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SECOND DIVISION be registered.

" Baliwag's argument that the kerosene lamp or torch does not substantially comply with
[G.R. No. 116110. May 15,1996] the law is untenable. The aforequoted law clearly allows the use not only of an early warning device of
the triangular reflectorized plates variety but also parking lights or flares visible one hundred meters
BALIWAG TRANSIT, INC., petitioner, vs. COURT OF APPEALS, SPOUSES ANTONIO GARCIA & LETICIA away. Indeed, Col. dela Cruz himself admitted that a kerosene lamp is an acceptable substitute for the
GARCIA, A & J TRADING, AND JULIO RECONTIQUE, respondents. reflectorized plates. No negligence, therefore, may be imputed to A & J Trading and its driver,
SYLLABUS Recontique.

1. CIVIL LAW; CONTRACTS; SPECIAL CONTRACTS; COMMON CARRIERS; LIABILITY FOR DAMAGES; 3. ID.; DAMAGES; To PROVE ACTUAL DAMAGES, THE BEST EVIDENCE AVAILABLE TO THE PARTIES MUST
ESTABLISHED IN CASE AT BAR. As a common carrier, Baliwag breached its contract of carriage when it BE PRESENTED. The propriety of the amount awarded as hospitalization and medical fees. The award of
failed to deliver its passengers, Leticia and Allan Garcia to their destination safe and sound. A common P25,000.00 is not supported by the evidence on record. The Garcias presented receipts marked as
carrier is bound to carry its passengers safely as far as human care and foresight can provide, using the Exhibits "B-1 " to "B-42" but their total amounted only to P5,017.74. To be sure, Leticia testified as to
utmost diligence of a very cautious person, with due regard for all the circumstances. In a contract of the extra amount spent for her medical needs but without more reliable evidence, her lone testimony
carriage, it is presumed that the common carrier was at fault or was negligent when a passenger dies or cannot justify the award of P25,000.00. To prove actual damages, the best evidence available to the
is injured. Unless the presumption is rebutted, the court need not even make an express finding of fault injured party must be presented. The court cannot rely on uncorroborated testimony whose truth is
or negligence on the part of the common carrier. This statutory presumption may only be overcome by suspect, but must depend upon competent proof that damages have been actually suffered. Thus, we
evidence that the carrier exercised extraordinary diligence as prescribed in Articles 1733 and 1755 of reduce the actual damages for medical and hospitalization expenses to P5,017.74.
the Civil Code. The records are bereft of any proof to show that Baliwag exercised extraordinary
diligence. On the contrary, the evidence demonstrates its driver's recklessness. Leticia Garcia testified 4. ID.; ID.; MORAL DAMAGES; RECOVERABLE IF THE CARRIER THROUGH ITS AGENT, ACTED
that the bus was running at a very high speed despite the drizzle and the darkness of the highway. The FRAUDULENTLY OR IN BAD FAITH. The award of moral damages is in accord with law. In a breach of
passengers pleaded for its driver to slow down, but their plea was ignored. Leticia also revealed that contract of carriage, moral damages are recoverable if the carrier, through its agent, acted fraudulently
the driver was smelling of liquor. She could smell him as she was seated right behind the driver. or in bad faith. The evidence shows the gross negligence of the driver of Baliwag bus which amounted
Another passenger, Felix Cruz testified that immediately before the collision, the bus driver was to bad faith. Without doubt, Leticia and Allan experienced physical suffering, mental anguish and
conversing with a co-employee. All these prove the bus driver's wanton disregard for the physical serious anxiety by reason of the accident.
safety of his passengers, which make Baliwag as a common carrier liable for damages under Article
1759 of the Civil Code. APPEARANCES OF COUNSEL

2. ID.; ID.; ID.; ID.; LAND TRANSPORTATION AND TRAFFIC CODE; SECTION 34(g) THEREOF; Leopoldo C. Sta. Maria for Baliwag Transit, Inc.
SUBSTANTIALLY COMPLIED WITH IN CASE AT BAR. Baliwag cannot evade its liability by insisting that the Arturo D. Vallar for Sps. Antonio & Leticia Garcia.
accident was caused solely by the negligence of A & J Trading and Julio Recontique. It harps on their Allan A. Leynes for A & J Trading, and Julio Recontique.
alleged non use of early warning device as testified to by Col. Demetrio dela Cruz, the station DECISION
commander of Gapan, Nueva Ecija who investigated the incident, and Francisco Romano, the bus
conductor. The records do not bear out Baliwag's contention. Col. dela Cruz and Romano testified that PUNO, J.:
they did not see any early warning device at the scene of the accident. They were referring to the
triangular reflectorized plates in red and yellow issued by the Land Transportation Office. However, the This is a petition for certiorari to review the Decision[1] of the Court of Appeals in CA-G.R. CV-31246
evidence shows that Recontique and Ecala placed a kerosene lamp or torch at the edge of the road, awarding damages in favor of the spouses Antonio and Leticia Garcia for breach of contract of
near the rear portion of the truck to serve as an early warning device. This substantially complies with carriage.[2] filed by the spouses Garcia questioning the same Court of Appeals' Decision which reduced
Section 34 (g) of the Land Transportation and Traffic Code, to wit: "(g) lights and reflector when parked their award of damages. On November 13, 1995, we denied their petition for review.
or disabled. Appropriate parking lights or flares visible one hundred meters away shall be displayed at
the corner of the vehicle whenever such vehicle is parked on highways or in places that are not well- The records show that on July 31, 1980, Leticia Garcia, and her five-year old son, Allan Garcia, boarded
lighted or, is placed in such manner as to endanger passing traffic. Furthermore, every motor vehicle Baliwag Transit Bus No. 2036 bound for Cabanatuan City driven by Jaime Santiago. They took the seat
shall be provided at all times with built-in reflectors or other similar warning devices either pasted, behind the driver.
painted or attached at its front and back which shall likewise be visible at night at least one hundred
meters away. No vehicle not provided with any of the requirements mentioned in this subsection shall

Page 1 of 27
At about 7:30 in the evening, in Malimba, Gapan, Nueva Ecija, the bus passengers saw a cargo truck The defendant A & J and Julio Recontique for failure to provide its cargo truck with an early warning
parked at the shoulder of the national highway. Its left rear portion jutted to the outer lane, the device in violation of the Motor Vehicle Law."[8]
shoulder of the road was too narrow to accommodate the whole truck. A kerosene lamp appeared at
the edge of the road obviously to serve as a warning device. The truck driver, Julio Recontique, and his The trial court ordered Baliwag, A & J Trading and Recontique to pay jointly and severally the Garcia
helper, Arturo Escala, were then replacing a flat tire. The truck is owned by respondent A & J Trading. spouses the following: (1) P25,000.00 hospitalization and medication fee, (2) P450,000.00 loss of
earnings in eight (8) years, (3) P2,000.00 for the hospitalization of their son Allan Garcia, (4) P50,000.00
Bus driver Santiago was driving at an inordinately fast speed and failed to notice the truck and the moral damages, and (5) P30,000.00 attorney's fee.[9]
kerosene lamp at the edge of the road. Santiago's passengers urged him to slow down but he paid
them no heed. Santiago even carried animated conversations with his co-employees while driving. On appeal, the Court of Appeals modified the trial court's Decision by absolving A & J Trading from
When the danger of collision became imminent, the bus passengers shouted "Babangga tayo!". liability and by reducing the award of attorney's fees to P10,000.00 and loss of earnings to
Santiago stepped on the brake, but it was too late. His bus rammed into the stalled cargo truck. It P300,000.00, respectively.[10]
caused the instant death of Santiago and Escala, and injury to several others. Leticia and Allan Garcia
were among the injured passengers. Baliwag filed the present petition for review raising the following issues:

Leticia suffered a fracture in her pelvis and right leg. They rushed her to the provincial hospital in 1. Did the Court of Appeals err in absolving A & J Trading from liability and holding Baliwag solely liable
Cabanatuan City where she was given emergency treatment. After three days, she was transferred to for the injuries suffered by Leticia and Allan Garcia in the accident?
the National Orthopedic Hospital where she was confined for more than a month.[3] She underwent an
operation for partial hip prosthesis.[4] 2. Is the amount of damages awarded by the Court of Appeals to the Garcia spouses correct?

Allan, on the other hand, broke a leg. He was also given emergency treatment at the provincial We affirm the factual findings of the Court of Appeals.
hospital.
I. As a common carrier, Baliwag breached its contract of carriage when it failed to deliver its
Spouses Antonio and Leticia Garcia sued Baliwag Transit, Inc., A & J Trading and Julio Recontique for passengers, Leticia and Allan Garcia to their destination safe and sound. A common carrier is bound to
damages in the Regional Trial Court of Bulacan.[5] Leticia sued as an injured passenger of Baliwag and carry its passengers safely as far as human care and foresight can provide, using the utmost diligence
as mother of Allan. At the time of the complaint, Allan was a minor, hence, the suit initiated by his of a very cautious person, with due regard for all the circumstances.[11] In a contract of carriage, it is
parents in his favor. presumed that the common carrier was at fault or was negligent when a passenger dies or is injured.
Unless the presumption is rebutted, the court need not even make an express finding of fault or
Baliwag, A & J Trading and Recontique disclaimed responsibility for the mishap. Baliwag alleged that negligence on the part of the common carrier. This statutory presumption may only be overcome by
the accident was caused solely by the fault and negligence of A & J Trading and its driver, Recontique. evidence that the carrier exercised extraordinary diligence as prescribed in Articles 1733 and 1755 of
Baliwag charged that Recontigue failed to place an early warning device at the corner of the disabled the Civil Code.[12]
cargo truck to warn oncoming vehicles.[6] On the other hand, A & J Trading and Recontique alleged
that the accident was the result of the negligence and reckless driving of Santiago, bus driver of The records are bereft of any proof to show that Baliwag exercised extraordinary diligence. On the
Baliwag.[7] contrary, the evidence demonstrates its driver's recklessness. Leticia Garcia testified that the bus was
running at a very high speed despite the drizzle and the darkness of the highway. The passengers
After hearing, the trial court found all the defendants liable, thus: pleaded for its driver to slow down, but their plea was ignored.[13] Leticia also revealed that the driver
was smelling of liquor.[14] She could smell him as she was seated right behind the driver. Another
xxxxxxxxx passenger, Felix Cruz testified that immediately before the collision, the bus driver was conversing with
a co-employee.[15] All these prove the bus driver's wanton disregard for the physical safety of his
"In view thereof, the Court holds that both defendants should be held liable; the defendant Baliwag passengers, which makes Baliwag as a common carrier liable for damages under Article 1759 of the
Transit, Inc. for having failed to deliver the plaintiff and her son to their point of destination safely in Civil Code:
violation of plaintiff's and defendant Baliwag Transit's contractual relation.

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Art. 1759. Common carriers are liable for the death of or injuries to passengers through the negligence
or willfull acts of the former's employees, although such employees may have acted beyond the scope Among the testimonies offered by the witnesses who were present at the scene of the accident, we
of their authority or in violation of the orders of the common carriers. rule to uphold the affirmative testimonies given by the two injured passengers and give less credence
to the testimony of the bus conductor who solely testified that no such early warning device exists.
This liability of the common carriers do not cease upon proof that they exercised all the diligence of a
good father of a family in the selection or supervision of their employees. The testimonies of injured passengers who may well be considered as disinterested witness appear to
be natural and more probable than the testimony given by Francisco Romano who is undoubtedly
Baliwag cannot evade its liability by insisting that the accident was caused solely by the negligence of A interested in the outcome of the case, being the conductor of the defendant-appellant Baliwag Transit
& J Trading and Julio Recontique. It harps on their alleged non use of an early warning device as Inc.
testified to by Col. Demetrio dela Cruz, the station commander of Gapan, Nueva Ecija who investigated
the incident, and Francisco Romano, the bus conductor. It must be borne in mind that the situation then prevailing at the time of the accident was admittedly
drizzly and all dark. This being so, it would be improbable and perhaps impossible on the part of the
The records do not bear out Baliwag's contention. Col. dela Cruz and Romano testified that they did not truck helper without the torch nor the kerosene to remove the flat tires of the truck. Moreover,
see any early warning device at the scene of the accident.[16] They were referring to the triangular witness including the bits conductor himself admitted that the passengers shouted, that they are going
reflectorized plates in red and yellow issued by the Land Transportation Office. However, the evidence to bump before the collision which consequently caused the bus driver to apply the brake 3 to 4 meters
shows that Recontique and Ecala placed a kerosene lamp or torch at the edge of the road, near the rear away from the truck. Again, without the kerosene nor the torch in front of the truck, it would be
portion of the truck to serve as an early warning device.[17] This substantially complies with Section 34 improbable for the driver, more so the passengers to notice the truck to be bumped by the bus
(g) of the Land Transportation and Traffic Code, to wit: considering the darkness of the place at the time of the accident.

(g) Lights and reflector when parked or disabled. Appropriate parking lights or flares visible one xxxxxxxxx
hundred meters away shall be displayed at the corner of the vehicle whenever such vehicle is parked
on highways or in places that are not well-lighted or, is placed in such manner as to endanger passing While it is true that the investigating officer testified that he found no early warning device at the time
traffic. Furthermore, every motor vehicle shall be provided at all times with built-in reflectors or other of his investigation, We rule to give less credence to such testimony insofar as he himself admitted on
similar warning devices either pasted, painted or attached at its front and back which shall likewise be cross examination that he did not notice the presence of any kerosene lamp at the back of the truck
visible at night at least one hundred meters away. No vehicle not provided with any of the because when he arrived at the scene of the accident, there were already many people surrounding
requirements mentioned in this subsection shall be registered. (Italics supplied) the place (TSN, Aug, 22, 1989, p. 13). He further admitted that there exists a probability that the lights
of the truck may have been smashed by the bus at the time of the accident considering the location of
Baliwag's argument that the kerosene lamp or torch does not substantially comply with the law is the truck where its rear portion was connected with the front portion of the bus (TSN, March 29, 1985,
untenable. The aforequoted law clearly allows the use not only of an early warning device of the pp. 11-13). Investigator's testimony therefore did not confirm nor deny the existence of such warning
triangular reflectorized plates variety but also parking lights or flares visible one hundred meters away. device, making his testimony of little probative value.[19]
Indeed, Col. dela Cruz himself admitted that a kerosene lamp is an acceptable substitute for the
reflectorized plates.[18] No negligence, therefore, may be imputed to A & J Trading and its driver, II
Recontique.
We now review the amount of damages awarded to the Garcia spouses.
Anent this factual issue, the analysis of evidence made by the Court of Appeals deserves our
concurrence, viz: First, the propriety of the amount awarded as hospitalization and medical fees. The award of
P25,000.00 is not supported by the evidence on record. The Garcias presented receipts marked as
xxx xxx xxx Exhibits B-1 to B 42 but their total amounted only to P5,017.74. To be sure, Leticia testified as to the
extra amount spent for her medical needs but without more reliable evidence, her lone testimony
In the case at bar, both the injured passengers of the Baliwag involved in the accident testified that cannot justify the award of P25,000.00. To prove actual damages, the best evidence available to the
they saw some sort of kerosene or a torch on the rear portion of the truck before the accident. Baliwag injured party must be presented. The court cannot rely on uncorroborated testimony whose truth is
Transit's conductor attempted to defeat such testimony by declaring that he noticed no early warning suspect, but must depend upon competent proof that damages have been actually suffered[20] Thus,
device in front of the truck. we reduce the actual damages for medical and hospitalization expenses to P5,017.74.

Page 3 of 27
Siguion Reyna, Montecillo & Ongsiako, Belo and Associates for defendant-appellant.
Second, we find as reasonable the award of P300,000.00 representing Leticia's lost earnings. Before the
accident, Leticia was engaged in embroidery, earning P5,000.00 per month.[21] Her injuries forced her
to stop working. Considering the nature and extent of her injuries and the length of time it would take RELOVA, J..
her to recover,[22] we find it proper that Baliwag should compensate her lost income for five (5)
years.[23] Appeal from the decision of the Court of First Instance of Iloilo finding that defendant-appellant "did
not exercise extraordinary diligence or prudence as far as human foresight can provide ... but on the
Third, the award of moral damages is in accord with law. In a breach of contract of carriage, moral contrary showed negligence and indifference for the safety of the passengers that it was bound to
damages are recoverable if the carrier, through its agent, acted fraudulently or in bad faith.[24] The transport, …" and for the death of Judge Quirico Abeto, defendant- appellant was ordered to pay
evidence shows the gross negligence of the driver of Baliwag bus which amounted to bad faith. plaintiffs, the heirs of Judge Abeto, the following:
Without doubt, Leticia and Allan experienced physical suffering, mental anguish and serious anxiety by
reason of the accident. Leticia underwent an operation to replace her broken hip bone with a metal 1st — For the death of Judge Quirico Abeto, the amount of P6,000.00;
plate. She was confined at the National Orthopedic Hospital for 45 days. The young Allan was also
confined in the hospital for his foot injury. Contrary to the contention of Baliwag, the decision of the 2nd — For the loss of his earning capacity, for 4.75 (4 ¾) years at the rate of P7,200.00 per annum in
trial court as affirmed by the Court of Appeals awarded moral damages to Antonio and Leticia Garcia the amount of P34,200.00;
not in their capacity as parents of Allan. Leticia was given moral damages as an injured party. Allan was
also granted moral damages as an injured party but because of his minority, the award in his favor has 3rd — For moral damages in favor of the plaintiffs in the sum of P10,000.00;
to be given to his father who represented him in the suit.
4th — For actual damages in the sum of P2,000.00 minus P400.00 received under Voucher Exhibit 'H'
Finally, we find the award of attorney's fees justified. The complaint for damages was instituted by the the amount of Pl,600.00;
Garcia spouses on December 15, 1982, following the unjustified refusal of Baliwag to settle their claim.
The Decision was promulgated by the trial court only on January 29, 1991 or about nine years later. 5th — For attorney's fees, the sum of P6,000.00 and/or the total sum of P57,800.00 and; To pay the
Numerous pleadings were filed before the trial court, the appellate court and to this Court. Given the costs of this proceedings.
complexity of the case and the amount of damages involved,[25] the award of attorney's fee for
P10,000.00 is just and reasonable. Plaintiff's evidence shows that about 5:30 in the afternoon of November 23, 1960, Judge Quirico Abeto,
with the necessary tickets, boarded the Philippine Air Lines' PI-C133 plane at the Mandurriao Airport,
IN VIEW WHEREOF, the Decision of the respondent Court of Appeals in CA-G.R. CV-31246 is AFFIRMED Iloilo City for Manila. He was listed as the No. 18 passenger in its Load Manifest (Exhibit A). The plane
with the MODIFICATION reducing the actual damages for hospitalization and medical fees to P5,017.74. which would then take two hours from Iloilo to Manila did not reach its destination and the next day
No costs. there was news that the plane was missing. After three weeks, it was ascertained that the plane
crashed at Mt. Baco, Province of Mindoro. All the passengers, including Judge Abeto, must have been
SO ORDERED. killed instantly and their remains were scattered all over the area. Among the articles recovered on the
site of the crash was a leather bag with the name "Judge Quirico Abeto. " (Exhibit C.)
Regalado (Chairman), Romero, Mendoza, and Torres, Jr., JJ., concur.
Judge Abeto, prior to the plane crash, was a Technical Assistant in the Office of the President receiving
G.R. No. L-28692 July 30, 1982 an annual compensation of P7,200.00; and before that, has held the various positions in the
government, namely: Municipal President of Iloilo; Provincial Fiscal of Antique, Negros Occidental and
CONRADA VDA. DE ABETO, CARME0000LO ABETO, CECILIA ABETO, CONCEPCION ABETO, MARIA Cebu; Judge of the Court of First Instance of Manila, and Secretary of Justice. He was in good health
ABETO, ESTELA ABETO, PERLA ABETO, PATRIA ABETO and ALBERTO ABETO, plaintiffs-appellees, before the incident even if he was already 79 years old at that time.
vs.
PHILIPPINE AIR LINES, INCORPORATED, defendant-appellant. Plaintiff-appellee Conrada Vda. de Abeto was appointed administratrix of the estate of Judge Abeto.
The other plaintiffs-appellees are the children of the deceased. When they received the news of the
Quijano, Arroyo & Padilla Law Offices for plaintiffs-appellees. plane crash, Mrs. Abeto was shocked and until it was ascertained that the plane had crashed three

Page 4 of 27
weeks after, she could not sleep and eat. She felt sick and was miserable after that. The members of These facts as established by the evidence of the plaintiff lead to the inevitable conclusion that the
the family also suffered. defendant did not exercise extraordinary diligence or prudence as far as human foresight can provide
imposed upon by the Law, but on the contrary showed negligence and indifference for the safety of the
Personal belongings which were lost amounted to P300.00. Burial expenses of the late judge was passengers that it was bound to transport. By the very evidence of the defendant, as shown by the
P1,700.00. deposition of one Jose Abanilla, dated December 13, 1963, Section Chief of the Actuarial Department
of the Insular Life Insurance Company regarding life expectancy through American experience, the late
When defendant-appellant would not hear demands for settlement of damages, plaintiffs-appellees Judge Abeto at the age of 79 would still live or have a life expectancy of 4.75 years.
were compelled to hire counsel for the institution and prosecution of this case.
Appealing to this Court, defendant claimed that the trial court erred:
Defendant-appellant tried to prove that the plane crash at Mt. Baco was beyond the control of the
pilot. The plane at the time of the crash was airworthy for the purpose of conveying passengers across I
the country as shown by the certificate of airworthiness issued by the Civil Aeronautics Administration ... in finding, contrary to the evidence, that the appellant was negligent;
(CAA). There was navigational error but no negligence or malfeasance on the part of the pilot. The
plane had undergone 1,822 pre- flight checks, 364 thorough checks, 957 terminating checks and 501 III
after maintenance checks. These checks were part of the quality control operation of defendant airline
Further, deviation from its prescribed route was due to the bad weather conditions between Mt. Baco ... in not finding that the appellant, in the conduct and operation of PI-C133, exercised its statutory
and Romblon and strong winds which caused the plane to drift to Mt. Baco. Under the circumstances, obligation over the passengers of PI C133 of extraordinary diligence as far as human care and foresight
appellant argues that the crash was a fortuitous event and, therefore, defendant-appellant cannot be can provide, using the utmost diligence of a very cautious person with due regard for all the
held liable under the provisions of Article 1174 of the New Civil Code. Besides, appellant tried to prove circumstances and in not finding that the crash of PI-C133 was caused by fortuitous events;
that it had exercised all the cares, skill and diligence required by law on that particular flight in
question. ... in awarding damages to the appellees; and

The trial court, finding for the plaintiffs, said: IV

The Court after a thorough perusal of the evidences, testimonial and documentaries submitted by both ... in not finding that appellant acted in good faith and exerted efforts to minimize damages.
parties has come into the conclusion that the evidence introduced by the plaintiffs have established the
following significant facts which proved the negligence of the defendant's pilot of the plane on that The issue before Us in this appeal is whether or not the defendant is liable for violation of its contract
flight- in question. of carriage.

1st — That the Pilot of the plane disobeyed instruction given in not following the route of Amber 1 The provisions of the Civil Code on this question of liability are clear and explicit. Article 1733 binds
prescribed by the CAA in Violation of Standard Regulation. common carriers, "from the nature of their business and by reasons of public policy, ... to observe
extraordinary diligence in the vigilance ... for the safety of the passengers transported by them
Second — The defendant failed to perform the pre-flight test on plane PIC-133 before the same took according to all the circumstances of each case." Article 1755 establishes the standard of care required
off from Mandurriao Airport to Manila in order to find out a possible defect of the plane. of a common carrier, which is, "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
Third — When the defendant allowed during the flight in question, student Officer Rodriguez on circumstances." Article 1756 fixes the burden of proof by providing that "in case of death of or injuries
training as proved when his body was found on the plane's cockpit with its microphone hanging still on to passengers, common carriers are presumed to have been at fault or to have acted negligently,
his left leg. unless they prove that they observed extra-ordinary diligence as prescribed in Articles 1733 and 1755."
Lastly, Article 1757 states that "the responsibility of a common carrier for the safety of passengers ...
Fourth — When the Pilot during the flight in question failed or did not report his position over or cannot be dispensed with or lessened by stipulation, by the posting of notices, by statements on
abeam Romblon which is a compulsory reporting point. tickets, or otherwise."

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The prescribed airway of plane PI-C133 that afternoon of November 23, 1960, with Capt. de Mesa, as A Yes, sir.
the pilot, was Iloilo-Romblon-Manila, denominated as airway "Amber l," and the prescribed elevation
of the flight was 6,000 ft. The fact is, the plane did not take the designated route because it was some Q You know Mr. Witness that a disregard or, violation, or disregard of instruction is punishable by law?
30 miles to the west when it crashed at Mt. Baco. According to defendant's witness, Ramon A. Pedroza,
Administrative Assistant of the Philippine Air Lines, Inc., this tragic crash would have not happened had A Yes,sir. (TSN,pp.247-248,Dec. 20, 1963)
the pilot continued on the route indicated. Hereunder is Mr. Pedroza's testimony on this point:
xxx xxx xxx
Q Had the pilot continued on the route indicated, Amber A-1 there would have been no crash,
obviously? It is clear that the pilot did not follow the designated route for his flight between Romblon and Manila.
The weather was clear and he was supposed to cross airway "Amber I" over Romblon; instead, he
A Yes, Your Honor made a straight flight to Manila in violation of air traffic rules.

ATTY. HILADO: At any rate, in the absence of a satisfactory explanation by appellant as to how the accident occurred,
the presumption is, it is at fault.
(To the witness)
In an action based on a contract of carriage, the court need not make an express finding of fault or
Q Because Mt. Baco is 30 miles from Amber I? negligence on the part of the carrier in order to hold it responsible to pay the damages sought for by
the passenger. By the contract of carriage, the carrier assumes the express obligation to transport the
A Yes,sir.(TSN,p.75,Oct.22,1963 hearing) passenger to his destination safely and to observe extraordinary diligence with a due regard for all the
circumstances, and any injury that might be suffered by the passenger is right away attributable to the
xxx xxx xxx fault or negligence of the carrier (Art. 1756, New Civil Code). This is an exception to the general rule
that negligence must be proved. (Batangas Transportation Company vs. Caguimbal, 22 SCRA 171.)
And, Assistant Director Cesar Mijares of the Civil Aeronautics Administration testified that the pilot of
said plane was "off course." The total of the different items which the lower court adjudged herein appellant to pay the plaintiffs is
P57,800.00. The judgment of the court a quo is modified in the sense that the defendant is hereby
Q But the fact is that you found him out, that he was off course? ordered to pay the said amount to the plaintiffs, with legal interest thereon from the finality of this
judgment. With costs against defendant-appellant.
A Yes, sir.
Teehankee (Chairman), Makasiar, Melencio-Herrera, Plana and Vasquez, JJ., concur.
Q And off course, you mean that he did not follow the route prescribed for him?
Gutierrez, Jr., J., is on leave.
A Yes, sir.
G.R. No. L-50076 September 14, 1990
Q And the route for him to follow was Amber A-l?
NORBERTO QUISUMBING, SR., and GUNTHER LOEFFLER petitioners,
A Yes, sir. vs. COURT OF APPEALS and PHILIPPINE AIR LINES, INC., respondents.
N.J. Quisumbing & Associates for petitioners
Q And the route for Iloilo direct to Manila, is passing Romblon to Manila?
Siguion Reyna, Montecillo & Ongsiako for private respondent.
A Yes, passing Romblon to Manila.

Q And you found that he was not at all following the route to Romblon to Manila? NARVASA, J.:

Page 6 of 27
Having met with no success in the Court of First Instance of Rizal and in the Court of Appeals, the 7. Specifically, ... Norberto Quisumbing, Sr. was divested of jewelries and cash in the total
petitioners are now in this Court in a third and final attempt to recover from the Philippine Airlines, Inc. amount of P18,650.00 out of which recoveries were made amounting to P4,550.00. . . Gunther Leoffler
(hereafter, simply PAL) the value of jewelry, other valuables and money taken from them by four (4) was divested of a wrist watch, cash and a wallet in the total of P1,700.00. As a result of the incident ...
armed robbers on board one of the latter's airplanes while on a flight from Mactan City to Manila, as Quisumbing, Sr.suffered shock, because a gun had been pointed at him by one of the holduppers.
well as moral and exemplary damages, attorney's fees and expenses of litigation.
8. Upon landing at the Manila International Airport. 'Zaldy' and his three companions succeeded
The petitioners accept the correctness of the basic facts adopted by the Court of Appeals from the in escaping.
judgment of the Court of First Instance, to wit: 1
Demands were thereafter made on PAL by Quisumbing and Loeffler "to indemnify ... (them) on their
1. . . . Norberto Quisumbing, Sr. and Gunther Leoffler were among the of ... (PAL's) Fokker aforesaid loss, but ... (PAL) refused ... (averring that) it is not liable to (them) in law or in fact."2
'Friendship' PIC-536 plane in its flight of November 6,1968 which left Mactan City at about 7:30 in the
evening with Manila for its destination. Contending that the "aforesaid loss is a result of breach of ... (PAL's) contractual obligation to carry ...
(them) and their belongings and effects to their Manila destination without loss or damage, and
2. After the plane had taken off, Florencio O. Villarin, a Senior NBI Agent who was also a constitutes a serious dereliction of ... (PAL's) legal duty to exercise extraordinary diligence in the
passenger of the said plane, noticed a certain 'Zaldy,' a suspect in the killing of Judge Valdez, seated at vigilance over the same." , Quisumbing and Loeffler brought suit against PAL in the Court of First
the front seat near the door leading to the cockpit of the plane. A check by Villarin with the passenger's Instance of Rizal, as stated in this opinion's opening paragraph, to recover the value of the property lost
ticket in the possession of flight Stewardess Annie Bontigao, who was seated at the last seat right row, by them to the robbers as well as moral and exemplary damages, attorney's fees and expenses of
revealed that 'Zaldy' had used the name 'Cardente,' one of his aliases known to Villarin. Villarin also litigation. 3 The plaintiffs declared that their suit was instituted "... pursuant to Civil Code articles 1754,
came to know from the stewardess that 'Zaldy' had three companions on board the plane." 998, 2000 and 2001 and on the ground that in relation to said Civil Code article 2001 the complained-of
act of the armed robbers is not a force majeure, as the 'use of arms' or 'irresistible force' was not taken
3. Villarin then scribbled a note addressed to the pilot of the plane requesting the latter to advantage of by said armed robbers in gaining entrance to defendant's ill-fated plane in questions.
contact NBI duty agents in Manila for the said agents to ask the Director of the NBI to send about six And, with respect to said Civil Code article 1998, it is not essential that the lost effects and belongings
NBI agents to meet the plane because the suspect in the killing of Judge Valdez was on board (Exh. 'G'). of plaintiffs were actually delivered to defendant's plane personnel or that the latter were notified
The said note was handed by Villarin to the stewardess who in tum gave the same to the pilot. thereof (De los Santos v. Tamn Khey, [CA] 58 O.G. 7693)."4

4. After receiving the note, which was about 15 minutes after take off, the pilot of the plane, PAL filed answer denying liability, alleging inter alia that the robbery during the flight and after the
Capt. Luis Bonnevie, Jr., came out of the cockpit and sat beside Villarin at the rear portion of the plane aircraft was forcibly landed at the Manila Airport did indeed constitute force majeure, and neither of
and explained that he could not send the message because it would be heard by all ground aircraft the plaintiffs had notified PAL "or its crew or employees that they were in possession of cash, German
stations. Villarin, however, told the pilot of the danger of commission of violent acts on board the plane marks and valuable jewelries and watches" or surrendered said items to "the crew or personnel on
by the notorious 'Zaldy' and his three companions. board the aircraft."5

5. While the pilot and Villarin were talking, 'Zaldy' and one of his companions walked to the rear After trial, the Court of First Instance rendered judgment 'dismissing plaintiffs' complaint with costs
and stood behind them. Capt. Bonnevie then stood up and went back to the cockpit. 'Zaldy' and his against ... (them)." 6 The Court opined that since the plaintiffs "did not notify defendant or its
companions returned to their seats, but after a few minutes they moved back to the rear throwing ugly employees that they were in possession of the cash, jewelries, and the wallet they are now claiming,"
looks at Villarin who, sensing danger, stood up and went back to his original seat across the aisle on the the very provision of law invoked by them, Article 1998 of the Civil Code, denies them any recourse
second to the last seat near the window. 'Zaldy and his companion likewise went back to their against PAL. The Court also pointed out that-
respective seats in front.
... while it is true that the use of gems was not taken advantage of by the robbers in gaining entrance to
6. Soon thereafter an exchange of gunshots ensued between Villarin and 'Zaldy' and the latter's defendant's ill-fated plane, the armed robbery that took place constitutes force majeure for which
companions. 'Zaldy' announced to the passengers and the pilots in the cockpit that it was a hold-up and defendant is not liable because the robbers were able to gain entrance to the plane with the guns they
ordered the pilot not to send any SOS. The hold-uppers divested passengers of their belongings. used already in their possession, which fact could not have been prevented nor avoided by the
defendant since it was not authorized to search its passengers for firearms and deadly weapons as
shown in Exhibits '6', '7', '8,' and '8-A.' As its robbery constitutes force majeure, defendant is not liable.

Page 7 of 27
and another survived gunshot wounds. The lives of the rest of the passengers and crew were more
The plaintiffs appealed to the Court of Appeals.7 The Court affirmed the trial court's judgment.8 It important than their properties. Cooperation with the hijackers until they released their hostages at
rejected the argument that "the use of arms or ... irresistible force" referred to in Article 2001 the runway end near the South Superhighway was dictated by the circumstances.
constitutes force majeure only if resorted to gain entry into the airplane, and not if it attends "the
robbery itself." The Court ruled that under the facts, "the highjacking-robbery was force majeure," Insisting that the evidence demonstrates negligence on the part of the PAL crew "occurring before and
observing that — exposing them to hijacking," Quisumbing and Loeffler have come up to this Court praying that the
judgments of the trial Court and the Court of Appeals be reversed and another rendered in their favor.
... hijackers do not board an airplane through a blatant display of firepower and violent fury. Firearms, Once again, the issue will be resolved against them.
hand-grenades, dynamite, and explosives are introduced into the airplane surreptitiously and with the
utmost cunning and stealth, although there is an occasional use of innocent hostages who will be coldly A careful analysis of the record in relation to the memoranda and other pleadings of the parties,
murdered unless a plane is given to the hijackers' complete disposal. The objective of modern-day convinces this Court of the correctness of the essential conclusion of both the trial and appellate courts
hijackers is to display the irresistible force amounting to force majeure only when it is most effective that the evidence does indeed fail to prove any want of diligence on the part of PAL, or that, more
and that is when the jetliner is winging its way at Himalayan altitudes and ill-advised heroics by either specifically, it had failed to comply with applicable regulations or universally accepted and observed
crew or passengers would send the multi-million peso airplane and the priceless lives of all its procedures to preclude hijacking; and that the particular acts singled out by the petitioners as
occupants into certain death and destruction. ... supposedly demonstrative of negligence were, in the light of the circumstances of the case, not in truth
negligent acts "sufficient to overcome the force majeure nature of the armed robbery." The Court quite
agrees, too, with the Appellate Tribunal's wry observation that PAL's "failure to take certain steps that
The Appellate Court also ruled that in light of the evidence PAL could not be faulted for want of a passenger in hindsight believes should have been taken is not the negligence or misconduct which
diligence, particularly for failing "to take positive measures to implement Civil Aeronautics mingles with force majeure as an active and cooperative cause."
Administration regulations prohibiting civilians from carrying firearms on board aircrafts;" and that "the
absence of coded transmissions, the amateurish behaviour of the pilot in dealing with the NBI agent, No success can therefore attend petitioners' appeal, not only because they wish to have a review and
the allegedly open cockpit door, and the failure to return to Mactan, in the light of the circumstances of modification of factual conclusions of the Court of Appeals, which established and uniformly observed
the case ..., were not negligent acts sufficient to overcome the force majeure nature of the armed axiom proscribes, 10 but also because those factual conclusions have in this Court's view been correctly
robbery." In fact, the Court went on to says, 9 drawn from the proofs on record.

... it is illusive to assume that had these precautions been taken, the hijacking or the robbery would not WHEREFORE, the petition is DENIED and the appealed Decision of the Court of Appeals is AFFIRMED,
have succeeded. The mandatory use of the most sophisticated electronic detection devices and with costs against petitioners.
magnetometers, the imposition of severe penalties, the development of screening procedures, the
compilation of hijacker behavioural profiles, the assignment of sky marshals, and the weight of SO ORDERED.
outraged world opinion may have minimized hijackings but all these have proved ineffective against
truly determined hijackers. World experience shows that if a group of armed hijackers want to take G.R. No. L-10126 October 22, 1957
over a plane in flight, they can elude the latest combined government and airline industry measures.
And as our own experience in Zamboanga City illustrates, the use of force to overcome hijackers, SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA, LUZVIMINDA, ELENITA, OSCAR and
results in the death and injury of innocent passengers and crew members. We are not in the least bit ALFREDO BATACLAN, represented by their Natural guardian, SALUD VILLANUEVA VDA. DE
suggesting that the Philippine Airlines should not do everything humanly possible to protect passengers BATACLAN, plaintiffs-appellants,
from hijackers' acts. We merely state that where the defendant has faithfully complied with the vs.
requirements of government agencies and adhered to the established procedures and precautions of MARIANO MEDINA, defendant-appellant.
the airline industry at any particular time, its failure to take certain steps that a passenger in hindsight
believes should have been taken is not the negligence or misconduct which mingles with force majeure Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for plaintiffs-appellants.
as an active and cooperative cause. Fortunato Jose for defendant and appellant.

Under the circumstance of the instant case, the acts of the airline and its crew cannot be faulted as MONTEMAYOR, J.:
negligence. The hijackers had already shown their willingness to kill. One passenger was in fact killed

Page 8 of 27
Shortly after midnight, on September 13, 1952 bus no. 30 of the Medina Transportation, operated by Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734, 1735,
its owner defendant Mariano Medina under a certificate of public convenience, left the town of and 1745, Nos. 5, 6, and 7, while the extra ordinary diligence for the safety of the passengers is further
Amadeo, Cavite, on its way to Pasay City, driven by its regular chauffeur, Conrado Saylon. There were set forth in articles 1755 and 1756.
about eighteen passengers, including the driver and conductor. Among the passengers were Juan
Bataclan, seated beside and to the right of the driver, Felipe Lara, sated to the right of Bataclan, ART. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight
another passenger apparently from the Visayan Islands whom the witnesses just called Visaya, can provide, using the utmost diligence of very cautious persons, with a due regard for all the
apparently not knowing his name, seated in the left side of the driver, and a woman named Natalia circumstances.
Villanueva, seated just behind the four last mentioned. At about 2:00 o'clock that same morning, while
the bus was running within the jurisdiction of Imus, Cavite, one of the front tires burst and the vehicle ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at
began to zig-zag until it fell into a canal or ditch on the right side of the road and turned turtle. Some of fault or to have acted negligently, unless they prove that they observed extraordinary diligence as
the passengers managed to leave the bus the best way they could, others had to be helped or pulled prescribed in articles 1733 and 1755
out, while the three passengers seated beside the driver, named Bataclan, Lara and the Visayan and
the woman behind them named Natalia Villanueva, could not get out of the overturned bus. Some of ART. 1759. Common carriers are liable for the death of or injuries to passengers through the negligence
the passengers, after they had clambered up to the road, heard groans and moans from inside the bus, or willful acts of the former's employees, although such employees may have acted beyond the scope
particularly, shouts for help from Bataclan and Lara, who said they could not get out of the bus. There of their authority or in violation of the order of the common carriers.
is nothing in the evidence to show whether or not the passengers already free from the wreck,
including the driver and the conductor, made any attempt to pull out or extricate and rescue the four This liability of the common carriers does not cease upon proof that they exercised all the diligence of a
passengers trapped inside the vehicle, but calls or shouts for help were made to the houses in the good father of a family in the selection and supervision of their employees.
neighborhood. After half an hour, came about ten men, one of them carrying a lighted torch made of
bamboo with a wick on one end, evidently fueled with petroleum. These men presumably approach ART. 1763. A common carrier responsible for injuries suffered by a passenger on account of the willful
the overturned bus, and almost immediately, a fierce fire started, burning and all but consuming the acts or negligence of other passengers or of strangers, if the common carrier's employees through the
bus, including the four passengers trapped inside it. It would appear that as the bus overturned, exercise of the diligence of a good father of a family could have prevented or stopped the act or
gasoline began to leak and escape from the gasoline tank on the side of the chassis, spreading over and omission.
permeating the body of the bus and the ground under and around it, and that the lighted torch brought
by one of the men who answered the call for help set it on fire. We agree with the trial court that the case involves a breach of contract of transportation for hire, the
Medina Transportation having undertaken to carry Bataclan safely to his destination, Pasay City. We
That same day, the charred bodies of the four deemed passengers inside the bus were removed and also agree with the trial court that there was negligence on the part of the defendant, through his
duly identified that of Juan Bataclan. By reason of his death, his widow, Salud Villanueva, in her name agent, the driver Saylon. There is evidence to show that at the time of the blow out, the bus was
and in behalf of her five minor children, brought the present suit to recover from Mariano Medina speeding, as testified to by one of the passengers, and as shown by the fact that according to the
compensatory, moral, and exemplary damages and attorney's fees in the total amount of P87,150. testimony of the witnesses, including that of the defense, from the point where one of the front tires
After trial, the Court of First Instance of Cavite awarded P1,000 to the plaintiffs plus P600 as attorney's burst up to the canal where the bus overturned after zig-zaging, there was a distance of about 150
fee, plus P100, the value of the merchandise being carried by Bataclan to Pasay City for sale and which meters. The chauffeur, after the blow-out, must have applied the brakes in order to stop the bus, but
was lost in the fire. The plaintiffs and the defendants appealed the decision to the Court of Appeals, but because of the velocity at which the bus must have been running, its momentum carried it over a
the latter endorsed the appeal to us because of the value involved in the claim in the complaint. distance of 150 meters before it fell into the canal and turned turtle.

Our new Civil Code amply provides for the responsibility of common carrier to its passengers and their There is no question that under the circumstances, the defendant carrier is liable. The only question is
goods. For purposes of reference, we are reproducing the pertinent codal provisions: to what degree. The trial court was of the opinion that the proximate cause of the death of Bataclan
was not the overturning of the bus, but rather, the fire that burned the bus, including himself and his
ART. 1733. Common carriers, from the nature of their business and for reasons of public policy, are co-passengers who were unable to leave it; that at the time the fire started, Bataclan, though he must
bound to observe extraordinary diligence in the vigilance over the goods and for the safety of the have suffered physical injuries, perhaps serious, was still alive, and so damages were awarded, not for
passengers transported by them, according to all the circumstances of each case. his death, but for the physical injuries suffered by him. We disagree. A satisfactory definition of
proximate cause is found in Volume 38, pages 695-696 of American jurisprudence, cited by plaintiffs-
appellants in their brief. It is as follows:

Page 9 of 27
fees may well be fixed at EIGHT HUNDRED (P800) PESOS for the loss of merchandise carried by the
. . . 'that cause, which, in natural and continuous sequence, unbroken by any efficient intervening deceased in the bus, is adequate and will not be disturbed.
cause, produces the injury, and without which the result would not have occurred.' And more
comprehensively, 'the proximate legal cause is that acting first and producing the injury, either There is one phase of this case which disturbs if it does not shock us. According to the evidence, one of
immediately or by setting other events in motion, all constituting a natural and continuous chain of the passengers who, because of the injuries suffered by her, was hospitalized, and while in the hospital,
events, each having a close causal connection with its immediate predecessor, the final event in the she was visited by the defendant Mariano Medina, and in the course of his visit, she overheard him
chain immediately effecting the injury as a natural and probable result of the cause which first acted, speaking to one of his bus inspectors, telling said inspector to have the tires of the bus changed
under such circumstances that the person responsible for the first event should, as an ordinary prudent immediately because they were already old, and that as a matter of fact, he had been telling the driver
and intelligent person, have reasonable ground to expect at the moment of his act or default that an to change the said tires, but that the driver did not follow his instructions. If this be true, it goes to
injury to some person might probably result therefrom. prove that the driver had not been diligent and had not taken the necessary precautions to insure the
safety of his passengers. Had he changed the tires, specially those in front, with new ones, as he had
It may be that ordinarily, when a passenger bus overturns, and pins down a passenger, merely causing been instructed to do, probably, despite his speeding, as we have already stated, the blow out would
him physical injuries, if through some event, unexpected and extraordinary, the overturned bus is set not have occurred. All in all, there is reason to believe that the driver operated and drove his vehicle
on fire, say, by lightning, or if some highwaymen after looting the vehicle sets it on fire, and the negligently, resulting in the death of four of his passengers, physical injuries to others, and the
passenger is burned to death, one might still contend that the proximate cause of his death was the fire complete loss and destruction of their goods, and yet the criminal case against him, on motion of the
and not the overturning of the vehicle. But in the present case under the circumstances obtaining in fiscal and with his consent, was provisionally dismissed, because according to the fiscal, the witnesses
the same, we do not hesitate to hold that the proximate cause was the overturning of the bus, this for on whose testimony he was banking to support the complaint, either failed or appear or were reluctant
the reason that when the vehicle turned not only on its side but completely on its back, the leaking of to testify. But the record of the case before us shows the several witnesses, passengers, in that bus,
the gasoline from the tank was not unnatural or unexpected; that the coming of the men with a lighted willingly and unhesitatingly testified in court to the effect of the said driver was negligent. In the public
torch was in response to the call for help, made not only by the passengers, but most probably, by the interest the prosecution of said erring driver should be pursued, this, not only as a matter of justice,
driver and the conductor themselves, and that because it was dark (about 2:30 in the morning), the but for the promotion of the safety of passengers on public utility buses. Let a copy of this decision be
rescuers had to carry a light with them, and coming as they did from a rural area where lanterns and furnished the Department of Justice and the Provincial Fiscal of Cavite.
flashlights were not available; and what was more natural than that said rescuers should innocently
approach the vehicle to extend the aid and effect the rescue requested from them. In other words, the In view of the foregoing, with the modification that the damages awarded by the trial court are
coming of the men with a torch was to be expected and was a natural sequence of the overturning of increased from ONE THOUSAND (P1,000) PESOS TO SIX THOUSAND (P6,000) PESOS, and from SIX
the bus, the trapping of some of its passengers and the call for outside help. What is more, the burning HUNDRED PESOS TO EIGHT HUNDRED (P800) PESOS, for the death of Bataclan and for the attorney's
of the bus can also in part be attributed to the negligence of the carrier, through is driver and its fees, respectively, the decision appealed is from hereby affirmed, with costs.
conductor. According to the witness, the driver and the conductor were on the road walking back and
forth. They, or at least, the driver should and must have known that in the position in which the Paras, C. J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J. B. L., Endencia,
overturned bus was, gasoline could and must have leaked from the gasoline tank and soaked the area and Felix, JJ., concur.
in and around the bus, this aside from the fact that gasoline when spilled, specially over a large area,
can be smelt and directed even from a distance, and yet neither the driver nor the conductor would G.R. No. L-16086 May 29, 1964
appear to have cautioned or taken steps to warn the rescuers not to bring the lighted torch too near
the bus. Said negligence on the part of the agents of the carrier come under the codal provisions M. RUIZ HIGHWAY TRANSIT, INC. and MARTIN BUENA, petitioners,
above-reproduced, particularly, Articles 1733, 1759 and 1763. vs. COURT OF APPEALS, GUILLERMO MONSERRAT and MARTA CONSIGNADO, respondents.

As regard the damages to which plaintiffs are entitled, considering the earning capacity of the T. F. Cachero for petitioners.
deceased, as well as the other elements entering into a damage award, we are satisfied that the Godofredo C. Montesines for respondents.
amount of SIX THOUSAND (P6,000) PESOS would constitute satisfactory compensation, this to include
compensatory, moral, and other damages. We also believe that plaintiffs are entitled to attorney's BENGZON, C.J.:
fees, and assessing the legal services rendered by plaintiffs' attorneys not only in the trial court, but
also in the course of the appeal, and not losing sight of the able briefs prepared by them, the attorney's Appeal by certiorari from a decision of the Court of Appeals.

Page 10 of 27
In the Laguna court of first instance, the spouses Guillermo Monserrat and Marta Consignado sued M. On the contrary, the appellate court found that the bus was overcrowded and overspeeding, and the
Ruiz Highway Transit, Inc., and Martin Buena to recover damages for the death of their four-year old floor thereof was weak — persuasive indications of negligence; and reasoned out that the tire
daughter Victoria. exploded due to one or a combination of the following: "The tire was not strong and safe; the air
pressure was not properly checked; the load was heavy; the excessive speed of the bus must have
In the morning of May 22, 1954, said child and her parents were paying passengers in a bus of overstrained the tire; and the high velocity generated heat in the tire which could have expanded the
defendant transportation company driven by co-defendant Buena, bound for Antipolo, Rizal. In Sta. already compressed air therein."2
Rosa, Laguna, while the bus was running, a rear tire exploded, blasting a hole in the very place where
Victoria was standing in front of her mother. As a result, the child fell through the hole, and died that Petitioners venture to guess that it was due either to accidental puncture by a sharp instrument, as a
same morning from injuries sustained in the fall.1äwphï1.ñët nail, or to latent defect in the tire. Evidence should have been — but was not — presented to establish
such defense.
The court of first instance dismissed the complaint on the ground that (1) the accident was not due to
negligence of the carrier, but was an act of God; and (2) even if negligence was attributable to Even conceding that the tire blow-out was accidental, we could still hold the carrier liable for failure to
defendants, their liability had been discharged, as evidenced by Exhibits 2 and 3 quoted in the provide a safe floor in the bus.
footnote. 1
Exhibits 2 and 3 are not proof that petitioners have discharged their legal liability to claimants. What is
On appeal by plaintiffs, the Court of Appeals reversed the judgment, upon the finding that (1) expressed there is the latter's belief — clearly erroneous — that petitioners are not liable to them and
defendants failed to prove the extraordinary diligence required of carriers; and (2) Exhibits 2 and 3 did acknowledgment of the voluntary help extended by petitioner transportation company. The belief is
not effect a waiver of plaintiffs' right to damages. Said appellate court, therefore, required defendants baseless. That respondents entertained such an ill-founded impression is not to be wondered at. They
to pay plaintiffs P6,000.00 as indemnity for the child's death; P2,000.00 as moral damages and P500.00 are ignorant, illiterate, indigent, and, at the time they signed Exhibits 2 and 3, thoroughly confused and
as attorney's fees, with interest from the date of its decision, (minus the P150.00 that had been given distracted by the death of their child.
to plaintiff Guillermo Monserrat, thru Exhibit 3).
The minimum death indemnity is P3,0003, although this Court has in various instances granted
In their petition for review by certiorari, the carrier and the driver raise the following issues: (1) P6,000.00. As for moral damages, the carrier is liable therefor to the parents of a child who meets
whether in a contract of carriage breached by the passenger's death, his parents may be granted moral death while a passenger in any of the carrier's vehicles (Arts. 2206 and 1764, New Civil Code). Since
damages; and (2) whether the sum of P6,000.00 may be awarded as death indemnity for a child respondents are indigents, and have litigated as paupers, they should be allowed attorney's fees of
passenger. In their brief, they pose the following questions in addition to the above issues; (3) was P500.00.
there a contract of carriage between the deceased child and petitioner transportation company; (4)
have petitioners rebutted the presumption that they have been negligent; (5) was the bus crowded; (6) FOR THESE REASONS, the appealed decision is affirmed, with costs.
was the bus running fast when the tire exploded; (7) what caused the bursting of the tire; (8) was the
bus floor weak; (9) was the blow-out of the tire caso fortuito; and (10) was petitioners' liability G.R. No. 85691 July 31, 1990
cancelled by Exhibits 2 and 3?
BACHELOR EXPRESS, INCORPORATED, and CRESENCIO RIVERA, petitioners,
The alleged lack of a contract of carriage between the deceased child and petitioner transportation vs. THE HONORABLE COURT OF APPEALS (Sixth Division), RICARDO BETER, SERGIA BETER, TEOFILO
company, if true, is a complete defense against claimants' cause of action. However, the issue is now RAUTRAUT and ZOETERA RAUTRAUT, respondents.
inarguable, it being partly factual, on which the appellate court made its finding.
Aquino W. Gambe for petitioners.
Respondents and the child were paying passengers in the bus; petitioners were duty bound to
transport them, using the utmost diligence of very cautious persons (Art. 1755, New Civil Code). Tranquilino O. Calo, Jr. for private respondents.
Therein they failed. The child died because the floor of the bus gave way; this reinforces the
presumption that petitioners had neglected to provide a safe conveyance (Art. 1756, New Civil Code).
Evidence of the required extraordinary diligence was not introduced to rebut the presumption. GUTIERREZ, JR., J.:

Page 11 of 27
This is a petition for review of the decision of the Court of Appeals which reversed and set aside the
order of the Regional Trial Court, Branch I, Butuan City dismissing the private respondents' complaint 2) To the heirs of Narcisa Rautraut, the amount of Forty Five Thousand Pesos (P45,000.00) for
for collection of "a sum of money" and finding the petitioners solidarily liable for damages in the total straight death indemnity, moral damages and attorney's fees. Costs against appellees. (Rollo, pp. 71-
amount of One Hundred Twenty Thousand Pesos (P120,000.00). The petitioners also question the 72)
appellate court's resolution denying a motion for reconsideration.
The petitioners now pose the following questions
On August 1, 1980, Bus No. 800 owned by Bachelor Express, Inc. and driven by Cresencio Rivera was
the situs of a stampede which resulted in the death of passengers Ornominio Beter and Narcisa What was the proximate cause of the whole incident? Why were the passengers on board the bus
Rautraut. panicked (sic) and why were they shoving one another? Why did Narcisa Rautraut and Ornominio Beter
jump off from the running bus?
The evidence shows that the bus came from Davao City on its way to Cagayan de Oro City passing
Butuan City; that while at Tabon-Tabon, Butuan City, the bus picked up a passenger; that about fifteen The petitioners opine that answers to these questions are material to arrive at "a fair, just and
(15) minutes later, a passenger at the rear portion suddenly stabbed a PC soldier which caused equitable judgment." (Rollo, p. 5) They claim that the assailed decision is based on a misapprehension
commotion and panic among the passengers; that when the bus stopped, passengers Ornominio Beter of facts and its conclusion is grounded on speculation, surmises or conjectures.
and Narcisa Rautraut were found lying down the road, the former already dead as a result of head
injuries and the latter also suffering from severe injuries which caused her death later. The passenger As regards the proximate cause of the death of Ornominio Beter and Narcisa Rautraut, the petitioners
assailant alighted from the bus and ran toward the bushes but was killed by the police. Thereafter, the maintain that it was the act of the passenger who ran amuck and stabbed another passenger of the
heirs of Ornominio Beter and Narcisa Rautraut, private respondents herein (Ricardo Beter and Sergia bus. They contend that the stabbing incident triggered off the commotion and panic among the
Beter are the parents of Ornominio while Teofilo Rautraut and Zoetera [should be Zotera] Rautraut are passengers who pushed one another and that presumably out of fear and moved by that human
the parents of Narcisa) filed a complaint for "sum of money" against Bachelor Express, Inc. its alleged instinct of self-preservation Beter and Rautraut jumped off the bus while the bus was still running
owner Samson Yasay and the driver Rivera. resulting in their untimely death." (Rollo, p. 6) Under these circumstances, the petitioners asseverate
that they were not negligent in the performance of their duties and that the incident was completely
In their answer, the petitioners denied liability for the death of Ornominio Beter and Narcisa Rautraut. and absolutely attributable to a third person, the passenger who ran amuck, for without his criminal
They alleged that ... the driver was able to transport his passengers safely to their respective places of act, Beter and Rautraut could not have been subjected to fear and shock which compelled them to
destination except Ornominio Beter and Narcisa Rautraut who jumped off the bus without the jump off the running bus. They argue that they should not be made liable for damages arising from acts
knowledge and consent, much less, the fault of the driver and conductor and the defendants in this of third persons over whom they have no control or supervision.
case; the defendant corporation had exercised due diligence in the choice of its employees to avoid as
much as possible accidents; the incident on August 1, 1980 was not a traffic accident or vehicular Furthermore, the petitioners maintain that the driver of the bus, before, during and after the incident
accident; it was an incident or event very much beyond the control of the defendants; defendants were was driving cautiously giving due regard to traffic rules, laws and regulations. The petitioners also argue
not parties to the incident complained of as it was an act of a third party who is not in any way that they are not insurers of their passengers as ruled by the trial court.
connected with the defendants and of which the latter have no control and supervision; ..." (Rollo, pp.
112-113).i•t•c-aüsl The liability, if any, of the petitioners is anchored on culpa contractual or breach of contract of carriage.
The applicable provisions of law under the New Civil Code are as follows:
After due trial, the trial court issued an order dated August 8, 1985 dismissing the complaint.
ART. 1732. Common carriers are persons, corporations, firms or associations engaged in the business of
Upon appeal however, the trial court's decision was reversed and set aside. The dispositive portion of carrying or transporting passengers or goods or both by land, water, or air, for compensation, offering
the decision of the Court of Appeals states: their services to the public.

WHEREFORE, the Decision appealed from is REVERSED and SET ASIDE and a new one entered finding ART. 1733. Common carriers, from the nature of their business and for reasons of public policy, are
the appellees jointly and solidarily liable to pay the plaintiffs-appellants the following amounts: 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.
1) To the heirs of Ornominio Beter, the amount of Seventy Five Thousand Pesos (P75,000.00) in
loss of earnings and support, moral damages, straight death indemnity and attorney's fees; and, xxx xxx xxx

Page 12 of 27
... The Spanish authorities regard the language employed as an effort to define the term 'caso fortuito'
ART. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight and hold that the two expressions are synonymous. (Manresa Comentarios al Codigo Civil Español, vol.
can provide, using the utmost diligence of very cautious persons, with a due regard for all the 8, pp. 88 et seq.; Scaevola, Codigo Civil, vol. 19, pp. 526 et seq.)
circumstances.
The antecedent to Article 1105 is found in Law II, Title 33, Partida 7, which defines caso fortuito as
ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to have been at 'occasion que acaese por aventura de que non se puede ante ver. E son estos, derrivamientos de casas
fault or to have acted negligently, unless they prove that they observed extraordinary diligence as e fuego que enciende a so ora, e quebrantamiento de navio, fuerca de ladrones' (An event that takes
prescribed in Articles 1733 and 1755. place by incident and could not have been foreseen. Examples of this are destruction of houses,
unexpected fire, shipwreck, violence of robbers ...)
There is no question that Bachelor Express, Inc. is a common carrier. Hence, from the nature of its
business and for reasons of public policy Bachelor Express, Inc. is bound to carry its passengers safely as Escriche defines caso fortuito as an unexpected event or act of God which could neither be foreseen
far as human care and foresight can provide using the utmost diligence of very cautious persons, with a nor resisted, such as floods, torrents, shipwrecks, conflagrations, lightning, compulsion, insurrections,
due regard for all the circumstances. destruction of buildings by unforeseen accidents and other occurrences of a similar nature.

In the case at bar, Ornominio Beter and Narcisa Rautraut were passengers of a bus belonging to In discussing and analyzing the term caso fortuito the Enciclopedia Juridica Española says: 'In a legal
petitioner Bachelor Express, Inc. and, while passengers of the bus, suffered injuries which caused their sense and, consequently, also in relation to contracts, a caso fortuito presents the following essential
death. Consequently, pursuant to Article 1756 of the Civil Code, petitioner Bachelor Express, Inc. is characteristics: (1) The cause of the unforeseen and unexpected occurrence, or of the failure of the
presumed to have acted negligently unless it can prove that it had observed extraordinary diligence in debtor to comply with his obligation, must be independent of the human will. (2) It must be impossible
accordance with Articles 1733 and 1755 of the New Civil Code. to foresee the event which constitutes the caso fortuito, or if it can be foreseen, it must be impossible
to avoid. (3) The occurrence must be such as to render it impossible for the debtor to fulfill his
Bachelor Express, Inc. denies liability for the death of Beter and Rautraut on its posture that the death obligation in a normal manner. And (4) the obligor (debtor) must be free from any participation in the
of the said passengers was caused by a third person who was beyond its control and supervision. In aggravation of the injury resulting to the creditor. (5) Enciclopedia Juridica Española, 309)
effect, the petitioner, in order to overcome the presumption of fault or negligence under the law,
states that the vehicular incident resulting in the death of passengers Beter and Rautraut was caused As will be seen, these authorities agree that some extraordinary circumstance independent of the will
by force majeure or caso fortuito over which the common carrier did not have any control. of the obligor or of his employees, is an essential element of a caso fortuito. ...

Article 1174 of the present Civil Code states: The running amuck of the passenger was the proximate cause of the incident as it triggered off a
commotion and panic among the passengers such that the passengers started running to the sole exit
Except in cases expressly specified by law, or when it is otherwise declared by stipulations, or when the shoving each other resulting in the falling off the bus by passengers Beter and Rautraut causing them
nature of the obligation requires the assumption of risk, no person shall be responsible for those fatal injuries. The sudden act of the passenger who stabbed another passenger in the bus is within the
events which could not be foreseen, or which though foreseen, were inevitable. context of force majeure.

The above-mentioned provision was substantially copied from Article 1105 of the old Civil Code which However, in order that a common carrier may be absolved from liability in case of force majeure, it is
states" not enough that the accident was caused by force majeure. The common carrier must still prove that it
was not negligent in causing the injuries resulting from such accident. Thus, as early as 1912, we ruled:
No one shall be liable for events which could not be foreseen or which, even if foreseen, were
inevitable, with the exception of the cases in which the law expressly provides otherwise and those in From all the foregoing, it is concluded that the defendant is not liable for the loss and damage of the
which the obligation itself imposes liability. goods shipped on the lorcha Pilar by the Chinaman, Ong Bien Sip, inasmuch as such loss and damage
were the result of a fortuitous event or force majeure, and there was no negligence or lack of care and
In the case of Lasam v. Smith (45 Phil. 657 [1924]), we defined "events" which cannot be foreseen and diligence on the part of the defendant company or its agents. (Tan Chiong Sian v. Inchausti & Co., 22
which, having been foreseen, are inevitable in the following manner: Phil. 152 [1912]; Emphasis supplied).

Page 13 of 27
This principle was reiterated in a more recent case, Batangas Laguna Tayabas Co. v. Intermediate defendant common carrier is not liable for the death of the said passengers which it implicitly
Appellate Court (167 SCRA 379 [1988]), wherein we ruled: attributed to the unforeseen acts of the unidentified passenger who went amuck.

... [F]or their defense of force majeure or act of God to prosper the accident must be due to natural There is nothing in the record to support the conclusion that the solitary door of the bus was locked as
causes and exclusively without human intervention. (Emphasis supplied) to prevent the passengers from passing through. Leonila Cullano, testifying for the defense, clearly
stated that the conductor opened the door when the passengers were shouting that the bus stop while
Therefore, the next question to be determined is whether or not the petitioner's common carrier they were in a state of panic. Sergia Beter categorically stated that she actually saw her son fall from
observed extraordinary diligence to safeguard the lives of its passengers. the bus as the door was forced open by the force of the onrushing passengers.

In this regard the trial court and the appellate court arrived at conflicting factual findings. Pedro Collango, on the other hand, testified that he shut the door after the last passenger had boarded
the bus. But he had quite conveniently neglected to say that when the passengers had panicked, he
The trial court found the following facts: himself panicked and had gone to open the door. Portions of the testimony of Leonila Cullano, quoted
below, are illuminating:
The parties presented conflicting evidence as to how the two deceased Narcisa Rautruat and
Ornominio Beter met their deaths. xxx xxx xxx

However, from the evidence adduced by the plaintiffs, the Court could not see why the two deceased Q When you said the conductor opened the door, the door at the front or rear portion of the
could have fallen off the bus when their own witnesses testified that when the commotion ensued bus?
inside the bus, the passengers pushed and shoved each other towards the door apparently in order to
get off from the bus through the door. But the passengers also could not pass through the door A Front door.
because according to the evidence the door was locked.
Q And these two persons whom you said alighted, where did they pass, the fron(t) door or rear door?
On the other hand, the Court is inclined to give credence to the evidence adduced by the defendants
that when the commotion ensued inside the bus, the two deceased panicked and, in state of shock and A Front door.
fear, they jumped off from the bus by passing through the window.
xxx xxx xxx
It is the prevailing rule and settled jurisprudence that transportation companies are not insurers of
their passengers. The evidence on record does not show that defendants' personnel were negligent in (Tsn., p. 4, Aug. 8, 1984)
their duties. The defendants' personnel have every right to accept passengers absent any manifestation
of violence or drunkenness. If and when such passengers harm other passengers without the xxx xxx xxx
knowledge of the transportation company's personnel, the latter should not be faulted. (Rollo, pp. 46-
47) Q What happened after there was a commotion at the rear portion of the bus?

A thorough examination of the records, however, show that there are material facts ignored by the A When the commotion occurred, I stood up and I noticed that there was a passenger who was
trial court which were discussed by the appellate court to arrive at a different conclusion. These sounded (sic). The conductor panicked because the passengers were shouting 'stop, stop'. The
circumstances show that the petitioner common carrier was negligent in the provision of safety conductor opened the bus.'
precautions so that its passengers may be transported safely to their destinations. The appellate court
states: (Tsn. p. 3, August 8, 1984).

A critical eye must be accorded the lower court's conclusions of fact in its tersely written ratio Accordingly, there is no reason to believe that the deceased passengers jumped from the window
decidendi. The lower court concluded that the door of the bus was closed; secondly, the passengers, when it was entirely possible for them to have alighted through the door. The lower court's reliance on
specifically the two deceased, jumped out of the window. The lower court therefore concluded that the the testimony of Pedro Collango, as the conductor and employee of the common carrier, is unjustified,
in the light of the clear testimony of Leonila Cullano as the sole uninterested eyewitness of the entire

Page 14 of 27
episode. Instead we find Pedro Collango's testimony to be infused by bias and fraught with
inconsistencies, if not notably unreliable for lack of veracity. On direct examination, he testified: (Tsn., pp. 4-5, Oct. 17, 1983).

xxx xxx xxx At such speed of not less than 30 to 40 miles ..., or about 48 to 65 kilometers per hour, the speed of the
bus could scarcely be considered slow considering that according to Collango himself, the bus had just
Q So what happened to the passengers inside your bus? come from a full stop after picking a passenger (Tsn, p. 4, Id.) and that the bus was still on its second or
third gear (Tsn., p. 12, Id.).
A Some of the passengers jumped out of the window.
In the light of the foregoing, the negligence of the common carrier, through its employees, consisted of
COURT: the lack of extraordinary diligence required of common carriers, in exercising vigilance and utmost care
of the safety of its passengers, exemplified by the driver's belated stop and the reckless opening of the
Q While the bus was in motion? doors of the bus while the same was travelling at an appreciably fast speed. At the same time, the
common carrier itself acknowledged, through its administrative officer, Benjamin Granada, that the bus
A Yes, your Honor, but the speed was slow because we have just picked up a passenger. was commissioned to travel and take on passengers and the public at large, while equipped with only a
solitary door for a bus its size and loading capacity, in contravention of rules and regulations provided
Atty. Gambe: for under the Land Transportation and Traffic Code (RA 4136 as amended.) (Rollo, pp. 23-26)

Q You said that at the time of the incident the bus was running slow because you have just picked up a Considering the factual findings of the Court of Appeals-the bus driver did not immediately stop the bus
passenger. Can you estimate what was your speed at that time? at the height of the commotion; the bus was speeding from a full stop; the victims fell from the bus
door when it was opened or gave way while the bus was still running; the conductor panicked and blew
Atty. Calo: his whistle after people had already fallen off the bus; and the bus was not properly equipped with
doors in accordance with law-it is clear that the petitioners have failed to overcome the presumption of
No basis, your Honor, he is neither a driver nor a conductor. fault and negligence found in the law governing common carriers.

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

Not less than 30 to 40 miles. The petitioners also contend that the private respondents failed to show to the court that they are the
parents of Ornominio Beter and Narcisa Rautraut respectively and therefore have no legal personality
COURT: to sue the petitioners. This argument deserves scant consideration. We find this argument a belated
attempt on the part of the petitioners to avoid liability for the deaths of Beter and Rautraut. The
Kilometers or miles? private respondents were Identified as the parents of the victims by witnesses during the trial and the
trial court recognized them as such. The trial court dismissed the complaint solely on the ground that
A Miles. the petitioners were not negligent.

Atty. Gambe: Finally, the amount of damages awarded to the heirs of Beter and Rautraut by the appellate court is
supported by the evidence. The appellate court stated:
Q That is only your estimate by your experience?
Ornominio Beter was 32 years of age at the time of his death, single, in good health and rendering
A Yes, sir, estimate. support and service to his mother. As far as Narcisa Rautraut is concerned, the only evidence adduced

Page 15 of 27
is to the effect that at her death, she was 23 years of age, in good health and without visible means of
support. WHEREFORE, the instant petition is DISMISSED. The questioned decision dated May 19, 1988 and the
resolution dated August 1, 1988 of the Court of Appeals are AFFIRMED.
In accordance with Art. 1764 in conjunction with Art. 2206 of the Civil Code, and established
jurisprudence, several factors may be considered in determining the award of damages, namely: 1) life SO ORDERED.
expectancy (considering the state of health of the deceased and the mortality tables are deemed
conclusive) and loss of earning capacity; (2) pecuniary loss, loss of support and service; and (3) moral G.R. No. L-12191 October 14, 1918
and mental suffering (Alcantara, et al. v. Surro, et al., 93 Phil. 470).
JOSE CANGCO, plaintiff-appellant,
In the case of People v. Daniel (No. L-66551, April 25, 1985, 136 SCRA 92, at page 104), the High vs. MANILA RAILROAD CO., defendant-appellee.
Tribunal, reiterating the rule in Villa Rey Transit, Inc. v. Court of Appeals (31 SCRA 511), stated that the
amount of loss of earring capacity is based mainly on two factors, namely, (1) the number of years on Ramon Sotelo for appellant.
the basis of which the damages shall be computed; and (2) the rate at which the losses sustained by Kincaid & Hartigan for appellee.
the heirs should be fixed.

As the formula adopted in the case of Davila v. Philippine Air Lines, 49 SCRA 497, at the age of 30 one's FISHER, J.:
normal life expectancy is 33-1/3 years based on the American Expectancy Table of Mortality (2/3 x 80-
32).i•t•c-aüsl By taking into account the pace and nature of the life of a carpenter, it is reasonable to At the time of the occurrence which gave rise to this litigation the plaintiff, Jose Cangco, was in the
make allowances for these circumstances and reduce the life expectancy of the deceased Ornominio employment of Manila Railroad Company in the capacity of clerk, with a monthly wage of P25. He lived
Beter to 25 years (People v. Daniel, supra). To fix the rate of losses it must be noted that Art. 2206 in the pueblo of San Mateo, in the province of Rizal, which is located upon the line of the defendant
refers to gross earnings less necessary living expenses of the deceased, in other words, only net railroad company; and in coming daily by train to the company's office in the city of Manila where he
earnings are to be considered (People v. Daniel, supra; Villa Rey Transit, Inc. v. Court of Appeals, supra). 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
Applying the foregoing rules with respect to Ornominio Beter, it is both just and reasonable, in the second class-car where he was riding and, making, his exit through the door, took his position
considering his social standing and position, to fix the deductible, living and incidental expenses at the upon the steps of the coach, seizing the upright guardrail with his right hand for support.
sum of Four Hundred Pesos (P400.00) a month, or Four Thousand Eight Hundred Pesos (P4,800.00)
annually. As to his income, considering the irregular nature of the work of a daily wage carpenter which On the side of the train where passengers alight at the San Mateo station there is a cement platform
is seasonal, it is safe to assume that he shall have work for twenty (20) days a month at Twenty Five which begins to rise with a moderate gradient some distance away from the company's office and
Pesos (P150,000.00) for twenty five years. Deducting therefrom his necessary expenses, his heirs would extends along in front of said office for a distance sufficient to cover the length of several coaches. As
be entitled to Thirty Thousand Pesos (P30,000.00) representing loss of support and service the train slowed down another passenger, named Emilio Zuñiga, also an employee of the railroad
(P150,000.00 less P120,000.00). In addition, his heirs are entitled to Thirty Thousand Pesos company, got off the same car, alighting safely at the point where the platform begins to rise from the
(P30,000.00) as straight death indemnity pursuant to Article 2206 (People v. Daniel, supra). For level of the ground. When the train had proceeded a little farther the plaintiff Jose Cangco stepped off
damages for their moral and mental anguish, his heirs are entitled to the reasonable sum of P10,000.00 also, but one or both of his feet came in contact with a sack of watermelons with the result that his
as an exception to the general rule against moral damages in case of breach of contract rule Art. 2200 feet slipped from under him and he fell violently on the platform. His body at once rolled from the
(Necesito v. Paras, 104 Phil. 75). As attorney's fees, Beter's heirs are entitled to P5,000.00. All in all, the platform and was drawn under the moving car, where his right arm was badly crushed and lacerated. It
plaintiff-appellants Ricardo and Sergia Beter as heirs of their son Ornominio are entitled to an appears that after the plaintiff alighted from the train the car moved forward possibly six meters
indemnity of Seventy Five Thousand Pesos (P75,000.00). before it came to a full stop.

In the case of Narcisa Rautraut, her heirs are entitled to a straight death indemnity of Thirty Thousand The accident occurred between 7 and 8 o'clock on a dark night, and as the railroad station was lighted
Pesos (P30,000.00), to moral damages in the amount of Ten Thousand Pesos (P10,000.00) and Five dimly by a single light located some distance away, objects on the platform where the accident
Thousand Pesos (P5,000.00) as attorney's fees, or a total of Forty Five Thousand Pesos (P45,000.00) as occurred were difficult to discern especially to a person emerging from a lighted car.
total indemnity for her death in the absence of any evidence that she had visible means of support.
(Rollo, pp. 30-31)

Page 16 of 27
The explanation of the presence of a sack of melons on the platform where the plaintiff alighted is to extra-contractual obligations — or to use the technical form of expression, that article relates only to
found in the fact that it was the customary season for harvesting these melons and a large lot had been culpa aquiliana and not to culpa contractual.
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 Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104 of the Civil Code, clearly points
was so placed of melons and the edge of platform; and it is clear that the fall of the plaintiff was due to out this distinction, which was also recognized by this Court in its decision in the case of Rakes vs.
the fact that his foot alighted upon one of these melons at the moment he stepped upon the platform. Atlantic, Gulf and Pacific Co. (7 Phil. rep., 359). In commenting upon article 1093 Manresa clearly points
His statement that he failed to see these objects in the darkness is readily to be credited. 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
The plaintiff was drawn from under the car in an unconscious condition, and it appeared that the accident in the performance of an obligation already existing . . . ."
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 In the Rakes case (supra) the decision of this court was made to rest squarely upon the proposition that
of this operation was unsatisfactory, and the plaintiff was then carried to another hospital where a article 1903 of the Civil Code is not applicable to acts of negligence which constitute the breach of a
second operation was performed and the member was again amputated higher up near the shoulder. contract.
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 this point the Court said:

Upon August 31, 1915, he instituted this proceeding in the Court of First Instance of the city of Manila The acts to which these articles [1902 and 1903 of the Civil Code] are applicable are understood to be
to recover damages of the defendant company, founding his action upon the negligence of the servants those not growing out of pre-existing duties of the parties to one another. But where relations already
and employees of the defendant in placing the sacks of melons upon the platform and leaving them so formed give rise to duties, whether springing from contract or quasi-contract, then breaches of those
placed as to be a menace to the security of passenger alighting from the company's trains. At the duties are subject to article 1101, 1103, and 1104 of the same code. (Rakes vs. Atlantic, Gulf and Pacific
hearing in the Court of First Instance, his Honor, the trial judge, found the facts substantially as above Co., 7 Phil. Rep., 359 at 365.)
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 This distinction is of the utmost importance. The liability, which, under the Spanish law, is, in certain
passing to and from the cars, nevertheless, the plaintiff himself had failed to use due caution in cases imposed upon employers with respect to damages occasioned by the negligence of their
alighting from the coach and was therefore precluded form recovering. Judgment was accordingly employees to persons to whom they are not bound by contract, is not based, as in the English Common
entered in favor of the defendant company, and the plaintiff appealed. 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
It can not be doubted that the employees of the railroad company were guilty of negligence in piling imposes upon all persons who by their fault or negligence, do injury to another, the obligation of
these sacks on the platform in the manner above stated; that their presence caused the plaintiff to fall making good the damage caused. One who places a powerful automobile in the hands of a servant
as he alighted from the train; and that they therefore constituted an effective legal cause of the injuries whom he knows to be ignorant of the method of managing such a vehicle, is himself guilty of an act of
sustained by the plaintiff. It necessarily follows that the defendant company is liable for the damage negligence which makes him liable for all the consequences of his imprudence. The obligation to make
thereby occasioned unless recovery is barred by the plaintiff's own contributory negligence. In good the damage arises at the very instant that the unskillful servant, while acting within the scope of
resolving this problem it is necessary that each of these conceptions of liability, to-wit, the primary his employment causes the injury. The liability of the master is personal and direct. But, if the master
responsibility of the defendant company and the contributory negligence of the plaintiff should be has not been guilty of any negligence whatever in the selection and direction of the servant, he is not
separately examined. liable for the acts of the latter, whatever done within the scope of his employment or not, if the
damage done by the servant does not amount to a breach of the contract between the master and the
It is important to note that the foundation of the legal liability of the defendant is the contract of person injured.
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 It is not accurate to say that proof of diligence and care in the selection and control of the servant
performance. That is to say, its liability is direct and immediate, differing essentially, in legal viewpoint relieves the master from liability for the latter's acts — on the contrary, that proof shows that the
from that presumptive responsibility for the negligence of its servants, imposed by article 1903 of the responsibility has never existed. As Manresa says (vol. 8, p. 68) the liability arising from extra-
Civil Code, which can be rebutted by proof of the exercise of due care in their selection and contractual culpa is always based upon a voluntary act or omission which, without willful intent, but by
supervision. Article 1903 of the Civil Code is not applicable to obligations arising ex contractu, but only mere negligence or inattention, has caused damage to another. A master who exercises all possible

Page 17 of 27
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 Every legal obligation must of necessity be extra-contractual or contractual. Extra-contractual
diligence, thereby performs his duty to third persons to whom he is bound by no contractual ties, and obligation has its source in the breach or omission of those mutual duties which civilized society
he incurs no liability whatever if, by reason of the negligence of his servants, even within the scope of imposes upon it members, or which arise from these relations, other than contractual, of certain
their employment, such third person suffer damage. True it is that under article 1903 of the Civil Code members of society to others, generally embraced in the concept of status. The legal rights of each
the law creates a presumption that he has been negligent in the selection or direction of his servant, member of society constitute the measure of the corresponding legal duties, mainly negative in
but the presumption is rebuttable and yield to proof of due care and diligence in this respect. character, which the existence of those rights imposes upon all other members of society. The breach
The supreme court of Porto Rico, in interpreting identical provisions, as found in the Porto Rico Code, of these general duties whether due to willful intent or to mere inattention, if productive of injury, give
has held that these articles are applicable to cases of extra-contractual culpa exclusively. (Carmona vs. rise to an obligation to indemnify the injured party. The fundamental distinction between obligations of
Cuesta, 20 Porto Rico Reports, 215.) 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,
This distinction was again made patent by this Court in its decision in the case of Bahia vs. Litonjua and whereas in contractual relations the vinculum exists independently of the breach of the voluntary duty
Leynes, (30 Phil. rep., 624), which was an action brought upon the theory of the extra-contractual assumed by the parties when entering into the contractual relation.
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 With respect to extra-contractual obligation arising from negligence, whether of act or omission, it is
the Civil Code, said: 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,
From this article two things are apparent: (1) That when an injury is caused by the negligence of a without regard to the lack of moral culpability, so as to include responsibility for the negligence of
servant or employee there instantly arises a presumption of law that there was negligence on the part those person who acts or mission are imputable, by a legal fiction, to others who are in a position to
of the master or employer either in selection of the servant or employee, or in supervision over him exercise an absolute or limited control over them. The legislature which adopted our Civil Code has
after the selection, or both; and (2) that that presumption is juris tantum and not juris et de jure, and elected to limit extra-contractual liability — with certain well-defined exceptions — to cases in which
consequently, may be rebutted. It follows necessarily that if the employer shows to the satisfaction of moral culpability can be directly imputed to the persons to be charged. This moral responsibility may
the court that in selection and supervision he has exercised the care and diligence of a good father of a consist in having failed to exercise due care in the selection and control of one's agents or servants, or
family, the presumption is overcome and he is relieved from liability. 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.
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 The position of a natural or juridical person who has undertaken by contract to render service to
contrast to the American doctrine that, in relations with strangers, the negligence of the servant in another, is wholly different from that to which article 1903 relates. When the sources of the obligation
conclusively the negligence of the master. 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
The opinion there expressed by this Court, to the effect that in case of extra-contractual culpa based a contractual undertaking by defendant for the benefit of plaintiff, and it is alleged that plaintiff has
upon negligence, it is necessary that there shall have been some fault attributable to the defendant failed or refused to perform the contract, it is not necessary for plaintiff to specify in his pleadings
personally, and that the last paragraph of article 1903 merely establishes a rebuttable presumption, is whether the breach of the contract is due to willful fault or to negligence on the part of the defendant,
in complete accord with the authoritative opinion of Manresa, who says (vol. 12, p. 611) that the or of his servants or agents. Proof of the contract and of its nonperformance is sufficient prima facie to
liability created by article 1903 is imposed by reason of the breach of the duties inherent in the special warrant a recovery.
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. 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
On the other hand, the liability of masters and employers for the negligent acts or omissions of their contrary, in a case of negligence which presupposes the existence of a contractual obligation, if the
servants or agents, when such acts or omissions cause damages which amount to the breach of a creditor shows that it exists and that it has been broken, it is not necessary for him to prove negligence.
contact, is not based upon a mere presumption of the master's negligence in their selection or control, (Manresa, vol. 8, p. 71 [1907 ed., p. 76]).
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.

Page 18 of 27
As it is not necessary for the plaintiff in an action for the breach of a contract to show that the breach to get adrift by the negligence of defendant's servants in the course of the performance of a contract of
was due to the negligent conduct of defendant or of his servants, even though such be in fact the towage. The court held, citing Manresa (vol. 8, pp. 29, 69) that if the "obligation of the defendant grew
actual cause of the breach, it is obvious that proof on the part of defendant that the negligence or out of a contract made between it and the plaintiff . . . we do not think that the provisions of articles
omission of his servants or agents caused the breach of the contract would not constitute a defense to 1902 and 1903 are applicable to the case."
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 In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff sued the defendant to recover
of agents or servants in the performance of their contracts, would be in a better position than those damages for the personal injuries caused by the negligence of defendant's chauffeur while driving
acting in person. If one delivers a valuable watch to watchmaker who contract to repair it, and the defendant's automobile in which defendant was riding at the time. The court found that the damages
bailee, by a personal negligent act causes its destruction, he is unquestionably liable. Would it be were caused by the negligence of the driver of the automobile, but held that the master was not liable,
logical to free him from his liability for the breach of his contract, which involves the duty to exercise although he was present at the time, saying:
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 . . . unless the negligent acts of the driver are continued for a length of time as to give the owner a
immunity from damages arising from the breach of their contracts if caused by negligent acts as such reasonable opportunity to observe them and to direct the driver to desist therefrom. . . . The act
juridical persons can of necessity only act through agents or servants, and it would no doubt be true in complained of must be continued in the presence of the owner for such length of time that the owner
most instances that reasonable care had been taken in selection and direction of such servants. If one by his acquiescence, makes the driver's acts his own.
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 In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage & Taxicab Co. (33 Phil. Rep., 8), it is
of liability for the breach of its contract to return the collateral upon the payment of the debt by true that the court rested its conclusion as to the liability of the defendant upon article 1903, although
proving that due care had been exercised in the selection and direction of the clerk? 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
This distinction between culpa aquiliana, as the source of an obligation, and culpa contractual as a article 1903, in dealing with the liability of a master for the negligent acts of his servants "makes the
mere incident to the performance of a contract has frequently been recognized by the supreme court distinction between private individuals and public enterprise;" that as to the latter the law creates a
of Spain. (Sentencias of June 27, 1894; November 20, 1896; and December 13, 1896.) In the decisions rebuttable presumption of negligence in the selection or direction of servants; and that in the
of November 20, 1896, it appeared that plaintiff's action arose ex contractu, but that defendant sought particular case the presumption of negligence had not been overcome.
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: 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
These are not cases of injury caused, without any pre-existing obligation, by fault or negligence, such as of the pleadings and of the briefs shows that the questions of law were in fact discussed upon this
those to which article 1902 of the Civil Code relates, but of damages caused by the defendant's failure theory. Viewed from the standpoint of the defendant the practical result must have been the same in
to carry out the undertakings imposed by the contracts . . . . 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
A brief review of the earlier decision of this court involving the liability of employers for damage done defendant had been guilty of negligence in its failure to exercise proper discretion in the direction of
by the negligent acts of their servants will show that in no case has the court ever decided that the the servant. Defendant was, therefore, liable for the injury suffered by plaintiff, whether the breach of
negligence of the defendant's servants has been held to constitute a defense to an action for damages the duty were to be regarded as constituting culpa aquiliana or culpa contractual. As Manresa points
for breach of contract. 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
In the case of Johnson vs. David (5 Phil. Rep., 663), the court held that the owner of a carriage was not essential characteristics are identical. There is always an act or omission productive of damage due to
liable for the damages caused by the negligence of his driver. In that case the court commented on the carelessness or inattention on the part of the defendant. Consequently, when the court holds that a
fact that no evidence had been adduced in the trial court that the defendant had been negligent in the defendant is liable in damages for having failed to exercise due care, either directly, or in failing to
employment of the driver, or that he had any knowledge of his lack of skill or carefulness. 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
In the case of Baer Senior & Co's Successors vs. Compania Maritima (6 Phil. Rep., 215), the plaintiff that defendant was liable for the damages negligently caused by its servants to a person to whom it
sued the defendant for damages caused by the loss of a barge belonging to plaintiff which was allowed was bound by contract, and made reference to the fact that the defendant was negligent in the

Page 19 of 27
selection and control of its servants, that in such a case the court would have held that it would have The test by which to determine whether the passenger has been guilty of negligence in attempting to
been a good defense to the action, if presented squarely upon the theory of the breach of the contract, alight from a moving railway train, is that of ordinary or reasonable care. It is to be considered whether
for defendant to have proved that it did in fact exercise care in the selection and control of the servant. 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,
The true explanation of such cases is to be found by directing the attention to the relative spheres of not the care which may or should be used by the prudent man generally, but the care which a man of
contractual and extra-contractual obligations. The field of non- contractual obligation is much more ordinary prudence would use under similar circumstances, to avoid injury." (Thompson, Commentaries
broader than that of contractual obligations, comprising, as it does, the whole extent of juridical human on Negligence, vol. 3, sec. 3010.)
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. Or, it we prefer to adopt the mode of exposition used by this court in Picart vs. Smith (37 Phil. rep.,
When such a contractual relation exists the obligor may break the contract under such conditions that 809), we may say that the test is this; Was there anything in the circumstances surrounding the plaintiff
the same act which constitutes the source of an extra-contractual obligation had no contract existed at the time he alighted from the train which would have admonished a person of average prudence
between the parties. 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
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, As the case now before us presents itself, the only fact from which a conclusion can be drawn to the
being contractual, was direct and immediate, and its non-performance could not be excused by proof effect that plaintiff was guilty of contributory negligence is that he stepped off the car without being
that the fault was morally imputable to defendant's servants. 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,
The railroad company's defense involves the assumption that even granting that the negligent conduct ignorant of the fact that the obstruction which was caused by the sacks of melons piled on the platform
of its servants in placing an obstruction upon the platform was a breach of its contractual obligation to existed; and as the defendant was bound by reason of its duty as a public carrier to afford to its
maintain safe means of approaching and leaving its trains, the direct and proximate cause of the injury passengers facilities for safe egress from its trains, the plaintiff had a right to assume, in the absence of
suffered by plaintiff was his own contributory negligence in failing to wait until the train had come to a some circumstance to warn him to the contrary, that the platform was clear. The place, as we have
complete stop before alighting. Under the doctrine of comparative negligence announced in the Rakes already stated, was dark, or dimly lighted, and this also is proof of a failure upon the part of the
case (supra), if the accident was caused by plaintiff's own negligence, no liability is imposed upon defendant in the performance of a duty owing by it to the plaintiff; for if it were by any possibility
defendant's negligence and plaintiff's negligence merely contributed to his injury, the damages should concede that it had right to pile these sacks in the path of alighting passengers, the placing of them
be apportioned. It is, therefore, important to ascertain if defendant was in fact guilty of negligence. adequately so that their presence would be revealed.

It may be admitted that had plaintiff waited until the train had come to a full stop before alighting, the As pertinent to the question of contributory negligence on the part of the plaintiff in this case the
particular injury suffered by him could not have occurred. Defendant contends, and cites many following circumstances are to be noted: The company's platform was constructed upon a level higher
authorities in support of the contention, that it is negligence per se for a passenger to alight from a than that of the roadbed and the surrounding ground. The distance from the steps of the car to the
moving train. We are not disposed to subscribe to this doctrine in its absolute form. We are of the spot where the alighting passenger would place his feet on the platform was thus reduced, thereby
opinion that this proposition is too badly stated and is at variance with the experience of every-day life. decreasing the risk incident to stepping off. The nature of the platform, constructed as it was of cement
In this particular instance, that the train was barely moving when plaintiff alighted is shown material, also assured to the passenger a stable and even surface on which to alight. Furthermore, the
conclusively by the fact that it came to stop within six meters from the place where he stepped from it. plaintiff was possessed of the vigor and agility of young manhood, and it was by no means so risky for
Thousands of person alight from trains under these conditions every day of the year, and sustain no him to get off while the train was yet moving as the same act would have been in an aged or feeble
injury where the company has kept its platform free from dangerous obstructions. There is no reason person. In determining the question of contributory negligence in performing such act — that is to say,
to believe that plaintiff would have suffered any injury whatever in alighting as he did had it not been whether the passenger acted prudently or recklessly — the age, sex, and physical condition of the
for defendant's negligent failure to perform its duty to provide a safe alighting place. 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
We are of the opinion that the correct doctrine relating to this subject is that expressed in Thompson's safety under such conditions, as the nature of their wearing apparel obstructs the free movement of
work on Negligence (vol. 3, sec. 3010) as follows: the limbs. Again, it may be noted that the place was perfectly familiar to the plaintiff as it was his daily
custom to get on and of the train at this station. There could, therefore, be no uncertainty in his mind
with regard either to the length of the step which he was required to take or the character of the

Page 20 of 27
platform where he was alighting. Our conclusion is that the conduct of the plaintiff in undertaking to at Candelaria, Quezon, and requested for verification of the information. Police authorities of Lucena
alight while the train was yet slightly under way was not characterized by imprudence and that City were dispatched to the Iyam Bridge where they found the lifeless body of Winifredo Tupang.
therefore he was not guilty of contributory negligence.
As shown by the autopsy report, Winifredo Tupang died of cardio-respiratory failure due to massive
The evidence shows that the plaintiff, at the time of the accident, was earning P25 a month as a copyist cerebral hemorrhage due to traumatic injury [Exhibits B and C, Folder of Exhibits],Tupang was later
clerk, and that the injuries he has suffered have permanently disabled him from continuing that buried in the public cemetery of Lucena City by the local police authorities. [Rollo, pp. 91-92]
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 Upon complaint filed by the deceased's widow, Rosario Tupang, the then Court of First Instance of
are of the opinion that a fair compensation for the damage suffered by him for his permanent disability Rizal, after trial, held the petitioner PNR liable for damages for breach of contract of carriage and
is the sum of P2,500, and that he is also entitled to recover of defendant the additional sum of P790.25 ordered "to pay the plaintiff the sum of P12,000,00 for the death of Winifredo Tupang, plus P20,000.00
for medical attention, hospital services, and other incidental expenditures connected with the for loss of his earning capacity and the further sum of P10,000.00 as moral damages, and P2,000.00 as
treatment of his injuries. attorney's fees, and costs. 1

The decision of lower court is reversed, and judgment is hereby rendered plaintiff for the sum of On appeal, the Appellate Court sustained the holding of the trial court that the PNR did not exercise the
P3,290.25, and for the costs of both instances. So ordered. utmost diligence required by law of a common carrier. It further increased the amount adjudicated by
the trial court by ordering PNR to pay the plaintiff an additional sum of P5,000.00 as exemplary
Arellano, C.J., Torres, Street and Avanceña, JJ., concur. damages.

G.R. No. L-55347 October 4, 1985 Moving for reconsideration of the above decision, the PNR raised for the first time, as a defense, the
doctrine of state immunity from suit. It alleged that it is a mere agency of the Philippine government
PHILIPPINE NATIONAL RAILWAYS, petitioner, without distinct or separate personality of its own, and that its funds are governmental in character
vs. THE HONORABLE COURT OF APPEALS and ROSARIO TUPANG, respondents. and, therefore, not subject to garnishment or execution. The motion was denied; the respondent court
ruled that the ground advanced could not be raised for the first time on appeal.
Arturo Samaniego for private respondent.
Hence, this petition for review.

ESCOLIN, J.: The petition is devoid of merit. The PNR was created under Rep. Act 4156, as amended. Section 4 of the
said Act provides:
Invoking the principle of state immunity from suit, the Philippine National Railways, PNR for short,
instituted this petition for review on certiorari to set aside the decision of the respondent Appellate The Philippine national Railways shall have the following powers:
Court which held petitioner PNR liable for damages for the death of Winifredo Tupang, a paying
passenger who fell off a train operated by the petitioner. a. To do all such other things and to transact all such business directly or indirectly necessary,
incidental or conducive to the attainment of the purpose of the corporation; and
The pertinent facts are summarized by the respondent court as follows:
b. Generally, to exercise all powers of a corporation under the Corporation Law.
The facts show that on September 10, 1972, at about 9:00 o'clock in the evening, Winifredo Tupang,
husband of plaintiff Rosario Tupang, boarded 'Train No. 516 of appellant at Libmanan, Camarines Sur, Under the foregoing section, the PNR has all the powers, the characteristics and attributes of a
as a paying passenger bound for Manila. Due to some mechanical defect, the train stopped at Sipocot, corporation under the Corporation Law. There can be no question then that the PNR may sue and be
Camarines Sur, for repairs, taking some two hours before the train could resume its trip to Manila. sued and may be subjected to court processes just like any other corporation. 2
Unfortunately, upon passing Iyam Bridge at Lucena, Quezon, Winifredo Tupang fell off the train
resulting in his death.The train did not stop despite the alarm raised by the other passengers that The petitioner's contention that the funds of the PNR are not subject to garnishment or execution
somebody fell from the train. Instead, the train conductor Perfecto Abrazado, called the station agent hardly raises a question of first impression. In Philippine National Railways v. Union de Maquinistas, et
al., 3 then Justice Fernando, later Chief Justice, said. "The main issue posed in this certiorari

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proceeding, whether or not the funds of the Philippine National Railways, could be garnished or levied But while petitioner failed to exercise extraordinary diligence as required by law, 8 it appears that the
upon on execution was resolved in two recent decisions, the Philippine National Bank v. Court of deceased was chargeable with contributory negligence. Since he opted to sit on the open platform
Industrial Relations [81 SCRA 314] and Philippine National Bank v. Hon. Judge Pabalan [83 SCRA 595]. between the coaches of the train, he should have held tightly and tenaciously on the upright metal bar
This Court in both cases answered the question in the affirmative. There was no legal bar to found at the side of said platform to avoid falling off from the speeding train. Such contributory
garnishment or execution. The argument based on non-suability of a state allegedly because the funds negligence, while not exempting the PNR from liability, nevertheless justified the deletion of the
are governmental in character was unavailing.So it must be again." amount adjudicated as moral damages. By the same token, the award of exemplary damages must be
set aside. Exemplary damages may be allowed only in cases where the defendant acted in a wanton,
In support of the above conclusion, Justice Fernando cited the Court's holding in Philippine National fraudulent, reckless, oppressive or malevolent manner. 9 There being no evidence of fraud, malice or
Bank v. Court of Industrial Relations, to wit: "The premise that the funds could be spoken of as public in bad faith on the part of petitioner, the grant of exemplary damages should be discarded.
character may be accepted in the sense that the People's Homesite and Housing Corporation was a
government-owned entity. It does not follow though that they were exempt from garnishment. WHEREFORE, the decision of the respondent appellate court is hereby modified by eliminating
National Shipyard and Steel Corporation v. Court of Industrial Relations is squarely in point. As was therefrom the amounts of P10,000.00 and P5,000.00 adjudicated as moral and exemplary damages,
explicitly stated in the opinion of then Justice, later Chief Justice, Concepcion: "The allegation to the respectively. No costs.
effect that the funds of the NASSCO are public funds of the government, and that, as such, the same
may not be garnished, attached or levied upon, is untenable for, as a government- owned and SO ORDERED.
controlled corporation, the NASSCO has a personality of its own, distinct and separate from that of the
Government. It has-pursuant to Section 2 of Executive Order No. 356, dated October 23, 1950 * * *, Concepcion, Jr., Cuevas, and Alampay, JJ., concur.
pursuant to which the NASSCO has been established- 'all the powers of a corporation under the G.R. No. 144723 February 27, 2006
Corporation Law * * *. 4
LARRY ESTACION, Petitioner,
As far back as 1941, this Court in the case of Manila Hotel Employees Association v. Manila Hotel Co., 5 vs. NOE BERNARDO, thru and his guardian ad litem ARLIE BERNARDO, CECILIA BANDOQUILLO and
laid down the rule that "when the government enters into commercial business, it abandons its GEMINIANO QUINQUILLERA, Respondents.
sovereign capacity and is to be treated like any other corporation. [Bank of the U.S. v. Planters' Bank, 9
Waitch 904, 6 L. ed. 244]. By engaging in a particular business through the instrumentality of a DECISION
corporation the government divests itself pro hac vice of its sovereign character, so as to render the
corporation subject to the rules of law governing private corporations. 6 Of Similar import is the AUSTRIA-MARTINEZ, J.:
pronouncement in Prisco v. CIR,' that "when the government engages in business, it abdicates part of
its sovereign prerogatives and descends to the level of a citizen, ... . " In fine, the petitioner PNR cannot Before us is a petition for review on certiorari filed by Larry Estacion (petitioner) seeking to annul the
legally set up the doctrine of non-suability as a bar to the plaintiff's suit for damages. Decision dated April 17, 20001 of the Court of Appeals (CA) in CA-GR CV No. 41447 which affirmed in
toto the decision of the Regional Trial Court (RTC) of Dumaguete City, Branch 41, Negros Oriental,
The appellate court found, the petitioner does not deny, that the train boarded by the deceased holding petitioner and his driver Bienvenido Gerosano (Gerosano) liable for damages for the injury
Winifredo Tupang was so over-crowded that he and many other passengers had no choice but to sit on sustained by Noe Bernardo (respondent Noe). Also assailed is the appellate court’s Resolution dated
the open platforms between the coaches of the train. It is likewise undisputed that the train did not August 16, 20002 denying petitioner’s motion for reconsideration.
even slow down when it approached the Iyam Bridge which was under repair at the time, Neither did
the train stop, despite the alarm raised by other passengers that a person had fallen off the train at In the afternoon of October 16, 1982, respondent Noe was going home to Dumaguete from Cebu, via
lyam Bridge. 7 Bato and Tampi. At Tampi, he boarded a Ford Fiera passenger jeepney with plate no. NLD 720 driven by
respondent Geminiano Quinquillera (Quinquillera), owned by respondent Cecilia Bandoquillo
The petitioner has the obligation to transport its passengers to their destinations and to observe (Bandoquillo), and was seated on the extension seat placed at the center of the Fiera. From San Jose,
extraordinary diligence in doing so. Death or any injury suffered by any of its passengers gives rise to an old woman wanted to ride, so respondent Noe offered his seat. Since the Fiera was already full,
the presumption that it was negligent in the performance of its obligation under the contract of respondent Noe hung or stood on the left rear carrier of the vehicle. Somewhere along Barangay Sto.
carriage. Thus, as correctly ruled by the respondent court, the petitioner failed to overthrow such Niño, San Jose, Negros Oriental, between kilometers 13 and 14, the Fiera began to slow down and then
presumption of negligence with clear and convincing evidence. stopped by the right shoulder of the road to pick up passengers. Suddenly, an Isuzu cargo truck, owned
by petitioner and driven by Gerosano, which was traveling in the same direction, hit the rear end

Page 22 of 27
portion of the Fiera where respondent Noe was standing. Due to the tremendous force, the cargo truck 2. ₱50,000.00 for moral damages, consisting of mental anguish, moral shock, serious anxiety and
smashed respondent Noe against the Fiera crushing his legs and feet which made him fall to the wounded feelings;
ground. A passing vehicle brought him to the Silliman University Medical Center where his lower left
leg was amputated. 3. ₱10,000.00 for attorney’s fees; and

Police investigation reports showed that respondent Noe was one of the 11 passengers of the Fiera 4. ₱5,000.00 for litigation expenses.
who suffered injuries; that when the Fiera stopped to pick up a passenger, the cargo truck bumped the
rear left portion of the Fiera; that only one tire mark from the front right wheel of the cargo truck was SO ORDERED.8
seen on the road. A sketch of the accident was drawn by investigator Mateo Rubia showing the relative
positions of the two vehicles, their distances from the shoulder of the road and the skid marks of the The trial court ruled that the negligence of Gerosano, petitioner’s driver, is the direct and proximate
right front wheel of the truck measuring about 48 feet. cause of the incident and of the injuries suffered by respondent Noe; that Gerosano’s gross negligence
and reckless imprudence had been confirmed by the Judgment in Criminal Case No. 463; that based on
On February 18, 1993, respondent Noe, through his guardian ad litem Arlie Bernardo, filed with the the findings of the police investigator, the faulty brakes caused the cargo truck to bump the Fiera; that
RTC of Dumaguete City a complaint3 for damages arising from quasi delict against petitioner as the the Traffic Accident Report showed that the tire mark of the cargo truck measuring 48 feet is visibly
registered owner of the cargo truck and his driver Gerosano. He alleged that the proximate cause of his imprinted on the road where the incident took place indicating that the said vehicle was speeding fast;
injuries and suffering was the reckless imprudence of Gerosano and petitioner’s negligence in the that the existence of one tire mark of the cargo truck proved that the said vehicle had a faulty brake,
selection of a reckless driver and for operating a vehicle that was not roadworthy. He prayed for actual otherwise, it would have produced two tire marks on the road; and that the photographs taken right
damages, loss of income, moral and exemplary damages, attorney’s fees, litigation expenses and costs after the incident also showed who the guilty party was.
of suit.
The trial court did not give credence to the argument of petitioner and his driver that the truck was
Petitioner and his driver Gerosano filed their Answer4 denying the material allegations in the properly checked by a mechanic before it was dispatched for a trip. It found that petitioner is negligent
complaint. They, in turn, filed a third party complaint5 against respondents Bandoquillo and in maintaining his vehicle in good condition to prevent any accident to happen; that petitioner is liable
Quinquillera, as owner and driver respectively of the Fiera. They alleged that it was the reckless under Article 2180 of the Civil Code as employer of driver Gerosano for being negligent in the selection
imprudence of respondent driver Quinquillera and his clear violation of the traffic rules and regulations and supervision of his driver as well as for maintaining and operating a vehicle that was not
which was the proximate cause of the accident and asked for indemnification for whatever damages roadworthy; and that petitioner and his driver are solidarily liable for all the natural and probable
they would be sentenced to pay. Respondents Bandoquillo and Quinquillera filed their Answer to the consequences of their negligent acts or omissions. The trial court dismissed the third party complaint
third party complaint asking for the dismissal of the third party complaint and for payment of filed by petitioner and his driver against respondents Bandoquillo and Quinquillera.
attorney’s fees.
Dissatisfied, only petitioner appealed to the CA. On April 17, 2000, the CA rendered the assailed
Driver Gerosano was charged criminally for reckless imprudence resulting to multiple physical injuries decision which affirmed in toto the decision of the trial court. Petitioner’s motion for reconsideration
with damage to property before the Municipal Circuit Trial Court (MCTC) of Pamplona-Amlan and San was denied in a Resolution dated August 16, 2000.
Jose, Negros Oriental. On November 16, 1987, the MCTC rendered its decision6 finding him guilty of
the crime charged and was sentenced to four months and one day to two years and four months and to Hence, the herein petition for review.
pay the costs.
Petitioner submits the following issues for resolution:9
On February 18, 1993, the RTC rendered its judgment in the civil case,7 the dispositive portion of which
reads: WHETHER THE COURT OF APPEALS ERRED IN NOT FINDING THAT PETITIONER LARRY ESTACION
EXERCISED THE DUE DILIGENCE OF A GOOD FATHER OF A FAMILY TO PREVENT DAMAGE DESPITE
WHEREFORE, in view of the foregoing, judgment is hereby rendered, ordering defendants Gerosano ABUNDANCE OF EVIDENCE TO THAT EFFECT;
and Estacion, to pay plaintiff, jointly or solidarily, the following:
WHETHER THE COURT OF APPEALS ERRED IN NOT HOLDING THAT PETITIONER LARRY ESTACION
1. ₱129,584.20 for actual damages in the form of medical and hospitalization expenses; EXERCISED DUE DILIGENCE IN THE SELECTION AND SUPERVISION OF HIS EMPLOYEE AND IN
MAINTAINING HIS CARGO TRUCK ROADWORTHY AND IN GOOD OPERATING CONDITION;

Page 23 of 27
citation of specific evidence on which they are based; (8) when the CA manifestly overlooked certain
WHETHER THE COURT OF APPEALS ERRED IN EXONERATING RESPONDENTS CECILIA BANDOQUILLO relevant facts not disputed by the parties and which, if properly considered, would justify a different
AND GEMINIANO QUINQUILLERA. conclusion; and (9) when the findings of fact of the CA are premised on the absence of evidence and
are contradicted by the evidence on record.12
In his Memorandum, petitioner contends that he was able to establish that he observed the diligence
of a good father of a family not only in the selection of his employees but also in maintaining his truck On the basis of the records of this case, we find that there is cogent reason for us to review the factual
roadworthy and in good operating condition; that the CA erred in exonerating respondents Bandoquillo findings of the lower courts to conform to the evidence on record and consider this case as an
and Quinquillera, owner and driver, respectively of the Fiera from liability when their negligence was exception to the general rule.
the proximate cause of respondent Noe’s injuries; that respondent Noe’s act of standing in the rear
carrier of the Fiera is in itself negligence on his part which was aggravated by the fact that respondent The trial court and the appellate court had made a finding of fact that the proximate cause of the injury
Quinquillera overtook the cargo truck driven by Gerosano on the curve and suddenly cut into the sustained by respondent Noe was the negligent and careless driving of petitioner’s driver, Gerosano,
latter’s lane; that due to the overloading of passengers, Gerosano was not able to see the brake lights who was driving at a fast speed with a faulty brake when the accident happened. We see no cogent
of the Fiera when it suddenly stopped to pick up passengers; that overloading is in violation of the reason to disturb the trial court’s finding in giving more credence to the testimony of respondent Noe
applicable traffic rules and regulations and Article 2185 is explicit when it provides that "unless there is than the testimony of Gerosano, petitioner’s truck driver.
proof to the contrary, it is presumed that a person driving a motor vehicle has been negligent if at the
time of the mishap, he was violating any traffic regulation"; that since the Fiera driver was negligent, The correctness of such finding is borne by the records. In his testimony, Gerosano said that he was
there arises a presumption that respondent Bandoquillo, as owner of the Fiera, is negligent in the driving the truck at a speed of about 40 kilometers per hour;13 that the Fiera was behind him but upon
selection and supervision of her employee; that assuming petitioner Estacion and his driver are not reaching the curve, i.e., after passing San Jose going to Dumaguete, the Fiera overtook him and blocked
entirely blameless, the negligence of Quinquillera is sufficient basis why the respective liabilities should his way;14 that he was 10 meters from the Fiera prior to the impact15 when he applied the brakes16
be delineated vis-à-vis their degree of negligence consistent with Article 217910 of the Civil Code. and tried to evade the Fiera but he still hit it.17

Respondent Noe filed his Memorandum alleging that the first and second issues raised are factual in We agree with the trial court and the appellate court when they found that the truck was running at a
nature which are beyond the ambit of a petition for review; that petitioner failed to overcome the fast speed because if Gerosano was really driving at a speed of 40 kilometers per hour and considering
presumption of negligence thus he is liable for the negligence of his driver Gerosano; and that the third that the distance between the truck and the Fiera in front was about 10 meters, he had more than
issue is best addressed to respondents Bandoquillo and Quinquillera. enough time to slacken his speed and apply his break to avoid hitting the Fiera. However, from the way
the truck reacted to the application of the brakes, it showed that Gerosano was driving at a fast speed
Respondents Bandoquillo and Quinquillera failed to file their memorandum despite receipt of our because the brakes skidded a lengthy 48 feet as shown in the sketch of police investigator Rubia of the
Resolution requiring them to submit the same. tire marks visibly printed on the road.

We find it apropos to resolve first the third issue considering that the extent of the liability of petitioner Moreover, the photographs taken after the incident and the testimony of Gerosano as to the extent of
and his driver is dependent on whether respondents Bandoquillo and Quinquillera are the ones damage to the truck, i.e. the truck’s windshield was broken and its hood was damaged after the
negligent in the vehicular mishap that happened in the afternoon of October 16, 1982 where impact,18 further support the finding of both courts that Gerosano was driving at a fast pace.
respondent Noe was injured, resulting in the amputation of his left leg.
The accident was further caused by the faulty brakes of the truck. Based on the sketch report, there
At the outset, the issue raised is factual in nature. Whether a person is negligent or not is a question of was only one tire mark of the right tire of the cargo truck during the incident which, as testified to by
fact which we cannot pass upon in a petition for review on certiorari, as our jurisdiction is limited to police investigator Rubia, meant that the brakes of the truck were not aligned otherwise there would
reviewing errors of law.11 As a rule, factual findings of the trial court, affirmed by the CA, are final and be two tire marks impressions on the road.19 Although petitioner contends that there are other factors
conclusive and may not be reviewed on appeal. The established exceptions are: (1) when the inference to explain why only one skid mark was found at the place of the incident, such as the angle and edges
made is manifestly mistaken, absurd or impossible; (2) when there is grave abuse of discretion; (3) of the road as well as the balance of the weight of the cargo laden in the truck, he failed to show that
when the findings are grounded entirely on speculations, surmises or conjectures; (4) when the indeed those factors were present to prove his defense. Such claim cannot be given credence
judgment of the CA is based on misapprehension of facts; (5) when the findings of fact are conflicting; considering that investigator Rubia testified that the body of the truck was very much on the road, i.e.,
(6) when the CA, in making its findings, went beyond the issues of the case and the same is contrary to not over the shoulder of the road,20 and the road was straight.21 Indeed, it is the negligent act of
the admissions of both appellant and appellee; (7) when the findings of fact are conclusions without

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petitioner’s driver of driving the cargo truck at a fast speed coupled with faulty brakes which was the (c) Riding on running boards – No driver shall allow any person to ride on running board, step board or
proximate cause of respondent Noe’s injury. mudguard of his motor vehicle for any purpose while the vehicle is in motion.

Petitioner’s claim that right after overtaking the cargo truck, the Fiera driver suddenly stopped to pick Respondent Quinquillera’s act of permitting respondent Noe to hang on the rear portion of the Fiera in
up three passengers from the side of the road; that the overloading of passengers prevented his truck such a dangerous position creates undue risk of harm to respondent Noe. Quinquillera failed to
driver from determining that the Fiera had pulled over to pick up passengers as the latter’s brakelights observe that degree of care, precaution and vigilance that the circumstances justly demand. Thus,
were obstructed by the passengers standing on the rear portion of the Fiera were not substantiated at respondent Noe suffered injury.25 Since respondent Quinquillera is negligent, there arises a
all. Respondent Quinquillera, the driver of the Fiera, testified that the distance from the curve of the presumption of negligence on the part of his employer, respondent Bandoquillo, in supervising her
road when he stopped and picked up passengers was estimated to be about 80 to 90 feet.22 In fact, employees properly. Such presumption was not rebutted at all by Bandoquillo. Thus, the CA erred in
from the sketch drawn by investigator Rubia, it showed a distance of 145 feet from the curve of the affirming the dismissal of the third party complaint filed by petitioner against respondents Quinquillera
road to the speed tire mark (which measured about 48 feet) visibly printed on the road to the Fiera. and Bandoquillo.
This means that the Fiera driver did not stop immediately after the curve as what petitioner claims.
Moreover, Gerosano admitted that his truck was at a distance of 10 meters prior to the impact. The Petitioner contends that he was able to establish that he exercised the due diligence of a good father of
distance between the two vehicles was such that it would be impossible for Gerosano not to have seen a family in the selection of his employees as well as in the maintenance of his cargo truck in good
that the Fiera had pulled over to pick up passengers. operating condition. He claims that in addition to looking at Gerosano’s driver’s license, he
accompanied the latter in his first two trips, during which he ascertained Gerosano’s competence as a
However, we agree with petitioner that respondent Noe’s act of standing on the rear carrier of the driver, petitioner being a driver himself; that the truck driven by Gerosano has never figured in any
Fiera exposing himself to bodily injury is in itself negligence on his part. We find that the trial court and accident prior to the incident involved; that upon his acquisition of the cargo truck on March 16, 1982,
the CA erred when they failed to consider that respondent Noe was also guilty of contributory only 7 months prior to the incident, the same was thoroughly checked up and reconditioned; and that
negligence. Contributory negligence is conduct on the part of the injured party, contributing as a legal he had in his employ a mechanic who conducted periodic check-ups of the engine and brake system of
cause to the harm he has suffered, which falls below the standard to which he is required to conform the cargo truck.
for his own protection. 23
We are not persuaded.
It has been established by the testimony of respondent Noe that he was with four or five other persons
standing on the rear carrier of the Fiera since it was already full. Respondent Noe’s act of standing on Article 2180 of the Civil Code provides:
the left rear carrier portion of the Fiera showed his lack of ordinary care and foresight that such act
could cause him harm or put his life in danger. It has been held that "to hold a person as having Art. 2180. The obligation imposed by Article 2176 is demandable not only for one’s own acts or
contributed to his injuries, it must be shown that he performed an act that brought about his injuries in omissions, but also for those of persons for whom one is responsible.
disregard of warning or signs of an impending danger to health and body.24 Respondent Noe’s act of
hanging on the Fiera is definitely dangerous to his life and limb. xxx

We likewise find merit in petitioner’s contention that respondent Quinquillera, the Fiera driver, was Employers shall be liable for the damages caused by their employees and household helpers acting
also negligent. There is merit to petitioner’s claim that there was overloading which is in violation of within the scope of their assigned tasks, even though the former are not engaged in any business or
traffic rules and regulations. Respondent Noe himself had testified that he was standing at the rear industry.
portion of the Fiera because the Fiera was already full. Respondent Quinquillera should not have taken
more passengers than what the Fiera can accommodate. If the Fiera was not overloaded, respondent xxx
Noe would not have been standing on the rear carrier and sustained such extent of injury.
The responsibility treated of in this article shall cease when the persons herein mentioned prove that
Furthermore, we find that respondent Quinquillera was negligent in allowing respondent Noe to stand they observed all the diligence of a good father of a family to prevent damage.
on the Fiera’s rear portion. Section 32(c) of Article III of Republic Act No. 4136, otherwise known as
"The Land Transportation and Traffic Code" provides: As the employer of Gerosano, petitioner is primarily and solidarily liable for the quasi-delict committed
by the former. Petitioner is presumed to be negligent in the selection and supervision of his employee
by operation of law and may be relieved of responsibility for the negligent acts of his driver, who at the

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time was acting within the scope of his assigned task, only if he can show that he observed all the Petitioner failed to show that he examined driver Gerosano as to his qualifications, experience and
diligence of a good father of a family to prevent damage.26 service records. In fact, the testimony of driver Gerosano in his cross-examination showed the non-
observance of these requirements. Gerosano testified that petitioner was his first employer in
In Yambao v. Zuniga,27 we have clarified the meaning of the diligence of a good father of a family, Dumaguete and that he was accepted by petitioner on the very day he applied for the job;29 that his
thus: driver’s license was issued in Mindanao where he came from30 and that while petitioner asked him
about his driving record in Mindanao, he did not present any document of his driving record.31 Such
The "diligence of a good father" referred to in the last paragraph of the aforecited statute means admission clearly established that petitioner did not exercise due diligence in the selection of his driver
diligence in the selection and supervision of employees. Thus, when an employee, while performing his Gerosano.
duties, causes damage to persons or property due to his own negligence, there arises the juris tantum
presumption that the employer is negligent, either in the selection of the employee or in the Moreover, the fact that petitioner’s driver Gerosano was driving in an efficient manner when petitioner
supervision over him after the selection. For the employer to avoid the solidary liability for a tort was with him in his first two trips would not conclusively establish that Gerosano was not at all
committed by his employee, an employer must rebut the presumption by presenting adequate and reckless. It could not be considered as due diligence in the supervision of his driver to exempt
convincing proof that in the selection and supervision of his employee, he or she exercises the care and petitioner from liability. In the supervision of his driver, petitioner must show that he had formulated
diligence of a good father of a family. x x x training programs and guidelines on road safety for his driver which the records failed to show. We find
that petitioner failed to rebut the presumption of negligence in the selection and supervision of his
Petitioner’s claim that she exercised due diligence in the selection and supervision of her driver, employees.
Venturina, deserves but scant consideration. Her allegation that before she hired Venturina she
required him to submit his driver’s license and clearances is worthless, in view of her failure to offer in Moreover, there was also no proof that he exercised diligence in maintaining his cargo truck
evidence certified true copies of said license and clearances. Bare allegations, unsubstantiated by roadworthy and in good operating condition. While petitioner’s mechanic driver testified that he made
evidence, are not equivalent to proof under the rules of evidence. x x x a routine check up on October 15, 1982, one day before the mishap happened, and found the truck
operational, there was no record of such inspection.
In any case, assuming arguendo that Venturina did submit his license and clearances when he applied
with petitioner in January 1992, the latter still fails the test of due diligence in the selection of her bus Turning now to the award of damages, since there was contributory negligence on the part of
driver. Case law teaches that for an employer to have exercised the diligence of a good father of a respondent Noe, petitioner’s liability should be mitigated in accordance with Article 2179 of the Civil
family, he should not be satisfied with the applicant’s mere possession of a professional driver’s Code which provides:
license; he must also carefully examine the applicant for employment as to his qualifications, his
experience and record of service. Petitioner failed to present convincing proof that she went to this When the plaintiff’s own negligence was the immediate and proximate cause of his injury, he cannot
extent of verifying Venturina’s qualifications, safety record, and driving history. The presumption juris recover damages. But if his negligence was only contributory, the immediate and proximate cause of
tantum that there was negligence in the selection of her bus driver, thus, remains unrebutted. the injury being the defendant’s lack of due care, the plaintiff may recover damages, but the courts
shall mitigate the damages to be awarded.
Nor did petitioner show that she exercised due supervision over Venturina after his selection. For as
pointed out by the Court of Appeals, petitioner did not present any proof that she drafted and The underlying precept of the above article on contributory negligence is that a plaintiff who is partly
implemented training programs and guidelines on road safety for her employees. In fact, the record is responsible for his own injury should not be entitled to recover damages in full but must bear the
bare of any showing that petitioner required Venturina to attend periodic seminars on road safety and consequences of his own negligence. The defendant must thus be held liable only for the damages
traffic efficiency. Hence, petitioner cannot claim exemption from any liability arising from the actually caused by his negligence.32
recklessness or negligence of Venturina.
In Phoenix Construction, Inc., v. Intermediate Appellate Court,33 where we held that the legal and
In sum, petitioner’s liability to private respondents for the negligent and imprudent acts of her driver, proximate cause of the accident and of Dionisio’s injuries was the wrongful and negligent manner in
Venturina, under Article 2180 of the Civil Code is both manifest and clear. Petitioner, having failed to which the dump truck was parked but found Dionisio guilty of contributory negligence on the night of
rebut the legal presumption of negligence in the selection and supervision of her driver, is responsible the accident, we allocated most of the damages on a 20-80 ratio. In said case, we required Dionisio to
for damages, the basis of the liability being the relationship of pater familias or on the employer’s own bear 20% of the damages awarded by the appellate court, except as to the award of exemplary
negligence. x x x28 (Emphasis supplied) damages, attorney’s fees and costs.

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In the present case, taking into account the contributing negligence of respondent Noe, we likewise 2. ₱40,000.00 for moral damages, consisting of mental anguish, moral shock, serious anxiety and
rule that the demands of substantial justice are satisfied by distributing the damages also on a 20-80 wounded feelings;
ratio excluding attorney’s fees and litigation expenses.34 Consequently, 20% should be deducted from
the actual and moral damages awarded by the trial court in favor of respondent Noe, that is: 20% of 3. ₱10,000.00 for attorney’s fees; and
₱129,584.20 for actual damages is ₱25,916.84 and 20% of ₱50,000.00 for moral damages is
₱10,000.00. Thus, after deducting the same, the award for actual damages should be ₱103,667.36 and 4. ₱5,000.00 for litigation expenses.1avvphil.net
₱40,000.00 for moral damages or 80% of the damages so awarded.
SO ORDERED."
Petitioner and respondents Bandoquillo and Quinquillera are jointly and severally liable for the 80% of
the damages as well as attorney’s fees and litigation expenses conformably with our pronouncement in No pronouncement as to costs.
Tiu v. Arriesgado35 where we held:
SO ORDERED.
The petitioners, as well as the respondents Benjamin Condor and Sergio Pedrano are jointly and
severally liable for said amount, conformably with the following pronouncement of the Court in Fabre,
Jr. v. Court of Appeals:

The same rule of liability was applied in situations where the negligence of the driver of the bus on
which plaintiff was riding concurred with the negligence of a third party who was the driver of another
vehicle, thus causing an accident. In Anuran v. Buño, Batangas Laguna Tayabas Bus Co. v. Intermediate
Appellate Court, and Metro Manila Transit Corporation v. Court of Appeals, the bus company, its driver,
the operator of the other vehicle and the driver of the vehicle were jointly and severally held liable to
the injured passenger or the latter’s heirs. The basis of this allocation of liability was explained in Viluan
v. Court of Appeals, thus:

"Nor should it make difference that the liability of petitioner [bus owner] springs from contract while
that of respondents [owner and driver of other vehicle] arises from quasi delict. As early as 1913, we
already ruled in Gutierrez v. Gutierrez, 56 Phil. 177, that in case of injury to a passenger due to the
negligence of the driver of the bus on which he was riding and of the driver of another vehicle, the
drivers as well as the owners of the two vehicles are jointly and severally liable for damages. Some
members of the Court, though, are of the view that under the circumstances they are liable on quasi
delict."36

WHEREFORE, the instant petition is PARTIALLY GRANTED. The assailed Decision of the Court of Appeals
dated April 17, 2000 as well as its Resolution dated August 16, 2000 are AFFIRMED with MODIFICATION
to the effect that the dispositive portion of the Decision dated February 18, 1993 of the Regional Trial
Court of Dumaguete City in Civil Case No. 8122, should read as follows:

"WHEREFORE, in view of the foregoing, judgment is hereby rendered, ordering defendants Gerosano
and Estacion, as well as third party defendants Bandoquillo and Quinquillera, to pay plaintiff, jointly
and solidarily, the following:

1. ₱103,667.36 for actual damages in the form of medical and hospitalization expenses;

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