G.R. No.

L-16086             May 29, 1964

M. RUIZ HIGHWAY TRANSIT, INC. and MARTIN BUENA, petitioners, 
vs.
COURT OF APPEALS, GUILLERMO MONSERRAT and MARTA CONSIGNADO, respondents.
Appeal by certiorari from a decision of the Court of Appeals.
In the Laguna court of first instance, the spouses Guillermo Monserrat and Marta Consignado sued M. Ruiz Highway Transit,
Inc., and Martin Buena to recover damages for the death of their four-year old daughter Victoria.
In the morning of May 22, 1954, said child and her parents were paying passengers in a bus of defendant transportation company
driven by co-defendant Buena, bound for Antipolo, Rizal. In Sta. Rosa, Laguna, while the bus was running, a rear tire exploded,
blasting a hole in the very place where Victoria was standing in front of her mother. As a result, the child fell through the hole,
and died that same morning from injuries sustained in the fall.
The court of first instance dismissed the complaint on the ground that (1) the accident was not due to negligence of the carrier, but
was an act of God; and (2) even if negligence was attributable to defendants, their liability had been discharged, as evidenced by
Exhibits 2 and 3 quoted in the footnote. 1
On appeal by plaintiffs, the Court of Appeals reversed the judgment, upon the finding that (1) defendants failed to prove the
extraordinary diligence required of carriers; and (2) Exhibits 2 and 3 did not effect a waiver of plaintiffs' right to damages. Said
appellate court, therefore, required defendants to pay plaintiffs P6,000.00 as indemnity for the child's death; P2,000.00 as moral
damages and P500.00 as attorney's fees, with interest from the date of its decision, (minus the P150.00 that had been given to
plaintiff Guillermo Monserrat, thru Exhibit 3).
In their petition for review by certiorari, the carrier and the driver raise the following issues: (1) whether in a contract of carriage
breached by the passenger's death, his parents may be granted moral damages; and (2) whether the sum of P6,000.00 may be
awarded as death indemnity for a child passenger. In their brief, they pose the following questions in addition to the above issues;
(3) was there a contract of carriage between the deceased child and petitioner transportation company; (4) have petitioners
rebutted the presumption that they have been negligent; (5) was the bus crowded; (6) was the bus running fast when the tire
exploded; (7) what caused the bursting of the tire; (8) was the bus floor weak; (9) was the blow-out of the tire  caso fortuito; and
(10) was petitioners' liability cancelled by Exhibits 2 and 3?
The alleged lack of a contract of carriage between the deceased child and petitioner transportation company, if true, is a complete
defense against claimants' cause of action. However, the issue is now inarguable, it being partly factual, on which the appellate
court made its finding.
Respondents and the child were paying passengers in the bus; petitioners were duty bound to transport them, using the utmost
diligence of very cautious persons (Art. 1755, New Civil Code). Therein they failed. The child died because the floor of the bus
gave way; this reinforces the presumption that petitioners had neglected to provide a safe conveyance (Art. 1756, New Civil
Code). Evidence of the required extraordinary diligence was not introduced to rebut the presumption.
On the contrary, the appellate court found that the bus was overcrowded and overspeeding, and the floor thereof was weak —
persuasive indications of negligence; and reasoned out that the tire exploded due to one or a combination of the following: "The
tire was not strong and safe; the air pressure was not properly checked; the load was heavy; the excessive speed of the bus must
have overstrained the tire; and the high velocity generated heat in the tire which could have expanded the already compressed air
therein."2
Petitioners venture to guess that it was due either to accidental puncture by a sharp instrument, as a nail, or to latent defect in the
tire. Evidence should have been — but was not — presented to establish such defense.
Even conceding that the tire blow-out was accidental, we could still hold the carrier liable for failure to provide a safe floor in the
bus.
Exhibits 2 and 3 are not proof that petitioners have discharged their legal liability to claimants. What is expressed there is the
latter's belief — clearly erroneous — that petitioners are not liable to them and acknowledgment of the voluntary help extended by
petitioner transportation company. The belief is baseless. That respondents entertained such an ill-founded impression is not to be
wondered at. They are ignorant, illiterate, indigent, and, at the time they signed Exhibits 2 and 3, thoroughly confused and
distracted by the death of their child.
The minimum death indemnity is P3,0003, although this Court has in various instances granted P6,000.00. As for moral damages,
the carrier is liable therefor to the parents of a child who meets death while a passenger in any of the carrier's vehicles (Arts. 2206
and 1764, New Civil Code). Since respondents are indigents, and have litigated as paupers, they should be allowed attorney's fees
of P500.00
G.R. No. L-21486             May 14, 1966
LA MALLORCA and PAMPANGA BUS COMPANY, petitioner, 
vs.
VALENTIN DE JESUS, MANOLO TOLENTINO and COURT OF APPEALS, respondents.
La Mallorca and Pampanga Bus Company, Inc., commonly known as La Mallorca-Pambusco, filed this appeal by  certiorari from
the decision of the Court of Appeals which affirmed that rendered by the Court of First Instance of Bulacan in its civil case No.
2100, entitled "Valentin de Jesus and Manolo Tolentino vs. La Mallorca-Pambusco." The court a quo sentenced the defendant,
now petitioner, "to pay to plaintiffs the amount of P2,132.50 for actual damages; P14,400.00 as compensatory damages;
P10,000.00 to each plaintiff by way of moral damages; and P3,000.00 as counsel fees."
Two errors are attributed to the appellate Court: (1) "in sustaining the decision (of the court  a quo) holding that the petitioners
were liable for the accident which was caused by a blow-out of one of the tires of the bus and in not considering the same as  caso
fortuito," and (2) in holding petitioners liable for moral damages.
The suit arose by reason of the death of Lolita de Jesus, 20-year old daughter of Valentin de Jesus and wife of Manolo Tolentino,
in a head-on collision between petitioner's bus, on which she was a passenger, and a freight truck traveling in the opposite
direction, in a barrio in Marilao Bulacan, in the morning of October 8, 1959. The immediate cause of the collision was the fact
that the driver of the bus lost control of the wheel when its left front tire suddenly exploded.
Petitioner maintains that a tire blow-out is a fortuitous event and gives rise to no liability for negligence, citing the rulings of the
Court of Appeals in Rodriguez vs. Red Line Transportation Co., CA-G.R. No. 8136, December 29, 1954, and People vs. Palapad,
CA-G.R. No. 18480, June 27, 1958. These rulings, however, not only are not not binding on this Court but were based on
considerations quite different from those that obtain in the at bar. The appellate Court there made no findings of any specified acts
of negligence on the part of the defendants and confined itself to the question of whether or not a tire blow-out, by itself alone and
without a showing as to the causative factors, would generate liability. In the present case, the cause of the blow-out was known.
The inner tube of the left front tire, according to petitioner's own evidence and as found by the Court of Appeals "was pressed
between the inner circle of the left wheel and the rim which had slipped out of the wheel." This was, said Court correctly held, a
mechanical defect of the conveyance or a fault in its equipment which was easily discoverable if the bus had been subjected to a
more thorough, or rigid check-up before it took to the road that morning.
Then again both the trial court and the Court of Appeals found as a fact that the bus was running quite fast immediately before the
accident. Considering that the tire which exploded was not new — petitioner describes it as "hindi masyadong kalbo," or not so
very worn out — the plea of caso fortuito cannot be entertained.1äwphï1.ñët
The second issue raised by petitioner is already a settled one. In this jurisdiction moral damages are recoverable by reason of the
death of a passenger caused by the breach of contract of a common carrier, as provided in Article 1764, in relation to Article 2206,
of the Civil Code. These articles have been applied by this Court in a number of cases, among them Necesito, etc. vs. Paras, et al.,
L-10605-06, June 30, 1958; Mercado vs. Lira, L-13328-29, Sept. 29, 1961; Villa-Rey Transit vs. Bello, L-18957, April 23, 1963.
Wherefore, the judgment appealed from is affirmed, with costs against petitioners.
G.R. No. L-40948 June 29, 1976
GREGORIO ESTRADA, petitioner, 
vs.
HONORABLE FRANCISCO CONSOLACION, Judge of the Court of First Instance of Davao, Br. II, CORAZON RAMIREZ
UY, and LUCIO GALAURA, respondents.
Certiorari with prohibition to annul the Order, dated May 20, 1975, of the Court of First instance of Davao in Civil Case No. 8739,
which "decreed that defendants have judgment summarily against the plaintiff for such amount as may be found due them for
damages, to be ascertained by trial upon that issue alone on June 9,1975 at 8:30 a.m.".
On February 14, 1975, petitioner Gregorio Estrada filed a complaint for damages against private respondents Corazon Ramirez
Uy and Lucio Galaura, owner and driver, respectively, of an AC jeep, with Plate No. ZE-501, for breach of their obligations as a
common carrier, in view of the death of his wife while she was a passenger of the vehicle.
The complaint alleges that: on January 1, 1975, plaintiff's wife, Simeona Estrada, was a passenger of the AC Jeep, with Plate No.
ZE-501, owned and operated by defendant Corazon Ramirez Uy and driven by defendant Lucio Galaura, while said jeep was
cruising along Claro M. Recto Avenue, heading towards the direction of the Jones Circle, Davao City the driver (Lucio Galaura)
"without regard for the safety of plaintiff's wife who was among his passengers and without taking the necessary precaution" in
accordance with the situation, bumped a Ford pick-up truck; as a consequence of the incident, plaintiff's wife sustained a fractured
left humerus, fat (pulmonary) embolism and shock due to respiratory failure; she was brought to the San Pedro Hospital where she
died.
Plaintiff further alleged in his complaint that defendant Corazon Ramirez Uy, as owner of the AC jeep and a common carrier, in
violation of the contract of carriage, failed to safely conduct the plaintiff's wife to her place of destination by reason on her "failure
to exercise even the diligence of a good father of a family" and her "gross and evident bad faith, malevolence and wantonnes" in
discharging her obligation as a common carrier. Plaintiff, therefore, asked for actual damages, indemnification for the death of his
wife, moral damages and attorney's fees in specified amounts.
Defendants, in their answer, while admitting that plaintiff's wife was a passenger and that she died as a result of the accident,
alleged that the proximate and only cause of the accident was the negligence of third persons (the drivers, Danilo Ang and
Rodolfo D. Endino, of a Toyota pick-up truck bearing Plate No. T-RU-221, and a Ford pick-up truck with Plate No. TRU-420,
respectively) over whom defendant Corazon Ramirez Uy had no supervision and control, and who were then driving their
respective vehicles at a fast rate of speed and from different directions, as a result of which said vehicles collided, and because of
that collision the. Ford pick-up truck was deviated from its lane and hit the jeep of defendants. Defendants likewise set up a
counterclaim for damages by reason of plaintiff's institution of the clearly unfounded suit against them.
ON April 16, 1975, respondents filed a motion for summary judgment against plaintiff on the ground that there is no genuine issue
as to any material fact in the case except as to the amount of damages defendants are seeking from plaintiff by way of
counterclaim. In support of their motion for summary judgment, certain annexes to the answer were incorporated therein, as
follows:
(a) The sketch of the accident made by Traffic Investigator J. S. Formeloza of the Davao City Police Department, marked as
Annex "3" of the defendants' answer.
(b) Said investigator's affidavit detailing his findings upon investigation stating that the pick-up with plate No. T-RU-420 upon
reaching the intersection of Recto and Bonifacio Streets collided with the pick-up with plate No. T-RU-221, and that upon impact,
the latter pick-up collided with the jeep driven by Lucio Galaura that was coming from the opposite direction. (Annex "4" of
defendants' answer)
(c) The respective sworn statements of the drivers of the two pick-ups (Danilo Ang and Rodolfo Endino) taken by the Traffic
Division of the Davao City Police Department after the accident, marked as Annexes "5" and of the defendants' answer wherein
each driver respectively claimed that he exercised due care but attributed to the other negligence as the cause of the collision; and
(d) The sworn statement of defendant driver (Lucio Galaura) of said A. C. Jeep, likewise taken by the Traffic Division of the
Davao City Police Department detailing what he did in order to prevent or minimize damages to his vehicle and his passengers,
marked as Annex "7" of defendants' answer.
By means of the foregoing annexes, respondents sought to prove that they were relieved of any liability to petitioner inasmuch as
the accident which caused the death of petitioner's wife "resulted from the negligence of third persons over whom defendants had
no supervision or control, namely, the drivers of the two pick-up trucks which collided at the intersection of C. M. Recto Ave. and
Bonifacio St., Davao City, as a result of which collision, one of them was deviated from course to the lane where defendants' AC-
Jeep was then travelling, where it also collided with the latter."
Petitioner opposed the above motion, relying heavily on the presumption that in case of death of the passenger, the common
carrier is presumed "to have been at fault or to have acted negligently," 1 unless the carrier proves that he has observed
extraordinary diligence with due regard to all the circumstances, which movants failed to do.
Notwithstanding the opposition filed by the plaintiffs, respondent Judge issued the order of May 20, 1975, stating, in part, as
follows:
The Court has considered at length and thoroughly the pleadings in the action, the affidavits and other pertinent annexes (Annexes
1 to 6), of the movants, and has found that there is no genuine issue as to material fact and no controversial question of fact to be
submitted to the trial court, and has concluded that defendants are entitled to a judgment as a matter of law except as to the
amount of damages recoverable.
It is therefore ordered and decreed that defendants have judgment summarily against the plaintiff for such amount as may be
found due them for damages, to be ascertained by trial upon that issue alone on June 9, 1975 at 8:30 a.m.
A motion for reconsideration of the afore-quoted Order, on the ground that said Order, having failed to state clearly and distinctly
the facts and the law on which it is based, violated the Constitution and the Rules of Court, was denied "for lack of merit" on June
9, 1975, hence the present petition for certiorari with prohibition.
Pursuant to Section 2, Rule 34, of the Revised Rules, "A party against whom a claim, counterclaim, or crossclaim is asserted or a
declaratory relief is sought may, at any time, move with supporting affidavits for a summary judgment in his favor as to all or any
part thereof." 2 The defendant who believes that he is entitled to a judgment either on the pleadings or on the basis of extrinsic
facts established by affidavits or depositions may move for summary judgment in his favor.  3 In other words, when the moving
party is a defending party, his pleadings, depositions or affidavits must show that his defenses or denials are sufficient to defeat
the claimant's claim. The affidavit submitted by the party moving for summary judgment shall be by persons having personal
knowledge of the facts; it shall recite all material facts and show that there is no defense to the cause of action or that the cause of
action has no merits. 4This motion shall be served on the adverse party at least ten (10) days prior to the time specified in the
hearing. The adverse party may also, prior to said date, serve opposing affidavits. The opposing papers, including pleadings,
depositions, and affidavits must establish a genuine issue of fact in order to defeat a motion for summary judgment. After hearing,
the motion for summary judgment shall be granted if, on the basis of all the papers and proofs submitted, the cause of action or
defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party. The
motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact other than an issue as to the
amount or extent of the damages. 5 This Summary Judgment or Accelerated Judgment is a device for weeding out sham claims or
defenses at an early stage of the litigation, thereby avoiding the expense and loss of time involved in a trial.  6 The very object is
"to separate what is formal or pretended in denial or averment from what is genuine and substantial, so that only the latter may
subject a suitor to the burden of a trial. 7 In conducting the hearing, the purpose of the judge is not to try the issue, but merely to
determine whether there is a meritorious issue to be tried. Where a motion is made for summary judgment, such motion is not
directed to the pleadings and deals only with the question of whether there are triable issues of facts and where such issues exist
summary judgment must be denied. 8 Summary judgment should not be granted where it fairly appears that there is a triable issue
to be tried. 9 "The Court should not pass, on questions of credibility or weight of evidence, and that the summary judgment
procedure 'should not be perverted to the trial of disputed questions of fact upon affidavits". 10 The test, therefore, of a motion for
summary judgment iswhether the pleadings, affidavits and exhibits in support of the motions are sufficient to overcome the
opposing papers and to justify a finding as a matter of law that there is no defense to the action or the claim is clearly
meritorious. 11
In proceedings for summary judgment, the burden of proof is upon the plaintiff to prove the cause of action and to show that the
defense is interposed solely for the purpose of delay. 12 After plaintiff's burden has been discharged, defendant has the burden to
show facts sufficient to entitle him to defend. 13
Under the contract of carriage, private respondents assumed the express obligation to transport the wife of petitioner to her
destination safely and to observe extra ordinary diligence with due regard for all the circumstances, and that any injury suffered by
her in the course thereof, is immediately attributable to the negligence of the carrier. 14 To overcome such presumption, it must be
shown that the carrier had observed the required extraordinary diligence, 15 which means that the carrier must show the "utmost
diligence of very cautious persons * * * as far as human care and foresight can provide",  16 or that the accident was caused by a
fortuitous event. 17 In order to constitute a caso fortuito that would exempt a person from responsibility, it is necessary that (1) the
event must be independent of the human will; (2) the occurrence must render it impossible for the obligor to fulfill his obligation
in a normal manner; and (3) the obligor must be free of a concurrent or contributory fault or negligence. 18 It was precisely
because of the legal presumption that once a passenger in the course of travel is injured or does not reach his destination safely,
the carrier and the driver are presumed to be at fault, that private respondents submitted affidavits to prove that the accident which
resulted in the death of petitioner's wife was due to the fault or negligence of the drivers of the two pickup trucks over whom the
carrier had no supervision or control. Having, therefore, shown prima facie that the accident was due to a caso fortuito and that
the driver of the respondent was free of concurrent or contributory fault or negligence, it was incumbent upon petitioner to rebut
such proof. Having failed to do so, the defense of the carrier that the proximate cause of the accident was a  caso fourtuito remains
unrebuted. We are not unmindful that the issue as to whether a carrier used such reasonable precautions to avoid the accident as
would ordinarily be used by careful, prudent persons under like circumstances is a question essentially one of fact and, therefore,
ordinarily such issue must be decided at the trial. 19 But where, as in the case at bar, petitioner has not submitted opposing
affidavits to controvert private respondents' evidence that the driver of the passenger jeepney was free of contributory fault as he
stopped the jeepney to avoid the accident, but in spite of such precaution the accident occurred, respondent Judge did not,
therefore, act arbitrarily in declaring in his Order of May 20, 1975, that "there is no genuine issue to any material fact and no
controversial question of fact to be submitted to the trial court." This was, however, a mere interlocutory order directing that a
hearing be conducted for the purpose of ascertaining the amount or the assessment of damages which may be adjudged in favor of
the prevailing party. It is a determination of the court of a preliminary point or directing some steps in the proceedings, but not a
disposition of the merits. 20 "Upon the rendering of the assessment, the Court shall direct the entry forthwith of the appropriate
summary judgment." 21
In the absence of any findings of fact and conclusions of law, the aforesaid order of respondent Judge cannot be considered a
judgment. It has been held that "a trial court in granting summary judgment should file findings of fact and conclusion of law or a
memorandum opinion so as to disclose grounds upon which the trial court reached its determination."  22 In this jurisdiction,
pursuant to Section 9 of Article X of the Constitution and the procedural rules, all judgments determining the merits of cases
should state clearly and distinctly the facts and the law on which it is based. 23
There being no judgment, the present petition is, therefore, premature. Certainly, petitioner could move for the setting aside of the
aforesaid Order of May 20, 1975 by the presentation of opposing affidavits showing that, other than the issue as to the amount or
extent of damages, there is a genuine issue of fact on the carrier's liability.
ACCORDINGLY, the petition for certiorari with prohibition is dismissed, without special pronouncement.
G.R. No. 113003 October 17, 1997
ALBERTA YOBIDO and CRESENCIO YOBIDO, petitioners, 
vs.
COURT OF APPEALS, LENY TUMBOY, ARDEE TUMBOY and JASMIN TUMBOY, respondents.
In this petition for review on certiorari of the decision of the Court of Appeals, the issue is whether or not the explosion of a
newly installed tire of a passenger vehicle is a fortuitous event that exempts the carrier from liability for the death of a passenger.
On April 26, 1988, spouses Tito and Leny Tumboy and their minor children named Ardee and Jasmin, bearded at Mangagoy,
Surigao del Sur, a Yobido Liner bus bound for Davao City. Along Picop Road in Km. 17, Sta. Maria, Agusan del Sur, the left
front tire of the bus exploded. The bus fell into a ravine around three (3) feet from the road and struck a tree. The incident resulted
in the death of 28-year-old Tito Tumboy and physical injuries to other passengers.
On November 21, 1988, a complaint for breach of contract of carriage, damages and attorney's fees was filed by Leny and her
children against Alberta Yobido, the owner of the bus, and Cresencio Yobido, its driver, before the Regional Trial Court of Davao
City. When the defendants therein filed their answer to the complaint, they raised the affirmative defense of  caso fortuito. They
also filed a third-party complaint against Philippine Phoenix Surety and Insurance, Inc. This third-party defendant filed an answer
with compulsory counterclaim. At the pre-trial conference, the parties agreed to a stipulation of facts. 1
Upon a finding that the third party defendant was not liable under the insurance contract, the lower court dismissed the third party
complaint. No amicable settlement having been arrived at by the parties, trial on the merits ensued.
The plaintiffs asserted that violation of the contract of carriage between them and the defendants was brought about by the driver's
failure to exercise the diligence required of the carrier in transporting passengers safely to their place of destination. According to
Leny Tumboy, the bus left Mangagoy at 3:00 o'clock in the afternoon. The winding road it traversed was not cemented and was
wet due to the rain; it was rough with crushed rocks. The bus which was full of passengers had cargoes on top. Since it was
"running fast," she cautioned the driver to slow down but he merely stared at her through the mirror. At around 3:30 p.m., in
Trento, she heard something explode and immediately, the bus fell into a ravine.
For their part, the defendants tried to establish that the accident was due to a fortuitous event. Abundio Salce, who was the bus
conductor when the incident happened, testified that the 42-seater bus was not full as there were only 32 passengers, such that he
himself managed to get a seat. He added that the bus was running at a speed of "60 to 50" and that it was going slow because of
the zigzag road. He affirmed that the left front tire that exploded was a "brand new tire" that he mounted on the bus on April 21,
1988 or only five (5) days before the incident. The Yobido Liner secretary, Minerva Fernando, bought the new Goodyear tire from
Davao Toyo Parts on April 20, 1988 and she was present when it was mounted on the bus by Salce. She stated that all driver
applicants in Yobido Liner underwent actual driving tests before they were employed. Defendant Cresencio Yobido underwent
such test and submitted his professional driver's license and clearances from the barangay, the fiscal and the police.
On August 29, 1991, the lower court rendered a decision 2 dismissing the action for lack of merit. On the issue of whether or not
the tire blowout was a caso fortuito, it found that "the falling of the bus to the cliff was a result of no other outside factor than the
tire blow-out." It held that the ruling in the La Mallorca and Pampanga Bus Co. v. De Jesus3 that a tire blowout is "a mechanical
defect of the conveyance or a fault in its equipment which was easily discoverable if the bus had been subjected to a more
thorough or rigid check-up before it took to the road that morning" is inapplicable to this case. It reasoned out that in said case, it
was found that the blowout was caused by the established fact that the inner tube of the left front tire "was pressed between the
inner circle of the left wheel and the rim which had slipped out of the wheel." In this case, however, "the cause of the explosion
remains a mystery until at present." As such, the court added, the tire blowout was "a caso fortuito which is completely an
extraordinary circumstance independent of the will" of the defendants who should be relieved of "whatever liability the plaintiffs
may have suffered by reason of the explosion pursuant to Article 11744 of the Civil Code."
Dissatisfied, the plaintiffs appealed to the Court of Appeals. They ascribed to the lower court the following errors: (a) finding that
the tire blowout was a caso fortuito; (b) failing to hold that the defendants did not exercise utmost and/or extraordinary diligence
required of carriers under Article 1755 of the Civil Code, and (c) deciding the case contrary to the ruling in Juntilla
v. Fontanar,5 and Necesito v. Paras.6
On August 23, 1993, the Court of Appeals rendered the Decision7 reversing that of the lower court. It held that:
To Our mind, the explosion of the tire is not in itself a fortuitous event. The cause of the blow-out, if due to a factory defect,
improper mounting, excessive tire pressure, is not an unavoidable event. On the other hand, there may have been adverse
conditions on the road that were unforeseeable and/or inevitable, which could make the blow-out a caso fortuito. The fact that the
cause of the blow-out was not known does not relieve the carrier of liability. Owing to the statutory presumption of negligence
against the carrier and its obligation to exercise the utmost diligence of very cautious persons to carry the passenger safely as far
as human care and foresight can provide, it is the burden of the defendants to prove that the cause of the blow-out was a fortuitous
event. It is not incumbent upon the plaintiff to prove that the cause of the blow-out is not caso-fortuito.
Proving that the tire that exploded is a new Goodyear tire is not sufficient to discharge defendants' burden. As enunciated
in Necesito vs. Paras, the passenger has neither choice nor control over the carrier in the selection and use of its equipment, and
the good repute of the manufacturer will not necessarily relieve the carrier from liability.
Moreover, there is evidence that the bus was moving fast, and the road was wet and rough. The driver could have explained that
the blow-out that precipitated the accident that caused the death of Toto Tumboy could not have been prevented even if he had
exercised due care to avoid the same, but he was not presented as witness.
The Court of Appeals thus disposed of the appeal as follows:
WHEREFORE, the judgment of the court a quo is set aside and another one entered ordering defendants to pay plaintiffs the sum
of P50,000.00 for the death of Tito Tumboy, P30,000.00 in moral damages, and P7,000.00 for funeral and burial expenses.
SO ORDERED.
The defendants filed a motion for reconsideration of said decision which was denied on November 4, 1993 by the Court of
Appeals. Hence, the instant petition asserting the position that the tire blowout that caused the death of Tito Tumboy was a  caso
fortuito. Petitioners claim further that the Court of Appeals, in ruling contrary to that of the lower court, misapprehended facts
and, therefore, its findings of fact cannot be considered final which shall bind this Court. Hence, they pray that this Court review
the facts of the case.
The Court did re-examine the facts and evidence in this case because of the inapplicability of the established principle that the
factual findings of the Court of Appeals are final and may not be reviewed on appeal by this Court. This general principle is
subject to exceptions such as the one present in this case, namely, that the lower court and the Court of Appeals arrived at diverse
factual findings.8 However, upon such re-examination, we found no reason to overturn the findings and conclusions of the Court
of Appeals.
As a rule, when a passenger boards a common carrier, he takes the risks incidental to the mode of travel he has taken. After all, a
carrier is not an insurer of the safety of its passengers and is not bound absolutely and at all events to carry them safely and
without injury.9 However, when a passenger is injured or dies while travelling, the law presumes that the common carrier is
negligent. Thus, the Civil Code provides:
Art. 1756. In case of death 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 1755 provides that "(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." Accordingly, in  culpa
contractual, once a passenger dies or is injured, the carrier is presumed to have been at fault or to have acted negligently. This
disputable presumption may only be overcome by evidence that the carrier had observed extraordinary diligence as prescribed by
Articles 1733,10 1755 and 1756 of the Civil Code or that the death or injury of the passenger was due to a fortuitous
event.11 Consequently, the court need not make an express finding of fault or negligence on the part of the carrier to hold it
responsible for damages sought by the passenger. 12
In view of the foregoing, petitioners' contention that they should be exempt from liability because the tire blowout was no more
than a fortuitous event that could not have been foreseen, must fail. A fortuitous event is possessed of the following
characteristics: (a) the cause of the unforeseen and unexpected occurrence, or the failure of the debtor to comply with his
obligations, must be independent of human will; (b) 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; (c) the occurrence must be such as to render it impossible for the debtor to
fulfill his obligation in a normal manner; and (d) the obliger must be free from any participation in the aggravation of the injury
resulting to the creditor. 13 As Article 1174 provides, no person shall be responsible for a fortuitous event which could not be
foreseen, or which, though foreseen, was inevitable. In other words, there must be an entire exclusion of human agency from the
cause of injury or loss.14
Under the circumstances of this case, the explosion of the new tire may not be considered a fortuitous event. There are human
factors involved in the situation. The fact that the tire was new did not imply that it was entirely free from manufacturing defects
or that it was properly mounted on the vehicle. Neither may the fact that the tire bought and used in the vehicle is of a brand name
noted for quality, resulting in the conclusion that it could not explode within five days' use. Be that as it may, it is settled that an
accident caused either by defects in the automobile or through the negligence of its driver is not a caso fortuito that would exempt
the carrier from liability for damages.15
Moreover, a common carrier may not be absolved from liability in case of force majeure or fortuitous event alone. The common
carrier must still prove that it was not negligent in causing the death or injury resulting from an accident. 16 This Court has had
occasion to state:
While it may be true that the tire that blew-up was still good because the grooves of the tire were still visible, this fact alone does
not make the explosion of the tire a fortuitous event. No evidence was presented to show that the accident was due to adverse road
conditions or that precautions were taken by the jeepney driver to compensate for any conditions liable to cause accidents. The
sudden blowing-up, therefore, could have been caused by too much air pressure injected into the tire coupled by the fact that the
jeepney was overloaded and speeding at the time of the accident.17
It is interesting to note that petitioners proved through the bus conductor, Salce, that the bus was running at "60-50" kilometers per
hour only or within the prescribed lawful speed limit. However, they failed to rebut the testimony of Leny Tumboy that the bus
was running so fast that she cautioned the driver to slow down. These contradictory facts must, therefore, be resolved in favor of
liability in view of the presumption of negligence of the carrier in the law. Coupled with this is the established condition of the
road — rough, winding and wet due to the rain. It was incumbent upon the defense to establish that it took precautionary measures
considering partially dangerous condition of the road. As stated above, proof that the tire was new and of good quality is not
sufficient proof that it was not negligent. Petitioners should have shown that it undertook extraordinary diligence in the care of its
carrier, such as conducting daily routinary check-ups of the vehicle's parts. As the late Justice J.B.L. Reyes said:
It may be impracticable, as appellee argues, to require of carriers to test the strength of each and every part of its vehicles before
each trip; but we are of the opinion that a due regard for the carrier's obligations toward the traveling public demands adequate
periodical tests to determine the condition and strength of those vehicle portions the failure of which may endanger the safety of
the passengers.18
Having failed to discharge its duty to overthrow the presumption of negligence with clear and convincing evidence, petitioners are
hereby held liable for damages. Article 176419 in relation to Article 220620 of the Civil Code prescribes the amount of at least three
thousand pesos as damages for the death of a passenger. Under prevailing jurisprudence, the award of damages under Article 2206
has been increased to fifty thousand pesos (P50,000.00).21
Moral damages are generally not recoverable in culpa contractual except when bad faith had been proven. However, the same
damages may be recovered when breach of contract of carriage results in the death of a passenger, 22 as in this case. Exemplary
damages, awarded by way of example or correction for the public good when moral damages are awarded, 23 may likewise be
recovered in contractual obligations if the defendant acted in wanton, fraudulent, reckless, oppressive, or malevolent
manner.24 Because petitioners failed to exercise the extraordinary diligence required of a common carrier, which resulted in the
death of Tito Tumboy, it is deemed to have acted recklessly. 25 As such, private respondents shall be entitled to exemplary
damages.
WHEREFORE, the Decision of the Court of Appeals is hereby AFFIRMED subject to the modification that petitioners shall, in
addition to the monetary awards therein, be liable for the award of exemplary damages in the amount of P20,000.00. Costs against
petitioners.
SO ORDERED.
G.R. No. 95582 October 7, 1991
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.
On May 13, 1985, private respondents filed a complaint 1 for damages against petitioners for the 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
Not satisfied therewith, private respondents appealed to the Court of Appeals which, in a decision  3
 in CA-G.R. CV No. 19504 promulgated on August 14, 1990, 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
Petitioners' motion for reconsideration was denied by the Court of Appeals in its resolution dated October 4, 1990,  hence this
petition with the central issue herein being 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. 
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 proper 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:

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
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 An
ordinarily prudent person would have made the 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
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 A common 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
thereof. 20 In fact, it was only after the refrigerator was unloaded that one of the passengers thought of sending somebody to the
house of the victim, as shown by the testimony of Virginia Abalos again, to wit:
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. 

G.R. No. 84458 November 6, 1989

ABOITIZ SHIPPING CORPORATION, petitioner, 
vs.
HON. COURT OF APPEALS, ELEVENTH DIVISION, LUCILA C. VIANA, SPS. ANTONIO VIANA and GORGONIA
VIANA, and PIONEER STEVEDORING CORPORATION, respondents.
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:
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; P150,000.00 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.
The undisputed facts of the case, as found by the court a quo and adopted by respondent court, are as follows: .
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.
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:
WHEREFORE, judgment is hereby rendered in favor of the plantiffs:
(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; F 5,000.00, 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.
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.
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:
WHEREFORE, judgment is hereby modified insofar as third party defendant Pioneer Stevedoring Corporation is concerned
rendered in favor of the plaintiffs-,:
(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.
Not satisfied with the modified judgment of the trial court, Aboitiz appealed the same to respondent Court of Appeals which
affirmed the findings of of the trial court except as to the amount of damages awarded to the Vianas.
Hence, this petition wherein petitioner Aboitiz postulates that respondent court erred:
(A) In holding that the doctrine laid down by this honorable Court in La Mallorca vs. 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 Appears 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 e and he consequently ceased to be a passenger. Corollarily, it insists that the doctrine in La Mallorca
vs. 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:
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.
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.
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, 18which, 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.
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.
G.R. No. L-10605             June 30, 1958
PRECILLANO NECESITO, ETC., plaintiff-appellant, 
vs.
NATIVIDAD PARAS, ET AL., defendants-appellees.
These cases involve ex contractu against the owners and operators of the common carrier known as Philippine Rabbit Bus Lines,
filed by one passenger, and the heirs of another, who injured as a result of the fall into a river of the vehicle in which they were
riding.
In the morning of January 28, 1964, Severina Garces and her one-year old son, Precillano Necesito, carrying vegetables, boarded
passenger auto truck or bus No. 199 of the Philippine Rabbit Bus Lines at Agno, Pangasinan. The passenger truck, driven by
Francisco Bandonell, then proceeded on its regular run from Agno to Manila. After passing Mangatarem, Pangasinan truck No.
199 entered a wooden bridge, but the front wheels swerved to the right; the driver lost control, and after wrecking the bridge's
wooden rails, the truck fell on its right side into a creek where water was breast deep. The mother, Severina Garces, was drowned;
the son, Precillano Necesito, was injured, suffering abrasions and fracture of the left femur. He was brought to the Provincial
Hospital at Dagupan, where the fracture was set but with fragments one centimeter out of line. The money, wrist watch and cargo
of vegetables were lost.
Two actions for damages and attorney's fees totalling over P85,000 having been filed in the Court of First Instance of Tarlac
(Cases Nos. 908 and 909) against the carrier, the latter 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 equipment and appliances in use by the carrier. Having no privity whatever with the manufacturer or vendor of the
defective equipment, the passenger has no remedy against him, while the carrier usually has. It is but logical, therefore, that the
carrier, while not in insurer of the safety of his passengers, should nevertheless be held to answer for the flaws of his equipment if
such flaws were at all discoverable. Thus Hannen, J., in Francis vs. Cockrell, LR 5 Q. B. 184, said:
In the ordinary course of things, the passenger does not know whether the carrier has himself manufactured the means of carriage,
or contracted with someone else for its manufacture. If the carrier has contracted with someone else the passenger does not usually
know who that person is, and in no case has he any share in the selection. The liability of the manufacturer must depend on the
terms of the contract between him and the carrier, of which the passenger has no knowledge, and over which he can have no
control, while the carrier can introduce what stipulations and take what securities he may think proper. For injury resulting to the
carrier himself by the manufacturer's want of care, the carrier has a remedy against the manufacturer; but the passenger has no
remedy against the manufacturer for damage arising from a mere breach of contract with the carrier . . . . Unless, therefore, the
presumed intention of the parties be that the passenger should, in the event of his being injured by the breach of the manufacturer's
contract, of which he has no knowledge, be without remedy, the only way in which effect can be given to a different intention is
by supposing that the carrier is to be responsible to the passenger, and to look for his indemnity to the person whom he selected
and whose breach of contract has caused the mischief. (29 ALR 789)
And in the leading case of Morgan vs. Chesapeake & O. R. Co. 15 LRA (NS) 790, 16 Ann. Cas. 608, the Court, in holding the
carrier responsible for damages caused by the fracture of a car axle, due to a "sand hole" in the course of moulding the axle, made
the following observations.
The carrier, in consideration of certain well-known and highly valuable rights granted to it by the public, undertakes certain duties
toward the public, among them being to provide itself with suitable and safe cars and vehicles in which carry the traveling public.
There is no such duty on the manufacturer of the cars. There is no reciprocal legal relation between him and the public in this
respect. When the carrier elects to have another build its cars, it ought not to be absolved by that facts from its duty to the public to
furnish safe cars. The carrier cannot lessen its responsibility by shifting its undertaking to another's shoulders. Its duty to furnish
safe cars is side by side with its duty to furnish safe track, and to operate them in a safe manner. None of its duties in these
respects can be sublet so 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 either the manufacturer or the carrier at
any time tested the steering knuckle to ascertain whether its strength was up to standard, or that it had no hidden flaws would
impair that strength. And yet the carrier must have been aware of the critical importance of the knuckle's resistance; that its failure
or breakage would result in loss of balance and steering control of the bus, with disastrous effects upon the passengers. No
argument is required to establish that a visual inspection could not directly determine whether the resistance of this critically
important part was not impaired. Nor has it been shown that the weakening of the knuckle was impossible to detect by any known
test; on the contrary, there is testimony that it could be detected. We are satisfied that the periodical visual inspection of the
steering knuckle as practiced by the carrier's agents did not measure up to the required legal standard of "utmost diligence of very
cautious persons" — "as far as human care and foresight can provide", and therefore that the knuckle's failure can not be
considered a fortuitous event that exempts the carrier from responsibility (Lasam vs. Smith, 45 Phil. 657; Son vs. Cebu Autobus
Co., 94 Phil., 892.)
It may be impracticable, as appellee argues, to require of carriers to test the strength of each and every part of its vehicles before
each trip; but we are of the opinion that a due regard for the carrier's obligations toward the traveling public demands adequate
periodical tests to determine the condition and strength of those vehicle portions the failure of which may endanger the safe of the
passengers.
As to the damages suffered by the plaintiffs, we agree with appellee that no allowance may be made for moral damages, since
under Article 2220 of the new Civil Code, in case of suits for breach of contract, moral damages are recoverable only where the
defendant acted fraudulently or in bad faith, and there is none in the case before us. As to exemplary damages, the carrier has not
acted in a "wanton, fraudulent, reckless, oppressive or malevolent manner" to warrant their award. Hence, we believe that for the
minor Precillano Necesito (G. R. No. L-10605), an indemnity of P5,000 would be adequate for the abrasions and fracture of the
femur, including medical and hospitalization expenses, there being no evidence that there would be any permanent impairment of
his faculties or bodily functions, beyond the lack of anatomical symmetry. As for the death of Severina Garces (G. R. No. L-
10606) who was 33 years old, with seven minor children when she died, her heirs are obviously entitled to indemnity not only for
the incidental loses of property (cash, wrist watch and merchandise) worth P394 that she carried at the time of the accident and for
the burial expenses of P490, but also for the loss of her earnings (shown to average P120 a month) and for the deprivation of her
protection, guidance and company. In our judgment, an award of P15,000 would be adequate (cf Alcantara vs. Surro, 49 Off. Gaz.
2769; 93 Phil., 472).
The low income of the plaintiffs-appellants makes an award for attorney's fees just and equitable (Civil Code, Art. 2208, par. 11).
Considering that he two cases filed were tried jointly, a fee of P3,500 would be reasonable.
In view of the foregoing, the decision appealed from is reversed, and the defendants-appellees are sentenced to indemnify the
plaintiffs-appellants in the following amounts: P5,000 to Precillano Necesito, and P15,000 to the heirs of the deceased Severina
Garces, plus P3,500 by way of attorney's fees and litigation expenses. Costs against defendants-appellees. So ordered.
Paras, C. J., Bengzon, Reyes, A., Bautista Angelo, Concepcion, and Endencia, JJ., concur.
Felix, J., concurs in the result.
RESOLUTION
September 11, 1958
REYES, J. B. L., J.:
Defendants-appellees have Submitted a motion asking this Court to reconsider its decision of June 30, 1958, and that the same be
modified with respect to (1) its holding the carrier liable for the breakage of the steering knuckle that caused the autobus No. 199
to overturn, whereby the passengers riding in it were injured; (2) the damages awarded, that appellees argue to be excessive; and
(3) the award of attorneys' fees.
(1) The rule prevailing in this jurisdiction as established in previous decisions of this Court, cited in our main opinion, is that a
carrier is liable to its passengers for damages caused by mechanical defects of the conveyance. As early as 1924, in Lasam vs.
Smith, 45 Phil. 659 this Court ruled:
As far as the record shows, the accident was caused either by defects in the automobile or else through the negligence of its
driver. That is not caso fortuito.
And in Son vs. Cebu Autobus Company, 94 Phil., 892, this Court held a common carrier liable in damages to passenger for injuries
cause by an accident due to the breakage of a faulty drag-link spring.
It can be seen that while the courts of the United States are at variance on the question of a carrier's liability for latent mechanical
defects, the rule in this jurisdiction has been consistent in holding the carrier responsible. This Court has quoted from American
and English decisions, not because it felt bound to follow the same, but merely in approval of the rationale of the rule as expressed
therein, since the previous Philippine cases did not enlarge on the ideas underlying the doctrine established thereby.
The new evidence sought to be introduced do not warrant the grant of a new trial, since the proposed proof available when the
original trial was held. Said evidence is not newly discovered.
(2) With regard to the indemnity awarded to the child Precilliano Necesito, the injuries suffered by him are incapable of accurate
pecuniary estimation, particularly because the full effect of the injury is not ascertainable immediately. This uncertainty, however,
does not preclude the right to an indemnity, since the injury is patent and not denied (Civil Code, Art. 2224). The reasons behind
this award are expounded by the Code Commission in its report:
There are cases where from the nature of the case, definite proof of pecuniary loss cannot be offered, although the court is
convinced that there has been such loss. For instance, injury to one's commercial credit or to the goodwill of a business firm is
often hard to show with certainty in terms of money. Should damages be denied for that reason? The judge should be empowered
to calculate moderate damages in such cases, rather than that the plaintiff should suffer, without redress, from the defendant's
wrongful act." (Report of the Code Commission, p. 75)
In awarding to the heirs of the deceased Severina Garces an indemnity for the loss of her "guidance, protection and company,"
although it is but moral damage, the Court took into account that the case of a passenger who dies in the course of an accident, due
to the carrier's negligence constitutes an exception to the general rule. While, as pointed out in the main decision, under Article
2220 of the new Civil Code there can be no recovery of moral damages for a breach of contract in the absence of fraud malice or
bad faith, the case of a violation of the contract of carriage leading to a passenger's death escapes this general rule, in view of
Article 1764 in connection with Article 2206, No. 3 of the new Civil Code.
ART. 1764. Damages in cases comprised in this Section shall be awarded in accordance with Title XVIII of this Book, concerning
Damages. Article 2206 shall also apply to the death of a passenger caused by the breach of contract by a comman carrier. ART.
2206. . . .
(3) The spouse, legitimate and eligimate descendants and ascendants of the deceased may demand moral damages for mental
anguish by reason of the death of the deceased.
Being a special rule limited to cases of fatal injuries, these articles prevail over the general rule of Art. 2220. Special provisions
control general ones (Lichauco & Co. vs. Apostol, 44 Phil. 138; Sancio vs. Lizarraga, 55 Phil. 601).
It thus appears that under the new Civil Code, in case of accident due to a carrier's negligence, the heirs of a deceased passenger
may recover moral damages, even though a passenger who is injured, but manages to survive, is not entitled to them. There is,
therefore, no conflict between our main decision in the instant case and that of Cachero vs. Manila Yellow Taxi Cab Co., 101
Phil., 523, where the passenger suffered injuries, but did not lose his life.
(3) In the Cachero case this Court disallowed attorneys' fees to the injured plaintiff because the litigation arose out of his
exaggerated and unreasonable deeds for an indemnity that was out of proportion with the compensatory damages to which he was
solely entitled. But in the present case, plaintiffs' original claims can not be deemed a priori wholly unreasonable, since they had a
right to indemnity for moral damages besides compensatory ones, and moral damages are not determined by set and invariable
bounds.
Neither does the fact that the contract between the passengers and their counsel was on a contingent basis affect the former's right
to counsel fees. As pointed out for appellants, the Court's award is an party and not to counsel. A litigant who improvidently
stipulate higher counsel fees than those to which he is lawfully entitled, does not for that reason earn the right to a larger
indemnity; but, by parity of reasoning, he should not be deprived of counsel fees if by law he is entitled to recover them.
We find no reason to alter the main decision heretofore rendered. Ultimately, the position taken by this Court is that a common
carrier's contract is not to be regarded as a game of chance wherein the passenger stakes his limb and life against the carrier's
property and profits.
Wherefore, the motion for reconsideration is hereby denied. So ordered.
.
G.R. No. L-34597 November 5, 1982 
ROSITO Z. BACARRO, WILLIAM SEVILLA, and FELARIO MONTEFALCON, petitioners, 
vs.GERUNDIO B. CASTAÑO, and the COURT OF APPEALS, respondents.
Appeal taken by petitioners from a decision of the Court of Appeals, affirming that of the Court of First Instance of Misamis
Occidental, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered, ordering the defendants to jointly and severally pay to the plaintiff the sum of (1)
P973.10 for medical treatment and hospitalization; (2) P840.20 for loss of salary during treatment; and (3) P2,000.00 for partial
permanent deformity, with costs against the defendants.
The facts are set forth in the decision of the Court of Appeals, from which We quote:
... In the afternoon of April 1, 1960, he (appellee) boarded the said jeep as a paying passenger at Oroquieta bound for Jimenez,
Misamis Occidental. It was then fined to capacity, with twelve (12) passengers in all. 'The jeep was running quite fast and the jeep
while approaching the (Sumasap) bridge there was a cargo truck which blew its horn for a right of way. The jeep gave way but did
not change speed. ... When the jeep gave way it turned to the right and continued running with the same speed. In so doing ...the
driver was not able to return the jeep to the proper place ... instead, it ran obliquely towards the canal; that is why, we fell to the
ditch. ... When the jeep was running in the side of the road for few meters, naturally, the jeep was already inclined and two
passengers beside me were the ones who pushed me. I was pushed by the two passengers beside me; that is why, when I was
clinging, my leg and half of my body were outside the jeep when it reached the canal. ... My right leg was sandwiched by the body
of the jeep and the right side of the ditch. ... My right leg was broken.' He was rushed to the Saint Mary's Hospital where he stayed
for about two (2) months. 'My right leg is now shorter by one and one-half inches causing me to use specially made shoes. ... I
could not squat for a long time; I could not kneel for a long time; and I could not even sit for a long time because I will suffer
cramp. ... With my three fingers I am still uneasy with my three fingers in my right hand. There is a feeling of numbness with my
three fingers even right now.
xxx xxx xxx
From appellee's version just set out, it appears that after he boarded the jeep in question at Oroquieta, it was driven by defendant
Montefalcon at around forty (40) kilometers per hour bound for Jimenez; that while approaching Sumasap Bridge at the said
speed, a cargo truck coming from behind blew its horn to signal its intention to overtake the jeep; that the latter, without changing
its speed, gave way by swerving to the right, such that both vehicles ran side by side for a distance of around twenty (20) meters,
and that thereafter as the jeep was left behind, its driver was unable to return it to its former lane and instead it obliquely or
diagonally ran down an inclined terrain towards the right until it fell into a ditch pinning down and crushing appellee's right leg in
the process.Throwing the blame for this accident on the driver of the cargo truck, appellants, in turn, state the facts to be as
follows: In the afternoon of April 1, 1960, plaintiff Gerundio Castaño boarded the said jeepney at Oroquieta bound for Jimenez,
Misamis occidental. While said jeepney was negotiating the upgrade approach of the Sumasap Bridge at Jimenez, Misamis
Occidental and at a distance of about 44 meters therefrom, a cargo truck, owned and operated by a certain Te Tiong alias
Chinggim, then driven by Nicostrato Digal, a person not duly licensed to drive motor vehicles, overtook the jeepney so closely
that in the process of overtaking sideswiped the jeepney, hitting the reserve tire placed at the left side of the jeepney with the hinge
or bolt of the siding of the cargo truck, causing the jeepney to swerve from its course and after running 14 meters from the road it
finally fell into the canal. The right side of the jeep fell on the right leg of the plaintiff-appellee, crushing said leg against the ditch
resulting in the injury to plaintiff-appellee consisting of a broken right thigh.
and take the following stand: 'The main defense of defendants appellants is anchored on the fact that the jeepney was sideswiped
by the overtaking cargo truck' (Appellants' Brief, pp. 3-4, 7).
It must be admitted, out of candor, that there is evidence of the sideswiping relied upon by appellants. ....
This appeal by certiorari to review the decision of respondent Court of Appeals asserts that the latter decided questions of
substance which are contrary to law and the approved decisions of this Court. Petitioners alleged that respondent Court of Appeals
erred (1) in finding contributory negligence on the part of jeepney driver appellant Montefalcon for having raced with the
overtaking cargo truck to the bridge instead of slackening its speed, when the person solely responsible for the sideswiping is the
unlicensed driver of the overtaking cargo truck; (2) in finding the jeepney driver not to have exercised extraordinary diligence,
human care, foresight and utmost. diligence of very cautious persons, when the diligence required pursuant to Article 1763 of the
New Civil Code is only that of a good father of a family since the injuries were caused by the negligence of a stranger; and (3) in
not considering that appellants were freed from any liability since the accident was due to fortuitous event - the sideswiping of the
jeepney by the overtaking cargo truck.
We are not persuaded. The fact is, petitioner-driver Montefalcon did not slacken his speed but instead continued to run the jeep at
about forty (40) kilometers per hour even at the time the overtaking cargo truck was running side by side for about twenty (20)
meters and at which time he even shouted to the driver of the truck. Hereunder is the testimony of private respondent Gerundio B.
Castaño on this point:
Thus, had Montefalcon slackened the speed of the jeep at the time the truck was overtaking it, instead of running side by side with
the cargo truck, there would have been no contact and accident. He should have foreseen that at the speed he was running, the
vehicles were getting nearer the bridge and as the road was getting narrower the truck would be to close to the jeep and would
eventually sideswiped it. Otherwise stated, he should have slackened his jeep when he swerved it to the right to give way to the
truck because the two vehicles could not cross the bridge at the same time.
The second assigned error is centered on the alleged failure on the part of the jeepney driver to exercise extraordinary diligence,
human care, foresight and utmost diligence of a very cautious person, when the diligence required pursuant to Article 1763 of the
Civil Code is only that of a good father of a family. Petitioners contend that the proximate cause of the accident was the
negligence of the driver of the truck. However, the fact is, there was a contract of carriage between the private respondent and the
herein petitioners in which case the Court of Appeals correctly applied Articles 1733, 1755 and 1766 of the Civil Code which
require the exercise of extraordinary diligence on the part of petitioner Montefalcon.
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. 1766. In all matters not regulated by this Code, the rights and obligations of common carriers shall be governed by the Code
of Commerce and by special laws.
Indeed, the hazards of modern transportation demand extraordinary diligence. A common carrier is vested with public interest.
Under the new Civil Code, instead of being required to exercise mere ordinary diligence a common carrier is exhorted to carry the
passengers safely as far as human care and foresight can provide "using the utmost diligence of very cautious persons." (Article
1755). Once a passenger in the course of travel is injured, or does not reach his destination safely, the carrier and driver are
presumed to be at fault.
The third assigned error of the petitioners would find fault upon respondent court in not freeing petitioners from any liability,
since the accident was due to a fortuitous event. But, We repeat that the alleged fortuitous event in this case - the sideswiping of
the jeepney by the cargo truck, was something which could have been avoided considering the narrowness of the Sumasap Bridge
which was not wide enough to admit two vehicles. As found by the Court of Appeals, Montefalcon contributed to the occurrence
of the mishap.
WHEREFORE, the decision of the respondent Court of Appeals, dated September 30,1971, is hereby AFFIRMED. With costs.