not have been intended to include the sale of the
vehicle itself, but at most may refer only to such property that may be
conceivably disposed or by the carrier in the ordinary course of its
business, like junked equipment or spare parts.
The case of Indalecio de Torres vs. Vicente Ona (63 Phil., 594, 597) is
enlightening; and there, it was held:
Under the law, the Public Service Commission has not only general
supervision and regulation of, but also full jurisdiction and control over all
public utilities including the property, equipment and facilities used, and
the property rights and franchise enjoyed by every individual and company
engaged i the performance of a public service in the sense this phrase is
used in the Public Service Act or Act No. 3108). By virtue of the provisions
of said Act, motor vehicles used in the performance of a service, as the
transportation of freight from one point to another, have to this date been
considered and they cannot but be so considered-public service
property; and, by reason of its own nature, a TH truck, which means that
the operator thereof places it at the disposal of anybody who is willing to
pay a rental of its use, when he desires to transfer or carry his effects,
merchandise or any other cargo from one place to another, is necessarily a
public service property. (Emphasis supplied)
Of course, this court has held in the case of Bachrach Motor co. vs.
Zamboanga Transportation Co., 52 Phil., 244, that there may be a nunc pro
tunc authorization which has the effect of having the approval retroact to
the date of the transfer; but such outcome cannot prejudice rights
intervening in the meantime. It appears that no such approval was given by
the Commission before the accident occurred.
31
court deems it is just and equitable (Art. 2208, Civil Code of the
Philippines). We see no reason to alter these awards.
Anent the moral damages ordered to be paid to the respondent, the same
must be discarded. We have repeatedly ruled (Cachero vs. Manila Yellow
Taxicab Co. Inc., 101 Phil., 523; 54 Off. Gaz., [26], 6599; Necesito, et al vs.
Paras, 104 Phil., 75; 56 Off. Gaz., [23] 4023, that moral damages are not
recoverable in damage actions predicted on a breach of the contract of
transportation, in view of Articles 2219 and 2220 of the new Civil Code,
which provide as follows:
Art. 2219. Moral damages may be recovered in the following and analogous
cases:
xxx
xxx
xxx
Art. 2220. Willful injury to property may be a legal ground for awarding
moral damages if the court should find that, under circumstances, such
damages are justify due. The same rule applies to breaches of contract
where the defendant acted fraudulently or in bad faith.
The Court of Appeals has invoked our rulings in Castro vs. Acro Taxicab Co.,
G.R. No. 49155, December 14, 1948 and Layda vs. Court of Appeals, 90
Phil., 724; but these doctrines were predicated upon our former law of
damages, before judicial discretion in fixing them became limited by the
express provisions of the new Civil Code (previously quoted). Hence, the
aforesaid rulings are now inapplicable.
Upon the other hand, the advantageous position of a party suing a carrier
for breach of the contract of transportations explains, to some extent, the
32
limitations imposed by the new Code on the amount of the recovery. The
action for breach of contract imposes on the defendant carrier a
presumption of liability upon mere proof of injury to the passenger; that
latter is relieved from the duty to established the fault of the carrier, or of
his employees, and the burden is placed on the carrier to prove that it was
due to an unforseen event or to force majeure (Cangco vs. Manila Railroad
Co., 38 Phil., 768, 777). Moreover, the carrier, unlike in suits for quasidelict, may not escape liability by proving that it has exercised due
diligence in the selection and supervision of its employees (Art. 1759, new
civil code; Cangco vs. Manila Railroad Co., supra; Prado vs. Manila Electric
Co., 51 Phil., 900).
The distinction between fraud, bad faith or malice in the sense of deliberate
or wanton wrong doing and negligence (as mere carelessness) is too
fundamental in our law to be ignored (Arts. 1170-1172); their consequences
being clearly differentiated by the Code.
ART. 2201. In contracts and quasi-contracts, the damages for which the
obligor who acted in good faith is liable shall be those that are the natural
and probable consequences of the breach of the obligation, and which the
parties have foreseen or could have reasonably foreseen at the time the
obligation was constituted.
In case of fraud, bad faith, malice or wanton attitude, the obligor shall be
responsible for all damages which may be reasonably attributed to the nonperformance of the obligation.
ART. 1762. The contributory negligence of the passenger does not bar
recovery of damages for his death or injuries, if the proximate cause
33
FISHER, J.:
At the time of the occurrence which gave rise to this litigation the plaintiff,
Jose Cangco, was in the employment of Manila Railroad Company in the
capacity of clerk, with a monthly wage of P25. He lived in the pueblo of San
Mateo, in the province of Rizal, which is located upon the line of the
defendant railroad company; and in coming daily by train to the company's
office in the city of Manila where he worked, he used a pass, supplied by
the company, which entitled him to ride upon the company's trains free of
charge. Upon the occasion in question, January 20, 1915, the plaintiff arose
from his seat in the second class-car where he was riding and, making, his
exit through the door, took his position upon the steps of the coach, seizing
the upright guardrail with his right hand for support.
On the side of the train where passengers alight at the San Mateo station
there is a cement platform which begins to rise with a moderate gradient
some distance away from the company's office and extends along in front
of said office for a distance sufficient to cover the length of several
coaches. As the train slowed down another passenger, named Emilio
Zuiga, also an employee of the railroad company, got off the same car,
alighting safely at the point where the platform begins to rise from the level
of the ground. When the train had proceeded a little farther the plaintiff
Jose Cangco stepped off also, but one or both of his feet came in contact
with a sack of watermelons with the result that his feet slipped from under
him and he fell violently on the platform. His body at once rolled from the
platform and was drawn under the moving car, where his right arm was
badly crushed and lacerated. It appears that after the plaintiff alighted from
the train the car moved forward possibly six meters before it came to a full
stop.
The accident occurred between 7 and 8 o'clock on a dark night, and as the
railroad station was lighted dimly by a single light located some distance
away, objects on the platform where the accident occurred were difficult to
discern especially to a person emerging from a lighted car.
34
The plaintiff was drawn from under the car in an unconscious condition, and
it appeared that the injuries which he had received were very serious. He
was therefore brought at once to a certain hospital in the city of Manila
where an examination was made and his arm was amputated. The result of
this operation was unsatisfactory, and the plaintiff was then carried to
another hospital where a second operation was performed and the member
was again amputated higher up near the shoulder. It appears in evidence
that the plaintiff expended the sum of P790.25 in the form of medical and
surgical fees and for other expenses in connection with the process of his
curation.
Upon August 31, 1915, he instituted this proceeding in the Court of First
Instance of the city of Manila to recover damages of the defendant
company, founding his action upon the negligence of the servants and
employees of the defendant in placing the sacks of melons upon the
platform and leaving them so placed as to be a menace to the security of
passenger alighting from the company's trains. At the hearing in the Court
of First Instance, his Honor, the trial judge, found the facts substantially as
above stated, and drew therefrom his conclusion to the effect that,
although negligence was attributable to the defendant by reason of the fact
that the sacks of melons were so placed as to obstruct passengers passing
to and from the cars, nevertheless, the plaintiff himself had failed to use
due caution in alighting from the coach and was therefore precluded form
recovering. Judgment was accordingly entered in favor of the defendant
company, and the plaintiff appealed.
It can not be doubted that the employees of the railroad company were
guilty of negligence in piling these sacks on the platform in the manner
above stated; that their presence caused the plaintiff to fall as he alighted
from the train; and that they therefore constituted an effective legal cause
of the injuries sustained by the plaintiff. It necessarily follows that the
defendant company is liable for the damage thereby occasioned unless
recovery is barred by the plaintiff's own contributory negligence. In
resolving this problem it is necessary that each of these conceptions of
liability, to-wit, the primary responsibility of the defendant company and
the contributory negligence of the plaintiff should be separately examined.
Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104 of
the Civil Code, clearly points out this distinction, which was also recognized
by this Court in its decision in the case of Rakes vs. Atlantic, Gulf and Pacific
Co. (7 Phil. rep., 359). In commenting upon article 1093 Manresa clearly
points out the difference between "culpa, substantive and independent,
which of itself constitutes the source of an obligation between persons not
formerly connected by any legal tie" and culpa considered as an accident in
the performance of an obligation already existing . . . ."
In the Rakes case (supra) the decision of this court was made to rest
squarely upon the proposition that article 1903 of the Civil Code is not
applicable to acts of negligence which constitute the breach of a contract.
The acts to which these articles [1902 and 1903 of the Civil Code] are
applicable are understood to be those not growing out of pre-existing duties
35
of the parties to one another. But where relations already formed give rise
to duties, whether springing from contract or quasi-contract, then breaches
of those duties are subject to article 1101, 1103, and 1104 of the same
code. (Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359 at 365.)
This distinction is of the utmost importance. The liability, which, under the
Spanish law, is, in certain cases imposed upon employers with respect to
damages occasioned by the negligence of their employees to persons to
whom they are not bound by contract, is not based, as in the English
Common Law, upon the principle of respondeat superior if it were, the
master would be liable in every case and unconditionally but upon the
principle announced in article 1902 of the Civil Code, which imposes upon
all persons who by their fault or negligence, do injury to another, the
obligation of making good the damage caused. One who places a powerful
automobile in the hands of a servant whom he knows to be ignorant of the
method of managing such a vehicle, is himself guilty of an act of
negligence which makes him liable for all the consequences of his
imprudence. The obligation to make good the damage arises at the very
instant that the unskillful servant, while acting within the scope of his
employment causes the injury. The liability of the master is personal and
direct. But, if the master has not been guilty of any negligence whatever in
the selection and direction of the servant, he is not liable for the acts of the
latter, whatever done within the scope of his employment or not, if the
damage done by the servant does not amount to a breach of the contract
between the master and the person injured.
It is not accurate to say that proof of diligence and care in the selection and
control of the servant relieves the master from liability for the latter's acts
on the contrary, that proof shows that the responsibility has never
existed. As Manresa says (vol. 8, p. 68) the liability arising from extracontractual culpa is always based upon a voluntary act or omission which,
without willful intent, but by mere negligence or inattention, has caused
damage to another. A master who exercises all possible care in the
selection of his servant, taking into consideration the qualifications they
should possess for the discharge of the duties which it is his purpose to
confide to them, and directs them with equal diligence, thereby performs
his duty to third persons to whom he is bound by no contractual ties, and
he incurs no liability whatever if, by reason of the negligence of his
servants, even within the scope of their employment, such third person
suffer damage. True it is that under article 1903 of the Civil Code the law
creates a presumption that he has been negligent in the selection or
direction of his servant, but the presumption is rebuttable and yield to proof
of due care and diligence in this respect.
This distinction was again made patent by this Court in its decision in the
case of Bahia vs. Litonjua and Leynes, (30 Phil. rep., 624), which was an
action brought upon the theory of the extra-contractual liability of the
defendant to respond for the damage caused by the carelessness of his
employee while acting within the scope of his employment. The Court, after
citing the last paragraph of article 1903 of the Civil Code, said:
From this article two things are apparent: (1) That when an injury is caused
by the negligence of a servant or employee there instantly arises a
presumption of law that there was negligence on the part of the master or
employer either in selection of the servant or employee, or in supervision
over him after the selection, or both; and (2) that that presumption is juris
tantum and not juris et de jure, and consequently, may be rebutted. It
follows necessarily that if the employer shows to the satisfaction of the
court that in selection and supervision he has exercised the care and
diligence of a good father of a family, the presumption is overcome and he
is relieved from liability.
This theory bases the responsibility of the master ultimately on his own
negligence and not on that of his servant. This is the notable peculiarity of
the Spanish law of negligence. It is, of course, in striking contrast to the
American doctrine that, in relations with strangers, the negligence of the
servant in conclusively the negligence of the master.
The opinion there expressed by this Court, to the effect that in case of
extra-contractual culpa based upon negligence, it is necessary that there
shall have been some fault attributable to the defendant personally, and
that the last paragraph of article 1903 merely establishes a rebuttable
presumption, is in complete accord with the authoritative opinion of
Manresa, who says (vol. 12, p. 611) that the liability created by article 1903
is imposed by reason of the breach of the duties inherent in the special
relations of authority or superiority existing between the person called upon
36
to repair the damage and the one who, by his act or omission, was the
cause of it.
On the other hand, the liability of masters and employers for the negligent
acts or omissions of their servants or agents, when such acts or omissions
cause damages which amount to the breach of a contact, is not based upon
a mere presumption of the master's negligence in their selection or control,
and proof of exercise of the utmost diligence and care in this regard does
not relieve the master of his liability for the breach of his contract.
37
These are not cases of injury caused, without any pre-existing obligation,
by fault or negligence, such as those to which article 1902 of the Civil Code
relates, but of damages caused by the defendant's failure to carry out the
undertakings imposed by the contracts . . . .
A brief review of the earlier decision of this court involving the liability of
employers for damage done by the negligent acts of their servants will
show that in no case has the court ever decided that the negligence of the
defendant's servants has been held to constitute a defense to an action for
damages for breach of contract.
In the case of Johnson vs. David (5 Phil. Rep., 663), the court held that the
owner of a carriage was not liable for the damages caused by the
negligence of his driver. In that case the court commented on the fact that
no evidence had been adduced in the trial court that the defendant had
been negligent in the employment of the driver, or that he had any
knowledge of his lack of skill or carefulness.
In the case of Baer Senior & Co's Successors vs. Compania Maritima (6 Phil.
Rep., 215), the plaintiff sued the defendant for damages caused by the loss
of a barge belonging to plaintiff which was allowed to get adrift by the
negligence of defendant's servants in the course of the performance of a
contract of towage. The court held, citing Manresa (vol. 8, pp. 29, 69) that if
the "obligation of the defendant grew out of a contract made between it
and the plaintiff . . . we do not think that the provisions of articles 1902 and
1903 are applicable to the case."
In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff sued
the defendant to recover damages for the personal injuries caused by the
negligence of defendant's chauffeur while driving defendant's automobile in
which defendant was riding at the time. The court found that the damages
were caused by the negligence of the driver of the automobile, but held
that the master was not liable, although he was present at the time, saying:
. . . unless the negligent acts of the driver are continued for a length of time
as to give the owner a reasonable opportunity to observe them and to
direct the driver to desist therefrom. . . . The act complained of must be
continued in the presence of the owner for such length of time that the
owner by his acquiescence, makes the driver's acts his own.
In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage &
Taxicab Co. (33 Phil. Rep., 8), it is true that the court rested its conclusion
as to the liability of the defendant upon article 1903, although the facts
disclosed that the injury complaint of by plaintiff constituted a breach of the
duty to him arising out of the contract of transportation. The express
ground of the decision in this case was that article 1903, in dealing with the
liability of a master for the negligent acts of his servants "makes the
distinction between private individuals and public enterprise;" that as to the
latter the law creates a rebuttable presumption of negligence in the
selection or direction of servants; and that in the particular case the
presumption of negligence had not been overcome.
It is evident, therefore that in its decision Yamada case, the court treated
plaintiff's action as though founded in tort rather than as based upon the
breach of the contract of carriage, and an examination of the pleadings and
of the briefs shows that the questions of law were in fact discussed upon
this theory. Viewed from the standpoint of the defendant the practical result
must have been the same in any event. The proof disclosed beyond doubt
38
that the defendant's servant was grossly negligent and that his negligence
was the proximate cause of plaintiff's injury. It also affirmatively appeared
that defendant had been guilty of negligence in its failure to exercise
proper discretion in the direction of the servant. Defendant was, therefore,
liable for the injury suffered by plaintiff, whether the breach of the duty
were to be regarded as constituting culpa aquiliana or culpa contractual. As
Manresa points out (vol. 8, pp. 29 and 69) whether negligence occurs an
incident in the course of the performance of a contractual undertaking or
its itself the source of an extra-contractual undertaking obligation, its
essential characteristics are identical. There is always an act or omission
productive of damage due to carelessness or inattention on the part of the
defendant. Consequently, when the court holds that a defendant is liable in
damages for having failed to exercise due care, either directly, or in failing
to exercise proper care in the selection and direction of his servants, the
practical result is identical in either case. Therefore, it follows that it is not
to be inferred, because the court held in the Yamada case that defendant
was liable for the damages negligently caused by its servants to a person
to whom it was bound by contract, and made reference to the fact that the
defendant was negligent in the selection and control of its servants, that in
such a case the court would have held that it would have been a good
defense to the action, if presented squarely upon the theory of the breach
of the contract, for defendant to have proved that it did in fact exercise
care in the selection and control of the servant.
The railroad company's defense involves the assumption that even granting
that the negligent conduct of its servants in placing an obstruction upon
the platform was a breach of its contractual obligation to maintain safe
means of approaching and leaving its trains, the direct and proximate
cause of the injury suffered by plaintiff was his own contributory negligence
in failing to wait until the train had come to a complete stop before
alighting. Under the doctrine of comparative negligence announced in the
Rakes case (supra), if the accident was caused by plaintiff's own
negligence, no liability is imposed upon defendant's negligence and
plaintiff's negligence merely contributed to his injury, the damages should
be apportioned. It is, therefore, important to ascertain if defendant was in
fact guilty of negligence.
It may be admitted that had plaintiff waited until the train had come to a
full stop before alighting, the particular injury suffered by him could not
have occurred. Defendant contends, and cites many authorities in support
of the contention, that it is negligence per se for a passenger to alight from
a moving train. We are not disposed to subscribe to this doctrine in its
absolute form. We are of the opinion that this proposition is too badly
stated and is at variance with the experience of every-day life. In this
particular instance, that the train was barely moving when plaintiff alighted
is shown conclusively by the fact that it came to stop within six meters
from the place where he stepped from it. Thousands of person alight from
trains under these conditions every day of the year, and sustain no injury
where the company has kept its platform free from dangerous obstructions.
There is no reason to believe that plaintiff would have suffered any injury
whatever in alighting as he did had it not been for defendant's negligent
failure to perform its duty to provide a safe alighting place.
We are of the opinion that the correct doctrine relating to this subject is
that expressed in Thompson's work on Negligence (vol. 3, sec. 3010) as
follows:
The test by which to determine whether the passenger has been guilty of
negligence in attempting to alight from a moving railway train, is that of
ordinary or reasonable care. It is to be considered whether an ordinarily
prudent person, of the age, sex and condition of the passenger, would have
acted as the passenger acted under the circumstances disclosed by the
evidence. This care has been defined to be, not the care which may or
should be used by the prudent man generally, but the care which a man of
39
Or, it we prefer to adopt the mode of exposition used by this court in Picart
vs. Smith (37 Phil. rep., 809), we may say that the test is this; Was there
anything in the circumstances surrounding the plaintiff at the time he
alighted from the train which would have admonished a person of average
prudence that to get off the train under the conditions then existing was
dangerous? If so, the plaintiff should have desisted from alighting; and his
failure so to desist was contributory negligence.1awph!l.net
As the case now before us presents itself, the only fact from which a
conclusion can be drawn to the effect that plaintiff was guilty of
contributory negligence is that he stepped off the car without being able to
discern clearly the condition of the platform and while the train was yet
slowly moving. In considering the situation thus presented, it should not be
overlooked that the plaintiff was, as we find, ignorant of the fact that the
obstruction which was caused by the sacks of melons piled on the platform
existed; and as the defendant was bound by reason of its duty as a public
carrier to afford to its passengers facilities for safe egress from its trains,
the plaintiff had a right to assume, in the absence of some circumstance to
warn him to the contrary, that the platform was clear. The place, as we
have already stated, was dark, or dimly lighted, and this also is proof of a
failure upon the part of the defendant in the performance of a duty owing
by it to the plaintiff; for if it were by any possibility concede that it had right
to pile these sacks in the path of alighting passengers, the placing of them
adequately so that their presence would be revealed.
The evidence shows that the plaintiff, at the time of the accident, was
earning P25 a month as a copyist clerk, and that the injuries he has
suffered have permanently disabled him from continuing that employment.
Defendant has not shown that any other gainful occupation is open to
plaintiff. His expectancy of life, according to the standard mortality tables,
is approximately thirty-three years. We are of the opinion that a fair
compensation for the damage suffered by him for his permanent disability
is the sum of P2,500, and that he is also entitled to recover of defendant
the additional sum of P790.25 for medical attention, hospital services, and
other incidental expenditures connected with the treatment of his injuries.
40
motorman. The car had proceeded only a short distance, however, when
the plaintiff, Ignacio del Prado, ran across the street to catch the car, his
approach being made from the left. The car was of the kind having
entrance and exist at either end, and the movement of the plaintiff was so
timed that he arrived at the front entrance of the car at the moment when
the car was passing.
March 7, 1929
Ross, Lawrence and Selph and Antonio T. Carrascoso, jr., for appellant.
Vicente Sotto for appellee.
STREET, J.:
This action was instituted in the Court of First Instance of Manila by Ignacio
del Prado to recover damages in the amount of P50,000 for personal
injuries alleged to have been caused by the negligence of te defendant, the
Manila Electric Company, in the operation of one of its street cars in the
City of Manila. Upon hearing the cause the trial court awarded to the
plaintiff the sum of P10,000, as damages, with costs of suit, and the
defendant appealed.
The testimony of the plaintiff and of Ciriaco Guevara, one of his witnesses,
tends to shows that the plaintiff, upon approaching the car, raised his hand
as an indication to the motorman of his desire to board the car, in response
to which the motorman eased up a little, without stopping. Upon this the
plaintiff seized, with his hand, the front perpendicular handspot, at the
same time placing his left foot upon the platform. However, before the
plaintiff's position had become secure, and even before his raised right foot
had reached the flatform, the motorman applied the power, with the result
that the car gave a slight lurch forward. This sudden impulse to the car
caused the plaintiff's foot to slip, and his hand was jerked loose from the
handpost, He therefore fell to the ground, and his right foot was caught and
crushed by the moving car. The next day the member had to be amputated
in the hospital. The witness, Ciriaco Guevara, also stated that, as the
plaintiff started to board the car, he grasped the handpost on either side
with both right and left hand. The latter statement may possibly be
incorrect as regards the use of his right hand by the plaintiff, but we are of
the opinion that the finding of the trial court to the effect that the
motorman slowed up slightly as the plaintiff was boarding the car that the
plaintiff's fall was due in part at lease to a sudden forward movement at the
moment when the plaintiff put his foot on the platform is supported by the
evidence and ought not to be disturbed by us.
The motorman stated at the trial that he did not see the plaintiff attempting
to board the car; that he did not accelerate the speed of the car as claimed
by the plaintiff's witnesses; and that he in fact knew nothing of the incident
until after the plaintiff had been hurt and some one called to him to stop.
We are not convinced of the complete candor of this statement, for we are
unable to see how a motorman operating this car could have failed to see a
person boarding the car under the circumstances revealed in this case. It
must be remembered that the front handpost which, as all witness agree,
was grasped by the plaintiff in attempting to board the car, was
immediately on the left side of the motorman.
41
With respect to the legal aspects of the case we may observe at the outset
that there is no obligation on the part of a street railway company to stop
its cars to let on intending passengers at other points than those appointed
for stoppage. In fact it would be impossible to operate a system of street
cars if a company engage in this business were required to stop any and
everywhere to take on people who were too indolent, or who imagine
themselves to be in too great a hurry, to go to the proper places for
boarding the cars. Nevertheless, although the motorman of this car was not
bound to stop to let the plaintiff on, it was his duty to do act that would
have the effect of increasing the plaintiff's peril while he was attempting to
board the car. The premature acceleration of the car was, in our opinion, a
breach of this duty.
The relation between a carrier of passengers for hire and its patrons is of a
contractual nature; and in failure on the part of the carrier to use due care
in carrying its passengers safely is a breach of duty (culpa contructual)
under articles 1101, 1103 and 1104 of the Civil Code. Furthermore, the duty
that the carrier of passengers owes to its patrons extends to persons
boarding the cars as well as to those alighting therefrom. The case of
Cangco vs. Manila Railroad Co. (38 Phil., 768), supplies an instance of the
violation of this duty with respect to a passenger who was getting off of a
train. In that case the plaintiff stepped off of a moving train, while it was
slowing down in a station, and at the time when it was too dark for him to
see clearly where he was putting his feet. The employees of the company
had carelessly left watermelons on the platform at the place where the
plaintiff alighted, with the result that his feet slipped and he fell under the
car, where his right arm badly injured. This court held that the railroad
company was liable for breach positive duty (culpa contractual), and the
plaintiff was awarded damages in the amount of P2,500 for the loss of his
arm. In the opinion in that case the distinction is clearly drawn between a
liability for negligence arising from breach of contructual duty and that
arising articles 1902 and 1903 of the Civil Code (culpa aquiliana).
introduced testimony showing that due care had been used in training and
instructing the motorman in charge of this car in his art. But this proof is
irrelevant in view of the fact that the liability involved was derived from a
breach of obligation under article 1101 of the Civil Code and related
provisions. (Manila Railroad Co. vs. Compana Transatlantica and Atlantic,
Gulf & Pacific Co., 38 Phil., 875, 887; De Guia vs. Manila Electric Railroad &
Light Co., 40 Phil., 706, 710.)
42
With respect to the effect of this injury upon the plaintiff's earning power,
we note that, although he lost his foot, he is able to use an artificial
member without great inconvenience and his earning capacity has probably
not been reduced by more than 30 per centum. In view of the precedents
found in our decisions with respect to the damages that ought to be
awarded for the loss of limb, and more particularly Rakes vs. Atlantic, Gulf
and Pacific Co. (7 Phil., 359); Cangco vs. Manila Railroad Co. (38 Phil., 768);
and Borromeo vs. Manila Electric Railroad and Light Co. (44 Phil., 165), and
in view of all the circumstances connected with the case, we are of the
opinion that the plaintiff will be adequately compensated by an award of
P2,500.
(b) That the appellee acted with imprudence and lack of due care in
attempting to board a street car while the same was in motion; and
(c) That he contributed to his own injury, without any negligence or malice
or imprudence on the part of the defendant.
Therefore, the judgment of the court a quo should be revoked, and the
appellant absolved from all liability under the complaint.
Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.
Johns, J., concur.
Separate Opinions
I read the entire record in this case before it was submitted to the second
division for decision. I was then the ponente. I was then convinced, as I am
now, after a re-examination of the record, that the judgment of the lower
court should be revoked for the following reasons:
(a) That the motorman managed the car carefully and with ordinary
prudence at the moment the alleged accident occured;
43
The court a quo, after trial, found for the plaintiff and awarded her P3,000
as damages against defendant Perez. The claim against defendant
Valenzuela was dismissed. From this ruling, both plaintiff and defendant
Perez appealed to this Court, the former asking for more damages and the
latter insisting on non-liability. Subsequently, the Court of Appeals affirmed
the judgment of conviction earlier mentioned, during the pendency of the
herein appeal, and on May 19, 1964, final judgment was entered therein.
(Rollo, p. 33).
vs.
PASCUAL PEREZ, ET AL., defendants.
PASCUAL PEREZ, defendant appellant.
44
however. In the Gillaco case, the passenger was killed outside the scope
and the course of duty of the guilty employee. As this Court there found:
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 Art. 1174 of
the Civil Code of the Philippines but both articles clearly remove from their
exempting effect the case where the law expressly provides for liability in
spite of the occurrence of force majeure. And herein significantly lies the
statutory difference between the old and present Civil Codes, in the
backdrop of the factual situation before Us, which further accounts for a
different result in the Gillaco case. Unlike the old Civil Code, the new Civil
Code of the Philippines expressly makes the common carrier liable for
The Civil Code provisions on the subject of Common Carriers1 are new and
were taken from Anglo-American Law.2 There, the basis of the carrier's
liability for assaults on passengers committed by its drivers rests either on
(1) the doctrine of respondeat superior or (2) the principle that it is the
carrier's implied duty to transport the passenger safely.3
Under the first, which is the minority view, the carrier is liable only when
the act of the employee is within the scope of his authority and duty. It is
not sufficient that the act be within the course of employment only.4
Under the second view, upheld by the majority and also by the later cases,
it is enough that the assault happens within the course of the employee's
duty. It is no defense for the carrier that the act was done in excess of
authority or in disobedience of the carrier's orders.5 The carrier's liability
here is absolute in the sense that it practically secures the passengers from
assaults committed by its own employees.6
As can be gleaned from Art. 1759, the Civil Code of the Philippines
evidently follows the rule based on the second view. At least three very
cogent reasons underlie this rule. As explained in Texas Midland R.R. v.
Monroe, 110 Tex. 97, 216 S.W. 388, 389-390, and Haver v. Central Railroad
Co., 43 LRA 84, 85: (1) the special undertaking of the carrier requires that it
furnish its passenger that full measure of protection afforded by the
exercise of the high degree of care prescribed by the law, inter alia from
violence and insults at the hands of strangers and other passengers, but
above all, from the acts of the carrier's own servants charged with the
passenger's safety; (2) said liability of the carrier for the servant's violation
of duty to passengers, is the result of the formers confiding in the servant's
hands the performance of his contract to safely transport the passenger,
delegating therewith the duty of protecting the passenger with the utmost
45
care prescribed by law; and (3) as between the carrier and the passenger,
the former must bear the risk of wrongful acts or negligence of the carrier's
employees against passengers, since it, and not the passengers, has power
to select and remove them.
In connection with the award of damages, the court a quo granted only
P3,000 to plaintiff-appellant. This is the minimum compensatory damages
amount recoverable under Art. 1764 in connection with Art. 2206 of the
Civil Code when a breach of contract results in the passenger's death. As
has been the policy followed by this Court, this minimal award should be
increased to P6,000. As to other alleged actual damages, the lower court's
finding that plaintiff's evidence thereon was not convincing,8 should not be
disturbed. Still, Arts. 2206 and 1764 award moral damages in addition to
compensatory damages, to the parents of the passenger killed to
compensate for the mental anguish they suffered. A claim therefor, having
been properly made, it becomes the court's duty to award moral
damages.9 Plaintiff demands P5,000 as moral damages; however, in the
circumstances, We consider P3,000 moral damages, in addition to the
P6,000 damages afore-stated, as sufficient. Interest upon such damages
are also due to plaintiff-appellant. 10
PADILLA, J.:
Petitioner-plaintiff Jose Pilapil, a paying passenger, boarded respondentdefendant's bus bearing No. 409 at San Nicolas, Iriga City on 16 September
1971 at about 6:00 P.M. While said bus No. 409 was in due course
negotiating the distance between Iriga City and Naga City, upon reaching
the vicinity of the cemetery of the Municipality of Baao, Camarines Sur, on
the way to Naga City, an unidentified man, a bystander along said national
46
highway, hurled a stone at the left side of the bus, which hit petitioner
above his left eye. Private respondent's personnel lost no time in bringing
the petitioner to the provincial hospital in Naga City where he was confined
and treated.
Considering that the sight of his left eye was impaired, petitioner was taken
to Dr. Malabanan of Iriga City where he was treated for another week. Since
there was no improvement in his left eye's vision, petitioner went to V. Luna
Hospital, Quezon City where he was treated by Dr. Capulong. Despite the
treatment accorded to him by Dr. Capulong, petitioner lost partially his left
eye's vision and sustained a permanent scar above the left eye.
SO ORDERED 1
2.
Ordering further defendant transportation company to pay the
sum of P 5,000.00, Philippine Currency, to the plaintiff as moral and
exemplary damages;
3.
Ordering furthermore, defendant transportation company to
reimburse plaintiff the sum of P 300.00 for his medical expenses and
attorney's fees in the sum of P 1,000.00, Philippine Currency; and
4.
Under Article 1733 of the Civil Code, common carriers are required to
observe extraordinary diligence for the safety of the passenger transported
by them, according to all the circumstances of each case. The requirement
of extraordinary diligence imposed upon common carriers is restated in
Article 1755: "A common carrier is bound to carry the passengers safely as
far as human care and foresight can provide, using the utmost diligence of
very cautious persons, with due regard for all the circumstances." Further,
in case of death of or injuries to passengers, the law presumes said
common carriers to be at fault or to have acted negligently. 2
47
While the law requires the highest degree of diligence from common
carriers in the safe transport of their passengers and creates a presumption
of negligence against them, it does not, however, make the carrier an
insurer of the absolute safety of its passengers. 3
Article 1755 of the Civil Code qualifies the duty of extraordinary care,
vigilance and precaution in the carriage of passengers by common carriers
to only such as human care and foresight can provide. what constitutes
compliance with said duty is adjudged with due regard to all the
circumstances.
In fine, we can only infer from the law the intention of the Code
Commission and Congress to curb the recklessness of drivers and operators
of common carriers in the conduct of their business.
Thus, it is clear that neither the law nor the nature of the business of a
transportation company makes it an insurer of the passenger's safety, but
that its liability for personal injuries sustained by its passenger rests upon
its negligence, its failure to exercise the degree of diligence that the law
requires. 5
Article 1763.
A common carrier is responsible for injuries suffered by a
passenger on account of the wilful acts or negligence of other passengers
or of strangers, if the common carrier's employees through the exercise of
the diligence of a good father of a family could have prevented or stopped
the act or omission.
We do not agree.
48
We do not agree.
SO ORDERED.
MONTEMAYOR, J.:
Shortly after midnight, on September 13, 1952 bus no. 30 of the Medina
Transportation, operated by its owner defendant Mariano Medina under a
certificate of public convenience, left the town of Amadeo, Cavite, on its
way to Pasay City, driven by its regular chauffeur, Conrado Saylon. There
49
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.
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. 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.
50
ground to expect at the moment of his act or default that an injury to some
person might probably result therefrom.
We agree with the trial court that the case involves a breach of contract of
transportation for hire, the Medina Transportation having undertaken to
carry Bataclan safely to his destination, Pasay City. We also agree with the
trial court that there was negligence on the part of the defendant, through
his agent, the driver Saylon. There is evidence to show that at the time of
the blow out, the bus was speeding, as testified to by one of the
passengers, and as shown by the fact that according to the testimony of
the witnesses, including that of the defense, from the point where one of
the front tires burst up to the canal where the bus overturned after zigzaging, there was a distance of about 150 meters. The chauffeur, after the
blow-out, must have applied the brakes in order to stop the bus, but
because of the velocity at which the bus must have been running, its
momentum carried it over a distance of 150 meters before it fell into the
canal and turned turtle.
It may be that ordinarily, when a passenger bus overturns, and pins down a
passenger, merely causing him physical injuries, if through some event,
unexpected and extraordinary, the overturned bus is set on fire, say, by
lightning, or if some highwaymen after looting the vehicle sets it on fire,
and the passenger is burned to death, one might still contend that the
proximate cause of his death was the fire and not the overturning of the
vehicle. But in the present case under the circumstances obtaining in the
same, we do not hesitate to hold that the proximate cause was the
overturning of the bus, this for the reason that when the vehicle turned not
only on its side but completely on its back, the leaking of the gasoline from
the tank was not unnatural or unexpected; that the coming of the men with
a lighted torch was in response to the call for help, made not only by the
passengers, but most probably, by the driver and the conductor
themselves, and that because it was dark (about 2:30 in the morning), the
rescuers had to carry a light with them, and coming as they did from a rural
area where lanterns and flashlights were not available; and what was more
natural than that said rescuers should innocently approach the vehicle to
extend the aid and effect the rescue requested from them. In other words,
the coming of the men with a torch was to be expected and was a natural
sequence of the overturning of the bus, the trapping of some of its
passengers and the call for outside help. What is more, the burning of the
bus can also in part be attributed to the negligence of the carrier, through
is driver and its conductor. According to the witness, the driver and the
conductor were on the road walking back and forth. They, or at least, the
driver should and must have known that in the position in which the
overturned bus was, gasoline could and must have leaked from the
gasoline tank and soaked the area in and around the bus, this aside from
the fact that gasoline when spilled, specially over a large area, can be
smelt and directed even from a distance, and yet neither the driver nor the
conductor would appear to have cautioned or taken steps to warn the
rescuers not to bring the lighted torch too near the bus. Said negligence on
the part of the agents of the carrier come under the codal provisions abovereproduced, particularly, Articles 1733, 1759 and 1763.
51
plaintiffs' attorneys not only in the trial court, but also in the course of the
appeal, and not losing sight of the able briefs prepared by them, the
attorney's fees may well be fixed at EIGHT HUNDRED (P800) PESOS for the
loss of merchandise carried by the deceased in the bus, is adequate and
will not be disturbed.
There is one phase of this case which disturbs if it does not shock us.
According to the evidence, one of the passengers who, because of the
injuries suffered by her, was hospitalized, and while in the hospital, she was
visited by the defendant Mariano Medina, and in the course of his visit, she
overheard him speaking to one of his bus inspectors, telling said inspector
to have the tires of the bus changed immediately because they were
already old, and that as a matter of fact, he had been telling the driver to
change the said tires, but that the driver did not follow his instructions. If
this be true, it goes to prove that the driver had not been diligent and had
not taken the necessary precautions to insure the safety of his passengers.
Had he changed the tires, specially those in front, with new ones, as he had
been instructed to do, probably, despite his speeding, as we have already
stated, the blow out would not have occurred. All in all, there is reason to
believe that the driver operated and drove his vehicle negligently, resulting
in the death of four of his passengers, physical injuries to others, and the
complete loss and destruction of their goods, and yet the criminal case
against him, on motion of the fiscal and with his consent, was provisionally
dismissed, because according to the fiscal, the witnesses on whose
testimony he was banking to support the complaint, either failed or appear
or were reluctant to testify. But the record of the case before us shows the
several witnesses, passengers, in that bus, willingly and unhesitatingly
testified in court to the effect of the said driver was negligent. In the public
interest the prosecution of said erring driver should be pursued, this, not
only as a matter of justice, but for the promotion of the safety of
passengers on public utility buses. Let a copy of this decision be furnished
the Department of Justice and the Provincial Fiscal of Cavite.
In view of the foregoing, with the modification that the damages awarded
by the trial court are increased from ONE THOUSAND (P1,000) PESOS TO
SIX THOUSAND (P6,000) PESOS, and from SIX HUNDRED PESOS TO EIGHT
HUNDRED (P800) PESOS, for the death of Bataclan and for the attorney's
fees, respectively, the decision appealed is from hereby affirmed, with
costs.
52
capacity; (4) P50,000 as moral damages; and (5) P10,000 as attorneys' fees
and costs of suit.
vs.
A. L. AMMEN TRANSPORTATION CO., INC., defendant-appellee.
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.
In this connection, appellant invokes the rule that, "when an action is based
on a contract of carriage, as in this case, all that is necessary to sustain
recovery is proof of the existence of the contract of the breach thereof by
act or omission", and in support thereof, he cites several Philippine cases.
[[1]] With the ruling in mind, appellant seems to imply that once the
contract of carriage is established and there is proof that the same was
broken by failure of the carrier to transport the passenger safely to his
destination, the liability of the former attaches. On the other hand, appellee
claims that is a wrong presentation of the rule. It claims that the decisions
of this Court in the cases cited do not warrant the construction sought to be
placed upon, them by appellant for a mere perusal thereof would show that
the liability of the carrier was predicated not upon mere breach of its
contract of carriage but upon the finding that its negligence was found to
53
be the direct or proximate cause of the injury complained of. Thus, appellee
contends that "if there is no negligence on the part of the common carrier
but that the accident resulting in injuries is due to causes which are
inevitable and which could not have been avoided or anticipated
notwithstanding the exercise of that high degree of care and skill which the
carrier is bound to exercise for the safety of his passengers", neither the
common carrier nor the driver is liable therefor.
We believe that the law concerning the liability of a common carrier has
now suffered a substantial modification in view of the innovations
introduced by the new Civil Code. These innovations are the ones embodied
in Articles 1733, 1755 and 1756 in so far as the relation between a common
carrier and its passengers is concerned, which, for ready reference, we
quote hereunder:
ART. 1733. Common carriers, from the nature of their business and for
reasons of public policy, are bound to observe extra ordinary diligence in
the vigilance over the goods and for the safety of the passengers
transported by them according to all the circumstances of each case.
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.
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:
54
EI hecho de que el demandado, antes del choque, tuvo que hacer pasar su
truck encima de los montones de grava que estaban depositados en la
orilla del camino, sin que haya ido mas alla, por el grave riesgo que corrian
las vidas de sus pasajeros, es prueba concluyente de lo que tenemos dicho,
a saber: que el cuanto esuba de su parte, para evitar el accidente, sin
que haya podidoevitardo, por estar fuera de su control.
The evidence would appear to support the above finding. Thus, it appears
that Bus No. 31, immediately prior to the collision, was running at a
moderate speed because it had just stopped at the school zone of
Matacong, Polangui, Albay. The pick-up car was at full speed and was
running outside of its proper lane. The driver of the bus, upon seeing the
manner in which the pick-up was then running, swerved the bus to the very
extreme right of the road until its front and rear wheels have gone over the
pile of stones or gravel situated on the rampart of the road. Said driver
could not move the bus farther right and run over a greater portion of the
pile, the peak of which was about 3 feet high, without endangering the
safety of his passengers. And notwithstanding all these efforts, the rear left
side of the bus was hit by the pick-up car.
Of course, this finding is disputed by appellant who cannot see eye to eye
with the evidence for the appellee and insists that the collision took place
because the driver of the bus was going at a fast speed. He contends that,
having seen that a car was coming from the opposite direction at a distance
which allows the use of moderate care and prudence to avoid an accident,
and knowing that on the side of the road along which he was going there
was a pile of gravel, the driver of the bus should have stopped and waited
for the vehicle from the opposite direction to pass, and should have
proceeded only after the other vehicle had passed. In other words,
according to appellant, the act of the driver of the bus in squeezing his way
through of the bus in squeezing his way through between the oncoming
pick-up and the pile of gravel under the circumstances was considered
negligent.
But this matter is one of credibility and evaluation of the evidence. This is
evidence. This is the function of the trial court. The trial court has already
spoken on this matter as we have pointed out above. This is also a matter
of appreciation of the situation on the part of the driver. While the position
taken by appellant appeals more to the sense of caution that one should
observe in a given situation to avoid an accident or mishap, such however
can not always be expected from one who is placed suddenly in a
predicament where he is not given enough time to take the course of action
as he should under ordinary circumstances. One who is placed in such a
predicament cannot exercise such coolness or accuracy of judgment as is
required of him under ordinary circumstances and he cannot therefore be
expected to observe the same judgment, care and precaution as in the
latter. For this reason, authorities abound where failure to observe the same
degree of care that as ordinary prudent man would exercise under ordinary
circumstances when confronted with a sadden emergency was held to be
warranted and a justification to exempt the carrier from liability. Thus, it
was held that "where a carrier's employee is confronted with a sudden
emergency, the fact that he is obliged to act quickly and without a chance
for deliberation must be taken into account, and he is held to the some
degree of care that he would otherwise be required to exercise in the
absence of such emergency but must exercise only such care as any
ordinary prudent person would exercise under like circumstances and
conditions, and the failure on his part to exercise the best judgement the
case renders possible does not establish lack of care and skill on his part
which renders the company, liable. . . . (13 C. J. S., 1412; 10 C. J.,970).
Considering all the circumstances, we are persuaded to conclude that the
driver of the bus has done what a prudent man could have done to avoid
the collision and in our opinion this relieves appellee from legibility under
our law.
55
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.)
56