FIRST DIVISION

[G.R. No. 19495. February 2, 1924.]

HONRION LASAM ET AL., plaintiffs-appellants, vs. FRANK SMITH, jr., defendantappellant.

Palma & Leuterion for plaintiffs-appellant.

Mariano Alisngco for defendant-appellant.
SYLLABUS
1.DAMAGES; CONTRACT OF CARRIAGE OF PASSENGERS; BREACH OF
CONTRACT. Defendant, the owner of a public garage, under took to convey the plaintiffs
by automobile from San Fernando, La union, to Currimao, Ilocos Norte. While on the way to
result of which the plaintiffs were injured. Held: That the action for damages articles 11011107 of the Civil Code, and not article 1903, were applicable.
2.ID.; ID.; FORTUITOUS EVENT. The expression "events which cannot be
foreseen and which having been foreseen, are inevitable" is synonymous with the term
"fortuitous event" of which some extraordinary circumstance independent of the will of the
obligor, or of his employees, is one of the essential elements.
3.ID.; ID.; CARRIER OF PASSENGERS NOT AN INSURER AGAINST ALL RISKS.
Neither under American nor Spanish law is a carrier of passengers an absolute insurer against
the risks of travel from which the passenger may protect himself by exercising due care and
diligence.
4.DAMAGES; CONTRACT, NEGLIGENCE IN FULFILLMENT . In determining the
extent of the liability for losses or damages resulting the courts have a discretionary power to
moderate the liability according to the circumstance (Civil Code article 1103; De Guia vs.
Manila Electric Railroad & Light Co., 40 Phil., 766.)
DECISION
OSTRAND, J :
p

The plaintiffs are husband and wife and this action is brought to recover damages
in the sum of P20,000 for physical injuries sustained by them in an automobile accident. The
trial court rendered a judgment in their favor for the sum of P1,254.10, with legal interest

from the date of 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 of
San Fernando, La Union, and engaged in the business of carrying passengers for hire from
one point to another in the Province of La Union and the surrounding provinces. On the date
mentioned, he undertook to convey plaintiff 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 to 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 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 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. Compania Trasatlantica and Atlantic, Gulf & Pacific Co., 38 Phil., 875; De Guia

vs. Manila Electric Railroad & Light source of the defendant's legal liability is the contract of
carriage; the 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 Co Civil Espaol,
vol. 8, pp. 88 et seq.; Scaevola, 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 "ocasion que acaese por aventura deque non se puede ante ver. E
son estos, derrivamientos de casas e fuego que se enciende 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 such as floods, torrents,
shipwrecks, conflagrations, lightning, compulsion, insurrections, destruction of buildings by
unforeseen accidents and other occurrences of a similar nature."
In discussing and analyzing the term caso fortuito the Enciclopedia Juridica
Espaola 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 Espaola, 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 elements is lacking. It is
not suggested that the accident in question was due to an act of God or to adverse road
conditions which could not have been foreseen. As far as the record shows, the accident was
caused either by 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 sever 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 Phil; 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 refusal
to submit to such an operation, a series of infections ensued and which required constant
and expensive medical treatment for several years. We agree with the these expenses.
For the reasons stated, the judgment appealed from is affirmed, without costs in
this instance. So ordered.

Araullo, C. J., Street, Malcolm, Johns, and Romualdez, JJ., concur.