Republic of the Philippines

13th Judicial Region

REGIONAL TRIAL COURT
Branch ___, Surigao City
SARAH E. LEDINO,
Plaintiff,
- versus -

CIVIL CASE No. _______

BACHELORETTE TRANSIT CO.

and JACKSON A. GUTIERREZ.
Defendants.
x-----------------x

ANSWER WITH SPECIAL AFFIRMATIVE DEFENSES

AND ALLEGATIONS, WITH MOTION FOR
PRELIMINARY HEARING ON AFFIRMATIVE DEFENSES
COME NOW DEFENDANTS BACHELORETTE TRANSIT
CO. and JACKSON A. GUTIERREZ [hereinafter, Jack],
[jointly, Defendants], through the undersigned counsel, for
their Answer and Special Affirmative Defenses to the
Complaint,1 which was received on 15 December 2016, and for
their Motion for Preliminary Hearing on Affirmative Defenses,
hereby admit, deny, move and allege as follows:
1.

Defendants ADMIT the allegations set forth in paragraphs 1, 2,

3, 4, 5, 6 and 7 of the complaint insofar as they relate to the
personal circumstances, legal capacity and addresses of the
parties;

2.

Defendants SPECIFICALLY DENY paragraphs 8 and 9 of the

complaint the truth being that set forth in SPECIAL
AFFIRMATIVE DEFENSES AND ALLEGATIONS;

3.

Defendants ADMIT IN PART paragraph 10 of the complaint

insofar as it relates to the fact that the bus swerved to the
right which caused the bus to hit a big tree, SUBJECT TO THE
QUALIFICATIONS set forth in the SPECIAL AFFIRMATIVE
DEFENSES AND ALLEGATIONS. As to the remainder of the
allegations
stated
in
this
paragraph,
Defendants
1On

4 November 2013, Defendant Spouses respectfully moved that this Honorable

Court grant them additional fifteen (15) days from 8 November 2013, or until 23
November 2013, within which to adequately consult with and engage an attorney, and
thusfile their answer.

Page 1 of 10

SPECIFICALLY DENY the same the truth being that set forth
in SPECIAL AFFIRMATIVE DEFENSES AND ALLEGATIONS;
4.

Defendants ADMIT IN PART paragraph 11 of the complaint

insofar as it relates to the fact that the Plaintiff, together with
her husband and other passengers were rushed to the nearest
hospital, SUBJECT TO THE QUALIFICATIONS set forth in the
SPECIAL AFFIRMATIVE DEFENSES AND ALLEGATIONS. As
to the remainder of the allegations stated in this paragraph,
Defendants SPECIFICALLY DENY the same the truth being
that set forth in SPECIAL AFFIRMATIVE DEFENSES AND
ALLEGATIONS;

5.

Defendants lack knowledge or information sufficient to form a

belief as to the truth of paragraph 12 of the complaint to
enable them to answer;

6.

Defendants SPECIFICALLY DENY paragraphs 13, 14 and 15 of

the complaint the truth being that set forth in SPECIAL
AFFIRMATIVE DEFENSES AND ALLEGATIONS;

SPECIAL AFFIRMATIVE DEFENSES

AND ALLEGATIONS
7.
Defendants set forth the following affirmative
defenses to the complaint.
In asserting these affirmative
defenses, Defendants do not assume the burden to establish
any fact or proposition where that burden is properly imposed
on Plaintiff. Likewise, Defendants incorporate by reference all
the foregoing allegations in so far as they are material and
relevant;
I.

Plaintiff boarded the bus

gratuitously and without
charge;
__________________________
8.
That while the bus was still at the station dispatching
for passengers, herein petitioner sarah ledino together with the
said late Frederick Ledino approached the dispatcher of the bus
and asked that they be allowed to ride the bus heading to
Butuan for free. The said late Frederick Ledino ..
9.
That per records in our dispatcher, Bus No. 16 with
plate number ABC 123 departed the bus garage at 8:00 AM, copy
of the Dispatch Record Book is attached as Annex 1;

Page 2 of 10

10.
follows:

Article 1758 of the New Civil Code provides as

When a passenger is carried gratuitously, a
stipulation limiting the common carriers liability for
negligence is valid, but not for willful acts or gross
negligence.

11. Here, the Plaintiff and her deceased husband validly

made an agreement with the dispatcher and Jack to entirely
eliminate the carriers liability for any negligence and boarded
the bus without charge.
12. In view thereof, it is clear that Defendants have no
liability as to the circumstances of the Plaintiff and her
deceased husband.
II.

Plaintiffs
deceased
husband was negligent;
__________________________
13. That the collector and driver duly and timely
reminded all the passengers to wear their respective seatbelts
before the bus left the station. Notices of safety precautionary
measures were also posted legibly on the dashboard and
behind every seat for every passenger to follow. However, while
on transit, said late Frederick Ledino willfully removed his
seatbelt as attested by a co-passenger, Pedro Manigo
[hereinafter, Pedro];
14. That Pedro and Lita Luna [hereinafter, Lita], another
passenger who was seated adjacent to the wife of the deceased,
who were seated immediately next to each other, attested that
they were wide awake when the accident happened and that they
did not notice or smell anything such as of a burnt rubber inside
the bus, copy of the affidavits of the witnesses are attached as
Annex 2 and Annex 3, respectively;
15.
follows:

Article 1758 of the New Civil Code provides as

The passenger must observe the diligence of a
good father of a family to avoid injury to himself.

16.

In Landicho v. BTCo.,
the Court held that the passenger is
responsible for finding a safe seat, as the duty of the
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carrier does not encompass all risks attended to a

passenger in transit. It is enough that the carrier's
employees see to it that passengers seats himself
safely inside the vehicle, it is operated carefully and
the mechanisms of the vehicle are in good shape to
prevent mishaps.
III. Defendants observed due
diligence required of a
common carrier;
__________________________
17. That when they reached Sison, a cargo truck on the
opposite lane deviates from its usual lane and run towards the
lane traversed by the bus driven by the defendant driver and
despite exerting all effort to avoid the collision to avoid greater
damage or death, defendant driver swerved to the right thus
hitting a tree, a copy of the police report is attached as Annex
4.
18. That had the driver was not diligent enough to avoid
the cargo truck, who is running in full speed towards the bus,
more damage to life and property may have been suffered by
the bus;
19.
follows:

Article 1733 of the New Civil Code provides as

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. ...

20.

Article 1755 of the New Civil Code provides as follows:

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.

21. That the driver observed the due extraordinary

diligence required of a common carrier and the utmost
diligence of every cautious person such as driving carefully,
periodical testing to determine the condition and mechanisms
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of the vehicle are in good shape and complying with the

required speed limit to meet the approximate travel time.
22. That the defendant-owner observed the diligence of a
good father of a family in the selection and supervision of his
employees. The following procedures were observed before an
applicant employee, more particularly for the position of driver, is
hired by the bus company:
a) In the selection of employee/drivers, they were
examined as to their qualification, experience, past
employment and track record, police clearance,
drivers license and NBI clearance. In addition they
were required to undergo tests of actual driving
skills, concentration, reflexes and vision. They are
also required to complete the attendance on
training programs of traffic rules, vehicles
maintenance, and standard operating procedure in
times of emergencies, a copy of the company rules
is attached as Annex 5;
b) On the Supervision, the defendant employer
formulated and implemented standard operating
procedure for all drivers to observe and follow to
ensure observance of due diligence and avoid
accident and impose penalties for breach thereof,
thus the company imposes speed limit to all its bus
units, mandatory daily check-up and maintenance
of bus units before and after their respective trips,
a copy of company rules and an affidavit of Juan
Maturan, Bachelorette Transit Co, General Manager
for Operation, is attached as Annex 6 and Annex
7, respectively;
IV.

The accident was not the

proximate
cause
of
Fredericks death;
__________________________
23. That the deceased was rushed to the hospital, but the
attending physicians findings manifests that his death was not
due to the injuries he incurred during the accident, it was found
out that the cause of his death was Cardiopulmonary Arrest, a
copy of the medical report is attached as Annex 8;
24. That the incident was not the proximate cause of the
death of Frederick. The medical report showed that the death of
Frederick was caused by the sudden stop in effective blood flow
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due to the failure of his heart to contract effectively and the

minor cuts, scrapes and abrasions were of no link.
25.

Proximate cause is:

that cause, which, in a natural and continuous
sequence, unbroken by any efficient intervening
cause, produces the injury without which the result
would not have occurred.

26. That the defendants during the accident has no

liability moral or exemplary and whatsoever damages that the
plaintiff has prayed for, because from the facts and evidence of
the case, the defendant driver is not negligent on his duty as a
driver, and the bus owner has clearly observed the diligence of
a good father of a family in the selection and supervision of his
employees;
27. As held in the case of SYKI vs SALAVADOR
BEGASA, GR No. 149149 dated October 23, 2003, a
testimonial evidence on the defense of the observance of the
diligence of a good father of a family must be coupled with
documentary evidence. In the case at hand, defendant owner
can very well prove via testimonial and documentary evidence
that he had observed such duty.
28. For the reasons stated above, Plaintiffs claim is
moot and academic, less so, untrue.

MOTION FOR PRELIMINARY HEARING ON

AFFIRMATIVE DEFENSES
29. Defendants incorporate by reference all the
foregoing allegations in so far as they are material and
relevant;
30. Defendants alleged a couple of affirmative defenses,
as follows:
a) Plaintiff boarded the bus gratuitously and without
charge;
b) Plaintiffs deceased husband was negligent;
c) Defendants observed due diligence required of a
common carrier;

Page 6 of 10

d) The accident was not the proximate cause of

Fredericks death;
31. In view thereof, Defendants respectfully request that
a preliminary hearing be set on the affirmative defenses raised.

PRAYER
For the foregoing reasons, Defendants pray for an order
and/or judgment as follows:
1. Setting the preliminary
defenses set forth;

hearing

on

the

affirmative

2. Dismissal of Plaintiffs complaint for lack of merit; and

3. Payment by Plaintiff for Attorneys fees and costs of suit
incurred by Defendants in the amount not less than Fifty
Thousand Pesos (P50,000.00).
All other relief just and equitable under the premises is
likewise prayed for.
City of Surigao,16 December 2016.

SHERALYNE DAZ PEQUINA

Counsel for Defendant
Suite 204 Cattleya Condominium
235 Salcedo Street, Legaspi Village, Surigao City
Mobile No. (63) 998 976 6906
Email Address: atty.sdpequina@gmail.com
Roll No. 57043
IBP No. 856002 - 12-12-2012; Surigao City
PTR No. 3674489 - 01-07-2013; Surigao City
MCLE Compliance No. IV-0014545; 04-15-2013

VERIFICATION

Page 7 of 10

We, JACKSON A . GUTIERREZ and MICHAEL B.

GARCIA, Filipinos, of legal age, and residents of 123 Purok
Perlas, Nueva St., Surigao City and 234 Rizal St., Surigao City,
respectively, after having been duly sworn to in accordance
with law, hereby depose and state:
We have caused the preparation of the foregoing
ANSWER WITH SPECIAL AFFIRMATIVE DEFENSES AND
ALLEGATIONS,
WITH
MOTION
FOR
PRELIMINARY
HEARING ON AFFIRMATIVE DEFENSES; We have read the
contents thereof, the contents of which are true and correct
based on our personal knowledge and authentic documents and
records;
IN WITNESS WHEREOF, we have hereunto affixed our
signature this ___ day of December 2016, in Surigao City,
Philippines.
JACKSON A . GUTIERREZ
Affiant

MICHAEL B. GARCIA
Affiant

SUBSCRIBED AND SWORN to before me this ___ day of

December 2016 in Surigao City, Philippines, affiants exhibited
to me
Jackson A. Gutierrez TIN 209-382-789
Michael B. Garcia
TIN 116-281-004

SS No. 33-6630205-4
SS No. 33-0030644-3

as competent evidence of their identity.

Doc. No. _____;
Page No. _____;
Book No. _____;
Series of 2013.

COPY FURNISHED & NOTIFICATION

ATTY. RIDEN AARON E. ELAGO
Branch Clerk of Court
Regional Trial Court
Branch ___, Surigao City

FLORES GARDE MALAZA LAW OFFICES

1703 M. Ortiz St.
Brgy. Washington
Page 8 of 10

Surigao City
Greetings:
Please take notice that the foregoing ANSWER WITH
SPECIAL AFFIRMATIVE DEFENSES AND ALLEGATIONS,
WITH
MOTION
FOR
PRELIMINARY
HEARING
ON
AFFIRMATIVE DEFENSES will be submitted to this Honorable
Court for its consideration and approval on December __, 2016
at ______ oclock in the morning or as soon as counsels and
matters may be heard.
SHERALYNE DAZ PEQUINA
Counsel for Defendants
EXPLANATION
(Pursuant to Section 11, Rule 13 of the 1997 Rules of
Procedure)
The foregoing ANSWER WITH SPECIAL AFFIRMATIVE
DEFENSES AND ALLEGATIONS, WITH MOTION FOR
PRELIMINARY HEARING ON AFFIRMATIVE DEFENSES and
served upon Plaintiffs counsel via registered mail owing to the
distance between the office of the undersigned counsel and the
counsel for Plaintiff, and for lack of messengerial services.
SHERALYNE DAZ PEQUINA
Counsel for Defendants

Copy furnished:
FLORES GARDE MALAZA LAW OFFICES
1703 M. Ortiz St.
Brgy. Washington
Surigao City
REGISTRY RECEIPT
Postal/Package No. ______
Posted on ______________
Posted at ______________

Page 9 of 10

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