G.R. No.

L-22143 April 30, 1966

LAGUNA TAYABAS BUS CO., petitioner,

vs.
ANTONIO TIONGSON and FELICITAS J. TIONGSON, respondents.

Ozaeta, Gibbs and Ozaeta and D. E. de Lara and Associates for petitioner.
Ejercito, Velilla and Balonkita for respondents.

DIZON, J.:

This is an appeal by certiorari taken by Laguna Tayabas Bus Co., a common carrier engaged in
the land transportation business in the southern Tagalog provinces, to review the decision of the
Court of Appeals affirming that of the Court of First Instance of Bulacan in Civil Case No. 1760
entitled "Antonio Tiongson, Paz C. Tiongson and Felicitas J. Tiongson, plaintiffs, vs. Laguna
Tayabas Bus Company, defendant" sentencing the latter to pay the former the sum of
P50,000.00 by way of actual, compensatory and moral damages, and the further sum of
P5,000.00 as attorney's fees and costs.

On June 3, 1958, about two kilometers past the poblacion of Bay, Laguna, petitioner's LTB Bus
No. 204, coming from San Pablo City towards Manila, collided with a 7-Up delivery truck coming
from the opposite direction. As a consequence the bus fell on its right side on the shoulder of
the road resulting in injuries to many of its passengers and the death of Ricardo C. Tiongson
and a woman passenger. Both drivers were prosecuted for double homicide, multiple serious
physical injuries and damage to property, thru reckless imprudence, in the Court of First
Instance of Laguna, but a separate action for damages for breach of contract of carriage was
filed in the Court of First Instance of Bulacan (Civil Case No. 1760) by respondents herein, as
heirs of the deceased Ricardo C. Tiongson, against petitioner.

In its answer to the complaint, petitioner alleged that it had observed utmost diligence in
operating Bus No. 204 on June 3, 1958; that its driver could not have prevented or avoided the
accident which was fortuitous insofar as it was concerned; and that the proximate cause of the
death of passenger Tiongson "as the negligence and imprudence of one Porvenir Aralar
Barretto and his employer Santiago Syjuco, Inc. and/or Seven-Up Bottling Company of the
Philippines, or, in the alternative, the gross negligence of the highway authorities in failing to
keep and maintain the national roads in good repair at all times and safe condition for all
motorists".

Finding petitioner's driver to blame for the accident, the trial court, on December 28, 1959,
rendered judgment as follows:

Wherefore, judgment is hereby rendered sentencing defendant to pay to plaintiffs the

sum of P50,000.00 by way of actual, compensatory and moral damages, and the further
sum of P5,000.00 as counsel fees, with costs against defendant.

Both parties appealed to the Court of Appeals — petitioner from the portion thereof holding it
liable for damages for breach of contract, and respondents from the portion determining the
amount of damages awarded to them.
Meanwhile, on July 31, 1961, the Court of First Instance of Laguna, in Criminal Case No. B-
3311, acquitted Claro Samonte, petitioner's driver, of the offense charged mentioned heretofore,
on the ground of reasonable doubt. Upon the other hand, on October 28, 1963, the Court of
Appeals rendered the decision appealed from.

In its first assignment of error, petitioner contends that the Court of Appeals erred in affirming
instead of reversing the findings made by the trial court to the effect that the driver of the LTB
bus and not the driver of the 7-Up truck was to blame for the accident in question.

The following are the pertinent facts found established by the trial court:

About two kilometers past the poblacion of Bay, Laguna, defendant's LTB Bus No. 204
collided with the 7-Up delivery truck which came from the opposite direction, that is, from
Manila towards San Pablo City. As a result of the collision, defendant's bus fell on the
right side on the shoulder of the road, which resulted in injuries to many passengers, and
the death of Ricardo C. Tiongson and a woman passenger. ... Having been notified of
the collision, Gerardo Dilla, chief of police of Bay, Laguna, immediately proceeded to the
scene thereof. The Bay Chief of Police made an on-the-spot investigation and prepared
a sketch of the spot where the collision occurred. From the findings of the chief of police,
it appears that the road had an asphalted pavement, 5-1/2 meters wide, and shoulders
on both sides, the shoulder going towards the poblacion of Bay being 65 cm. wide and
the one on the opposite side having a width of 70 cm. The chief of police also saw on the
asphalted pavement a somewhat rectangular depression, 3 meters long, 2 meters wide,
and 12 cm. deep, on the left side of the road going north, that is, going towards Manila . .
...

Perhaps of most value to plaintiffs is the testimony of Rufo Reaño, a farmer and a barrio
lieutenant of Tabon, Bay, Laguna. The substance of Rufo's testimony is that ... he saw
two LTB trucks, following each other, from south to north at a distance of about 30
meters from each other; that he also saw a 7-Up truck going from north to south; that the
leading LTB bus (presumably Bus No. 204) was travelling faster than the 7-Up truck; that
suddenly, he heard the impact of a collision between the leading LTB bus and the 7-Up
truck; that as a result of the collision, the LTB bus fell on its side while the 7-Up truck
turned crosswise on the road; . . . .

Samonte testified that ... while he was in barrio Tabon, Bay, Laguna, at about 5:45 that
same afternoon, he first saw the 7-Up truck from a distance of about 150 meters; that he
was then running at about 30 kilometers per hour; that upon sighting the 7-Up truck, he
slackened his speed and placed his bus on the right side of the road; that when the
distance between his bus and the 7-Up truck had been reduced to about ten (10) meters
and foreseeing that he could not avoid being hit by the truck which had swerved to the
left, he applied his brakes and maneuvered his bus towards the right side of the road so
much so that the right wheels were already on the shoulder of the road; but that before
he could come to a complete stop, at a speed then of only 10 kilometers per hour, the
left front mudguard of his bus was hit by the 7-Up truck.

After thus evaluating the prosecution evidence and the testimony of petitioner's witnesses,
namely, Claro Samonte, its driver, Ernesto Alcantara, its conductor, and Teotimo de Mesa, its
Chief Clerk, the trial court said:
In moving forward to a conclusion in this case, certain general principles must be borne
in mind, namely: (1) the liability of a carrier is contractual and arises upon its breach of
the obligation, and there is a breach if it fails to exercise extraordinary diligence
according to all the circumstances of each case; (2) a carrier is obliged to carry its
passengers with the utmost diligence of a very cautious person, having due regard for all
the circumstances; (3) a carrier is presumed to be at fault or to have acted negligently in
case of death of, or injury to its passengers, it being its duty to prove that it exercised
extra-ordinary diligence; (4) a carrier is not an insurer against all risks of travel (Isaac vs.
A.L. Ammen Transportation Co., Inc., G.R. No. L-9671, August 28, 1957); and (5) that a
carrier shall not be responsible for events which could not be foreseen, or which, though
foreseen, were inevitable (Alfaro vs. Ayson, 54 O.G. 7922).

In the light of the foregoing principles and the evidence of record, the main questions for
determination are whether defendant has successfully discharged its burden of
disproving its presumptive negligence because of its failure to transport safely to his
destination the deceased Ricardo C. Tiongson, and whether defendant has sufficiently
established its defense of fortuitous event.

After a review of the record, the court believes that defendant has not successfully
discharged its burden. Defendant's driver, Samonte, wanted to impress the court that he
was entirely free from fault or negligence in the collision between his bus and the 7-Up
truck. This he testified that when he first sighted the 7-Up truck, 150 meters away from
his bus, the said truck was then running between 50 and 60 kilometers per hour, while
he, for his part, was then going only at about 30 kilometers per hour. This testimony of
Samonte is to be seriously doubted. In the first place, he and his conductor, Alcantara,
must be necessarily biased witnesses for they are both employed by the defendant. In
the second place, it is of common knowledge that a delivery truck fully loaded with cases
of soft drinks is a slower-moving vehicle than a passenger bus. A passenger bus is
necessarily designed for speed because travellers usually want to arrive at their
destinations within the shortest possible time, whereas soft drinks delivery trucks are
built for the safety of its bottled cargo than for speed. In the third place, Samonte's claim
that when he applied the brakes of his bus when it was then about 10 meters away from
the 7-Up truck, the speed of his bus was only about 10 kilometers per hour cannot be
given full credence. He stated that after applying the brakes, his bus still moved less
than 5 meters before being hit by the 7-Up truck. If his speed had only been 10
kilometers per hour, upon the application of the brakes, he would have stopped the bus
within a much shorter distance.

But even assuming that defendant's bus was then running only at approximately 10
kilometers per hour when the driver Samonte first applied the brakes, it would seem that
he applied the brakes too late. Samonte testified that upon sighting the 7-Up truck at a
distance of approximately 150 meters, he slackened his speed by first reducing it to 20
and then to 10 kilometers per hour, and brought his bus towards the right side of the
road; and that it was only when the distance between the two vehicles was only about 10
meters that he first stepped on the brakes. The court feels that it was not enough for
Samonte to slacken his speed gradually until he came down to 10 kilometers per hour.
He should have stopped his bus immediately upon seeing the 7-Up truck veer towards
his lane after jumping out of the big depression on the asphalted pavement. He was not
unaware of such depression, and the location thereof for he had been travelling on the
same route for a considerable length of time prior to 3 June 1958.1äwphï1.ñët
 It will not do for defendant's driver to claim that he could not avoid the 7-Up truck
because if he did he would have fallen into the ditch on his side of the highway. If he was
placed in the position claimed by him, it was entirely his fault, for he could have easily
avoided the 7-Up truck if he had applied his brakes on time, while the 7-Up truck was still
more than 10 meters away from him. Besides, instead of applying the brakes while the
7-Up truck was still some distance away from him, he could have veered to the left side
of the road, going north, where there was sufficient space for him, taking into account
that the asphalted pavement of the road was 5-1/2 meters wide with a shoulder of 65
cm. wide. In such posture, he could have avoided collision with the 7-Up truck which, on
the other hand, would have also been free to right its direction after it came out from the
big depression.

An examination of the sketch prepared by the chief of police of Bay, Laguna (Exhibit 1)
shows that the collision between defendant's bus and the 7-Up truck occurred only 8
meters away from the big depression. This short distance would seem to indicate that
defendant's driver, Samonte, knowing exactly the location of the depression, and
anticipating that the 7-Up truck coming the opposite direction would veer to the left of the
said depression in order to avoid the same, raced with the 7-Up truck in order that he
could first pass through the space between the depression and what was left of the
asphalted pavement of the lane on which he was then travelling, obviously for the
purpose of avoiding delay. Because of this, the 7-Up truck driver who must have
intended to pass on the said space in order to avoid going through the depression, was
suddenly forced into the depression, in order to avoid a head-on collision with
defendant's bus. But unfortunately, after bumping out of the depression, the truck veered
to the left and hit defendant's bus on the left front side, thereby causing the bus to
overturn on its right side.

The Court of Appeals agreed with the above being of the opinion that the testimony of Rufo
Reaño, a barrio lieutenant and a disinterested eye-witness of the accident, was credible; that, to
the contrary, the testimony of Claro Samonte and Ernesto Alcantara, driver and conductor
respectively of petitioner's bus, was improbable and biased; that Samonte actually applied the
brakes on his bus too late to avoid the accident because at that time the distance between the
two vehicles was only ten meters; that Samonte was well aware of the condition of the road,
particularly of the existence of a depression near the place where the two vehicles collided,
because he had been driving through and along the same route for a considerable period of
time prior to the accident; that on May 16, 1958 or only two weeks before the fatal collission,
Samonte had been apprehended for overspeeding, and finally, that certain admissions made on
the witness stand by Teotimo de Mesa, petitioner's chief clerk since 1948, sufficiently showed
that the company had not exercised due care and diligence in connection with the hiring of
Samonte. The Court of Appeals therefore expressly found that petitioner not only failed to
disprove the presumption of negligence arising against it (Articles 1733, 1755, and 1756 of the
New Civil Code) but that, on the contrary, its negligence had been established by more than
mere preponderance of evidence.

A thorough review of the record by Us has not disclosed any material fact or circumstance
showing that the trial court and the Court of Appeals erred in the respects covered by the issue
under consideration.
The remaining assignment of errors refer to the correctness of the decision appealed from in so
far as it grants moral damages to respondents, the amount of the award for loss of earnings,
and the additional award of P5,000 for attorney's fees.

Petitioner's liability for moral damages can not now be seriously questioned in view of the
provisions of Articles 1764 and 2206, Nos. 1 and 3 of the New Civil Code and the ruling
in Necesito, et al. vs. Paras, et al., G.R. Nos. L-10605-06, Resolution on motion to reconsider,
September 11, 1958 where, speaking through, Mr. Justice Jose B.L. Reyes, We said:

In awarding to the heirs of the deceased Severino Garces an indemnity for the loss of
"her guidance, protection and company," although it is but moral damages, the Court
took into account that the case of a passenger who dies in the course of an accident,
due to the carrier's negligence, constitutes an exception to the general rule. While, as
pointed out in the main decision, under Article 2220 of the new Civil Code there can be
no recovery of moral damages for a breach of contract in the absence of fraud (malice)
or bad faith, the case of a violation of the contract or carrier leading to a passenger's
death escapes this general rule, in view of Article 1764 in connection with Article 2206,
No. 3 of the new Civil Code.

"Art. 1764. Damages in cases comprised in this section shall be awarded in

accordance with Title XVIII of this Book, concerning Damages. Article 2206 shall
also apply to the death of a passenger caused by the breach of contract by a
common carrier.

"Art. 2206. x x x xxx xxx

"(3) The spouse, legitimate and illegitimate descendants and ascendants of the
deceased may demand moral damages for mental anguish by reason of the
death of the deceased."

Being a special rule limited to cases of fatal injuries, these articles prevail over the general rule
of Article 2220. Special provisions control general ones (Lichauco & Co. vs. Apostol, 44 Phil.
138; Sancho vs. Lizarrage, 55 Phil. 601).

It thus appears that under the new Civil Code, in case of accident due to a carrier's negligence,
the heirs of a deceased passenger may recover moral damages, even though a passenger who
is injured, but manages to survive, is not entitled to them. There is, therefore, no conflict
between our main decision in the instant case and that of Cachero vs. Manila Taxicab Co., G.R.
No. 8721, May 23, 1957, where the passenger suffered injuries, but did not lose his life.

The above ruling was followed and applied in Cariaga vs. L.T.B., G.R. No. L-11037, December
29, 1960; Bernardo vs. Luna, G.R. Nos. L-13328-29, September 29, 1961; and Martinez vs.
Gonzales, G.R. No. L-17570, October 30, 1962.

Petitioner contends that the compensatory and moral damages awarded are excessive. We do
not find them to be so, considering the pertinent facts of record. The deceased Ricardo C.
Tiongson, at the time of his death on June 3, 1958, was only thirty-two years old. He was a
Bachelor of Science in Commerce (Far Eastern University - 1949) and obtained employment
with the San Pablo City Branch of the People's Bank in 1954 with a starting monthly salary of
P150.00 which, after six months in the service, was increased to P175.00. While thus employed
with the People's Bank, he was also administering his mother's farm in Calamba, Laguna. He
was the only son of respondent spouses Antonio Tiongson and Paz Cailles Tiongson, and had
been married hardly three years when he died. The foregoing circumstances, in our opinion,
fully justify the damages awarded in the appealed decision which are substantially in accord
with the rules of law contained in Articles 1764 and 2206, Nos. 1 and 3 of the New Civil Code.

Lastly, it is contended that the Court of Appeals erred in affirming the trial court's award for
attorney's fees. This contention is likewise untenable.

Considering the provisions of Article No. 2208, Nos. 2 and 11 of the New Civil Code, and the
proven fact that petitioner ignored respondents' demand for an amicable settlement of their
claim, the award of attorney's fees in this case seems to be completely justified (Rex Taxicab
Co., Inc. vs. Bautista, G.R. No. L-15392, September 30, 1960; Necesito vs. Paras, supra).

Wherefore, the decision appealed, from is affirmed, with costs.

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

HONORIO LASAM, ET AL., plaintiffs-appellants,

vs.
FRANK SMITH, JR., defendant-appellant.

Palma and Leuterio for plaintiffs-appellants.

Mariano Alisangco for defendant-appellant.

OSTRAND, J.:

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

It appears from the evidence that on February 27, 1918, the defendant was the owner of a
public garage in the town of San Fernando, La Union, and engaged in the business of carrying
passengers for hire from the one point to another in the Province of La Union and the
surrounding provinces. On the date mentioned, he undertook to convey the plaintiffs from San
Fernando to Currimao, Ilocos Norte, in a Ford automobile. On leaving San Fernando, the
automobile was operated by a licensed chauffeur, but after having reached the town of San
Juan, the chauffeur allowed his assistant, Remigio Bueno, to drive the car. Bueno held no
driver's license, but had some experience in driving, and with the exception of some slight
engine trouble while passing through the town of Luna, the car functioned well until after the
crossing of the Abra River in Tagudin, when, according to the testimony of the witnesses for the
plaintiffs, defects developed in the steering gear so as to make accurate steering impossible,
and after zigzagging for a distance of about half a kilometer, the car left the road and went down
a steep embankment.

The defendant, in his testimony, maintains that there was no defect in the steering gear, neither
before nor after the accident, and expresses the opinion that the swaying or zigzagging of the
car must have been due to its having been driven at an excessive rate of speed. This may
possibly be true, but it is, from our point of view, immaterial whether the accident was caused by
negligence on the part of the defendant's employees, or whether it was due to defects in the
automobile; the result would be practically the same in either event.

In going over the bank of the road, the automobile was overturned and the plaintiffs pinned
down under it. Mr. Lasam escaped with a few contusions and a "dislocated" rib , but his wife,
Joaquina Sanchez, received serious injuries, among which was a compound fracture of one of
the bones in her left wrist. She also appears to have suffered a nervous breakdown from which
she had not fully recovered at the time of the trial.

The complaint in the case was filed about a year and a half after the occurrence above related.
It alleges, among other things, that the accident was due to defects in the automobile as well as
to the incompetence and negligence of the chauffeur, and the case appears to have been tried
largely upon the theory that it sounds in tort and that the liability of the defendant is governed by
article 1903 of the Civil Code. The trial court held, however, that the cause of action rests on the
defendant's breach of the contract of carriage and that, consequently, articles 1101-1107 of the
Civil Code, and not article 1903, are applicable. The court further found that the breach of the
contract was not due to fortuitous events and that, therefore, the defendant was liable in
damages.

In our opinion, the conclusions of the court below are entirely correct. That upon the facts stated
the defendant's liability, if any, is contractual, is well settled by previous decisions of the court,
beginning with the case of Rakes vs. Atlantic, Gulf & Pacific Co. (7 Phil., 359), and the
distinction between extra-contractual liability and contractual liability has been so ably and
exhaustively discussed in various other cases, that nothing further need here be said upon that
subject. (See Cangco vs. Manila Railroad Co., 38 Phil., 768; Manila Railroad Co. vs. Compania
Trasatlantica and Atlantic, Gulf & Pacific Co., 38 Phil., 875; De Guia vs. Manila Electric Railroad
& Light Co., 40 Phil., 706.) It is sufficient to reiterate that the source of the defendant's legal
liability is the contract of carriage; that by entering into that contract he bound himself to carry
the plaintiffs safely and securely to their destination; and that having failed to do so he is liable
in damages unless he shows that the failure to fulfill his obligation was due to causes mentioned
in article 1105 of the Civil Code, which reads as follows:

No one shall be liable for events which could not be foreseen or which, even if foreseen,
were inevitable, with the exception of the cases in which the law expressly provides
otherwise and those in which the obligation itself imposes such liability.

This brings us to the principal question in the case:

What is meant by "events which cannot be foreseen and which, having been foreseen, are
inevitable?" The Spanish authorities regard the language employed as an effort to define the
term caso fortuito and hold that the two expressions are synonymous. (Manresa, Comentarios
al Codigo Civil Español, vol. 8, pp. 88 et seq.; Scævola, Codigo Civil, vol. 19, pp. 526 et seq.)
The antecedent to article 1105 is found in Law 11, Title 33, Partida 7, which defines caso
fortuito as "occasion que a case por aventura de que non se puede ante ver. E son estos,
derrivamientos de casas e fuego que se enciende a so ora, e quebrantamiento de navio, fuerca
de ladrones. . . . (An event that takes place by accident and could not have been foreseen.
Examples of this are destruction of houses, unexpected fire, shipwreck, violence of robbers. . .
.)"

Escriche defines caso fortuito as "an unexpected event or act of God which could either be
foreseen nor resisted, such as floods, torrents, shipwrecks, conflagrations, lightning,
compulsion, insurrections, destructions, destruction of buildings by unforseen accidents and
other occurrences of a similar nature."

In discussing and analyzing the term caso fortuito the Enciclopedia Juridica Española says: "In
a legal sense and, consequently, also in relation to contracts, a caso fortuito presents the
following essential characteristics: (1) The cause of the unforeseen and unexpected occurrence,
or of the failure of the debtor to comply with his obligation, must be independent of the human
will. (2) It must be impossible to foresee the event which constitutes the caso fortuito, or if it can
be foreseen, it must be impossible to avoid. (3) The occurrence must be such as to render it
impossible for the debtor to fulfill his obligation in a normal manner. And (4) the obligor (debtor)
must be free from any participation in the aggravation of the injury resulting to the creditor."
(5 Enciclopedia Juridica Española, 309.)

As will be seen, these authorities agree that some extraordinary circumstance independent of
the will of the obligor, or of his employees, is an essential element of a caso fortuito. Turning to
the present case, it is at once apparent that this element is lacking. It is not suggested that the
accident in question was due to an act of God or to adverse road conditions which could not
have been foreseen. As far as the records shows, the accident was caused either by defects in
the automobile or else through the negligence of its driver. That is not a caso fortuito.

We agree with counsel that neither under the American nor Spanish law is a carrier of
passengers an absolute insurer against the risks of travel from which the passenger may protect
himself by exercising ordinary care and diligence. The case of Alba vs. Sociedad Anonima de
Tranvias, Jurisprudencia Civil, vol. 102, p. 928, cited by the defendant in support of his
contentions, affords a good illustration of the application of this principle. In that case Alba, a
passenger on a street car, was standing on the platform of the car while it was in motion. The
car rounded a curve causing Alba to lose his balance and fall off the platform, sustaining severe
injuries. In an action brought by him to recover damages, the supreme court of Spain held that
inasmuch as the car at the time of the accident was travelling at a moderate rate of speed and
there was no infraction of the regulations, and the plaintiff was exposed to no greater danger
than that inherent in that particular mode of travel, the plaintiff could not recover, especially so
since he should have been on his guard against a contingency as natural as that of losing his
balance to a greater or less extent when the car rounded the curve.

But such is not the present case; here the passengers had no means of avoiding the danger or
escaping the injury.

The plaintiffs maintain that the evidence clearly establishes that they are entitled to damages in
the sum of P7,832.80 instead of P1,254.10 as found by the trial court, and their assignments of
error relate to this point only.
There can be no doubt that the expenses incurred by the plaintiffs as a result of the accident
greatly exceeded the amount of the damages awarded. But bearing in mind that in determining
the extent of the liability for losses or damages resulting from negligence in the fulfillment of a
contractual obligation, the courts have "a discretionary power to moderate the liability according
to the circumstances" (De Guia vs. Manila Electric Railroad & Light Co., 40 Phil., 706; art. 1103,
Civil Code), we do not think that the evidence is such as to justify us in interfering with the
discretion of the court below in this respect. As pointed out by that court in its well-reasoned and
well-considered decision, by far the greater part of the damages claimed by the plaintiffs
resulted from the fracture of a bone in the left wrist of Joaquina Sanchez and from her
objections to having a decaying splinter of the bone removed by a surgical operation. As a
consequence of her refusal to submit such an operation, a series of infections ensued and
which required constant and expensive medical treatment for several years. We agree with the
court below that the defendant should not be charged with these expenses.

For the reasons stated, the judgment appealed from is affirmed, without costs in this instance.
So ordered.

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

LA MALLORCA and PAMPANGA BUS COMPANY, petitioner,

vs.
VALENTIN DE JESUS, MANOLO TOLENTINO and COURT OF APPEALS, respondents.

Manuel O. Chan for petitioners.

Sixto T. Antonio for respondents.

MAKALINTAL, J.:

La Mallorca and Pampanga Bus Company, Inc., commonly known as La Mallorca-Pambusco,

filed this appeal by certiorari from the decision of the Court of Appeals which affirmed that
rendered by the Court of First Instance of Bulacan in its civil case No. 2100, entitled "Valentin de
Jesus and Manolo Tolentino vs. La Mallorca-Pambusco." The court a quo sentenced the
defendant, now petitioner, "to pay to plaintiffs the amount of P2,132.50 for actual damages;
P14,400.00 as compensatory damages; P10,000.00 to each plaintiff by way of moral damages;
and P3,000.00 as counsel fees."
Two errors are attributed to the appellate Court: (1) "in sustaining the decision (of the court a
quo) holding that the petitioners were liable for the accident which was caused by a blow-out of
one of the tires of the bus and in not considering the same as caso fortuito," and (2) in holding
petitioners liable for moral damages.

The suit arose by reason of the death of Lolita de Jesus, 20-year old daughter of Valentin de
Jesus and wife of Manolo Tolentino, in a head-on collision between petitioner's bus, on which
she was a passenger, and a freight truck traveling in the opposite direction, in a barrio in Marilao
Bulacan, in the morning of October 8, 1959. The immediate cause of the collision was the fact
that the driver of the bus lost control of the wheel when its left front tire suddenly exploded.

Petitioner maintains that a tire blow-out is a fortuitous event and gives rise to no liability for
negligence, citing the rulings of the Court of Appeals in Rodriguez vs. Red Line Transportation
Co., CA-G.R. No. 8136, December 29, 1954, and People vs. Palapad, 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. 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.

Herenio E. Martinez for petitioner.

M.R. Villaluz Law Office for private respondent.

REGALADO, J.:
In this appeal by certiorari, petitioner Aboitiz Shipping Corporation seeks a review of the
decision 1 of respondent Court of Appeals, dated July 29, 1988, the decretal portion of which
reads:

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, 18 which, in the instant case,
necessarily includes its failure to safeguard its passenger with extraordinary diligence while
such relation subsists.

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

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

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

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

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

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

SO ORDERED.

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

 G.R. No. 145804. February 6, 2003

LIGHT RAIL TRANSIT AUTHORITY & RODOLFO ROMAN, petitioners,

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

DECISION

VITUG, J.:

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

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

On 08 December 1994, the widow of Nicanor, herein respondent Marjorie Navidad,

along with her children, filed a complaint for damages against Junelito Escartin,
Rodolfo Roman, the LRTA, the Metro Transit Organization, Inc. (Metro Transit), and
Prudent for the death of her husband. LRTA and Roman filed a counterclaim against
Navidad and a cross-claim against Escartin and Prudent. Prudent, in its answer,
denied liability and averred that it had exercised due diligence in the selection and
supervision of its security guards.
The LRTA and Roman presented their evidence while Prudent and Escartin, instead
of presenting evidence, filed a demurrer contending that Navidad had failed to
prove that Escartin was negligent in his assigned task. On 11 August 1998, the trial
court rendered its decision; it adjudged:

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

a) 1) Actual damages of P44,830.00;

2) Compensatory damages of P443,520.00;

3) Indemnity for the death of Nicanor Navidad in the sum of

P50,000.00;

b) Moral damages of P50,000.00;

c) Attorneys fees of P20,000;

d) Costs of suit.

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

The compulsory counterclaim of LRTA and Roman are likewise

dismissed.1cräläwvirtualibräry

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

WHEREFORE, the assailed judgment is hereby MODIFIED, by exonerating the

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

a) P44,830.00 as actual damages;

b) P50,000.00 as nominal damages;

c) P50,000.00 as moral damages;

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

e) P20,000.00 as and for attorneys fees.2cräläwvirtualibräry

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

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

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

I.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED BY DISREGARDING THE

FINDINGS OF FACTS BY THE TRIAL COURT

II.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT

PETITIONERS ARE LIABLE FOR THE DEATH OF NICANOR NAVIDAD, JR.

III.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT RODOLFO

ROMAN IS AN EMPLOYEE OF LRTA.3cräläwvirtualibräry

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

Respondents, supporting the decision of the appellate court, contended that a

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

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

Article 1755. A common carrier is bound to carry the passengers safely as far as
human care and foresight can provide, using the utmost diligence of very cautious
persons, with a due regard for all the circumstances.

Article 1756. In case of death of or injuries to passengers, common carriers are

presumed to have been at fault or to have acted negligently, unless they prove that
they observed extraordinary diligence as prescribed in articles 1733 and 1755.

Article 1759. Common carriers are liable for the death of or injuries to passengers
through the negligence or willful acts of the formers employees, although such
employees may have acted beyond the scope of their authority or in violation of the
orders of the common carriers.

This liability of the common carriers does not cease upon proof that they exercised
all the diligence of a good father of a family in the selection and supervision of their
employees.

Article 1763. A common carrier is responsible for injuries suffered by a passenger

on account of the willful acts or negligence of other passengers or of strangers, if
the common carriers employees through the exercise of the diligence of a good
father of a family could have prevented or stopped the act or omission.

The law requires common carriers to carry passengers safely using the utmost
diligence of very cautious persons with due regard for all circumstances.5 Such duty
of a common carrier to provide safety to its passengers so obligates it not only
during the course of the trip but for so long as the passengers are within its
premises and where they ought to be in pursuance to the contract of carriage.6 The
statutory provisions render a common carrier liable for death of or injury to
passengers (a) through the negligence or wilful acts of its employees or b) on
account of wilful acts or negligence of other passengers or of strangers if
the common carriers employees through the exercise of due diligence
could have prevented or stopped the act or omission.7 In case of such death
or injury, a carrier is presumed to have been at fault or been negligent, and8 by
simple proof of injury, the passenger is relieved of the duty to still establish the
fault or negligence of the carrier or of its employees and the burden shifts upon the
carrier to prove that the injury is due to an unforeseen event or to force
majeure.9 In the absence of satisfactory explanation by the carrier on how the
accident occurred, which petitioners, according to the appellate court, have failed to
show, the presumption would be that it has been at fault,10 an exception from the
general rule that negligence must be proved.11cräläwvirtualibräry

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

Should Prudent be made likewise liable? If at all, that liability could only be for tort
under the provisions of Article 217612 and related provisions, in conjunction with
Article 2180,13 of the Civil Code. The premise, however, for the employers liability is
negligence or fault on the part of the employee. Once such fault is established, the
employer can then be made liable on the basis of the presumption juris tantum that
the employer failed to exercise diligentissimi patris families in the selection and
supervision of its employees. The liability is primary and can only be negated by
showing due diligence in the selection and supervision of the employee, a factual
matter that has not been shown. Absent such a showing, one might ask further,
how then must the liability of the common carrier, on the one hand, and an
independent contractor, on the other hand, be described? It would be solidary. A
contractual obligation can be breached by tort and when the same act or omission
causes the injury, one resulting in culpa contractual and the other in culpa
aquiliana, Article 219414 of the Civil Code can well apply.15 In fine, a liability for tort
may arise even under a contract, where tort is that which breaches the
contract.16 Stated differently, when an act which constitutes a breach of contract
would have itself constituted the source of a quasi-delictual liability had no contract
existed between the parties, the contract can be said to have been breached by
tort, thereby allowing the rules on tort to apply.17cräläwvirtualibräry

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

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

The award of nominal damages in addition to actual damages is untenable. Nominal

damages are adjudicated in order that a right of the plaintiff, which has been
violated or invaded by the defendant, may be vindicated or recognized, and not for
the purpose of indemnifying the plaintiff for any loss suffered by him.18 It is an
established rule that nominal damages cannot co-exist with compensatory
damages.19cräläwvirtualibräry

WHEREFORE, the assailed decision of the appellate court is AFFIRMED with

MODIFICATION but only in that (a) the award of nominal damages is DELETED and
(b) petitioner Rodolfo Roman is absolved from liability. No costs.

SO ORDERED.

[G.R. No. L-8937. November 29, 1957.]

OLEGARIO BRITO SY, Plaintiff-Appellee, v. MALATE TAXICAB & GARAGE,

INC., Defendant-Appellant; MALATE TAXICAB & GARAGE, INC., third-party
plaintiff-appellant, v. JESUS DEQUITO Y DUPY, third-party Defendant-
Appellee.

Paredes, Gaw & Acevedo for Appellee.

Diaz & Baizas for Appellant.

SYLLABUS

1. PLEADING AND PRACTICE; PRE-JUDICIAL QUESTION, CONSTRUED; CASE AT

BAR. — Pre-judicial is understood in law to be that which precedes the criminal
action, or that which requires a decision before final judgment is rendered in the
principal action which said question is closely connected. Not all previous questions
are pre-judicial, although all pre-judicial questions are necessarily previous.
(Berbari v. Concepcion, 40 Phil. 837.) In the present case, the third-party complaint
is not a pre-judicial question, as the issue in the main action is not entirely
dependent upon those in the third-party complaint; on the contrary, it is the third-
party complaint that is dependent upon the main case in the amount of damages
which defendant-appellant seeks to be reimbursed in its third-party complaint.
Furthermore, the complaint is based on contractual obligation of transportation of
passenger which defendant-appellant failed to carry out, and the action is entirely
different and independent from that in third-party complaint which is based on
alleged tortious act committed by the third-party defendant. The main case,
therefore, is entirely severable and may be litigated independently. Moreover,
whatever the outcome of the third-party complaint might be would not in any way
affect or alter the contractual liability of the appellant to plaintiff. If the collision was
due to the negligence of the third-party defendant as alleged, then defendant-
appellant may file a separate civil action for damages based on tort ex-delicto or
upon quasi-delict, as the case may be.

2. COMMON CARRIERS; OBLIGATION TO TRANSPORT PASSENGER SAFELY

CARRIER PRESUMED NEGLIGENT WHEN PASSENGER IS INJURED; HOW TO
OVERCOME PRESUMPTION. — In an action based on a contract of carriage, the
court need not make an express finding of fault or negligence on the part of the
carrier in order to hold it responsible to pay the damages sought for by the
passenger. By the contract of carriage, the carrier assumes the express obligation
to transport the passenger to his destination safely and to observe extraordinary
diligence with a due regard for all the circumstances, and any injury that might be
suffered by the passenger is right away attributable to the fault or negligence of the
carrier (Article 1756, new Civil Code). This is an exception to the general rule that
negligence must be proved, and it is therefore incumbent upon the carrier to prove
that it has exercised extraordinary diligence as prescribed i Article 1733 and 1755
of the new Civil Code. In the case at bar, however, the defendant carrier failed to
present any evidence at all to overcome and overwhelm the presumption of
negligence imposed upon it by law; hence , there was no need for the lower court
to make an express finding that the carrier was responsible to the collision, in view
of the provision of the aforementioned Article 1756 of the new Civil Code.

DECISION

ENDENCIA, J.:

On June 26, 1952, at Dewey Boulevard in front of the Selecta Restaurant, Olegario
Brito Sy engaged a taxicab bearing plate No. Taxi-1130, owned and operated by
the Malate Taxicab and Garage, Inc. and driven by Catalino Ermino, to take him to
his place of business at Dencia’s Restaurant on the Escolta where he was the
general manager. Upon reaching the Rizal Monument, he told the driver to turn to
the right, but the latter did not heed him and instead countered that they better
pass along Katigbak Drive. At the intersection of Dewey Boulevard and Katigbak
Drive, the taxi collided with an army wagon with plate No. TPI-695 driven by Sgt.
Jesus Dequito, as a result of which Olegario Brito Sy was jarred, jammed and
jolted. He was taken to the Santa Isabel Hospital suffering from bruises and
contusions as well as a fractured right leg. Thereafter he was transferred to the
Gonzales Orthopedic Clinic and was accordingly operated on. He spent some
P2,266.45 for medical bills and hospitalization.

On September 30, 1952, Sy filed action against the Malate Taxicab & Garage, Inc.,
based upon a contract of carriage, to recover the sums of P7,200 as actual or
compensatory damages, P20,000 as moral damages, P15,000 as nominal and
exemplary damages, and P3,000 a attorney’s fees. On October 2, 1952, a copy of
the complaint was served on and received by the defendant, but the latter filed its
answer only on October 20, 1952, wherein it alleged that the collision subject of the
complaint was not due to the negligence of its driver but to that of Sgt. Jesus
Dequito, the driver of the army wagon; and, by way of counterclaim, sought to
recover the sum of P1,000 as damages caused by the alleged malicious and
frivolous action filed against it.

The record reveals that upon plaintiff’s motion filed on October 23, 1952, the lower
court ordered on October 25, 1952 that the answer which was filed by defendant
out of time be stricken out, and declared the Malate Taxicab & Garage, Inc. in
default. Thereafter, on October 30, 1952, plaintiff presented his evidence, and on
November 20, 1952 judgment was rendered awarding plaintiff the sum of P14,000
as actual, compensatory, moral, nominal and exemplary damages including
attorney’s fees and costs, with interest at the legal rate from the filing of the action.
Defendant then filed a motion on December 17, 1952, for relief from the order of
default and for new trial, which was granted. Hence, plaintiff filed his reply to
defendant’s answer and counterclaim, and by leave of court, the latter filed on
February 24, 1953 a third-party complaint against Sgt. Jesus Dequito alleging that
the cause of the collision between the taxicab and the army wagon was the
negligence of the army sergeant, and praying that whatever amount the court may
assess against it in the action filed by plaintiff, be paid to said third-party plaintiff,
plus an additional amount of P1,000 representing attorney’s fees. It appears,
however, that the summons and copy of the third-party complaint were never
served upon third-party defendant Dequito in view of his continued assignment
from place to place in connection with his army duties, and for this reason the main
case was set for trial on May 10, 1953, obviously for the sole purpose of disposing
of the issue arising from plaintiff’s complaint. On the day of the trial, defendant
failed to appear, whereupon plaintiff presented his evidence, and judgment was
rendered against the defendant in the total sum of P4,200 representing actual,
compensatory and moral damages, as well as attorney’s fees, with interest at the
legal rate from the filing of the action, plus costs of suit. Against said judgment
defendant appealed to the Court of Appeals and assigned in its brief two errors of
the lower court, namely:jgc:chanrobles.com.ph

"1. The trial court erred in not finding that the third-party complaint involves a
prejudicial question, and therefore, the main complaint cannot be decided until the
third-party complaint is decided.

2. The trial court erred in not deciding or making an express finding as to whether
the defendant-appellant Malate Taxicab & Garage, Inc. was responsible for the
collision, and hence, civilly responsible to the plaintiff-appellee."cralaw virtua1aw
library

Finding the quoted assignment of errors as involving a purely question of law, the
Court of Appeals, by virtue of the provisions of section 17, paragraph 6 of the
Judiciary Act of 1948, as amended, certified the case to this Court for adjudication,
in its Resolution of February 7, 1955.

We find no merit in the first assignment of error that the third- party complaint is a
pre-judicial question. As enunciated by this Court in Berbari v. Concepcion, 40 Phil.
837, "Pre-judicial question is understood in law to be that which precedes the
criminal action, or that which requires a decision before final judgment is rendered
in the principal action with which said question is closely connected. Not all previous
questions are pre-judicial, although all pre-judicial questions are necessarily
previous." In the present case, the third- party complaint is not a pre-judicial
question, as the issue in the main action is not entirely dependent upon those in
the third-party complaint; on the contrary, it is the third-party complaint that is
dependent upon the main case at least in the amount of damages which defendant-
appellant seeks to be reimbursed in its third-party complaint. Furthermore, the
complaint is based on a contractual obligation of transportation of passenger which
defendant-appellant failed to carry out, and the action is entirely different and
independent from that in the third-party complaint which is based on alleged
tortious act committed by the third-party defendant Sgt. Dequito. The main case,
therefore, is entirely severable and may be litigated independently. Moreover,
whatever the outcome of the third- party complaint might be would not in any way
affect or alter the contractual liability of the appellant to plaintiff. If the collision was
due to the negligence of the third-party defendant, as alleged, then defendant-
appellant may file a separate civil action for damages based on tort ex-delicto or
upon quasi-delict, as the case may be.

Coming to the second assignment of error that the lower court erred in not making
an express finding as to whether defendant- appellant was responsible for the
collision, we find the same to be unjustified. The pertinent provisions of the new
Civil Code under the heading Common Carriers, are the
following:jgc:chanrobles.com.ph

"ART. 1733. Common carriers, from the nature of their business and for reasons of
public policy, are bound to observe extraordinary diligence in the vigilance over the
goods and for the safety of the passengers transported by them, according to all
the circumstances of each case.

Such extraordinary diligence in the vigilance over the goods is further expressed in
articles 1734, 1735, and 1745, Nos. 5, 6, and 7, while the extraordinary diligence
for the safety of the passengers is further set forth in articles 1755 and 1756.

"ART. 1755. A common carrier is bound to carry the passengers to safety as far as
human cars and foresight can provide, using the utmost diligence of very cautious
persons, with a due regard for all the circumstances.

"ART. 1756. In case of death of or injuries to passengers, common carriers are

presumed to have been at fault or to have acted negligently, unless they prove that
they observed extraordinary diligence as prescribed in articles 1733 and 1755."
(Italics supplied.)
Evidently, under these provisions of law, the court need not make an express
finding of fault or negligence on the part of the defendant-appellant in order to hold
it responsible to pay the damages sought for by the plaintiff, for the action initiated
therefor is based on a contract of carriage and not on tort. When plaintiff rode on
defendant-appellant’s taxicab, the latter assumed the express obligation to
transport him to his destination safely, and to observe extraordinary diligence with
a due regard for all the circumstances, and any injury that might be suffered by the
passenger is right away attributable to the fault or negligence of the carrier (Article
1756, supra). This is an exception to the general rule that negligence must be
proved, and it was therefore incumbent upon the carrier to prove that it has
exercised extraordinary diligence as prescribed in Articles 1733 and 1755 of the
new Civil Code. It is noteworthy, however, that at the hearing in the lower court
defendant-appellant failed to appear and has not presented any evidence at all to
overcome and overwhelm the presumption of negligence imposed upon it by law;
hence, there was no need for the lower court to make an express finding thereon in
view of the provisions of the aforequoted Article 1756 of the new Civil Code.

Wherefore, the decision of the lower court is hereby affirmed with cost against
the Appellant.

G.R. No. 128607. January 31, 2000

ALFREDO MALLARI SR. and ALFREDO MALLARI JR., Petitioners, v. COURT

OF APPEALS and BULLETIN PUBLISHING CORPORATION, Respondents.

DECISION

BELLOSILLO, J.:

ALFREDO MALLARI SR. and ALFREDO MALLARI JR. in this petition for review
on certiorari seek to set aside the Decision of the Court of Appeals1 which reversed
the court a quo and adjudged petitioners to be liable for damages due to negligence
as a common carrier resulting in the death of a passenger.

On 14 October 1987, at about 5:00 o'clock in the morning, the passenger jeepney
driven by petitioner Alfredo Mallari Jr. and owned by his co-petitioner Alfredo Mallari
Sr. collided with the delivery van of respondent Bulletin Publishing Corp.
(BULLETIN, for brevity) along the National Highway in Barangay San Pablo,
Dinalupihan, Bataan. Petitioner Mallari Jr. testified that he went to the left lane of
the highway and overtook a Fiera which had stopped on the right lane. Before he
passed by the Fiera, he saw the van of respondent BULLETIN coming from the
opposite direction. It was driven by one Felix Angeles. The sketch of the accident
showed that the collision occurred after Mallari Jr. overtook the Fiera while
negotiating a curve in the highway. The points of collision were the left rear portion
of the passenger jeepney and the left front side of the delivery van of BULLETIN.
The two (2) right wheels of the delivery van were on the right shoulder of the road
and pieces of debris from the accident were found scattered along the shoulder of
the road up to a certain portion of the lane travelled by the passenger jeepney. The
impact caused the jeepney to turn around and fall on its left side resulting in
injuries to its passengers one of whom was Israel Reyes who eventually died due to
the gravity of his injuries.

On 16 December 1987 Claudia G. Reyes, the widow of Israel M. Reyes, filed a

complaint for damages with the Regional Trial Court of Olongapo City against
Alfredo Mallari Sr. and Alfredo Mallari Jr., and also against BULLETIN, its driver Felix
Angeles, and the N.V. Netherlands Insurance Company. The complaint alleged that
the collision which resulted in the death of Israel Reyes was caused by the fault and
negligence of both drivers of the passenger jeepney and the Bulletin Isuzu delivery
van. The complaint also prayed that the defendants be ordered jointly and severally
to pay plaintiff P1,006,777.40 in compensatory damages, P40,000.00 for hospital
and medical expenses, P18,270.00 for burial expenses plus such amounts as may
be fixed by the trial court for exemplary damages and attorneys fees.

The trial court found that the proximate cause of the collision was the negligence of
Felix Angeles, driver of the Bulletin delivery van, considering the fact that the left
front portion of the delivery truck driven by Felix Angeles hit and bumped the left
rear portion of the passenger jeepney driven by Alfredo Mallari Jr. Hence, the trial
court ordered BULLETIN and Felix Angeles to pay jointly and severally Claudia G.
Reyes, widow of the deceased victim, the sums of P42,106.93 for medical
expenses; P8,600.00 for funeral and burial expenses; P1,006,777.40 for loss of
earning capacity; P5,000.00 for moral damages and P10,000.00 for attorneys fees.
The trial court also ordered N.V. Netherlands Insurance Company to indemnify
Claudia G. Reyes P12,000.00 as death indemnity and P2,500.00 for funeral
expenses which when paid should be deducted from the liabilities of respondent
BULLETIN and its driver Felix Angeles to the plaintiff. It also dismissed the
complaint against the other defendants Alfredo Mallari Sr. and Alfredo Mallari Jr.

On appeal the Court of Appeals modified the decision of the trial court and found no
negligence on the part of Angeles and consequently of his employer, respondent
BULLETIN. Instead, the appellate court ruled that the collision was caused by the
sole negligence of petitioner Alfredo Mallari Jr. who admitted that immediately
before the collision and after he rounded a curve on the highway, he overtook a
Fiera which had stopped on his lane and that he had seen the van driven by
Angeles before overtaking the Fiera. The Court of Appeals ordered petitioners
Mallari Jr. and Mallari Sr. to compensate Claudia G. Reyes P1,006,777.50 for loss of
earning capacity, P50,000.00 as indemnity for death and P10,000.00 for attorneys
fees. It absolved from any liability respondent BULLETIN, Felix Angeles and N.V.
Netherlands Insurance Company. Hence this petition.

Petitioners contend that there is no evidence to show that petitioner Mallari Jr.
overtook a vehicle at a curve on the road at the time of the accident and that the
testimony of Angeles on the overtaking made by Mallari Jr. was not credible and
unreliable. Petitioner also submits that the trial court was in a better position than
the Court of Appeals to assess the evidence and observe the witnesses as well as
determine their credibility; hence, its finding that the proximate cause of the
collision was the negligence of respondent Angeles, driver of the delivery van
owned by respondent BULLETIN, should be given more weight and consideration.

We cannot sustain petitioners. Contrary to their allegation that there was no

evidence whatsoever that petitioner Mallari Jr. overtook a vehicle at a curve on the
road at the time of or before the accident, the same petitioner himself testified that
such fact indeed did occur -

Q:.......And what was that accident all about?

A:.......Well, what happened, sir, is that at about that time 5:00 oclock in that
morning of October 14 while I was negotiating on the highway at San Pablo,
Dinalupihan, Bataan, I was then following a blue Ford Fierra and my distance
behind was about twenty (20) feet and then I passed that blue Ford Fierra. I
overtook and when I was almost on the right lane of the highway towards Olongapo
City there was an oncoming delivery van of the Bulletin Publishing Corporation
which bumped the left rear portion of the jeepney which I was driving and as a
result of which the jeepney x x x turned around and fell on its left side and as a
result of which some of my passengers including me were injured, sir x x x x

Q:.......Before you overtook the Ford Fierra jeepney did you look x x x whether
there was any vehicle coming towards you?

A:.......Yes, sir.

Q:.......Did you see the Bulletin van or the Press van coming towards you?

A:.......Yes, sir.

Q:.......At the moment the Ford Fierra xxx stop(ped) and in overtaking the Fierra,
did you not have an option to stop and not to overtake the Ford Fierra?

A:.......Well, at the time when the Ford Fierra stopped in front of me I slowed down
with the intention of applying the brake, however, when I saw the oncoming vehicle
which is the Press van is very far x x x which is 100 feet distance, x x x it is
sufficient to overtake the Ford Fierra so I overt(ook) it x x x x
Q:.......You said that you took into consideration the speed of the oncoming Press
van but you also could not estimate the speed of the press van because it was dark
at that time, which of these statements are true?

A:.......What I wanted to say, I took into consideration the speed of the oncoming
vehicle, the Press van, although at the moment I could not estimate the speed of
the oncoming vehicle x x x x2cräläwvirtualibräry

The Court of Appeals correctly found, based on the sketch and spot report of the
police authorities which were not disputed by petitioners, that the collision occurred
immediately after petitioner Mallari Jr. overtook a vehicle in front of it while
traversing a curve on the highway.3 This act of overtaking was in clear violation of
Sec. 41, pars. (a) and (b), of RA 4136 as amended, otherwise known as The Land
Transportation and Traffic Code which provides:

Sec. 41. Restrictions on overtaking and passing. - (a) The driver of a vehicle shall
not drive to the left side of the center line of a highway in overtaking or passing
another vehicle proceeding in the same direction, unless such left side is clearly
visible and is free of oncoming traffic for a sufficient distance ahead to permit such
overtaking or passing to be made in safety.

(b) The driver of a vehicle shall not overtake or pass another vehicle proceeding in
the same direction when approaching the crest of a grade, nor upon a curve in the
highway, where the drivers view along the highway is obstructed within a distance
of five hundred feet ahead except on a highway having two or more lanes for
movement of traffic in one direction where the driver of a vehicle may overtake or
pass another vehicle:

Provided That on a highway, within a business or residential district, having two or

more lanes for movement of traffic in one direction, the driver of a vehicle may
overtake or pass another vehicle on the right.

The rule is settled that a driver abandoning his proper lane for the purpose of
overtaking another vehicle in an ordinary situation has the duty to see to it that the
road is clear and not to proceed if he cannot do so in safety.4 When a motor vehicle
is approaching or rounding a curve, there is special necessity for keeping to the
right side of the road and the driver does not have the right to drive on the left
hand side relying upon having time to turn to the right if a car approaching from
the opposite direction comes into view.5cräläwvirtualibräry

In the instant case, by his own admission, petitioner Mallari Jr. already saw that the
BULLETIN delivery van was coming from the opposite direction and failing to
consider the speed thereof since it was still dark at 5:00 o'clock in the morning
mindlessly occupied the left lane and overtook two (2) vehicles in front of it at a
curve in the highway. Clearly, the proximate cause of the collision resulting in the
death of Israel Reyes, a passenger of the jeepney, was the sole negligence of the
driver of the passenger jeepney, petitioner Alfredo Mallari Jr., who recklessly
operated and drove his jeepney in a lane where overtaking was not allowed by
traffic rules. Under Art. 2185 of the Civil Code, unless there is proof to the contrary,
it is presumed that a person driving a motor vehicle has been negligent if at the
time of the mishap he was violating a traffic regulation. As found by the appellate
court, petitioners failed to present satisfactory evidence to overcome this legal
presumption.

The negligence and recklessness of the driver of the passenger jeepney is binding
against petitioner Mallari Sr., who admittedly was the owner of the passenger
jeepney engaged as a common carrier, considering the fact that in an action based
on 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 for the payment
of damages sought by the passenger. Under Art. 1755 of the Civil Code, a common
carrier is bound to carry the passengers safely as far as human care and foresight
can provide using the utmost diligence of very cautious persons with due regard for
all the circumstances. Moreover, under Art. 1756 of the Civil Code, in case of death
or injuries to passengers, a common carrier is presumed to have been at fault or to
have acted negligently, unless it proves that it observed extraordinary diligence.
Further, pursuant to Art. 1759 of the same Code, it is liable for the death of or
injuries to passengers through the negligence or willful acts of the formers
employees. This liability of the common carrier does not cease upon proof that it
exercised all the diligence of a good father of a family in the selection of its
employees. Clearly, by the contract of carriage, the carrier jeepney owned by
Mallari Sr. assumed the express obligation to transport the passengers to their
destination safely and to observe extraordinary diligence with due regard for all the
circumstances, and any injury or death that might be suffered by its passengers is
right away attributable to the fault or negligence of the carrier.

The monetary award ordered by the appellate court to be paid by petitioners to the
widow of the deceased passenger Israel M. Reyes of P1,006,777.50 for loss of
earning capacity, P50,000.00 as civil indemnity for death, and P10,000.00 for
attorneys fees, all of which were not disputed by petitioners, is a factual matter
binding and conclusive upon this Court.

WHEREFORE, the Petition is DENIED and the Decision of the Court of Appeals
dated 20 September 1995 reversing the decision of the trial court being in accord
with law and evidence is AFFIRMED. Consequently, petitioners are ordered jointly
and severally to pay Claudia G. Reyes P1,006,777.50 for loss of earning
capacity, P50,000.00 as civil indemnity for death, and P10,000.00 for attorneys
fees. Costs against petitioners.

SO ORDERED.
G.R. No. L-9907 June 30, 1958

LOURDES J. LARA, ET AL., plaintiffs-appellants,

vs.
BRIGIDO R. VALENCIA, defendant-appellant.

Castillo, Cervantes, Occeña, Lozano, Montana, Cunanan, Sison and Castillo and Eligio G.
Lagman for defendant-appellant.
Donato C. Endriga and Emigdio Dakanay for plaintiffs-appellants.

BAUTISTA ANGELO, J.:

This is an action for damages brought by plaintiffs against defendant in the Court of First
Instance of Davao for the death of one Demetrio Lara, Sr. allegedly caused by the negligent act
of defendant. Defendant denied the charge of negligence and set up certain affirmative
defenses and a counterclaim.

The court after hearing rendered judgment ordering defendant to pay the plaintiffs the following
amount: (a) P10,000 as moral damages; (b) P3,000 as exemplary damages; and (c) P1,000 as
attorney's fees, in addition to the costs of action. Both parties appealed to this Court because
the damages claimed in the complaint exceed the sum of P50,000.

In their appeal, plaintiffs claim that the court a quo erred in disregarding their claim of P41,400
as actual or compensatory damages and in awarding as attorneys' fees only the sum of P1,000
instead of P3,000 as agreed upon between plaintiffs and their counsel. Defendant, on the other
hand, disputes the finding of the court a quo that the oath of Demetrio Lara, Sr. was due to the
negligence of defendant and the portion of the judgment which orders dependant to pay to
plaintiffs moral and exemplary damages as well as attorneys' fees, said defendant contending
that the court should have declared that the death of Lara was due to unavoidable accident.

The deceased was an inspector of the Bureau of Forestry stationed in Davao with an annual
salary of P1,800. The defendant is engaged in the business of exporting logs from his lumber
concession in Cotabato. Lara went to said concession upon instructions of his chief to classify
the logs of defendant which were about to be loaded on a ship anchored in the port of Parang.
The work Lara of lasted for six days during which he contracted malaria fever. In the morning of
January 9, 1954, Lara who then in a hurry to return to Davao asked defendant if he could take
him in his pick-up as there was then no other means of transportation, to which defendant
agreed, and in that same morning the pick-up left Parang bound for Davao taking along six
passengers, including Lara.

The pick-up has a front seat where the driver and two passengers can be accommodated and
the back has a steel flooring enclosed with a steel walling of 16 to 17 inches tall on the sides
and with a 19 inches tall walling at the back. Before leaving Parang, the sitting arrangement was
as follows: defendant was at the wheel and seated with him in the front seat were Mrs. Valencia
and Nicanor Quinain; on the back of the pick-up were two improvised benches placed on each
side, and seated on the right bench were Ricardo Alojipan and Antonio Lagahit, and on the left
one Bernardo and Pastor Geronimo. A person by the name of Leoning was seated on a box
located on the left side while in the middle Lara sat on a bag. Before leaving Parang, defendant
invited Lara to sit with him on the front seat but Lara declined. It was their understanding that
upon reaching barrio Samoay, Cotabato, the passengers were to alight and take a bus bound
for Davao, but when they arrived at that place, only Bernardo alighted and the other passengers
requested defendant to allow them to ride with him up to Davao because there was then no
available bus that they could take in going to that place. Defendant again accommodated the
passengers.

When they continued their trip, the sitting arrangement of the passengers remained the same,
Lara being seated on a bag in the middle with his arms on a suitcase and his head cove red by
a jacket. Upon reaching Km. 96, barrio Catidtuan, Lara accidentally fell from the pick-up and as
a result he suffered serious injuries. Valencia stopped the pick-up to see what happened to
Lara. He sought the help of the residents of that place and applied water to Lara but to no avail.
They brought Lara to the nearest place where they could find a doctor and not having found any
they took him to St. Joseph's Clinic of Kidapawan. But when Lara arrived he was already dead.
From there they proceeded to Davao City and immediately notified the local authorities. An
investigation was made regarding the circumstances surrounding the death of Lara but no
criminal action was taken against defendant.

It should be noted that the deceased went to the lumber concession of defendant in Parang,
Cotabato upon instructions of his chief in order to classify the logs of defendant which were then
ready to be exported and to be loaded on a ship anchored in the port of Parang. It took Lara six
days to do his work during which he contracted malaria fever and for that reason he evinced a
desire to return immediately to Davao. At that time, there was no available bus that could take
him back to Davao and so he requested the defendant if he could take him in his own pick-up.
Defendant agreed and, together with Lara, other passengers tagged along, most of them were
employees of the Government. Defendant merely accommodated them and did not charge them
any fee for the service. It was also their understanding that upon reaching barrio Samoay, the
passengers would alight and transfer to a bus that regularly makes the trip to Davao but
unfortunately there was none available at the time and so the same passengers, including Lara,
again requested the defendant to drive them to Davao. Defendant again accommodated them
and upon reaching Km. 96, Lara accidentally fell suffering fatal injuries.

It therefore appears that the deceased, as well his companions who rode in the pick-up of
defendant, were merely accommodation passengers who paid nothing for the service and so
they can be considered as invited guests within the meaning of the law. As accommodation
passengers or invited guests, defendant as owner and driver of the pick-up owes to them
merely the duty to exercise reasonable care so that they may be transported safely to their
destination. Thus, "The rule is established by the weight of authority that the owner or operator
of an automobile owes the duty to an invited guest to exercise reasonable care in its operation,
and not unreasonably to expose him to danger and injury by increasing the hazard of travel.
This rule, as frequently stated by the courts, is that an owner of an automobile owes a guest the
duty to exercise ordinary or reasonable care to avoid injuring him. Since one riding in an
automobile is no less a guest because he asked for the privilege of doing so, the same
obligation of care is imposed upon the driver as in the case of one expressly invited to ride" (5
Am. Jur., 626-627). Defendant, therefore, is only required to observe ordinary care, and is not in
duty bound to exercise extraordinary diligence as required of a common carrier by our law
(Articles 1755 and 1756, new Civil Code).

The question that now arises is: Is there enough evidence to show that defendant failed to
observe ordinary care or diligence in transporting the deceased from Parang to Davao on the
date in question?
The trial court answered the question in the affirmative but in so doing it took into account only
the following facts:

No debe perderse de vista el hecho, que los negocios de exportacion de trozos del
demandado tiene un volumen de P1,200. Lara era empleado de la Oficina de Montes,
asalariado por el gobierno, no pagado por el demandado para classificar los trozos
exportados; debido a los trabajos de classificacion que duro 6 dias, en su ultimo dia
Lara no durmio toda la noche, al dia siguiente, Lara fue atacado de malaria, tenia
inflamada la cara y cuerpo, sufria dolores de cabeza con erupciones en la cara y
cuerpo; que en la manana, del dia 2 de enero de 1954, fecha en que Lara salio de
Davao para Parang, en aeroplano para clasificar los trozos del demandado, el automobil
de este condujo a aquel al aerodromo de Davao.

xxx xxx xxx

El viaje de Cotabato a Davao no es menos de 8 horas, su carretera esta en malas

condiciones, desnivelada, con piedras salientes y baches, que hacen del vehiculo no
estable en su marcha. Lara estaba enfermo de cierta gravedad, tenia el cuerpo y cara
inflamados, atacado de malaria, con dolores de cabeza y con erupciones en la cara y
cuerpo.

A la vista de estos hechos, el demandado debia de saber que era sumamente peligroso
llevar 5 pasajeros en la parte trasera del pick-up; particularmente, para la salud de Lara;
el permitirlo, el demandado no ha tomado las precausiones, para evitar un posible
accidente fatal. La negative de Lara de ocupar el asiento delantero del pick-up no
constituye a juicio del Juzgado una defensa, pues el demendado conociendo el estado
delicado de salud de Lara, no debio de haber permitido que aquel regrese a Davao en
su pick-up; si querria prestar a aquel un favor, debio de haver provisto a Lara de un
automobil para su regrese a Davao, ya que el demendado es un millionario; si no podia
prestar a aquel este favor, debio de haver dejado a Lara en Samuay para coger aquel
un camion de pasajero de Cotabato a Davao.

Even if we admit as true the facts found by the trial court, still we find that the same are not
sufficient to show that defendant has failed to take the precaution necessary to conduct his
passengers safely to their place of destination for there is nothing there to indicate that
defendant has acted with negligence or without taking the precaution that an ordinary prudent
man would have taken under similar circumstances. It should be noted that Lara went to the
lumber concession of defendant in answer to a call of duty which he was bound to perform
because of the requirement of his office and he contracted the malaria fever in the course of the
performance of that duty. It should also be noted that defendant was not in duty bound to take
the deceased in his own pick-up to Davao because from Parang to Cotabato there was a line of
transportation that regularly makes trips for the public, and if defendant agreed to take the
deceased in his own car, it was only to accommodate him considering his feverish condition and
his request that he be so accommodated. It should also be noted that the passengers who rode
in the pick-up of defendant took their respective seats therein at their own choice and not upon
indication of defendant with the particularity that defendant invited the deceased to sit with him
in the front seat but which invitation the deceased declined. The reason for this can only be
attributed to his desire to be at the back so that he could sit on a bag and travel in a reclining
position because such was more convenient for him due to his feverish condition. All the
circumstances therefore clearly indicate that defendant had done what a reasonable prudent
man would have done under the circumstances.

There is every reason to believe that the unfortunate happening was only due to an unforeseen
accident accused by the fact that at the time the deceased was half asleep and must have fallen
from the pick-up when it ran into some stones causing it to jerk considering that the road was
then bumpy, rough and full of stones.

The finding of the trial court that the pick-up was running at more than 40 kilometers per hour is
not supported by the evidence. This is a mere surmise made by the trial court considering the
time the pick-up left barrio Samoay and the time the accident occured in relation to the distance
covered by the pick-up. And even if this is correct, still we say that such speed is not
unreasonable considering that they were traveling on a national road and the traffic then was
not heavy. We may rather attribute the incident to lack of care on the part of the deceased
considering that the pick-up was open and he was then in a crouching position. Indeed, the law
provides that "A passenger must observe the diligence of a good father of a family to avoid
injury to himself" (Article 1761, new Civil Code), which means that if the injury to the passenger
has been proximately caused by his own negligence, the carrier cannot be held liable.

All things considered, we are persuaded to conclude that the accident occurred not due to the
negligence of defendant but to circumstances beyond his control and so he should be exempt
from liability.

Wherefore, the decision appealed from is reversed, without pronouncement as to costs.

G.R. No. L-8034 November 18, 1955

CORNELIA A. DE GILLACO, ET AL., plaintiffs-appellees,

vs.
MANILA RAILROAD COMPANY, defendant-appellant.

First Assistant Corporate Counsel Federico C. Alikpala and Attorney Higino R. Francisco for
appellant.
Restituto Luna for appellees.

REYES, J.B.L., J.:

The Manila Railroad Company has appealed from a judgment of the Court of First Instance of
Laguna sentencing it to pay P4,000 damages to the appellees herein, the widow and children of
the late Tomas Gillaco, shot by an employee of the Company in April, 1946.

The judgment was rendered upon the following stipulation of facts:

That at about 7:30 a.m., on the morning of April 1, 1946, Lieut. Tomas Gillaco, husband
of the plaintiff, was a passenger in the early morning train of the Manila Railroad
Company from Calamba, Laguna to Manila;

That when the train reached the Paco Railroad station, Emilio Devesa, a train guard of
the Manila Railroad Company assigned in the Manila-San Fernando, La Union Line,
happened to be in said station waiting for the same train which would take him to
Tutuban Station, where he was going to report for duty;

That Emilio Devesa had a long standing personal grudge against Tomas Gillaco, same
dating back during the Japanese occupation;

That because of this personal grudge, Devesa shot Gillaco with the carbine furnished to
him by the Manila Railroad Company for his use as such train guard, upon seeing him
inside the train coach;
 That Tomas Gillaco died as a result of the would which he sustained from the shot fired
by Devesa.

It is also undisputed that Devesa was convicted with homicide by final judgment of the Court of
Appeals.

Appellant's contention is that, on the foregoing facts, no liability attaches to it as employer of the
killer, Emilio Devesa; that it is not responsible subsidiary ex delicto, under Art. 103 of the
Revised Penal Code, because the crime was not committed while the slayer was in the actual
performance of his ordinary duties and service; nor is it responsible ex contractu, since the
complaint did not aver sufficient facts to establish such liability, and no negligence on
appellant's party was shown. The Court below held the Railroad company responsible on the
ground that a contract of transportation implies protection of the passengers against acts of
personal violence by the agents or employees of the carrier.

There can be no quarrel with the principle that a passenger is entitled to protection from
personal violence by the carrier or its agents or employees, since the contract of transportation
obligates the carrier to transport a passenger safely to his destination. But under the law of the
case, this responsibility extends only to those that the carrier could foresee or avoid through the
exercise of the degree of car and diligence required of it.

Discussing the basis of a carrier's liability under the old Civil Code of 1889 (which was in force in
1946, when Gillaco was shot) this Court said in Lasam vs. Smith (45 Phil., 657):

In our opinion, the conclusions of the court below are entirely correct. That upon the
facts stated the defendant's liability, if any, is contractual, is well settled by previous
decisions of the court, beginning with the case of Rakes vs. Atlantic, Gulf & Pacific Co.
(7 Phil., 359), and the distinction between extra-contractual liability and contractual
liability has been so ably and exhaustively discussed in various other cases that nothing
further need here be said upon that subject. (See Cangco vs. Manila Railroad Co., 38
Phil., 768; Manila Railroad vs. Compañia Transatlantica and Atlantic, Gulf & Pacific Co.,
38 Phil., 875; De Guia vs. Manila Electric Railroad & Light Co., 40 Phil., 706). It is
sufficient to reiterate that the source of the defendant's legal liability is the contract of
carriage; that by entering into that contract he bound himself to carry the plaintiff safely
and securely to their destination; and that having failed to do so he is liable in damages
unless he shows that the failure to fulfill his obligation was due to causes mentioned in
article 1105 of the Civil Code, which reads as follows:

"No one shall be liable for events which could not be foreseen or which, even if foreseen,
were inevitable, with the exception of the cases in which the law expressly provides
otherwise and those in which the obligation itself imposes such liability."

The act of guard Devesa in shooting passenger Gillaco (because of a personal grudge nurtured
against the latter since the Japanese occupation) was entirely unforeseeable by the Manila
Railroad Co. The latter had no means to ascertain or anticipate that the two would meet, nor
could it reasonably foresee every personal rancor that might exist between each one of its many
employees and any one of the thousands of eventual passengers riding in its trains. The
shooting in question was therefore "caso fortuito" within the definition of article 105 of the old
Civil Code, being both unforeseeable and inevitable under the given circumstances; and
pursuant to established doctrine, the resulting breach of appellant's contract of safe carriage
with the late Tomas Gillaco was excused thereby.

No doubt that a common carrier is held to a very high degree of care and diligence in the
protection of its passengers; but, considering the vast and complex activities of modern rail
transportation, to require of appellant that it should guard against all possible misunderstanding
between each and every one of its employees and every passenger that might chance to ride in
its conveyances at any time, strikes us as demanding diligence beyond what human care and
foresight can provide.

The lower Court and the appellees both relied on the American authorities that particularly hold
carriers to be insurers of the safety of their passengers against willful assault and intentional ill
treatment on the part of their servants, it being immaterial that the act should be one of private
retribution on the part of the servant, impelled by personal malice toward the passenger (10 Am.
Jur. 108; Ed. Note to Gassenheimer vs. Wester R. Co. 40 LRA (NS), p. 999, et seq.) But as can
be inferred from the previous jurisprudence of this Court , the Civil Code of 1889 did not impose
such absolute liability (Lasam vs. Smith, supra). The liability of a carrier as an insurer was not
recognized in this jurisdiction (Government vs. Inchausti & Co., 40 Phil., 219; Oriental Comm.
Co. vs. Naviera Filipina, 38 Off. Gaz., 1020).

Another very important consideration that must be borne in mind is that, when the crime took
place, the guard Devesa had no duties to discharge in connection with the transportation of the
deceased from Calamba to Manila. The stipulation of facts is clear that when Devesa shot and
killed Gillaco, Devesa was assigned to guard the Manila-San Fernando (La Union) trains, and
he was at Paco Station awaiting transportation to Tutuban, the starting point of the train that he
was engaged to guard. In fact, his tour of duty was to start at 9:00 a.m., two hours after the
commission of the crime. Devesa was therefore under no obligation to safeguard the passenger
of the Calamba-Manila train, where the deceased was riding; and the killing of Gillaco was not
done in line of duty. The position of Devesa at the time was that of another would be passenger,
a stranger also awaiting transportation, and not that of an employee assigned to discharge any
of the duties that the Railroad had assumed by its contract with the deceased. As a result,
Devesa's assault cannot be deemed in law a breach of Gillaco's contract of transportation by a
servant or employee of the carrier. We agree with the position taken by the Supreme Court of
Texas in a similar case, where it held:

The only good reason for making the carrier responsible for the misconduct of the
servant perpetrated in his own interest, and not in that of his employer, or otherwise
within the scope of his employment, is that the servant is clothed with the delegated
authority, and charge with the duty by the carrier, to execute his undertaking with the
passenger. And it cannot be said, we think, that there is any such delegation to the
employees at a station with reference to passenger embarking at another or traveling on
the train. Of course, we are speaking only of the principle which holds a carrier
responsible for wrong done to passenger by servants acting in their own interest, and
not in that of the employer. That principle is not the ordinary rule, respondent
superior, by which the employer is held responsible only for act or omissions of the
employee in the scope of his employment; but the only reason in our opinion for a
broader liability arises from the fact that the servant, in mistreating the passenger wholly
for some private purpose of his own, in the very act, violates the contractual obligation of
the employer for the performance of which he has put the employee in his place. The
reason does not exist where the employee who committed the assault was never in a
 position in which it became his duty to his employer to represent him in discharging any
duty of the latter toward the passenger. The proposition that the carrier clothes every
employee engaged in the transportation business with the comprehensive duty of
protecting every passenger with whom he may in any way come in contact, and hereby
makes himself liable for every assault commited by such servant, without regard to the
inquiry whether or not the passenger has come within the sphere of duty of that servant
as indicated by the employment, is regarded as not only not sustained by the authorities,
but as being unsound and oppressive both to the employer and the employee. (Houston
& T. C. R. Co. vs. Bush, 32 LRA (NS), p. 1205.)

Wherefore, the judgment appealed from is reversed and the complaint ordered dismissed,
without cost. So ordered.

G.R. No. L-19161 April 29, 1966

MANILA RAILROAD COMPANY, petitioner,

vs.
MACARIA BALLESTEROS, TIMOTEO CAMAYO, JOSE REYES and JULIAN MAIMBAN,
JR., respondents.

Gov't Corp. Counsel S. M. Gopengco and Atty. R. G. Fernando, for petitioner.

George G. Arbolario, for respondents.

MAKALINTAL, J.:

In civil case No. 45968 of the Court of First Instance of Manila (Macaria Ballesteros, Timoteo
Camayo, Jose Reyes and Julian Maimban, Jr. vs. Manila Railroad Company) the defendant was
adjudged to pay damages in the following amounts: P2,400 to Macaria Ballesteros; P4,000 to
Timoteo Camayo; P3,000 to Jose Reyes: and P2,000, plus P1,000 as attorney's fees, to Julian
Maimban, Jr.

The defendant appealed from the judgment, but upon motion by the plaintiffs, the trial court, by
order dated October 14, 1961, dismissed the appeal on the ground that it was "manifestly and
palpably frivolous and interposed ostensibly to delay the settlement of the just and reasonable
claims of the herein plaintiffs, which have been pending since 1958." The defendant moved to
reconsider, and upon denial of its motion instituted in this Court the instant petition
for mandamus to set aside the order of dismissal and to order respondent court to give due
course to the appeal.
In filing the petition directly with this Court, petitioner evidently intended to raise only questions
of law in the appeal contemplated, since under Rule 41, section 15, "when erroneously a motion
to dismiss an appeal is granted or a record on appeal is disallowed by the trial court, a proper
petition for mandamus may be filed in the appellate court;" and under section 17(6) of the
Judiciary Act this Court may review on appeal only questions of law in civil cases decided by
inferior courts unless the value in controversy exceeds P200,000.1äwphï1.ñët

The fact that an appeal is frivolous and interposed only for purposes of delay has been
recognized as a valid ground to deny issuance of the writ of mandamus to compel the trial court
to approve and certify the appeal. In De la Cruz vs. Blanco and Quevedo, 73 Phil. 596, We held:

And where as in the instant case, the dismissal has been ordered by the trial court, it
would not be disturbed in the Appellate Court if the latter finds the appeal to have been
interposed ostensibly for delay. It has been held that a frivolous appeal is one presenting
no justiciable question or one so readily cognizable as devoid of merit on the face of the
record that there is little, if any, prospect that it can over succeed. The instant case is
one such instance in which the appeal is evidently without merit, taken manifestly for
delay.

And in Paner vs. Yatco, 87 Phil. 271, We denied the writ prayed for and held that "while strictly
and legally speaking the petition may be granted, we may, before acting thereon, inquire into
the facts involved in order to determine whether once the writ is granted and the case is brought
up here on appeal the appellant has any chance, even possibility, of having the basic decision
of the trial court set aside or modified; for if the appellant has not that prospect or likelihood then
the granting of the writ and the consequent appeal would be futile and would mean only a waste
of time to the parties and to this Court."

The material facts, as found by respondent court in its decision, are as follows: Private
respondents here, plaintiffs below, were passengers on petitioner's bus, the driver of which was
Jose Anastacio. In Bayombong, Nueva Vizcaya, Anastacio stopped the bus and got off to
replace a defective spark plug. While he was thus engaged, one Dionisio Abello, an auditor
assigned to defendant company by the General Auditing Office, took the wheel and told the
driver to sit somewhere else. With Abello driving, the bus proceeded on its way, from time to
time stopping to pick up passengers. Anastacio tried twice to take the wheel back but Abello
would not relinquish it. Then, in the language of the trial court, "while the bus was negotiating
between Km. posts 328 and 329 (in Isabela) a freight truck ... driven by Marcial Nocum ... bound
for Manila, was also negotiating the same place; when these two vehicles were about to meet at
the bend of the road Marcial Nocum, in trying to evade several holes on the right lane, where his
truck was running, swerved his truck towards the middle part of the road and in so doing, the left
front fender and left side of the freight truck smashed the left side of the bus resulting in
extensive damages to the body of the bus and injuries to seventeen of its passengers, ...
including the plaintiffs herein."

In rejecting petitioner's contention that the negligence of Marcial Nocum could not be imputed to
it and relieved it from liability, the trial court found that Dionisio Abello "was likewise reckless
when he was driving the bus at the rate of from 40 to 50 kilometers per hour on a bumpy road at
the moment of the collision."

Another defense put up by petitioner is that since Abello was not its employee it should not be
held responsible for his acts. This defense was correctly overruled by the trial court, considering
the provisions of Article 1763 of the Civil Code and section 48 (b) of the Motor Vehicle Law,
which respectively provide as follows:

Art. 1763. A common carrier is responsible for injuries suffered by a passenger on

account of the wilfull acts or negligence of other passengers or of strangers, if the
common carrier's employees through the exercise of the diligence of a good father of a
family could have prevented or stopped the act or omission.

Sec. 48(b). No professional chauffeur shall permit any unlicensed person to drive the
motor vehicle under his control, or permit a person, sitting beside him or in any other part
of the car, to interfere with him in the operation of the motor vehicle, by allowing said
person to take hold of the steering wheel, or in any other manner take part in the
manipulation or control of the car.

It appears further, and so the trial court found, that there were negotiations between the parties
to compromise the case, as a result of which respondents herein, plaintiffs below, considerably
reduced their claims to the amounts subsequently awarded in the judgment; that petitioner had
in fact settled the claims of the other passengers who were also injured in the same accident
and even the claim for damages filed in another action by the owner of the freight truck; and that
the Government Corporate Counsel himself, who represents herein petitioner, rendered two
separate opinions (Op. No. 86, May 19, 1960; and Op. No. 99, series of 1961) wherein, after
analyzing the facts and the law applicable, he reached the conclusion that the acts of the bus
personnel, particularly "in allowing Mr. Abello to drive despite two occasions when the bus
stopped and the regular driver could have taken over, constitute reckless imprudence and
wanton injurious conduct on the part of the MRR employees." On the basis of those opinions
the Government Corporate Counsel advised petitioner that the offer of the claimants was
reasonable and should be accepted. His advice, however, was not favorably acted upon,
petitioner obviously preferring to litigate.

The issues proposed to be taken up on appeal, as set forth in the petition, are whether or not
Dionisio Abello acted with reckless negligence while driving petitioner's bus at the time of the
accident, and whether or not petitioner may be held liable on account of such negligence,
considering that he was not its employee. These are no longer justiciable questions which would
justify our issuing the peremptory writ prayed for. The first is a question of fact on which the
affirmative finding of respondent court is not reviewable by Us; and the second is one as to
which there can be no possible doubt in view of the provisions of the Civil Code and of the
Motor Vehicle Law hereinbefore cited. There would be no point in giving the appeal due course.

The writ prayed for is denied, with costs against petitioner.

G.R. No. 119756 March 18, 1999

FORTUNE EXPRESS, INC., petitioner,

vs.
COURT OF APPEALS, PAULIE U.CAORONG, and minor childrenYASSER KING
CAORONG, ROSE HEINNI and PRINCE ALEXANDER, all surnamed CAORONG, and
represented by their mother PAULIE U. CAORONG, respondents.

MENDOZA, J.:

This is an appeal by petition for review on certiorari of the decision, dated July 29, 1994, of the
Court of Appeals, which reversed the decision of the Regional Trial Court, Branch VI, Iligan City.
The aforesaid decision of the trial court dismissed the complaint of public respondents against
petitioner for damages for breach of contract of carriage filed on the ground that petitioner had
not exercised the required degree of diligence in the operation of one of its buses. Atty. Talib
Caorong, whose heirs are private respondents herein, was a passenger of the bus and was
killed in the ambush involving said bus.

The facts of the instant case are as follows:

Petitioner is a bus company in northern Mindanao. Private respondent Paulie Caorong is the
widow of Atty. Caorong, while private respondents Yasser King, Rose Heinni, and Prince
Alexander are their minor children.

On November 18, 1989, a bus of petitioner figured in an accident with a jeepney in Kauswagan,
Lanao del Norte, resulting in the death of several passengers of the jeepney, including two
Maranaos. Crisanto Generalao, a volunteer field agent of the Constabulary Regional Security
Unit No. X, conducted an investigation of the accident. He found that the owner of the jeepney
was a Maranao residing in Delabayan, Lanao del Norte and that certain Maranaos were
planning to take revenge on the petitioner by burning some of its buses. Generalao rendered a
report on his findings to Sgt. Reynaldo Bastasa of the Philippine Constabulary Regional
Headquarters at Cagayan de Oro. Upon the instruction of Sgt. Bastasa, he went to see
Diosdado Bravo, operations manager of petitioner, its main office in Cagayan de Oro City.
Bravo assured him that the necessary precautions to insure the safety of lives and property
would be taken.1

At about 6:45 P.M. on November 22, 1989, three armed Maranaos who pretended to be
passengers, seized a bus of petitioner at Linamon, Lanao del Norte while on its way to Iligan
City. Among the passengers of the bus was Atty. Caorong. The leader of the Maranaos,
identified as one Bashier Mananggolo, ordered the driver, Godofredo Cabatuan, to stop the bus
on the side of the highway. Mananggolo then shot Cabatuan on the arm, which caused him to
slump on the steering wheel. The one of the companions of Mananggolo started pouring
gasoline inside the bus, as the other held the passenger at bay with a handgun. Mananggolo
then ordered the passenger to get off the bus. The passengers, including Atty. Caorong,
stepped out of the bus and went behind the bushes in a field some distance from the highway.2

However, Atty. Caorong returned to the bus to retrieve something from the overhead rack. at
that time, one of the armed men was pouring gasoline on the head of the driver. Cabatuan, who
had meantime regained consciousness, heard Atty. Caorong pleading with the armed men to
spare the driver as he was innocent of any wrong doing and was only trying to make a living.
The armed men were, however, adamant as they repeated the warning that they were going to
burn the bus along with its driver. During this exchange between Atty. Caorong and the
assailants, Cabatuan climbed out of the left window of the bus and crawled to the canal on the
opposite side of the highway. He heard shots from inside the bus. Larry de la Cruz, one of the
passengers, saw that Atty. Caorong was hit. Then the bus was set on fire. Some of the
passengers were able to pull Atty. Caorong out of the burning bus and rush him to the Mercy
Community Hospital in Iligan City, but he died while undergoing operation.3

The private respondents brought this suit for breach of contract of carriage in the Regional Trial
Court, Branch VI, Iligan City. In its decision, dated December 28, 1990, the trial court dismissed
the complaint, holding as follows:

The fact that defendant, through Operations Manager Diosdado Bravo, was
informed of the "rumors" that the Moslems intended to take revenge by burning
five buses of defendant is established since the latter also utilized Crisanto
 Generalao as a witness. Yet despite this information, the plaintiffs charge,
defendant did not take proper precautions. . . . Consequently, plaintiffs now fault
the defendant for ignoring the report. Their position is that the defendant should
have provided its buses with security guards. Does the law require common
carriers to install security guards in its buses for the protection and safety of its
passengers? Is the failure to post guards on omission of the duty to "exercise the
diligence of a good father of the family" which could have prevented the killing of
Atty. Caorong? To our mind, the diligence demanded by law does not include the
posting of security guard in buses. It is an obligation that properly belongs to the
State. Besides, will the presence of one or two security guards suffice to deter a
determined assault of the lawless and thus prevent the injury complained of?
Maybe so, but again, perhaps not. In other words, the presence of a security
guard is not a guarantee that the killing of Atty. Caorong would have been
definitely avoided.

xxx xxx xxx

Accordingly, the failure of defendant to accord faith and credit to the report of Mr.
Generalao and the fact that it did not provide security to its buses cannot, in the
light of the circumstances, be characterized as negligence.

Finally, the evidence clearly shows that the assalants did not have the least
intention of the harming any of the passengers. They ordered all the passengers
to alight and set fire on the bus only after all the passengers were out of danger.
The death of Atty. Caorong was an unexpected and unforseen occurrense over
which defendant had no control. Atty. Caorong performed an act of charity and
heroism in coming to the succor of the driver even in the face of danger. He
deserves the undying gratitude of the driver whose life he saved. No one should
blame him for an act of extraordinary charity and altruism which cost his life. But
neither should any blame be laid on the doorstep of defendant. His death was
solely due to the willfull acts of the lawless which defendant could neither prevent
nor to stop.

WHEREFORE, in view of the foregoing, the complaint is hereby dismissed. For

lack of merit, the counter-claim is likewise dismissed. No costs.4

On appeal, however, the Court of Appeals reversed. It held:

In the case at bench, how did defendant-appellee react to the tip or information
that certain Maranao hotheads were planning to burn five of its buses out of
revenge for the deaths of two Maranaos in an earlier collision involving appellee's
bus? Except for the remarks of appellee's operations manager that "we will have
our action . . . . and I'll be the one to settle it personally," nothing concrete
whatsoever was taken by appellee or its employees to prevent the execution of
the threat. Defendant-appellee never adopted even a single safety measure for
the protection of its paying passengers. Were there available safeguards? Of
course, there were: one was frisking passengers particularly those en route to
the area where the threats were likely to be carried out such as where the earlier
accident occurred or the place of influence of the victims or their locality. If
frisking was resorted to, even temporarily, . . . . appellee might be legally
 excused from liabilty. Frisking of passengers picked up along the route could
have been implemented by the bus conductor; for those boarding at the bus
terminal, frisking could have been conducted by him and perhaps by additional
personnel of defendant-appellee. On hindsight, the handguns and especially the
gallon of gasoline used by the felons all of which were brought inside the bus
would have been discovered, thus preventing the burning of the bus and the fatal
shooting of the victim.

Appellee's argument that there is no law requiring it to provide guards on its

buses and that the safety of citizens is the duty of the government, is not well
taken. To be sure, appellee is not expected to assign security guards on all its
buses; if at all, it has the duty to post guards only on its buses plying
predominantly Maranaos areas. As discussed in the next preceding paragraph,
least appellee could have done in response to the report was to adopt a system
of verification such as the frisking of passengers boarding at its buses. Nothing,
and no repeat, nothing at all, was done by defendant-appellee to protect its
innocent passengers from the danger arising from the "Maranao threats." It must
be observed that frisking is not a novelty as a safety measure in our society.
Sensitive places — in fact, nearly all important places — have applied this
method of security enhancement. Gadgets and devices are avilable in the market
for this purpose. It would not have weighed much against the budget of the bus
company if such items were made available to its personnel to cope up with
situations such as the "Maranaos threats."

In view of the constitutional right to personal privacy, our pronouncement in this

decision should not be construed as an advocacy of mandatory frisking in all
public conveyances. What we are saying is that given the circumstances
obtaining in the case at bench that: (a) two Maranaos died because of a
vehicular collision involving one of appellee's vehicles; (b) appellee received a
written report from a member of the Regional Security Unit, Constabulary
Security Group, that the tribal/ethnic group of the two deceased were planning to
burn five buses of appellee out of revenge; and (c) appelle did nothing —
absolutely nothing — for the safety of its passengers travelling in the area of
influence of the victims, appellee has failed to exercise the degree of dilegence
required of common carriers. Hence, appellee must be adjudge liable.

xxx xxx xxx

WHEREFORE the decision appealed from is hereby REVERSED and another

rendered ordering defendant-appellee to pay plaintiffs-appellants the following:

1) P3,399,649.20 as death indemnity;

2) P50,000.00 and P500.00 per appearance as

attorney's fee and

Costs against defendant-appellee.5

Hence, this appeal. Petitioner contends:

 (A) THAT PUBLIC RESPONDENT ERRED IN
REVERSING THE DECISION OF THE REGIONAL
TRIAL COURT DATED DECEMBER 28, 1990
DISMISSING THE COMPLAINT AS WELL AS THE
COUNTERCLAIM, AND FINDING FOR PRIVATE
RESPONDENTS BY ORDERING PETITIONER TO
PAY THE GARGANTUAN SUM OF P3,449,649.20
PLUS P500.00 PER APPEARANCE AS
ATTORNEY'S FEES, AS WELL AS DENYING
PETITIONERS MOTION FRO
RECONSIDERATION AND THE SUPPLEMENT
TO SAID MOTION, WHILE HOLDING, AMONG
OTHERS, THAT THE PETITIONER BREACHED
THE CONTRACT OF THE CARRIAGE BY ITS
FAILURE TO EXCERCISE THE REQUIRED
DEGREE OF DILIGENCE;

(B) THAT THE ACTS OF THE MARANAO

OUTLAWS WERE SO GRAVE, IRRESISTABLE,
VIOLENT, AND FORCEFULL, AS TO BE
REGARDED AS CASO FORTUITO; AND

(C) THAT PUBLIC RESPONDENT COURT OF

APPEALS SERIOUSLY ERRED IN HOLDING
THAT PETITIONER COULD HAVE PROVIDED
ADEQUATE SECURITY IN PREDOMINANTLY
MUSLIM AREAS AS PART OF ITS DUTY TO
OBSERVE EXTRA-ORDINARY DILIGENCE AS A
COMMON CARRIER.

The instant has no merit.

First. Petitioner's Breach of the Contract of Carriage.

Art. 1763 of the Civil Code provides that a common carrier is responsible for injuries suffered by
a passenger on account of wilfull acts of other passengers, if the employees of the common
carrier could have prevented the act through the exercise of the diligence of a good father of a
family. In the present case, it is clear that because of the negligence of petitioner's employees,
the seizure of the bus by Mananggolo and his men was made possible.

Despite warning by the Philippine Constabulary at Cagayan de Oro that the Maranaos were
planning to take revenge on the petitioner by burning some of its buses and the assurance of
petitioner's operation manager, Diosdado Bravo, that the necessary precautions would be
taken, petitioner did nothing to protect the safety of its passengers.

Had petitioner and its employees been vigilant they would not have failed to see that the
malefactors had a large quantity of gasoline with them. Under the circumstances, simple
precautionary measures to protect the safety of passengers, such as frisking passengers and
inspecting their baggages, preferably with non-intrusive gadgets such as metal detectors, before
allowing them on board could have been employed without violating the passenger's
constitutional rights. As this Court amended in Gacal v. Philippine Air Lines, Inc., 6 a common
carrier can be held liable for failing to prevent a hijacking by frisking passengers and inspecting
their baggages.

From the foregoing, it is evident that petitioner's employees failed to prevent the attack on one
of petitioner's buses because they did not exercise the diligence of a good father of a family.
Hence, petitioner should be held liable for the death of Atty. Caorong.

Second. Seizure of Petitioner's Bus not a Case of Force Majeure

The petitioner contends that the seizure of its bus by the armed assailants was a fortuitous
event for which it could not be held liable.

Art. 1174 of the Civil Code defines a fortuitous event as an occurence which could not be
foreseen, is inevitable. In Yobido v. Court of Appeals, 7 we held that to considered as force
majeure, it is necessary that (1) the cause of the breach of the obligation must be independent
of the human will; (2) the event must be either unforeseeable or unavoidable; (3) the occurence
must be render it impossible for the debtor to fulfill the obligation in a normal manner; and (4)
the obligor must be free of participation in, or aggravation of, the injury to the creditor. The
absence of any of the requisites mentioned above would prevent the obligor from being excused
from liability.

Thus, in Vasquez v. Court of Appeals, 8 it was held that the common carrier was liable for its
failure to take the necessary precautions against an approaching typhoon, of which it was
warned, resulting in the loss of the lives of several passengers. The event was forseeable, and,
thus, the second requisite mentioned above was not fulfilled. This ruling applies by analogy to
the present case. Despite the report of PC agent Generalao that the Maranaos were going to
attack its buses, petitioner took no steps to safeguard the lives and properties of its passengers.
The seizure of the bus of the petitioner was foreseeable and, therefore, was not a fortuitous
event which would exempt petitioner from liabilty.

Petitioner invokes the ruling in Pilapil v. Court of Appeals, 9 and De Guzman v. Court of
Appeals, 10 in support of its contention that the seizure of its bus by the assailants constitutes
force majeure. In Pilapil v. Court of Appeals, 11 it was held that a common carrier is not liable for
failing to install window grills on its buses to protect the passengers from injuries cause by rocks
hurled at the bus by lawless elements. On the other hand, in De Guzman v. Court of
Appeals, 12 it was ruled that a common carriers is not responsible for goods lost as a result of a
robbery which is attended by grave or irresistable threat, violence, or force.

It is clear that the cases of Pilapil and De Guzman do not apply to the prensent case. Art. 1755
of the Civil Code provides that "a common carrier is bound to carry the passengers as far as
human care and foresight can provide, using the utmost diligence of very cautious persons, with
due regard for all the circumstances." Thus, we held in Pilapil and De Guzman that the
respondents therein were not negligent in failing to take special precautions against threats to
the safety of passengers which could not be foreseen, such as tortious or criminal acts of third
persons. In the present case, this factor of unforeseeability (the second requisite for an event to
be considered force majeure) is lacking. As already stated, despite the report of PC agent
Generalao that the Maranaos were planning to burn some of petitioner's buses and the
assurance of petitioner's operation manager (Diosdado Bravo) that the necessary precautions
would be taken, nothing was really done by petitioner to protect the safety of passengers.
Third. Deceased not Guilty of Contributory Negligence

The petitioner contends that Atty. Caorong was guilty of contributory negligence in returning to
the bus to retrieve something. But Atty. Caorong did not act recklessly. It should be pointed out
that the intended targets of the violence were petitioners and its employees, not its passengers.
The assailant's motive was to retaliate for the loss of life of two Maranaos as a result of the
collision between petitioner's bus and the jeepney in which the two Maranaos were riding.
Mananggolo, the leader of the group which had hijacked the bus, ordered the passengers to get
off the bus as they intended to burn it and its driver. The armed men actually allowed Atty.
Caorong to retrieve something from the bus. What apparently angered them was his attempt to
help the driver of the bus by pleading for his life. He was playing the role of the good Samaritan.
Certainly, this act cannot considered an act of negligence, let alone recklessness.

Fourth. Petitioner Liable to Private Respaondents for Damages

We now consider the question of damages that the heirs of Atty. Caorong, private respondents
herein, are entitled to recover from the petitioner.

Indemnity for Death. Art. 1764 of the Civil Code, in relation to Art. 2206 thereof, provides for the
payment of indemnity for the death of passengers caused by the breach of contract of carriage
by a common carrier. Initially fixed in Art. 2206 at P3,000.00, the amount of the said indemnity
for death has through the years been gradually increased in view of the declining value of the
peso. It is presently fixed at P50,000.00. 13 Private respondents are entitled to this amount.

Actual Damages. Art. 2199 provides that "except as provided by law or by stipulation, one is
entitled to an adequate compensation only for such pecuniary loss suffered by him as has duly
proved." The trial court found that the private respondents spent P30,000.00 for the wake and
burial of Atty. Caorong. 14 Since petitioner does not question this finding of the trial court, it is
liable to private respondent in the said amount as actual damages.

Moral Damages. Under Art. 2206, the "spouse, legitimate and illegitimate descendants and
ascendants of the deceased may demand moral damages for mental anguish by reason of the
death of the deceased." The trial court found that private respondent Paulie Caorong suffered
pain from the death of her husband and worry on how to provide support for their minor children,
private respondents Yasser King, Rose Heinni, and Prince Alexander. 15 The petitioner likewise
does not question this finding of the trial court. Thus, in accordance with recent decisions of this
Court, 16 we hold that the petitioner is liable to the private respondents in the amount of
P100,000.00 as moral damages for the death of Atty. Caorong.

Exemplary Damages. Art. 2232 provides that "in contracts and quasi-contracts, the court may
award exemplary damages if the defendant acted in a wanton, fraudulent, reckless, oppressive,
or malevolent reckless manner." In the present case, the petitioner acted in a wanton and
reckless manner. Despite warning that the Maranaos were planning to take revenge against the
petitioner by burning some of its buses, and contary to the assurance made by its operations
manager that the necessary precautions would be take, the petitioner and its employees did
nothing to protect the safety of passengers. Under the circumtances, we deem it reasonable to
award private respondents exemplary damages in the amount of P100,000.00.17

Attorney's Fees. Pursuant to Art. 2208, attorney's fees may be recovered when, as in the instant
case, exemplary damages are awarded. In the recent case of Sulpicio Lines, Inc. v. Court of
Appeals, 18 we held an award of P50,000.00 as attorney's fees to be reasonable. Hence, the
private respondents are entitled to attorney's fees in that amount.

Compensation for Loss of Earning Capacity. Art. 1764 of the Civil Code, in relation to Art. 2206
thereof, provides that in addition to the indemnity for death arising from the breach of contrtact
of carriage by a common carrier, the "defendant shall be liable for the loss of the earning
capacity of the deceased, and the indemnity shall be paid to the heirs of the latter." The formula
established in decided cases for computing net earning capacity is as follows:19

Gross Necessary

Net Earning = Life x Annual — Living

Capacity Expectancy Income Expenses

Life expectancy is equivalent to two thirds (2/3) multiplied by the difference of eighty (80) and
the age of the deceased. 20 Since Atty. Caorong was 37 years old at that time of his death, 21 he
had a life expectancy of 28 2/3 more years.22 His projected gross annual income, computed
based on his monthly salary of P11,385.00. 23 as a lawyer in the Department of Agrarian Reform
at the time of his death, was P148,005.00. 24 Allowing for necessary living expenses of fifty
percent (50%) 25 of his projected gross annual income, his total earning capacity amounts to
P2,121,404.90. 26 Hence, the petitioner is liable to the private respondents in the said amount as
a compensation for loss of earning capacity.

WHEREFORE, the decision, dated July 29, 1994, of the Court of Appeals is hereby AFFIRMED
with the MODIFICATION that petitioner Fortune Express, Inc. is ordered to pay the following
amounts to private respondents Paulie, Yasser King, Rose Heinni, and Prince Alexander
Caorong:

1. death indemnity in the amount of fifty thousand pesos (P50,000.00);

2. actual damages in the amount of thirty thousand pesos (P30,000.00);

3. moral damages in the amount of one hundred thousand pesos (P100,000.00);

4. exemplary damages in the amount of one hundred thousand pesos (P100,000.00);

5. attorney's fees in the amount of fifty thousand pesos (P50,000.00);

6. compensation for loss of earning capacity in the amount of two million one hundred twenty-
one thousand four hundred four pesos and ninety centavos (P2,121,404.90); and

7. cost of suits.

SO ORDERED.
G.R. No. L-55347 October 4, 1985

PHILIPPINE NATIONAL RAILWAYS, petitioner,

vs.
THE HONORABLE COURT OF APPEALS and ROSARIO TUPANG, respondents.

Arturo Samaniego for private respondent.

ESCOLIN, J.:

Invoking the principle of state immunity from suit, the Philippine National Railways, PNR for
short, instituted this petition for review on certiorari to set aside the decision of the respondent
Appellate Court which held petitioner PNR liable for damages for the death of Winifredo
Tupang, a paying passenger who fell off a train operated by the petitioner.

The pertinent facts are summarized by the respondent court as follows:

The facts show that on September 10, 1972, at about 9:00 o'clock in the evening,
Winifredo Tupang, husband of plaintiff Rosario Tupang, boarded 'Train No. 516
of appellant at Libmanan, Camarines Sur, as a paying passenger bound for
Manila. Due to some mechanical defect, the train stopped at Sipocot, Camarines
Sur, for repairs, taking some two hours before the train could resume its trip to
Manila. Unfortunately, upon passing Iyam Bridge at Lucena, Quezon, Winifredo
Tupang fell off the train resulting in his death.The train did not stop despite the
alarm raised by the other passengers that somebody fell from the train. Instead,
the train conductor Perfecto Abrazado, called the station agent at Candelaria,
Quezon, and requested for verification of the information. Police authorities of
Lucena City were dispatched to the Iyam Bridge where they found the lifeless
body of Winifredo Tupang.

As shown by the autopsy report, Winifredo Tupang died of cardio-respiratory

failure due to massive cerebral hemorrhage due to traumatic injury [Exhibits B
and C, Folder of Exhibits],Tupang was later buried in the public cemetery of
Lucena City by the local police authorities. [Rollo, pp. 91-92]

Upon complaint filed by the deceased's widow, Rosario Tupang, the then Court of First Instance
of Rizal, after trial, held the petitioner PNR liable for damages for breach of contract of carriage
and ordered "to pay the plaintiff the sum of P12,000,00 for the death of Winifredo Tupang, plus
P20,000.00 for loss of his earning capacity and the further sum of P10,000.00 as moral
damages, and P2,000.00 as attorney's fees, and costs. 1

On appeal, the Appellate Court sustained the holding of the trial court that the PNR did not
exercise the utmost diligence required by law of a common carrier. It further increased the
amount adjudicated by the trial court by ordering PNR to pay the plaintiff an additional sum of
P5,000.00 as exemplary damages.
Moving for reconsideration of the above decision, the PNR raised for the first time, as a
defense, the doctrine of state immunity from suit. It alleged that it is a mere agency of the
Philippine government without distinct or separate personality of its own, and that its funds are
governmental in character and, therefore, not subject to garnishment or execution. The motion
was denied; the respondent court ruled that the ground advanced could not be raised for the
first time on appeal.

Hence, this petition for review.

The petition is devoid of merit. The PNR was created under Rep. Act 4156, as amended.
Section 4 of the said Act provides:

The Philippine national Railways shall have the following powers:

a. To do all such other things and to transact all such business directly or
indirectly necessary, incidental or conducive to the attainment of the purpose of
the corporation; and

b. Generally, to exercise all powers of a corporation under the Corporation Law.

Under the foregoing section, the PNR has all the powers, the characteristics and attributes of a
corporation under the Corporation Law. There can be no question then that the PNR may sue
and be sued and may be subjected to court processes just like any other corporation. 2

The petitioner's contention that the funds of the PNR are not subject to garnishment or
execution hardly raises a question of first impression. In Philippine National Railways v. Union
de Maquinistas, et al., 3 then Justice Fernando, later Chief Justice, said. "The main issue posed
in this certiorari proceeding, whether or not the funds of the Philippine National Railways, could
be garnished or levied upon on execution was resolved in two recent decisions, the Philippine
National Bank v. Court of Industrial Relations [81 SCRA 314] and Philippine National Bank v.
Hon. Judge Pabalan [83 SCRA 595]. This Court in both cases answered the question in the
affirmative. There was no legal bar to garnishment or execution. The argument based on non-
suability of a state allegedly because the funds are governmental in character was
unavailing.So it must be again."

In support of the above conclusion, Justice Fernando cited the Court's holding in Philippine
National Bank v. Court of Industrial Relations, to wit: "The premise that the funds could be
spoken of as public in character may be accepted in the sense that the People's Homesite and
Housing Corporation was a government-owned entity. It does not follow though that they were
exempt from garnishment. National Shipyard and Steel Corporation v. Court of Industrial
Relations is squarely in point. As was explicitly stated in the opinion of then Justice, later Chief
Justice, Concepcion: "The allegation to the effect that the funds of the NASSCO are public
funds of the government, and that, as such, the same may not be garnished, attached or levied
upon, is untenable for, as a government- owned and controlled corporation, the NASSCO has a
personality of its own, distinct and separate from that of the Government. It has-pursuant to
Section 2 of Executive Order No. 356, dated October 23, 1950 * * *, pursuant to which the
NASSCO has been established- 'all the powers of a corporation under the Corporation Law * *
*. 4
As far back as 1941, this Court in the case of Manila Hotel Employees Association v. Manila
Hotel Co., 5 laid down the rule that "when the government enters into commercial business, it
abandons its sovereign capacity and is to be treated like any other corporation. [Bank of the
U.S. v. Planters' Bank, 9 Waitch 904, 6 L. ed. 244]. By engaging in a particular business through
the instrumentality of a corporation the government divests itself pro hac vice of its sovereign
character, so as to render the corporation subject to the rules of law governing private
corporations. 6 Of Similar import is the pronouncement in Prisco v. CIR,' that "when the
government engages in business, it abdicates part of its sovereign prerogatives and descends
to the level of a citizen, ... . " In fine, the petitioner PNR cannot legally set up the doctrine of non-
suability as a bar to the plaintiff's suit for damages.

The appellate court found, the petitioner does not deny, that the train boarded by the deceased
Winifredo Tupang was so over-crowded that he and many other passengers had no choice but
to sit on the open platforms between the coaches of the train. It is likewise undisputed that the
train did not even slow down when it approached the Iyam Bridge which was under repair at the
time, Neither did the train stop, despite the alarm raised by other passengers that a person had
fallen off the train at lyam Bridge. 7

The petitioner has the obligation to transport its passengers to their destinations and to observe
extraordinary diligence in doing so. Death or any injury suffered by any of its passengers gives
rise to the presumption that it was negligent in the performance of its obligation under the
contract of carriage. Thus, as correctly ruled by the respondent court, the petitioner failed to
overthrow such presumption of negligence with clear and convincing evidence.

But while petitioner failed to exercise extraordinary diligence as required by law, 8 it appears that
the deceased was chargeable with contributory negligence. Since he opted to sit on the open
platform between the coaches of the train, he should have held tightly and tenaciously on the
upright metal bar found at the side of said platform to avoid falling off from the speeding train.
Such contributory negligence, while not exempting the PNR from liability, nevertheless justified
the deletion of the amount adjudicated as moral damages. By the same token, the award of
exemplary damages must be set aside. Exemplary damages may be allowed only in cases
where the defendant acted in a wanton, fraudulent, reckless, oppressive or malevolent
manner. 9 There being no evidence of fraud, malice or bad faith on the part of petitioner, the
grant of exemplary damages should be discarded.

WHEREFORE, the decision of the respondent appellate court is hereby modified by eliminating
therefrom the amounts of P10,000.00 and P5,000.00 adjudicated as moral and exemplary
damages, respectively. No costs.

SO ORDERED.
.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.

Francisco S. Reyes Law Office for petitioners.

Antonio C. de Guzman for private respondents.

REGALADO, J.:

On May 13, 1985, private respondents filed a complaint 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, 5
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. 6

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

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

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

From the testimony of appellees'own witness in the person of Vitaliano Safarita, it is evident that the subject bus was at full stop when the
victim Pedrito Cudiamat boarded the same as it was precisely on this instance where a certain Miss Abenoja alighted from the bus.
Moreover, contrary to the assertion of the appellees, the victim did indicate his intention to board the bus as can be seen from the testimony
of the said witness when he declared that Pedrito Cudiamat was no longer walking and made a sign to board the bus when the latter was
still at a distance from him. It was at the instance when Pedrito Cudiamat was closing his umbrella at the platform of the bus when the latter
made a sudden jerk movement (as) the driver commenced to accelerate the bus.

Evidently, the incident took place due to the gross negligence of the appellee-driver in prematurely stepping on the accelerator and in not
waiting for the passenger to first secure his seat especially so when we take into account that the platform of the bus was at the time
slippery and wet because of a drizzle. The defendants-appellees utterly failed to observe their duty and obligation as common carrier to the
end that they should observe extra-ordinary diligence in the vigilance over the goods and for the safety of the passengers transported by
them according to the circumstances of each case (Article 1733, New Civil Code). 8

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

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

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

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

A It happened between 54 and 53 bunkhouses. 9

The bus conductor, Martin Anglog, also declared:

Q When you arrived at Lepanto on March 25, 1985, will you please inform this Honorable Court if there was anv unusual incident that
occurred?
 A When we delivered a baggage at Marivic because a person alighted there between Bunkhouse 53 and 54.

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

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

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

A It is about two to three meters.

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

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

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

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

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

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

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:

Q Why, what happened to your refrigerator at that particular time?

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

COURT:

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

A Because Mr. Cudiamat met an accident, so I ask somebody to call for the family of Mr.
Cudiamat.
 Q But nobody ask(ed) you to call for the family of Mr. Cudiamat?

A No sir. 21

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

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

WHEREFORE, subject to the above modifications, the challenged judgment and resolution of respondent Court of Appeals are hereby AFFIRMED in
all other respects.
G.R. No. 122039 May 31, 2000

VICENTE CALALAS, petitioner,

vs.
COURT OF APPEALS, ELIZA JUJEURCHE SUNGA and FRANCISCO SALVA, respondents.

MENDOZA, J.:

This is a petition for review on certiorari of the decision1 of the Court of Appeals, dated March
31, 1991, reversing the contrary decision of the Regional Trial Court, Branch 36, Dumaguete
City, and awarding damages instead to private respondent Eliza Jujeurche Sunga as plaintiff in
an action for breach of contract of carriage.

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

At 10 o'clock in the morning of August 23, 1989, private respondent Eliza Jujeurche G. Sunga,
then a college freshman majoring in Physical Education at the Siliman University, took a
passenger jeepney owned and operated by petitioner Vicente Calalas. As the jeepney was filled
to capacity of about 24 passengers, Sunga was given by the conductor an "extension seat," a
wooden stool at the back of the door at the rear end of the vehicle.

On the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to let a passenger
off. As she was seated at the rear of the vehicle, Sunga gave way to the outgoing passenger.
Just as she was doing so, an Isuzu truck driven by Iglecerio Verena and owned by Francisco
Salva bumped the left rear portion of the jeepney. As a result, Sunga was injured. She
sustained a fracture of the "distal third of the left tibia-fibula with severe necrosis of the
underlying skin." Closed reduction of the fracture, long leg circular casting, and case wedging
were done under sedation. Her confinement in the hospital lasted from August 23 to September
7, 1989. Her attending physician, Dr. Danilo V. Oligario, an orthopedic surgeon, certified she
would remain on a cast for a period of three months and would have to ambulate in crutches
during said period.

On October 9, 1989, Sunga filed a complaint for damages against Calalas, alleging violation of
the contract of carriage by the former in failing to exercise the diligence required of him as a
common carrier. Calalas, on the other hand, filed a third-party complaint against Francisco
Salva, the owner of the Isuzu truck.

The lower court rendered judgment against Salva as third-party defendant and absolved Calalas
of liability, holding that it was the driver of the Isuzu truck who was responsible for the accident.
It took cognizance of another case (Civil Case No. 3490), filed by Calalas against Salva and
Verena, for quasi-delict, in which Branch 37 of the same court held Salva and his driver Verena
jointly liable to Calalas for the damage to his jeepney.
On appeal to the Court of Appeals, the ruling of the lower court was reversed on the ground that
Sunga's cause of action was based on a contract of carriage, not quasi-delict, and that the
common carrier failed to exercise the diligence required under the Civil Code. The appellate
court dismissed the third-party complaint against Salva and adjudged Calalas liable for
damages to Sunga. The dispositive portion of its decision reads:

WHEREFORE, the decision appealed from is hereby REVERSED and SET

ASIDE, and another one is entered ordering defendant-appellee Vicente Calalas
to pay plaintiff-appellant:

(1) P50,000.00 as actual and compensatory damages;

(2) P50,000.00 as moral damages;

(3) P10,000.00 as attorney's fees; and

(4) P1,000.00 as expenses of litigation; and

(5) to pay the costs.

SO ORDERED.

Hence, this petition. Petitioner contends that the ruling in Civil Case No. 3490 that the
negligence of Verena was the proximate cause of the accident negates his liability and that to
rule otherwise would be to make the common carrier an insurer of the safety of its passengers.
He contends that the bumping of the jeepney by the truck owned by Salva was a caso fortuito.
Petitioner further assails the award of moral damages to Sunga on the ground that it is not
supported by evidence.

The petition has no merit.

The argument that Sunga is bound by the ruling in Civil Case No. 3490 finding the driver and
the owner of the truck liable for quasi-delict ignores the fact that she was never a party to that
case and, therefore, the principle of res judicata does not apply.

Nor are the issues in Civil Case No. 3490 and in the present case the same. The issue in Civil
Case No. 3490 was whether Salva and his driver Verena were liable for quasi-delict for the
damage caused to petitioner's jeepney. On the other hand, the issue in this case is whether
petitioner is liable on his contract of carriage. The first, quasi-delict, also known as culpa
aquiliana or culpa extra contractual, has as its source the negligence of the tortfeasor.
The second, breach of contract or culpa contractual, is premised upon the negligence in the
performance of a contractual obligation.

Consequently, in quasi-delict, the negligence or fault should be clearly established because it is

the basis of the action, whereas in breach of contract, the action can be prosecuted merely by
proving the existence of the contract and the fact that the obligor, in this case the common
carrier, failed to transport his passenger safely to his destination.2 In case of death or injuries to
passengers, Art. 1756 of the Civil Code provides that common carriers are presumed to have
been at fault or to have acted negligently unless they prove that they observed extraordinary
diligence as defined in Arts. 1733 and 1755 of the Code. This provision necessarily shifts to the
common carrier the burden of proof.

There is, thus, no basis for the contention that the ruling in Civil Case No. 3490, finding Salva
and his driver Verena liable for the damage to petitioner's jeepney, should be binding on Sunga.
It is immaterial that the proximate cause of the collision between the jeepney and the truck was
the negligence of the truck driver. The doctrine of proximate cause is applicable only in actions
for quasi-delict, not in actions involving breach of contract. The doctrine is a device for imputing
liability to a person where there is no relation between him and another party. In such a case,
the obligation is created by law itself. But, where there is a pre-existing contractual relation
between the parties, it is the parties themselves who create the obligation, and the function of
the law is merely to regulate the relation thus created. Insofar as contracts of carriage are
concerned, some aspects regulated by the Civil Code are those respecting the diligence
required of common carriers with regard to the safety of passengers as well as the presumption
of negligence in cases of death or injury to passengers. It provides:

Art. 1733. Common carriers, from the nature of their business and for reasons of
public policy, are bound to observe extraordinary diligence in the vigilance over
the goods and for the safety of the passengers transported by them, according to
all the circumstances of each case.

Such extraordinary diligence in the vigilance over the goods is further expressed
in articles 1734, 1735, and 1746, Nos. 5, 6, and 7, while the extraordinary
diligence for the safety of the passengers is further set forth in articles 1755 and
1756.

Art. 1755. A common carrier is bound to carry the passengers safely as far as
human care and foresight can provide, using the utmost diligence of very
cautious persons, with due regard for all the circumstances.

Art. 1756. In case of death of or injuries to passengers, common carriers are

presumed to have been at fault or to have acted negligently, unless they prove
that they observed extraordinary diligence as prescribed by articles 1733 and
1755.

In the case at bar, upon the happening of the accident, the presumption of negligence at once
arose, and it became the duty of petitioner to prove that he had to observe extraordinary
diligence in the care of his passengers.

Now, did the driver of jeepney carry Sunga "safely as far as human care and foresight could
provide, using the utmost diligence of very cautious persons, with due regard for all the
circumstances" as required by Art. 1755? We do not think so. Several factors militate against
petitioner's contention.

First, as found by the Court of Appeals, the jeepney was not properly parked, its rear portion
being exposed about two meters from the broad shoulders of the highway, and facing the
middle of the highway in a diagonal angle. This is a violation of the R.A. No. 4136, as amended,
or the Land Transportation and Traffic Code, which provides:
 Sec. 54. Obstruction of Traffic. — No person shall drive his motor vehicle in such
a manner as to obstruct or impede the passage of any vehicle, nor, while
discharging or taking on passengers or loading or unloading freight, obstruct the
free passage of other vehicles on the highway.

Second, it is undisputed that petitioner's driver took in more passengers than the allowed
seating capacity of the jeepney, a violation of §32(a) of the same law. It provides:

Exceeding registered capacity. — No person operating any motor vehicle shall

allow more passengers or more freight or cargo in his vehicle than its registered
capacity.

The fact that Sunga was seated in an "extension seat" placed her in a peril greater than that to
which the other passengers were exposed. Therefore, not only was petitioner unable to
overcome the presumption of negligence imposed on him for the injury sustained by Sunga, but
also, the evidence shows he was actually negligent in transporting passengers.

We find it hard to give serious thought to petitioner's contention that Sunga's taking an
"extension seat" amounted to an implied assumption of risk. It is akin to arguing that the injuries
to the many victims of the tragedies in our seas should not be compensated merely because
those passengers assumed a greater risk of drowning by boarding an overloaded ferry. This is
also true of petitioner's contention that the jeepney being bumped while it was improperly
parked constitutes caso fortuito. A caso fortuito is an event which could not be foreseen, or
which, though foreseen, was inevitable.3 This requires that the following requirements be
present: (a) the cause of the breach is independent of the debtor's will; (b) the event is
unforeseeable or unavoidable; (c) the event is such as to render it impossible for the debtor to
fulfill his obligation in a normal manner, and (d) the debtor did not take part in causing the injury
to the
creditor.4 Petitioner should have foreseen the danger of parking his jeepney with its body
protruding two meters into the highway.

Finally, petitioner challenges the award of moral damages alleging that it is excessive and
without basis in law. We find this contention well taken.

In awarding moral damages, the Court of Appeals stated:

Plaintiff-appellant at the time of the accident was a first-year college student in

that school year 1989-1990 at the Silliman University, majoring in Physical
Education. Because of the injury, she was not able to enroll in the second
semester of that school year. She testified that she had no more intention of
continuing with her schooling, because she could not walk and decided not to
pursue her degree, major in Physical Education "because of my leg which has a
defect already."

Plaintiff-appellant likewise testified that even while she was under confinement,
she cried in pain because of her injured left foot. As a result of her injury, the
Orthopedic Surgeon also certified that she has "residual bowing of the fracture
side." She likewise decided not to further pursue Physical Education as her major
subject, because "my left leg . . . has a defect already."
 Those are her physical pains and moral sufferings, the inevitable bedfellows of
the injuries that she suffered. Under Article 2219 of the Civil Code, she is entitled
to recover moral damages in the sum of P50,000.00, which is fair, just and
reasonable.

As a general rule, moral damages are not recoverable in actions for damages predicated on a
breach of contract for it is not one of the items enumerated under Art. 2219 of the Civil
Code.5 As an exception, such damages are recoverable: (1) in cases in which the mishap
results in the death of a passenger, as provided in Art. 1764, in relation to Art. 2206(3) of the
Civil Code; and (2) in the cases in which the carrier is guilty of fraud or bad faith, as provided in
Art. 2220.6

In this case, there is no legal basis for awarding moral damages since there was no factual
finding by the appellate court that petitioner acted in bad faith in the performance of the contract
of carriage. Sunga's contention that petitioner's admission in open court that the driver of the
jeepney failed to assist her in going to a nearby hospital cannot be construed as an admission
of bad faith. The fact that it was the driver of the Isuzu truck who took her to the hospital does
not imply that petitioner was utterly indifferent to the plight of his injured passenger. If at all, it is
merely implied recognition by Verena that he was the one at fault for the accident.

WHEREFORE, the decision of the Court of Appeals, dated March 31, 1995, and its resolution,
dated September 11, 1995, are AFFIRMED, with the MODIFICATION that the award of moral
damages is DELETED.

SO ORDERED.