SECOND DIVISION

[G.R. No. 84458. November 6, 1989.]

ABOITIZ SHIPPING CORPORATION, Petitioner, v. HON. COURT OF APPEALS,

ELEVENTH DIVISION, LUCILA C. VIANA, SPS. ANTONIO VIANA and GORGONIA
VIANA, and PIONEER STEVEDORING CORPORATION, Respondents.

Herenio E. Martinez for Petitioner.

M.R. Villaluz Law Office for Private Respondent.

SYLLABUS

1. COMMERCIAL LAW; COMMON CARRIERS; CARRIER-PASSENGER RELATIONSHIP;

CONTINUES UNTIL PASSENGER HAS BEEN LANDED AT THE PORT OF DESTINATION
AND HAS LEFT VESSEL OWNER’S DOCK OR PREMISES. — The rule is that the relation
of carrier and passenger continues until the passenger has been landed at the port of
destination and has left the vessel owner’s dock or premises. Once created, the
relationship will not ordinarily terminate until the passenger has, after reaching his
destination, safely alighted from the carrier’s conveyance or had a reasonable
opportunity to leave the carrier’s premises. All persons who remain on the premises a
reasonable time after leaving the conveyance are to be deemed passengers, and what
is a reasonable time or a reasonable delay within this rule is to be determined from all
the circumstances, and includes a reasonable time to see after his baggage and prepare
for his departure. The carrier-passenger relationship is not terminated merely by the
fact that the person transported has been carried to his destination if, for example,
such person remains in the carrier’s premises to claim his baggage.

2. ID.; ID.; ID.; EXISTENCE OF A REASONABLE CAUSE AS WILL JUSTIFY PRESENCE OF

VICTIM ON OR NEAR PETITIONER’S VESSEL, A PRIMARY FACTOR. — It is apparent from
the case of La Mallorca v. Court of Appeals, et. al. that what prompted the Court to rule
as it did in said case is the fact of the passenger’s reasonable presence within the
carrier’s premises. That reasonableness of time should be made to depend on the
attending circumstances of the case, such as the kind of common carrier, the nature of
its business, the customs of the place, and so forth, and therefore precludes a
consideration of the time element per se without taking into account such other factors.
It is thus of no moment whether in the cited case of La Mallorca there was no
appreciable interregnum for the passenger therein to leave the carrier’s premises
whereas in the case at bar, an interval of one (1) hour had elapsed before the victim
met the accident. The primary factor to be considered is the existence of a reasonable
cause as will justify the presence of the victim on or near the petitioner’s vessel. We
believe there exists such a justifiable cause.

3. ID.; ID.; ID.; PASSENGERS OF VESSELS ARE AUDITED A LONGER PERIOD OF TIME
TO DISEMBARK FROM SHIP THAN OTHER COMMON CARRIERS; REASON. — It is of
common knowledge that, by the very nature of petitioner’s business as a shipper, the
passengers of vessels are allotted a longer period of time to disembark from the ship
than other common carriers such as a passenger bus. With respect to the bulk of
cargoes and the number of passengers it can load, such vessels are capable of
accommodating a bigger volume of both as compared to the capacity of a regular
commuter bus. Consequently, a ship passenger will need at least an hour as is the
usual practice, to disembark from the vessel and claim his baggage whereas a bus
passenger can easily get off the bus and retrieve his luggage in a very short period of
time. Verily, petitioner cannot categorically claim, through the bare expedient of
comparing the period of time entailed in getting the passenger’s cargoes, that the
ruling in La Mallorca is inapplicable to the case at bar. On the contrary, if we are to
apply the doctrine enunciated therein to the instant petition, we cannot in reason doubt
that the victim Anacleto Viana was still a passenger at the time of the incident. When
the accident occurred, the victim was in the act of unloading his cargoes, which he had
every right to do, from petitioner’s vessel. As earlier stated, a carrier is duty bound not
only to bring its passengers safely to their destination but also to afford them a
reasonable time to claim their baggage.

4. ID.; ID.; ID.; VICTIM RETRIEVING HIS BAGGAGE, DEEMED A PASSENGER OF

CARRIER. — It is not definitely shown that one (1) hour prior to the incident, the victim
had already disembarked from the vessel. Petitioner failed to prove this. What is clear
to us is that at the time the victim was taking his cargoes, the vessel had already
docked an hour earlier. In consonance with common shipping procedure as to the
minimum time of one (1) hour allowed for the passengers to disembark, it may be
presumed that the victim had just gotten off the vessel when he went to retrieve his
baggage. Yet, even if he had already disembarked an hour earlier, his presence in
petitioner’s premises was not without cause. The victim had to claim his baggage which
was possible only one (1) hour after the vessel arrived since it was admittedly standard
procedure in the case of petitioner’s vessels that the unloading operations shall start
only after that time. Consequently, under the foregoing circumstances, the victim
Anacleto Viana is still deemed a passenger of said carrier at the time of his tragic death.

5. ID.; ID.; DUTIES THEREOF, CITED. — Common carriers are, from the nature of their
business and for reasons of public policy, 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. More particularly, 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.

6. ID.; ID.; CONTRACT OF CARRIAGE; DEATH OR INJURY OF PASSENGER GIVES RISE

TO AN ACTION FOR BREACH, PROOF REQUIRED TO PROVE BREACH. — Where a
passenger dies or is injured, the common carrier is presumed to have been at fault or
to have acted negligently. This gives rise to an action for breach of contract of carriage
where all that is required of plaintiff is to prove the existence of the contract of carriage
and its non-performance by the carrier, that is, the failure of the carrier to carry the
passenger safely to his destination, which, in the instant case, necessarily includes its
failure to safeguard its passenger with extraordinary diligence while such relation
subsists.

7. ID.; ID.; ID.; PRESUMPTION OF VESSEL’S NEGLIGENCE; HIGHEST DEGREE OF CARE

AND DILIGENCE REQUIRED. — The presumption is, therefore, established by law that
in case of a passenger’s death or injury the operator of the vessel was at fault or
negligent, having failed to exercise extraordinary diligence, and it is incumbent upon it
to rebut the same. This is in consonance with the avowed policy of the State to afford
full protection to the passengers of common carriers which can be carried out only by
imposing a stringent statutory obligation upon the latter. Concomitantly, this Court has
likewise adopted a rigid posture in the application of the law by exacting the highest
degree of care and diligence from common carriers, bearing utmost in mind the welfare
of the passengers who often become hapless victims of indifferent and profit-oriented
carriers. We cannot in reason deny that petitioner failed to rebut the presumption
against it. Under the facts obtaining in the present case, it cannot be gainsaid that
petitioner had inadequately complied with the required degree of diligence to prevent
the accident from happening.

8. ID.; ID.; ID.; EXTRAORDINARY DILIGENCE NOT SHOWN BY PRECAUTIONARY

MEASURES OF PETITIONER. — The evidence does not show that there was a cordon of
drums around the perimeter of the crane, as claimed by petitioner. It also adverted to
the fact that the alleged presence of visible warning signs in the vicinity was disputable
and not indubitably established. Thus, we are not inclined to accept petitioner’s
explanation that the victim and other passengers were sufficiently warned that merely
venturing into the area in question was fraught with serious peril. Definitely, even
assuming the existence of the supposed cordon of drums loosely placed around the
unloading area and the guard’s admonitions against entry therein, these were at most
insufficient precautions which pale into insignificance if considered vis-a-vis the gravity
of the danger to which the deceased was exposed. There is no showing that petitioner
was extraordinarily diligent in requiring or seeing to it that said precautionary measures
were strictly and actually enforced to subserve their purpose of preventing entry into
the forbidden area. By no stretch of liberal evaluation can such perfunctory acts
approximate the "utmost diligence of very cautious persons" to be exercised "as far as
human care and foresight can provide" which is required by law of common carriers
with respect to their passengers.

9. ID.; ID.; ID.; EVEN IF VICTIM IS CONTRIBUTORILY NEGLIGENT, PROXIMATE AND

DIRECT CAUSE OF VICTIM’S DEATH IS PETITIONER’S FAILURE TO OBSERVE
EXTRAORDINARY DILIGENCE. — While the victim was admittedly contributorily
negligent, still petitioner’s aforesaid failure to exercise extraordinary diligence was the
proximate and direct cause of, because it could definitely have prevented, the former’s
death. Moreover, in paragraph 5.6 of its petition, at bar, petitioner has expressly
conceded the factual finding of respondent Court of Appeals that petitioner did not
present sufficient evidence in support of its submission that the deceased Anacleto
Viana was guilty of gross negligence. Petitioner cannot now be heard to claim
otherwise.

10. ID.; ID.; NEGLIGENCE; IMPUTATION THEREOF ON PRIVATE RESPONDENT

CORPORATION, NOT PROPER; RATIONALE. — Aboitiz joined Pioneer in proving the
alleged gross negligence of the victim, hence its present contention that the death of
the passenger was due to the negligence of the crane operator cannot be sustained
both on grounds of estoppel and for lack of evidence on its present theory. Even in its
answer filed in the court below it readily alleged that Pioneer had taken the necessary
safeguards insofar as its unloading operations were concerned, a fact which appears to
have been accepted by the plaintiff therein by not impleading Pioneer as a defendant,
and likewise inceptively by Aboitiz by filing its third-party complaint only after ten (10)
months from the institution of the suit against it. Parenthetically, Pioneer is not within
the ambit of the rule on extraordinary diligence required of, and the corresponding
presumption of negligence foisted on, common carriers like Aboitiz. This, of course,
does not detract from what we have said that no negligence can be imputed to Pioneer
but, that on the contrary, the failure of Aboitiz to exercise extraordinary diligence for
the safety of its passenger is the rationale for our finding on its liability.

DECISION

REGALADO, J.:

In this appeal by certiorari, petitioner Aboitiz Shipping Corporation seeks a review of

the decision 1 of respondent Court of Appeals, dated July 29, 1988, the decretal portion
of which reads: jgc:chanrobles.com.ph

"WHEREFORE, the judgment appealed from as modified by the order of October 27,
1982, is hereby affirmed with the modification that appellant Aboitiz Shipping is hereby
ordered to pay plaintiff-appellees the amount of P30,000.00 for the death of Anacleto
Viana; actual damages of P9,800.00; P160,000.00 for unearned income; P7,200.00 as
support for deceased’s parents;-P20,000.00 as moral damages; P10,000.00 as
attorney’s fees; and to pay the costs." cralaw virtua1aw library

The undisputed facts of the case, as found by the court a quo and adopted by
respondent court, are as follows: chanrobles virtual lawlibrary

"The evidence disclosed that on May 11, 1975, Anacleto Viana boarded the vessel M/V
Antonia, owned by defendant, at the port at San Jose, Occidental Mindoro, bound for
Manila, having purchased a ticket (No. 117392) in the sum of P23.10 (Exh.’B’). On May
12, 1975, said vessel arrived at Pier 4, North Harbor, Manila, and the passengers
therein disembarked, a gangplank having been provided connecting the side of the
vessel to the pier. Instead of using said gangplank, Anacleto Viana disembarked on the
third deck which was on the level with the pier. After said vessel had landed, the
Pioneer Stevedoring Corporation took over the exclusive control of the cargoes loaded
on said vessel pursuant to the Memorandum of Agreement dated July 26, 1975
(Exh.’2’) between the third party defendant Pioneer Stevedoring Corporation and
defendant Aboitiz Shipping Corporation.

"The crane owned by the third party defendant and operated by its crane operator Alejo
Figueroa was placed alongside the vessel and one (1) hour after the passengers of said
vessel had disembarked, it started operation by unloading the cargoes from said vessel.
While the crane was being operated, Anacleto Viana who had already disembarked from
said vessel obviously remembering that some of his cargoes were still loaded in the
vessel, went back to the vessel, and it was while he was pointing to the crew of the said
vessel to the place where his cargoes were loaded that the crane hit him, pinning him
between the side of the vessel and the crane. He was thereafter brought to the hospital
where he later expired three (3) days thereafter, on May 15, 1975, the cause of his
death according to the Death Certificate (Exh.’C’) being "hypostatic pneumonia
secondary to traumatic fracture of the pubic bone lacerating the urinary bladder" (See
also Exh.’B’). For his hospitalization, medical, burial and other miscellaneous expenses,
Anacleto’s wife, herein plaintiff, spent a total of P9,800.00 (Exhibits ‘E’, ‘E-1’, to ‘E-5’).
Anacleto Viana who was only forty (40) years old when he met said fateful accident
(Exh.’E’) was in good health. His average annual income as a farmer or a farm
supervisor was 400 cavans of palay annually. His parents, herein plaintiffs Antonio and
Gorgonia Viana, prior to his death had been recipient of twenty (20) cavans of palay as
support or P120.00 monthly. Because of Anacleto’s death, plaintiffs suffered mental
anguish and extreme worry or moral damages. For the filing of the instant case, they
had to hire a lawyer for an agreed fee of ten thousand (P10,000.00) pesos." 2

Private respondents Vianas filed a complaint 3 for damages against petitioner

corporation (Aboitiz, for brevity) for breach of contract of carriage.

In its answer, 4 Aboitiz denied responsibility contending that at the time of the
accident, the vessel was completely under the control of respondent Pioneer
Stevedoring Corporation (Pioneer, for short) as the exclusive stevedoring contractor of
Aboitiz, which handled the unloading of cargoes from the vessel of Aboitiz. It is also
averred that since the crane operator was not an employee of Aboitiz, the latter cannot
be held liable under the fellow-servant rule. chanrobles.com : virtual law library

Thereafter, Aboitiz, as third-party plaintiff, filed a third-party complaint 5 against

Pioneer imputing liability thereto for Anacleto Viana’s death as having been allegedly
caused by the negligence of the crane operator who was an employee of Pioneer under
its exclusive control and supervision.

Pioneer, in its answer to the third-party complaint, 6 raised the defenses that Aboitiz
had no cause of action against Pioneer considering that Aboitiz is being sued by the
Vianas for breach of contract of carriage to which Pioneer is not a party; that Pioneer
had observed the diligence of a good father of a family both in the selection and
supervision of its employees as well as in the prevention of damage or injury to anyone
including the victim Anacleto Viana; that Anacleto Viana’s gross negligence was the
direct and proximate cause of his death; and that the filing of the third-party complaint
was premature by reason of the pendency of the criminal case for homicide through
reckless imprudence filed against the crane operator, Alejo Figueroa.

In a decision rendered on April 17, 1980 by the trial court, 7 Aboitiz was ordered to pay
the Vianas for damages incurred, and Pioneer was ordered to reimburse Aboitiz for
whatever amount the latter paid the Vianas. The dispositive portion of said decision
provides: jgc:chanrobles.com.ph

"WHEREFORE, judgment is hereby rendered in favor of the plaintiffs: jgc:chanrobles.com.ph

"(1) ordering defendant Aboitiz Shipping Corporation to pay to plaintiffs the sum of
P12,000.00 for the death of Anacleto Viana; P9,800.00 as actual damages;
P533,200.00 value of the 10,664 cavans of palay computed at P50.00 per cavan;
P10,000.00 as attorney’s fees; P5,000.00, value of the 100 cavans of palay as support
for five (5) years for deceased (sic) parents, herein plaintiffs Antonio and Gorgonia
Viana computed at P50.00 per cavan; P7,200.00 as support for deceased’s parents
computed at P120.00 a month for five years pursuant to Art. 2206, Par. 2, of the Civil
Code; P20,000.00 as moral damages, and costs; and

"(2) ordering the third party defendant Pioneer Stevedoring Corporation to reimburse
defendant and third party plaintiff-Aboitiz Shipping Corporation the said amounts that it
is ordered to pay to herein plaintiffs." cralaw virtua1aw library

Both Aboitiz and Pioneer filed separate motions for reconsideration wherein they
similarly raised the trial court’s failure to declare that Anacleto Viana acted with gross
negligence despite the overwhelming evidence presented in support thereof. In
addition, Aboitiz alleged, in opposition to Pioneer’s motion, that under the
memorandum of agreement the liability of Pioneer as contractor is automatic for any
damages or losses whatsoever occasioned by and arising from the operation of its
arrastre and stevedoring service. chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

In an order dated October 27, 1982, 8 the trial court absolved Pioneer from liability for
failure of the Vianas and Aboitiz to preponderantly establish a case of negligence
against the crane operator which the court a quo ruled is never presumed, aside from
the fact that the memorandum of agreement supposedly refers only to Pioneer’s liability
in case of loss or damage to goods handled by it but not in the case of personal
injuries, and, finally, that Aboitiz cannot properly invoke the fellow-servant rule simply
because its liability stems from a breach of contract of carriage. The dispositive portion
of said order reads:jgc:chanrobles.com.ph

"WHEREFORE, judgment is hereby modified insofar as third party defendant Pioneer

Stevedoring Corporation is concerned rendered in favor of the plaintiffs: jgc:chanrobles.com.ph

"(1) Ordering defendant Aboitiz Shipping Corporation to pay the plaintiffs the sum of
P12,000.00 for the death of Anacleto Viana; P9,000.00 (sic) as actual damages;
P533,200.00 value of the 10,664 cavans of palay computed at P50.00 per cavan;
P10,000.00 as attorney’s fees; P5,000.00 value of the 100 cavans of palay as support
for five (5) years for deceased’s parents, herein plaintiffs Antonio and Gorgonia Viana,
computed at P50.00 per cavan; P7,200.00 as support for deceased’s parents computed
at P120.00 a month for five years pursuant to Art. 2206, Par. 2, of the Civil Code;
P20,000.00 as moral damages, and costs; and"

(2) Absolving third-party defendant Pioneer Stevedoring Corporation for (sic) any
liability for the death of Anacleto Viana, the passenger of M/V Antonia owned by
defendant third party plaintiff Aboitiz Shipping Corporation it appearing that the
negligence of its crane operator has not been established therein." cralaw virtua1aw library

Not satisfied with the modified judgment of the trial court, Aboitiz appealed the same to
respondent Court of Appeals which affirmed the findings of the trial court except as to
the amount of damages awarded to the Vianas. chanrobles lawlibrary : rednad

Hence, this petition wherein petitioner Aboitiz postulates that respondent court erred: jgc:chanrobles.com.ph

"(A) In holding that the doctrine laid down by this Honorable Court in La Mallorca v.
Court of Appeals, Et. Al. (17 SCRA 739, July 27, 1966) is applicable to the case in the
face of the undisputable fact that the factual situation under the La Mallorca case is
radically different from the facts obtaining in this case;

"(B) In holding petitioner liable for damages in the face of the finding of the court a quo
and confirmed by the Honorable respondent Court of Appeals that the deceased,
Anacleto Viana was guilty of contributory negligence, which, we respectfully submit,
contributory negligence was the proximate cause of his death; specifically the
Honorable respondent Court of Appeals failed to apply Art. 1762 of the New Civil Code;"

(C) In the alternative assuming the holding of the Honorable respondent Court of
Appeals that petitioner may be legally condemned to pay damages to the private
respondents we respectfully submit that it committed a reversible error when it
dismissed petitioner’s third party complaint against private respondent Pioneer
Stevedoring Corporation instead of compelling the latter to reimburse the petitioner for
whatever damages it may be compelled to pay to the private respondents Vianas." 9

At threshold, it is to be observed that both the trial court and respondent Court of
Appeals found the victim Anacleto Viana guilty of contributory negligence, but holding
that it was the negligence of Aboitiz in prematurely turning over the vessel to the
arrastre operator for the unloading of cargoes which was the direct, immediate and
proximate cause of the victim’s death.

I. Petitioner contends that since one (1) hour had already elapsed from the time
Anacleto Viana disembarked from the vessel and that he was given more than ample
opportunity to unload his cargoes prior to the operation of the crane, his presence on
the vessel was no longer reasonable and he consequently ceased to be a passenger.
Corollarily, it insists that the doctrine in La Mallorca v. Court of Appeals, Et. Al. 10 is not
applicable to the case at bar.

The rule is that the relation of carrier and passenger continues until the passenger has
been landed at the port of destination and has left the vessel owner’s dock or premises.
11 Once created, the relationship will not ordinarily terminate until the passenger has,
after reaching his destination, safely alighted from the carrier’s conveyance or had a
reasonable opportunity to leave the carrier’s premises. All persons who remain on the
premises a reasonable time after leaving the conveyance are to be deemed passengers,
and what is a reasonable time or a reasonable delay within this rule is to be determined
from all the circumstances, and includes a reasonable time to see after his baggage and
prepare for his departure. 12 The carrier-passenger relationship is not terminated
merely by the fact that the person transported has been carried to his destination if, for
example, such person remains in the carrier’s premises to claim his baggage. 13

It was in accordance with this rationale that the doctrine in the aforesaid case of La
Mallorca was enunciated, to wit: jgc:chanrobles.com.ph

"It has been recognized as a rule that the relation of carrier and passenger does not
cease at the moment the passenger alights from the carrier’s vehicle at a place selected
by the carrier at the point of destination, but continues until the passenger has had a
reasonable time or a reasonable opportunity to leave the carrier’s premises. And, what
is a reasonable time or a reasonable delay within this rule is to be determined from all
the circumstances. Thus, a person who, after alighting from a train, walks along the
station platform is considered still a passenger. So also, where a passenger has alighted
at his destination and is proceeding by the usual way to leave the company’s premises,
but before actually doing so is halted by the report that his brother, a fellow passenger,
has been shot, and he in good faith and without intent of engaging in the difficulty,
returns to relieve his brother, he is deemed reasonably and necessarily delayed and
thus continues to be a passenger entitled as such to the protection of the railroad
company and its agents. chanrobles lawlibrary : rednad

"In the present case, the father returned to the bus to get one of his baggages which
was not unloaded when they alighted from the bus. Racquel, the child that she was,
must have followed the father. However, although the father was still on the running
board of the bus waiting for the conductor to hand him the bag or bayong, the bus
started to run, so that even he (the father) had to jump down from the moving vehicle.
It was at this instance that the child, who must be near the bus, was run over and
killed. In the circumstances, it cannot be claimed that the carrier’s agent had exercised
the ‘utmost diligence’ of a ‘very cautious person’ required by Article 1755 of the Civil
Code to be observed by a common carrier in the discharge of its obligation to transport
safely its passengers . . . The presence of said passengers near the bus was not
unreasonable and they are, therefore, to be considered still as passengers of the
carrier, entitled to the protection under their contract of carriage." 14

It is apparent from the foregoing that what prompted the Court to rule as it did in said
case is the fact of the passenger’s reasonable presence within the carrier’s premises.
That reasonableness of time should be made to depend on the attending circumstances
of the case, such as the kind of common carrier, the nature of its business, the customs
of the place, and so forth, and therefore precludes a consideration of the time element
per se without taking into account such other factors. It is thus of no moment whether
in the cited case of La Mallorca there was no appreciable interregnum for the passenger
therein to leave the carrier’s premises whereas in the case at bar, an interval of one (1)
hour had elapsed before the victim met the accident. The primary factor to be
considered is the existence of a reasonable cause as will justify the presence of the
victim on or near the petitioner’s vessel. We believe there exists such a justifiable
cause.

It is of common knowledge that, by the very nature of petitioner’s business as a

shipper, the passengers of vessels are allotted a longer period of time to disembark
from the ship than other common carriers such as a passenger bus. With respect to the
bulk of cargoes and the number of passengers it can load, such vessels are capable of
accommodating a bigger volume of both as compared to the capacity of a regular
commuter bus. Consequently, a ship passenger will need at least an hour as is the
usual practice, to disembark from the vessel and claim his baggage whereas a bus
passenger can easily get off the bus and retrieve his luggage in a very short period of
time. Verily, petitioner cannot categorically claim, through the bare expedient of
comparing the period of time entailed in getting the passenger’s cargoes, that the
ruling in La Mallorca is inapplicable to the case at bar. On the contrary, if we are to
apply the doctrine enunciated therein to the instant petition, we cannot in reason doubt
that the victim Anacleto Viana was still a passenger at the time of the incident. When
the accident occurred, the victim was in the act of unloading his cargoes, which he had
every right to do, from petitioner’s vessel. As earlier stated, a carrier is duty bound not
only to bring its passengers safely to their destination but also to afford them a
reasonable time to claim their baggage.
It is not definitely shown that one (1) hour prior to the incident, the victim had already
disembarked from the vessel. Petitioner failed to prove this. What is clear to us is that
at the time the victim was taking his cargoes, the vessel had already docked an hour
earlier. In consonance with common shipping procedure as to the minimum time of one
(1) hour allowed for the passengers to disembark, it may be presumed that the victim
had just gotten off the vessel when he went to retrieve his baggage. Yet, even if he had
already disembarked an hour earlier, his presence in petitioner’s premises was not
without cause. The victim had to claim his baggage which was possible only one (1)
hour after the vessel arrived since it was admittedly standard procedure in the case of
petitioner’s vessels that the unloading operations shall start only after that time.
Consequently, under the foregoing circumstances, the victim Anacleto Viana is still
deemed a passenger of said carrier at the time of his tragic death. chanrobles.com : virtual law library

II. Under the law, common carriers are, from the nature of their business and for
reasons of public policy, 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. 15 More particularly, 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.
16 Thus, where a passenger dies or is injured, the common carrier is presumed to have
been at fault or to have acted negligently. 17 This gives rise to an action for breach of
contract of carriage where all that is required of plaintiff is to prove the existence of the
contract of carriage and its non-performance by the carrier, that is, the failure of the
carrier to carry the passenger safely to his destination, 18 which, in the instant case,
necessarily includes its failure to safeguard its passenger with extraordinary diligence
while such relation subsists.

The presumption is, therefore, established by law that in case of a passenger’s death or
injury the operator of the vessel was at fault or negligent, having failed to exercise
extraordinary diligence, and it is incumbent upon it to rebut the same. This is in
consonance with the avowed policy of the State to afford full protection to the
passengers of common carriers which can be carried out only by imposing a stringent
statutory obligation upon the latter. Concomitantly, this Court has likewise adopted a
rigid posture in the application of the law by exacting the highest degree of care and
diligence from common carriers, bearing utmost in mind the welfare of the passengers
who often become hapless victims of indifferent and profit-oriented carriers. We cannot
in reason deny that petitioner failed to rebut the presumption against it. Under the facts
obtaining in the present case, it cannot be gainsaid that petitioner had inadequately
complied with the required degree of diligence to prevent the accident from happening.

As found by the Court of Appeals, the evidence does not show that there was a cordon
of drums around the perimeter of the crane, as claimed by petitioner. It also adverted
to the fact that the alleged presence of visible warning signs in the vicinity was
disputable and not indubitably established. Thus, we are not inclined to accept
petitioner’s explanation that the victim and other passengers were sufficiently warned
that merely venturing into the area in question was fraught with serious peril.
Definitely, even assuming the existence of the supposed cordon of drums loosely placed
around the unloading area and the guard’s admonitions against entry therein, these
were at most insufficient precautions which pale into insignificance if considered vis-a-
vis the gravity of the danger to which the deceased was exposed. There is no showing
that petitioner was extraordinarily diligent in requiring or seeing to it that said
precautionary measures were strictly and actually enforced to subserve their purpose of
preventing entry into the forbidden area. By no stretch of liberal evaluation can such
perfunctory acts approximate the "utmost diligence of very cautious persons" to be
exercised "as far as human care and foresight can provide" which is required by law of
common carriers with respect to their passengers.

While the victim was admittedly contributorily negligent, still petitioner’s aforesaid
failure to exercise extraordinary diligence was the proximate and direct cause of,
because it could definitely have prevented, the former’s death. Moreover, in paragraph
5.6 of its petition, at bar, 19 petitioner has expressly conceded the factual finding of
respondent Court of Appeals that petitioner did not present sufficient evidence in
support of its submission that the deceased Anacleto Viana was guilty of gross
negligence. Petitioner cannot now be heard to claim otherwise. chanrobles law library : red

No excepting circumstance being present, we are likewise bound by respondent court’s

declaration that there was no negligence on the part of Pioneer Stevedoring
Corporation, a confirmation of the trial court’s finding to that effect, hence our
conformity to Pioneer’s being absolved of any liability.

As correctly observed by both courts, Aboitiz joined Pioneer in proving the alleged gross
negligence of the victim, hence its present contention that the death of the passenger
was due to the negligence of the crane operator cannot be sustained both on grounds
of estoppel and for lack of evidence on its present theory. Even in its answer filed in the
court below it readily alleged that Pioneer had taken the necessary safeguards insofar
as its unloading operations were concerned, a fact which appears to have been
accepted by the plaintiff therein by not impleading Pioneer as a defendant, and likewise
inceptively by Aboitiz by filing its third-party complaint only after ten (10) months from
the institution of the suit against it. Parenthetically, Pioneer is not within the ambit of
the rule on extraordinary diligence required of, and the corresponding presumption of
negligence foisted on, common carriers like Aboitiz. This, of course, does not detract
from what we have said that no negligence can be imputed to Pioneer but, that on the
contrary, the failure of Aboitiz to exercise extraordinary diligence for the safety of its
passenger is the rationale for our finding on its liability.

WHEREFORE, the petition is DENIED and the judgment appealed from is hereby
AFFIRMED in toto.

SO ORDERED.

Melencio-Herrera (Chairman), Paras, Padilla and Sarmiento, JJ., concur.

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

LA MALLORCA, petitioner,
vs.
HONORABLE COURT OF APPEALS, MARIANO BELTRAN, ET AL., respondents.
G. E. Yabut, R. Monterey and M.C. Lagman for petitioner.
Ahmed Garcia for respondents.

BARRERA, J.:

La Mallorca seeks the review of the decision of the Court of Appeals in CA-G.R. No. 23267-R,
holding it liable for quasi-delict and ordering it to pay to respondents Mariano Beltran, et al.,
P6,000.00 for the death of his minor daughter Raquel Beltran, plus P400.00 as actual damages.

The facts of the case as found by the Court of Appeals, briefly are:

On December 20, 1953, at about noontime, plaintiffs, husband and wife, together with their
minor daughters, namely, Milagros, 13 years old, Raquel, about 4½ years old, and Fe, over
2 years old, boarded the Pambusco Bus No. 352, bearing plate TPU No. 757 (1953
Pampanga), owned and operated by the defendant, at San Fernando, Pampanga, bound for
Anao, Mexico, Pampanga. At the time, they were carrying with them four pieces of baggages
containing their personal belonging. The conductor of the bus, who happened to be a half-
brother of plaintiff Mariano Beltran, issued three tickets (Exhs. A, B, & C) covering the full
fares of the plaintiff and their eldest child, Milagros. No fare was charged on Raquel and Fe,
since both were below the height at which fare is charged in accordance with the appellant's
rules and regulations.

After about an hour's trip, the bus reached Anao whereat it stopped to allow the passengers
bound therefor, among whom were the plaintiffs and their children to get off. With respect to
the group of the plaintiffs, Mariano Beltran, then carrying some of their baggages, was the
first to get down the bus, followed by his wife and his children. Mariano led his companions
to a shaded spot on the left pedestrians side of the road about four or five meters away from
the vehicle. Afterwards, he returned to the bus in controversy to get his other bayong, which
he had left behind, but in so doing, his daughter Raquel followed him, unnoticed by her
father. While said Mariano Beltran was on the running board of the bus waiting for the
conductor to hand him his bayong which he left under one of its seats near the door, the bus,
whose motor was not shut off while unloading, suddenly started moving forward, evidently to
resume its trip, notwithstanding the fact that the conductor has not given the driver the
customary signal to start, since said conductor was still attending to the baggage left behind
by Mariano Beltran. Incidentally, when the bus was again placed into a complete stop, it had
travelled about ten meters from the point where the plaintiffs had gotten off.

Sensing that the bus was again in motion, Mariano Beltran immediately jumped from the
running board without getting his bayong from the conductor. He landed on the side of the
road almost in front of the shaded place where he left his wife and children. At that precise
time, he saw people beginning to gather around the body of a child lying prostrate on the
ground, her skull crushed, and without life. The child was none other than his daughter
Raquel, who was run over by the bus in which she rode earlier together with her parents.

For the death of their said child, the plaintiffs commenced the present suit against the
defendant seeking to recover from the latter an aggregate amount of P16,000 to cover moral
damages and actual damages sustained as a result thereof and attorney's fees. After trial on
the merits, the court below rendered the judgment in question.

On the basis of these facts, the trial court found defendant liable for breach of contract of carriage
and sentenced it to pay P3,000.00 for the death of the child and P400.00 as compensatory damages
representing burial expenses and costs.
On appeal to the Court of Appeals, La Mallorca claimed that there could not be a breach of contract
in the case, for the reason that when the child met her death, she was no longer a passenger of the
bus involved in the incident and, therefore, the contract of carriage had already terminated. Although
the Court of Appeals sustained this theory, it nevertheless found the defendant-appellant guilty
of quasi-delict and held the latter liable for damages, for the negligence of its driver, in accordance
with Article 2180 of the Civil Code. And, the Court of Appeals did not only find the petitioner liable,
but increased the damages awarded the plaintiffs-appellees to P6,000.00, instead of P3,000.00
granted by the trial court.

In its brief before us, La Mallorca contends that the Court of Appeals erred (1) in holding it liable
for quasi-delict, considering that respondents complaint was one for breach of contract, and (2) in
raising the award of damages from P3,000.00 to P6,000.00 although respondents did not appeal
from the decision of the lower court.

Under the facts as found by the Court of Appeals, we have to sustain the judgement holding
petitioner liable for damages for the death of the child, Raquel Beltran. It may be pointed out that
although it is true that respondent Mariano Beltran, his wife, and their children (including the
deceased child) had alighted from the bus at a place designated for disembarking or unloading of
passengers, it was also established that the father had to return to the vehicle (which was still at a
stop) to get one of his bags or bayong that was left under one of the seats of the bus. There can be
no controversy that as far as the father is concerned, when he returned to the bus for
his bayong which was not unloaded, the relation of passenger and carrier between him and the
petitioner remained subsisting. For, the relation of carrier and passenger does not necessarily cease
where the latter, after alighting from the car, aids the carrier's servant or employee in removing his
baggage from the car.1 The issue to be determined here is whether as to the child, who was already
led by the father to a place about 5 meters away from the bus, the liability of the carrier for her safety
under the contract of carriage also persisted.

It has been recognized as a rule that the relation of carrier and passenger does not cease at the
moment the passenger alights from the carrier's vehicle at a place selected by the carrier at the point
of destination, but continues until the passenger has had a reasonable time or a reasonable
opportunity to leave the carrier's premises. And, what is a reasonable time or a reasonable delay
within this rule is to be determined from all the circumstances. Thus, a person who, after alighting
from a train, walks along the station platform is considered still a passenger.2 So also, where a
passenger has alighted at his destination and is proceeding by the usual way to leave the company's
premises, but before actually doing so is halted by the report that his brother, a fellow passenger,
has been shot, and he in good faith and without intent of engaging in the difficulty, returns to relieve
his brother, he is deemed reasonably and necessarily delayed and thus continues to be a passenger
entitled as such to the protection of the railroad and company and its agents.3

In the present case, the father returned to the bus to get one of his baggages which was not
unloaded when they alighted from the bus. Raquel, the child that she was, must have followed the
father. However, although the father was still on the running board of the bus awaiting for the
conductor to hand him the bag or bayong, the bus started to run, so that even he (the father) had to
jump down from the moving vehicle. It was at this instance that the child, who must be near the bus,
was run over and killed. In the circumstances, it cannot be claimed that the carrier's agent had
exercised the "utmost diligence" of a "very cautions person" required by Article 1755 of the Civil
Code to be observed by a common carrier in the discharge of its obligation to transport safely its
passengers. In the first place, the driver, although stopping the bus, nevertheless did not put off the
engine. Secondly, he started to run the bus even before the bus conductor gave him the signal to go
and while the latter was still unloading part of the baggages of the passengers Mariano Beltran and
family. The presence of said passengers near the bus was not unreasonable and they are, therefore,
to be considered still as passengers of the carrier, entitled to the protection under their contract of
carriage.

But even assuming arguendo that the contract of carriage has already terminated, herein petitioner
can be held liable for the negligence of its driver, as ruled by the Court of Appeals, pursuant to
Article 2180 of the Civil Code. Paragraph 7 of the complaint, which reads —

That aside from the aforesaid breach of contract, the death of Raquel Beltran, plaintiffs'
daughter, was caused by the negligence and want of exercise of the utmost diligence of a
very cautious person on the part of the defendants and their agent, necessary to transport
plaintiffs and their daughter safely as far as human care and foresight can provide in the
operation of their vehicle.

is clearly an allegation for quasi-delict. The inclusion of this averment for quasi-delict, while

incompatible with the other claim under the contract of carriage, is permissible under Section 2 of
Rule 8 of the New Rules of Court, which allows a plaintiff to allege causes of action in the alternative,
be they compatible with each other or not, to the end that the real matter in controversy may be
resolved and determined.4

The plaintiffs sufficiently pleaded the culpa or negligence upon which the claim was predicated when
it was alleged in the complaint that "the death of Raquel Beltran, plaintiffs' daughter, was caused by
the negligence and want of exercise of the utmost diligence of a very cautious person on the part of
the defendants and their agent." This allegation was also proved when it was established during the
trial that the driver, even before receiving the proper signal from the conductor, and while there were
still persons on the running board of the bus and near it, started to run off the vehicle. The
presentation of proof of the negligence of its employee gave rise to the presumption that the
defendant employer did not exercise the diligence of a good father of the family in the selection and
supervision of its employees. And this presumption, as the Court of Appeals found, petitioner had
failed to overcome. Consequently, petitioner must be adjudged peculiarily liable for the death of the
child Raquel Beltran.

The increase of the award of damages from P3,000.00 to P6,000.00 by the Court of Appeals,
however, cannot be sustained. Generally, the appellate court can only pass upon and consider
questions or issues raised and argued in appellant's brief. Plaintiffs did not appeal from that portion
of the judgment of the trial court awarding them on P3,000.00 damages for the death of their
daughter. Neither does it appear that, as appellees in the Court of Appeals, plaintiffs have pointed
out in their brief the inadequacy of the award, or that the inclusion of the figure P3,000.00 was
merely a clerical error, in order that the matter may be treated as an exception to the general
rule.5 Herein petitioner's contention, therefore, that the Court of Appeals committed error in raising
the amount of the award for damages is, evidently, meritorious. 1äwphï1.ñët

Wherefore, the decision of the Court of Appeals is hereby modified by sentencing, the petitioner to
pay to the respondents Mariano Beltran, et al., the sum of P3,000.00 for the death of the child,
Raquel Beltran, and the amount of P400.00 as actual damages. No costs in this instance. So
ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ.,
concur.
Makalintal, J., concurs in the result.
G.R. No. 145804             February 6, 2003

LIGHT RAIL TRANSIT AUTHORITY & RODOLFO ROMAN, petitioners,

vs.
MARJORIE NAVIDAD, Heirs of the Late NICANOR NAVIDAD & PRUDENT SECURITY
AGENCY, respondents.

DECISION

VITUG, J.:

The case before the Court is an appeal from the decision and resolution of the Court of Appeals,
promulgated on 27 April 2000 and 10 October 2000, respectively, in CA-G.R. CV No. 60720, entitled
"Marjorie Navidad and Heirs of the Late Nicanor Navidad vs. Rodolfo Roman, et. al.," which has
modified the decision of 11 August 1998 of the Regional Trial Court, Branch 266, Pasig City,
exonerating Prudent Security Agency (Prudent) from liability and finding Light Rail Transit Authority
(LRTA) and Rodolfo Roman liable for damages on account of the death of Nicanor Navidad.

On 14 October 1993, about half an hour past seven o’clock in the evening, Nicanor Navidad, then
drunk, entered the EDSA LRT station after purchasing a "token" (representing payment of the fare).
While Navidad was standing on the platform near the LRT tracks, Junelito Escartin, the security
guard assigned to the area approached Navidad. A misunderstanding or an altercation between the
two apparently ensued that led to a fist fight. No evidence, however, was adduced to indicate how
the fight started or who, between the two, delivered the first blow or how Navidad later fell on the
LRT tracks. At the exact moment that Navidad fell, an LRT train, operated by petitioner Rodolfo
Roman, was coming in. Navidad was struck by the moving train, and he was killed instantaneously.

On 08 December 1994, the widow of Nicanor, herein respondent Marjorie Navidad, along with her
children, filed a complaint for damages against Junelito Escartin, Rodolfo Roman, the LRTA, the
Metro Transit Organization, Inc. (Metro Transit), and Prudent for the death of her husband. LRTA
and Roman filed a counterclaim against Navidad and a cross-claim against Escartin and Prudent.
Prudent, in its answer, denied liability and averred that it had exercised due diligence in the selection
and supervision of its security guards.

The LRTA and Roman presented their evidence while Prudent and Escartin, instead of presenting
evidence, filed a demurrer contending that Navidad had failed to prove that Escartin was negligent in
his assigned task. On 11 August 1998, the trial court rendered its decision; it adjudged:

"WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the defendants
Prudent Security and Junelito Escartin ordering the latter to pay jointly and severally the plaintiffs the
following:

"a) 1) Actual damages of P44,830.00;

2) Compensatory damages of P443,520.00;

3) Indemnity for the death of Nicanor Navidad in the sum of P50,000.00;

"b) Moral damages of P50,000.00;

"c) Attorney’s fees of P20,000;

 "d) Costs of suit.

"The complaint against defendants LRTA and Rodolfo Roman are dismissed for lack of merit.

"The compulsory counterclaim of LRTA and Roman are likewise dismissed." 1

Prudent appealed to the Court of Appeals. On 27 August 2000, the appellate court promulgated its
now assailed decision exonerating Prudent from any liability for the death of Nicanor Navidad and,
instead, holding the LRTA and Roman jointly and severally liable thusly:

"WHEREFORE, the assailed judgment is hereby MODIFIED, by exonerating the appellants from any
liability for the death of Nicanor Navidad, Jr. Instead, appellees Rodolfo Roman and the Light Rail
Transit Authority (LRTA) are held liable for his death and are hereby directed to pay jointly and
severally to the plaintiffs-appellees, the following amounts:

a) P44,830.00 as actual damages;

b) P50,000.00 as nominal damages;

c) P50,000.00 as moral damages;

d) P50,000.00 as indemnity for the death of the deceased; and

e) P20,000.00 as and for attorney’s fees." 2

The appellate court ratiocinated that while the deceased might not have then as yet boarded the
train, a contract of carriage theretofore had already existed when the victim entered the place where
passengers were supposed to be after paying the fare and getting the corresponding token therefor.
In exempting Prudent from liability, the court stressed that there was nothing to link the security
agency to the death of Navidad. It said that Navidad failed to show that Escartin inflicted fist blows
upon the victim and the evidence merely established the fact of death of Navidad by reason of his
having been hit by the train owned and managed by the LRTA and operated at the time by Roman.
The appellate court faulted petitioners for their failure to present expert evidence to establish the fact
that the application of emergency brakes could not have stopped the train.

The appellate court denied petitioners’ motion for reconsideration in its resolution of 10 October
2000.

In their present recourse, petitioners recite alleged errors on the part of the appellate court; viz:

"I.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED BY DISREGARDING THE

FINDINGS OF FACTS BY THE TRIAL COURT

"II.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT PETITIONERS

ARE LIABLE FOR THE DEATH OF NICANOR NAVIDAD, JR.
 "III.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT RODOLFO

ROMAN IS AN EMPLOYEE OF LRTA." 3

Petitioners would contend that the appellate court ignored the evidence and the factual findings of
the trial court by holding them liable on the basis of a sweeping conclusion that the presumption of
negligence on the part of a common carrier was not overcome. Petitioners would insist that
Escartin’s assault upon Navidad, which caused the latter to fall on the tracks, was an act of a
stranger that could not have been foreseen or prevented. The LRTA would add that the appellate
court’s conclusion on the existence of an employer-employee relationship between Roman and
LRTA lacked basis because Roman himself had testified being an employee of Metro Transit and
not of the LRTA.

Respondents, supporting the decision of the appellate court, contended that a contract of carriage
was deemed created from the moment Navidad paid the fare at the LRT station and entered the
premises of the latter, entitling Navidad to all the rights and protection under a contractual relation,
and that the appellate court had correctly held LRTA and Roman liable for the death of Navidad in
failing to exercise extraordinary diligence imposed upon a common carrier.

Law and jurisprudence dictate that a common carrier, both from the nature of its business and for
reasons of public policy, is burdened with the duty of exercising utmost diligence in ensuring the
safety of passengers. The Civil Code, governing the liability of a common carrier for death of or
4 

injury to its passengers, provides:

"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 a due regard for all
the circumstances.

"Article 1756. In case of death of or injuries to passengers, common carriers are presumed to have
been at fault or to have acted negligently, unless they prove that they observed extraordinary
diligence as prescribed in articles 1733 and 1755."

"Article 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 orders 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."

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

The law requires common carriers to carry passengers safely using the utmost diligence of very
cautious persons with due regard for all circumstances. Such duty of a common carrier to provide
5 

safety to its passengers so obligates it not only during the course of the trip but for so long as the
passengers are within its premises and where they ought to be in pursuance to the contract of
carriage. The statutory provisions render a common carrier liable for death of or injury to passengers
6 

(a) through the negligence or wilful acts of its employees or b) on account of wilful acts or negligence
of other passengers or of strangers if the common carrier’s employees through the exercise of due
diligence could have prevented or stopped the act or omission. In case of such death or injury, a
7 

carrier is presumed to have been at fault or been negligent, and by simple proof of injury, the
8 

passenger is relieved of the duty to still establish the fault or negligence of the carrier or of its
employees and the burden shifts upon the carrier to prove that the injury is due to an unforeseen
event or to force majeure. In the absence of satisfactory explanation by the carrier on how the
9 

accident occurred, which petitioners, according to the appellate court, have failed to show, the
presumption would be that it has been at fault, an exception from the general rule that negligence
10 

must be proved. 11

The foundation of LRTA’s liability is the contract of carriage and its obligation to indemnify the victim
arises from the breach of that contract by reason of its failure to exercise the high diligence required
of the common carrier. In the discharge of its commitment to ensure the safety of passengers, a
carrier may choose to hire its own employees or avail itself of the services of an outsider or an
independent firm to undertake the task. In either case, the common carrier is not relieved of its
responsibilities under the contract of carriage.

Should Prudent be made likewise liable? If at all, that liability could only be for tort under the
provisions of Article 2176 and related provisions, in conjunction with Article 2180, of the Civil Code.
12  13 

The premise, however, for the employer’s liability is negligence or fault on the part of the employee.
Once such fault is established, the employer can then be made liable on the basis of the
presumption juris tantum that the employer failed to exercise diligentissimi patris families in the
selection and supervision of its employees. The liability is primary and can only be negated by
showing due diligence in the selection and supervision of the employee, a factual matter that has not
been shown. Absent such a showing, one might ask further, how then must the liability of the
common carrier, on the one hand, and an independent contractor, on the other hand, be described?
It would be solidary. A contractual obligation can be breached by tort and when the same act or
omission causes the injury, one resulting in culpa contractual and the other in culpa aquiliana, Article
2194 of the Civil Code can well apply. In fine, a liability for tort may arise even under a contract,
14  15 

where tort is that which breaches the contract. Stated differently, when an act which constitutes a
16 

breach of contract would have itself constituted the source of a quasi-delictual liability had no
contract existed between the parties, the contract can be said to have been breached by tort,
thereby allowing the rules on tort to apply. 17

Regrettably for LRT, as well as perhaps the surviving spouse and heirs of the late Nicanor Navidad,
this Court is concluded by the factual finding of the Court of Appeals that "there is nothing to link
(Prudent) to the death of Nicanor (Navidad), for the reason that the negligence of its employee,
Escartin, has not been duly proven x x x." This finding of the appellate court is not without substantial
justification in our own review of the records of the case.

There being, similarly, no showing that petitioner Rodolfo Roman himself is guilty of any culpable act
or omission, he must also be absolved from liability. Needless to say, the contractual tie between the
LRT and Navidad is not itself a juridical relation between the latter and Roman; thus, Roman can be
made liable only for his own fault or negligence.

The award of nominal damages in addition to actual damages is untenable. Nominal damages are
adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant,
may be vindicated or recognized, and not for the purpose of indemnifying the plaintiff for any loss
suffered by him. It is an established rule that nominal damages cannot co-exist with compensatory
18 

damages. 19
WHEREFORE, the assailed decision of the appellate court is AFFIRMED with MODIFICATION but
only in that (a) the award of nominal damages is DELETED and (b) petitioner Rodolfo Roman is
absolved from liability. No costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio and Azcuna, JJ., concur.

DANGWA TRANSPORTATION CO., INC. and THEODORE LARDIZABAL y

MALECDAN, petitioners,
vs.
COURT OF APPEALS, INOCENCIA CUDIAMAT, EMILIA CUDIAMAT BANDOY, FERNANDO
CUDLAMAT, MARRIETA CUDIAMAT, NORMA CUDIAMAT, DANTE CUDIAMAT, SAMUEL
CUDIAMAT and LIGAYA CUDIAMAT, all Heirs of the late Pedrito Cudiamat represented by
Inocencia Cudiamat, respondents.

Francisco S. Reyes Law Office for petitioners.

Antonio C. de Guzman for private respondents.

REGALADO, J.:

On May 13, 1985, private respondents filed a complaint   for damages against petitioners for the
1

death of Pedrito Cudiamat as a result of a vehicular accident which occurred on March 25, 1985 at
Marivic, Sapid, Mankayan, Benguet. Among others, it was alleged that on said date, while petitioner
Theodore M. Lardizabal was driving a passenger bus belonging to petitioner corporation in a
reckless and imprudent manner and without due regard to traffic rules and regulations and safety to
persons and property, it ran over its passenger, Pedrito Cudiamat. However, instead of bringing
Pedrito immediately to the nearest hospital, the said driver, in utter bad faith and without regard to
the welfare of the victim, first brought his other passengers and cargo to their respective destinations
before banging said victim to the Lepanto Hospital where he expired.

On the other hand, petitioners alleged that they had observed and continued to observe the
extraordinary diligence required in the operation of the transportation company and the supervision
of the employees, even as they add that they are not absolute insurers of the safety of the public at
large. Further, it was alleged that it was the victim's own carelessness and negligence which gave
rise to the subject incident, hence they prayed for the dismissal of the complaint plus an award of
damages in their favor by way of a counterclaim.

On July 29, 1988, the trial court rendered a decision, effectively in favor of petitioners, with this
decretal portion:

IN VIEW OF ALL THE FOREGOING, judgment is hereby pronounced that Pedrito Cudiamat
was negligent, which negligence was the proximate cause of his death. Nonetheless,
defendants in equity, are hereby ordered to pay the heirs of Pedrito Cudiamat the sum of
P10,000.00 which approximates the amount defendants initially offered said heirs for the
amicable settlement of the case. No costs.
 SO ORDERED.  2

 in CA-G.R. CV No. 19504 promulgated on August 14, 1990,

Not satisfied therewith, private respondents appealed to the Court of Appeals which, in a decision 3

set aside the decision of the lower court, and ordered petitioners to pay private respondents:

1. The sum of Thirty Thousand (P30,000.00) Pesos by way of indemnity for death of the
victim Pedrito Cudiamat;

2. The sum of Twenty Thousand (P20,000.00) by way of moral damages;

3. The sum of Two Hundred Eighty Eight Thousand (P288,000.00) Pesos as actual and
compensatory damages;

4. The costs of this suit.  4

 hence this petition with the central issue herein being

Petitioners' motion for reconsideration was denied by the Court of Appeals in its resolution dated October 4, 1990, 5

whether respondent court erred in reversing the decision of the trial court and in finding petitioners
negligent and liable for the damages claimed.

It is an established principle that the factual findings of the Court of Appeals as a rule are final and
may not be reviewed by this Court on appeal. However, this is subject to settled exceptions, one of
which is when the findings of the appellate court are contrary to those of the trial court, in which case
a reexamination of the facts and evidence may be undertaken.  6

In the case at bar, the trial court and the Court of Appeal have discordant positions as to who between the petitioners an the victim is guilty of negligence. Perforce, we have
had to conduct an evaluation of the evidence in this case for the prope calibration of their conflicting factual findings and legal conclusions.

The lower court, in declaring that the victim was negligent, made the following findings:

This Court is satisfied that Pedrito Cudiamat was negligent in trying to board a moving vehicle, especially with one of his hands holding an umbrella. And, without having given the driver or the conductor any indication that he wishes to board
the bus. But defendants can also be found wanting of the necessary diligence. In this connection, it is safe to assume that when the deceased Cudiamat attempted to board defendants' bus, the vehicle's door was open instead of being
closed. This should be so, for it is hard to believe that one would even attempt to board a vehicle (i)n motion if the door of said vehicle is closed. Here lies the defendant's lack of diligence. Under such circumstances, equity demands that there
must be something given to the heirs of the victim to assuage their feelings. This, also considering that initially, defendant common carrier had made overtures to amicably settle the case. It did offer a certain monetary consideration to the
victim's heirs. 7

However, respondent court, in arriving at a different opinion, declares that:

From the testimony of appellees'own witness in the person of Vitaliano Safarita, it is evident that the subject bus was at full stop when the victim Pedrito
Cudiamat boarded the same as it was precisely on this instance where a certain Miss Abenoja alighted from the bus. Moreover, contrary to the assertion of the
appellees, the victim did indicate his intention to board the bus as can be seen from the testimony of the said witness when he declared that Pedrito Cudiamat
was no longer walking and made a sign to board the bus when the latter was still at a distance from him. It was at the instance when Pedrito Cudiamat was
closing his umbrella at the platform of the bus when the latter made a sudden jerk movement (as) the driver commenced to accelerate the bus.
 Evidently, the incident took place due to the gross negligence of the appellee-driver in prematurely stepping on the accelerator and in not waiting for the passenger to first secure his seat especially so when we take into account that the
platform of the bus was at the time slippery and wet because of a drizzle. The defendants-appellees utterly failed to observe their duty and obligation as common carrier to the end that they should observe extra-ordinary diligence in the
vigilance over the goods and for the safety of the passengers transported by them according to the circumstances of each case (Article 1733, New Civil Code). 8

After a careful review of the evidence on record, we find no reason to disturb the above holding of the Court of Appeals. Its aforesaid findings are supported by the testimony
of petitioners' own witnesses. One of them, Virginia Abalos, testified on cross-examination as follows:

Q It is not a fact Madam witness, that at bunkhouse 54, that is before the place of the incident, there is a crossing?

A The way going to the mines but it is not being pass(ed) by the bus.

Q And the incident happened before bunkhouse 56, is that not correct?

A It happened between 54 and 53 bunkhouses. 9

The bus conductor, Martin Anglog, also declared:

Q When you arrived at Lepanto on March 25, 1985, will you please inform this Honorable Court if there was anv unusual incident that occurred?

A When we delivered a baggage at Marivic because  a person alighted there between Bunkhouse 53 and 54.

Q What happened when you delivered this passenger at this particular place in Lepanto?

A  When we reached the place, a passenger alighted and I signalled my driver. When we stopped we went out because I saw an umbrella about a split second
and I signalled again the driver, so the driver stopped and we went down and we saw Pedrito Cudiamat asking for help because he was lying down.

Q How far away was this certain person, Pedrito Cudiamat, when you saw him lying down — from the bus how far was he?

A It is about two to three meters.

Q  On what direction of the bus was he found about three meters from the bus, was it at the front or at the back?

A At the back, sir. 10 (Emphasis supplied.)

The foregoing testimonies show that the place of the accident and the place where one of the passengers alighted were both between Bunkhouses 53 and 54, hence the
finding of the Court of Appeals that the bus was at full stop when the victim boarded the same is correct. They further confirm the conclusion that the victim fell from the
platform of the bus when it suddenly accelerated forward and was run over by the rear right tires of the vehicle, as shown by the physical evidence on where he was thereafter
found in relation to the bus when it stopped. Under such circumstances, it cannot be said that the deceased was guilty of negligence.

The contention of petitioners that the driver and the conductor had no knowledge that the victim would ride on the bus, since the latter had supposedly not manifested his intention to board the same, does not merit consideration. When the bus is not in motion
there is no necessity for a person who wants to ride the same to signal his intention to board. A public utility bus, once it stops, is in effect making a continuous offer to bus riders. Hence, it becomes the duty of the driver and the conductor, every time the bus
stops, to do no act that would have the effect of increasing the peril to a passenger while he was attempting to board the same. The premature acceleration of the bus in this case was a breach of such duty. 11

It is the duty of common carriers of passengers, including common carriers by railroad train, streetcar, or motorbus, to stop their conveyances a reasonable length of time in order to afford passengers an opportunity to board and enter, and they are liable for
injuries suffered by boarding passengers resulting from the sudden starting up or jerking of their conveyances while they are doing so. 12

Further, even assuming that the bus was moving, the act of the victim in boarding the same cannot be considered negligent under the circumstances. As clearly explained in the testimony of the aforestated witness for petitioners, Virginia Abalos, th bus had "just
started" and "was still in slow motion" at the point where the victim had boarded and was on its platform. 13

 An ordinarily prudent person would have made the

It is not negligence per se, or as a matter of law, for one attempt to board a train or streetcar which is moving slowly. 14

attempt board the moving conveyance under the same or similar circumstances. The fact that
passengers board and alight from slowly moving vehicle is a matter of common experience both the
driver and conductor in this case could not have been unaware of such an ordinary practice.

The victim herein, by stepping and standing on the platform of the bus, is already considered a
passenger and is entitled all the rights and protection pertaining to such a contractual relation.
Hence, it has been held that the duty which the carrier passengers owes to its patrons extends to
persons boarding cars as well as to those alighting therefrom.  15

 A common
Common carriers, from the nature of their business and reasons of public policy, are bound to observe extraordina diligence for the safety of the passengers transported by the according to all the circumstances of each case. 16

carrier is bound to carry the passengers safely as far as human care and foresight can provide,
using the utmost diligence very cautious persons, with a due regard for all the circumstances.  17

It has also been repeatedly held that in an action based on a contract of carriage, the court need not make an express finding of fault or negligence on the part of the carrier in order to hold it responsible to pay the damages sought by the passenger. By contract
of carriage, the carrier assumes the express obligation to transport the passenger to his destination safely and 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. This is an exception to the general rule that negligence must be proved, and it is therefore incumbent upon the carrier to prove that it has exercised extraordinary diligence as prescribed in Articles 1733 and
1755 of the Civil Code. 18

Moreover, the circumstances under which the driver and the conductor failed to bring the gravely injured victim immediately to the hospital for medical treatment is a patent
and incontrovertible proof of their negligence. It defies understanding and can even be stigmatized as callous indifference. The evidence shows that after the accident the bus
could have forthwith turned at Bunk 56 and thence to the hospital, but its driver instead opted to first proceed to Bunk 70 to allow a passenger to alight and to deliver a
refrigerator, despite the serious condition of the victim. The vacuous reason given by petitioners that it was the wife of the deceased who caused the delay was tersely and
correctly confuted by respondent court:

... The pretension of the appellees that the delay was due to the fact that they had to wait for about twenty minutes for Inocencia Cudiamat to get dressed deserves scant consideration. It is rather scandalous and deplorable for a wife whose
husband is at the verge of dying to have the luxury of dressing herself up for about twenty minutes before attending to help her distressed and helpless husband. 19

Further, it cannot be said that the main intention of petitioner Lardizabal in going to Bunk 70 was to inform the victim's family of the mishap, since it was not said bus driver nor the conductor but the companion of the victim who informed his family

 In fact, it was only after the refrigerator was unloaded that one of the passengers thought of
thereof. 20

sending somebody to the house of the victim, as shown by the testimony of Virginia Abalos again, to
wit:
 Q Why, what happened to your refrigerator at that particular time?

A I asked them to bring it down because that is the nearest place to our house and when I
went down and asked somebody to bring down the refrigerator, I also asked somebody to
call the family of Mr. Cudiamat.

COURT:

Q Why did you ask somebody to call the family of Mr. Cudiamat?

A Because Mr. Cudiamat met an accident, so I ask somebody to call for the family of Mr.
Cudiamat.

Q But nobody ask(ed) you to call for the family of Mr. Cudiamat?

A No sir.  21

With respect to the award of damages, an oversight was, however, committed by respondent Court of Appeals in computing the actual damages based on the gross income of the victim. The rule is that the amount recoverable by the heirs of a victim of a tort is
not the loss of the entire earnings, but rather the loss of that portion of the earnings which the beneficiary would have received. In other words, only net earnings, not gross earnings, are to be considered, that is, the total of the earnings less expenses necessary
in the creation of such earnings or income and minus living and other incidental expenses. 22

We are of the opinion that the deductible living and other expense of the deceased may fairly and reasonably be fixed at P500.00 a month or P6,000.00 a year. In adjudicating the actual or compensatory damages, respondent court found that the deceased was
48 years old, in good health with a remaining productive life expectancy of 12 years, and then earning P24,000.00 a year. Using the gross annual income as the basis, and multiplying the same by 12 years, it accordingly awarded P288,000. Applying the
aforestated rule on computation based on the net earnings, said award must be, as it hereby is, rectified and reduced to P216,000.00. However, in accordance with prevailing jurisprudence, the death indemnity is hereby increased to P50,000.00. 23

WHEREFORE, subject to the above modifications, the challenged judgment and resolution of respondent Court of Appeals are hereby AFFIRMED in all other
respects.

SO ORDERED.

Melencio-Herrera (Chairperson), Paras, Padilla and Sarmiento, JJ., concur.