HONRION LASAM vs .

FRANK SMITH

FIRST DIVISION
[G.R. No. 19495. February 2, 1924.]
HONRION LASAM ET AL., plaintis-appellants, vs. FRANK SMITH,
jr., defendant-appellant.

Palma & Leuterion for plaintiffs-appellant.

Mariano Alisngco for defendant-appellant.
SYLLABUS
1.
DAMAGES; CONTRACT OF CARRIAGE OF PASSENGERS; BREACH OF
CONTRACT. Defendant, the owner of a public garage, under took to convey the
plaintis by automobile from San Fernando, La union, to Currimao, Ilocos Norte.
While on the way to result of which the plaintis were injured. Held: That the
action for damages articles 1101-1107 of the Civil Code, and not article 1903,
were applicable.
2.
ID.; ID.; FORTUITOUS EVENT. The expression "events which
cannot be foreseen and which having been foreseen, are inevitable" is
synonymous with the term "fortuitous event" of which some extraordinary
circumstance independent of the will of the obligor, or of his employees, is one of
the essential elements.
3.
ID.; ID.; CARRIER OF PASSENGERS NOT AN INSURER AGAINST ALL
RISKS. Neither under American nor Spanish law is a carrier of passengers an
absolute insurer against the risks of travel from which the passenger may protect
himself by exercising due care and diligence.
4.
DAMAGES; CONTRACT, NEGLIGENCE IN FULFILLMENT . In
determining the extent of the liability for losses or damages resulting the courts
have a discretionary power to moderate the liability according to the
circumstance (Civil Code article 1103; De Guia vs. Manila Electric Railroad &
Light Co., 40 Phil., 766.)
DECISION
OSTRAND, J :
p

The plaintis are husband and wife and this action is brought to recover
damages in the sum of P20,000 for physical injuries sustained by them in an
automobile accident. The trial court rendered a judgment in their favor for the

sum of P1,254.10, with legal interest from the date of the judgment. Both the
plaintis and the defendant appeal, the former maintaining that the damages
awarded are insucient while the latter denies all liability for any damages
whatever.
It appears from the evidence that on February 27, 1918, the defendant was
of San Fernando, La Union, and engaged in the business of carrying passengers
for hire from one point to another in the Province of La Union and the
surrounding provinces. On the date mentioned, he undertook to convey plainti
from San Fernando to Currimao, Ilocos Norte, in a Ford automobile. On leaving
San Fernando, the automobile was operated by a licensed chaueur, but after
having reached the town of San Juan, the chaueur allowed his assistant,
Remigio Bueno, to drive the car. Bueno held to driver's license, but had some
experience in driving, and with the exception of some slight engine trouble while
passing through the town of Luna, the car functioned well until after the crossing
of the Abra River in Tagudin, when, according to the testimony of witnesses for
the plaintis, defects developed in the steering gear so as to make accurate
steering impossible, and after zigzagging for a distance of about half a kilometer,
the car left the road and went down a steep embankment.
The defendant, in his testimony, maintains that there was no defect in the
steering gear, neither before nor after the accident, and expresses the opinion
that the swaying or zigzagging of the car must have been due to its having been
driven at an excessive rate of speed. This may possibly be true, but it is, from our
point of view, immaterial whether the accident was caused by negligence on the
part of the defendant's employees, or whether it was due to the same in either
event.
In going over the bank of the road, the automobile was overturned and the
plaintis pinned down under it. Mr. Lasam escaped with a few contusions and a
"dislocated" rib, but his wife, Joaquina Sanchez, received serious injuries, among
which was a compound fracture of one of the bones in her left wrist. She also
appears to have suered a nervous breakdown from which she had not fully
recovered at the time of the trial.
The complaint in the case was led about a year and a half after the
occurrence above related. It alleges, among other things, that the accident was
due to defects in the automobile as well as to the incompetence and negligence
of the chaueur, and the case appears to have been tried largely upon the theory
that it sounds in tort and that the liability of the defendant is governed by article
1903 of the Civil Code. The trial court held, however, that the cause of action
rests on the defendant's breach of the contract of carriage and that,
consequently, articles 1101-1107 of the Civil Code, and not article 1903, are
applicable. The court further found that the breach of the contract was not due to
fortuitous events and that, therefore, the defendant was liable in damages.
In our opinion, the conclusions of the court below are entirely correct. That
upon the facts stated the defendant's liability, if any, is contractual, is well
settled by previous decisions of the court, beginning with the case of Rakes vs.
Atlantic, Gulf & Pacic Co. (7 Phil., 359), and the distinction between extracontractual liability and contractual liability has been so ably and exhaustively

discussed in various other cases, that nothing further need here be said upon that
subject. (See Cangco vs. Manila Railroad Co. 38 Phil., 768; Manila Railroad Co.
Compania Trasatlantica and Atlantic, Gulf & Pacic Co., 38 Phil., 875; De Guia vs.
Manila Electric Railroad & Light source of the defendant's legal liability is the
contract of carriage; the by entering into that contract he bound himself to carry
the plaintis safely and securely to their destination; and that having failed to do
so he is liable in damages unless he shows that the failure to fulll his obligation
was due to causes mentioned in article 1105 of the Civil Code, which reads as
follows:
"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 which the obligation
itself imposes such liability."

This brings us to the principal question in the case: What is meant by

"events which cannot be foreseen and which having been foreseen, are
inevitable?" The Spanish authorities regard the language employed as an eort
to dene the term caso fortuito and hold that the two expressions are
synonymous. (Manresa, Comentarios al Co Civil Espaol, vol. 8, pp. 88 et seq.;
Scaevola, Codigo Civil, vol. 19, pp. 526 et seq.)
The antecedent to article 1105 is found in Law 11, Title 33, Partida 7,
which denes caso fortuito as "ocasion que acaese por aventura deque non se
puede ante ver. E son estos, derrivamientos de casas e fuego que se enciende so
ora, e quebrantamiento de navio, fuerca de ladrones. . . . ( An event that takes
place by accident and could not have been foreseen, Examples of this are
destruction of houses, unexpected fire, shipwreck, violence of robbers. . . .)"
Escriche denes caso fortuito as "an unexpected event such as oods,
torrents, shipwrecks, conagrations, lightning, compulsion, insurrections,
destruction of buildings by unforeseen accidents and other occurrences of a
similar nature."
In discussing and analyzing the term caso fortuito the Enciclopedia Juridica
Espaola says: " In a legal sense and, consequently, also in relation to contracts,
a caso fortuito presents the following essential characteristics: (1) The cause of
the unforeseen and unexpected occurrence, or of the failure of the debtor to
comply with his obligation, must be independent of the human will. (2) It must
be impossible 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 fulll his obligation in a normal manner.
And (4) the obligor (debtor) must be free from any participation in the
aggravation of the injury resulting to the creditor." (5 Enciclopedia Juridica
Espaola, 309.)
As will be seen, these authorities agree that some extraordinary
circumstance independent of the will of the obligor, or of his employees, is an
essential element of a caso fortuito. Turning to the present case, it is at once
apparent that this elements is lacking. It is not suggested that the accident in
question was due to an act of God or to adverse road conditions which could not
have been foreseen. As far as the record shows, the accident was caused either

by defects in the automobile or else through the negligence of its driver. That is
not a caso fortuito.
We agree with counsel that neither under the American nor Spanish law is
a carrier of passengers an absolute insurer against the risks of travel from which
the passenger may protect himself by exercising ordinary care and diligence. The
case of Alba vs. Sociedad Anonima de Tranvias, Jurisprudencia Civil, vol. 102, p.
928, cited by the defendant in support of his contentions, aords a good
illustration of the application of this principle. In that case Alba, a passenger on a
street car, was standing on the platform of the car while it was in motion. The car
rounded a curve causing Alba to lose his balance and fall o the platform,
sustaining sever injuries. In an action brought by him to recover damages, the
supreme court of Spain held that inasmuch as the car at the time of the accident
was travelling at a moderate rate of speed and there was no infraction of the
regulations, and the plainti was exposed to no greater danger than that
inherent in that particular mode of travel, the plainti could not recover,
especially so since he should have been on his guard against a contingency as
natural as that of losing his balance to a greater or less extent when the car
rounded the curve.
But such is not the present case; here the passengers had no means of
avoiding the danger or escaping the injury.
The plaintis maintain that the evidence clearly establishes that they are
entitled to damages in the sum of P7,832.80 instead of P1,254.10 as found by
the trial court, and their assignments of error relate to this point only.
There can be no doubt that the expenses incurred by the plaintis as a
result of the accident greatly exceeded the amount of the damages awarded. But
bearing in mind that in determining the extent of the liability for losses or
damages resulting from negligence in the fulllment of a contractual obligation,
the courts have " a discretionary power to moderate the liability according to the
circumstances" (De Guia vs. Manila Electric Railroad & light Co., 40 Phil., 706
Phil; art. 1103, Civil Code), we do not think that the evidence is such as to justify
us in interfering with the discretion of the court below in this respect. As pointed
out by that court in its well-reasoned and well considered decision, by far the
greater part of the damages claimed by the plaintis resulted from the fracture
of a bone in the left wrist of Joaquina Sanchez and from her objections to having
a decaying splinter of the bone refusal to submit to such an operation, a series of
infections ensued and which required constant and expensive medical treatment
for several years. We agree with the these expenses.
For the reasons stated, the judgment appealed from is armed, without
costs in this instance. So ordered.

Araullo, C. J., Street, Malcolm, Johns, and Romualdez, JJ., concur.