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SAFETY OF THE PASSENGERS/CHING NEGROS NAVIGATION CO. vs. CA Facts: Private respondent Ramon Miranda purchased from the Negros Navigation Co., Inc. four special cabin tickets for his wife, daughter, son and niece who were going to Bacolod City to attend a family reunion boarding the Don Juan. Don Juan collided off the Tablas Strait in Mindoro, with the M/T Tacloban City, an oil tanker owned by the Philippine National Oil Company (PNOC) and the PNOC Shipping and Transport Corporation (PNOC/STC). As a result, the M/V Don Juan sank. Several of her passengers perished in the sea tragedy. The bodies of some of the victims were found and brought to shore, but the four members of private respondents' families were never found. Issue: Whether or not the petitioners exercised the extraordinary diligence required?

Held: No. As with the Mecenas case, this Court found petitioner guilty of negligence in (1) allowing or tolerating the ship captain and crew members in playing mahjong during the voyage, (2) in failing to maintain the vessel seaworthy and (3) in allowing the ship to carry more passengers than it was allowed to carry. Also, the duty to exercise extra ordinary diligence includes the duty to take passengers or cargoes that are within the carrying capacity of the vessel. +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ Trans-Asia Shipping vs. Court of Appeals (254 SCRA 260) Facts: Plaintiff (herein private respondent Atty. Renato Arroyo) bought a ticket from herein petitioner for the voyage of M/V Asia Thailand Vessel to Cagayan de Oro from Cebu City. Arroyo boarded the vessel in the evening of November 12, 1991 at around 5:30. At that instance, plaintiff noticed that some repair works were being undertaken on the evening of the vessel. The vessel departed at around 11:00 in the evening with only one engine running. After an hour of slow voyage, vessel stopped near Kawit Island and dropped its anchor threat. After an hour of stillness, some passenger demanded that they should be allowed to return to Cebu City for they were no longer willing to continue their voyage to Cagayan de Oro City. The captain acceded to their request and thus the vessel headed back to Cebu City. At Cebu City, the plaintiff together with the other passengers who requested to be brought back to Cebu City was allowed to disembark. Thereafter, the vessel proceeded to Cagayan de Oro City. Plaintiff, the next day boarded the M/V Asia Japan for its voyage to Cagayan de Oro City, likewise a vessel of the defendant. On account of this failure of defendant to transport him to the place pf destination on November 12, 1991, plaintiff filed before the trial court a complaint for damages against the defendant. Issue: Whether or not the failure of a common carrier to maintain in seaworthy condition its vessel involved in a contract of carriage a breach of its duty? Held: Undoubtedly, there was, between the petitioner and private respondent a contract of carriage. Under Article 1733 of the Civil Code, the petitioner was bound to observed extraordinary diligence in ensuring the safety of the private respondent. That meant that the petitioner was pursuant to the Article 1755 off the said Code, bound to carry the private respondent safely as far as human care and foresight could provide, using the utmost diligence of very cautious persons, with due regard for all the circumstances. In this case, the Supreme Court is in full accord with the Court of Appeals that the petitioner failed or discharged this obligation. Before commencing the contact of voyage, the petitioner undertook som e repairs on the cylinder head of one of the vessels engines. But even before it could finish these repairs it allowed the vessel to leave the port of origin on only one functioning engine, instead of two. Moreover, even the lone functioning engine was not in perfect condition at sometime after it had run its course, in conked out. Which cause the vessel to stop and remain adrift at sea, thus in order to prevent the ship from capsizing, it had to drop anchor. Plainly, the vessel was unseaworthy even before the voyage begun. For the vessel to be seaworthy, it must be adequately equipped for the voyage and manned with the sufficient number of competent officers and crew. The Failure of the common carrier to maintain in seaworthy condition its vessel involved in a contract of carriage is a clear breach of its duty prescribed in Article 1755 of the Civil Code. ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ Baliwag Transit vs. CA (GR 116110, 15 May 1996) FACTS: On 31 July 1980, Leticia Garcia, and her 5-year old son, Allan Garcia, boarded Baliwag Transit Bus 2036 bound for Cabanatuan City driven by Jaime Santiago. They took the seat behind the driver.

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At about 7:30 p.m., in Malimba, Gapan, Nueva Ecija, the bus passengers saw a cargo truck, owned by A & J Trading, parked at the shoulder of the national highway. Its left rear portion jutted to the outer lane, as the 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, and his helper were then replacing a flat tire. Bus driver Santiago was driving at an inordinately fast speed and failed to notice the truck and the kerosene lamp at the edge of the road. Santiagos passengers urged him to slow down but he paid them no heed. Santiago even carried animated conversations with his co-employees while driving. When the danger of collision became imminent, the bus passengers shouted Babangga tayo!. Sant iago stepped on the brake, but it was too late. His bus rammed into the stalled cargo truck killing him instantly and the trucks helper, and injury to several others among them herein respondents. Thus, a suit was filed against Baliwag Transit, Inc., A & J Trading and Julio Recontique for damages in the RTC of Bulacan. The trial court ordered Baliwag, A & J Trading and Recontique to pay jointly and severally the Garcia 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 moral damages, and (5) P30,000.00 attorney's fee. On appeal, the Court of Appeals modified the trial court's Decision by absolving A & J Trading from liability and by reducing the award of attorney's fees to P10,000.00 and loss of earnings to P300,000.00, respectively. ISSUE: Is the amount of damages awarded by the Court of Appeals to the Garcia spouses correct? HELD: Yes. 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 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 cannot justify the award of P25,000.00. To prove actual damages, the best evidence available to the injured party must be presented. The court cannot rely on uncorroborated testimony whose truth is suspect, but must depend upon competent proof that damages have been actually suffered. Thus, we reduce the actual damages for medical and hospitalization expenses to P5,017.74. The award of moral damages is in accord with law. In a breach of contract of carriage, moral damages are recoverable if the carrier, through its agent, acted fraudulently or in bad faith. The evidence shows the gross negligence of the driver of Baliwag bus which amounted to bad faith. Without doubt, Leticia and Allan experienced physical suffering, mental anguish and serious anxiety by reason of the accident. ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ LAYUGAN vs. IAC Facts: Pedro T. Layugan filed an action for damages against Godofredo Isidro, alleging that while at Baretbet, Bagabag, Nueva Vizcaya, the Plaintiff and a companion were repairing the tire of their cargo truck which was parked along the right side of the National Highway; that defendant's truck, driven recklessly by Daniel Serrano bumped the plaintiff, that as a result, plaintiff was injured and hospitalized. Defendant countered that the plaintiff was merely a bystander, not a truck helper being a brother-in-law of the driver of said truck and hence must suffer the damages. The trial court decided in favor of the plaintiff, which was reversed by the CA, hence the present petition. Issue: W/N defendant is absolved by virtue of the doctrine of res ipsa loquitur. Held: No. Res ipsa loquitur is a doctrine which states thus: "Where the thing which causes injury is shown to be under the management of the defendant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose from want of care. It is clear that the driver did not know his responsibilities because he apparently did not check his vehicle before he took it on the road. If he did he could have discovered earlier that the brake fluid pipe on the right was cut, and could have repaired it and thus the accident could have been avoided. Moreover, to our mind, the fact that the private respondent used to instruct his driver to be careful in his driving, that the driver was licensed, and the fact that he had no record of any accident, as found by the respondent court, are not sufficient to destroy the finding of negligence of the Regional Trial Court given the facts established at the trial The private respondent or his mechanic, who must be competent, should have conducted a thorough inspection of his vehicle before allowing his driver to drive it. In the light of the circum stances obtaining in the case, we hold that Isidro failed to prove that the diligence of a good father of a family in the supervision of his employees which would exculpate him from solidary liability with his driver to the petitioner. Respondent Isidro posits that any immobile object along the highway, like a parked truck, poses serious danger to a moving vehicle which has the right to be on the highway. He argues that since the parked cargo truck in this case was a threat to life and limb and property, it was incumbent upon the driver as well as the petitioner, who claims to be a helper of the truck driver, to exercise extreme care so that the motorist negotiating the road would be properly forewarned of the peril of a parked vehicle. Isidro submits that the burden of proving that care and diligence were observed is shifted to the petitioner, for, as previously claimed, his (Isidro's) Isuzu truck had a right to be on the road, while the immobile cargo truck had no business, so to speak, to be there. Likewise, Isidro proffers that the petitioner must show to the satisfaction of a reasonable

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mind that the driver and he (petitioner) himself, provided an early warning device, like that required by law, or, by some other adequate means that would properly forewarn vehicles of the impending danger that the parked vehicle posed considering the time, place, and other peculiar circumstances of the occasion. Absent such proof of care, as in the case at bar, Isidro concludes, would, under the doctrine of Res ipsa loquitur, evoke the presumption of negligence on the part of the driver of the parked cargo truck as well as his helper, the petitioner herein, who was fixing the flat tire of the said truck. Respondent Isidro's contention is untenable. +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ + BAYASEN vs. CA Facts: Petitioner was charged of Reckless Imprudence resulting in homicide, being then the driver and person in-charge of Rural health Unit Jeep, drove along Suyo Municipal Road, Sagada, Mountain Province in a negligent, careless and imprudent manner. Said jeep fell over a precipice in the abovementioned place cause thereby the death of Elena Awichen. After trial, the petitioner was found guilty of the charge. The decision was affirmed in CA, hence the instant petition. Issue: Whether or not petitioner is entitled to acquittal on the ground that the finding of the Court of Appeals that the proximate cause of the death of Awichen was the petitioner's "negligence in driving at an unreasonable speed" is openly contrary to the evidence of the prosecution. Held: Yes. It is obvious that the proximate cause of the tragedy was the skidding of the rear wheels of the jeep and not the "unreasonable speed" of the petitioner because there is no evidence on record to prove or support the finding that the petitioner was driving at "an unreasonable speed". It is a well known physical tact that cars may skid on greasy or slippery roads, as in the instant case, without fault on account of the manner of handling the car. Skidding means partial or complete loss of control of the car under circumstances not necessarily implying negligence. It may occur without fault. No negligence as a matter of law can, therefore, be charged to the petitioner. In fact, the moment he felt that the rear wheels of the jeep skidded, he promptly drove it to the left hand side of the road, parallel to the slope of the mountain, because as he said, he wanted to play safe and avoid the embankment. Under the particular circumstances of the instant case, the petitioner- driver who skidded could not be regarded as negligent, the skidding being an unforeseen event, so that the petitioner had a valid excuse for his departure from his regular course. The negligence of the petitioner not having been sufficiently established, his guilt of the crime charged has not been proven beyond reasonable doubt. He is, therefore, entitled to acquittal. +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ + DEL CASTILLO vs. JAYMALIN Facts: Mario del Castillo, a deaf-mute, son of plaintiff Severo del Castillo boarded a bus of private respondent bus line. Upon alighting from the bus, he fell and died as a result. Respondents contend that the proximate cause of Mario's death was his recklessness and gross negligence in jumping out of the bus while in motion. Issue: Whether or not respondents exercised extraordinary diligence.

Held: No, common carriers are responsible for the death of their passengers (Articles 1764 and 2206 of the Civil Code). This liability includes the loss of the earning capacity of the deceased. It appears proven that the defendant corporations failed to exercise the diligence that was their duty to observe according to Articles 1733 and 1755. The conductor was apprised of the fact that Mario del Castillo was deaf and dumb. With this knowledge the conductor should have taken extra-ordinary care for the safety of the said passenger. In this he failed. +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ + Vasquez vs. Court of Appeals (138 SCRA 553) Facts: MV Pioneer Cebu left the port of Manila and bounded for Cebu. Its officers were aware of the upcoming typhoon Klaring that is already building up somewhere in Mindanao. There being no typhoon signals on their route, they proceeded with their voyage. When they reached the island of Romblon, the captain decided not to seek shelter since the weather was still good. They continued their journey until the vessel reached the island of Tanguingui, while passing through the island the weather suddenly changed and heavy rains fell. Fearing that they might hit

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Chocolate island due to zero visibility, the captain ordered to reverse course the vessel so that they could weather out the typhoon by facing the strong winds and waves. Unfortunately, the vessel struck a reef near Malapascua Island, it sustained a leak and eventually sunk. The parents of the passengers who were lost due to that incident filed an action against Filipinas Pioneer Lines for damages. The defendant pleaded force majeure but the Trial Court ruled in favor of the plaintiff. On appeal to the Court of Appeals, it reversed the decision of the lower stating that the incident was a force majeure and absolved the defendants from liability. Issue: Whether of not Filipinas Pioneer Lines is liable for damages and presumed to be at fault for the death of its passenger? Held: The Supreme Court held the Filipinas Pioneer Lines failed to observe that extraordinary diligence required of them by law for the safety of the passengers transported by them with due regard for all necessary circumstance and unnecessarily exposed the vessel to tragic mishap. Despite knowledge of the fact that there was a typhoon, they still proceeded with their voyage relying only on the forecast that the typhoon would weaken upon crossing the island of Samar. The defense of caso fortuito is untenable. To constitute caso fortuito to exempt a person from liability it necessary that the event must be independent from human will, the occurrence must render it impossible for the debtor to fulfill his obligation in a normal manner, the obligor must be free from any participation or aggravation to the injury of the creditor. Filipina Pioneer Lines failed to overcome that presumption o fault or negligence that arises in cases of death or injuries to passengers. ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ Juntilla vs Fontanar (136 SCRA 624) Facts: Herein plaintiff was a passenger of the public utility jeepney on course from Danao City to Cebu City. The jeepney was driven by driven by defendant Berfol Camoro and registered under the franchise of Clemente Fontanar. When the jeepney reached Mandaue City, the right rear tire exploded causing the vehicle to turn turtle. In the process, the plaintiff who was sitting at the front seat was thrown out of the vehicle. Plaintiff suffered a lacerated wound on his right palm aside from the injuries he suffered on his left arm, right thigh, and on his back. Plaintiff filed a case for breach of contract with damages before the City Court of Cebu City. Defendants, in their answer, alleged that the tire blow out was beyond their control, taking into account that the tire that exploded was newly bought and was only slightly used at the time it blew up. Issue: Whether or not the tire blow-out is a fortuitous event? Held: No. In the case at bar, the cause of the unforeseen and unexpected occurrence was not independent of the human will. The accident was caused either through the negligence of the driver or because of mechanical defects in the tire. Common carriers should teach drivers not to overload their vehicles, not to exceed safe and legal speed limits, and to know the correct measures to take when a tire blows up thus insuring the safety of passengers at all times. ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ PHILIPPINE AIRLINES, INC. vs. CA 185 SCRA 110 Facts: On November 23, 1960, Starlight Flight No. 26 of the Philippine Air Lines took off from Iloilo, on its way to Manila, with 33 persons on board, including the plane's complement. The plane did not reach its destination but crashed on Mt. Baco, Mindoro, one hour and fifteen minutes after takeoff .The plane was Identified as PI-C133, a DC-3 type aircraft manufactured in 1942 and acquired by PAL in 1948. It had flown almost 18,000 hours at the time of its illfated flight. It had been certified as airworthy by the Civil Aeronautics Administration. Among the fatalities was Nicanor Padilla. He was 29 years old, single. His mother, Natividad A. Vda. de Padilla, was his only legal heir. As a result of her son's death, Mrs. Padilla filed a complaint (which was amended twice) against PAL, demanding payment of P600,000 as actual and compensatory damages, plus exemplary damages and P60,000 as attorney's fees. In its answer, PAL denied that the accident was caused by its negligence or that of any of the plane's flight crew, and that, moreover, the damages sought were excessive and speculative. On August 31, 1973, the trial court promulgated a decision, ordering the defendant Philippine Air Lines, Inc. to pay the plaintiff Natividad A. Vda. de Padilla the sum of P477,000.00 as award for the expected income of the deceased Nicanor; P10,000.00 as moral damages; P10,000.00 as attorney's fees; and to pay the costs. On Appeal to the Court of Appeals the decision of the trial court was affirmed in toto. Issue: Whether or not the respondent court erred in computing the awarded indemnity on the basis of the life expectancy of the late Nicanor A. Padilla rather than on the life expectancy of private respondent, and thus erred in awarding what appears to the petitioner as the excessive sum of P477,000 as indemnity for loss of earnings. Held: Petitioner relies on "the principle of law generally recognized and applied by the courts in the United States" that "the controlling element in determining loss of earnings arising from death is, as established by authorities, the life expectancy of the deceased or of the beneficiary, whichever is shorter.

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However, resort to foreign jurisprudence would be proper only if no law or jurisprudence is available locally to settle a controversy. Even in the absence of local statute and case law, foreign jurisprudence is only persuasive. For the settlement of the issue at hand, there are enough applicable local laws and jurisprudence. Under Article 1764 and Article 2206(1) of the Civil Code, the award of damages for death is computed on the basis of the life expectancy of the deceased, not of his beneficiary. The articles provide: Art. 1764. Damages in cases comprised in this Section shall be awarded in accordance with Title XVIII of this Book, concerning Damages. Article 2206 shall also apply to the death of a passenger caused by the breach of contract by a common carrier. Art. 2206. The amount of damages for death caused by a crime or quasi- delict shall be at least three thousand pesos, even though there may have been mitigating circumstances. In addition: (1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter ; such indemnity shall in every case be assessed and awarded by the court, unless the deceased on account of permanent physical disability not caused by the defendant, had no earning capacity at the time of his death. In the case of Davila vs. PAL, 49 SCRA 497 which involved the same tragic plane crash, this Court determined not only PALs liability for negligence or breach of contract, but also the manner of computing the damages due the plaintiff therein which it based on the life expectancy of the deceased, Pedro Davila, Jr. WHEREFORE, the petition is dismissed. The decision of the trial court is affirmed with modification. The petitioner is ordered to pay the private respondent or her heirs death indemnity in the sum of P417,000 (not P477,000), with legal rate of interest of 6% per annum from the date of the judgment on August 31, 1973, until it is fully paid. Costs against the petitioner. +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ ++ Abeto Vs Philippine Air Lines,Inc. July 30, 1982 Relova, J. : ENTITIES INVOLVED: PAL carrier JUDGE QURICO ABATO passenger/deceased CONDRADA VDA. DE ABETO - plaintiff FACTS: 1. 2. 3. 4. 5. 6. 7. 8.

Judge Quirico Abato boarded the Philippine Airline' PI-C133 plane at the Mandurriao Airport, Iloilo City for Manila The plane did not reach its destination and there was news that the plane went missing. After 3 weeks, it was ascertained that the plane crashed at Mt. Baco, Province of Mindoro. All the passengers have been killed including Judge Quirico Abeto Condrada Vda. de Abeto , the wife of the deceased, was appointed administratrix of the estate of Judge Abeto. Condrada, together with her children filed a complaint for damages against Philippine Airlines for the death of Judge Abeto. Philippine Airlines, on the other hand, contends that the plane crash was das due to a fortuitous event. The trial court ruled in favor of Abeto and her children.

DEFENSES: Plane Crash was beyond the control of the pilot. The plane was airworthy for the purpose of conveying passengers across the country as shown by the certificate of airworthiness issued by the Civil Aeronautics Administration. There was navigational error but no negligence or malfeasance on the part of the pilot. The plane had undergone pre-flight checks, thorough checks, terminating checks and after-maintenance checks. The deviation from its prescribed route was due to bad weather condition.

ISSUE: Is Philippine Airlines liable for violation of its contract of carriage? RULING: Yes The Civic Code, as the law governing the liability of common carriers, is clear and explicit: Art. 1773 - binds common carriers from the nature of their business and by reason of public policy to observe extraordinary in vigilance for the safety of the passengers transported by them according to all the circumstances of each case.

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Art. 1755 - a common carrier is required to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence of every cautious persons, with due regard for all the circumstances. Art. 1756 - in case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless proved that they observed extra ordinary diligence. Art. 1757 - the responsibility of a common carrier for the safety of passengers cannot be dispensed with or lessened by stipulation, by posting of notices, by statements on tickets, or otherwise,

PAL is liable for the death of Judge Abeto: The plane did not take the designated route which was Iloilo-Romblon-Manila or "Amber I", if it had taken this route, then the crash would have not happened. This was even supported by the statements of Ramon Peroza (Administrative assistant of Philippine Air Lines Inc.)and Cesar Mijares (Assistant Director of the Civil Aeronautics Administration) The weather during that time was clear and the pilot was supposed to cross airway "Amber I"' instead he made a straight flight to Manila in violation of air traffic rules. Since theres no satisfactory explanation by PAL with regard to the accident, then the presumption is it is at fault. +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ PAL vs. NLRC (GR L-62961, 2 September 1983) First Division, Relova (J): 4 concur Facts: On 3 November 1980, Salvador Gempis, a YS-11 pilot of Philippine Airlines (PAL) with the rank of captain, filed with the Ministry of Labor, National Capital Region, a complaint against PAL for illegal suspension and dismissal. The next day, 4 November 1980, PAL filed with the same office an application for clearance to terminate the employment of Gempis on the grounds of (1) serious misconduct and (2) violation of the liquor ban and company policies. The charge of PAL and Capt. Jaime H. Manzano against Gempis was serious misconduct (abuse of authority) for forcing First Officers A. Barcebal and J. Ranches to drink on 27 February 1980, at 10:30 p.m. at the coffee shop of the Triton Hotel at Cebu, 6 bottles of beer each, within 30 minutes. Unable to consume the bottles of beer within the time limit set by Gempis, the two pilots were ordered to stand erect and were hit on the stomach by Gempis. The petition alleged that the incident occurred with Gempis full knowled ge that the 2 affected co-pilots have flight duties the next day with initial assignments as early as 7:10 a.m. and as late as 12:00 p.m. The Labor Arbiter Teodorico Dogelio denied PALs application for clearance to terminate Gempis services inasmuch as the penalty of 6 months demotion was enough to appear in Gempis employment file and ordering PAL to effect Gempis immediate reinstatement as YS -11 Captain, with back wages for a period of 6 months corresponding to the position. The National Labor Relations Commission affirmed the decision of the Labor Arbiter on 29 November 1982. The Supreme Court set aside the decision of the NLRC dated 29 November 1982, and approved PALs application for clearance to terminate Gempis from employment. 1. Pilots reinstatement grossly unfair as pilot is a risk and liability to the common carrier It would be grossly unfair to order PAL to reinstate him back to his work as pilot. The nature of employment of Gempis necessitates that he should not violate the liquor ban as provided for in the Basic Operations Manual in order to protect not only the interest of the company but the public as well. Gempis is a risk and liability rather than an asset to PAL. Gempis and those persons he abused (F/Os A. Barcebal and J. Ranches) are pilots. The foremost consideration called for by their position as pilots is the safety of the passengers. This is so because the duties of a pilot consist of handling controls of the aircraft and to ensure that the flight is conducted safely and economically. 2. Due Diligence of a good father of a family in the selection and supervision of its employees The business of Philippine Airlines is such that whenever a passenger dies or is injured the presumption is, it is at fault notwithstanding the fact that it has exercised due diligence of a good father of a family in the selection and supervision of its employees. Thus, extraordinary measures and diligence should be exercised by it for the safety of its passengers and their belongings. Needless to state, a pilot must be sober all the time for he may be called upon to fly a plane even before his regular scheduled hours, otherwise so many lives will be in danger if he is drunk. It would be unjust for an employer like petitioner PAL to be compelled to continue with the employment of a person whose continuance in the service is obviously inimical to its interests. +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ Philippine Home Assurance vs. Court of Appeals (257 SCRA 468) Facts: Eastern Shipping Lines, Inc. (ESLI) loaded on board SS Eastern Explorer in Kobe, Japan, a shipment for carriage to Manila and Cebu freight prepaid and in good order and condition. While the vessel is off Okinawa, Japan, a small flame was detected on the acetylene cylinder located in the main deck level. As the crew was trying to extinguish the fire, the acetylene cylinder suddenly exploded sendi ng a flash of flame throughout the accommodation area, thus causing death and severe injuries to the crew and instantly setting fire to the whole superstructure of the vessel. The incident forces the master and the crew to abandon the ship. Thereafter, SS Eastern Explorer was found to be constructive total loss and its voyage was declared abandoned. Several hours later, a tugboat under the control of Fukuda Salvage Co. arrived near the vessel and commenced to tow the vessel for the port of Naha, Japan. After the fire was extinguished, the cargoes which were saved were loaded to another vessel for delivery for their original of port of destination. ESLI charged the consignees several amounts corresponding to additional freight and salvage charges. The charges were all paid by Philippine Home Assurance Corporation (PHAC) under protest for and in behalf of the consignees. PHAC, as subrogee of the consignees, thereafter filed a

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complaint before the Regional Trial Court of Manila, Branch 39, against ESLI to recover the sum paid under protest on the ground that the same were actually damages directly brought about by the fault, negligence, illegal act and/or breach of contract of ESLI. In its answer, ESLI contended that it exercised the diligence required by law in the handling, custody and carriage of the shipment; that the fire was caused by unforeseen event; that the additional freight charges are due and demandable pursuant to the Bill of Lading, and that salvage charges are properly collectible under Act. No. 2616, known as the Salvage Law. The trial court dismissed the PHACs complaint and ruled in favor of ESLI. The court said that the Supreme Court has ruled in Erlanger and Galinger vs. Swedish East Asiatic Co., Ltd., 34 Phil. 178, that three elements are (1) a marine peril (2) service voluntary rendered when not required as an existing duty or from a special contract and (3) success in whole or in part, or that the service rendered contributed to such success. The court said that the above elements are all present in the instant case. Salvage charges may thus be assessed on the cargoes saved from the vessel. As provided for in Section 13 of the Salvage Law, The expenses of salvage, as well as the reward for salvage or assi stance shall be a charge on the things salvaged or their value. In Manila Railroad Co. vs. Macondray Co., 37 Phil. 583. It was also held that When a ship and its cargo are saved together, the salvage allowance should be charged against the ship and the cargo in the proportion of their respective values, the same as in the case of general average Thus, the compens ation to be paid by the owner of the cargo is in proportion to the value of the vessel and the value of the cargo saved. On appeal to the Court of Appeals, respondent court affirmed the trial courts findings and conclusion; hence, the present pe tition for review before this Court on the following error, among others: Issue: Whether or not the respondent Court erroneously adopted with approval the Trial Courts conclusion that the expenses or avera ges incurred in saving the cargo constitute general average? Held: On the issue whether or not respondent court committed an error in concluding that the expenses incurred in saving the cargo are considered general average, we rule in the affirmative. As a rule, general or gross averages include all damages and expenses which are deliberately caused in order to save vessels, its cargo or both at the same time, from a real and known risk. While the insta nt case may technically fall within the purview of the said provision, the formalities prescribed under Article 813 and 814 of the Code of Commerce in order to incur the expenses and cause the damage corresponding to gross average were not complied with. Consequently, respondent ESLIs claim fo r contribution from the consignees of the cargo at the time of the occurrence of the average turns to naught. The Court reversed and set aside the judgment of the respondent court and ordered respondent Eastern Shipping Lines. Inc. to return to petitioner Philippine Home Assurance Corporation the amount it paid under protest in behalf of the consignees. +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ Pilapil vs. Court of Appeals 180 SCRA 546 Facts: On September 16, 1971, Jose Pilapil boarded defendants bus bearing No. 409 at San Nicolas, Iriga City at about 6:00PM. Upon reaching the vicinity of the cemetery of the Municipality of Baao, Camarines Sur, on the way to Naga City City, an unidentified man ( a bystander) hurled a stone at the left side of the bus, which apparently hit petitioner above his left eye . He was then immediately brought by private respondents personnel to the provincial hospital in Naga City. Issue: Whether or not the nature of the business of a transportation company requires the assumption of certain risks and the stroking of the bus by a bystander resulting in injury to petitioner-passenger is one such risk from which the common carrier may not exempt itself from liability? Held: The Supreme Court held that while the law requires the highest degree of diligence from common carriers in the safe transport of their passengers and creates a presumption of negligence against them, it does not however, make the carrier an insurer of absolute safety of its passengers. A tort, committed by a stranger who causes an injury to a passenger does not accord the latter a cause of action against the carrier. The negligence for which a common carrier is responsible is the negligent omission by the carriers employees to preve nt the tort from being committed when the same could have been foreseen and prevented by them. Further, it is to be noted that when the violation of the contract is due to the willful acts of strangers, as in the instant case, the degree of care essential to be exercised by the common carrier for the protection of its passenger is only that of a good father of the family.

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Gatchalian v Delim and Court of Appeals 203 SCRA 126

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Facts: Gatchalian boarded the respondents Thames minibus at San Eugenio, Aringay, La Union bound of the same province. On the way , a snapping sound was suddenly heard at one part of the bus and shortly thereafter, the vehicle bumped a cement flower pot on the side of the road, went off the road and fell into a ditch. Several passengers including the petitioner was injured. They were taken into an hospital for treatment. While there, private respondents wife Adela Delim visited and paid for the expenses, hospitalization and transportation fees. However, before she left, she had the injured passengers including the petitioner sign an already prepared Joint Affidavit constituting a waiver of any future complaint. However, notwithstanding this document, petitioner filed an action Ex Contractu to recover compensatory and Actual Damages. Private respondent denied liability on the ground that it was an accident and the Joint which constitutes as a waiver. The trial court dismissed the complaint based on the waiver and the CA affirmed. Issue: Whether or not the private respondent has successfully proved that he exercised extraordinary diligence. Held: The court held that they failed to prove extraordinary diligence. After a snapping sound was suddenly heard at one part of the bus, the driver didnt even bother to stop and look f anything had gone wrong with the bus . With regard to the waiver, it must to be valid and effective, couched in clear and unequivocal terms which leave no doubt as to the intention of the person to give up a right or benefit which legally pertains to him. In this case, such waiver is not clear and unequivocal. When petitioner signed the waiver, she was reeling from the effects of the accident and while reading the paper, she experienced dizziness but upon seeing other passengers sign the document, she too signed which bothering to read to its entirety. There appears substantial doubt whether the petitioner fully understood the joint affidavit. ++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ PHILIPPINE NATIONAL RAILWAYS vs. CA Facts: Winifredo Tupang, husband of plaintiff, boarded a train of appellant at Libmanan, Camarines Sur, as a paying passenger bound for Manila. Due to some mechanical defect, the train stopped at Sipocot, Camarines Sur, for repairs. Unfortunately, upon passing Iyam Bridge at Lucena, Quezon, Winifredo Tupang fell off the train resulting in his death.The train did not stop despite the alarm raised by the other passengers that somebody fell from the train. Upon complaint filed by Rosario the lower court after trial, held PNR liable for damages for breach of contract of carriage. The decision was sustained by the appellate court hence the present petition, wherein PNR raised for the first time, as a defense, the doctrine of state immunity from suit. It alleged that it is a mere agency of the Philippine government without distinct or separate personality of its own, and that its funds are governmental in character and, therefore, not subject to garnishment or execution.

Issue: Whether or not PNR can raise the defense of doctrine of state immunity from suit.

Held: No. The PNR was created under Rep. Act 4156, as amended. Section 4 of the said Act provides: The Philippine national Railways shall have the following powers: a. To do all such other things and to transact all such business directly or indirectly necessary, incidental or conducive to the attainment of the purpose of the corporation; and b. Generally, to exercise all powers of a corporation under the Corporation Law. Under the foregoing section, the PNR has all the powers, the characteristics and attributes of a corporation under the Corporation Law. There can be no question then that the PNR may sue and be sued and may be subjected to court processes just like any other corporation. Now, is PNR negligent? Yes. The appellate court found, the petitioner does not deny, that the train boarded by the deceased Winifredo Tupang was so over-crowded that he and many other passengers had no choice but to sit on the open platforms between the coaches of the train. It is likewise undisputed that the train did not even slow down when it approached the Iyam Bridge which was under repair at the time, Neither did the train stop, despite the alarm raised by other passengers that a person had fallen off the train at lyam Bridge. The petitioner has the obligation to transport its passengers to their destinations and to observe extraordinary diligence in doing so. Death or any injury suffered by any of its passengers gives rise to the presumption that it was negligent in the performance of its obligation under the contract of carriage. Thus, as correctly ruled by the respondent court, the petitioner failed to overthrow such presumption of negligence with clear and convincing evidence. But while petitioner failed to exercise extraordinary diligence as required by law, it appears that the deceased was chargeable with contributory negligence. Since he opted to sit on the open platform between the coaches of the train, he should have held tightly and tenaciously on the upright metal bar found at the side of said platform to avoid falling off from the speeding train. Such contributory negligence, while not exempting the PNR from liability, nevertheless justified the deletion of the amount adjudicated as moral damages and exemplary damages. Exemplary damages may be allowed only in cases where the defendant acted in a wanton, fraudulent, reckless, oppressive or malevolent manner. +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

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BRINAS VS. PEOPLE (125 SCRA 687) Facts: In the afternoon of January 6, 1957, Juanito Gesmundo bought a train ticket at the railroad station in Tagkawayan, Quezon for his 55-year old mother Martina Bool and his 3-year old daughter Emelita Gesmundo. The two were bound for Lusacan in Tiaong, Quezon. They boarded the train of Manila Railroad Company at about 2pm. Upon approaching Barrio Lagalag at 8pm, the train slowed down and the conductor, accused-appellant, Clemente Brinas, shouted Lusacan, Lusacan! The old woman walked towards the train exit carrying the child with one hand and holding her baggage with the other. When they were near the door, the train suddenly picked up speed. The old woman and the child stumbled from the train causing them to fall down the tracks and were hit by an oncoming train, causing their instant death. A criminal information was filed against Victor Milan, the driver, Hermogenes Buencamino, the assistant conductor and Clemente Brinas for Double Homicide thru Reckless Imprudence. But the lower court acquitted Milan and Buencamino. On appeal to the CA, respondent CA affirmed the decision. Issue: Whether or not the CA erred in ruling the accused-appellant was negligent? Held: There was no error in the factual findings of the respondent court and in the conclusion drawn from the findings. It is a matter of common knowledge and experience about common carriers like trains and buses that before reaching a station or flagstop they slow down and the conductor announces the name of the place. It is also a matter of common experience that as the train or bus slackens its speed, some passengers usually stand and proceed to the nearest exit, ready to disembark as the train or bus comes to a full stop. This is especially true of a train because passengers feel that if the train resumes its run before they are able to disembark; there is no way to stop it as a bus may be stopped. The appellant was negligent because his announcement was premature and erroneous, for it took a full 3 minutes more before the next barrio of Lusacan was reached. The premature announcement prompted the two victims to stand and proceed to the nearest exit. Without said announcement, the victims would have been safely seated in their respective seats when the train jerked and picked up speed. The proximate cause of the death of the victims was the premature and erroneous announcement of petitioner-appellant. +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ LIGHT RAIL TRANSIT AUTHORITY & RODOLFO ROMAN, versus MARJORIE NAVIDAD, Heirs of the Late NICANOR NAVIDAD & PRUDENT SECURITY AGENCY

FACTS:

Nicanor Navidad, then drunk, entered the EDSA LRT station after purchasing a token (representing payment of the fare). Whil e Navidad was standing on the platform near the LRT tracks, Junelito Escartin, the security guard assigned to the area approached him. A misunderstanding or an altercation between the two apparently ensued that led to a fist fight. No evidence, however, was adduced to indicate how the fight started or who, between the two, delivered the first blow or how Navidad later fell on the LRT tracks. At the exact moment that Navidad fell, an LRT train, operated by petitioner Rodolfo Roman, was coming in. Navidad was struck by the moving train, and he was killed instantaneously. The widow of Nicanor, Marjorie Navidad, along with her children, filed a complaint for damages against Junelito Escartin, Rodolfo Roman, the LRTA, the Metro Transit Organization, Inc. (Metro Transit), and Prudent for the death of her husband. Trial court ruled in favor Navidads wife and against the defendants Prudent Security and Junelito Escartin . LRTA and Rodolfo Roman were dismissed for lack of merit. CA held LRTA and Roman liable, hence the petition.

ISSUE: Whether or not there was a perfected contract of carriage between Navidad and LRTA

HELD: AFFIRMED with MODIFICATION but only in that (a) the award of nominal damages is DELETED and (b) petitioner Rodolfo Roman is absolved from liability

Contract of carriage was deemed created from the moment Navidad paid the fare at the LRT station and entered the premises of the latter, entitling Navidad to all the rights and protection under a contractual relation. The appellate court had correctly held LRTA and Roman liable for the death of Navidad in failing to exercise extra ordinary diligence.

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CASE DIGEST (Transportation Law): Bacarro vs. Castano Bacarro vs. Castano (GR L-34597, 5 November 1982) FACTS: Respondent Castano boarded a jeep driven by Petitioner Montefalcon who thereafter drove it at around 40 kilometers per hour. While approaching Sumasap Bridge at the said speed, a cargo truck coming from behind, blowing its horn to signal its intention to overtake the jeep. The jeep, without changing its speed, gave way by swerving to the right, such that both vehicles ran side by side for a distance of around 20 meters. Thereafter as the jeep was left behind, its driver was unable to return it to its former lane and instead it obliquely or diagonally ran down an inclined terrain towards the right until it fell into a ditch pinning down and crushing Castanos right leg in the process. Castano filed a case for damages against Rosita Bacarro, William Sevilla, and Felario Montefalcon. Defendants alleged that the jeepney was sideswiped by the overtaking cargo truck. After trial, the CFI of Misamis Oriental ordered Bacarro, et.al. to jointly and severally pay Castano. It was affirmed by the CA upon appeal. ISSUES: 1. Whether or not there was a contributory negligence on the part of the jeepney driver. 2. Whether or not extraordinary diligence is required of the jeepney driver. 3. Whether or not the sideswiping is a fortuitous event. HELD: 1.) Yes. X x x. The fact is, petitioner-driver Montefalcon did not slacken his speed but instead continued to run the jeep at about forty (40) kilometers per hour even at the time the overtaking cargo truck was running side by side for about twenty (20) meters and at which time he even shouted to the driver of the truck. Thus, had Montefalcon slackened the speed of the jeep at the time the truck was overtaking it, instead of running side by side with the cargo truck, there would have been no contact and accident. He should have foreseen that at the speed he was running, the vehicles were getting nearer the bridge and as the road was getting narrower the truck would be to close to the jeep and would eventually sideswiped it. Otherwise stated, he should have slackened his jeep when he swerved it to the right to give way to the truck because the two vehicles could not cross the bridge at the same time. 2.) Yes. x x x [T]he fact is, there was a contract of carriage between the private respondent and the herein petitioners in which case the Court of Appeals correctly applied Articles 1733, 1755 and 1766 of the Civil Code which require the exercise of extraordinary diligence on the part of petitioner Montefalcon. Indeed, the hazards of modern transportation demand extraordinary diligence. A common carrier is vested with public interest. Under the new Civil Code, instead of being required to exercise mere ordinary diligence a common carrier is exhorted to carry the passengers safely as far as human care and foresight can provide "using the utmost diligence of very cautious persons." (Article 1755). Once a passenger in the course of travel is injured, or does not reach his destination safely, the carrier and driver are presumed to be at fault. 3.) The third assigned error of the petitioners would find fault upon respondent court in not freeing petitioners from any liability, since the accident was due to a fortuitous event. But, We repeat that the alleged fortuitous event in this case - the sideswiping of the jeepney by the cargo truck, was something which could have been avoided considering the narrowness of the Sumasap Bridge which was not wide enough to admit two vehicles. As found by the Court of Appeals, Montefalcon contributed to the occurrence of the mishap. +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ Dangwa Transportation Co. vs Court of Appeals GR No. 95582 October 1991 Facts: On March 25, 1985, Pedrito Cudiamat was ran over by a bus operated by Dangwa Transportation Company, and driven by Theodore Lardizabal. Lardizabal, being reckless and negligent, has prematurely stepped on the accelerator of the bus just as when Cudiamat boarded the same. The sudden jerk movement caused Cudiamat to fall from the platform and was ran over by the bus. Moreover, the driver did not immediately bring the victim to the nearest hospital for medical attention. Issue: Whether or not the driver and bus company are liable for the death of P. Cudiamat. Held: They are liable.

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Common carriers, from the nature of their business and reasons of public policy, are bound to observe extraordinary diligence for the safety of the passengers transported by the according to all the circumstances of each case. A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using the utmost diligence very cautious persons, with a due regard for all the circumstances. It has also been repeatedly held that in an action based on a contract of carriage, the court need not make an express finding of fault or negligence on the part of the carrier in order to hold it responsible to pay the damages sought by the passenger. By contract of carriage, the carrier assumes the express obligation to transport the passenger to his destination safely and observe extraordinary diligence with a due regard for all the circumstances, and any injury that might be suffered by the passenger is right away attributable to the fault or negligence of the carrier. This is an exception to the general rule that negligence must be proved, and it is therefore incumbent upon the carrier to prove that it has exercised extraordinary diligence as prescribed in Articles 1733 and 1755 of the Civil Code +++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ ++++ KAPALARAN BUS LINE V. CORONADO FACTS: On August, 1982, the jeepney driven by Lope Grajera was coming from Laguna on its way to Sta. Cruz. As it reached the intersection where there is a traffic sign yield, it stopped and cautiously treated the intersection as a Thru Stop street, which it is not.

The Kapalaran Bus Line was on its way from Sta. Cruz, Laguna driven by its driver, Virgilio Llamoso, on its way towards Manila. As the KBL neared the intersection, Llamoso inquired from his conductor if they could still accommodate passengers and learning that they were already full, he decided to bypass Pila and instead, to proceed along the national highway. Virgilio admitted that there was another vehicle ahead of him.

The general rule is that the vehicle on the national highway has the right of way as against a feeder road. Another general rule is that a vehicle coming from the right has the right of way over the vehicle coming from the left.The general rules on right of way may be invoked only if both the vehicles approach the intersection at almost the same time. In the case at bar, both roads are national roads. Also, the KBL Bus was still far from the intersection when the jeepney reached the same. As testified by Atty. Conrado Manicad, he stopped at the intersection to give way to the jeepney driven by Grajera. However, there was a collision between the jeepney and the bus. The KBL bus ignored the stopped vehicles and the other vehicles behind Atty. Manicad and overtook both vehicles at the intersection therefore causing the accident.

Kapalaran filed a suit against the owner of the jeepney and its driver. However, it lost the case. Furthermore, the Court did not hold as liable the driver of the bus.

ISSUE: Whether or not KBL is accountable, considering the driver of the bus was not held liable by the Courts.

HELD: Yes, Kapalaran is liable. The driver violated certain general rules, and provisions in the Land Transportation and Traffice Code. Hence, he can be presumed negligent. The patent and gross negligence on the part of Kapalarans driver raised the legal presumption tha t Kapalaran as employer was guilty of negligene either in the selection or supervision of its bus drivers. Where the employer is held liable for damages, it has of course a right of recourse against its own negligent employee. If petitioner Kapalaran was interested in maintaining its right of recourse against or reimbursement from its own driver, it should have appealed from that portion of the trial courts decision which had failed to hol d the bus driver accountable for damages. The liability of employer under Article 2180 of the Civil Code is direct and immediate; it is not conditioned upon prior recourse against the negligent on its own part.

The law requires Kapalaran as common carrier to exercise extraordinary diligence in carrying and transporting their passengers safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with due regard for all the circumstances. In requiring the highest possible degree of diligence from common carriers and creating a presumption of negligence against them, the law compels them to curb the recklessness of their drivers. The law seeks to stop and prevent the slaughter and maiming of people (whether passengers or not) and the destruction of property (whether freight or not) on our highways by buses, the very size and power of which seem often to inflame the minds of their drivers.

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+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++ +++ BLTB v. IAC FACTS: The case stems from the COLLISION between a BLTB bus driven by Armando Pon and Superlines bus driven by Ruben Dasco. The said collision resulted in the death of 3 people and in several injuries to two more who are all passengers of the BLTB Bus. The evidence shows that as the BLTB Bus was negotiating the bend of the highway, it tried to overtake a Ford Fiera car just as the Superlines Bus was coming from the opposite direction. Seeing the approaching Superlines bus, Armando Pon (driver of the BLTB Bus) made a belated attempt to slacken the speed of his bus and tried to return to his proper lane. It was an unsuccessful try as the two (2) buses collided with each other. The victims instituted separate cases against BLTB and Superlines together with their respective drivers. Also, criminal cases against the drivers of the two buses were filed. Defendants BLTB and Superlines, together with their drivers Pon and Dasco, denied liability by claiming that they exercised due care and diligence and shifted the fault, against each other. After trial on the merits, the lower court exonerated defendants Superlines and its driver Dasco from liability and attributed sole responsibility to defendants BLTB and its driver Pon, and ordered them jointly and severally to pay damages to the plaintiffs. The Appellate Court affirmed with slight modification. ISSUE: Whether the courts below erred in holding BLTB liable. RULING: Finding no reversible error, SC affirmed the questioned decision. The Court ruled that the proximate cause of the collision resulting in the death of three and injuries to two of the passengers of BLTB was the sole negligence of the driver of the BLTB Bus, who recklessly operated and drove said bus in a lane where overtaking is not allowed by Traffic Rules and Regulations. Such negligence and recklessness is binding against petitioner BLTB, more so when We consider the fact that in an action based on a contract of carriage, the court need not make an express finding of fault or negligence on the part of the carrier in order to hold it responsible for the payment of the damages sought by the passenger. By the contract of carriage, the carrier BLTB assumed the express obligation to transport the passengers to their destination safely and to observe extraordinary diligence with a due regard for all the circumstances, and any injury that might be suffered by its passengers is right away attributable to the fault or negligence of the carrier (Art. 1756, New Civil Code). A reading of the respondent court's decision shows that it anchored petitioners' liability both in culpa contractual and culpa aquiliana. The court below held that the proximate cause of the collision resulting in the death of three and injuries to two of the passengers of BLTB was the negligence of the driver of the BLTB bus, who recklessly operated and drove said bus by overtaking a Ford Fiera car as he was negotiating the ascending bend of the highway which was divided into two lanes by a continuous yellow strip. The driver of the BLTB bus admitted in his cross-examination that the continuous yellow line on the ascending bend of the highway signifies a NO OVERTAKING ZONE. It is no surprise then that the driver of the Superlines bus was exonerated by the lower court. He had a valid reason to presuppose that no one would overtake in such a dangerous situation. These facts show the imprudence of the BLTB driver. It is well settled that a driver abandoning his proper lane for the purpose of overtaking another vehicle in ordinary situation has the duty to see that the road is clear and not to proceed if he cannot do so in safety. The said rule becomes more particularly applicable in this case when the overtaking took place on an ascending curved highway divided into two lanes by a continuous yellow line. Unless there is 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.' Coming to the subject of the liability, the Court held: For his own negligence in recklessly driving the truck owned by his employer, appellant Armando Pon is primarily liable ( Article 2176, Civil Code). On the other hand the liability of Pon's employer, appellant BLTB, is also primary, direct and immediate in view of the fact that the death of or injuries to its passengers was through the negligence of its employee, and such liability does not cease even upon proof that BLTB had exercised all the diligence of a good father of a family in the selection and supervision of its employees (Article 1759, Civil Code). "The common carrier's liability for the death of or injuries to its passengers is based on its contractual obligation to carry its passengers safely to their destination. That obligation is so serious that the Civil Code requires "utmost diligence of very

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cautious person (Article 1755, Civil Code). They are presumed to have been at fault or to have acted negligently unless they prove that they have observed extraordinary diligence (Article 1756, Civil Code). In the present case, the appellants have failed to prove extraordinary diligence. Indeed, this legal presumption was confirmed by the fact that the bus driver of BLTB was negligent. It must follow that both the driver and the owner must answer for injuries or death to its passengers.

Nothing follows