I. Introduction, B. Distinctions - Culpa Aquiliana, Culpa Contractual, Culpa Criminal

SUPREME COURT REPORTS ANNOTATED VOLUME 332
8/7/15, 7:11 PM
G.R. No. 122039. May 31, 2000.
VICENTE CALALAS, petitioner, vs. COURT

APPEALS,
ELIZA
JUJEURCHE
SUNGA
FRANCISCO SALVA, respondents.
OF
and
Judgments; Res Judicata; The principle of res judicata does not

apply where a party in a pending case was never a party in a
previous one.The argument that Sunga is bound by the ruling in
Civil Case No. 3490 finding the driver and the owner of the truck
liable for quasi-delict ignores the fact that she was never a party to
that case and, therefore, the principle of res judicata does not apply.
Nor are the issues in Civil Case No. 3490 and in the present case
the same. The issue in Civil Case No. 3490 was whether Salva and
his driver Verena were liable for quasi-delict for the damage caused
to petitioners jeepney. On the other hand, the issue in this case is
whether petitioner is liable on his contract of carriage. The first,
quasi-delict, also known as culpa aquiliana or culpa extra
contractual, has as its source the negligence of the tortfeasor. The
second, breach of contract or culpa contractual, is premised upon
the negligence in the performance of a contractual obligation.
Common Carriers; Breach of Contract; Quasi-Delicts; Torts; In
quasi-delict, the negligence or fault should be clearly established
because it is the basis of the action, whereas in breach of contract,
the action can be prosecuted merely by proving the existence of the
contract and the fact that the obligor, in this case the common
carrier, failed to transport his passenger safely to his destination.
Consequently, in quasi-delict, the negligence or fault should be
clearly established because it is the basis of the action, whereas in
breach of contract, the action can be prosecuted merely by proving
the existence of the contract and the fact that the obligor, in this
case the common carrier, failed to transport his passenger safely to
his destination. In case of death or injuries to passengers, Art. 1756
of the Civil Code provides that common carriers are presumed to
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have been at fault or to have acted negligently unless they prove

that they observed extraordinary diligence as defined in Arts. 1733
and 1755 of the Code. This provision necessarily shifts to the
common carrier the burden of proof.
_______________
*
SECOND DIVISION.
357
VOL. 332, MAY 31, 2000
357
Calalas vs. Court of Appeals
Same; Same; Same; Same; Doctrine of Proximate Cause; The

doctrine of proximate cause is applicable only in actions for quasidelicts, not in actions involving breach of contract.There is, thus,
no basis for the contention that the ruling in Civil Case No. 3490,
finding Salva and his driver Verena liable for the damage to
petitioners jeepney, should be binding on Sunga. It is immaterial
that the proximate cause of the collision between the jeepney and
the truck was the negligence of the truck driver. The doctrine of
proximate cause is applicable only in actions for quasi-delict, not in
actions involving breach of contract. The doctrine is a device for
imputing liability to a person where there is no relation between
him and another party. In such a case, the obligation is created by
law itself. But, where there is a pre-existing contractual relation
between the parties, it is the parties themselves who create the
obligation, and the function of the law is merely to regulate the
relation thus created.
Same; Same; Same; Same; Presumption of Negligence; Upon the
happening of the accident, the presumption of negligence at once
arises, and it becomes the duty of a common carrier to prove that he
observed extraordinary diligence in the care of his passengers.In
the case at bar, upon the happening of the accident, the
presumption of negligence at once arose, and it became the duty of
petitioner to prove that he observed extraordinary diligence in the
care of his passengers. Now, did the driver of jeepney carry Sunga
safely as far as human care and foresight could provide, using the
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utmost diligence of very cautious persons, with due regard for all
the circumstances as required by Art. 1755? We do not think so.
Several factors militate against petitioners contention.
Same; Same; Fortuitous Event; Words and Phrases; The taking
of an extension seat is not an implied assumption of risk on the
part of the passenger; A caso fortuito is an event which could not be
foreseen, or which, though foreseen, was inevitable; Requisites.We
find it hard to give serious thought to petitioners contention that
Sungas taking an extension seat amounted to an implied
assumption of risk. It is akin to arguing that the injuries to the
many victims of the tragedies in our seas should not be
compensated merely because those passengers assumed a greater
risk of drowning by boarding an overloaded ferry. This is also true
of petitioners contention that the jeepney being bumped while it
was improperly parked constitutes caso fortuito. A caso fortuito is
an event which could not
358
358
SUPREME COURT REPORTS ANNOTATED

be foreseen, or which, though foreseen, was inevitable. This

requires that the following requirements be present: (a) the cause of
the breach is independent of the debtors will; (b) the event is
unforeseeable or unavoidable; (c) the event is such as to render it
impossible for the debtor to fulfill his obligation in a normal
manner; and (d) the debtor did not take part in causing the injury
to the creditor. Petitioner should have foreseen the danger of
parking his jeepney with its body protruding two meters into the
highway.
Same; Same; Damages; As a general rule, moral damages are
not recoverable in actions for damages predicated on a breach of
contract for it is not one of the items enumerated under Art. 2219 of
the Civil Code.As a general rule, moral damages are not
recoverable in actions for damages predicated on a breach of
contract for it is not one of the items enumerated under Art. 2219 of
the Civil Code. As an exception, such damages are recoverable: (1)
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in cases in which the mishap results in the death of a passenger, as

provided in Art. 1764, in relation to Art. 2206(3) of the Civil Code;
and (2) in the cases in which the carrier is guilty of fraud or bad
faith, as provided in Art. 2220.
Same; Bad Faith; The common carriers admission in open
court that his driver failed to assist the injured passenger in going to
a nearby hospital cannot be construed as an admission of bad faith.
In this case, there is no legal basis for awarding moral damages
since there was no factual finding by the appellate court that
petitioner acted in bad faith in the performance of the contract of
carriage. Sungas contention that petitioners admission in open
court that the driver of the jeepney failed to assist her in going to a
nearby hospital cannot be construed as an admission of bad faith.
The fact that it was the driver of the Isuzu truck who took her to
the hospital does not imply that petitioner was utterly indifferent to
the plight of his injured passenger. If at all, it is merely implied
recognition by Verena that he was the one at fault for the accident.
PETITION for review on certiorari of a decision of the

Court of Appeals.
The facts are stated in the opinion of the Court.
Leo B. Diocos for petitioner.
359
VOL. 332, MAY 31, 2000
359

Enrique S. Empleo for private respondent Sunga.
Eduardo T. Sedillo for private respondent Salva.
MENDOZA, J.:
1
This is a petition for review on certiorari of the decision of

the Court of Appeals, dated March 31, 1991, reversing the
contrary decision of the Regional Trial Court, Branch 36,
Dumaguete City, and awarding damages instead to private
respondent Eliza Jujeurche Sunga as plaintiff in an action
for breach of contract of carriage.
The facts, as found by the Court of Appeals, are as
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follows:
At 10 oclock in the morning of August 23, 1989, private
respondent Eliza Jujeurche G. Sunga, then a college
freshman majoring in Physical Education at the Siliman
University, took a passenger jeepney owned and operated
by petitioner Vicente Calalas. As the jeepney was filled to
capacity of about 24 passengers, Sunga was given by the
conductor an extension seat, a wooden stool at the back of
the door at the rear end of the vehicle.
On the way to Poblacion Sibulan, Negros Occidental, the
jeepney stopped to let a passenger off. As she was seated at
the rear of the vehicle, Sunga gave way to the outgoing
passenger. Just as she was doing so, an Isuzu truck driven
by Iglecerio Verena and owned by Francisco Salva bumped
the left rear portion of the jeepney. As a result, Sunga was
injured. She sustained a fracture of the distal third of the
left tibia-fibula with severe necrosis of the underlying
skin. Closed reduction of the fracture, long leg circular
casting, and case wedging were done under sedation. Her
confinement in the hospital lasted from August 23 to
September 7, 1989. Her attending physician, Dr. Danilo V.
Oligario, an orthopedic surgeon, certified she would remain
on a cast for a period of
_______________
1
Per Justice Artemon D. Luna and concurred in by Justices Hector L.
Hofilena and B.A. Adefuin-dela Cruz.

360
360

three months and would have to ambulate in crutches

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

thirdparty defendant and absolved Calalas of liability,
holding that it was the driver of the Isuzu truck who was
responsible for the accident. It took cognizance of another
case (Civil Case No. 3490), filed by Calalas against Salva
and Verena, for quasi-delict, in which Branch 37 of the
same court held Salva and his driver Verena jointly liable
to Calalas for the damage to his jeepney.
On appeal to the Court of Appeals, the ruling of the
lower court was reversed on the ground that Sungas cause
of action was based on a contract of carriage, not quasidelict, and that the common carrier failed to exercise the
diligence required under the Civil Code. The appellate
court dismissed the thirdparty complaint against Salva and
adjudged Calalas liable for damages to Sunga. The
dispositive portion of its decision reads:
WHEREFORE, the decision appealed from is hereby REVERSED
and SET ASIDE, and another one is entered ordering defendantappellee Vicente Calalas to pay plaintiff-appellant:
(1) P50,000.00 as actual and compensatory damages;
(2) P50,000.00 as moral damages;
(3) P10,000.00 as attorneys fees; and
(4) P1,000.00 as expenses of litigation; and
(5) to pay the costs.
SO ORDERED.
Hence, this petition. Petitioner contends that the ruling in

Civil Case No. 3490 that the negligence of Verena was the
361
VOL. 332, MAY 31, 2000
361

proximate cause of the accident negates his liability and
that to rule otherwise would be to make the common
carrier an insurer of the safety of its passengers. He
contends that the bumping of the jeepney by the truck
owned by Salva was a caso fortuito. Petitioner further
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assails the award of moral damages to Sunga on the

ground that it is not supported by evidence.
The petition has no merit.
The argument that Sunga is bound by the ruling in Civil
Case No. 3490 finding the driver and the owner of the truck
liable for quasi-delict ignores the fact that she was never a
party to that case and, therefore, the principle of res
judicata does not apply.
Nor are the issues in Civil Case No. 3490 and in the
present case the same. The issue in Civil Case No. 3490
was whether Salva and his driver Verena were liable for
quasidelict for the damage caused to petitioners jeepney.
On the other hand, the issue in this case is whether
petitioner is liable on his contract of carriage. The first,
quasi-delict, also known as culpa aquiliana or culpa extra
contractual, has as its source the negligence of the
tortfeasor. The second, breach of contract or culpa
contractual, is premised upon the negligence in the
performance of a contractual obligation.
Consequently, in quasi-delict, the negligence or fault
should be clearly established because it is the basis of the
action, whereas in breach of contract, the action can be
prosecuted merely by proving the existence of the contract
and the fact that the obligor, in this case the common
carrier, failed
to transport his passenger safely to his
2
destination. In case of death or injuries to passengers, Art.
1756 of the Civil Code provides that common carriers are
presumed to have been at fault or to have acted negligently
unless they prove that they observed extraordinary
diligence as defined in Arts. 1733 and
_______________
2
See B. BALDERRAMA, THE PHILIPPINE LAW ON TORTS AND
DAMAGES 20 (1953).
362
362

1755 of the Code. This provision necessarily shifts to the

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common carrier the burden of proof.

There is, thus, no basis for the contention that the ruling
in Civil Case No. 3490, finding Salva and his driver Verena
liable for the damage to petitioners jeepney, should be
binding on Sunga. It is immaterial that the proximate
cause of the collision between the jeepney and the truck
was the negligence of the truck driver. The doctrine of
proximate cause is applicable only in actions for quasidelict, not in actions involving breach of contract. The
doctrine is a device for imputing liability to a person where
there is no relation between him and another party. In such
a case, the obligation is created by law itself. But, where
there is a pre-existing contractual relation between the
parties, it is the parties themselves who create the
obligation, and the function of the law is merely to regulate
the relation thus created. Insofar as contracts of carriage
are concerned, some aspects regulated by the Civil Code
are those respecting the diligence required of common
carriers with regard to the safety of passengers as well as
the presumption of negligence in cases of death or injury to
passengers. It provides:
ART. 1733. Common carriers, from the nature of their business and
for reasons of public policy, are bound to observe extraordinary
diligence in the vigilance over the goods and for the safety of the
passengers transported by them, according to all the circumstances
of each case.
Such extraordinary diligence in the vigilance over the goods is
further expressed in articles 1734, 1735, and 1746, Nos. 5, 6, and 7,
while the extraordinary diligence for the safety of the passengers is
further set forth in articles 1755 and 1756.
ART. 1755. A common carrier is bound to carry the passengers
safely as far as human care and foresight can provide, using the
utmost diligence of very cautious persons, with due regard for all
the circumstances.
ART. 1756. In case of death of or injuries to passengers, common
carriers are presumed to have been at fault or to have acted
negligently, unless they prove that they observed extraordinary
diligence as prescribed by articles 1733 and 1755.
363
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363

In the case at bar, upon the happening of the accident, the
presumption of negligence at once arose, and it became the
duty of petitioner to prove that he observed extraordinary
diligence in the care of his passengers.
Now, did the driver of jeepney carry Sunga safely as far
as human care and foresight could provide, using the
utmost diligence of very cautious persons, with due regard
for all the circumstances as required by Art. 1755? We do
not think so. Several factors militate against petitioners
contention.
First, as found by the Court of Appeals, the jeepney was
not properly parked, its rear portion being exposed about
two meters from the broad shoulders of the highway, and
facing the middle of the highway in a diagonal angle. This
is a violation of the R.A. No. 4136, as amended, or the Land
Transportation and Traffic Code, which provides:
Sec. 54. Obstruction of Traffic.No person shall drive his motor
vehicle in such a manner as to obstruct or impede the passage of
any vehicle, nor, while discharging or taking on passengers or
loading or unloading freight, obstruct the free passage of other
vehicles on the highway.
Second, it is undisputed that petitioners driver took in

more passengers than the allowed seating capacity of the
jeepney, a violation of 32(a) of the same law. It provides:
Exceeding registered capacity.No person operating any motor
vehicle shall allow more passengers or more freight or cargo in his
vehicle than its registered capacity.
The fact that Sunga was seated in an extension seat

placed her in a peril greater than that to which the other
passengers were exposed. Therefore, not only was
petitioner unable to overcome the presumption of
negligence imposed on him for the injury sustained by
Sunga, but also, the evidence shows he was actually
negligent in transporting passengers.
We find it hard to give serious thought to petitioners
contention that Sungas taking an extension seat
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amounted to an implied assumption of risk. It is akin to

arguing that the
364
364

injuries to the many victims of the tragedies in our seas

should not be compensated merely because those
passengers assumed a greater risk of drowning by boarding
an overloaded ferry. This is also true of petitioners
contention that the jeepney being bumped while it was
improperly parked constitutes caso fortuito. A caso fortuito
is an event which could 3not be foreseen, or which, though
foreseen, was inevitable. This requires that the following
requirements be present: (a) the cause of the breach is
independent of the debtors will; (b) the event is
unforeseeable or unavoidable; (c) the event is such as to
render it impossible for the debtor to fulfill his obligation in
a normal manner; and (d) the debtor
did not take part in
4
causing the injury to the creditor. Petitioner should have
foreseen the danger of parking his jeepney with its body
protruding two meters into the highway.
Finally, petitioner challenges the award of moral
damages alleging that it is excessive and without basis in
law. We find this contention well taken.
In awarding moral damages, the Court of Appeals
stated:
Plaintiff-appellant at the time of the accident was a first-year
college student in that school year 1989-1990 at the Silliman
University, majoring in Physical Education. Because of the injury,
she was not able to enroll in the second semester of that school year.
She testified that she had no more intention of continuing with her
schooling, because she could not walk and decided not to pursue her
degree, major in Physical Education because of my leg which has a
defect already.
Plaintiff-appellant likewise testified that even while she was
under confinement, she cried in pain because of her injured left foot.
As a result of her injury, the Orthopedic Surgeon also certified that
she has residual bowing of the fracture side. She likewise decided
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not to further pursue Physical Education as her major subject,

because my left leg x x x has a defect already.
_______________
3
CIVIL CODE, ART. 1174.
Juan F. Nakpil & Sons v. Court of Appeals, 144 SCRA 596 (1986);
Vasquez v. Court of Appeals, 138 SCRA 553 (1985); Republic v. Luzon

Stevedoring Corp., 128 Phil. 313 (1967).
365
VOL. 332, MAY 31, 2000
365

Those are her physical pains and moral sufferings, the inevitable
bedfellows of the injuries that she suffered. Under Article 2219 of
the Civil Code, she is entitled to recover moral damages in the sum
of P50,000.00, which is fair, just and reasonable.
As a general rule, moral damages are not recoverable in

actions for damages predicated on a breach of contract for
it is not one5 of the items enumerated under Art. 2219 of the
Civil Code. As an exception, such damages are recoverable:
(1) in cases in which the mishap results in the death of a
passenger, as provided in Art. 1764, in relation to Art.
2206(3) of the Civil Code; and (2) in the cases in which the
carrier
is guilty of fraud or bad faith, as provided in Art.
6
2220.
In this case, there is no legal basis for awarding moral
damages since there was no factual finding by the
appellate court that petitioner acted in bad faith in the
performance of the contract of carriage. Sungas contention
that petitioners admission in open court that the driver of
the jeepney failed to assist her in going to a nearby hospital
cannot be construed as an admission of bad faith. The fact
that it was the driver of the Isuzu truck who took her to the
hospital does not imply that petitioner was utterly
indifferent to the plight of his injured passenger. If at all, it
is merely implied recognition by Verena that he was the
one at fault for the accident.
WHEREFORE, the decision of the Court of Appeals,
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dated March 31, 1995, and its resolution, dated September

11, 1995, are AFFIRMED, with the MODIFICATION that
the award of moral damages is DELETED.
SO ORDERED.
Bellosillo (Chairman) and Buena, JJ., concur.
_______________
5
Fores v. Miranda, 105 Phil. 236 (1959); Mercado v. Lira, 3 SCRA
124 (1961).
6
Philippine Rabbit Bus Lines, Inc. v. Esguerra, 117 SCRA 741
(1982); Sabena Belgian World Airlines v. Court of Appeals, 171 SCRA 620
(1989); China Airlines, Ltd. v. Intermediate Appellate Court, 169 SCRA
226 (1989).
366
366

People vs. Doinog
Quisumbing and De Leon, Jr., JJ., On leave.
Judgment affirmed with modification.

Notes.The rules on extraordinary responsibility of
common carriers remain basically unchanged even when
the contract is breached by tort although noncontradictory
principles on quasi-delict may then be assimilated as also
forming part of the governing law. (Sabena Belgian World
Airlines vs. Court of Appeals, 255 SCRA 38 [1996])
Proximate cause, which is determined by a mixed
consideration of logic, common sense, policy and precedent,
is that cause which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the
injury, and without which the result would not have
occurred. (Bank of the Philippine Islands vs. Court of
Appeals, 641 SCRA 326 [2000])
While the driver of an improperly parked vehicle may be
liable in case of collision, the driver of a moving vehicle who
had no opportunity to avoid the collision due to his own
making is not relieved of liability, such as when his
Page 12 of 13
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negligence is the immediate and proximate cause of the

collision. (Austria vs. Court of Appeals, 327 SCRA 668
[2000])
o0o
Copyright 2015 Central Book Supply, Inc. All rights reserved.
Page 13 of 13
PHILIPPINE REPORTS ANNOTATED VOLUME 073
8/7/15, 7:12 PM
VOL. 73, JULY 8, 1942
607
Barredo vs. Garcia and Almario

title be issued in favor of Santiago Imperial, but subject to
the mortgage lien of Luis Meneses which appears duly
noted in the certificate to be cancelled. Luis Meneses may,
in a single complaint, sue the Adornados and Santiago
Imperial for the collection of his mortgage credit, the
former as primary obligors and the latter as owner of the
property mortgaged, without prejudice to any right which
Santiago Imperial may have against the assurance fund.
We make no pronouncement as to costs in this instance.
Yulo, C. J., Ozaeta, Paras, and Bocobo, J J., concur.
Judgment modified.
[No. 48006.July 8, 1942]
FAUSTO BARREDO, petitioner, vs. SEVERINO GARCIA and

TIMOTEA ALMARIO, respondents.
1.DAMAGES; QUASI-DELICT
RESPONSIBILITY
OF
OR
"CULPA AQUILIANA"; PRIMARY
EMPLOYERS
UNDER
ARTICLES 1902-1910
AND
DIRECT
OF THE
CIVIL
CODE.A head-on collision between a taxi and a carretela resulted in

the death of a 16-year-old boy, one of the passengers of the carretela.
A criminal action was filed against the taxi driver and he was
convicted and sentenced accordingly. The court in the criminal case
granted the petition that the right to bring a separate civil action be
reserved. Thereafter the parents of the deceased brought suit for
damages against the proprietor of the taxi, the employer of the taxi
driver, under article 1903 of the Civil Code. Defendant contended that
his liability was governed by the Revised Penal Code, according to
which his responsibility was only secondary, but no civil action had
been brought against the taxi driver. Held: That this separate civil
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action lies, the employer being primarily and directly responsible in

damages under articles 1902 and 1903 of the Civil Code.
2.ID.; ID.; ID.A quasi-delict or "culpa aquiliana" is a separate legal
institution under the Civil Code, with a substantivity all its own, and
individuality that is entirely apart and independent from a delict or
crime. Upon this principle, and on the wording and spirit of article
1903 of the Civil Code, the primary and direct responsibility of
employers may be safely anchored.
3.ID.; ID.; ID.The individuality of cuati-delito or culpa extra-contractual
looms clear and unmistakable. This legal institution is of ancient
lineage, one of its early ancestors being the Lex Aquilia in the Roman
Law. In fact, in Spanish legal trminology, this responsibility is often
referred to as culpa aquiliana. The Partidas also contributed to the
genealogy of the present fault or negligence under the Civil Code: for
instance, Law 6, Title 16, of Partida 7, says: "Tenudo es de fazer
emienda, porque, cmo quier que el non fizo a sabiendas el dao al
otro, pero acaesci por su culpa."
4.ID.; ID.; ID.The distinctive nature of cuasi-delitos survives in the Civil
Code. According to article 1089, one of the five sources of obligations
is this legal institution of cuasi-delito or culpa extra-contractual: "los
actos***en que intervenga cualquier genero de culpa o
negligencia." Then article 1093 provides that this kind of obligation
shall be governed by Chapter II of Title XVI of Book IV, meaning
articles 1902-1910. This portion of the Civil Code is exclusively
devoted to the legal institution of culpa aquiliana.
5.ID.; ID.; ID.; DISTINCTION
"CULPA AQUILIANA"
BETWEEN
OR
CRIMES
UNDER THE
"CUASI-DELITO"
UNDER
PENAL CODE
THE
AND THE
CIVIL CODE.A
distinction exists between the civil liability arising from a crime and
the responsibility for cuasi-delitos or culpa extra-contractual. The
same negligent act causing damages may produce civil liability
arising from a crime under article 100 of the Revised Penal Code, or
create an action for cuasi-delito or culpa extra-contractual under
articles 1902-1910 of the Civil Code. Plaintiffs were free to choose
which remedy to enforce. Some of the differences between crimes
under the Penal Code and the culpa aquiliana or cuasi-delito under
the Civil Code are enumerated in the decision.
6.ID.; ID.; ID.; OPINIONS
OF
JURISTS.The decision sets out extracts from
opinions of jurists on the separate existence of cuasi-delicts and the

employer's primary and direct liability under article 1903 of the Civil
Code.
7.ID.; ID.; ID.; SENTENCES OF THE SUPREME TRI608
Page 2 of 36
608
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PHILIPPINE REPORTS ANNOTATED

BUNAL OF
SPAIN.The decision cites sentences of the Supreme Tribunal
of Spain upholding the principles above set forth: that a cuasi-delict

or culpa extra-contractual is a separate and distinct legal institution,
independent from the civil responsibility arising from criminal
liability, and that an employer is, under article 1903 of the Civil Code,
primarily and directly responsible for the negligent acts of his employee.
8.ID.; ID.; ID.; DECISIONS
OF THIS
COURT.Decisions of this Court are also
cited holding that, in this jurisdiction, the separate individuality of a

cuasi-delito or culpa aquiliana under the Civil Code has been fully
and clearly recognized, even with regard to a negligent act for. which
the wrongdoer could have been prosecuted and convicted in a
criminal case and for which, after such a conviction, he could have
been sued for his civil liability arising from his crime.
9.ID.; ID.; ID.; FOUNDATIONS
MEANING
OF THE
OF
DOCTRINES ABOVE SET FORTH; LITERAL
LAW. The Revised Penal Code punishes not only
reckless but also simple negligence; if it should be held that articles

1902-1910, Civil Code, apply only to negligence not punishable by
law, culpa aquiliana would have very little application in actual life.
The literal meaning of the law will not be used to smother a principle
of such ancient origin and such full-grown development as culpa
aquiliana.
10.ID.; ID.; ID.; ID.; DEGREE
OF
PROOF.There are numerous cases of
criminal negligence which can not be shown beyond reasonable doubt,

but can be proved by a preponderance of evidence. In such cases,
defendant can and should be made responsible in a civil action under
articles 1902 to 1910, Civil Code. Ubi jus ibi remedium.
11.ID.; ID.; ID.; ID.; EXPEDITIOUS REMEDY.The primary and direct
responsibility of employer under article 1903, Civil Code, is more
likely to facilitate remedy for civil wrongs. Such primary and direct
responsibility of employers is calculated to protect society.
12.ID.; ID.; ID.; ID.; PRACTICE
A
OF
RELYING SOLELY
ON
CIVIL RESPONSIBILITY
FOR
CRIME.The harm done by such practice is pointed out, and the
principle of responsibility for fault or negligence under articles 1902

et seq., of the Civil Code is restored to its full vigor.
PETITION for review on certiorari.

The facts are stated in the opinion of the court.
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Celedonio P. Gloria and Antonio Barredo for petitioner.

Jose G. Advincula for respondents.
BOCOBO,J.:
This case comes up from the Court of Appeals which
held the petitioner herein, Fausto Barredo, liable in
damages for the death of Faustino Garcia caused by the
negligence of Pedro Fontanilla, a taxi driver employed by
said Fausto Barredo.
At about half past one in the morning of May 3, 1936, on
the road between Malabon and Navotas, Province of Rizal,
there was a headon collision between a taxi of the Malate
Taxicab driven by Pedro Fontanilla and a carretela guided
by Pedro Dimapilis. The carretela was overturned, and one
of its passengers, 16-year-old boy Faustino Garcia, suffered
injuries from which he died two days later. A criminal
action was filed against Fontanilla in the Court of First Instance of Rizal, and he was convicted and sentenced to an
indeterminate sentence of one year and one day to two
years of prisin correccional. The court in the criminal case
granted the petition that the right to bring a separate civil
action be reserved. The Court of Appeals affirmed the
sentence of the lower court in the criminal case. Severino
Garcia and Timotea Almario, parents of the deceased, on
March 7, 1939, brought an action in the Court of First
Instance of Manila against Fausto Barredo as the sole
proprietor of the Malate Taxicab and employer of Pedro
Fontanilla. On July 8,1939, the Court of First Instance of
Manila awarded damages in favor of the plaintiffs for
P2,000 plus legal interest from the date of the complaint.
This decision was modified by the Court of Appeals by
reducing the damages to P1.000 with legal interest from
the time the action was instituted. It is undisputed that
Fontanilla's negligence was the cause of the mishap, as he
was driving on the wrong side of the road, and at high
speed. As to Barredo's responsibility, the Court of Appeals
found:
"***It is admitted that defendant is Fontanilla's
employer. There is no proof that he exercised the diligence of a good
father of a family to prevent the damage. (See p. 22, appellant's
brief.) In fact it is shown he was careless in employing Fontanilla
who had been caught several times for violation of the Automobile
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Law and speeding (Exhibit A)violations which appeared in the

records of the Bureau of Public Works available to the public and to
himself. Therefore, he must indemnify plaintiffs under the
provisions of article 1903 of the Civil Code."
The main theory of the defense is that the liability of

Fausto Barredo is governed by the Revised Penal Code;
hence, his liability is only subsidary, and as there has been
no civil action against Pedro Fontanilla, the person
criminally liable, Barredo cannot be
609
VOL. 73, JULY 8, 1942
609

held responsible in this case The petitioner's brief states on
page 10:
***The Court of Appeals holds that the petitioner is
being sued for his failure to exercise all the diligence of a good
father of a family in the selection and supervision of Pedro
Fontanilla to prevent damages suffered by the respondents. In
other words, the Court of Appeals insists on applying in this case
article 1903 of the Civil Code. Article 1903 of the Civil Code is found
in Chapter II, Title 16, Book IV of the Civil Code. This fact makes
said article inapplicable to a civil liability arising from a crime as in
the case at bar simply because Chapter II of Title 16 of Book IV of
the Civil Code, in the precise words of article 1903 of the Civil Code
itself, is applicable only to "those (obligations) arising from wrongful
or negligent acts or omissions not punishable by law.'"
The gist of the decision of the Court of Appeals is

expressed thus:
"***We cannot agsee to the defendant's contention. The
liability sought to be imposed upon him in this action is not a civil
obligation arising from a felony or a misdemeanor (the crime of Pedro Fontanilla), but an obligation imposed in article 1903 of the
Civil Code by reason of his negligence in the selection or supervision
of his servant or employee."
The pivotal question in this case is whether the

Page 5 of 36
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plaintiffs may bring this separate civil action against

Fausto Barredo, thus making him primarily and directly
.responsible under article 1903 of the Civil Code as an
employer of Pedro Fontanilla. The defendant maintains
that Fontanilla's negligence being punishable by the Penal
Code, his (defendant's) liability as an employer is only
subsidary, according to said Penal Code, but Fontanilla
has not been sued in a civil action and his property has not
been exhausted. To decide the main issue, we must cut
through the tangle that has, in the minds of many,
confused and jumbled together delitos and cuasi-delitos, or
crimes under the Penal Code and fault or negligence under
articles 1902-1910 of the Civil Code. This should be done,
because justice may be lost in a labyrinth, unless principles
and remedies are distinctly envisaged. Fortunately, we are
aided in our inquiry by the luminous presentacin of this
perplexing subject by renown jurists and we' are likewise
guided by the decisions of this Court in previous cases as
well as by the solemn clarity of the considerations in
several sentences of the Supreme Tribunal of Spain.
Authorities support the proposition that a quasi-delict or
"culpa aquiliana" is a separate legal institution under the
Civil Code, with a substantivity all its own, and
individuality that is entirely apart and independent from a
delict or crime. Upon this principle, and on the wording
and spirit of article 1903 of the Civil Code, the primary and
direct responsibility of employers may be safely anchored.
The pertinent provisions of the Civil Code and Revised
Penal Code are as follows :
CIVIL CODE
"ART. 1089.Obligations arise from law, from contracts and
quasi-contracts, and from acts and omissions which are unlawful or
in which any kind of fault or negligence intervenes."
******
"ART. 1092.Civil obligations arising from felonies or
misdemeanors shall be governed by the provisions of the Penal
Code.
"ART. 1093.Those which are derived from acts or omissions in
which fault or negligence, not punishable by law, intervenes shall be
subject to the provisions of Chapter II, Title XVI of this book."
******
Page 6 of 36
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"ART. 1902.Any person who by an act or omission causes

damage to another by his fault or negligence shall be liable for the
damage so done.
"ART. 1903.The obligation imposed by the next preceding
article is enforcible, not only for personal acts and omissions, but
also for those of persons for whom another is responsible.
"The father, and, in case of his death or incapacity, the mother,
are liable for any damages caused by the minor children who live
with them.
"Guardians are liable for damages done by minors or
incapacitated persons subject to their authority and living with
them.
"Owners or directors of an establishment or business are equally
liable for any damages caused by their employees while engaged in
the branch of the service in which employed, or on occasion of the
performance of their duties.
"The State is subject to the same liability when it acts through a
special agent, but not if the damage shall have been caused by the
official upon whom properly devolved the duty of doing the act
performed, in which case the provisions of the next preceding article
shall be applicable.
"Finally, teachers or directors of arts and trades are liable for
any damages caused by their pupils or apprentices while they are
under their custody.
"The liability imposed by this article shall cease in case the
persons mentioned therein prove that they exercised all the
diligence of a good father of a family to prevent the damage."
"ART. 1904.Any person who pays for damage caused by his
employees may recover from the latter what he may have paid."
REVISED PENAL CODE
"ART. 100.Civil liability of a person guilty of felony.Every
person criminally liable for a felony is also civilly liable.
610
610

"ART. 101.Rules regarding civil liability in certain cases.The

exemption from criminal liability established in subdivisions 1, 2, 3,
5, and 6 of article 12 and in subdivision 4 of article 11 of this Code
Page 7 of 36
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does not include exemption from civil liability, which shall be

enforced subject to the following rules:
"First.In cases of subdivisions 1, 2 and 3 of article 12 the civil
liability for acts committed by any imbecile or insane person, and by
a person under nine years of age, or by one over nine but under
fifteen years of age, who has acted without discernment, shall
devolve upon those having such person under their legal authority
or control, unless it appears that there was no fault or negligence on
their part.
"Should there be no person having such insane, imbecile or
minor under his authority, legal guardanship, or control, or if such
person be insolvent, said insane, imbecile, or minor shall respond
with their own property, excepting property exempt from execution,
in accordance with the civil law.
"Second.In cases falling within subdivision 4 of article 11, the
persons for whose benefit the harm has been prevented shall be
civilly liable in proportion to the benefit which they may have
received.
"The courts shall determine, in their sound discretion, the
proportionate amount for which each one shall be liable.
"When the respective shares can not be equitably determined,
even approximately, or when the liability also attaches to the
Government, or to the majority of the inhabitants of the town, and,
in all events, whenever the damage has been caused with the
consent of the authorities or their agents, indemnification shall be
made in the manner prescribed by special laws or regulations.
"Third.In cases falling within subdivisions 5 and 6 of article
12, the persons using violence or causing the fear shall be primarily
liable and secondarily, or, if there be no such persons, those doing
the act shall be liable, saving always to the latter that part of their
property exempt from execution.
"ART. 102.Subsidiary civil liability of innkeepers, tavern
keepers and proprietors of establishment. In default of persons
criminally liable, innkeepers, tavern keepers, and any other persons
or corporations shall be civilly liable for crimes committed in their
establishments, in all cases where a violation of municipal
ordinances or some general or special police regulation shall have
been committed by them or their employees.
"Innkeepers are also subsidarily liable for the restitution of
goods taken by robbery or theft within their houses from guests
lodging therein, or for the payment of the value thereof, provided
that such guests shall have notified in advance the innkeeper
Page 8 of 36
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himself, or the person representing him, of the deposit of such goods

within the inn; and shall furthermore have followed the directions
which such innkeeper or his representative may have given them
with respect to the care of and vigilance over such goods. No
liability shall attach in case of robbery with violence against or
intimidation of persons unless committed by the innkeeper's employees.
"ART. 103.Subsidiary civil liability of other persons.The
subsidary liability established in the next preceding article shall
also apply to employers, teachers, persons, and corporations
engaged in any kind of industry for felonies committed by their
servants, pupils, workmen, apprentices, or employees in the
discharge of their duties."
******
"ART. 365.Imprudence and Negligence.Any person who, by
reckless imprudence, shall commit any act which, had it been
intentional, would constitute a grave felony, shall suffer the penalty
of arresto mayor in its maximum period to prisin correccional in its
minimum period; if it would have constituted a less grave felony,
the penalty of arresto mayor in its minimum and medium periods
shall be imposed.
"Any person who, by simple imprudence or negligence, shall
commit an act which would otherwise constitute a grave felony,
shall suffer the penalty of arresto mayor in its medium and maximum periods; if it would have constituted a less serious felony, the
penalty of arresto mayor in its minimum period shall be imposed."
It will thus be seen that while the terms of article 1902

of the Civil Code seem to be broad enough to cover the
driver's negligence in the instant case, nevertheless article
1093 limits cuasi-delitos to acts or omissions "not
punishable by law." But inasmuch as article 365 of the
Revised Penal Code punishes not only reckless but even
simple imprudence or negligence, the fault or negligence
under article 1902 of the Civil Code has apparently been
crowded out. It is this overlapping that makes the
"confusion worse confounded." However, a closer study
shows that such a concurrence of scope in regard to
negligent acts does not destroy the distinction between the
civil liability arising from a crime and the responsibility for
cuasi-delitos or culpa extra-contractual. The same negligent
act causing damages may produce civil liability arising
from a crime under article 100 of the Revised Penal Code,
Page 9 of 36
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or create an action for cuasi-delito or culpa extracontractual under articles 1902-1910 of the Civil Code.
The individuality of cuasi-delito or culpa extracontractual looms clear and unmistakable. This legal
institution is of ancient lineage, one of its early ancestors
being the Lex Aquilia in the Roman Law. In fact, in
Spanish legal trminology, this responsibility is often
referred to as culpa aquiliana. The Partidas also
contributed to the genealogy of the present fault or
negligence under the Civil Code; for instance, Law 6, Title
15, of Partida 7, says: "Tenudo es de fazer
611
VOL. 73, JULY 8, 1942
611

emienda, porque, cmo quier que el non fizo sabiendas el
dano al otro, pero acaesci por su culpa."
The distinctive nature of cuasi-delitos survives in the
Civil Code. According to article 1089, one of the five sources
of obligations is this legal institution of cuasi-delito or
culpa extra-contractual: "los actos*** en que
intervenga cualquier genero de culpa o negligencia." Then
article 1093 provides that this kind of obligation shall be
governed by Chapter II of Title XVI of Book IV, meaning
articles 1902-1910. This portion of the Civil Code is
exclusively devoted to the legal institution of culpa
aquiliana.
Some of the differences between crimes under the Penal
Code and the culpa aquiliana or cuasi-delito under the
Civil Code are:
1.That crimes affect the public interest, while cuasi-delitos are
only of private concern.
2.That, consequently, the Penal Code punishes or corrects the
criminal act, while the Civil Code, by means of indemnification,
merely repairs the damage.
3.That delicts are not as broad as quasi-delicts, because the
former are punished only if there is a penal law clearly covering
them, while the latter, cuasi-delitos, include all acts in which "any
kind of fault or negligence intervenes." However, it should be noted
Page 10 of 36
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that not all violations of the penal law produce civil responsibility,
such as begging in contravention of ordinances, violation of the
game laws, infraction of the rules of traffic when nobody is hurt.
(See Colin and Capitant, "Curso Elemental de Derecho Civil," Vol. 3,
p. 728.)
Let us now ascertain what some jurjsts say on the

separate existence of quasi-delicts and the employer's
primary and direct liability under article 1903 of the Civil
Code.
Dorado Montero in his essay on "Responsabilidad" in the
"Enciclopedia Juridica Espaola" (Vol. XXVII, p. 414) says:
"El concepto juridico de la responsabilidad civil abarca diversos
aspectos y comprende a diferentes personas. Asl, existe una
responsabilidad civil propiamentc dicha, que en ningn caso lleva
aparejada responsabilidad criminal alguna, y otra que es
consecuencia indeclinable de la penal que nace de todo delito o
falta."
"The juridical concept of civil responsibility has various aspects
and comprises different persons. Thus, there is a civil responsibility,
properly speaking, which in no case carries with it any criminal
responsibility, and another which is a necesary consequence of the
penal liability as a result of every felony or misdemeanor."
Maura, an outstanding authority, was consulted on the

following case: There had been a collision between two
trains belonging respectively to the Ferrocarril Cantabrico
and the Ferrocarril del Norte. An employee of the latter
had been prosecuted in a criminal case, in which the
company had been made a party as subsidarily responsible
in civil damages. The employee had been acquitted in the
criminal case, and the employer, the Ferrocarril del Norte,
had also been exonerated. The question asked was whether
the Ferrocarril Cantabrico could still bring a civil action for
damages against the Ferrocarril del Norte. Maura's opinion
was in the affirmative, stating in part (Maura, Dictmenes,
Vol. 6, pp. 511-513):
"Quedando las cosas as, a proposito de la realdad pura y neta de
los hechos, todavia menos parece sostenible que exista cosa juzgada
acerca de la obligacion civil de indemnizar los quebrantoa y
menoscabos inferidos por el choque de los trenee. El ttulo en que se
Page 11 of 36
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funda la accin para demandar el resarcimiento, no puede

confundirse con las responsabilidades civiles nacidas de delito,
siquiera exista en este, sea 61 cual sea, una culpa rodeada de notas
agravatorias que motivan sanciones penales, ms o menos severas.
La lesion causada por delito o falta en los derechos civiles, requiere
restituciones, reparaciones o indemnizaciones, que cual la pena
misma atanen al orden publico; por tal motivo vienen
encomendadas, de ordinario, al Ministerio Fiscal; y claro es que si
por esta via se enmiendan los quebrantoa y menoscabos, el
agraviado excusa procurar el ya conseguido desagravio; pero esta
eventual coincidencia de los efectos, no borra la diversidad
originaria de las acciones civiles para pedir indemnizacion.
"Estas, para el caso actual (prescindiendo de culpas contractules,
que no vendrian a cuento y que tienen otro regimen), dimanan,
segn el articulo 1902 del Cdigo Civil, de toda accin u omision,
causante de daflos o perjuicios, en que intervenga culpa o
negligencia. Es trivial que acciones semejantes son ejercitadas ante
los Tribunales de lo civil cotidanamente, sin que la Justicia
punitiva tenga que mezclarse en los asuntos. Los artculos 18 al 21
y 121 al 128 del Cdigo Penal, atentos al espiritu y a los fines
sociales y polticos del mismo, desenvuelven y ordenan la materia
de responsabilidades civiles nacidas de delito, en termmos
separados del regimen por ley comun de la culpa que se denomina
aquiliana, por alusion a precedentes legislatives del Corpus Juris.
Seria intempestivo un paralelo entre aquellas ordenaciones, y la de
la obligation de indemnizar a ttulo de culpa civil; pero viene al caso
y es necesaria una de las diferenciaciones que en el tal parallo se
notarian.
"Los artculos 20 y 21 del Cdigo Penal, despus de distribuir a
su modo las responsabilidades civiles, entre los que sean por
diversos conceptos culpables del delito o falta, las hacen extensivas
a las em612
612

presas y los establecimientos al servicio de los cuales estn los

delincuentes; pero ton carcter subsidiario, o sea, Begun el texto
literal, en defecto de los que sean responsables criminalmente. No
coincide en ello el Cdigo Civil, cuyo artculo 1903, dice; La
Page 12 of 36
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obligacin que impone el artculo anterior es exigible, no slo por los

actos y omisiones propios, lino por los de aquellas personas de
quienes se debe responder; personas en la enumeracin de las cuales
figuran los dependientes y empleados de los establecimientos o
empresas, sea por actos del servicio, sea con ocasin de sua
funciones. Por esto acontece, y se observa en la jurisprudencia, que
las empresas, despulo de intervenir en las causas criminales con el
carcter subsidiario de su responsabilidad civil por razn del delito,
son demandadas y condenadas directa y aisladamente, cuando se
trata de la obligacion, ante los tribunales civiles.
"Siendo cmo se ve, diverso el ttulo de esta obligacion, y
formando verdadero postulado de nuestro regimen judicial la
separation entre justicia punitiva y tribunales de lo civil, de suerte
que tienen unos y otros normaa de fondo en distintos cuerpos
legates, y diferentes modos de proceder, habiendose, por afiadidura,
abstenido de asistir al juicio criminal la Compania del Ferrocarril
Cantabrico, que se reservo ejercitar sus acciones, parece innegable
que la de indemnizacin por los danos y perjuicios que le irrogd el
choque, no estuvo sub judice ante el Tribunal del Jurado, ni fu
sentenciada, sino que permanecio intacta, al pronunciarse el fallo
de 21 de marzo. Aun cuando el veredicto no hubiese sido de
inculpabilidad, mostrose ms arriba, que tal accin quedaba
legitimamente reservada para despuea del proceso; pero al
declararse que no existid delito, ni responsabilidad dimanada de
delito, materia nica sobre que tenian jurisdiction aquellos
juzgadores, se redobla el motivo para la obligacion civil ex lege, y se
patentiza ms y ms que la action para pedir su cumplimiento
permanece incolume, extrafia a la cosa juzgada."
"As things are, apropos of the reality pure and simple of the
facts, it seems less tenable that there should be res judicata with
regard to the civil obligation for damages on account of the losses
caused by the collision of the trains. The title upon which the action
for reparation is based cannot be confused with the civil
responsibilities born of a crime, because there exists in the latter,
whatever each nature, a culpa surrounded with aggravating aspects
which give rise to penal measures that are more or less severe. The
injury caused by a felony or misdemeanor upon civil rights requires
restitutions, reparations, or indemnifications which, like the penalty itself, affect public order; for this reason, they are ordinarily
entrusted to the office of the prosecuting attorney; and it is clear
that if by this means the losses and damages are repaired, the
injured party no longer desires to seek another relief; but this
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coincidence of effects does not eliminate the peculiar nature of civil

actions to ask for indemnity.
"Such civil actions in the present case (without referring to
contractual, faults which are not pertinent and belong to another
scope) are derived, according to article 1902 of the Civil Code, from
every act or omission causing losses and damages in which culpa or
negligence intervenes. It is unimportant that such actions are every
day filed before the civil courts without the criminal courts
interfering therewith. Articles 18 to 21 and 121 to 128 of the Penal
Code, bearing in mind the spirit and the social and political
purposes of that Code, develop and regulate the matter of civil
responsibilities arising from a crime, separately from the regime
under common law, of culpa which is known as aquiliana, in
accordance with legislative precedent of the Corpus Juris. It would
be unwarranted to make a detailed comparison between the former
provisions and that regarding the obligation to indemnify on
account of civil culpa; but it is pertinent and necessary to point out
to one of such differences.
"Articles 20 and 21 of the Penal Code, after distributing in their
own way the civil responsibilities among those who, for different
reasons, are guilty of felony or misdemeanor, make such civil
responsibilities applicable to enterprises and establishments for
which the guilty parties render service, but with subsidary
character, that is to say, according to the wording of the Penal Code,
in default of those who are criminally responsible. In this regard,
the Civil Code does not coincide because article 1903 says: 'The
obligation imposed by the next preceding article is demandable, not
only for personal acts and omissions, but also for those of persons
for whom another is responsible.' Among the persons enumerated
are the subordinates and employees of establishments or
enterprises, either for acts during their service or on the occasion of
their functions. It is for this reason that it happens, and it is so
observed in judicial decisions, that the companies or enterprises,
after taking part in the criminal cases because of their subsidiary
civil responsibility by reason of the crime, are sued and sentenced
directly and separately with regard to the obligation, before the civil
courts.
"Seeing that the title of this obligation is different, and the
separation between punitive justice and the civil, courts being a
true postulate of our judicial system, so that they have different
fundamental norms in different codes, as well as different modes of
procedure, and inasmuch as the Compania del Ferrocarril
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Cantabrico has abstained from taking part in the criminal case and
has reserved the right to exercise its actions, it seems undeniable
that the action for indemnification for the losses and damages
caused to it by the collision was not sub judice before the Tribunal
del Jurado, nor was it the subject of a sentence, but it remained
intact when the decision of March 21 was rendered. Even if the
verdict had not been that of acquittal, it has already been shown
that such action had been legitimately reserved till after the
criminal prosecu613
VOL. 73, JULY 8, 1942
613

tion; but because of the declaration of the non-existence of the
felony and the non-existence of the responsibility arising from the
crime, which was the sole subject matter upon which the Tribunal
del Jurado had jurisdiction, there is greater reason for the civil
obligation ex lege, and it becomes clearer that the action for its
enforcement remain intact and is not res judicata."
Laurent, a jurist who has written a monumental work

on the French Civil Code, on which the Spanish Civil Code
is largely based and whose provisions on cuasi-delito or
culpa extra-contractual are similar to those of the Spanish
Civil Code, says, referring to article 1384 of the French
Civil Code which corresponds to article 1903, Spanish Civil
Code:
"The action can be brought directly against the person
responsible (for another), without including the author of the act.
The action against the principal is accessory in the sense that it
implies the existence of a prejudicial act committed by the
employee, but it is not subsidary in the sense that it can not be
instituted till after the judgment against the author of the act or at
least, that it is subsidary to the principal action; the action for
responsibility (of the employer) is in itself a principal action."
(Laurent, Principles of French Civil Law, Spanish translation, Vol.
20, pp. 734-735.)
Amandi, in his "Cuestionario del Codigo Civil

Reformado" (Vol. 4, pp. 429, 430), declares that the
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responsibility of the employer is principal and not

subsidary. He writes:
"Cuestin 1.La responsabilidad declarada en el artculo 1903
por las acciones u omisiones de aquellas personas por las que se
debe responder, es subsidiaria? es principal? Para contestar a esta
pregunta es necesario saber, en primer lugar, en que' se funda el
precepto legal. Es que realmente se impone una responsabilidad por
una falta ajena? As parece a primera vista; pero semejante
afirmacin seria contraria a la justicia y a la mxima universal,
segn la que las faltas son personales, y cada uno responde de
aquellas que le son imputables. La responsabilidad de que tratamos
se impone con ocasin de un delito o culpa, pero no por causa de
ellos, sino por causa del cuasi delito, esto es, de la imprudencia o de
la negligencia del padre, del tutor, del dueo o director del
establecimiento, del maestro, etc. Cuando cualquiera de las
personas que enumera el artculo citado (menores de edad, incapacitados, dependientes, aprendices) causan un dao, la ley
presume que el padre, el tutor, el maestro, etc., han cometido una
falta de negligencia para prevenir o evitar el dao. Esta falta es la
que la ley castiga. No hay, pues, responsabilidad por un hecho ajeno,
sino en la apariencia; en realidad la responsabilidad se exige por un
hecho propio. La idea de que esa responsabilidad sea subsidaria es,
por lo tanto, completamente inadmisible."
"Question No. 1.Is the responsibility declared in article 1903
for the acts or omissions of those persons for whom one is
responsible, subsidary or principal? In order to answer this
question it is necessary to know, in the first place, on what the legal
provision is based. Is it true that there is a responsibility for the
fault of another person? It seems so at first sight; but such assertion
would be contrary to justice and to the universal maxim that all
faults are personal, and that everyone is liable for those faults that
can be imputed to him. The responsibility in question is imposed on
the occasion of a crime or fault, but not because of the same, but
because of the cuasi-delito, that is to say, the imprudence or
negligence of the father, guardan, proprietor or manager of the
establishment, of the teacher, etc. Whenever anyone of the persons
enumerated in the article referred to (minors, incapacitated
persons, employees, apprentices) causes any damage, the law
presumes that the father, guardan, teacher, etc. have committed an
act of negligence in not preventing or avoiding the damage. It is this
fault that is condemned by the law. It is, therefore, only apparent
that there is a responsibility for the act of another; in reality the
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responsibility exacted is for one's own act. The idea that such
responsibility is subsidary is, therefore, completely inadmissible."
Oyuelos, in his "Digesto: Principios, Doctrina y

Jurisprudencia, Referentes al Cdigo Civil Espaol," says
in Vol. VII, p. 743:
"Es decir, no se responde de hechos ajenos, porque se responde
slo de su propia culpa, doctrina del artculo 1902; ms por
excepcin, se responde de la ajena respecto de aquellas personas con
las que meda algn nexo o vinculo, que motiva o razona la
responsabilidad. Esta responsabilidad, es directa o es subsidiaria?
En el orden penal, el Cdigo de esta clase distingue entre menores e
incapacitados y los dems, declarando directa la primera (artculo
19) y subsidiaria la segunda (articulos 20 y 21); pero en el orden
civil, en el caso del artculo 1903, ha de entenderse directa, pot/el
tenor del artculo que impone la responsabilidad precisamente 'por
los actos de aquellas personas de quienes se deba responder.'"
"That is to say, one is not responsible for the acts of others,
because one is liable only for his own faults, this being the doctrine
of article 1902; but, by exception, one is liable for the acts of those
persons with whom there is a bond or tie which gives rise to the
responsibility. Is this responsibility direct or subsidiary? In the
order of the penal law, the Penal Code distinguishes between
minors and incapacitated persons on the one hand, and other
persons on the other, declaring that the responsibility for the former
is direct (article 19), and for the latter, subsidiary (articles 20 and
21); but in the scheme of the civil law, in the case of article 1903, the
responsibility should be understood as direct, according to the tenor
of that article, for precisely it imposes responsibility for the acts of
614
614

those persons for whom one should be responsible.'"
Coming now to the sentences of the Supreme Tribunal of

Spain, that court has upheld the principles above set forth:
that a quasi-delict or culpa extra-contractual is a separate
and distinct legal institution, independent from the civil
responsibility arising from criminal liability, and that an
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employer is, under article 1903 of the Civil Code, primarily

and directly responsible for the negligent acts of his
employee.
One of the most important of those Spanish decisions is
that of October 21, 1910. In that case, Ramon Lafuente
died as the result of having been run over by a street car
owned by the "Compania Electrica Madrilena de Traccin."
The conductor was prosecuted in a criminal case but he
was acquitted. Thereupon, the widow filed a civil action
against the street car company, praying for damages in the
amount of 15,000 pesetas. The lower court awarded
damages; so the company appealed to the Supreme
Tribunal, alleging violation of articles 1902 and 1903 of the
Civil Code because by final judgment the non-existence of
fault or negligence had been declared. The Supreme Court
of Spain dismissed the appeal, saying:
"Considerando que el primer motivo del recurso se funda en el
equivocado supuesto de que el Tribunal a quo, al condonar a la
Compaa Elctrica Hadrilea al pago del dao causado con la
muerte de Ramn Lafuente Izquierdo, desconoce el valor y efectos
jurdicos de la sentencia absolutoria dictada en la causa criminal
que se sigui por el mismo hecho, cuando es lo cierto que de este
han conocido las dos jurisdicciones bajo diferentes aspectos, y cmo
la de lo criminal declar6 dentro de los limiten de su competencia
que el hecho de que se trata no era constitutivo de delito por no
haber mediado descuido o negligencia graves, lo que no excluye,
siendo este el nico fundamento del fallo absolutorio, el concurso de
la culpa o negligencia no calificadas, fuente de obligaciones civiles
Segn el artculo 1902 del Cdigo Civil, y que alcanzan, segn el
1903, entre otras personas, a los Directores de establecimientos o
empresas por los daos causados por sus dependientes en
determinadas condiciones, es manifiesto que la de lo civil, al conocer
del mismo hecho bajo este ultimo aspecto y al condenar a la
Compaa recurrente a la indemnizacin del dao causado por uno
de sus empleados, lejos de infringir los mencionados textos, en
relacin con el artculo 116 de la Ley de Enjuiciamiento Criminal, se
ha atenido estrictamente a ellos, sin invadir atribuciones ajenas a
su jurisdiccin propia, m contrariar en lo mas mnimo el fallo
recado en la causa."
"Considering that the first ground of the appeal is based on the
mistaken supposition that the trial court, in sentencing the
Compania Madrilena to the payment of the damage caused by the
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death of Ramon Lafuente Izquierdo, disregards the value and

juridical effects of the sentence of acquittal rendered in the criminal
case instituted on account of the same act, when it is a fact that the
two jurisdictions had taken cognizance of the same act in its
different aspects, and as the criminal jurisdiction declared within
the limits of its authority that the act in question did not constitute
a felony because there was no grave carelessness or negligence, and
this being the only basis of acquittal, it does not exclude the coexistence of fault or negligence which is not qualified, and is a
source of civil obligations according to article 1902 of the Civil Code,
affecting, in accordance with article 1903, among other persons, the
managers of establishments or enterprises by reason of the
damages caused by employees under certain conditions, it is
manifest that the civil jurisdiction in taking cognizance of the same
act in this latter aspect and in ordering the company, appellant
herein, to pay an indemnity .for the damage caused by one of its
employees, far from violating said legal provisions, in relation with
article 116 of the Law of Criminal Procedure, strictly followed the
same, without invading attributes which are beyond its own
jurisdiction, and without in any way contradicting the decision in
that cause." (Italics supplied.)
It will be noted, as to the case just cited:

First.That the conductor was not sued in a civil case, either
separately or with the street car company. This is precisely what
happens in the present case: the driver, Fontanilla, has not been
sued in a civil action, either alone or with his employer.
Second.That the conductor had been acquitted of grave
criminal negligence, but the Supreme Tribunal of Spain said that
this did not exclude the co-existence of fault or negligence, which is
not qualified, on the part of the conductor, under article 1902 of the
Civil Code. In the present case, the taxi driver was found guilty of
criminal negligence, so that if he had even sued for his civil
responsibility arising from the crime, he would have been held
primarily liable for civil damages, and Barredo would have been
held subsidarily liable for the same. But the plaintiffs are directly
suing Barredo, "on his primary responsibility because of his own
presumed negligencewhich he did not overcomeunder article
1903. Thus, there were two liabilities of Barredo: first, the subsidary one because of the civil liability of the taxi driver arising
from the latter's criminal negligence; and, second, Barredo's primary liability as an employer under article 1903. The plaintiffs
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were free to choose which course to take, and they preferred the
615
VOL. 73, JULY 8, 1942
615

second remedy. In so doing, they were acting within their rights. It
might be observed in passing, that the plaintiffs chose the more
expeditious and effective method of relief, because Fontanilla was
either in prison, or had just been released, and besides, he was
probably without property which might be seized in enforcing any
judgment against him for damages.
Third.That inasmuch as in the above sentence of October 21,
1910, the employer was held liable civilly, notwithstanding the
acquittal of the employee (the conductor) in a previous criminal
case, with greater reason should Barredo, the employer in the case
at bar, be held liable for damages in a civil suit filed against him
because his taxi driver had been convicted. The degree of negligence
of the conductor in the Spanish case cited was less than that of the
taxi driver, Fontanilla, because the former was acquitted in the
previous criminal case while the latter was found guilty of criminal
negligence and was sentenced to an indeterminate sentence of one
year and one day to two years of prisin correctional.
(See also Sentence of February 19, 1902, which is similar to the
one above quoted.)
In the Sentence of the Supreme Court of Spain, dated

February 14, 1919, an action was brought against a
railroad company for damages because the station agent,
employed by the company, had unjustly and fraudulently,
refused to deliver certain articles consigned to the plaintiff.
The Supreme Court of Spain held that this action was
properly under article 1902 of the Civil Code, the court
saying:
"Considerando que la sentencia discutida reconoce, en virtud de
los hechos que consigna con relacin a las pruebas del pleito: l., que
las expediciones facturadas por la compaa ferroviaria a la
consignacin del actor de las vasijas vacas que en su demanda
relacionan tenan cmo fin el que este las devolviera a sus
remitentes con vinos y alcoholes; 2., que llegadas a su destino tales
mercancas no se quisieron entregar a dicho consignatario por el
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jefe de la estacin sin motivo justificado y con intencin dolosa, y

3.a, que la falta de entrega de estas expediciones al tiempo de
reclamarlas el demandante le originaron danos y perjuicios en
cantidad de bastante importancia cmo expendedor al por mayor
que era de vinos y alcoholes por las ganancias que dejo de obtener al
verse privado de servir los pedidos que se le haban hecho por los
remitentes en loa envases:
"Considerando que sobre esta base hay necesidad de estimar los
cuatro motivos que integran este recurso, porque la demanda inicial
del pleito a que se contrae no contiene accin que nazca del
incumplimiento del contrato de transporte, toda vez que no se funda
en el retraso de la llegada de las mercancas ni de ningn otro
vinculo contractual entre las partes contendientes, careciendo, por
tanto, de aplicacin el artculo 371 del Cdigo de Comercio, en que
principalmente descansa el fallo recurrido, sino que se limita a
pedir la reparacin de los danos y perjuicios producidos en el
patrimonio del actor por la injustincada y dolosa negativa del
porteador a la entrega de las mercancas a su nombre consignadas,
segn lo reconoce la sentencia, y cuya responsabilidad esta
claramente sancionada en el artculo 1902 del Cdigo Civil, que
obliga por el siguiente a la Compaa demandada cmo ligada con el
causante de aquellos por relaciones de carcter econmico y de
jerarqua administrativa."
"Considering that the sentence, in question recognizes, in virtue
of the facts which it declares, in relation to the evidence in the case:
(1) that the invoice issued by the railroad company in favor of the
plaintiff contemplated that the empty receptacles referred to in the
complaint should be returned to the consignors with wines and
liquors; (2) that when the said merchandise reached their destination, their delivery to the consignee was refused by the station
agent without justification and with fraudulent intent, and (3) that
the lack of delivery of these goods when they were demanded by the
plaintiff caused him losses and damages of considerable importance,
as he was a wholesale vendor of wines and liquors and he failed to
realize the profits when he was unable to fill the orders sent to him
by the consignors of the receptacles:
"Considering that upon this basis there is need of upholding the
four assignments of error, as the original complaint did not contain
any cause of action arising from non-fulfilment of a contract of
transportation, because the action was not based on the delay of the
goods nor on any contractual relation between the parties litigant
and, therefore, article 371 of the Code of Commerce, on which the
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decision appealed from is based, is not applicable; but it limits itself

to asking for reparation for losses and damages produced on the
patrimony of the plaintiff tm account of the unjustified and fraudulent refusal of the carrier to deliver the goods consigned to the
plaintiff as stated by the sentence, and the carrier's responsibility is
clearly laid down in article 1902 of the Civil Code which binds, in
virtue of the next article, the defendant company, because the latter
is connected with the person who caused the damage by relations of
economic character and by administrative hierarchy." (Italics
supplied.)
The above case is pertinent because it shows that the

same act may come under both the Penal Code and the
Civil Code. In that case, the action of the agent.was
unjustified and fraudulent and therefore could have been
the subject of a criminal action. And yet, it was held to be
also a proper subject of a civil action under article 1902 of
the Civil Code. It is also to be
616
616

noted that it was the employer and not the employee who
was being sued.
Let us now examine the cases previously decided by this
Court.
In the leading case of Rakes vs. Atlantic Gulf and Pacific
Co. (7 Phil., 359, 362-365 [year 1907]), the trial court
awarded damages to the plaintiff, a laborer of the defendant, because the latter had negligently failed to repair
a tramway, in consequence of which the rails slid off while
iron was being transported, and caught the plaintiff whose
leg was broken. This Court held: "It is contended by the
defendant, as its first defense to the action that the
necessary conclusion from these collated laws is that the
remedy for injuries through negligence lies only in a
criminal action in which the official criminally responsible
must be made primarily liable and his employer held only
subsidarily to him. According to this theory the plaintiff
should have procured the arrest of the representative of the
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company accountable for not repairing the track, and on his

prosecution a suitable fine should have been imposed,
payable primarily by him and secondarily by his employer.
"This reasoning misconceived the plan of the Spanish codes upon
this subject. Article 1093 of the Civil Code makes obligations
arising from faults or negligence not punished by the law, subject to
the provisions of Chapter II of Title XVI. Section 1902 of that
chapter reads:
" 'A person who by an act or omission causes damage to another
when there is fault or negligence shall be obliged to repair the
damage so done.
" 'SEC. 1903.The obligation imposed by the preceding article is
demandable, not only for personal acts and omissions, but also for
those of the persons for whom they should be responsible.
"'The father, and on his death or incapacity, the mother, is. liable
for the damages caused by the minors who live with them.
"'Owners or directors of an establishment or enterprise are
equally liable for the damages caused by their employees in the
service of the branches in which the latter may be employed or in
the performance of their duties.
********
"'The liability referred to in this article shall cease when the
persons mentioned therein prove that they employed all the
diligence of a good father of a family to avoid the damage.'"
"As an answer to the argument urged in this particular action it
may be sufficient to point out that nowhere in our general statutes
is the employer penalized for failure to provide or maintain safe
appliances for his workmen. His obligation therefore is one 'not
punished by the laws' and falls under civil rather than criminal
jurisprudence. But the answer may be a broader one. We should be
reluctant, under any conditions, to adopt a forced construction of
these scientific codes, such as is proposed by the defendant, that
would rob some of these articles of effect, would shut out litigants
against their will from the civil courts, would make the assertion of
their rights dependent upon the selection for prosecution of the
proper criminal offender, and render recovery doubtful by reason of
the strict rules of proof prevailing in criminal actions. Even if these
articles had always stood alone, such a construction would be
unnecessary, but clear light is thrown upon their meaning by the
provisions of the Law of Criminal Procedure of Spain (Ley de
Enjuiciamiento Criminal), which, though never in actual force in
these Islands, was formerly given a suppletory or explanatory
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effect. Under article 111 of this law, both classes of action, civil and
criminal, might be prosecuted jointly or separately, but while the
penal action was pending the civil was suspended. According to
article 112, the penal action once started, the civil remedy should be
sought therewith, unless it had been waived by the party injured or
been expressly reserved by him for civil proceedings for the future.
If the civil action alone was prosecuted, arising out of a crime that
could be enforced only on private complaint, the penal action
thereunder should be extinguished. These provisions are in
harmony with those of articles 23 and 133 of our Penal Code on the
same subject.
"An examination of this topic might be carried much further, but
the citation of these articles suffices to show that.the civil liability
was not intended to be merged in the criminal nor even to be
suspended thereby, except as expressly provided in the law. Where
an individual is civilly liable for a negligent act or omission, it is not
required that the injured party should seek out a third person
criminally liable whose prosecution must be a condition precedent
to the enforcement of the civil right.
"Under article 20 of the Penal Code the responsibility of an
employer may be regarded as subsidary in respect of criminal
actions against his employees only while they are in process of
prosecution, or in so far as they determine the existence of the
criminal act from which liability arises, and his obligation under
the civil law and its enforcement in the civil courts is not barred
thereby unless by the election of the injured person. Inasmuch as no
criminal proceeding had been instituted, growing out of the accident
in question, the provisions of the Penal Code can not affect this
action. This construction renders it unnecessary to finally determine here whether this subsidary civil liability in penal actions
has survived the laws that fully regulated it or has been abrogated
by the American civil and criminal procedure now in force in the
Philippines.
"The difficulty in construing the articles of the code above cited
in this case appears from the briefs before us to have arisen from
the interpretation of the words of article 1093, 'fault or negligence
617
VOL. 73, JULY 8, 1942
617
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not punished by law, as applied to the comprehensive definition of

offenses in articles 568 and 590 of the Penal Code. It has been
shown that the liability of an employer arising out of his relation to
his employee who is the offender is not to be regarded as derived
from negligence punished by the law, within the meaning of articles
1902 and 1093. More than this, however, it cannot be said to fall
within the class of acts unpunished by the law, the consequences of
which are regulated by articles 1902 and 1903 of the Civil Code.
The acts to which these articles 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 articles 1101, 1103, and 1104 of the same
code. A typical application of this distinction may be found in the
consequences of a railway accident due to defective machinery
supplied by the employer. His liability to his employee would arise
out of the contract of employment, that to the passengers out of the
contract for passage, while that to the injured bystander would
originate in the negligent act itself."
In Manzanares vs. Moreta, 38 Phil., 821 (year 1918), the

mother of the 8 or 9-year-old child Salvador Bona brought a
civil action against Moreta to recover damages resulting
from the death of the child, who had been run.over by an
automobile driven and managed by the defendant. The trial
court rendered judgment requiring the defendant to pay
the plaintiff the sum of P1,000 as indemnity. This Court in
affirming the judgment, said in part:
"If it were true that the defendant, in coming from the southern
part of Solana Street, had to stop his auto before crossing Real
Street, because he had met vehicles which were going along the
latter street or were coming from the opposite direction along
Solana Street, it is to be believed that, when he again started to run
his auto across said Real Street and to continue its way along Solana Street northward, he should have adjusted the speed of the
auto which he was operating until he had fully crossed Real Street
and had completely reached a clear way on Solana Street. But, as
the child was run over by the auto precisely at the entrance of
Solana Street, this accident could not have occurred if the auto had
been running at a slow speed, aside from the fact that the
defendant, at the moment of crossing Real Street and entering
Solana Street, in a northward direction, could have seen the child in
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the act of crossing the latter street from the sidewalk on the right to
that on the left, and if the accident had occurred in such a way that
after the automobile had run over the body of the child, and the
child's body had already been stretched out on the ground, the
automobile still moved along a distance of about 2 meters, this
circumstance shows the fact that the automobile entered Solana
Street from Real Street, at a high speed without the defendant
having blown the horn. If these precautions had been taken by the
defendant, the deplorable accident which caused the death of the
child would not have occurred."
It will be noticed that the defendant in the above case

could have been prosecuted in a criminal case because his
negligence causing the death of the child was punishable
by the Penal Code. Here is therefore a clear instance of the
same act of negligence being a proper subject-matter either
of a criminal action with its consequent civil liability
arising from a crime or of an entirely separate and
independent civil action for fault or negligence under
article 1902 of the Civil Code. Thus, in this jurisdiction, the
separate individuality of a cuasi-delito or culpa aquiliana
under the Civil Code has been fully and clearly recognized,
even with regard to a negligent act for which the
wrongdoer could have been prosecuted and convicted in a
criminal case and for which, after such a conviction, he
could have been sued for this civil liability arising from his
crime.
Years later (in 1930) this Court had another occasion to
apply the same doctrine. In Bernal and Enverso vs. House
and Tacloban Electric & Ice Plant, Ltd., 54 Phil., 327, the
parents of the five-year-old child, Purificacion Bernal,
brought a civil action to recover damages for the child's
death as a result of burns caused by the fault and negligence of the defendants. On the evening of April 10, 1925,
the Good Friday procession was held in Tacloban, Leyte.
Fortunata Enverso with her daughter Purificacion Bernal
had come from another municipality to attend the same.
After the procession the mother and the daughter with two
others were passing along Gran Capitan Street in front of
the offices of the Tacloban Electric & Ice Plant, Ltd., owned
by defendant J. V. House, when an automobile appeared
from the opposite direction. The little girl, who was slightly
ahead of the rest, was so frightened by the automobile that
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she turned to run, but unfortunately she fell into the street
gutter where hot water from the electric plant was flowing.
The child died that same night from the burns. The trial
court dismissed the action because of the contributory
negligence of the plaintiffs. But this Court held, on appeal,
that there was no contributory negligence, and allowed the
parents P1,000 in damages from J. V. House who at the
time of the tragic occurrence was the holder of the
franchise for the electric plant. This Court said in part:
618
618

"Although the trial judge made the findings of fact hereinbefore

outlined, he nevertheless was led to order the dismissal of the
action because of the contributory negligence of the plaintiffs. It is
from this point that a majority of the court depart from the stand
taken by the trial judge. The mother and her child had a perfect
right to be on the principal street of Tacloban, Leyte, on the evening
when the religious procession was held. There was nothing
abnormal in allowing the child to run along a few paces in advance
of the mother. No one could foresee the coincidence of an automobile
appearing and of a frightened child running and falling into a ditch
filled with hot water. The doctrine announced in the much debated
case of Rakes vs. Atlantic Gulf and Pacific Co. ([1907], 7 Phil., 359),
still rule. Article 1902 of the Civil Code must again be enforced. The
contributory negligence of the child and her mother, if any, does not
operate as a bar to recovery, but in its strictest sense could only
result in reduction of the damages."
It is most significant that in the case just cited, this

Court specifically applied article 1902 of the Civil Code. It
is thus that although J. V. House could have been criminally prosecuted for reckless or simple negligence and not
only punished but also made civilly liable because of his
criminal negligence, nevertheless this Court awarded
damages in an independent civil action for fault or
negligence under article 1902 of the Civil Code.
In Bahia vs. Litonjua and Leynes (30 Phil., 624 [year
1915]), the action was for damages for the death of the
Page 27 of 36
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plaintiff's daughter alleged to have been caused by the

negligence of the servant in driving an automobile over the
child. It appeared that the cause of the mishap was a defect
in the steering gear. The defendant Leynes had rented the
automobile from the International Garage of Manila, to be
used by him in carrying passengers during the fiesta of
Tuy, Batangas. Leynes was ordered by the lower court to
pay P1,000 as damages to the plaintiff. On appeal this
Court reversed the judgment as to Leynes on the ground
that he had shown that he exercised the care of a good
father of a family, thus overcoming the presumption of
negligence under article 1903. This Court said:
"As to selection, the defendant has clearly shown that he
exercised the care and diligence of a good father of a family. He
obtained the machine from a reputable garage and it was, so far as
appeared, in good condition. The workmen were likewise selected
from a standard garage, were duly licensed by the Government in
their particular calling, and apparently thoroughly competent. The
machine had been used but a few hours when the accident occurred
and it is clear from the evidence that the defendant had no notice,
either actual or constructive, of the defective condition of the
steering gear."
The legal aspect of the case was discussed by this Court

thus:
"Article 1903 of the Civil Code not only establishes liability in
eases of negligence, but also provides when the liability shall cease.
It says:
"'The liability referred to in this article shall cease when the
persons mentioned therein prove that they employed all the
diligence of a good father of a family to avoid the damage."'
"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 the 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
Page 28 of 36
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relieved from liability.

"This theory bases the responsibility of the master ultimately on
his own negligence and not on that of his servant."
The doctrine of the case just cited was followed by this

Court in Cerf vs. Medel (33 Phil., 37 [year 1915]). In the
latter case, the complaint alleged that the defendant's
servant had so negligently driven an automobile, which
was operated by defendant as a public vehicle, that said
automobile struck and damaged the plaintiff's motorcycle.
This Court, applying article 1903 and following the rule in
Bahia vs. Litonjua and Leynes, said in part (p. 41) that:
"The master is liable for the negligent acts of his servant where
he is the owner or director of a business or enterprise and the
negligent acts are committed while the servant is engaged in his
master's employment as such owner."
Another case which followed the decision in Bahia vs.

Litonjua and Leynes was Cuison vs. Norton & Harrison
Co., 55 Phil., 18 (year 1930). The latter case was an action
for damages brought by Cuison for the death of his sevenyear-old son Moises. The little boy was on his way to school
with his sister Marciana. Some large pieces of lumber fell
from a truck and pinned the boy underneath, instantly
killing him. Two youths, Telesforo Binoya and Francisco
Bautista, who were working for Ora, an employee of
defendant Norton & Harrison Co., pleaded guilty to the
crime of homicide
619
VOL. 73, JULY 8, 1942
619

through reckless negligence and were sentenced
accordingly. This Court, applying articles 1902 and 1903,
held:
"The basis of civil law liability is not respondent superior but the
relationship of pater familial. This theory bases the liability of the
master ultimately on his own negligence and not on that of his
servant." (Bahia vs. Litonjua and Leynes [1915], 30 Phil., 624;
Page 29 of 36
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Cangco vs. Manila Railroad Co. [1918], 38 Phil., 768.)
In Walter A. Smith & Co. vs. Cadwallader Gibson

Lumber Co., 55 Phil., 517 (year 1930) the plaintiff brought
an action for damages for the demolition of its wharf, which
had been struck by the steamer Helen. C belonging to the
defendant. This Court held (p. 526):
"The evidence shows that Captain Lasa at the time the plaintiff's
wharf collapsed was a duly licensed captain, authorized to navigate
and direct a vessel of any tonnage, and that the appellee contracted
his services because of his reputation as a captain, according to F.
C. Cadwallader. This being so, we are of the opinion that the
presumption of liability against the defendant has been overcome
by the exercise of the care and diligence of a good father of a family
in selecting Captain Lasa, in accordance with the doctrines laid
down by this court in the eases cited above, and the defendant is
therefore absolved from all liability."
It is, therefore, seen that the defendant's theory about

his secondary liability is negatived by the six cases above
set forth. He is, on the authority of these cases, primarily
and directly responsible in damages under article 1903, in
relation to article 1902, of the Civil Code.
Let us now take up the Philippine decisions relied upon
by the defendant. We study first, City of Manila vs. Manila
Electric Co., 52 Phil., 586 (year 1928). A collision between a
truck of the City of Manila and a street car of the Manila
Electric Co. took place on June 8, 1925. The truck was
damaged in the amount of P1,788.27. Sixto Eustaquio, the
motorman, was prosecuted for the crime of damage to
property and slight injuries through reckless imprudence.
He was found guilty and sentenced to pay a fine of P900, to
indemnify the City of Manila for P1,788.27, with subsidary
imprisonment in case of insolvency. Unable to collect the
indemnity from Eustaquio, the City of Manila filed an
action against the Manila Electric Company to obtain
payment, claiming that the defendant was subsidarily
liable.' The main defense was that the defendant had
exercised the diligence of a good father of a family to
prevent the damage. The lower court rendered judgment in
favor of the plaintiff. This Court held, in part, that this
case was governed by the Penal Code, saying:
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"With this preliminary point out of the way, there is no escaping

the conclusion that the provisions of the Penal Code govern. The
Penal Code in easily understandable language authorizes the
determination of subsidary liability. The Civil Code negatives its
application by providing that civil obligations arising from crimes or
misdemeanors shall be governed by the provisions of the Penal
Code. The conviction of the motorman was a misdemeanor falling
under article 604 of the Penal Code. The act of the motorman was
not a wrongful or negligent act or omission not punishable by law.
Accordingly, the civil obligation connected up with the Penal Code
and not with article 1903 of the Civil Code. In other words, the
Penal Code affirms its jurisdiction while the Civil Code negatives
its jurisdiction. This is a case of criminal negligence out of which
civil liability arises and net a case of civil negligence."
*******
"Our deduction, therefore, is that the case relates to the Penal
Code and not to the Civil Code. Indeed, as pointed out by the trial
judge, any different ruling would permit the master to escape scotfree by simply alleging and proving that the master had exercised
all diligence in the selection and training of its servants to prevent
the damage. That would be a good defense to a strictly civil action,
but might or might not be to a civil action either as a part of or
predicated on conviction for a crime or misdemeanor. (By way of
parenthesis, it may be said further that the statements here made
are offered to meet the argument advanced during our deliberations
to the effect that article 1902 of the Civil Code should be
disregarded and codal articles 1093 and 1903 applied.)"
It is not clear how the above case could support the

defendant's proposition, because the Court of Appeals
based its decision in the present case on the defendant's
primary responsibility under article 1903 of the Civil Code
and not on his subsidary liability arising from Fontanilla's
criminal negligence. In other words, the case of City of
Manila vs. Manila Electric Co., supra, is predicated on an
entirely different theory, which is the subsidary liability of
an employer arising from a criminal act of his employee,
whereas the foundation of the decision of the Court of
Appeals in the present case is the employer's primary
liability under article 1903 of the Civil Code. We have
already seen that this is a proper and independent remedy.
Arambulo vs. Manila Electric Co. (55 Phil., 75), is
another case invoked by the defendant. A motorman in the
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employ of the Manila Electric Company had been convicted

of homicide by simple negligence and sentenced,
620
620

among other things, to pay the heirs of the deceased the

sum of P1,000. An action was then brought to enforce the
subsidary liability of the defendant as employer under the
Penal Code. The defendant attempted to show that it had
exercised the diligence of a good father of a family in
selecting the motorman, and therefore claimed exemption
from civil liability. But this Court held:
"In view of the foregoing considerations, we are of opinion and so
hold, (1) that the exemption from civil liability established in article
1903 of the Civil Code for all who have acted with the diligence of a
good father of a family, is not applicable to the subsidary civil
liability provided in article 20 of the Penal Code."
The above case is also extraneous to the theory of the

defendant in the instant case, because the action there had
for its purpose the enforcement of the defendant's
subsidary liability under the Penal Code, while in the case
at bar, the plaintiff's cause of action is based on the
defendant's primary and direct responsibility under article
1903 of the Civil Code. In fact, the above case destroys the
defendant's contention because that decision illustrates the
principle that the employer's primary responsibility under
article 1903 of the Civil Code is different in character from
his subsidary liability under the Penal Code.
In trying to apply the two cases just referred to, counsel
for the defendant has failed to recognize the distinction
between civil liability arising from a crime, which is
governed by the Penal Code, and the responsibility for
cuasi-delito or culpa aquiliana under the Civil Code, and
has likewise failed to give due importance to the latter type
of civil action.
The defendant-petitioner also cites Francisco vs.
Onrubia (46 Phil., 327). That case need not be set forth.
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Suffice it to say that the question involved was also civil

liability arising from a crime. Hence, it is as inapplicable as
the two cases above discussed.
The foregoing authorities clearly demonstrate the
separate individuality of cuasi-delitos or culpa aquiliana
under the Civil Code. Specifically they show that there is a
distinction between civil liability arising from criminal
negligence (governed by the Penal Code) and responsibility
for fault or negligence under articles 1902 to 1910 of the
Civil Code, and that the same negligent act may produce
either a civil liability arising from a crime under the Penal
Code, or a separate responsibility for fault or negligence
under articles 1902 to 1910 of the Civil Code. Still more
concretely, the authorities above cited render it inescapable
to conclude that the employerin this case the defendantpetitioneris primarily and directly liable under article
1903 of the Civil Code.
The legal provisions, authors, and cases already invoked
should ordinarily be sufficient to dispose of this case. But
inasmuch as we are announcing doctrines that have been
little understood in the past, it might not be inappropriate
to indicate their foundations.
Firstly, the Revised Penal Code in article 365 punishes
not only reckless but also simple negligence. If we were to
hold that articles 1902 to 1910 of the Civil Code refer only
to fault or negligence not punished by law, according to the
literal import of article 1093 of the Civil Code, the legal
institution of culpa aquiliana would have very little scope
and application in actual life. Death or injury to persons
and damage to property through any degree of negligence
even the slightestwould have to be indemnified only
through the principle of civil liability arising from a crime.
In such a state of affairs, what sphere would remain for
cuasi-delito or culpa aquiliana? We are loath to impute to
the lawmaker any intention to bring about a situation so
absurd and anomalous. Nor are we, in the interpretation of
the laws, disposed to uphold the letter that killeth rather
than the spirit that giveth life. We will not use the literal
meaning of the law to smother and render almost lifeless a
principle of such ancient origin and such full-grown
development as culpa aquiliana or cuasi-delito, which is
conserved and made enduring in articles 1902 to 1910 of
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the Spanish Civil Code.

Secondly, to find the accused guilty in a criminal case,
proof of guilt beyond reasonable doubt is required, while in
a civil case, preponderance of evidence is sufficient to make
the defendant pay in damages. There are numerous cases
of criminal negligence which can not be shewn beyond
reasonable doubt, but can be proved by a preponderance of
evidence. In such cases, the defendant can and should be
made responsible in a civil action under articles 1902 to
1910 of the Civil Code. Otherwise, there would be many
instances of unvindicated civil wrongs. Ubi jus ibi
remedium.
Thirdly, to hold that there is only one way to make
defendant's liability effective, and that is, to sue the driver
and exhaust his (the latter's) property first, would be
tantamount to compelling the plaintiff to follow a devious
and cumbersome method of obtaining relief. True, there is
'such a remedy under our laws, but there is also a more
expeditious way, which is based on the
621
VOL. 73, JULY 8, 1942
621

primary and direct responsibility of the defendant under
article 1903 of the Civil Code. Our view of the law is more
likely to facilitate remedy for civil wrongs, because the
procedure indicated by the defendant is wasteful and
productive of delay, it being a matter of common knowledge
that professional drivers of taxis and similar public
conveyances usually do not have sufficient means with
which to pay damages. Why, then, should the plaintiff be
required in all cases to go through this roundabout,
unnecessary, and probably useless procedure? In
construing the laws, courts have endeavored to shorten and
facilitate the pathways of right and justice.
At this juncture, it should be said that the primary and
direct responsibility of employers and their presumed
negligence are principles calculated" to protect society.
Workmen and employees should be carefully chosen and
supervised in order to avoid injury to the public. It is the
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masters or employers who principally reap the profits

resulting from the services of these servants and
employees. It is but right that they should guarantee the
latter's careful conduct for the personnel and patrimonial
safety of''others. As Theilhard has said, "they should
reproach themselves, at least, some for their weakness,
others for their poor selection and all for their negligence."
And according to Manresa, "It is much more equitable and
just that such responsibility should fall upon the principal
or director who could have chosen a careful and prudent
employee, and not upon the injured person who could not
exercise such selection and who used such employee
because of his confidence in the principal or director." (Vol.
12, p. 622, 2nd Ed.) Many jurists also base this primary
responsibility of the employer on the principle of
representacin of the principal by the agent. Thus, Oyuelos
says in the work already cited (Vol. 7, p. 747) that before
third persons the employer and employee "vienen a ser
cmo una sola personalidad, por refundicin de la del
dependiente en la de quien le emplea y utiliza." ("become as
one personality by the merging of the person of the
employee in that of him who employs and utilizes him.") All
these observations acquire a peculiar force and significance
when it comes to motor accidents, and there is need of
stressing and accentuating the responsibility of owners of
motor vehicles.
Fourthly, because of the broad sweep of the provisions of
both the Penal Code and the Civil Code on this subject,
which has given rise to the overlapping or concurrence of
spheres already discussed, and for lack of understanding of
the character and efficacy of the action for culpa aquiliana,
there has grown up a common practice to seek damages
only by virtue of the civil responsibility arising from a
crime, forgetting that there is another remedy, which is by
invoking articles 1902-1910 of the Civil Code. Although
this habitual method is allowed by our laws, it has
nevertheless rendered practically useless and nugatory the
more expeditious and effective remedy based on culpa
aquiliana or culpa extracontractual. In the present case, we
are asked to help perpetuate this usual course. But we
believe it is high time we pointed out to the harm done by
such practice and to restore the principle of responsibility
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for fault or negligence under articles 1902 et seq. of the

Civil Code to its full rigor. It is high time we caused the
stream of quasi-delict or culpa aquiliana to flow on its own
natural channel, so tha.t its waters may no longer be
diverted into that 'of a crime under the Penal Code. This
will, it is believed, make for the better safeguarding of
private rights because it re-establishes an ancient and
additional remedy, and for the further reason that an independent civil action, not depending on the issues,
limitations and results of a criminal prosecution, and
entirely directed by the party wronged or his counsel, is
more likely to secure adequate and efficacious redress.
In view of the foregoing, the judgment of, the Court of
Appeals should be and is hereby affirmed, with costs
against the defendant-petitoner.
Yulo, C. J., Moran, Ozaeta, and Paras, J J., concur.
Judgment affirmed.
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Today is Friday, August 07, 2015
Republic of the Philippines

SUPREME COURT
Manila
EN BANC
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 Zuiga, 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
http://www.lawphil.net/judjuris/juri1918/oct1918/gr_l-12191_1918.html
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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
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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
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.
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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
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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.
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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
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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 Avancea, 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.
The Lawphil Project - Arellano Law Foundation
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Today is Friday, August 07, 2015
Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-12191
October 14, 1918
JOSE CANGCO, plaintiff-appellant,

vs.
MANILA RAILROAD CO., defendant-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 Zuiga, 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
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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.
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
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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
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.
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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
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been adduced in the trial court that the defendant had been negligent in the employment of the driver, or that he had
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
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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
We are of the opinion that the correct doctrine relating to this subject is that expressed in Thompson's work on
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
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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 Avancea, 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
Johnson, J., concur.
The Lawphil Project - Arellano Law Foundation
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[No. 12191. October 14, 1918.]

JOSE CANGCO, plaintiff and appellant, vs. MANILA
RAILROAD Co., defendant and appellee.
1. MASTER AND SERVANT; CONTRACT; NEGLIGENCE..
Failure to perform a contract cannot be excused upon the
ground that the breach was due to the negligence of a
servant of the obligor, and that the latter exercised due
diligence in the selection and control of the servant.
2. CONTRACTS; NEGLIGENCE; CULPA AQUILIANA;
CULPA CONTRACTUAL.The
distinction
between
negligence as the source of an obligation (culpa aquiliana)
and negligence in the performance of a contract (culpa
contractual) pointed out.
3. CARRIERS; PASSENGERS; NEGLIGENCE; ALIGHTING
FROM MOVING TRAIN.It is not negligence per se for a
traveler to alight from a slowly moving train.
APPEAL from a judgment of the Court of First Instance of

Manila. Del Rosario, J.
The facts are stated in the opinion of the Court.
FiSHER, J.:
At the time of the occurrence which gave rise to this
litigation the plaintiff, Jose Cangco, was in the employment
of the Manila Railroad Company in the capacity of clerk,
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Cangco vs. Manila Railroad Co.

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 was returning home by rail from his daily
labors; and as the train drew up to the station in San
Mateo the plaintiff arose from his seat in the second classcar 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 Zufiiga, 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
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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
shipment to the market. They were contained in numerous
tow sacks which had been piled on the platform in a row
one upon another. The testimony shows that this row of
sacks was so placed that there was a space of only about
two feet between the sacks of melons and the edge of the
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 Instanee 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 in 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
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VOL. 38, OCTOBER 14, 1918.
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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 from 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
the 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 extracontractual obligationsor to use the technical form of
expression, that article relates only to culpa aquiliana and
not to culpa contractual.
772
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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
(vol. 8, p. 30) 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.
"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 articles 1101,
1103 and 1104 of the same code." (Rakes vs. Atlantic, Gulf
and Pacific Co., 7 Phil. Rep., 359 at p. 365.)
This distinction is of the utmost importance. The
liabilitv 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 Endish Common Law, upon the principle of respondent
St-Tit were, the master would be liable in every case and
unconditionally-but upon the principle announced inLwl
1902 of the Civil Code, which imposes upon all Bersons
who by their fault or negligence, do injury to ano he , The
obUgation of making good the damage caused.
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gence 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, whether 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 actson 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 persons 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 yields 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 Rican Civil Code,
has held that these articles are applicable to cases of extracontractual culpa exclusively. (Carmona vs. Cuesta, 20
Porto Rico Reports, 215.)
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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 the 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 f ather of a f amily, 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 is 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
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VOL. 38, OCTOBER 14, 1918.
775

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 contract, 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 extracontractual or contractual. Extra-contractual obligation has
its source in the breach or omission of those mutual duties
which civilized society imposes upon its 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, gives 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 electand our Legislature has so elected
to limit such liability to cases in which the person upon
whom such an obligation is imposed is morally culpable or,
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on the contrary, for reasons of public policy, to extend

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776

that liability, without regard to the lack of moral

culpability, so as to include responsibility for the negligence
of those persons whose acts or omissions 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
extracontractual liabilitywith certain well-defined
exceptionsto 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 one's own acts, or 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 source 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 wilful fault or to negligence on the
part of the defendant, or of his ,servants or agents. Proof of
the contract and of its nonperf ormance is sufficient prima
facie to warrant a recovery.
"As a general rule * * * it is logical that in case of extracontractual 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
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contractual obligation, if the creditor shows that it exists

and that it has been broken, it is not necessary for him to
prove the negligence." (Manresa, vol. 8, p. 71 [1907 ed., p.
76].)
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VOL. 38, OCTOBER 14. 1918.
777
Cangco vs, Manila Railroad Co.

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 f act 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 persons
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 a watchmaker who contracts 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 of
omission or commission on the part of their servants, 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 the
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 Hability for the breach of its
Page 10 of 18
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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
778
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PHILIPPINE REPORTS ANNQTATED

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 decision 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
preexisting 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
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
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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."
779
VOL. 38, OCTOBER 14, 1918.
779

In the case of Chapman vs. Underwood (27 Phil. Rep., 374),
plaintiff sued the defendant to recover damages for
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 such 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 a 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 complained 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 the servants; and that in the particular case
the presumption of negligence had not been overcome.
It is evident, therefore, that in its decision in the
Yamada case, the court treated plaintiff's action as though
Page 12 of 18
8/8/15, 6:17 AM
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
780
780

Cangco vs. Manila, Railroad Co.
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 aquilina or culpa contractual. As Manresa points out
(vol. 8, pp. 29 and 69) whether negligence occurs as an
incident in the course of the performance of a contractual
undertaking or is itself the source of an extra-contractual
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 the defendant was liable for the damages negligently
caused by its servant 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
Page 13 of 18
8/8/15, 6:17 AM
directing the attention to the relative spheres of

contractual and extra-contractual obligations. The field of
noncontractual obligation is much more broader than that
of contractual obligation, comprising, as it does, the whole
extent of juridical human relations. These two fields,
figuratively speaking, concentric; that is to say, the mere
781
VOL. 38, OCTOBER 14, 1918.
781

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 a breach of the contract would have
constituted 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
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,
whereas if the accident was caused by 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.
Page 14 of 18
8/8/15, 6:17 AM
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
782
782

subscribe to this doctrine in its absolute form. We are of the

opinion that this proposition is too broadly stated and is at
variance with the experience of everyday 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 persons 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
We are of the opinion that the correct doctrine relating
to this subject is that expressed in Thompson's work on
"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, if we prefer to adopt the mode of exposition used by
this' court in Picart vs. Smith (37 Phil. Rep., 809), we may
Page 15 of 18
8/8/15, 6:17 AM
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
783
VOL. 38, OCTOBER 14, 1918.
783

plaintiff should have desisted from alighting; and his
failure so to desist was contributory negligence.
As the case now before us presents itself, the only fact
from which a conclusion can be drawn to the effect that the
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; f or if it were by any
possibility conceded that it had a right to pile these sacks
in the path of alighting passengers, the placing of them in
that position gave rise to the duty to light the premises
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
Page 16 of 18
8/8/15, 6:17 AM
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
784
784

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 actthat is to say, whether
the passenger acted prudently or recklesslythe 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 off 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,
Page 17 of 18
8/8/15, 6:17 AM
hospital services, and other incidental expenditures

connected with the treatment of his injuries.
The decision of the 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 Avancena, JJ.,
concur.
785
VOL. 38, OCTOBER 14, 1918.
785
Alpuerto vs. Perez Pastor and Roa.

MALCOLM, J., with whom concurs JOHNSON, 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, we
have the logical resultthe Manila Railroad Co. should be
Judgment reversed.
_______________
Page 18 of 18

I. Introduction, B. Distinctions - Culpa Aquiliana, Culpa Contractual, Culpa Criminal

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I. Introduction, B. Distinctions - Culpa Aquiliana, Culpa Contractual, Culpa Criminal

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SUPREME COURT REPORTS ANNOTATED VOLUME 332

G.R. No. 122039. May 31, 2000.

VICENTE CALALAS, petitioner, vs. COURT

Judgments; Res Judicata; The principle of res judicata does not

SUPREME COURT REPORTS ANNOTATED VOLUME 332

have been at fault or to have acted negligently unless they prove

VOL. 332, MAY 31, 2000

Calalas vs. Court of Appeals

Same; Same; Same; Same; Doctrine of Proximate Cause; The

SUPREME COURT REPORTS ANNOTATED VOLUME 332

SUPREME COURT REPORTS ANNOTATED

be foreseen, or which, though foreseen, was inevitable. This

SUPREME COURT REPORTS ANNOTATED VOLUME 332

in cases in which the mishap results in the death of a passenger, as

PETITION for review on certiorari of a decision of the

VOL. 332, MAY 31, 2000

Calalas vs. Court of Appeals

This is a petition for review on certiorari of the decision of

SUPREME COURT REPORTS ANNOTATED VOLUME 332

Per Justice Artemon D. Luna and concurred in by Justices Hector L.

Hofilena and B.A. Adefuin-dela Cruz.

SUPREME COURT REPORTS ANNOTATED

three months and would have to ambulate in crutches

SUPREME COURT REPORTS ANNOTATED VOLUME 332

The lower court rendered judgment against Salva as

Hence, this petition. Petitioner contends that the ruling in

VOL. 332, MAY 31, 2000

Calalas vs. Court of Appeals

SUPREME COURT REPORTS ANNOTATED VOLUME 332

assails the award of moral damages to Sunga on the

See B. BALDERRAMA, THE PHILIPPINE LAW ON TORTS AND

SUPREME COURT REPORTS ANNOTATED

1755 of the Code. This provision necessarily shifts to the

SUPREME COURT REPORTS ANNOTATED VOLUME 332

common carrier the burden of proof.

SUPREME COURT REPORTS ANNOTATED VOLUME 332

VOL. 332, MAY 31, 2000

Calalas vs. Court of Appeals

Second, it is undisputed that petitioners driver took in

The fact that Sunga was seated in an extension seat

SUPREME COURT REPORTS ANNOTATED VOLUME 332

amounted to an implied assumption of risk. It is akin to

SUPREME COURT REPORTS ANNOTATED

injuries to the many victims of the tragedies in our seas

SUPREME COURT REPORTS ANNOTATED VOLUME 332

not to further pursue Physical Education as her major subject,

CIVIL CODE, ART. 1174.

Vasquez v. Court of Appeals, 138 SCRA 553 (1985); Republic v. Luzon

VOL. 332, MAY 31, 2000

Calalas vs. Court of Appeals

As a general rule, moral damages are not recoverable in

SUPREME COURT REPORTS ANNOTATED VOLUME 332

dated March 31, 1995, and its resolution, dated September

Fores v. Miranda, 105 Phil. 236 (1959); Mercado v. Lira, 3 SCRA

Philippine Rabbit Bus Lines, Inc. v. Esguerra, 117 SCRA 741

SUPREME COURT REPORTS ANNOTATED

Judgment affirmed with modification.

SUPREME COURT REPORTS ANNOTATED VOLUME 332

negligence is the immediate and proximate cause of the

Copyright 2015 Central Book Supply, Inc. All rights reserved.

PHILIPPINE REPORTS ANNOTATED VOLUME 073

VOL. 73, JULY 8, 1942

Barredo vs. Garcia and Almario

[No. 48006.July 8, 1942]