G.R. No.

145804 February 6, 2003

LIGHT RAIL TRANSIT AUTHORITY & RODOLFO ROMAN, petitioners,

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

DECISION

VITUG, J.:

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

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

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

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

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

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

2) Compensatory damages of P443,520.00;

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

"b) Moral damages of P50,000.00;

"c) Attorney’s fees of P20,000;

"d) Costs of suit.

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

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

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

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

a) P44,830.00 as actual damages;

b) P50,000.00 as nominal damages;

 c) P50,000.00 as moral damages;

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

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

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

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

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

"I.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED BY DISREGARDING THE FINDINGS OF FACTS
BY THE TRIAL COURT

"II.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT PETITIONERS ARE LIABLE
FOR THE DEATH OF NICANOR NAVIDAD, JR.

"III.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT RODOLFO ROMAN IS AN
EMPLOYEE OF LRTA."3

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

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

Law and jurisprudence dictate that a common carrier, both from the nature of its business and for reasons of
public policy, is burdened with the duty of exercising utmost diligence in ensuring the safety of passengers.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 former’s employees, although such employees may have acted beyond the scope of their
authority or in violation of the orders of the common carriers.

"This liability of the common carriers does not cease upon proof that they exercised all the diligence of a good
father of a family in the selection and supervision of their employees."
"Article 1763. A common carrier is responsible for injuries suffered by a passenger on account of the willful acts or
negligence of other passengers or of strangers, if the common carrier’s employees through the exercise of the
diligence of a good father of a family could have prevented or stopped the act or omission."

The law requires common carriers to carry passengers safely using the utmost diligence of very cautious persons
with due regard for all circumstances.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 carrier’s 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.11

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

Should Prudent be made likewise liable? If at all, that liability could only be for tort under the provisions of Article
217612 and related provisions, in conjunction with Article 2180,13 of the Civil Code. The premise, however, for the
employer’s liability is negligence or fault on the part of the employee. Once such fault is established, the employer
can then be made liable on the basis of the presumption juris tantum that the employer failed to exercise
diligentissimi patris families in the selection and supervision of its employees. The liability is primary and can only
be negated by showing due diligence in the selection and supervision of the employee, a factual matter that has
not been shown. Absent such a showing, one might ask further, how then must the liability of the common carrier,
on the one hand, and an independent contractor, on the other hand, be described? It would be solidary. A
contractual obligation can be breached by tort and when the same act or omission causes the injury, one resulting
in culpa contractual and the other in culpa aquiliana, Article 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.17

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

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

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

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

SO ORDERED.

Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio and Azcuna, JJ., concur.
G.R. No. 95582 October 7, 1991
DANGWA TRANSPORTATION CO., INC. and THEODORE LARDIZABAL y MALECDAN, petitioners,
vs.
COURT OF APPEALS, INOCENCIA CUDIAMAT, EMILIA CUDIAMAT BANDOY, FERNANDO CUDLAMAT,
MARRIETA CUDIAMAT, NORMA CUDIAMAT, DANTE CUDIAMAT, SAMUEL CUDIAMAT and LIGAYA
CUDIAMAT, all Heirs of the late Pedrito Cudiamat represented by Inocencia Cudiamat, respondents.
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.
SO ORDERED.

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

LA MALLORCA, petitioner,
vs.
HONORABLE COURT OF APPEALS, MARIANO BELTRAN, ET AL., respondents.

G. E. Yabut, R. Monterey and M.C. Lagman for petitioner.

Ahmed Garcia for respondents.

BARRERA, J.:

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

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

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

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

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

On the basis of these facts, the trial court found defendant liable for breach of contract of carriage and sentenced
it to pay P3,000.00 for the death of the child and P400.00 as compensatory damages representing burial
expenses and costs.

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

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

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

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

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

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

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

is clearly an allegation for quasi-delict. The inclusion of this averment for quasi-delict, while incompatible with the
other claim under the contract of carriage, is permissible under Section 2 of Rule 8 of the New Rules of Court,
which allows a plaintiff to allege causes of action in the alternative, be they compatible with each other or not, to
the end that the real matter in controversy may be resolved and determined.4

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

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

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

SECOND DIVISION

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

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

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

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

No excepting circumstance being present, we are likewise bound by respondent court's declaration that there was
no negligence on the part of Pioneer Stevedoring Corporation, a confirmation of the trial court's finding to that
effect, hence our conformity to Pioneer's being absolved of any liability.

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

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

SO ORDERED.

G.R. No. 135645 March 8, 2002

THE PHILIPPINE AMERICAN GENERAL INSURANCE CO., INC., petitioner,

vs.
MGG MARINE SERVICES, INC. and DOROTEO GAERLAN, respondents.

KAPUNAN, J.:

This petition for review seeks the reversal of the Decision, dated September 23, 1998, of the Court of Appeals in
CA-G.R. CV No. 43915,1 which absolved private respondents MCG Marine Services, Inc. and Doroteo Gaerlan of
any liability regarding the loss of the cargo belonging to San Miguel Corporation due to the sinking of the M/V
Peatheray Patrick-G owned by Gaerlan with MCG Marine Services, Inc. as agent.

On March 1, 1987, San Miguel Corporation insured several beer bottle cases with an aggregate value of
P5,836,222.80 with petitioner Philippine American General Insurance Company.2 The cargo were loaded on board
the M/V Peatheray Patrick-G to be transported from Mandaue City to Bislig, Surigao del Sur.
After having been cleared by the Coast Guard Station in Cebu the previous day, the vessel left the port of
Mandaue City for Bislig, Surigao del Sur on March 2, 1987. The weather was calm when the vessel started its
voyage.

The following day, March 3, 1987, M/V Peatheray Patrick-G listed and subsequently sunk off Cawit Point, Cortes,
Surigao del Sur. As a consequence thereof, the cargo belonging to San Miguel Corporation was lost.

Subsequently, San Miguel Corporation claimed the amount of its loss from petitioner.

Upon petitioner's request, on March 18, 1987, Mr. Eduardo Sayo, a surveyor from the Manila Adjusters and
Surveyors Co., went to Taganauan Island, Cortes, Surigao del Sur where the vessel was cast ashore, to
investigate the circumstances surrounding the loss of the cargo. In his report, Mr. Sayo stated that the vessel was
structurally sound and that he did not see any damage or crack thereon. He concluded that the proximate cause
of the listing and subsequent sinking of the vessel was the shifting of ballast water from starboard to portside. The
said shifting of ballast water allegedly affected the stability of the M/V Peatheray Patrick-G.

Thereafter, petitioner paid San Miguel Corporation the full amount of P5,836,222.80 pursuant to the terms of their
insurance contract.1âwphi1.nêt

On November 3, 1987, petitioner as subrogee of San Miguel Corporation filed with the Regional Trial Court (RTC)
of Makati City a case for collection against private respondents to recover the amount it paid to San Miguel
Corporation for the loss of the latter's cargo.

Meanwhile, the Board of Marine Inquiry conducted its own investigation of the sinking of the M/V Peatheray
Patrick-G to determine whether or not the captain and crew of the vessel should be held responsible for the
incident.3 On May 11, 1989, the Board rendered its decision exonerating the captain and crew of the ill-fated
vessel for any administrative liability. It found that the cause of the sinking of the vessel was the existence of
strong winds and enormous waves in Surigao del Sur, a fortuitous event that could not have been for seen at the
time the M/V Peatheray Patrick-G left the port of Mandaue City. It was further held by the Board that said
fortuitous event was the proximate and only cause of the vessel's sinking.

On April 15, 1993, the RTC of Makati City, Branch 134, promulgated its Decision finding private respondents
solidarily liable for the loss of San Miguel Corporation's cargo and ordering them to pay petitioner the full amount
of the lost cargo plus legal interest, attorney's fees and costs of suit.4

Private respondents appealed the trial court's decision to the Court of Appeals. On September 23, 1998, the
appellate court issued the assailed Decision, which reversed the ruling of the RTC. It held that private
respondents could not be held liable for the loss of San Miguel Corporation's cargo because said loss occurred as
a consequence of a fortuitous event, and that such fortuitous event was the proximate and only cause of the loss.5

Petitioner thus filed the present petition, contending that:

(A)

IN REVERSING AND SETTING ASIDE THE DECISION OF RTC BR. 134 OF MAKATI CITY ON THE
BASIS OF THE FINDINGS OF THE BOARD OF MARINE INQUIRY, APPELLATE COURT DECIDED THE
CASE AT BAR NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE DECISIONS OF THE
HONORABLE COURT;

(B)

IN REVERSING THE TRIAL COURT'S DECISION, THE APPELLATE COURT GRAVELY ERRED IN
CONTRADICTING AND IN DISTURBING THE FINDINGS OF THE FORMER;

(C)

THE APPELLATE COURT GRAVELY ERRED IN REVERSING THE DECISION OF THE TRIAL COURT
AND IN DISMISSING THE COMPLAINT. 6

Common carriers, from the nature of their business and for reasons of public policy, are mandated to observe
extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by
them.7Owing to this high degree of diligence required of them, common carriers, as a general rule, are presumed
to have been at fault or negligent if the goods transported by them are lost, destroyed or if the same deteriorated.8

However, this presumption of fault or negligence does not arise in the cases enumerated under Article 1734 of the
Civil Code:
 Common carriers are responsible for the loss, destruction, or deterioration of the goods, unless the same
is due to any of the following causes only:

(1) Flood, storm, earthquake, lightning or other natural disaster or calamity;

(2) Act of the public enemy in war, whether international or civil;

(3) Act or omission of the shipper or owner of the goods;

(4) The character of the goods or defects in the packing or in the containers;

(5) Order or act of competent public authority.

In order that a common carrier may be absolved from liability where the loss, destruction or deterioration of the
goods is due to a natural disaster or calamity, it must further be shown that the such natural disaster or calamity
was the proximate and only cause of the loss;9 there must be "an entire exclusion of human agency from the
cause of the injury of the loss."10

Moreover, even in cases where a natural disaster is the proximate and only cause of the loss, a common carrier is
still required to exercise due diligence to prevent or minimize loss before, during and after the occurrence of the
natural disaster, for it to be exempt from liability under the law for the loss of the goods. 11 If a common carrier fails
to exercise due diligence--or that ordinary care which the circumstances of the particular case demand12 -- to
preserve and protect the goods carried by it on the occasion of a natural disaster, it will be deemed to have been
negligent, and the loss will not be considered as having been due to a natural disaster under Article 1734 (1).

In the case at bar, the issues may be narrowed down to whether the loss of the cargo was due to the occurrence
of a natural disaster, and if so, whether such natural disaster was the sole and proximate cause of the loss or
whether private respondents were partly to blame for failing to exercise due diligence to prevent the loss of the
cargo.

The parties do not dispute that on the day the M/V Peatheray Patrick-G sunk, said vessel encountered strong
winds and huge waves ranging from six to ten feet in height. The vessel listed at the port side and eventually sunk
at Cawit Point, Cortes, Surigao del Sur.

The Court of Appeals, citing the decision of the Board of Marine Inquiry in the administrative case against the
vessel's crew (BMI--646-87), found that the loss of the cargo was due solely to the existence of a fortuitous event,
particularly the presence of strong winds and huge waves at Cortes, Surigao del Sur on March 3, 1987:

xxx

III. WHAT WAS THE PROXIMATE CAUSE OF SINKING?

Evidence shows that when "LCT Peatheray Patrick-G" left the port of Mandawe, Cebu for Bislig, Surigao
del Sur on March 2, 1987 the Captain had observed the fair atmospheric condition of the area of the pier
and confirmed this good weather condition with the Coast Guard Detachment of Mandawe City. However,
on March 3, 1987 at about 10:00 o'clock in the evening, when the vessel had already passed Surigao
Strait. the vessel started to experience waves as high as 6 to 7 feet and that the Northeasterly wind was
blowing at about five (5) knot velocity. At about 11:00 o'clock P.M. when the vessel was already about 4.5
miles off Cawit Point, Cortes, Surigao del Sur, the vessel was discovered to be listing 15 degrees to port
side and that the strength of the wind had increased to 15 knots and the waves were about ten (10) feet
high [Ramilo TSN 10-27-87 p. 32). Immediately thereafter, emergency measures were taken by the crew.
The officers had suspected that a leak or crack might had developed at the bottom hull particularly below
one or two of the empty wing tanks at port side serving as buoyancy tanks resulting in ingress of sea water
in the tanks was confirmed when the Captain ordered to use the cargo pump. The suction valves to the
said tanks of port side were opened in order to suck or draw out any amount of water that entered into the
tanks. The suction pressure of the pump had drawn out sea water in large quantity indicating therefore,
that a leak or crack had developed in the hull as the vessel was continuously batted and pounded by the
huge waves. Bailing out of the water through the pump was done continuously in an effort of the crew to
prevent the vessel from sinking. but then efforts were in vain. The vessel still continued to list even more
despite the continuous pumping and discharging of sea water from the wing tanks indicating that the
amount of the ingress of sea water was greater in volume that that was being discharged by the pump.
Considering therefore, the location of the suspected source of the ingress of sea water which was a crack
or hole at the bottom hull below the buoyancy tank's port side which was not accessible (sic) for the crew
to check or control the flow of sea water into the said tank. The accumulation of sea water aggravated by
the continuous pounding, rolling and pitching of the vessel against huge waves and strong northeasterly
wind, the Captain then had no other recourse except to order abandonship to save their lives.13
The presence of a crack in the ill-fated vessel through which water seeped in was confirmed by the Greutzman
Divers who were commissioned by the private respondents to conduct an underwater survey and inspection of
the vessel to determine the cause and circumstances of its sinking. In its report, Greutzman Divers stated that
"along the port side platings, a small hole and two separate cracks were found at about midship."14

The findings of the Board of Marine Inquiry indicate that the attendance of strong winds and huge waves while the
M/V Peatheray Patrick-G was sailing through Cortes, Surigao del Norte on March 3, 1987 was indeed fortuitous. A
fortuitous event has been defined as one which could not be foreseen, or which though foreseen, is
inevitable.15 An event is considered fortuitous if the following elements concur:

xxx (a) the cause of the unforeseen and unexpected occurrence, or the failure of the debtor to comply with
his obligations, must be independent of human will; (b) it must be impossible to foresee the event which
constitutes the caso fortuito, or if it can be foreseen, it must be impossible to avoid; (c) the occurrence
must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner; and (d)
the obligor must be free from any participation in the aggravation of the injury resulting to the creditor. xxx16

In the case at bar, it was adequately shown that before the M/V Peatheray Patrick-G left the port of Mandaue City,
the Captain confirmed with the Coast Guard that the weather condition would permit the safe travel of the vessel
to Bislig, Surigao del Sur. Thus, he could not be expected to have foreseen the unfavorable weather condition that
awaited the vessel in Cortes, Surigao del Sur. It was the presence of the strong winds and enormous waves
which caused the vessel to list, keel over, and consequently lose the cargo contained therein. The appellate court
likewise found that there was no negligence on the part of the crew of the M/V Peatheray Patrick-G, citing the
following portion of the decision of the Board of Marine Inquiry:

I. WAS LCT PEATHERAY PATRICK-G SEAWORTHY WHEN SHE LEFT THE PORT OF MANDAWE,
CEBU AND AT THE TIME OF SINKING?

Evidence clearly shows that the vessel was propelled with three (3) diesel engines of 250 BHP each or a
total of 750 BHP. It had three (3) propellers which were operating satisfactorily from the time the vessel left
the port of Mandawe up to the time when the hull on the double bottom tank was heavily floaded (sic) by
uncontrollable entry of sea water resulting in the stoppage of engines. The vessel was also equipped with
operating generator pumps for emergency cases. This equipment was also operating satisfactorily up to
the time when the engine room was heavily floaded (sic) with sea water. Further, the vessel had
undergone emergency drydocking and repair before the accident occurred (sic) on November 9, 1986 at
Trigon Shipyard, San Fernando, Cebu as shown by the billing for the Drydocking and Repair and
certificate of Inspection No. 2588-86 issued by the Philippine coast Guard on December 5, 1986 which
expired on November 8, 1987.

LCT Peatheray Patrick-G was skippered by Mr. Manuel P. Ramilo, competent and experienced licensed
Major Patron who had been in command of the vessel for more than three (3) years from July 1984 up to
the time of sinking March 3, 1987. His Chief Mate Mr. Mariano Alalin also a licensed Major Patron had
been the Chief Mate of " LCT Peatheray Patrick-G" for one year and three months at the time of the
accident. Further Chief Mate Alalin had commanded a tanker vessel named M/T Mercedes of MGM
Corporation for almost two (2) years from 1983-1985 (Alalin TSN-4-13-88 pp. 32-33).

That the vessel was granted SOLAS clearance by the Philippine Coast Guard on March 1, 1987 to depart
from Mandawe City for Bislig, Surigao del Sur as evidenced by a certification issued to D.C. Gaerlan Oil
Products by Coast Guard Station Cebu dated December 23, 1987.1âwphi1.nêt

Based on the foregoing circumstances, "LCT Peatheray Patrick-G" should be considered seaworthy
vessel at the time she undertook that fateful voyage on March 2, 1987.

To be seaworthy, a vessel must not only be staunch and fit in the hull for the voyage to be undertaken but
also must be properly equipped and for that purpose there is a duty upon the owner to provide a
competent master and a crew adequate in number and competent for their duty and equals in disposition
and seamanship to the ordinary in that calling. (Ralph 299 F-52, 1924 AMC 942). American President 2td
v. Ren Fen Fed 629. AMC 1723 LCA 9 CAL 1924).17

Overloading was also eliminated as a possible cause of the sinking of the vessel, as the evidence showed that its
freeboard clearance was substantially greater than the authorized freeboard clearance.18

Although the Board of Marine Inquiry ruled only on the administrative liability of the captain and crew of the M/V
Peatheray Patrick-G, it had to conduct a thorough investigation of the circumstances surrounding the sinking of
the vessel and the loss of its cargo in order to determine their responsibility, if any. The results of its investigation
as embodied in its decision on the administrative case clearly indicate that the loss of the cargo was due solely to
the attendance of strong winds and huge waves which caused the vessel accumulate water, tilt to the port side
and to eventually keel over. There was thus no error on the part of the Court of Appeals in relying on the factual
findings of the Board of Marine Inquiry, for such factual findings, being supported by substantial evidence are
persuasive, considering that said administrative body is an expert in matters concerning marine casualties.19

Since the presence of strong winds and enormous waves at Cortes, Surigao del Sur on March 3, 1987 was
shown to be the proximate and only cause of the sinking of the M/V Peatheray Patrick-G and the loss of the cargo
belonging to San Miguel Corporation, private respondents cannot be held liable for the said loss.

WHEREFORE, the assailed Decision of the Court of Appeals is hereby AFFIRMED and the petition is
hereby DENIED.

SO ORDERED.

G.R. No. 52159 December 22, 1989

JOSE PILAPIL, petitioner,

vs.
HON. COURT OF APPEALS and ALATCO TRANSPORTATION COMPANY, INC., respondents.

Martin Badong, Jr. for petitioner.

Eufronio K. Maristela for private respondent.

PADILLA, J.:
This is a petition to review on certiorari the decision* rendered by the Court of Appeals dated 19 October 1979 in
CA-G.R. No. 57354-R entitled "Jose Pilapil, plaintiff-appellee versus Alatco Transportation Co., Inc., defendant-
appellant," which reversed and set aside the judgment of the Court of First Instance of Camarines Sur in Civil
Case No. 7230 ordering respondent transportation company to pay to petitioner damages in the total sum of
sixteen thousand three hundred pesos (P 16,300.00).

The record discloses the following facts:

Petitioner-plaintiff Jose Pilapil, a paying passenger, boarded respondent-defendant's bus bearing No. 409 at San
Nicolas, Iriga City on 16 September 1971 at about 6:00 P.M. While said bus No. 409 was in due course
negotiating the distance between Iriga City and Naga City, upon reaching the vicinity of the cemetery of the
Municipality of Baao, Camarines Sur, on the way to Naga City, an unidentified man, a bystander along said
national highway, hurled a stone at the left side of the bus, which hit petitioner above his left eye. Private
respondent's personnel lost no time in bringing the petitioner to the provincial hospital in Naga City where he was
confined and treated.

Considering that the sight of his left eye was impaired, petitioner was taken to Dr. Malabanan of Iriga City where
he was treated for another week. Since there was no improvement in his left eye's vision, petitioner went to V.
Luna Hospital, Quezon City where he was treated by Dr. Capulong. Despite the treatment accorded to him by Dr.
Capulong, petitioner lost partially his left eye's vision and sustained a permanent scar above the left eye.

Thereupon, petitioner instituted before the Court of First Instance of Camarines Sur, Branch I an action for
recovery of damages sustained as a result of the stone-throwing incident. After trial, the court a quo rendered
judgment with the following dispositive part:

Wherefore, judgment is hereby entered:

1. Ordering defendant transportation company to pay plaintiff Jose Pilapil the sum of
P 10,000.00, Philippine Currency, representing actual and material damages for
causing a permanent scar on the face and injuring the eye-sight of the plaintiff;

2. Ordering further defendant transportation company to pay the sum of P 5,000.00,

Philippine Currency, to the plaintiff as moral and exemplary damages;

3. Ordering furthermore, defendant transportation company to reimburse plaintiff the

sum of P 300.00 for his medical expenses and attorney's fees in the sum of P
1,000.00, Philippine Currency; and

4. To pay the costs.

SO ORDERED 1

From the judgment, private respondent appealed to the Court of Appeals where the appeal was docketed as CA-
G.R. No. 57354R. On 19 October 1979, the Court of Appeals, in a Special Division of Five, rendered judgment
reversing and setting aside the judgment of the court a quo.

Hence the present petition.

In seeking a reversal of the decision of the Court of Appeals, petitioner contends that said court has decided the
issue not in accord with law. Specifically, petitioner argues that the nature of the business of a transportation
company requires the assumption of certain risks, and the stoning of the bus by a stranger resulting in injury to
petitioner-passenger is one such risk from which the common carrier may not exempt itself from liability.

We do not agree.

In consideration of the right granted to it by the public to engage in the business of transporting passengers and
goods, a common carrier does not give its consent to become an insurer of any and all risks to passengers and
goods. It merely undertakes to perform certain duties to the public as the law imposes, and holds itself liable for
any breach thereof.

Under Article 1733 of the Civil Code, common carriers are required to observe extraordinary diligence for the
safety of the passenger transported by them, according to all the circumstances of each case. The requirement of
extraordinary diligence imposed upon common carriers is restated in 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 due regard for all the circumstances." Further, in case of death of or injuries to passengers,
the law presumes said common carriers to be at fault or to have acted negligently. 2
While the law requires the highest degree of diligence from common carriers in the safe transport of their
passengers and creates a presumption of negligence against them, it does not, however, make the carrier an
insurer of the absolute safety of its passengers. 3

Article 1755 of the Civil Code qualifies the duty of extraordinary care, vigilance and precaution in the carriage of
passengers by common carriers to only such as human care and foresight can provide. what constitutes
compliance with said duty is adjudged with due regard to all the circumstances.

Article 1756 of the Civil Code, in creating a presumption of fault or negligence on the part of the common carrier
when its passenger is injured, merely relieves the latter, for the time being, from introducing evidence to fasten the
negligence on the former, because the presumption stands in the place of evidence. Being a mere presumption,
however, the same is rebuttable by proof that the common carrier had exercised extraordinary diligence as
required by law in the performance of its contractual obligation, or that the injury suffered by the passenger was
solely due to a fortuitous event. 4

In fine, we can only infer from the law the intention of the Code Commission and Congress to curb the
recklessness of drivers and operators of common carriers in the conduct of their business.

Thus, it is clear that neither the law nor the nature of the business of a transportation company makes it an insurer
of the passenger's safety, but that its liability for personal injuries sustained by its passenger rests upon its
negligence, its failure to exercise the degree of diligence that the law requires. 5

Petitioner contends that respondent common carrier failed to rebut the presumption of negligence against it by
proof on its part that it exercised extraordinary diligence for the safety of its passengers.

We do not agree.

First, as stated earlier, the presumption of fault or negligence against the carrier is only a disputable presumption.
It gives in where contrary facts are established proving either that the carrier had exercised the degree of
diligence required by law or the injury suffered by the passenger was due to a fortuitous event. Where, as in the
instant case, the injury sustained by the petitioner was in no way due to any defect in the means of transport or in
the method of transporting or to the negligent or willful acts of private respondent's employees, and therefore
involving no issue of negligence in its duty to provide safe and suitable cars as well as competent employees, with
the injury arising wholly from causes created by strangers over which the carrier had no control or even
knowledge or could not have prevented, the presumption is rebutted and the carrier is not and ought not to be
held liable. To rule otherwise would make the common carrier the insurer of the absolute safety of its passengers
which is not the intention of the lawmakers.

Second, while as a general rule, common carriers are bound to exercise extraordinary diligence in the safe
transport of their passengers, it would seem that this is not the standard by which its liability is to be determined
when intervening acts of strangers is to be determined directly cause the injury, while the contract of carriage
Article 1763 governs:

Article 1763. A common carrier is responsible for injuries suffered by a passenger on account of the
wilful 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.

Clearly under the above provision, a tort committed by a stranger which causes injury to a passenger does not
accord the latter a cause of action against the carrier. The negligence for which a common carrier is held
responsible is the negligent omission by the carrier's employees to prevent the tort from being committed when
the same could have been foreseen and prevented by them. Further, under the same provision, it is to be noted
that when the violation of the contract is due to the willful acts of strangers, as in the instant case, the degree of
care essential to be exercised by the common carrier for the protection of its passenger is only that of a good
father of a family.

Petitioner has charged respondent carrier of negligence on the ground that the injury complained of could have
been prevented by the common carrier if something like mesh-work grills had covered the windows of its bus.

We do not agree.

Although the suggested precaution could have prevented the injury complained of, the rule of ordinary care and
prudence is not so exacting as to require one charged with its exercise to take doubtful or unreasonable
precautions to guard against unlawful acts of strangers. The carrier is not charged with the duty of providing or
maintaining vehicles as to absolutely prevent any and all injuries to passengers. Where the carrier uses cars of
the most approved type, in general use by others engaged in the same occupation, and exercises a high degree
of care in maintaining them in suitable condition, the carrier cannot be charged with negligence in this respect. 6
Finally, petitioner contends that it is to the greater interest of the State if a carrier were made liable for such stone-
throwing incidents rather than have the bus riding public lose confidence in the transportation system.

Sad to say, we are not in a position to so hold; such a policy would be better left to the consideration of Congress
which is empowered to enact laws to protect the public from the increasing risks and dangers of lawlessness in
society.

WHEREFORE, the judgment appealed from is hereby AFFIRMED.SO ORDERED.

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-45637 May 31, 1985

ROBERTO JUNTILLA, petitioner,

vs.
CLEMENTE FONTANAR, FERNANDO BANZON and BERFOL CAMORO, respondents.

Valentin A. Zozobrado for petitioner.

Ruperto N. Alfarara for respondents.

GUTIERREZ, JR., J.:

This is a petition for review, on questions of law, of the decision of the Court of First Instance of Cebu which
reversed the decision of the City Court of Cebu and exonerated the respondents from any liability arising from a
vehicular accident.

The background facts which led to the filing of a complaint for breach of contract and damages against the
respondents are summarized by the Court of First Instance of Cebu as follows:

The facts established after trial show that the plaintiff was a passenger of the public utility jeepney
bearing plate No. PUJ-71-7 on the course of the trip from Danao City to Cebu City. The jeepney
was driven by defendant Berfol Camoro. It was registered under the franchise of defendant
Clemente Fontanar but was actually owned by defendant Fernando Banzon. When the jeepney
reached Mandaue City, the right rear tire exploded causing the vehicle to turn turtle. In the process,
the plaintiff who was sitting at the front seat was thrown out of the vehicle. Upon landing on the
ground, the plaintiff momentarily lost consciousness. When he came to his senses, he found that
he had a lacerated wound on his right palm. Aside from this, he suffered injuries on his left arm,
right thigh and on his back. (Exh. "D"). Because of his shock and injuries, he went back to Danao
City but on the way, he discovered that his "Omega" wrist watch was lost. Upon his arrival in
Danao City, he immediately entered the Danao City Hospital to attend to his injuries, and also
requested his father-in-law to proceed immediately to the place of the accident and look for the
watch. In spite of the efforts of his father-in-law, the wrist watch, which he bought for P 852.70
(Exh. "B") could no longer be found.

xxx xxx xxx

Petitioner Roberto Juntilla filed Civil Case No. R-17378 for breach of contract with damages before the City Court
of Cebu City, Branch I against Clemente Fontanar, Fernando Banzon and Berfol Camoro.

The respondents filed their answer, alleging inter alia that the accident that caused losses to the petitioner was
beyond the control of the respondents taking into account that the tire that exploded was newly bought and was
only slightly used at the time it blew up.

After trial, Judge Romulo R. Senining of the Civil Court of Cebu rendered judgment in favor of the petitioner and
against the respondents. The dispositive portion of the decision reads:

WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants and
the latter are hereby ordered, jointly and severally, to pay the plaintiff the sum of P750.00 as
reimbursement for the lost Omega wrist watch, the sum of P246.64 as unrealized salary of the
plaintiff from his employer, the further sum of P100.00 for the doctor's fees and medicine, an
additional sum of P300.00 for attorney's fees and the costs.

The respondents appealed to the Court of First Instance of Cebu, Branch XIV.

Judge Leonardo B. Canares reversed the judgment of the City Court of Cebu upon a finding that the accident in
question was due to a fortuitous event. The dispositive portion of the decision reads:

WHEREFORE, judgment is hereby rendered exonerating the defendants from any liability to the
plaintiff without pronouncement as to costs.

A motion for reconsideration was denied by the Court of First Instance.

The petitioner raises the following alleged errors committed by the Court of First Instance of Cebu on appeal—

a. The Honorable Court below committed grave abuse of discretion in failing to take cognizance of
the fact that defendants and/or their employee failed to exercise "utmost and/or extraordinary
diligence" required of common carriers contemplated under Art. 1755 of the Civil Code of the
Philippines.

b. The Honorable Court below committed grave abuse of discretion by deciding the case contrary
to the doctrine laid down by the Honorable Supreme Court in the case of Necesito et al. v. Paras,
et al.

We find the petition impressed with merit.

The City Court and the Court of First Instance of Cebu found that the right rear tire of the passenger jeepney in
which the petitioner was riding blew up causing the vehicle to fall on its side. The petitioner questions the
conclusion of the respondent court drawn from this finding of fact.
The Court of First Instance of Cebu erred when it absolved the carrier from any liability upon a finding that the tire
blow out is a fortuitous event. The Court of First Instance of Cebu ruled that:

After reviewing the records of the case, this Court finds that the accident in question was due to a
fortuitous event. A tire blow-out, such as what happened in the case at bar, is an inevitable
accident that exempts the carrier from liability, there being absence of a showing that there was
misconduct or negligence on the part of the operator in the operation and maintenance of the
vehicle involved. The fact that the right rear tire exploded, despite being brand new, constitutes a
clear case of caso fortuito which can be a proper basis for exonerating the defendants from liability.
...

The Court of First Instance relied on the ruling of the Court of Appeals in Rodriguez v. Red Line Transportation
Co., CA G.R. No. 8136, December 29, 1954, where the Court of Appeals ruled that:

A tire blow-out does not constitute negligence unless the tire was already old and should not have
been used at all. Indeed, this would be a clear case of fortuitous event.

The foregoing conclusions of the Court of First Instance of Cebu are based on a misapprehension of overall facts
from which a conclusion should be drawn. The reliance of the Court of First Instance on the Rodriguez case is not
in order. In La Mallorca and Pampanga Bus Co. v. De Jesus, et al. (17 SCRA 23), we held that:

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 v. Red Line Transportation Co.,
CA G.R. No. 8136, December 29, 1954, and People v. Palapad, CA-G.R. No. 18480, June 27,
1958. These rulings, however, not only are not binding on this Court but were based on
considerations quite different from those that obtain in the case at bar. The appellate court there
made no findings of any specific 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 case at bar, there are specific acts of negligence on the part of the respondents. The records show that the
passenger jeepney turned turtle and jumped into a ditch immediately after its right rear tire exploded. The
evidence shows that the passenger jeepney was running at a very fast speed before the accident. We agree with
the observation of the petitioner that a public utility jeep running at a regular and safe speed will not jump into a
ditch when its right rear tire blows up. There is also evidence to show that the passenger jeepney was overloaded
at the time of the accident. The petitioner stated that there were three (3) passengers in the front seat and
fourteen (14) passengers in the rear.

While it may be true that the tire that blew-up was still good because the grooves of the tire were still visible, this
fact alone does not make the explosion of the tire a fortuitous event. No evidence was presented to show that the
accident was due to adverse road conditions or that precautions were taken by the jeepney driver to compensate
for any conditions liable to cause accidents. The sudden blowing-up, therefore, could have been caused by too
much air pressure injected into the tire coupled by the fact that the jeepney was overloaded and speeding at the
time of the accident.

In Lasam v. Smith (45 Phil. 657), we laid down the following essential characteristics of caso fortuito:

xxx xxx xxx

... 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 Encyclopedia Juridica Espanola, 309.)

In the case at bar, the cause of the unforeseen and unexpected occurrence was not independent of the human
will. The accident was caused either through the negligence of the driver or because of mechanical defects in the
tire. Common carriers should teach their drivers not to overload their vehicles, not to exceed safe and legal speed
limits, and to know the correct measures to take when a tire blows up thus insuring the safety of passengers at all
times. Relative to the contingency of mechanical defects, we held in Necesito, et al. v. Paras, et al. (104 Phil. 75),
that:

... The preponderance of authority is in favor of the doctrine that a passenger is entitled to recover
damages from a carrier for an injury resulting from a defect in an appliance purchased from a
manufacturer, whenever it appears that the defect would have been discovered by the carrier if it
 had exercised the degree of care which under the circumstances was incumbent upon it, with
regard to inspection and application of the necessary tests. For the purposes of this doctrine, the
manufacturer is considered as being in law the agent or servant of the carrier, as far as regards the
work of constructing the appliance. According to this theory, the good repute of the manufacturer
will not relieve the carrier from liability' (10 Am. Jur. 205, s, 1324; see also Pennsylvania R. Co. v.
Roy, 102 U.S. 451; 20 L. Ed. 141; Southern R. Co. v. Hussey, 74 ALR 1172; 42 Fed. 2d 70; and Ed
Note, 29 ALR 788.: Ann. Cas. 1916E 929).

The rationale of the carrier's liability is the fact that the passenger has neither choice nor control
over the carrier in the selection and use of the equipment and appliances in use by the carrier.
Having no privity whatever with the manufacturer or vendor of the defective equipment, the
passenger has no remedy against him, while the carrier usually has. It is but logical, therefore, that
the carrier, while not an insurer of the safety of his passengers, should nevertheless be held to
answer for the flaws of his equipment if such flaws were at all discoverable. ...

It is sufficient to reiterate that the source of a common carrier's legal liability is the contract of carriage, and by
entering into the said contract, it binds itself to carry the passengers safely as far as human care and foresight
can provide, using the utmost diligence of a very cautious person, with a due regard for all the circumstances. The
records show that this obligation was not met by the respondents.

The respondents likewise argue that the petitioner cannot recover any amount for failure to prove such damages
during the trial. The respondents submit that if the petitioner was really injured, why was he treated in Danao City
and not in Mandaue City where the accident took place. The respondents argue that the doctor who issued the
medical certificate was not presented during the trial, and hence not cross-examined. The respondents also claim
that the petitioner was not wearing any wrist watch during the accident.

It should be noted that the City Court of Cebu found that the petitioner had a lacerated wound on his right palm
aside from injuries on his left arm, right thigh and on his back, and that on his way back to Danao City, he
discovered that his "Omega" wrist watch was lost. These are findings of facts of the City Court of Cebu which we
find no reason to disturb. More so when we consider the fact that the Court of First Instance of Cebu impliedly
concurred in these matters when it confined itself to the question of whether or not the tire blow out was a
fortuitous event.

WHEREFORE, the decision of the Court of First Instance of Cebu, Branch IV appealed from is hereby
REVERSED and SET ASIDE, and the decision of the City Court of Cebu, Branch I is REINSTATED, with the
modification that the damages shall earn interest at 12% per annum and the attorney's fees are increased to SIX
HUNDRED PESOS (P600.00). Damages shall earn interests from January 27, 1975.

SO ORDERED.

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-55300 March 15, 1990

FRANKLIN G. GACAL and CORAZON M. GACAL, the latter assisted by her husband, FRANKLIN G.
GACAL, petitioners,
vs.
PHILIPPINE AIR LINES, INC., and THE HONORABLE PEDRO SAMSON C. ANIMAS, in his capacity as
PRESIDING JUDGE of the COURT OF FIRST INSTANCE OF SOUTH COTABATO, BRANCH I, respondents.

Vicente A. Mirabueno for petitioners.

Siguion Reyna, Montecillo & Ongsiako for private respondent.

PARAS, J.:

This is a, petition for review on certiorari of the decision of the Court of First Instance of South Cotabato, Branch
1, *promulgated on August 26, 1980 dismissing three (3) consolidated cases for damages: Civil Case No. 1701,
Civil Case No. 1773 and Civil Case No. 1797 (Rollo, p. 35).

The facts, as found by respondent court, are as follows:

Plaintiffs Franklin G. Gacal and his wife, Corazon M. Gacal, Bonifacio S. Anislag and his wife,
Mansueta L. Anislag, and the late Elma de Guzman, were then passengers boarding defendant's
BAC 1-11 at Davao Airport for a flight to Manila, not knowing that on the same flight, Macalinog,
Taurac Pendatum known as Commander Zapata, Nasser Omar, Liling Pusuan Radia, Dimantong
Dimarosing and Mike Randa, all of Marawi City and members of the Moro National Liberation Front
(MNLF), were their co-passengers, three (3) armed with grenades, two (2) with .45 caliber pistols,
and one with a .22 caliber pistol. Ten (10) minutes after take off at about 2:30 in the afternoon, the
hijackers brandishing their respective firearms announced the hijacking of the aircraft and directed
its pilot to fly to Libya. With the pilot explaining to them especially to its leader, Commander Zapata,
of the inherent fuel limitations of the plane and that they are not rated for international flights, the
hijackers directed the pilot to fly to Sabah. With the same explanation, they relented and directed
the aircraft to land at Zamboanga Airport, Zamboanga City for refueling. The aircraft landed at 3:00
o'clock in the afternoon of May 21, 1976 at Zamboanga Airport. When the plane began to taxi at
the runway, it was met by two armored cars of the military with machine guns pointed at the plane,
and it stopped there. The rebels thru its commander demanded that a DC-aircraft take them to
Libya with the President of the defendant company as hostage and that they be given $375,000
and six (6) armalites, otherwise they will blow up the plane if their demands will not be met by the
government and Philippine Air Lines. Meanwhile, the passengers were not served any food nor
water and it was only on May 23, a Sunday, at about 1:00 o'clock in the afternoon that they were
served 1/4 slice of a sandwich and 1/10 cup of PAL water. After that, relatives of the hijackers were
allowed to board the plane but immediately after they alighted therefrom, an armored car bumped
the stairs. That commenced the battle between the military and the hijackers which led ultimately to
the liberation of the surviving crew and the passengers, with the final score of ten (10) passengers
and three (3) hijackers dead on the spot and three (3) hijackers captured.

City Fiscal Franklin G. Gacal was unhurt. Mrs. Corazon M. Gacal suffered injuries in the course of
her jumping out of the plane when it was peppered with bullets by the army and after two (2) hand
grenades exploded inside the plane. She was hospitalized at General Santos Doctors Hospital,
General Santos City, for two (2) days, spending P245.60 for hospital and medical expenses,
Assistant City Fiscal Bonifacio S. Anislag also escaped unhurt but Mrs. Anislag suffered a fracture
at the radial bone of her left elbow for which she was hospitalized and operated on at the San
Pedro Hospital, Davao City, and therefore, at Davao Regional Hospital, Davao City, spending
P4,500.00. Elma de Guzman died because of that battle. Hence, the action of damages instituted
by the plaintiffs demanding the following damages, to wit:

Civil Case No. 1701 —

City Fiscal Franklin G. Gacal and Mrs. Corazon M. Gacal — actual damages:
P245.60 for hospital and medical expenses of Mrs Gacal; P8,995.00 for their
personal belongings which were lost and not recovered; P50,000.00 each for moral
damages; and P5,000.00 for attorney's fees, apart from the prayer for an award of
exemplary damages (Record, pp. 4-6, Civil Case No. 1701).

Civil Case No. 1773 —

xxx xxx xxx

Civil Case No. 1797 —

xxx xxx xxx

The trial court, on August 26, 1980, dismissed the complaints finding that all the damages sustained in the
premises were attributed to force majeure.

On September 12, 1980 the spouses Franklin G. Gacal and Corazon M. Gacal, plaintiffs in Civil Case No. 1701,
filed a notice of appeal with the lower court on pure questions of law (Rollo, p. 55) and the petition for review
on certiorari was filed with this Court on October 20, 1980 (Rollo, p. 30).

The Court gave due course to the petition (Rollo, p. 147) and both parties filed their respective briefs but petitioner
failed to file reply brief which was noted by the Court in the resolution dated May 3, 1982 (Rollo, p. 183).
Petitioners alleged that the main cause of the unfortunate incident is the gross, wanton and inexcusable
negligence of respondent Airline personnel in their failure to frisk the passengers adequately in order to discover
hidden weapons in the bodies of the six (6) hijackers. They claimed that despite the prevalence of skyjacking, PAL
did not use a metal detector which is the most effective means of discovering potential skyjackers among the
passengers (Rollo, pp. 6-7).

Respondent Airline averred that in the performance of its obligation to safely transport passengers as far as
human care and foresight can provide, it has exercised the utmost diligence of a very cautious person with due
regard to all circumstances, but the security checks and measures and surveillance precautions in all flights,
including the inspection of baggages and cargo and frisking of passengers at the Davao Airport were performed
and rendered solely by military personnel who under appropriate authority had assumed exclusive jurisdiction
over the same in all airports in the Philippines.

Similarly, the negotiations with the hijackers were a purely government matter and a military operation, handled by
and subject to the absolute and exclusive jurisdiction of the military authorities. Hence, it concluded that the
accident that befell RP-C1161 was caused by fortuitous event, force majeure and other causes beyond the control
of the respondent Airline.

The determinative issue in this case is whether or not hijacking or air piracy during martial law and under the
circumstances obtaining herein, is a caso fortuito or force majeure which would exempt an aircraft from payment
of damages to its passengers whose lives were put in jeopardy and whose personal belongings were lost during
the incident.

Under the Civil Code, common carriers are required to exercise extraordinary diligence in their vigilance over the
goods and for the safety of passengers transported by them, according to all the circumstances of each case
(Article 1733). They are presumed at fault or to have acted negligently whenever a passenger dies or is injured
(Philippine Airlines, Inc. v. National Labor Relations Commission, 124 SCRA 583 [1983]) or for the loss,
destruction or deterioration of goods in cases other than those enumerated in Article 1734 of the Civil Code
(Eastern Shipping Lines, Inc. v. Intermediate Appellate Court, 150 SCRA 463 [1987]).

The source of a common carrier's legal liability is the contract of carriage, and by entering into said contract, it
binds itself to carry the passengers safely as far as human care and foresight can provide. There is breach of this
obligation if it fails to exert extraordinary diligence according to all the circumstances of the case in exercise of the
utmost diligence of a very cautious person (Isaac v. Ammen Transportation Co., 101 Phil. 1046 [1957]; Juntilla v.
Fontanar, 136 SCRA 624 [1985]).

It is the duty of a common carrier to overcome the presumption of negligence (Philippine National Railways v.
Court of Appeals, 139 SCRA 87 [1985]) and it must be shown that the carrier had observed the required
extraordinary diligence of a very cautious person as far as human care and foresight can provide or that the
accident was caused by a fortuitous event (Estrada v. Consolacion, 71 SCRA 523 [1976]). Thus, as ruled by this
Court, no person shall be responsible for those "events which could not be foreseen or which though foreseen
were inevitable. (Article 1174, Civil Code). The term is synonymous with caso fortuito (Lasam v. Smith, 45 Phil.
657 [1924]) which is of the same sense as "force majeure" (Words and Phrases Permanent Edition, Vol. 17, p.
362).

In order to constitute a caso fortuito or force majeure that would exempt a person from liability under Article 1174
of the Civil Code, it is necessary that the following elements must concur: (a) the cause of the breach of the
obligation must be independent of the human will (the will of the debtor or the obligor); (b) the event must be
either unforeseeable or unavoidable; (c) the event must be such as to render it impossible for the debtor to fulfill
his obligation in a normal manner; and (d) the debtor must be free from any participation in, or aggravation of the
injury to the creditor (Lasam v. Smith, 45 Phil. 657 [1924]; Austria v. Court of Appeals, 39 SCRA 527 [1971];
Estrada v. Consolacion, supra; Vasquez v. Court of Appeals, 138 SCRA 553 [1985]; Juan F. Nakpil & Sons v.
Court of Appeals, 144 SCRA 596 [1986]). Caso fortuito or force majeure, by definition, are extraordinary events
not foreseeable or avoidable, events that could not be foreseen, or which, though foreseen, are inevitable. It is,
therefore, not enough that the event should not have been foreseen or anticipated, as is commonly believed, but it
must be one impossible to foresee or to avoid. The mere difficulty to foresee the happening is not impossibility to
foresee the same (Republic v. Luzon Stevedoring Corporation, 21 SCRA 279 [1967]).

Applying the above guidelines to the case at bar, the failure to transport petitioners safely from Davao to Manila
was due to the skyjacking incident staged by six (6) passengers of the same plane, all members of the Moro
National Liberation Front (MNLF), without any connection with private respondent, hence, independent of the will
of either the PAL or of its passengers.

Under normal circumstances, PAL might have foreseen the skyjacking incident which could have been avoided
had there been a more thorough frisking of passengers and inspection of baggages as authorized by R.A. No.
6235. But the incident in question occurred during Martial Law where there was a military take-over of airport
security including the frisking of passengers and the inspection of their luggage preparatory to boarding domestic
and international flights. In fact military take-over was specifically announced on October 20, 1973 by General
Jose L. Rancudo, Commanding General of the Philippine Air Force in a letter to Brig. Gen. Jesus Singson, then
Director of the Civil Aeronautics Administration (Rollo, pp. 71-72) later confirmed shortly before the hijacking
incident of May 21, 1976 by Letter of Instruction No. 399 issued on April 28, 1976 (Rollo, p. 72).

Otherwise stated, these events rendered it impossible for PAL to perform its obligations in a nominal manner and
obviously it cannot be faulted with negligence in the performance of duty taken over by the Armed Forces of the
Philippines to the exclusion of the former.

Finally, there is no dispute that the fourth element has also been satisfied. Consequently the existence of force
majeure has been established exempting respondent PAL from the payment of damages to its passengers who
suffered death or injuries in their persons and for loss of their baggages.

PREMISES CONSIDERED, the petition is hereby DISMISSED for lack of merit and the decision of the Court of
First Instance of South Cotabato, Branch I is hereby AFFIRMED.

SO ORDERED.

G.R. No. L-48757 May 30, 1988

MAURO GANZON, petitioner,

vs.
COURT OF APPEALS and GELACIO E. TUMAMBING, respondents.

Antonio B. Abinoja for petitioner.

Quijano, Arroyo & Padilla Law Office for respondents.

SARMIENTO, J.:
The private respondent instituted in the Court of First Instance of Manila 1 an action against the petitioner for
damages based on culpa contractual. The antecedent facts, as found by the respondent Court, 2 are undisputed:

On November 28, 1956, Gelacio Tumambing contracted the services of Mauro B. Ganzon to haul 305 tons of
scrap iron from Mariveles, Bataan, to the port of Manila on board the lighter LCT "Batman" (Exhibit 1, Stipulation
of Facts, Amended Record on Appeal, p. 38). Pursuant to that agreement, Mauro B. Ganzon sent his lighter
"Batman" to Mariveles where it docked in three feet of water (t.s.n., September 28, 1972, p. 31). On December 1,
1956, Gelacio Tumambing delivered the scrap iron to defendant Filomeno Niza, captain of the lighter, for loading
which was actually begun on the same date by the crew of the lighter under the captain's supervision. When
about half of the scrap iron was already loaded (t.s.n., December 14, 1972, p. 20), Mayor Jose Advincula of
Mariveles, Bataan, arrived and demanded P5,000.00 from Gelacio Tumambing. The latter resisted the shakedown
and after a heated argument between them, Mayor Jose Advincula drew his gun and fired at Gelacio Tumambing
(t.s.n., March 19, 1971, p. 9; September 28, 1972, pp. 6-7).<äre||anº•1àw> The gunshot was not fatal but
Tumambing had to be taken to a hospital in Balanga, Bataan, for treatment (t.s.n., March 19, 1971, p. 13;
September 28, 1972, p. 15).

After sometime, the loading of the scrap iron was resumed. But on December 4, 1956, Acting Mayor Basilio Rub,
accompanied by three policemen, ordered captain Filomeno Niza and his crew to dump the scrap iron (t.s.n.,
June 16, 1972, pp. 8-9) where the lighter was docked (t.s.n., September 28, 1972, p. 31). The rest was brought to
the compound of NASSCO (Record on Appeal, pp. 20-22). Later on Acting Mayor Rub issued a receipt stating
that the Municipality of Mariveles had taken custody of the scrap iron (Stipulation of Facts, Record on Appeal, p.
40; t.s.n., September 28, 1972, p. 10.)

On the basis of the above findings, the respondent Court rendered a decision, the dispositive portion of which
states:

WHEREFORE, the decision appealed from is hereby reversed and set aside and a new one
entered ordering defendant-appellee Mauro Ganzon to pay plaintiff-appellant Gelacio E.
Tumambimg the sum of P5,895.00 as actual damages, the sum of P5,000.00 as exemplary
damages, and the amount of P2,000.00 as attorney's fees. Costs against defendant-appellee
Ganzon. 3

In this petition for review on certiorari, the alleged errors in the decision of the Court of Appeals are:

THE COURT OF APPEALS FINDING THE HEREIN PETITIONER GUILTY OF BREACH OF THE CONTRACT
OF TRANSPORTATION AND IN IMPOSING A LIABILITY AGAINST HIM COMMENCING FROM THE TIME THE
SCRAP WAS PLACED IN HIS CUSTODY AND CONTROL HAVE NO BASIS IN FACT AND IN LAW.

II

THE APPELLATE COURT ERRED IN CONDEMNING THE PETITIONER FOR THE ACTS OF HIS EMPLOYEES
IN DUMPING THE SCRAP INTO THE SEA DESPITE THAT IT WAS ORDERED BY THE LOCAL GOVERNMENT
OFFICIAL WITHOUT HIS PARTICIPATION.

III

THE APPELLATE COURT FAILED TO CONSIDER THAT THE LOSS OF THE SCRAP WAS DUE TO A
FORTUITOUS EVENT AND THE PETITIONER IS THEREFORE NOT LIABLE FOR LOSSES AS A
CONSEQUENCE THEREOF. 4

The petitioner, in his first assignment of error, insists that the scrap iron had not been unconditionally placed under
his custody and control to make him liable. However, he completely agrees with the respondent Court's finding
that on December 1, 1956, the private respondent delivered the scraps to Captain Filomeno Niza for loading in
the lighter "Batman," That the petitioner, thru his employees, actually received the scraps is freely admitted.
Significantly, there is not the slightest allegation or showing of any condition, qualification, or restriction
accompanying the delivery by the private respondent-shipper of the scraps, or the receipt of the same by the
petitioner. On the contrary, soon after the scraps were delivered to, and received by the petitioner-common
carrier, loading was commenced.

By the said act of delivery, the scraps were unconditionally placed in the possession and control of the common
carrier, and upon their receipt by the carrier for transportation, the contract of carriage was deemed perfected.
Consequently, the petitioner-carrier's extraordinary responsibility for the loss, destruction or deterioration of the
goods commenced. Pursuant to Art. 1736, such extraordinary responsibility would cease only upon the delivery,
actual or constructive, by the carrier to the consignee, or to the person who has a right to receive them. 5 The fact
that part of the shipment had not been loaded on board the lighter did not impair the said contract of
transportation as the goods remained in the custody and control of the carrier, albeit still unloaded.
The petitioner has failed to show that the loss of the scraps was due to any of the following causes enumerated in
Article 1734 of the Civil Code, namely:

(1) Flood, storm, earthquake, lightning, or other natural disaster or calamity;

(2) Act of the public enemy in war, whether international or civil;

(3) Act or omission of the shipper or owner of the goods;

(4) The character of the goods or defects in the packing or in the containers;

(5) Order or act of competent public authority.

Hence, the petitioner is presumed to have been at fault or to have acted negligently. 6 By reason of this
presumption, the court is not even required to make an express finding of fault or negligence before it could hold
the petitioner answerable for the breach of the contract of carriage. Still, the petitioner could have been exempted
from any liability had he been able to prove that he observed extraordinary diligence in the vigilance over the
goods in his custody, according to all the circumstances of the case, or that the loss was due to an unforeseen
event or to force majeure. As it was, there was hardly any attempt on the part of the petitioner to prove that he
exercised such extraordinary diligence.

It is in the second and third assignments of error where the petitioner maintains that he is exempt from any liability
because the loss of the scraps was due mainly to the intervention of the municipal officials of Mariveles which
constitutes a caso fortuito as defined in Article 1174 of the Civil Code. 7

We cannot sustain the theory of caso fortuito. In the courts below, the petitioner's defense was that the loss of the
scraps was due to an "order or act of competent public authority," and this contention was correctly passed upon
by the Court of Appeals which ruled that:

... In the second place, before the appellee Ganzon could be absolved from responsibility on the
ground that he was ordered by competent public authority to unload the scrap iron, it must be
shown that Acting Mayor Basilio Rub had the power to issue the disputed order, or that it was
lawful, or that it was issued under legal process of authority. The appellee failed to establish this.
Indeed, no authority or power of the acting mayor to issue such an order was given in evidence.
Neither has it been shown that the cargo of scrap iron belonged to the Municipality of Mariveles.
What we have in the record is the stipulation of the parties that the cargo of scrap iron was
accilmillated by the appellant through separate purchases here and there from private individuals
(Record on Appeal, pp. 38-39). The fact remains that the order given by the acting mayor to dump
the scrap iron into the sea was part of the pressure applied by Mayor Jose Advincula to shakedown
the appellant for P5,000.00. The order of the acting mayor did not constitute valid authority for
appellee Mauro Ganzon and his representatives to carry out.

Now the petitioner is changing his theory to caso fortuito. Such a change of theory on appeal we cannot, however,
allow. In any case, the intervention of the municipal officials was not In any case, of a character that would render
impossible the fulfillment by the carrier of its obligation. The petitioner was not duty bound to obey the illegal order
to dump into the sea the scrap iron. Moreover, there is absence of sufficient proof that the issuance of the same
order was attended with such force or intimidation as to completely overpower the will of the petitioner's
employees. The mere difficulty in the fullfilment of the obligation is not considered force majeure. We agree with
the private respondent that the scraps could have been properly unloaded at the shore or at the NASSCO
compound, so that after the dispute with the local officials concerned was settled, the scraps could then be
delivered in accordance with the contract of carriage.

There is no incompatibility between the Civil Code provisions on common carriers and Articles 361 8 and 362 9 of
the Code of Commerce which were the basis for this Court's ruling in Government of the Philippine Islands vs.
Ynchausti & Co.10 and which the petitioner invokes in tills petition. For Art. 1735 of the Civil Code, conversely
stated, means that the shipper will suffer the losses and deterioration arising from the causes enumerated in Art.
1734; and in these instances, the burden of proving that damages were caused by the fault or negligence of the
carrier rests upon him. However, the carrier must first establish that the loss or deterioration was occasioned by
one of the excepted causes or was due to an unforeseen event or to force majeure. Be that as it may, insofar as
Art. 362 appears to require of the carrier only ordinary diligence, the same is .deemed to have been modified by
Art. 1733 of the Civil Code.

Finding the award of actual and exemplary damages to be proper, the same will not be disturbed by us. Besides,
these were not sufficiently controverted by the petitioner.

WHEREFORE, the petition is DENIED; the assailed decision of the Court of Appeals is hereby AFFIRMED. Costs
against the petitioner.
This decision is IMMEDIATELY EXECUTORY.

Yap, C.J., Paras and Padilla, JJ., concur.

Separate Opinions

MELENCIO-HERRERA, J., dissenting:

I am constrained to dissent.

It is my view that petitioner can not be held liable in damages for the loss and destruction of the scrap iron. The
loss of said cargo was due to an excepted cause an 'order or act of competent public authority" (Article 1734[5],
Civil Code).

The loading of the scrap iron on the lighter had to be suspended because of Municipal Mayor Jose Advincula's
intervention, who was a "competent public authority." Petitioner had no control over the situation as, in fact,
Tumambing himself, the owner of the cargo, was impotent to stop the "act' of said official and even suffered a
gunshot wound on the occasion.

When loading was resumed, this time it was Acting Mayor Basilio Rub, accompanied by three policemen, who
ordered the dumping of the scrap iron into the sea right where the lighter was docked in three feet of water. Again,
could the captain of the lighter and his crew have defied said order?

Through the "order" or "act" of "competent public authority," therefore, the performance of a contractual obligation
was rendered impossible. The scrap iron that was dumped into the sea was "destroyed" while the rest of the
cargo was "seized." The seizure is evidenced by the receipt issues by Acting Mayor Rub stating that the
Municipality of Mariveles had taken custody of the scrap iron. Apparently, therefore, the seizure and destruction of
the goods was done under legal process or authority so that petitioner should be freed from responsibility.

Art. 1743. If through order of public authority the goods are seized or destroyed, the common
carrier is not responsible, provided said public authority had power to issue the order.

Separate Opinions

MELENCIO-HERRERA, J., dissenting:

I am constrained to dissent.

It is my view that petitioner can not be held liable in damages for the loss and destruction of the scrap iron. The
loss of said cargo was due to an excepted cause an 'order or act of competent public authority" (Article 1734[5],
Civil Code).

The loading of the scrap iron on the lighter had to be suspended because of Municipal Mayor Jose Advincula's
intervention, who was a "competent public authority." Petitioner had no control over the situation as, in fact,
Tumambing himself, the owner of the cargo, was impotent to stop the "act' of said official and even suffered a
gunshot wound on the occasion.

When loading was resumed, this time it was Acting Mayor Basilio Rub, accompanied by three policemen, who
ordered the dumping of the scrap iron into the sea right where the lighter was docked in three feet of water. Again,
could the captain of the lighter and his crew have defied said order?

Through the "order" or "act" of "competent public authority," therefore, the performance of a contractual obligation
was rendered impossible. The scrap iron that was dumped into the sea was "destroyed" while the rest of the
cargo was "seized." The seizure is evidenced by the receipt issues by Acting Mayor Rub stating that the
Municipality of Mariveles had taken custody of the scrap iron. Apparently, therefore, the seizure and destruction of
the goods was done under legal process or authority so that petitioner should be freed from responsibility.
 Art. 1743. If through order of public authority the goods are seized or destroyed, the common
carrier is not responsible, provided said public authority had power to issue the order.

G.R. No. L-22272 June 26, 1967

ANTONIA MARANAN, plaintiff-appellant,

vs.
PASCUAL PEREZ, ET AL., defendants.
PASCUAL PEREZ, defendant appellant.

Pedro Panganiban for plaintiff-appellant.

Magno T. Bueser for defendant-appellant.

BENGZON, J.P., J.:

Rogelio Corachea, on October 18, 1960, was a passenger in a taxicab owned and operated by Pascual Perez
when he was stabbed and killed by the driver, Simeon Valenzuela.
Valenzuela was prosecuted for homicide in the Court of First Instance of Batangas. Found guilty, he was
sentenced to suffer imprisonment and to indemnify the heirs of the deceased in the sum of P6,000. Appeal from
said conviction was taken to the Court of Appeals.1äwphï1.ñët

On December 6 1961, while appeal was pending in the Court of Appeals, Antonia Maranan, Rogelio's mother,
filed an action in the Court of First Instance of Batangas to recover damages from Perez and Valenzuela for the
death of her son. Defendants asserted that the deceased was killed in self-defense, since he first assaulted the
driver by stabbing him from behind. Defendant Perez further claimed that the death was a caso fortuito for which
the carrier was not liable.

The court a quo, after trial, found for the plaintiff and awarded her P3,000 as damages against defendant Perez.
The claim against defendant Valenzuela was dismissed. From this ruling, both plaintiff and defendant Perez
appealed to this Court, the former asking for more damages and the latter insisting on non-liability. Subsequently,
the Court of Appeals affirmed the judgment of conviction earlier mentioned, during the pendency of the herein
appeal, and on May 19, 1964, final judgment was entered therein. (Rollo, p. 33).

Defendant-appellant relies solely on the ruling enunciated in Gillaco v. Manila Railroad Co., 97 Phil. 884, that the
carrier is under no absolute liability for assaults of its employees upon the passengers. The attendant facts and
controlling law of that case and the one at bar are very different however. In the Gillaco case, the passenger was
killed outside the scope and the course of duty of the guilty employee. As this Court there found:

x x x 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 two hours after the commission of the crime. Devesa
was therefore under no obligation to safeguard the passengers 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 can not be deemed in law a breach of Gillaco's contract of
transportation by a servant or employee of the carrier. . . . (Emphasis supplied)

Now here, the killing was perpetrated by the driver of the very cab transporting the passenger, in whose hands the
carrier had entrusted the duty of executing the contract of carriage. In other words, unlike the Gillaco case, the
killing of the passenger here took place in the course of duty of the guilty employee and when the employee was
acting within the scope of his duties.

Moreover, the Gillaco case was decided under the provisions of the Civil Code of 1889 which, unlike the present
Civil Code, did not impose upon common carriers absolute liability for the safety of passengers against wilful
assaults or negligent acts committed by their employees. The death of the passenger in the Gillaco case was truly
a fortuitous event which exempted the carrier from liability. It is true that Art. 1105 of the old Civil Code on
fortuitous events has been substantially reproduced in Art. 1174 of the Civil Code of the Philippines but both
articles clearly remove from their exempting effect the case where the law expressly provides for liability in spite of
the occurrence of force majeure. And herein significantly lies the statutory difference between the old and present
Civil Codes, in the backdrop of the factual situation before Us, which further accounts for a different result in
the Gillaco case. Unlike the old Civil Code, the new Civil Code of the Philippines expressly makes the common
carrier liable for intentional assaults committed by its employees upon its passengers, by the wording of Art. 1759
which categorically states that

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

The Civil Code provisions on the subject of Common Carriers1 are new and were taken from Anglo-American
Law.2There, the basis of the carrier's liability for assaults on passengers committed by its drivers rests either on
(1) the doctrine of respondeat superior or (2) the principle that it is the carrier's implied duty to transport the
passenger safely.3

Under the first, which is the minority view, the carrier is liable only when the act of the employee is within the
scope of his authority and duty. It is not sufficient that the act be within the course of employment only.4

Under the second view, upheld by the majority and also by the later cases, it is enough that the assault happens
within the course of the employee's duty. It is no defense for the carrier that the act was done in excess of
authority or in disobedience of the carrier's orders.5 The carrier's liability here is absolute in the sense that it
practically secures the passengers from assaults committed by its own employees.6
As can be gleaned from Art. 1759, the Civil Code of the Philippines evidently follows the rule based on the second
view. At least three very cogent reasons underlie this rule. As explained in Texas Midland R.R. v. Monroe, 110 Tex.
97, 216 S.W. 388, 389-390, and Haver v. Central Railroad Co., 43 LRA 84, 85: (1) the special undertaking of the
carrier requires that it furnish its passenger that full measure of protection afforded by the exercise of the high
degree of care prescribed by the law, inter alia from violence and insults at the hands of strangers and other
passengers, but above all, from the acts of the carrier's own servants charged with the passenger's safety; (2)
said liability of the carrier for the servant's violation of duty to passengers, is the result of the formers confiding in
the servant's hands the performance of his contract to safely transport the passenger, delegating therewith the
duty of protecting the passenger with the utmost care prescribed by law; and (3) as between the carrier and the
passenger, the former must bear the risk of wrongful acts or negligence of the carrier's employees against
passengers, since it, and not the passengers, has power to select and remove them.

Accordingly, it is the carrier's strict obligation to select its drivers and similar employees with due regard not only
to their technical competence and physical ability, but also, no less important, to their total personality, including
their patterns of behavior, moral fibers, and social attitude.

Applying this stringent norm to the facts in this case, therefore, the lower court rightly adjudged the defendant
carrier liable pursuant to Art. 1759 of the Civil Code. The dismissal of the claim against the defendant driver was
also correct. Plaintiff's action was predicated on breach of contract of carriage7 and the cab driver was not a party
thereto. His civil liability is covered in the criminal case wherein he was convicted by final judgment.

In connection with the award of damages, the court a quo granted only P3,000 to plaintiff-appellant. This is the
minimum compensatory damages amount recoverable under Art. 1764 in connection with Art. 2206 of the Civil
Code when a breach of contract results in the passenger's death. As has been the policy followed by this Court,
this minimal award should be increased to P6,000. As to other alleged actual damages, the lower court's finding
that plaintiff's evidence thereon was not convincing,8 should not be disturbed. Still, Arts. 2206 and 1764
award moral damages in addition to compensatory damages, to the parents of the passenger killed to
compensate for the mental anguish they suffered. A claim therefor, having been properly made, it becomes the
court's duty to award moral damages.9 Plaintiff demands P5,000 as moral damages; however, in the
circumstances, We consider P3,000 moral damages, in addition to the P6,000 damages afore-stated, as
sufficient. Interest upon such damages are also due to plaintiff-appellant. 10

Wherefore, with the modification increasing the award of actual damages in plaintiff's favor to P6,000, plus
P3,000.00 moral damages, with legal interest on both from the filing of the complaint on December 6, 1961 until
the whole amount is paid, the judgment appealed from is affirmed in all other respects. No costs. So ordered.

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. 85691 July 31, 1990

BACHELOR EXPRESS, INCORPORATED, and CRESENCIO RIVERA, petitioners,

vs.
THE HONORABLE COURT OF APPEALS (Sixth Division), RICARDO BETER, SERGIA BETER, TEOFILO
RAUTRAUT and ZOETERA RAUTRAUT, respondents.

Aquino W. Gambe for petitioners.

Tranquilino O. Calo, Jr. for private respondents.

GUTIERREZ, JR., J.:

This is a petition for review of the decision of the Court of Appeals which reversed and set aside the order of the
Regional Trial Court, Branch I, Butuan City dismissing the private respondents' complaint for collection of "a sum
of money" and finding the petitioners solidarily liable for damages in the total amount of One Hundred Twenty
Thousand Pesos (P120,000.00). The petitioners also question the appellate court's resolution denying a motion
for reconsideration.

On August 1, 1980, Bus No. 800 owned by Bachelor Express, Inc. and driven by Cresencio Rivera was the situs
of a stampede which resulted in the death of passengers Ornominio Beter and Narcisa Rautraut.

The evidence shows that the bus came from Davao City on its way to Cagayan de Oro City passing Butuan City;
that while at Tabon-Tabon, Butuan City, the bus picked up a passenger; that about fifteen (15) minutes later, a
passenger at the rear portion suddenly stabbed a PC soldier which caused commotion and panic among the
passengers; that when the bus stopped, passengers Ornominio Beter and Narcisa Rautraut were found lying
down the road, the former already dead as a result of head injuries and the latter also suffering from severe
injuries which caused her death later. The passenger assailant alighted from the bus and ran toward the bushes
but was killed by the police. Thereafter, the heirs of Ornominio Beter and Narcisa Rautraut, private respondents
herein (Ricardo Beter and Sergia Beter are the parents of Ornominio while Teofilo Rautraut and Zoetera [should
be Zotera] Rautraut are the parents of Narcisa) filed a complaint for "sum of money" against Bachelor Express,
Inc. its alleged owner Samson Yasay and the driver Rivera.

In their answer, the petitioners denied liability for the death of Ornominio Beter and Narcisa Rautraut. They
alleged that ... the driver was able to transport his passengers safely to their respective places of destination
except Ornominio Beter and Narcisa Rautraut who jumped off the bus without the knowledge and consent, much
less, the fault of the driver and conductor and the defendants in this case; the defendant corporation had
exercised due diligence in the choice of its employees to avoid as much as possible accidents; the incident on
August 1, 1980 was not a traffic accident or vehicular accident; it was an incident or event very much beyond the
control of the defendants; defendants were not parties to the incident complained of as it was an act of a third
party who is not in any way connected with the defendants and of which the latter have no control and
supervision; ..." (Rollo, pp. 112-113).i•t•c-aüsl

After due trial, the trial court issued an order dated August 8, 1985 dismissing the complaint.

Upon appeal however, the trial court's decision was reversed and set aside. The dispositive portion of the decision
of the Court of Appeals states:

WHEREFORE, the Decision appealed from is REVERSED and SET ASIDE and a new one
entered finding the appellees jointly and solidarily liable to pay the plaintiffs-appellants the following
amounts:

1) To the heirs of Ornominio Beter, the amount of Seventy Five Thousand Pesos (P75,000.00) in
loss of earnings and support, moral damages, straight death indemnity and attorney's fees; and,

2) To the heirs of Narcisa Rautraut, the amount of Forty Five Thousand Pesos (P45,000.00) for
straight death indemnity, moral damages and attorney's fees. Costs against appellees. (Rollo, pp.
71-72)

The petitioners now pose the following questions

What was the proximate cause of the whole incident? Why were the passengers on board the bus
panicked (sic) and why were they shoving one another? Why did Narcisa Rautraut and Ornominio
Beter jump off from the running bus?

The petitioners opine that answers to these questions are material to arrive at "a fair, just and equitable
judgment." (Rollo, p. 5) They claim that the assailed decision is based on a misapprehension of facts and its
conclusion is grounded on speculation, surmises or conjectures.

As regards the proximate cause of the death of Ornominio Beter and Narcisa Rautraut, the petitioners maintain
that it was the act of the passenger who ran amuck and stabbed another passenger of the bus. They contend that
the stabbing incident triggered off the commotion and panic among the passengers who pushed one another and
that presumably out of fear and moved by that human instinct of self-preservation Beter and Rautraut jumped off
the bus while the bus was still running resulting in their untimely death." (Rollo, p. 6) Under these circumstances,
the petitioners asseverate that they were not negligent in the performance of their duties and that the incident was
completely and absolutely attributable to a third person, the passenger who ran amuck, for without his criminal
act, Beter and Rautraut could not have been subjected to fear and shock which compelled them to jump off the
running bus. They argue that they should not be made liable for damages arising from acts of third persons over
whom they have no control or supervision.
Furthermore, the petitioners maintain that the driver of the bus, before, during and after the incident was driving
cautiously giving due regard to traffic rules, laws and regulations. The petitioners also argue that they are not
insurers of their passengers as ruled by the trial court.

The liability, if any, of the petitioners is anchored on culpa contractual or breach of contract of carriage. The
applicable provisions of law under the New Civil Code are as follows:

ART. 1732. Common carriers are persons, corporations, firms or associations engaged in the
business of carrying or transporting passengers or goods or both by land, water, or air, for
compensation, offering their services to the public.

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.

xxx xxx xxx

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

ART. 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.

There is no question that Bachelor Express, Inc. is a common carrier. Hence, from the nature of its business and
for reasons of public policy Bachelor Express, Inc. is bound to carry its 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.

In the case at bar, Ornominio Beter and Narcisa Rautraut were passengers of a bus belonging to petitioner
Bachelor Express, Inc. and, while passengers of the bus, suffered injuries which caused their death.
Consequently, pursuant to Article 1756 of the Civil Code, petitioner Bachelor Express, Inc. is presumed to have
acted negligently unless it can prove that it had observed extraordinary diligence in accordance with Articles 1733
and 1755 of the New Civil Code.

Bachelor Express, Inc. denies liability for the death of Beter and Rautraut on its posture that the death of the said
passengers was caused by a third person who was beyond its control and supervision. In effect, the petitioner, in
order to overcome the presumption of fault or negligence under the law, states that the vehicular incident resulting
in the death of passengers Beter and Rautraut was caused by force majeure or caso fortuito over which the
common carrier did not have any control.

Article 1174 of the present Civil Code states:

Except in cases expressly specified by law, or when it is otherwise declared by stipulations, or

when the nature of the obligation requires the assumption of risk, no person shall be responsible
for those events which could not be foreseen, or which though foreseen, were inevitable.

The above-mentioned provision was substantially copied from Article 1105 of the old Civil Code which states"

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 liability.

In the case of Lasam v. Smith (45 Phil. 657 [1924]), we defined "events" which cannot be foreseen and which,
having been foreseen, are inevitable in the following manner:

... 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.; Scaevola, Codigo Civil, vol. 19, pp. 526 et seq.)

The antecedent to Article 1105 is found in Law II, Title 33, Partida 7, which defines caso fortuito as
'occasion que acaese por aventura de que non se puede ante ver. E son estos, derrivamientos de
casas e fuego que enciende a so ora, e quebrantamiento de navio, fuerca de ladrones' (An event
that takes place by incident and could not have been foreseen. Examples of this are destruction of
houses, unexpected fire, shipwreck, violence of robbers ...)
 Escriche defines caso fortuito as an unexpected event or act of God which could neither be
foreseen nor resisted, such as floods, torrents, shipwrecks, conflagrations, lightning, compulsion,
insurrections, destruction of buildings by unforeseen accidents and other occurrences of a similar
nature.

In discussing and analyzing the term caso fortuito the Enciclopedia 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. ...

The running amuck of the passenger was the proximate cause of the incident as it triggered off a commotion and
panic among the passengers such that the passengers started running to the sole exit shoving each other
resulting in the falling off the bus by passengers Beter and Rautraut causing them fatal injuries. The sudden act of
the passenger who stabbed another passenger in the bus is within the context of force majeure.

However, in order that a common carrier may be absolved from liability in case of force majeure, it is not enough
that the accident was caused by force majeure. The common carrier must still prove that it was not negligent in
causing the injuries resulting from such accident. Thus, as early as 1912, we ruled:

From all the foregoing, it is concluded that the defendant is not liable for the loss and damage of
the goods shipped on the lorcha Pilar by the Chinaman, Ong Bien Sip, inasmuch as such loss and
damage were the result of a fortuitous event or force majeure, and there was no negligence or lack
of care and diligence on the part of the defendant company or its agents. (Tan Chiong Sian v.
Inchausti & Co., 22 Phil. 152 [1912]; Emphasis supplied).

This principle was reiterated in a more recent case, Batangas Laguna Tayabas Co. v. Intermediate Appellate
Court(167 SCRA 379 [1988]), wherein we ruled:

... [F]or their defense of force majeure or act of God to prosper the accident must be due to natural
causes and exclusively without human intervention. (Emphasis supplied)

Therefore, the next question to be determined is whether or not the petitioner's common carrier observed
extraordinary diligence to safeguard the lives of its passengers.

In this regard the trial court and the appellate court arrived at conflicting factual findings.

The trial court found the following facts:

The parties presented conflicting evidence as to how the two deceased Narcisa Rautruat and
Ornominio Beter met their deaths.

However, from the evidence adduced by the plaintiffs, the Court could not see why the two
deceased could have fallen off the bus when their own witnesses testified that when the
commotion ensued inside the bus, the passengers pushed and shoved each other towards the
door apparently in order to get off from the bus through the door. But the passengers also could not
pass through the door because according to the evidence the door was locked.

On the other hand, the Court is inclined to give credence to the evidence adduced by the
defendants that when the commotion ensued inside the bus, the two deceased panicked and, in
state of shock and fear, they jumped off from the bus by passing through the window.

It is the prevailing rule and settled jurisprudence that transportation companies are not insurers of
their passengers. The evidence on record does not show that defendants' personnel were
negligent in their duties. The defendants' personnel have every right to accept passengers absent
any manifestation of violence or drunkenness. If and when such passengers harm other
passengers without the knowledge of the transportation company's personnel, the latter should not
be faulted. (Rollo, pp. 46-47)
A thorough examination of the records, however, show that there are material facts ignored by the trial court which
were discussed by the appellate court to arrive at a different conclusion. These circumstances show that the
petitioner common carrier was negligent in the provision of safety precautions so that its passengers may be
transported safely to their destinations. The appellate court states:

A critical eye must be accorded the lower court's conclusions of fact in its tersely written ratio
decidendi. The lower court concluded that the door of the bus was closed; secondly, the
passengers, specifically the two deceased, jumped out of the window. The lower court therefore
concluded that the defendant common carrier is not liable for the death of the said passengers
which it implicitly attributed to the unforeseen acts of the unidentified passenger who went amuck.

There is nothing in the record to support the conclusion that the solitary door of the bus was locked
as to prevent the passengers from passing through. Leonila Cullano, testifying for the defense,
clearly stated that the conductor opened the door when the passengers were shouting that the bus
stop while they were in a state of panic. Sergia Beter categorically stated that she actually saw her
son fall from the bus as the door was forced open by the force of the onrushing passengers.

Pedro Collango, on the other hand, testified that he shut the door after the last passenger had
boarded the bus. But he had quite conveniently neglected to say that when the passengers had
panicked, he himself panicked and had gone to open the door. Portions of the testimony of Leonila
Cullano, quoted below, are illuminating:

xxx xxx xxx

Q When you said the conductor opened the door, the door at the front or rear portion of the bus?

A Front door.

Q And these two persons whom you said alighted, where did they pass, the fron(t) door or rear
door?

A Front door.

xxx xxx xxx

(Tsn., p. 4, Aug. 8, 1984)

xxx xxx xxx

Q What happened after there was a commotion at the rear portion of the bus?

A When the commotion occurred, I stood up and I noticed that there was a passenger who was
sounded (sic). The conductor panicked because the passengers were shouting 'stop, stop'. The
conductor opened the bus.'

(Tsn. p. 3, August 8, 1984).

Accordingly, there is no reason to believe that the deceased passengers jumped from the window
when it was entirely possible for them to have alighted through the door. The lower court's reliance
on the testimony of Pedro Collango, as the conductor and employee of the common carrier, is
unjustified, in the light of the clear testimony of Leonila Cullano as the sole uninterested eyewitness
of the entire episode. Instead we find Pedro Collango's testimony to be infused by bias and fraught
with inconsistencies, if not notably unreliable for lack of veracity. On direct examination, he
testified:

xxx xxx xxx

Q So what happened to the passengers inside your bus?

A Some of the passengers jumped out of the window.

COURT:

Q While the bus was in motion?

A Yes, your Honor, but the speed was slow because we have just picked up a passenger.
 Atty. Gambe:

Q You said that at the time of the incident the bus was running slow because you have just picked
up a passenger. Can you estimate what was your speed at that time?

Atty. Calo:

No basis, your Honor, he is neither a driver nor a conductor.

COURT:

Let the witness answer. Estimate only, the conductor experienced.

Witness:

Not less than 30 to 40 miles.

COURT:

Kilometers or miles?

A Miles.

Atty. Gambe:

Q That is only your estimate by your experience?

A Yes, sir, estimate.

(Tsn., pp. 4-5, Oct. 17, 1983).

At such speed of not less than 30 to 40 miles ..., or about 48 to 65 kilometers per hour, the speed
of the bus could scarcely be considered slow considering that according to Collango himself, the
bus had just come from a full stop after picking a passenger (Tsn, p. 4, Id.) and that the bus was
still on its second or third gear (Tsn., p. 12, Id.).

In the light of the foregoing, the negligence of the common carrier, through its employees,
consisted of the lack of extraordinary diligence required of common carriers, in exercising vigilance
and utmost care of the safety of its passengers, exemplified by the driver's belated stop and the
reckless opening of the doors of the bus while the same was travelling at an appreciably fast
speed. At the same time, the common carrier itself acknowledged, through its administrative officer,
Benjamin Granada, that the bus was commissioned to travel and take on passengers and the
public at large, while equipped with only a solitary door for a bus its size and loading capacity, in
contravention of rules and regulations provided for under the Land Transportation and Traffic Code
(RA 4136 as amended.) (Rollo, pp. 23-26)

Considering the factual findings of the Court of Appeals-the bus driver did not immediately stop the bus at the
height of the commotion; the bus was speeding from a full stop; the victims fell from the bus door when it was
opened or gave way while the bus was still running; the conductor panicked and blew his whistle after people had
already fallen off the bus; and the bus was not properly equipped with doors in accordance with law-it is clear that
the petitioners have failed to overcome the presumption of fault and negligence found in the law governing
common carriers.

The petitioners' argument that the petitioners "are not insurers of their passengers" deserves no merit in view of
the failure of the petitioners to prove that the deaths of the two passengers were exclusively due to force
majeure and not to the failure of the petitioners to observe extraordinary diligence in transporting safely the
passengers to their destinations as warranted by law. (See Batangas Laguna Tayabas Co. v. Intermediate
Appellate Court, supra).

The petitioners also contend that the private respondents failed to show to the court that they are the parents of
Ornominio Beter and Narcisa Rautraut respectively and therefore have no legal personality to sue the petitioners.
This argument deserves scant consideration. We find this argument a belated attempt on the part of the
petitioners to avoid liability for the deaths of Beter and Rautraut. The private respondents were Identified as the
parents of the victims by witnesses during the trial and the trial court recognized them as such. The trial court
dismissed the complaint solely on the ground that the petitioners were not negligent.
Finally, the amount of damages awarded to the heirs of Beter and Rautraut by the appellate court is supported by
the evidence. The appellate court stated:

Ornominio Beter was 32 years of age at the time of his death, single, in good health and rendering
support and service to his mother. As far as Narcisa Rautraut is concerned, the only evidence
adduced is to the effect that at her death, she was 23 years of age, in good health and without
visible means of support.

In accordance with Art. 1764 in conjunction with Art. 2206 of the Civil Code, and established
jurisprudence, several factors may be considered in determining the award of damages, namely: 1)
life expectancy (considering the state of health of the deceased and the mortality tables are
deemed conclusive) and loss of earning capacity; (2) pecuniary loss, loss of support and service;
and (3) moral and mental suffering (Alcantara, et al. v. Surro, et al., 93 Phil. 470).

In the case of People v. Daniel (No. L-66551, April 25, 1985, 136 SCRA 92, at page 104), the High
Tribunal, reiterating the rule in Villa Rey Transit, Inc. v. Court of Appeals (31 SCRA 511), stated that
the amount of loss of earring capacity is based mainly on two factors, namely, (1) the number of
years on the basis of which the damages shall be computed; and (2) the rate at which the losses
sustained by the heirs should be fixed.

As the formula adopted in the case of Davila v. Philippine Air Lines, 49 SCRA 497, at the age of 30
one's normal life expectancy is 33-1/3 years based on the American Expectancy Table of Mortality
(2/3 x 80-32).i•t•c-aüsl By taking into account the pace and nature of the life of a carpenter, it is
reasonable to make allowances for these circumstances and reduce the life expectancy of the
deceased Ornominio Beter to 25 years (People v. Daniel, supra). To fix the rate of losses it must be
noted that Art. 2206 refers to gross earnings less necessary living expenses of the deceased, in
other words, only net earnings are to be considered (People v. Daniel, supra; Villa Rey Transit, Inc.
v. Court of Appeals, supra).

Applying the foregoing rules with respect to Ornominio Beter, it is both just and reasonable,
considering his social standing and position, to fix the deductible, living and incidental expenses at
the sum of Four Hundred Pesos (P400.00) a month, or Four Thousand Eight Hundred Pesos
(P4,800.00) annually. As to his income, considering the irregular nature of the work of a daily wage
carpenter which is seasonal, it is safe to assume that he shall have work for twenty (20) days a
month at Twenty Five Pesos (P150,000.00) for twenty five years. Deducting therefrom his
necessary expenses, his heirs would be entitled to Thirty Thousand Pesos (P30,000.00)
representing loss of support and service (P150,000.00 less P120,000.00). In addition, his heirs are
entitled to Thirty Thousand Pesos (P30,000.00) as straight death indemnity pursuant to Article
2206 (People v. Daniel, supra). For damages for their moral and mental anguish, his heirs are
entitled to the reasonable sum of P10,000.00 as an exception to the general rule against moral
damages in case of breach of contract rule Art. 2200 (Necesito v. Paras, 104 Phil. 75). As
attorney's fees, Beter's heirs are entitled to P5,000.00. All in all, the plaintiff-appellants Ricardo and
Sergia Beter as heirs of their son Ornominio are entitled to an indemnity of Seventy Five Thousand
Pesos (P75,000.00).

In the case of Narcisa Rautraut, her heirs are entitled to a straight death indemnity of Thirty
Thousand Pesos (P30,000.00), to moral damages in the amount of Ten Thousand Pesos
(P10,000.00) and Five Thousand Pesos (P5,000.00) as attorney's fees, or a total of Forty Five
Thousand Pesos (P45,000.00) as total indemnity for her death in the absence of any evidence that
she had visible means of support. (Rollo, pp. 30-31)

WHEREFORE, the instant petition is DISMISSED. The questioned decision dated May 19, 1988 and the
resolution dated August 1, 1988 of the Court of Appeals are AFFIRMED.

SO ORDERED.
G.R. No. L-9671 August 23, 1957

CESAR L. ISAAC, plaintiff-appellant,

vs.
A. L. AMMEN TRANSPORTATION CO., INC., defendant-appellee.

Angel S. Gamboa for appellant.

Manuel O. Chan for appellee.

BAUTISTA ANGELO, J.:

A. L. Ammen Transportation Co., Inc., hereinafter referred to as defendant, is a corporation engaged in the
business of transporting passengers by land for compensation in the Bicol provinces and one of the lines it
operates is the one connecting Legaspi City, Albay with Naga City, Camarines Sur. One of the buses which
defendant was operating is Bus No. 31. On May 31, 1951, plaintiff boarded said bus as a passenger paying the
required fare from Ligao, Albay bound for Pili, Camarines Sur, but before reaching his destination, the bus collided
with a motor vehicle of the pick-up type coming from the opposite direction, as a result of which plaintiff's left arm
was completely severed and the severed portion fell inside the bus. Plaintiff was rushed to a hospital in Iriga,
Camarines Sur where he was given blood transfusion to save his life. After four days, he was transferred to
another hospital in Tabaco, Albay, where he under went treatment for three months. He was moved later to the
Orthopedic Hospital where he was operated on and stayed there for another two months. For these services, he
incurred expenses amounting to P623.40, excluding medical fees which were paid by defendant.

As an aftermath, plaintiff brought this action against defendants for damages alleging that the collision which
resulted in the loss of his left arm was mainly due to the gross incompetence and recklessness of the driver of the
bus operated by defendant and that defendant incurred in culpa contractual arising from its non-compliance with
its obligation to transport plaintiff safely to his, destination. Plaintiff prays for judgment against defendant as
follows: (1) P5,000 as expenses for his medical treatment, and P3,000 as the cost of an artificial arm, or a total of
P8,000; (2) P6,000 representing loss of earning; (3) P75,000 for diminution of his earning capacity; (4) P50,000
as moral damages; and (5) P10,000 as attorneys' fees and costs of suit.

Defendant set up as special defense that the injury suffered by plaintiff was due entirely to the fault or negligence
of the driver of the pick-up car which collided with the bus driven by its driver and to the contributory negligence of
plaintiff himself. Defendant further claims that the accident which resulted in the injury of plaintiff is one which
defendant could not foresee or, though foreseen, was inevitable.

The after trial found that the collision occurred due to the negligence of the driver of the pick-up car and not to that
of the driver of the bus it appearing that the latter did everything he could to avoid the same but that
notwithstanding his efforts, he was not able to avoid it. As a consequence, the court dismissed complaint, with
costs against plaintiff. This is an appeal from said decision.

It appears that plaintiff boarded a bus of defendant as paying passenger from Ligao, Albay, bound for Pili,
Camarines Sur, but before reaching his destination, the bus collided with a pick-up car which was coming from the
opposite direction and, as a, result, his left arm was completely severed and fell inside the back part of the bus.
Having this background in view, and considering that plaintiff chose to hold defendant liable on its contractual
obligation to carry him safely to his place of destination, it becomes important to determine the nature and extent
of the liability of a common carrier to a passenger in the light of the law applicable in this jurisdiction.

In this connection, appellant invokes the rule that, "when an action is based on a contract of carriage, as in this
case, all that is necessary to sustain recovery is proof of the existence of the contract of the breach thereof by act
or omission", and in support thereof, he cites several Philippine cases.1 With the ruling in mind, appellant seems
to imply that once the contract of carriage is established and there is proof that the same was broken by failure of
the carrier to transport the passenger safely to his destination, the liability of the former attaches. On the other
hand, appellee claims that is a wrong presentation of the rule. It claims that the decisions of this Court in the
cases cited do not warrant the construction sought to be placed upon, them by appellant for a mere perusal
thereof would show that the liability of the carrier was predicated not upon mere breach of its contract of carriage
but upon the finding that its negligence was found to be the direct or proximate cause of the injury complained of.
Thus, appellee contends that "if there is no negligence on the part of the common carrier but that the accident
resulting in injuries is due to causes which are inevitable and which could not have been avoided or anticipated
notwithstanding the exercise of that high degree of care and skill which the carrier is bound to exercise for the
safety of his passengers", neither the common carrier nor the driver is liable therefor.

We believe that the law concerning the liability of a common carrier has now suffered a substantial modification in
view of the innovations introduced by the new Civil Code. These innovations are the ones embodied in Articles
1733, 1755 and 1756 in so far as the relation between a common carrier and its passengers is concerned, which,
for ready reference, we quote hereunder:

ART. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound
to observe extra ordinary 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 safely as far as human care and foresight
can provide, using the utmost diligence of very cautious persons, with a due regard for all the
circumstances.

ART. 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.

The Code Commission, in justifying this extraordinary diligence required of a common carrier, says the following:
 A common carrier is bound to carry the passengers safely as far as human care and foresight can provide,
using the utmost deligence of very cautions persons, with due regard for all circumstances. This
extraordinary diligence required of common carriers is calculated to protect the passengers from the tragic
mishaps that frequently occur in connection with rapid modern transportation. This high standard of care is
imperatively demanded by the precariousness of human life and by the consideration that every person
must in every way be safeguarded against all injury. (Report of the Code Commission, pp. 35-36)" (Padilla,
Civil Code of the Philippines, Vol. IV, 1956 ed., p. 197).

From the above legal provisions, we can make the following restatement of the principles governing the liability of
a common carrier: (1) the liability of a carrier is contractual and arises upon breach of its obligation. There is
breach if it fails to exert extraordinary diligence according to all circumstances of each case; (2) a carrier is
obliged to carry its passenger 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,
passengers, it being its duty to prove that it exercised extraordinary diligence; and (4) the carrier is not an insurer
against all risks of travel.

The question that now arises is: Has defendant observed extraordinary diligence or the utmost diligence of every
cautious person, having due regard for all circumstances, in avoiding the collision which resulted in the injury
caused to the plaintiff?

After examining the evidence in connection with how the collision occurred, the lower court made the following
finding:

Hemos examinado muy detenidamente las pruebas presentadas en la vista, principalmente, las
declaraciones que hemos acotado arriba, y hernos Ilegado a la conclusion de que el demandado ha
hecho, todo cuanto estuviere de su parte para evitar el accidente, pero sin embargo, no ha podido
evitarlo.

EI hecho de que el demandado, antes del choque, tuvo que hacer pasar su truck encima de los montones
de grava que estaban depositados en la orilla del camino, sin que haya ido mas alla, por el grave riesgo
que corrian las vidas de sus pasajeros, es prueba concluyente de lo que tenemos dicho, a saber: — que
el cuanto esuba de su parte, para evitar el accidente, sin que haya podidoevitardo, por estar fuera de su
control.

The evidence would appear to support the above finding. Thus, it appears that Bus No. 31, immediately prior to
the collision, was running at a moderate speed because it had just stopped at the school zone of Matacong,
Polangui, Albay. The pick-up car was at full speed and was running outside of its proper lane. The driver of the
bus, upon seeing the manner in which the pick-up was then running, swerved the bus to the very extreme right of
the road until its front and rear wheels have gone over the pile of stones or gravel situated on the rampart of the
road. Said driver could not move the bus farther right and run over a greater portion of the pile, the peak of which
was about 3 feet high, without endangering the safety of his passengers. And notwithstanding all these efforts, the
rear left side of the bus was hit by the pick-up car.

Of course, this finding is disputed by appellant who cannot see eye to eye with the evidence for the appellee and
insists that the collision took place because the driver of the bus was going at a fast speed. He contends that,
having seen that a car was coming from the opposite direction at a distance which allows the use of moderate
care and prudence to avoid an accident, and knowing that on the side of the road along which he was going there
was a pile of gravel, the driver of the bus should have stopped and waited for the vehicle from the opposite
direction to pass, and should have proceeded only after the other vehicle had passed. In other words, according
to appellant, the act of the driver of the bus in squeezing his way through of the bus in squeezing his way through
between the oncoming pick-up and the pile of gravel under the circumstances was considered negligent.

But this matter is one of credibility and evaluation of the evidence. This is evidence. This is the function of the trial
court. The trial court has already spoken on this matter as we have pointed out above. This is also a matter of
appreciation of the situation on the part of the driver. While the position taken by appellant appeals more to the
sense of caution that one should observe in a given situation to avoid an accident or mishap, such however can
not always be expected from one who is placed suddenly in a predicament where he is not given enough time to
take the course of action as he should under ordinary circumstances. One who is placed in such a predicament
cannot exercise such coolness or accuracy of judgment as is required of him under ordinary circumstances and
he cannot therefore be expected to observe the same judgment, care and precaution as in the latter. For this
reason, authorities abound where failure to observe the same degree of care that as ordinary prudent man would
exercise under ordinary circumstances when confronted with a sadden emergency was held to be warranted and
a justification to exempt the carrier from liability. Thus, it was held that "where a carrier's employee is confronted
with a sudden emergency, the fact that he is obliged to act quickly and without a chance for deliberation must be
taken into account, and he is held to the some degree of care that he would otherwise be required to exercise in
the absence of such emergency but must exercise only such care as any ordinary prudent person would exercise
under like circumstances and conditions, and the failure on his part to exercise the best judgement the case
renders possible does not establish lack of care and skill on his part which renders the company, liable. . . . (13 C.
J. S., 1412; 10 C. J.,970). Considering all the circumstances, we are persuaded to conclude that the driver of the
bus has done what a prudent man could have done to avoid the collision and in our opinion this relieves appellee
from legibility under our law.

A circumstances which miliates against the stand of appellant is the fact borne out by the evidence that when he
boarded the bus in question, he seated himself on the left side thereof resting his left arm on the window sill but
with his left elbow outside the window, this being his position in the bus when the collision took place. It is for this
reason that the collision resulted in the severance of said left arm from the body of appellant thus doing him a
great damage. It is therefore apparent that appellant is guilty of contributory negligence. Had he not placed his left
arm on the window sill with a portion thereof protruding outside, perhaps the injury would have been avoided as is
the case with the other passenger. It is to be noted that appellant was the only victim of the collision.

It is true that such contributory negligence cannot relieve appellee of its liability but will only entitle it to a reduction
of the amount of damage caused (Article 1762, new Civil Code), but this is a circumstance which further militates
against the position taken by appellant in this case.

It is the prevailing rule that it is negligence per se for a passenger on a railroad voluntarily or inadvertently
to protrude his arm, hand, elbow, or any other part of his body through the window of a moving car beyond
the outer edge of the window or outer surface of the car, so as to come in contact with objects or obstacles
near the track, and that no recovery can be had for an injury which but for such negligence would not have
been sustained. (10 C. J. 1139)

Plaintiff, (passenger) while riding on an interurban car, to flick the ashes, from his cigar, thrust his hand
over the guard rail a sufficient distance beyond the side line of the car to bring it in contact with the trunk of
a tree standing beside the track; the force of the blow breaking his wrist. Held, that he was guilty of
contributory negligence as a matter of law. (Malakia vs. Rhode Island Co., 89 A., 337.)

Wherefore, the decision appealed from is affirmed, with cost against appellant.

G.R. No. L-31379 August 29, 1988

COMPAÑIA MARITIMA, petitioner,

vs.
COURT OF APPEALS and VICENTE CONCEPCION, respondents.

Rafael Dinglasan for petitioner.

Benjamin J. Molina for private respondent.

FERNAN, C.J.:
Petitioner Compañia Maritima seeks to set aside through this petition for review on certiorari the decision 1 of the
Court of Appeals dated December 5, 1965, adjudging petitioner liable to private respondent Vicente E.
Concepcion for damages in the amount of P24,652.97 with legal interest from the date said decision shall have
become final, for petitioner's failure to deliver safely private respondent's payloader, and for costs of suit. The
payloader was declared abandoned in favor of petitioner.

The facts of the case are as follows:

Private respondent Vicente E. Concepcion, a civil engineer doing business under the name and style of
Consolidated Construction with office address at Room 412, Don Santiago Bldg., Taft Avenue, Manila, had a
contract with the Civil Aeronautics Administration (CAA) sometime in 1964 for the construction of the airport in
Cagayan de Oro City Misamis Oriental.

Being a Manila — based contractor, Vicente E. Concepcion had to ship his construction equipment to Cagayan de
Oro City. Having shipped some of his equipment through petitioner and having settled the balance of P2,628.77
with respect to said shipment, Concepcion negotiated anew with petitioner, thru its collector, Pacifico Fernandez,
on August 28, 1964 for the shipment to Cagayan de Oro City of one (1) unit payloader, four (4) units 6x6 Reo
trucks and two (2) pieces of water tanks. He was issued Bill of Lading 113 on the same date upon delivery of the
equipment at the Manila North Harbor. 2

These equipment were loaded aboard the MV Cebu in its Voyage No. 316, which left Manila on August 30, 1964
and arrived at Cagayan de Oro City in the afternoon of September 1, 1964. The Reo trucks and water tanks were
safely unloaded within a few hours after arrival, but while the payloader was about two (2) meters above the pier
in the course of unloading, the swivel pin of the heel block of the port block of Hatch No. 2 gave way, causing the
payloader to fall. 3 The payloader was damaged and was thereafter taken to petitioner's compound in Cagayan de
Oro City.

On September 7, 1964, Consolidated Construction, thru Vicente E. Concepcion, wrote Compañia Maritima to
demand a replacement of the payloader which it was considering as a complete loss because of the extent of
damage. 4 Consolidated Construction likewise notified petitioner of its claim for damages. Unable to elicit
response, the demand was repeated in a letter dated October 2, 1964. 5

Meanwhile, petitioner shipped the payloader to Manila where it was weighed at the San Miguel Corporation.
Finding that the payloader weighed 7.5 tons and not 2.5 tons as declared in the B-111 of Lading, petitioner denied
the claim for damages of Consolidated Construction in its letter dated October 7, 1964, contending that had
Vicente E. Concepcion declared the actual weight of the payloader, damage to their ship as well as to his
payloader could have been prevented. 6

To replace the damaged payloader, Consolidated Construction in the meantime bought a new one at P45,000.00
from Bormaheco Inc. on December 3, 1964, and on July 6, 1965., Vicente E. Concepcion filed an action for
damages against petitioner with the then Court of First Instance of Manila, Branch VII, docketed as Civil Case No.
61551, seeking to recover damages in the amount of P41,225.00 allegedly suffered for the period of 97 days that
he was not able to employ a payloader in the construction job at the rate of P450.00 a day; P34,000.00
representing the cost of the damaged payloader; Pl 1, 000. 00 representing the difference between the cost of the
damaged payloader and that of the new payloader; P20,000.00 representing the losses suffered by him due to
the diversion of funds to enable him to buy a new payloader; P10,000.00 as attorney's fees; P5,000.00 as
exemplary damages; and cost of the suit. 7

After trial, the then Court of First Instance of Manila, Branch VII, dismissed on April 24, 1968 the complaint with
costs against therein plaintiff, herein private respondent Vicente E. Concepcion, stating that the proximate cause
of the fall of the payloader was Vicente E. Concepcion's act or omission in having misrepresented the weight of
the payloader as 2.5 tons instead of its true weight of 7.5 tons, which underdeclaration was intended to defraud
Compañia Maritima of the payment of the freight charges and which likewise led the Chief Officer of the vessel to
use the heel block of hatch No. 2 in unloading the payloader. 8

From the adverse decision against him, Vicente E. Concepcion appealed to the Court of Appeals which, on
December 5, 1965 rendered a decision, the dispositive portion of which reads:

IN VIEW WHEREOF, judgment must have to be as it is hereby reversed; defendant is condemned

to pay unto plaintiff the sum in damages of P24,652.07 with legal interest from the date the present
decision shall have become final; the payloader is declared abandoned to defendant; costs against
the latter. 9

Hence, the instant petition.

The principal issue in the instant case is whether or not the act of private respondent Vicente E. Concepcion in
furnishing petitioner Compañia Maritima with an inaccurate weight of 2.5 tons instead of the payloader's actual
weight of 7.5 tons was the proximate and only cause of the damage on the Oliver Payloader OC-12 when it fell
while being unloaded by petitioner's crew, as would absolutely exempt petitioner from liability for damages under
paragraph 3 of Article 1734 of the Civil Code, which provides:

Art. 1734. Common carriers are responsible for the loss, destruction, or deterioration of the goods,
unless the same is due to any of the following causes only:

xxx xxx xxx

(3) Act or omission of the shipper or owner of the goods.

Petitioner claims absolute exemption under this provision upon the reasoning that private respondent's act of
furnishing it with an inaccurate weight of the payloader constitutes misrepresentation within the meaning of "act or
omission of the shipper or owner of the goods" under the above- quoted article. It likewise faults the respondent
Court of Appeals for reversing the decision of the trial court notwithstanding that said appellate court also found
that by representing the weight of the payloader to be only 2.5 tons, private respondent had led petitioner's officer
to believe that the same was within the 5 tons capacity of the heel block of Hatch No. 2. Petitioner would thus
insist that the proximate and only cause of the damage to the payloader was private respondent's alleged
misrepresentation of the weight of the machinery in question; hence, any resultant damage to it must be borne by
private respondent Vicente E. Concepcion.

The general rule under Articles 1735 and 1752 of the Civil Code is that common carriers are presumed to have
been at fault or to have acted negligently in case the goods transported by them are lost, destroyed or had
deteriorated. To overcome the presumption of liability for the loss, destruction or deterioration of the goods under
Article 1735, the common carriers must prove that they observed extraordinary diligence as required in Article
1733 of the Civil Code. The responsibility of observing extraordinary diligence in the vigilance over the goods is
further expressed in Article 1734 of the same Code, the article invoked by petitioner to avoid liability for damages.

Corollary is the rule that mere proof of delivery of the goods in good order to a common carrier, and of their arrival
at the place of destination in bad order, makes out prima facie case against the common carrier, so that if no
explanation is given as to how the loss, deterioration or destruction of the goods occurred, the common carrier
must be held responsible. 10 Otherwise stated, it is incumbent upon the common carrier to prove that the loss,
deterioration or destruction was due to accident or some other circumstances inconsistent with its liability.

In the instant case, We are not persuaded by the proferred explanation of petitioner alleged to be the proximate
cause of the fall of the payloader while it was being unloaded at the Cagayan de Oro City pier. Petitioner seems to
have overlooked the extraordinary diligence required of common carriers in the vigilance over the goods
transported by them by virtue of the nature of their business, which is impressed with a special public duty.

Thus, Article 1733 of the Civil Code provides:

Art. 1733. Common carriers, from the nature of their business and for reason 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, ...

The extraordinary diligence in the vigilance over the goods tendered for shipment requires the common carrier to
know and to follow the required precaution for avoiding damage to, or destruction of the goods entrusted to it for
safe carriage and delivery. It requires common carriers to render service with the greatest skill and foresight and
"to use all reasonable means to ascertain the nature and characteristic of goods tendered for shipment, and to
exercise due care in the handling and stowage including such methods as their nature requires."11 Under Article
1736 of the Civil Code, the responsibility to observe extraordinary diligence commences and lasts from the time
the goods are unconditionally placed in the possession of, and received by the carrier for transportation until the
same are delivered, actually or constructively, by the carrier to the consignee, or to the person who has the right
to receive them without prejudice to the provisions of Article 1738.

Where, as in the instant case, petitioner, upon the testimonies of its own crew, failed to take the necessary and
adequate precautions for avoiding damage to, or destruction of, the payloader entrusted to it for safe carriage and
delivery to Cagayan de Oro City, it cannot be reasonably concluded that the damage caused to the payloader was
due to the alleged misrepresentation of private respondent Concepcion as to the correct and accurate weight of
the payloader. As found by the respondent Court of Appeals, the fact is that petitioner used a 5-ton capacity lifting
apparatus to lift and unload a visibly heavy cargo like a payloader. Private respondent has, likewise, sufficiently
established the laxity and carelessness of petitioner's crew in their methods of ascertaining the weight of heavy
cargoes offered for shipment before loading and unloading them, as is customary among careful persons.

It must be noted that the weight submitted by private respondent Concepcion appearing at the left-hand portion of
Exhibit 8 12 as an addendum to the original enumeration of equipment to be shipped was entered into the bill of
lading by petitioner, thru Pacifico Fernandez, a company collector, without seeing the equipment to be
shipped.13 Mr. Mariano Gupana, assistant traffic manager of petitioner, confirmed in his testimony that the
company never checked the information entered in the bill of lading. 14 Worse, the weight of the payloader as
entered in the bill of lading was assumed to be correct by Mr. Felix Pisang, Chief Officer of MV Cebu. 15

The weights stated in a bill of lading are prima facie evidence of the amount received and the fact that the
weighing was done by another will not relieve the common carrier where it accepted such weight and entered it
on the bill of lading. 16 Besides, common carriers can protect themselves against mistakes in the bill of lading as to
weight by exercising diligence before issuing the same. 17

While petitioner has proven that private respondent Concepcion did furnish it with an inaccurate weight of the
payloader, petitioner is nonetheless liable, for the damage caused to the machinery could have been avoided by
the exercise of reasonable skill and attention on its part in overseeing the unloading of such a heavy equipment.
And circumstances clearly show that the fall of the payloader could have been avoided by petitioner's crew.
Evidence on record sufficiently show that the crew of petitioner had been negligent in the performance of its
obligation by reason of their having failed to take the necessary precaution under the circumstances which usage
has established among careful persons, more particularly its Chief Officer, Mr. Felix Pisang, who is tasked with the
over-all supervision of loading and unloading heavy cargoes and upon whom rests the burden of deciding as to
what particular winch the unloading of the payloader should be undertaken. 18 While it was his duty to determine
the weight of heavy cargoes before accepting them. Mr. Felix Pisang took the bill of lading on its face value and
presumed the same to be correct by merely "seeing" it. 19 Acknowledging that there was a "jumbo" in the MV
Cebu which has the capacity of lifting 20 to 25 ton cargoes, Mr. Felix Pisang chose not to use it, because
according to him, since the ordinary boom has a capacity of 5 tons while the payloader was only 2.5 tons, he did
not bother to use the "jumbo" anymore. 20

In that sense, therefore, private respondent's act of furnishing petitioner with an inaccurate weight of the
payloader upon being asked by petitioner's collector, cannot be used by said petitioner as an excuse to avoid
liability for the damage caused, as the same could have been avoided had petitioner utilized the "jumbo" lifting
apparatus which has a capacity of lifting 20 to 25 tons of heavy cargoes. It is a fact known to the Chief Officer of
MV Cebu that the payloader was loaded aboard the MV Cebu at the Manila North Harbor on August 28, 1964 by
means of a terminal crane. 21 Even if petitioner chose not to take the necessary precaution to avoid damage by
checking the correct weight of the payloader, extraordinary care and diligence compel the use of the "jumbo"
lifting apparatus as the most prudent course for petitioner.

While the act of private respondent in furnishing petitioner with an inaccurate weight of the payloader cannot
successfully be used as an excuse by petitioner to avoid liability to the damage thus caused, said act constitutes
a contributory circumstance to the damage caused on the payloader, which mitigates the liability for damages of
petitioner in accordance with Article 1741 of the Civil Code, to wit:

Art. 1741. If the shipper or owner merely contributed to the loss, destruction or deterioration of the
goods, the proximate cause thereof being the negligence of the common carrier, the latter shall be
liable in damages, which however, shall be equitably reduced.

We find equitable the conclusion of the Court of Appeals reducing the recoverable amount of damages by 20% or
1/5 of the value of the payloader, which at the time the instant case arose, was valued at P34,000. 00, thereby
reducing the recoverable amount at 80% or 4/5 of P34,000.00 or the sum of P27,200.00. Considering that the
freight charges for the entire cargoes shipped by private respondent amounting to P2,318.40 remained unpaid..
the same would be deducted from the P27,000.00 plus an additional deduction of P228.63 representing the
freight charges for the undeclared weight of 5 tons (difference between 7.5 and 2.5 tons) leaving, therefore, a final
recoverable amount of damages of P24,652.97 due to private respondent Concepcion.

Notwithstanding the favorable judgment in his favor, private respondent assailed the Court of Appeals' decision
insofar as it limited the damages due him to only P24,652.97 and the cost of the suit. Invoking the provisions on
damages under the Civil Code, more particularly Articles 2200 and 2208, private respondent further seeks
additional damages allegedly because the construction project was delayed and that in spite of his demands,
petitioner failed to take any steps to settle his valid, just and demandable claim for damages.

We find private respondent's submission erroneous. It is well- settled that an appellee, who is not an appellant,
may assign errors in his brief where his purpose is to maintain the judgment on other grounds, but he may not do
so if his purpose is to have the judgment modified or reversed, for, in such case, he must appeal. 22 Since private
respondent did not appeal from the judgment insofar as it limited the award of damages due him, the reduction of
20% or 1/5 of the value of the payloader stands.

WHEREFORE, in view of the foregoing, the petition is DENIED. The decision of the Court of Appeals is hereby
AFFIRMED in all respects with costs against petitioner. In view of the length of time this case has been pending,
this decision is immediately executory.
G.R. No. L-12191 October 14, 1918

JOSE CANGCO, plaintiff-appellant,

vs.
MANILA RAILROAD CO., defendant-appellee.

Ramon Sotelo for appellant.

Kincaid & Hartigan for appellee.

FISHER, J.:

At the time of the occurrence which gave rise to this litigation the plaintiff, Jose Cangco, was in the employment of
Manila Railroad Company in the capacity of clerk, with a monthly wage of P25. He lived in the pueblo of San
Mateo, in the province of Rizal, which is located upon the line of the defendant railroad company; and in coming
daily by train to the company's office in the city of Manila where he worked, he used a pass, supplied by the
company, which entitled him to ride upon the company's trains free of charge. Upon the occasion in question,
January 20, 1915, the plaintiff arose from his seat in the second class-car where he was riding and, making, his
exit through the door, took his position upon the steps of the coach, seizing the upright guardrail with his right
hand for support.

On the side of the train where passengers alight at the San Mateo station there is a cement platform which begins
to rise with a moderate gradient some distance away from the company's office and extends along in front of said
office for a distance sufficient to cover the length of several coaches. As the train slowed down another
passenger, named Emilio Zuñiga, also an employee of the railroad company, got off the same car, alighting safely
at the point where the platform begins to rise from the level of the ground. When the train had proceeded a little
farther the plaintiff Jose Cangco stepped off also, but one or both of his feet came in contact with a sack of
watermelons with the result that his feet slipped from under him and he fell violently on the platform. His body at
once rolled from the platform and was drawn under the moving car, where his right arm was badly crushed and
lacerated. It appears that after the plaintiff alighted from the train the car moved forward possibly six meters
before it came to a full stop.

The accident occurred between 7 and 8 o'clock on a dark night, and as the railroad station was lighted dimly by a
single light located some distance away, objects on the platform where the accident occurred were difficult to
discern especially to a person emerging from a lighted car.

The explanation of the presence of a sack of melons on the platform where the plaintiff alighted is found in the
fact that it was the customary season for harvesting these melons and a large lot had been brought to the station
for the shipment to the market. They were contained in numerous sacks which has been piled on the platform in a
row one upon another. The testimony shows that this row of sacks was so placed of melons and the edge of
platform; and it is clear that the fall of the plaintiff was due to the fact that his foot alighted upon one of these
melons at the moment he stepped upon the platform. His statement that he failed to see these objects in the
darkness is readily to be credited.

The plaintiff was drawn from under the car in an unconscious condition, and it appeared that the injuries which he
had received were very serious. He was therefore brought at once to a certain hospital in the city of Manila where
an examination was made and his arm was amputated. The result of this operation was unsatisfactory, and the
plaintiff was then carried to another hospital where a second operation was performed and the member was again
amputated higher up near the shoulder. It appears in evidence that the plaintiff expended the sum of P790.25 in
the form of medical and surgical fees and for other expenses in connection with the process of his curation.

Upon August 31, 1915, he instituted this proceeding in the Court of First Instance of the city of Manila to recover
damages of the defendant company, founding his action upon the negligence of the servants and employees of
the defendant in placing the sacks of melons upon the platform and leaving them so placed as to be a menace to
the security of passenger alighting from the company's trains. At the hearing in the Court of First Instance, his
Honor, the trial judge, found the facts substantially as above stated, and drew therefrom his conclusion to the
effect that, although negligence was attributable to the defendant by reason of the fact that the sacks of melons
were so placed as to obstruct passengers passing to and from the cars, nevertheless, the plaintiff himself had
failed to use due caution in alighting from the coach and was therefore precluded form recovering. Judgment was
accordingly entered in favor of the defendant company, and the plaintiff appealed.

It can not be doubted that the employees of the railroad company were guilty of negligence in piling these sacks
on the platform in the manner above stated; that their presence caused the plaintiff to fall as he alighted from the
train; and that they therefore constituted an effective legal cause of the injuries sustained by the plaintiff. It
necessarily follows that the defendant company is liable for the damage thereby occasioned unless recovery is
barred by the plaintiff's own contributory negligence. In resolving this problem it is necessary that each of these
conceptions of liability, to-wit, the primary responsibility of the defendant company and the contributory negligence
of the plaintiff should be separately examined.

It is important to note that the foundation of the legal liability of the defendant is the contract of carriage, and that
the obligation to respond for the damage which plaintiff has suffered arises, if at all, from the breach of that
contract by reason of the failure of defendant to exercise due care in its performance. That is to say, its liability is
direct and immediate, differing essentially, in legal viewpoint from that presumptive responsibility for the
negligence of its servants, imposed by article 1903 of the Civil Code, which can be rebutted by proof of the
exercise of due care in their selection and supervision. Article 1903 of the Civil Code is not applicable to
obligations arising ex contractu, but only to extra-contractual obligations — or to use the technical form of
expression, that article relates only to culpa aquiliana and not to culpa contractual.

Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104 of the Civil Code, clearly points out this
distinction, which was also recognized by this Court in its decision in the case of Rakes vs. Atlantic, Gulf and
Pacific Co. (7 Phil. rep., 359). In commenting upon article 1093 Manresa clearly points out the difference between
"culpa, substantive and independent, which of itself constitutes the source of an obligation between persons not
formerly connected by any legal tie" and culpa considered as an accident in the performance of an obligation
already existing . . . ."

In the Rakes case (supra) the decision of this court was made to rest squarely upon the proposition that article
1903 of the Civil Code is not applicable to acts of negligence which constitute the breach of a contract.

Upon this point the Court said:

The acts to which these articles [1902 and 1903 of the Civil Code] are applicable are understood to be
those not growing out of pre-existing duties of the parties to one another. But where relations already
formed give rise to duties, whether springing from contract or quasi-contract, then breaches of those
duties are subject to article 1101, 1103, and 1104 of the same code. (Rakes vs. Atlantic, Gulf and Pacific
Co., 7 Phil. Rep., 359 at 365.)

This distinction is of the utmost importance. The liability, which, under the Spanish law, is, in certain cases
imposed upon employers with respect to damages occasioned by the negligence of their employees to persons to
whom they are not bound by contract, is not based, as in the English Common Law, upon the principle
of respondeat superior — if it were, the master would be liable in every case and unconditionally — but upon the
principle announced in article 1902 of the Civil Code, which imposes upon all persons who by their fault or
negligence, do injury to another, the obligation of making good the damage caused. One who places a powerful
automobile in the hands of a servant whom he knows to be ignorant of the method of managing such a vehicle, is
himself guilty of an act of negligence which makes him liable for all the consequences of his imprudence. The
obligation to make good the damage arises at the very instant that the unskillful servant, while acting within the
scope of his employment causes the injury. The liability of the master is personal and direct. But, if the master has
not been guilty of any negligence whatever in the selection and direction of the servant, he is not liable for the
acts of the latter, whatever done within the scope of his employment or not, if the damage done by the servant
does not amount to a breach of the contract between the master and the person injured.

It is not accurate to say that proof of diligence and care in the selection and control of the servant relieves the
master from liability for the latter's acts — on the contrary, that proof shows that the responsibility has never
existed. As Manresa says (vol. 8, p. 68) the liability arising from extra-contractual culpa is always based upon a
voluntary act or omission which, without willful intent, but by mere negligence or inattention, has caused damage
to another. A master who exercises all possible care in the selection of his servant, taking into consideration the
qualifications they should possess for the discharge of the duties which it is his purpose to confide to them, and
directs them with equal diligence, thereby performs his duty to third persons to whom he is bound by no
contractual ties, and he incurs no liability whatever if, by reason of the negligence of his servants, even within the
scope of their employment, such third person suffer damage. True it is that under article 1903 of the Civil Code
the law creates a presumption that he has been negligent in the selection or direction of his servant, but the
presumption is rebuttable and yield to proof of due care and diligence in this respect.

The supreme court of Porto Rico, in interpreting identical provisions, as found in the Porto Rico Code, has held
that these articles are applicable to cases of extra-contractual culpa exclusively. (Carmona vs. Cuesta, 20 Porto
Rico Reports, 215.)

This distinction was again made patent by this Court in its decision in the case of Bahia vs. Litonjua and Leynes,
(30 Phil. rep., 624), which was an action brought upon the theory of the extra-contractual liability of the defendant
to respond for the damage caused by the carelessness of his employee while acting within the scope of his
employment. The Court, after citing the last paragraph of article 1903 of the Civil Code, said:

From this article two things are apparent: (1) That when an injury is caused by the negligence of a servant
or employee there instantly arises a presumption of law that there was negligence on the part of the
master or employer either in selection of the servant or employee, or in supervision over him after the
selection, or both; and (2) that that presumption is juris tantum and not juris et de jure, and consequently,
may be rebutted. It follows necessarily that if the employer shows to the satisfaction of the court that in
selection and supervision he has exercised the care and diligence of a good father of a family, the
presumption is overcome and he is relieved from liability.

This theory bases the responsibility of the master ultimately on his own negligence and not on that of his
servant. This is the notable peculiarity of the Spanish law of negligence. It is, of course, in striking contrast
to the American doctrine that, in relations with strangers, the negligence of the servant in conclusively the
negligence of the master.

The opinion there expressed by this Court, to the effect that in case of extra-contractual culpa based upon
negligence, it is necessary that there shall have been some fault attributable to the defendant personally, and that
the last paragraph of article 1903 merely establishes a rebuttable presumption, is in complete accord with the
authoritative opinion of Manresa, who says (vol. 12, p. 611) that the liability created by article 1903 is imposed by
reason of the breach of the duties inherent in the special relations of authority or superiority existing between the
person called upon to repair the damage and the one who, by his act or omission, was the cause of it.
On the other hand, the liability of masters and employers for the negligent acts or omissions of their servants or
agents, when such acts or omissions cause damages which amount to the breach of a contact, is not based upon
a mere presumption of the master's negligence in their selection or control, and proof of exercise of the utmost
diligence and care in this regard does not relieve the master of his liability for the breach of his contract.

Every legal obligation must of necessity be extra-contractual or contractual. Extra-contractual obligation has its
source in the breach or omission of those mutual duties which civilized society imposes upon it members, or
which arise from these relations, other than contractual, of certain members of society to others, generally
embraced in the concept of status. The legal rights of each member of society constitute the measure of the
corresponding legal duties, mainly negative in character, which the existence of those rights imposes upon all
other members of society. The breach of these general duties whether due to willful intent or to mere inattention, if
productive of injury, give rise to an obligation to indemnify the injured party. The fundamental distinction between
obligations of this character and those which arise from contract, rests upon the fact that in cases of non-
contractual obligation it is the wrongful or negligent act or omission itself which creates the vinculum juris,
whereas in contractual relations the vinculum exists independently of the breach of the voluntary duty assumed by
the parties when entering into the contractual relation.

With respect to extra-contractual obligation arising from negligence, whether of act or omission, it is competent for
the legislature to elect — and our Legislature has so elected — whom such an obligation is imposed is morally
culpable, or, on the contrary, for reasons of public policy, to extend that liability, without regard to the lack of moral
culpability, so as to include responsibility for the negligence of those person who acts or mission are imputable, by
a legal fiction, to others who are in a position to exercise an absolute or limited control over them. The legislature
which adopted our Civil Code has elected to limit extra-contractual liability — with certain well-defined exceptions
— to cases in which moral culpability can be directly imputed to the persons to be charged. This moral
responsibility may consist in having failed to exercise due care in the selection and control of one's agents or
servants, or in the control of persons who, by reason of their status, occupy a position of dependency with respect
to the person made liable for their conduct.

The position of a natural or juridical person who has undertaken by contract to render service to another, is wholly
different from that to which article 1903 relates. When the sources of the obligation upon which plaintiff's cause of
action depends is a negligent act or omission, the burden of proof rests upon plaintiff to prove the negligence — if
he does not his action fails. But when the facts averred show a contractual undertaking by defendant for the
benefit of plaintiff, and it is alleged that plaintiff has failed or refused to perform the contract, it is not necessary for
plaintiff to specify in his pleadings whether the breach of the contract is due to willful fault or to negligence on the
part of the defendant, or of his servants or agents. Proof of the contract and of its nonperformance is
sufficient prima facie to warrant a recovery.

As a general rule . . . it is logical that in case of extra-contractual culpa, a suing creditor should assume the
burden of proof of its existence, as the only fact upon which his action is based; while on the contrary, in a
case of negligence which presupposes the existence of a contractual obligation, if the creditor shows that
it exists and that it has been broken, it is not necessary for him to prove negligence. (Manresa, vol. 8, p.
71 [1907 ed., p. 76]).

As it is not necessary for the plaintiff in an action for the breach of a contract to show that the breach was due to
the negligent conduct of defendant or of his servants, even though such be in fact the actual cause of the breach,
it is obvious that proof on the part of defendant that the negligence or omission of his servants or agents caused
the breach of the contract would not constitute a defense to the action. If the negligence of servants or agents
could be invoked as a means of discharging the liability arising from contract, the anomalous result would be that
person acting through the medium of agents or servants in the performance of their contracts, would be in a better
position than those acting in person. If one delivers a valuable watch to watchmaker who contract to repair it, and
the bailee, by a personal negligent act causes its destruction, he is unquestionably liable. Would it be logical to
free him from his liability for the breach of his contract, which involves the duty to exercise due care in the
preservation of the watch, if he shows that it was his servant whose negligence caused the injury? If such a
theory could be accepted, juridical persons would enjoy practically complete immunity from damages arising from
the breach of their contracts if caused by negligent acts as such juridical persons can of necessity only act
through agents or servants, and it would no doubt be true in most instances that reasonable care had been taken
in selection and direction of such servants. If one delivers securities to a banking corporation as collateral, and
they are lost by reason of the negligence of some clerk employed by the bank, would it be just and reasonable to
permit the bank to relieve itself of liability for the breach of its contract to return the collateral upon the payment of
the debt by proving that due care had been exercised in the selection and direction of the clerk?

This distinction between culpa aquiliana, as the source of an obligation, and culpa contractual as a mere incident
to the performance of a contract has frequently been recognized by the supreme court of Spain. (Sentencias of
June 27, 1894; November 20, 1896; and December 13, 1896.) In the decisions of November 20, 1896, it
appeared that plaintiff's action arose ex contractu, but that defendant sought to avail himself of the provisions of
article 1902 of the Civil Code as a defense. The Spanish Supreme Court rejected defendant's contention, saying:
 These are not cases of injury caused, without any pre-existing obligation, by fault or negligence, such as
those to which article 1902 of the Civil Code relates, but of damages caused by the defendant's failure to
carry out the undertakings imposed by the contracts . . . .

A brief review of the earlier decision of this court involving the liability of employers for damage done by the
negligent acts of their servants will show that in no case has the court ever decided that the negligence of the
defendant's servants has been held to constitute a defense to an action for damages for breach of contract.

In the case of Johnson vs. David (5 Phil. Rep., 663), the court held that the owner of a carriage was not liable for
the damages caused by the negligence of his driver. In that case the court commented on the fact that no
evidence had been adduced in the trial court that the defendant had been negligent in the employment of the
driver, or that he had any knowledge of his lack of skill or carefulness.

In the case of Baer Senior & Co's Successors vs. Compania Maritima (6 Phil. Rep., 215), the plaintiff sued the
defendant for damages caused by the loss of a barge belonging to plaintiff which was allowed to get adrift by the
negligence of defendant's servants in the course of the performance of a contract of towage. The court held, citing
Manresa (vol. 8, pp. 29, 69) that if the "obligation of the defendant grew out of a contract made between it and the
plaintiff . . . we do not think that the provisions of articles 1902 and 1903 are applicable to the case."

In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff sued the defendant to recover damages for
the personal injuries caused by the negligence of defendant's chauffeur while driving defendant's automobile in
which defendant was riding at the time. The court found that the damages were caused by the negligence of the
driver of the automobile, but held that the master was not liable, although he was present at the time, saying:

. . . unless the negligent acts of the driver are continued for a length of time as to give the owner a
reasonable opportunity to observe them and to direct the driver to desist therefrom. . . . The act
complained of must be continued in the presence of the owner for such length of time that the owner by
his acquiescence, makes the driver's acts his own.

In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage & Taxicab Co. (33 Phil. Rep., 8), it is true
that the court rested its conclusion as to the liability of the defendant upon article 1903, although the facts
disclosed that the injury complaint of by plaintiff constituted a breach of the duty to him arising out of the contract
of transportation. The express ground of the decision in this case was that article 1903, in dealing with the liability
of a master for the negligent acts of his servants "makes the distinction between private individuals and public
enterprise;" that as to the latter the law creates a rebuttable presumption of negligence in the selection or direction
of servants; and that in the particular case the presumption of negligence had not been overcome.

It is evident, therefore that in its decision Yamada case, the court treated plaintiff's action as though founded in tort
rather than as based upon the breach of the contract of carriage, and an examination of the pleadings and of the
briefs shows that the questions of law were in fact discussed upon this theory. Viewed from the standpoint of the
defendant the practical result must have been the same in any event. The proof disclosed beyond doubt that the
defendant's servant was grossly negligent and that his negligence was the proximate cause of plaintiff's injury. It
also affirmatively appeared that defendant had been guilty of negligence in its failure to exercise proper discretion
in the direction of the servant. Defendant was, therefore, liable for the injury suffered by plaintiff, whether the
breach of the duty were to be regarded as constituting culpa aquiliana or culpa contractual. As Manresa points out
(vol. 8, pp. 29 and 69) whether negligence occurs an incident in the course of the performance of a contractual
undertaking or its itself the source of an extra-contractual undertaking obligation, its essential characteristics are
identical. There is always an act or omission productive of damage due to carelessness or inattention on the part
of the defendant. Consequently, when the court holds that a defendant is liable in damages for having failed to
exercise due care, either directly, or in failing to exercise proper care in the selection and direction of his servants,
the practical result is identical in either case. Therefore, it follows that it is not to be inferred, because the court
held in the Yamada case that defendant was liable for the damages negligently caused by its servants to a person
to whom it was bound by contract, and made reference to the fact that the defendant was negligent in the
selection and control of its servants, that in such a case the court would have held that it would have been a good
defense to the action, if presented squarely upon the theory of the breach of the contract, for defendant to have
proved that it did in fact exercise care in the selection and control of the servant.

The true explanation of such cases is to be found by directing the attention to the relative spheres of contractual
and extra-contractual obligations. The field of non- contractual obligation is much more broader than that of
contractual obligations, comprising, as it does, the whole extent of juridical human relations. These two fields,
figuratively speaking, concentric; that is to say, the mere fact that a person is bound to another by contract does
not relieve him from extra-contractual liability to such person. When such a contractual relation exists the obligor
may break the contract under such conditions that the same act which constitutes the source of an extra-
contractual obligation had no contract existed between the parties.

The contract of defendant to transport plaintiff carried with it, by implication, the duty to carry him in safety and to
provide safe means of entering and leaving its trains (civil code, article 1258). That duty, being contractual, was
direct and immediate, and its non-performance could not be excused by proof that the fault was morally imputable
to defendant's servants.

The railroad company's defense involves the assumption that even granting that the negligent conduct of its
servants in placing an obstruction upon the platform was a breach of its contractual obligation to maintain safe
means of approaching and leaving its trains, the direct and proximate cause of the injury suffered by plaintiff was
his own contributory negligence in failing to wait until the train had come to a complete stop before alighting.
Under the doctrine of comparative negligence announced in the Rakes case (supra), if the accident was caused
by plaintiff's own negligence, no liability is imposed upon defendant's negligence and plaintiff's negligence merely
contributed to his injury, the damages should be apportioned. It is, therefore, important to ascertain if defendant
was in fact guilty of negligence.

It may be admitted that had plaintiff waited until the train had come to a full stop before alighting, the particular
injury suffered by him could not have occurred. Defendant contends, and cites many authorities in support of the
contention, that it is negligence per se for a passenger to alight from a moving train. We are not disposed to
subscribe to this doctrine in its absolute form. We are of the opinion that this proposition is too badly stated and is
at variance with the experience of every-day life. In this particular instance, that the train was barely moving when
plaintiff alighted is shown conclusively by the fact that it came to stop within six meters from the place where he
stepped from it. Thousands of person alight from trains under these conditions every day of the year, and sustain
no injury where the company has kept its platform free from dangerous obstructions. There is no reason to believe
that plaintiff would have suffered any injury whatever in alighting as he did had it not been for defendant's
negligent failure to perform its duty to provide a safe alighting place.

We are of the opinion that the correct doctrine relating to this subject is that expressed in Thompson's work on
Negligence (vol. 3, sec. 3010) as follows:

The test by which to determine whether the passenger has been guilty of negligence in attempting to alight
from a moving railway train, is that of ordinary or reasonable care. It is to be considered whether an
ordinarily prudent person, of the age, sex and condition of the passenger, would have acted as the
passenger acted under the circumstances disclosed by the evidence. This care has been defined to be,
not the care which may or should be used by the prudent man generally, but the care which a man of
ordinary prudence would use under similar circumstances, to avoid injury." (Thompson, Commentaries on
Negligence, vol. 3, sec. 3010.)

Or, it we prefer to adopt the mode of exposition used by this court in Picart vs. Smith (37 Phil. rep., 809), we may
say that the test is this; Was there anything in the circumstances surrounding the plaintiff at the time he alighted
from the train which would have admonished a person of average prudence that to get off the train under the
conditions then existing was dangerous? If so, the plaintiff should have desisted from alighting; and his failure so
to desist was contributory negligence.1awph!l.net

As the case now before us presents itself, the only fact from which a conclusion can be drawn to the effect that
plaintiff was guilty of contributory negligence is that he stepped off the car without being able to discern clearly the
condition of the platform and while the train was yet slowly moving. In considering the situation thus presented, it
should not be overlooked that the plaintiff was, as we find, ignorant of the fact that the obstruction which was
caused by the sacks of melons piled on the platform existed; and as the defendant was bound by reason of its
duty as a public carrier to afford to its passengers facilities for safe egress from its trains, the plaintiff had a right to
assume, in the absence of some circumstance to warn him to the contrary, that the platform was clear. The place,
as we have already stated, was dark, or dimly lighted, and this also is proof of a failure upon the part of the
defendant in the performance of a duty owing by it to the plaintiff; for if it were by any possibility concede that it
had right to pile these sacks in the path of alighting passengers, the placing of them adequately so that their
presence would be revealed.

As pertinent to the question of contributory negligence on the part of the plaintiff in this case the following
circumstances are to be noted: The company's platform was constructed upon a level higher than that of the
roadbed and the surrounding ground. The distance from the steps of the car to the spot where the alighting
passenger would place his feet on the platform was thus reduced, thereby decreasing the risk incident to stepping
off. The nature of the platform, constructed as it was of cement material, also assured to the passenger a stable
and even surface on which to alight. Furthermore, the plaintiff was possessed of the vigor and agility of young
manhood, and it was by no means so risky for him to get off while the train was yet moving as the same act would
have been in an aged or feeble person. In determining the question of contributory negligence in performing such
act — that is to say, whether the passenger acted prudently or recklessly — the age, sex, and physical condition
of the passenger are circumstances necessarily affecting the safety of the passenger, and should be considered.
Women, it has been observed, as a general rule are less capable than men of alighting with safety under such
conditions, as the nature of their wearing apparel obstructs the free movement of the limbs. Again, it may be
noted that the place was perfectly familiar to the plaintiff as it was his daily custom to get on and of the train at this
station. There could, therefore, be no uncertainty in his mind with regard either to the length of the step which he
was required to take or the character of the platform where he was alighting. Our conclusion is that the conduct of
the plaintiff in undertaking to alight while the train was yet slightly under way was not characterized by imprudence
and that therefore he was not guilty of contributory negligence.

The evidence shows that the plaintiff, at the time of the accident, was earning P25 a month as a copyist clerk, and
that the injuries he has suffered have permanently disabled him from continuing that employment. Defendant has
not shown that any other gainful occupation is open to plaintiff. His expectancy of life, according to the standard
mortality tables, is approximately thirty-three years. We are of the opinion that a fair compensation for the damage
suffered by him for his permanent disability is the sum of P2,500, and that he is also entitled to recover of
defendant the additional sum of P790.25 for medical attention, hospital services, and other incidental
expenditures connected with the treatment of his injuries.

The decision of lower court is reversed, and judgment is hereby rendered plaintiff for the sum of P3,290.25, and
for the costs of both instances. So ordered.

Arellano, C.J., Torres, Street and Avanceña, JJ., concur.

Separate Opinions

MALCOLM, J., dissenting:

With one sentence in the majority decision, we are of full accord, namely, "It may be admitted that had plaintiff
waited until the train had come to a full stop before alighting, the particular injury suffered by him could not have
occurred." With the general rule relative to a passenger's contributory negligence, we are likewise in full accord,
namely, "An attempt to alight from a moving train is negligence per se." Adding these two points together, should
be absolved from the complaint, and judgment affirmed.

Johnson, J., concur.

G.R. No. L-29462 March 7, 1929

IGNACIO DEL PRADO, plaintiff-appellee,

vs.
MANILA ELECTRIC CO., defendant-appellant.

Ross, Lawrence and Selph and Antonio T. Carrascoso, jr., for appellant.
Vicente Sotto for appellee.

STREET, J.:

This action was instituted in the Court of First Instance of Manila by Ignacio del Prado to recover damages in the
amount of P50,000 for personal injuries alleged to have been caused by the negligence of te defendant, the
Manila Electric Company, in the operation of one of its street cars in the City of Manila. Upon hearing the cause
the trial court awarded to the plaintiff the sum of P10,000, as damages, with costs of suit, and the defendant
appealed.
The appellant, the Manila Electric Company, is engaged in operating street cars in the City for the conveyance of
passengers; and on the morning of November 18, 1925, one Teodorico Florenciano, as appellant's motorman,
was in charge of car No. 74 running from east to west on R. Hidalgo Street, the scene of the accident being at a
point near the intersection of said street and Mendoza Street. After the car had stopped at its appointed place for
taking on and letting off passengers, just east of the intersection, it resumed its course at a moderate speed under
the guidance of the motorman. The car had proceeded only a short distance, however, when the plaintiff, Ignacio
del Prado, ran across the street to catch the car, his approach being made from the left. The car was of the kind
having entrance and exist at either end, and the movement of the plaintiff was so timed that he arrived at the front
entrance of the car at the moment when the car was passing.

The testimony of the plaintiff and of Ciriaco Guevara, one of his witnesses, tends to shows that the plaintiff, upon
approaching the car, raised his hand as an indication to the motorman of his desire to board the car, in response
to which the motorman eased up a little, without stopping. Upon this the plaintiff seized, with his hand, the front
perpendicular handspot, at the same time placing his left foot upon the platform. However, before the plaintiff's
position had become secure, and even before his raised right foot had reached the flatform, the motorman applied
the power, with the result that the car gave a slight lurch forward. This sudden impulse to the car caused the
plaintiff's foot to slip, and his hand was jerked loose from the handpost, He therefore fell to the ground, and his
right foot was caught and crushed by the moving car. The next day the member had to be amputated in the
hospital. The witness, Ciriaco Guevara, also stated that, as the plaintiff started to board the car, he grasped the
handpost on either side with both right and left hand. The latter statement may possibly be incorrect as regards
the use of his right hand by the plaintiff, but we are of the opinion that the finding of the trial court to the effect that
the motorman slowed up slightly as the plaintiff was boarding the car that the plaintiff's fall was due in part at
lease to a sudden forward movement at the moment when the plaintiff put his foot on the platform is supported by
the evidence and ought not to be disturbed by us.

The motorman stated at the trial that he did not see the plaintiff attempting to board the car; that he did not
accelerate the speed of the car as claimed by the plaintiff's witnesses; and that he in fact knew nothing of the
incident until after the plaintiff had been hurt and some one called to him to stop. We are not convinced of the
complete candor of this statement, for we are unable to see how a motorman operating this car could have failed
to see a person boarding the car under the circumstances revealed in this case. It must be remembered that the
front handpost which, as all witness agree, was grasped by the plaintiff in attempting to board the car, was
immediately on the left side of the motorman.

With respect to the legal aspects of the case we may observe at the outset that there is no obligation on the part
of a street railway company to stop its cars to let on intending passengers at other points than those appointed for
stoppage. In fact it would be impossible to operate a system of street cars if a company engage in this business
were required to stop any and everywhere to take on people who were too indolent, or who imagine themselves
to be in too great a hurry, to go to the proper places for boarding the cars. Nevertheless, although the motorman
of this car was not bound to stop to let the plaintiff on, it was his duty to do act that would have the effect of
increasing the plaintiff's peril while he was attempting to board the car. The premature acceleration of the car was,
in our opinion, a breach of this duty.

The relation between a carrier of passengers for hire and its patrons is of a contractual nature; and in failure on
the part of the carrier to use due care in carrying its passengers safely is a breach of duty (culpa contructual)
under articles 1101, 1103 and 1104 of the Civil Code. Furthermore, the duty that the carrier of passengers owes to
its patrons extends to persons boarding the cars as well as to those alighting therefrom. The case of Cangco vs.
Manila Railroad Co. (38 Phil., 768), supplies an instance of the violation of this duty with respect to a passenger
who was getting off of a train. In that case the plaintiff stepped off of a moving train, while it was slowing down in a
station, and at the time when it was too dark for him to see clearly where he was putting his feet. The employees
of the company had carelessly left watermelons on the platform at the place where the plaintiff alighted, with the
result that his feet slipped and he fell under the car, where his right arm badly injured. This court held that the
railroad company was liable for breach positive duty (culpa contractual), and the plaintiff was awarded damages in
the amount of P2,500 for the loss of his arm. In the opinion in that case the distinction is clearly drawn between a
liability for negligence arising from breach of contructual duty and that arising articles 1902 and 1903 of the Civil
Code (culpa aquiliana).

The distiction between these two sorts of negligence is important in this jurisdiction, for the reason that where
liability arises from a mere tort (culpa aquiliana), not involving a breach of positive obligation, an employer, or
master, may exculpate himself, under the last paragraph of article 1903 of the Civil Code, by providing that he had
exercised due degligence to prevent the damage; whereas this defense is not available if the liability of the master
arises from a breach of contrauctual duty (culpa contractual). In the case bfore us the company pleaded as a
special defense that it had used all the deligence of a good father of a family to prevent the damage suffered by
the plaintiff; and to establish this contention the company introduced testimony showing that due care had been
used in training and instructing the motorman in charge of this car in his art. But this proof is irrelevant in view of
the fact that the liability involved was derived from a breach of obligation under article 1101 of the Civil Code and
related provisions. (Manila Railroad Co. vs. Compana Transatlantica and Atlantic, Gulf & Pacific Co., 38 Phil.,
875, 887; De Guia vs. Manila Electric Railroad & Light Co., 40 Phil., 706, 710.)
Another practical difference between liability for negligence arising under 1902 of the Civil Code and liability
arising from negligence in the performance of a positive duty, under article 1101 and related provisions of the Civil
Code, is that, in dealing with the latter form of negligence, the court is given a discretion to mitigate liability
according to the circumstances of the case (art 1103). No such general discretion is given by the Code in dealing
with liability arising under article 1902; although possibly the same end is reached by courts in dealing with the
latter form of liability because of the latitude of the considerations pertinent to cases arising under this article.

As to the contributory negligence of the plaintiff, we are of the opinion that it should be treated, as in Rakes vs.
Atlantic, Gulf and Pacific Co. (7 Phil., 359), as a mitigating circumstance under article 1103 of the Civil Code. It is
obvious that the plaintiff's negligence in attempting to board the moving car was not the proximate cause of the
injury. The direct and proximate cause of the injury was the act of appellant's motorman in putting on the power
prematurely. A person boarding a moving car must be taken to assume the risk of injury from boarding the car
under the conditions open to his view, but he cannot fairly be held to assume the risk that the motorman, having
the situation in view, will increase his peril by accelerating the speed of the car before he is planted safely on the
platform. Again, the situation before us is one where the negligent act of the company's servant succeeded the
negligent act of the plaintiff, and the negligence of the company must be considered the proximate cause of the
injury. The rule here applicable seems to be analogous to, if not identical with that which is sometimes referred to
as the doctrine of "the last clear chance." In accordance with this doctrine, the contributory negligence of the party
injured will not defeat the action if it be shown that the defendant might, by the exercise of reasonable care and
prudence, have avoided the consequences of the negligence of the injured party (20 R. C. L., p. 139; Carr vs.
Interurban Ry. Co., 185 Iowa, 872; 171 N. W., 167). The negligence of the plaintiff was, however, contributory to
the accident and must be considered as a mitigating circumstance.

With respect to the effect of this injury upon the plaintiff's earning power, we note that, although he lost his foot, he
is able to use an artificial member without great inconvenience and his earning capacity has probably not been
reduced by more than 30 per centum. In view of the precedents found in our decisions with respect to the
damages that ought to be awarded for the loss of limb, and more particularly Rakes vs. Atlantic, Gulf and Pacific
Co. (7 Phil., 359); Cangco vs. Manila Railroad Co. (38 Phil., 768); and Borromeo vs. Manila Electric Railroad and
Light Co. (44 Phil., 165), and in view of all the circumstances connected with the case, we are of the opinion that
the plaintiff will be adequately compensated by an award of P2,500.

It being understood, therefore, that the appealed judgment is modified by reducing the recovery to the sum of
P2,500, the judgment, as thus modified, is affirmed. So ordered, with costs against the appellant.

Malcolm, Villamor, Ostrand, Romualdez and Villa-Real, JJ., concur.

Separate Opinions

JOHNSON, J., dissenting:

This appeal presents a hard case, whichever way it is decided.

I read the entire record in this case before it was submitted to the second division for decision. I was then
theponente. I was then convinced, as I am now, after a re-examination of the record, that the judgment of the
lower court should be revoked for the following reasons:

(a) That the motorman managed the car carefully and with ordinary prudence at the moment the alleged
accident occured;

(b) That the appellee acted with imprudence and lack of due care in attempting to board a street car while
the same was in motion; and

(c) That he contributed to his own injury, without any negligence or malice or imprudence on the part of the
defendant.

There is nothing in the record which even remotely justifies a contribution of damages between the appellee and
the appellant. The appellee should be required to suffer the damages which he himself, through his own
negligence, occasioned, without any negligence, imprudence or malice on the part of the appellant.

Therefore, the judgment of the court a quo should be revoked, and the appellant absolved from all liability under
the complaint.

Johns, J., concur.

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.

Concepcion, Jr., Cuevas, and Alampay, JJ., concur.

Separate Opinions

AQUINO, J., concurring:

The case of Malong vs. PNR, L-49930, Aug. 7, 1985 (en banc) hold that the PNR is not immune from suit and is
liable as a common carrier for the negligent acts of its employeees. It is expressly liable for moral damages for the
death of a passanger under arts. 1764 and 2206 of the Civil Code.

ABAD SANTOS, J., concurring:

I concur with the admonition that government owned and/or controlled corporations should desist from invoking
the baseless immunity from suit.
Separate Opinions

AQUINO, J., concurring:

The case of Malong vs. PNR, L-49930, Aug. 7, 1985 (en banc) hold that the PNR is not immune from suit and is
liable as a common carrier for the negligent acts of its employeees. It is expressly liable for moral damages for the
death of a passanger under arts. 1764 and 2206 of the Civil Code.

ABAD SANTOS, J., concurring:

I concur with the admonition that government owned and/or controlled corporations should desist from invoking
the baseless immunity from suit.