Republic of the Philippines Court of Appeals Manila

Spouses Mario and Mariana Ravelo, Plaintiffs-Appellants, CA GR CV No. 456 RTC Civil Case No. 123 -versusFor: DAMAGES

White Rabbit Bus and Cardo Indiano, Defendants-Appellees.

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by counsel, most respectfully submit his

APPELLANTS BRIEF

I TABLE OF AUTHORITIES
1. Article 1174 Civil Code 2. Article 1755 3. Article 1756 4. dela Hoya vs Pakman 5. Bus vs Pito 6. People vs Santonia 7. Lamas vs Smith

SUBJECT INDEX

I Table of Authorities II Assignment of Errors

III Statement of the Facts and the Case IV Arguments V Relief

II ASSIGNMENT OF ERRORS

1) The trial court committed reversible error in finding that the accident was due to fortuitous event, thus, exempting the defendants-appellees to any liability. 2) The trial court committed reversible error in finding that defendants-appellees had observed that degree of care, precaution and vigilance which circumstances justly demand. 3) The Trial Court committed reversible error in denying the plaintiffs-appellants rights for damages.

III STATEMENT OF THE FACTS AND THE CASE

This is an appeal from the order of the Court a quo dismissing a complaint for damages filed by Spouses Mario Ravelo and Mariana Ravelo passengers of White Rabbit Bus against the said bus company and its driver Cardo Indiano, for Damages based Breach of Contract of Carriage. The evidentiary facts as established during the hearing of this case will show that: In the early morning of 30th of December 2010, plaintiff Mariana was among the passengers of White Rabbit Bus no. 789, bound for Naga City. Said bus was allegedly running very fast along the National Highway at Gumaca, Quezon, but it failed to exercise the necessary diligence in observing vigilance over the safety of its passengers and the goods being transported when said bus fell off the road into the ravine on the left side of the highway. (TSN, Jan.11,2011, p.10) Several passengers including the plaintiff sustained injuries and failed to reach their destination safely, thereby violating its contract of carriage with the passenger. (TSN, Jan.13,2011 p.11) That due to the injuries sustained by plaintiff, she incurred expenses for her medical treatment in the amount of Php30,000.00. She was unable to report for work for a period of 26 days at the rate of Php280.00 per day or in the total of Php7280.00. She likewise suffered serious anxiety, sleepless nights, mental anguish, severe apprehension and similar suffering which if given monetary value would entitle her to a moral damage of no less that Php45000.00. That several demands for reimbursement of expenses were made on defendants but the latter failed and refused to pay. Hence, in order to protect plaintiffs rights, she engaged the service of counsel and incurred attorneys fees in the amount pf Php15000.00 plus Php1000.00 for every appearance in court and the further sum of php2000.00 as litigation expense. ( Marianas affidavit p.15) In an order dated April 14, 2011, the Court a quo issued an order, the dispositive portion of which states:

WHEREFORE, judgment is hereby rendered absolving the defendant for any liability.

IV ARGUMENTS

On the first assignment of error: The trial court committed reversible error in finding that the accident was due to fortuitous event, thus, exempting the defendants-appellees to any liability. Under Article 1174 of the Civil Code: no person shall be responsible for those events which could be foreseen, or which, though foreseen, were inevitable. Defendant Indiano had testified that he was about 8 to 10 meters away when he first saw the rocks in the middle of the road and he was running at a speed of about 60 kilometers or miles per hour when he saw the rocks and thereafter applied the brakes but nevertheless, the bus skidded towards the left (TSN , January 15, 2011. p 9-11) From the foregoing it is clear that it was reckless of him to drive at such speed, when approaching the curve. Assuming, to be true, the allegation by Indiano that it was raining, such fact should have been cause enough for him to reduce his speed, Having been a driver for so many years he ought to know that the road surfaces are usually slippery when it rains. ( Oscar dela Hoya vs Manolo Pakman Gr.110090) In order that fortuitous event may exempt a person from liability, it is necessary that he be free from negligence. (BUS vs. Agapito Pito GR. 178290) The defendant cannot, therefore claimed that the accident was due to fortuitous event. On the second assignment of error: The trial court committed reversible error in finding that defendants-appellees had observed that degree of care, precaution and vigilance which circumstances justly demand. Carriers of passengers are required to exercise the highest degree of care, vigilance and precaution for the safety of those it undertakes to transport, and are liable for the slightest negligence. (People vs. Santol Santonia, GR 918767) Article 1755 provides: A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of every cautious persons, with a due regard for all the circumstances. Corollarily, under article 1756 of the Civil code, negligence or fault on the part of the carrier is presumed in case of death of or injury to passenger. This presumption, however, is rebuttable and the carrier may, avoid liability by proving either that it had observed extra ordinary diligence as required by law in the performance of its contractual obligation or that death or injury suffered by the passenger was due to fortuitous event. In Lamas vs Smith 46 Phil. 657 where the Supreme Court has held, thus: Where an automobile accident, causing injuries to a passenger was caused either by defects in the automobile or the negligence of the driver, the owner of the automobile was held liable for damages to the injured passenger. On the third assignment of error: The Trial Court committed reversible error in denying the plaintiffs-appellants rights for damages. The relationship established between white Rabbit bus and its driver Indiano is based on the principle of pater familias, in which the liability ultimately falls upon the employer for its

failure to present proof that it had exercised the diligence of a good father of a family in the selection and supervision of its employee. In fine, the said bus company has not demonstrated that it exercised the required diligence. Consequently, defendants-appellees is jointly and solidarily liable with the injuries sustained by plaintiff-appellant. Therefore, defendantsappellees is liable for damages.

V RELIEF

WHEREFORE, Plaintiffs- Appellants respectfully pray that the questioned decision, Annex A of the Trial Court be set aside and nullified and judgment be rendered ordering defendants appellants the following: 1) The sum of Php.15000.00 as actual damages. 2) Moral Damages in the sum of Php 45000.00. 3) Attorneys fees in the amount of Php25000.00. Plaintiffs-Applellants further pray for such other reliefs as may be just and equitable in the premises.

Naga City for Manila, August 10, 2012.

Nerizza Hipolito Counsel for the Plaintiffs-Appellants IBP NO: Roll No. PTR No. Address: Two Copies of this Brief along with Appendix A, furnished by personal service:

Name of Counsel Counsel for Defendants-Appellees Address: