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[No. 19495. February 2, 1924]

HONORIO LASAM ET AL., plaintiffs and appellants, vs.

FRANK SMITH, jr., defendant and appellant.

1. DAMAGES; CONTRACT OF CARRIAGE OF

PASSENGERS; BREACH OF CONTRACT.—Defendant,
the owner of a public garage, undertook to convey the
plaintiffs by automobile from San Fernando, La Union, to
Currimao, Ilocos Norte. While on the way to Currimao the
automobile fell down a steep embankment as a result of
which the plaintiffs were injured. Held: That the
defendant's liability, if any, was contractual and that in an
action for damages articles 1101-1107 of the Civil Code,
and not article 1903, were applicable.

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658 PHILIPPINE REPORTS ANNOTATED

Lasam vs. Smith

2. ID.; ID.; FORTUITOUS EVENT.—The expression "events

which cannot be foreseen and which having been foreseen,
are inevitable" is synonymous with the term "fortuitous
event" of which some extraordinary circumstance
independent of the will of the obligor, or of his employees,
is one of the essential elements.

3. ID.; ID.; CARRIER OF PASSENGERS NOT AN

INSURER AGAINST ALL RISKS.—Neither under
American nor Spanish law is a carrier of passengers an
absolute insurer against the risks of travel from which the
passenger may protect himself by exercising due care and
diligence.

4. DAMAGES; CONTRACT, NEGLIGENCE IN

FULFILLMENT.—In determining the extent of the
liability for losses or damages resulting from negligence in
the fulfillment of a contractual obligation, the courts have
a discretionary power to moderate the liability according
to the circumstances. (Civil Code, article 1103; De Guia vs.
Manila Electric Railroad & Light Co., 40 Phil., 706.)

APPEAL from a judgment of the Court of First Instance of

La Union. Villareal, J.
The facts are stated in the opinion of the court.
Palma & Leuterio for plaintiffs-appellants.
Mariano Alisangco for defendant-appellant.

OSTRAND, J.:

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The plaintiffs are husband and wife and this action is

brought to recover damages in the sum of P20,000 for
physical injuries sustained by them in an automobile
accident. The trial court rendered a judgment in their favor
for the sum of P1,254.10, with legal interest from the date
of ,he j dgment. Both the plaintiffs and the defendant
appeal, the former maintaining that the damages awarded
are insufficient while the latter denies all liability for any
damages whatever.
It appears from the evidence that on February 27, 1918,
the defendant was the owner of a public garage in the town
of San Fernando, La Union, and engaged in the business of
carrying passengers for hire from one point to another in
the Province of La Union and the surrounding provinces.
On the date mentioned, he undertook to con-
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Lasam vs. Smith

vey the plaintiffs from San Fernando to Currimao, Ilocos

Norte, in a Ford automobile. On leaving San Fernando, the
automobile was operated by a licensed chauffeur, but after
having reached the town of San Juan, the chauffeur
allowed his assistant, Remigio Bueno, to drive the car.
Bueno held no driver's license, but had some experience in
driving, and with the exception of some slight engine
trouble while passing through the town of Luna, the car f
unctioned well until after the crossing of the Abra River in
Tagudin, when, according to the testimony of the witnesses
for the plaintiffs, defects developed in the steering gear so
as to make accurate steering impossible, and after
zigzagging for a distance of about half a kilometer, the car
left the road and went down a steep embankment.
The defendant, in his testimony, maintains that there
was no defect in the steering gear, neither before nor after
the accident, and expresses the opinion that the swaying or
zigzagging of the car must have been due to its having been
driven at an excessive rate of speed. This may possibly be
true, but it is, f rom our point of view, immaterial whether
the accident was caused by negligence on the part of the
defendant's employees, or whether it was due to defects in
the automobile; the result would be practically the same in
either event.
In going over the bank of the road, the automobile was
overturned and the plaintiffs pinned down under it. Mr.
Lasam escaped with a few contusions and a "dislocated"
rib, but his wife, Joaquina Sanchez, received serious
injuries, among which was a compound fracture of one of
the bones in her left wrist. She also appears to have
suffered a nervous breakdown from which she had not fully
recovered at the time of the trial.
The complaint in the case was filed about a year and a
half after the occurrence above related. It alleges, among
other things, that the accident was due to defects in the
automobile as well as to the incompetence and negligence
of the chauffeur, and the case appears to have been tried
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largely upon the theory that it sounds in tort and that the
liability of the defendant is governed by article 1903 of the
Civil Code. The trial court held, however, that the cause of
action rests on the defendant's breach of the contract of
carriage and that, consequently, articles 1101-1107 of the
Civil Code, and not article 1903, are applicable. The court
further found that the breach of the contract was not due to
fortuitous events and that, therefore, the defendant was
liable in damages.
In our opinion, the conclusions of the court below are
entirely correct. That upon the facts stated the defendant's
liability, if any, is contractual, is well settled by previous
decisions of the court, beginning with the case of Rakes vs.
Atlantic, Gulf & Pacific Co. (7 Phil., 359), and the
distinction between extra-contractual liability and
contractual liability has been so ably and exhaustively
discussed in various other cases, that nothing further need
here be said upon that subject. (See Cangco vs. Manila
Railroad Co., 38 Phil., 768; Manila Railroad Co. vs.
Compañía Trasatlántica and Atlantic, Gulf & Pacific Co.,
38 Phil., 875; De Guia vs. Manila Electric Railroad & Light
Co., 40 Phil., 706.) It is sufficient to reiterate that the
source of the defendant's legal liability is the contract of
carriage; that by entering into that contract he bound
himself to carry the plaintiffs safely and securely to their
destination; and that having failed to do so he is liable in
damages unless he shows that the failure to fulfill his
obligation was due to causes mentioned in article 1105 of
the Civil Code, which reads as follows:
"No one shall be liable for events which could not be
foreseen or which, even if foreseen, were inevitable, with
the exception of the cases in which the law expressly
provides otherwise and those in which the obligation itself
imposes such liability."
This brings us to the principal question in the case:
What is meant by "events which cannot be foreseen and
which, having been foreseen, are inevitable?" The Span-
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ish authorities regard the language employed as an effort

to define the term caso fortuito and hold that the two
expressions are synonymous. (Manresa, Comentarios al
Código Civil Español, vol. 8, pp. 88 et seq.; Scævola, Código
Civil, vol. 19, pp. 526 et seq.)
The antecedent to article 1105 is found in Law 11, Title
33, Partida 7, which defines caso fortuito as "ocasión que
acaese por aventura de que non se puede ante ver. E son
estos, derrivamientos de casas e fuego que se enciende a so
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ora, e quebrantamiento de navio, fuerca de ladrones * *' *

(An event that takes place by accident and could not have
been foreseen. Examples of this are destruction of houses,
unexpected fire, shipwreck, violence of robbers. * * *)"
Escriche defines caso fortuito as "an unexpected event or
act of God which could neither be foreseen nor resisted,
such as floods, torrents, shipwrecks, conflagrations,
lightning, compulsion, insurrections, destruction of
buildings by unforeseen accidents and other occurrences of
a similar nature."
In discussing and analyzing the term caso fortuito the
Enciclopedia Jurídico, Española says: "In a legal sense
and, consequently, also in relation to contracts, a caso
fortuito presents the following essential characteristics: (1)
The cause of the unforeseen and unexpected occurrence, or
of the failure of the debtor to comply with his obligation,
must be independent of the human will. (2) It must be
impossible to foresee the event which constitutes the caso
fortuito, or if it can be foreseen, it must be impossible to
avoid. (3) The occurrence must be such as to render it
impossible for the debtor to fulfill his obligation in a normal
manner. And (4) the obligor (debtor) must be free from any
participation in the aggravation of the injury resulting to
the creditor." (5 Enciclopedia Jurídica Española, 309.)
As will be seen, these authorities agree that some
extraordinary circumstance independent of the will of the
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Lasam vs. Smith

obligor, or of his employees, is an essential element of a

caso fortuito. Turning to the present case, it is at once
apparent that this element is lacking. It is not suggested
that the accident in question was due to an act of God or to
adverse road conditions which could not have been
foreseen. As far as the record shows, the accident was
caused either by def fects in the automobile or else through
the negligence of its driver. That is not a caso fortuito,
We agree with counsel that neither under the American
nor Spanish law is a carrier of passengers an absolute
insurer against the risks of travel from which the
passenger may protect himself by exercising ordinary care
and diligence. The case of Alba vs. Sociedad Anónima de
Tranvías, Jurisprudencia Civil, vol. 102, p. 928, cited by
the defendant in support of his contentions, affords a good
illustration of the application of this principle. In that case
Alba, a passenger on a street car, was standing on the
platform of the car while it was in motion. The car rounded
a curve causing Alba to lose his balance and fall off the
platform, sustaining severe injuries. In an action brought
by him to recover damages, the supreme court of Spain
held that inasmuch as the car at the time of the accident
was travelling at a moderate rate of speed and there was
no infraction of the regulations, and the plaintiff was
exposed to no greater danger than that inherent in that
particular mode of travel, the plaintiff could not recover,
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especially so since he should have been on his guard

against a contingency as natural as that of losing his
balance to a greater or less extent when the car rounded the
curve.
But such is not the present case; here the passengers
had no means of avoiding the danger or escaping the
injury.
The plaintiffs maintain that the evidence clearly
establishes that they are entitled to damages in the sum of
P7,832.80 instead of P1,254.10 as found by the trial court,
and their assignments of error relate to this point only.
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Compañía General de Tabacos vs. Govt. of the P. 1.

There can be no doubt that the expenses incurred by the

plaintiffs as a result of the accident greatly exceeded the
amount of the damages awarded. But bearing in mind that
in determining the extent of the liability for losses or
damages resulting from negligence in the fulfillment of a
contractual obligation, the courts have "a discretionary
power to moderate the liability according to the
circumstances" (De Guia vs. Manila Electric Railroad &
Light Co., 40 Phil., 706; art. 1103, Civil Code), we do not
think that the evidence is such as to justify us in
interfering with the discretion of the court below in this
respect. As pointed out by that court in its well-reasoned
and wellconsidered decision, by far the greater part of the
damages claimed by the plaintiffs resulted from the
fracture of a bone in the left wrist of Joaquina Sanchez and
from her objections to having a decaying splinter of the
bone removed by a surgical operation. As a consequence of
her refusal to submit to such an operation, a series of
infections ensued and which required constant and
expensive medical treatment for several years. We agree
with the court below that the defendant should not be
charged with these expenses.
For the reasons stated, the judgment appealed from is
affirmed, without costs in this instance. So ordered.

Araullo, C. J., Street, Malcolm,, Johns, and

Romualdez, JJ., concur.

Judgment affirmed.

___________

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