CHAPTER 2

1. LIGHT RAIL TRANSIT AUTHORITY & RODOLFO ROMAN, petitioners, vs. MARJORIE NAVIDAD, Heirs of the Late
NICANOR NAVIDAD & PRUDENT SECURITY AGENCY, respondents.

DECISION

The case before the Court is an appeal from the decision and resolution of the Court of Appeals, promulgated on
27 April 2000 and 10 October 2000, respectively, in CA-G.R. CV No. 60720, entitled Marjorie Navidad and Heirs of
the Late Nicanor Navidad vs. Rodolfo Roman, et. al., which has modified the decision of 11 August 1998 of the
Regional Trial Court, Branch 266, Pasig City, exonerating Prudent Security Agency (Prudent) from liability and
finding Light Rail Transit Authority (LRTA) and Rodolfo Roman liable for damages on account of the death of
Nicanor Navidad.

On 14 October 1993, about half an hour past seven oclock in the evening, Nicanor Navidad, then drunk, entered
the EDSA LRT station after purchasing a token (representing payment of the fare). While Navidad was standing on
the platform near the LRT tracks, Junelito Escartin, the security guard assigned to the area approached Navidad.
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. On 08
December 1994, the widow of Nicanor, herein respondent 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. LRTA and Roman filed a counterclaim against Navidad
and a cross-claim against Escartin and Prudent. Prudent, in its answer, denied liability and averred that it had
exercised due diligence in the selection and supervision of its security guards. The LRTA and Roman presented
their evidence while Prudent and Escartin, instead of presenting evidence, filed a demurrer contending that
Navidad had failed to prove that Escartin was negligent in his assigned task. On 11 August 1998, the trial court
rendered its decision; it adjudged:

WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and against the defendants Prudent Security
and Junelito Escartin ordering the latter to pay jointly and severally the plaintiffs the following:

a) 1) Actual damages of P44,830.00;2) Compensatory damages of P443,520.00; 3) Indemnity for the death of
Nicanor Navidad in the sum of P50,000.00; b) Moral damages of P50,000.00;c) Attorneys fees of P20,000;d) Costs
of suit.

The complaint against defendants LRTA and Rodolfo Roman are dismissed for lack of merit
The compulsory counterclaim of LRTA and Roman are likewise dismissed.[1]
Prudent appealed to the Court of Appeals. On 27 August 2000, the appellate court promulgated its now assailed
decision exonerating Prudent from any liability for the death of Nicanor Navidad and, instead, holding the LRTA
and Roman jointly and severally liable thusly:

WHEREFORE, the assailed judgment is hereby MODIFIED, by exonerating the appellants from any liability for the
death of Nicanor Navidad, Jr. Instead, appellees Rodolfo Roman and the Light Rail Transit Authority (LRTA) are
held liable for his death and are hereby directed to pay jointly and severally to the plaintiffs-appellees, the
following amounts:

a) P44,830.00 as actual damages;b) P50,000.00 as nominal damages;c) P50,000.00 as moral damages; d)

P50,000.00 as indemnity for the death of the deceased; and e) P20,000.00 as and for attorneys fees.[2] The
appellate court ratiocinated that while the deceased might not have then as yet boarded the train, a contract of
carriage theretofore had already existed when the victim entered the place where passengers were supposed to
be after paying the fare and getting the corresponding token therefor. In exempting Prudent from liability, the
court stressed that there was nothing to link the security agency to the death of Navidad. It said that Navidad
failed to show that Escartin inflicted fist blows upon the victim and the evidence merely established the fact of
death of Navidad by reason of his having been hit by the train owned and managed by the LRTA and operated at
the time by Roman. The appellate court faulted petitioners for their failure to present expert evidence to establish
the fact that the application of emergency brakes could not have stopped the train.

The appellate court denied petitioners motion for reconsideration in its resolution of 10 October 2000.

In their present recourse, petitioners recite alleged errors on the part of the appellte court; viz:

I.THE HONORABLE COURT OF APPEALS GRAVELY ERRED BY DISREGARDING THE FINDINGS OF FACTS BY THE TRIAL
COURT

II.THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT PETITIONERS ARE LIABLE FOR THE
DEATH OF NICANOR NAVIDAD, JR.

III.THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT RODOLFO ROMAN IS AN EMPLOYEE
OF LRTA.[3]

Petitioners would contend that the appellate court ignored the evidence and the factual findings of the trial court
by holding them liable on the basis of a sweeping conclusion that the presumption of negligence on the part of a
common carrier was not overcome. Petitioners would insist that Escartins assault upon Navidad, which caused
the latter to fall on the tracks, was an act of a stranger that could not have been foreseen or prevented. The LRTA
would add that the appellate courts conclusion on the existence of an employer-employee relationship between
Roman and LRTA lacked basis because Roman himself had testified being an employee of Metro Transit and not
of the LRTA.

Respondents, supporting the decision of the appellate court, contended that a 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, and that the appellate court had correctly
held LRTA and Roman liable for the death of Navidad in failing to exercise extraordinary diligence imposed upon
a common carrier.

Law and jurisprudence dictate that a common carrier, both from the nature of its business and for reasons of
public policy, is burdened with the duty of exercising utmost diligence in ensuring the safety of passengers.[4] The
Civil Code, governing the liability of a common carrier for death of or injury to its passengers, provides:

Article 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can
provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances

Article 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 they prove that they observed extraordinary diligence as prescribed in articles
1733 and 1755.

Article 1759. Common carriers are liable for the death of or injuries to passengers through the negligence or willful
acts of the formers employees, although such employees may have acted beyond the scope of their authority or
in violation of the orders of the common carriers.

This liability of the common carriers does not cease upon proof that they exercised all the diligence of a good
father of a family in the selection and supervision of their employees.

Article 1763. A common carrier is responsible for injuries suffered by a passenger on account of the willful acts or
negligence of other passengers or of strangers, if the common carriers employees through the exercise of the
diligence of a good father of a family could have prevented or stopped the act or omission.

The law requires common carriers to carry passengers safely using the utmost diligence of very cautious persons
with due regard for all circumstances.[5] Such duty of a common carrier to provide safety to its passengers so
obligates it not only during the course of the trip but for so long as the passengers are within its premises and
where they ought to be in pursuance to the contract of carriage.[6] The statutory provisions render a common
carrier liable for death of or injury to passengers (a) through the negligence or wilful acts of its employees or b)
on account of wilful acts or negligence of other passengers or of strangers if the common carriers employees
through the exercise of due diligence could have prevented or stopped the act or omission.[7] In case of such
death or injury, a carrier is presumed to have been at fault or been negligent, and[8] by simple proof of injury, the
passenger is relieved of the duty to still establish the fault or negligence of the carrier or of its employees and the
burden shifts upon the carrier to prove that the injury is due to an unforeseen event or to force majeure.[9] In the
absence of satisfactory explanation by the carrier on how the accident occurred, which petitioners, according to
the appellate court, have failed to show, the presumption would be that it has been at fault,[10] an exception
from the general rule that negligence must be proved.[11]

The foundation of LRTAs liability is the contract of carriage and its obligation to indemnify the victim arises from
the breach of that contract by reason of its failure to exercise the high diligence required of the common carrier.
In the discharge of its commitment to ensure the safety of passengers, a carrier may choose to hire its own
employees or avail itself of the services of an outsider or an independent firm to undertake the task. In either
case, the common carrier is not relieved of its responsibilities under the contract of carriage.

Should Prudent be made likewise liable? If at all, that liability could only be for tort under the provisions of Article
2176[12] and related provisions, in conjunction with Article 2180,[13] of the Civil Code. The premise, however, for
the employers liability is negligence or fault on the part of the employee. Once such fault is established, the
employer can then be made liable on the basis of the presumption juris tantum that the employer failed to
exercise diligentissimi patris families in the selection and supervision of its employees. The liability is primary and
can only be negated by showing due diligence in the selection and supervision of the employee, a factual matter
that has not been shown. Absent such a showing, one might ask further, how then must the liability of the
common carrier, on the one hand, and an independent contractor, on the other hand, be described? It would be
solidary. A contractual obligation can be breached by tort and when the same act or omission causes the injury,
one resulting in culpa contractual and the other in culpa aquiliana, Article 2194[14] of the Civil Code can well
apply.[15] In fine, a liability for tort may arise even under a contract, where tort is that which breaches the
contract.[16] Stated differently, when an act which constitutes a breach of contract would have itself constituted
the source of a quasi-delictual liability had no contract existed between the parties, the contract can be said to
have been breached by tort, thereby allowing the rules on tort to apply.[17]

Regrettably for LRT, as well as perhaps the surviving spouse and heirs of the late Nicanor Navidad, this Court is
concluded by the factual finding of the Court of Appeals that there is nothing to link (Prudent) to the death of
Nicanor (Navidad), for the reason that the negligence of its employee, Escartin, has not been duly proven x x x.
This finding of the appellate court is not without substantial justification in our own review of the records of the
case.

There being, similarly, no showing that petitioner Rodolfo Roman himself is guilty of any culpable act or omission,
he must also be absolved from liability. Needless to say, the contractual tie between the LRT and Navidad is not
itself a juridical relation between the latter and Roman; thus, Roman can be made liable only for his own fault or
negligence.

The award of nominal damages in addition to actual damages is untenable. Nominal damages are adjudicated in
order that a right of the plaintiff, which has been violated or invaded by the defendant, may be vindicated or
recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by him.[18] It is an
established rule that nominal damages cannot co-exist with compensatory damages.[19]

WHEREFORE, the assailed decision of the appellate court is AFFIRMED with MODIFICATION but only in that (a) the
award of nominal damages is DELETED and (b) petitioner Rodolfo Roman is absolved from liability. No costs.

SO ORDERED.

2. Dangwa Transco. Co. Inc. v. CA

Facts: Private respondents filed a complaint for damages against petitioners for the death of Pedrito Cudiamat.
The deceased was attempting to board a bus, but it suddenly accelerated forward. He fell off and the bus ran over
him, resulting to his death.

Issue: Whether the bus is liable as a common carrier to the deceased who was still attempting to board

Held: It is the duty of common carriers of passengers to stop their conveyances a reasonable length of time in
order to afford passengers an opportunity to board and enter, and they are liable for injuries suffered by boarding
passengers resulting from the sudden starting up or jerking of their conveyances while they are doing so.

FACTS:

-May 13, 1985: Theodore M. Lardizabal was driving a passenger bus belonging to Dangwa Transportation Co. Inc.
(Dangwa)
-The bus was at full stop bet. Bunkhouses 53 and 54 when Pedro alighted
-Pedro Cudiamat fell from the platform of the bus when it suddenly accelerated forward
-Pedro was ran over by the rear right tires of the vehicle
-Theodore first brought his other passengers and cargo to their respective destinations before bringing Pedro to
Lepanto Hospital where he expired
-Private respondents filed a complaint for damages against Dangwa for the death of Pedro Cudiamat
Dangwa: observed and continued to observe the extraordinary diligence required in the operation of the co. and
the supervision of the employees even as they are not absolute insurers of the public at large
RTC: in favour of Dangwa holding Pedrito as negligent and his negligence was the cause of his death but still
ordered to pay in equity P 10,000 to the heirs of Pedrito
CA: reversed and ordered to pay Pedrito indemnity, moral damages, actual and compensatory damages and cost
of the suit
ISSUE: W/N Dangwa should be held liable for the negligence of its driver Theodore
HELD: YES. CA affirmed.
-A public utility once it stops, is in effect making a continuous offer to bus riders (EVEN when moving as long as it
is still slow in motion)
-Duty of the driver: do NOT make acts that would have the effect of increasing peril to a passenger while he is
attempting to board the same
-Premature acceleration of the bus in this case = breach of duty
-Stepping and standing on the platform of the bus is already considered a passenger and is entitled all the rights
and protection pertaining to such a contractual relation
-Duty extends to boarding and alighting
GR: 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
EX: carrier to prove that it has exercised extraordinary diligence as prescribed in Art. 1733 and 1755 of the Civil
Code
-Failure to immediately bring Pedrito to the hospital despite his serious condition = patent and incontrovertible
proof of their negligence
-Hospital was in Bunk 56
-1st proceeded to Bunk 70 to allow a passenger (who later called the family of Pedrito on his own will) to alight
and deliver a refrigerator
-In tort, actual damages is based on net earnings

3. La Mallorca V CA
Facts:
Mariano Beltran and his family rode a bus owned by petitioner. Upon reaching their desired destination, they
alighted from the bus. But Mariano returned to get their baggage. His youngest daughter followed him without
his knowledge. When he stepped into the bus again, it suddenly accelerated. Marianos daughter was found dead.
The bus ran over her.
Issue:Whether the liability of a common carrier extends even after the passenger had alighted
Held:
The relation of carrier and passenger does not cease at the moment the passenger alights from the carriers
vehicle at a place selected by the carrier at the point of destination, but continues until the passenger has had a
reasonable time or reasonable opportunity to leave the current premises.

Facts: Plaintiffs husband and wife, together with their minor children, boarded a La Mallorca bus. Upon arrival at
their destination, plaintiffs and their children alighted from the bus and the father led them to a shaded spot about
5 meters from the vehicle. The father returned to the bus to get a piece of baggage which was not unloaded. He
was followed by her daughter Raquel. While the father was still on the running board awaiting for the conductor
to give his baggage, the bus started to run so that the father had to jump. Raquel, who was near the bus, was run
over and killed.
Lower court rendered judgment for the plaintiff which was affirmed by CA, holding La Mallorca liable for quasi-
delict and ordering it to pay P6,000 plus P400. La Mallorco contended that when the child was killed, she was no
longer a passenger and therefore the contract of carriage terminated.
Issue: Whether or not the contractual obligation between the parties ceases the moment the passenger alighted
form the vehicle.
Held: On the question whether the liability of the carrier, as to the child who was already led a place 5 meters
from the bus under the contract of carrier, still persists, we rule in the affirmative. It is a recognized rules that the
relation between carrier and passengers does not cease at the moment the passenger alights from the carriers
premises, to be determined from the circumstances. In this case, there was no utmost diligence. Firstly, the
driver, although stopping the bus, did not put off the engine. Secondly, he started to run the bus even before the
bus conductor gave him the signal and while the latter was unloading cargo. Here, the presence of said passenger
near the bus was not unreasonable and the duration of responsibility still exists. Averment of quasi-delict is
permissible under the Rules of Court, although incompatible with the contract of carriage. The Rules of Court
allows the plaintiffs to allege causes of action in the alternative, be they compatible with each other or not (Sec.
2, Rule 1). Even assuming arguendo that the contract of carriage has already terminated, herein petitioner can be
held liable for the negligence of its driver pursuant to Art. 2180 of NCC. Decision MODIFIED. Only question raised
in the briefs can be passed upon, and as plaintiffs did not appeals the award of P3,000.00 the increase by the CA
of the award to P6,000.00 cannot be sustained.

4. Aboitiz Shipping Copr Vs CA

FACTS:
Anacleto Viana boarded the vessel M/V Antonia, owned by Aboitiz Shipping Corporation, at the port at San Jose,
Occidental Mindoro, bound for Manila. After said vessel had landed, the Pioneer Stevedoring Corporation took
over the exclusive control of the cargoes loaded on said vessel pursuant to the Memorandum of Agreement
between Pioneer and petitioner Aboitiz.
The crane owned by Pioneer was placed alongside the vessel and one (1) hour after the passengers of said vessel
had disembarked, it started operation by unloading the cargoes from said vessel. While the crane was being
operated, Anacleto Viana who had already disembarked from said vessel obviously remembering that some of his
cargoes were still loaded in the vessel, went back to the vessel, and it was while he was pointing to the crew of
the said vessel to the place where his cargoes were loaded that the crane hit him, pinning him between the side
of the vessel and the crane. He was thereafter brought to the hospital where he later expired three (3) days
thereafter.
Private respondents Vianas filed a complaint for damages against petitioner for breach of contract of carriage.
Aboitiz denied responsibility contending that at the time of the accident, the vessel was completely under the
control of respondent Pioneer Stevedoring Corporation as the exclusive stevedoring contractor of Aboitiz, which
handled the unloading of cargoes from the vessel of Aboitiz.
ISSUE: Whether or not Aboitiz is negligent and is thus liable for the death.
HELD: Yes.
[T]he victim Anacleto Viana guilty of contributory negligence, but it was the negligence of Aboitiz in prematurely
turning over the vessel to the arrastre operator for the unloading of cargoes which was the direct, immediate and
proximate cause of the victim's death.
The rule is that the relation of carrier and passenger continues until the passenger has been landed at the port of
destination and has left the vessel owner's dock or premises. 11 Once created, the relationship will not ordinarily
terminate until the passenger has, after reaching his destination, safely alighted from the carrier's conveyance or
had a reasonable opportunity to leave the carrier's premises. All persons who remain on the premises a reasonable
time after leaving the conveyance are to be deemed passengers, and what is a reasonable time or a reasonable
delay within this rule is to be determined from all the circumstances, and includes a reasonable time to see after
his baggage and prepare for his departure. 12 The carrier-passenger relationship is not terminated merely by the
fact that the person transported has been carried to his destination if, for example, such person remains in the
carrier's premises to claim his baggage.
It is apparent from the foregoing that what prompted the Court to rule as it did in said case is the fact of the
passenger's reasonable presence within the carrier's premises. That reasonableness of time should be made to
depend on the attending circumstances of the case, such as the kind of common carrier, the nature of its business,
the customs of the place, and so forth, and therefore precludes a consideration of the time element per se without
taking into account such other factors. It is thus of no moment whether in the cited case of La Mallorca there was
no appreciable interregnum for the passenger therein to leave the carrier's premises whereas in the case at bar,
an interval of one (1) hour had elapsed before the victim met the accident. The primary factor to be considered is
the existence of a reasonable cause as will justify the presence of the victim on or near the petitioner's vessel. We
believe there exists such a justifiable cause.
It is of common knowledge that, by the very nature of petitioner's business as a shipper, the passengers of vessels
are allotted a longer period of time to disembark from the ship than other common carriers such as a passenger
bus. With respect to the bulk of cargoes and the number of passengers it can load, such vessels are capable of
accommodating a bigger volume of both as compared to the capacity of a regular commuter bus. Consequently,
a ship passenger will need at least an hour as is the usual practice, to disembark from the vessel and claim his
baggage whereas a bus passenger can easily get off the bus and retrieve his luggage in a very short period of time.
Verily, petitioner cannot categorically claim, through the bare expedient of comparing the period of time entailed
in getting the passenger's cargoes, that the ruling in La Mallorca is inapplicable to the case at bar. On the contrary,
if we are to apply the doctrine enunciated therein to the instant petition, we cannot in reason doubt that the
victim Anacleto Viana was still a passenger at the time of the incident. When the accident occurred, the victim
was in the act of unloading his cargoes, which he had every right to do, from petitioner's vessel. As earlier stated,
a carrier is duty bound not only to bring its passengers safely to their destination but also to afford them a
reasonable time to claim their baggage.

5. PHILAMGEM Inc vs. MCO Marine

This petition for review seeks the reversal of the Decision, dated September 23, 1998, of the Court of Appeals in
CA-G.R. CV No. 43915,[1] which absolved private respondents MCG Marine Services, Inc. and Doroteo Gaerlan of
any liability regarding the loss of the cargo belonging to San Miguel Corporation due to the sinking of the M/V
Peatheray Patrick-G owned by Gaerlan with MCG Marine Services, Inc. as agent.
On March 1, 1987, San Miguel Corporation insured several beer bottle cases with an aggregate value of
P5,836,222.80 with petitioner Philippine American General Insurance Company.[2] The cargo were loaded on
board the M/V Peatheray Patrick-G to be transported from Mandaue City to Bislig, Surigao del Sur.
After having been cleared by the Coast Guard Station in Cebu the previous day, the vessel left the port of Mandaue
City for Bislig, Surigao del Sur on March 2, 1987. The weather was calm when the vessel started its voyage.
The following day, March 3, 1987, M/V Peatheray Patrick-G listed and subsequently sunk off Cawit Point, Cortes,
Surigao del Sur. As a consequence thereof, the cargo belonging to San Miguel Corporation was lost.
Subsequently, San Miguel Corporation claimed the amount of its loss from petitioner.
Upon petitioners request, on March 18, 1987, Mr. Eduardo Sayo, a surveyor from the Manila Adjusters and
Surveyors Co., went to Taganauan Island, Cortes, Surigao del Sur where the vessel was cast ashore, to investigate
the circumstances surrounding the loss of the cargo. In his report, Mr. Sayo stated that the vessel was structurally
sound and that he did not see any damage or crack thereon. He concluded that the proximate cause of the listing
and subsequent sinking of the vessel was the shifting of ballast water from starboard to portside. The said shifting
of ballast water allegedly affected the stability of the M/V Peatheray Patrick-G.
Thereafter, petitioner paid San Miguel Corporation the full amount of P5,836,222.80 pursuant to the terms of
their insurance contract.

On November 3, 1987, petitioner as subrogee of San Miguel Corporation filed with the Regional Trial Court (RTC)
of Makati City a case for collection against private respondents to recover the amount it paid to San Miguel
Corporation for the loss of the latters cargo.

Meanwhile, the Board of Marine Inquiry conducted its own investigation of the sinking of the M/V Peatheray
Patrick-G to determine whether or not the captain and crew of the vessel should be held responsible for the
incident.[3] On May 11, 1989, the Board rendered its decision exonerating the captain and crew of the ill-fated
vessel for any administrative liability. It found that the cause of the sinking of the vessel was the existence of
strong winds and enormous waves in Surigao del Sur, a fortuitous event that could not have been forseen at the
time the M/V Peatheray Patrick-G left the port of Mandaue City. It was further held by the Board that said
fortuitous event was the proximate and only cause of the vessels sinking.

On April 15, 1993, the RTC of Makati City, Branch 134, promulgated its Decision finding private respondents
solidarily liable for the loss of San Miguel Corporations cargo and ordering them to pay petitioner the full amount
of the lost cargo plus legal interest, attorneys fees and costs of suit.[4]

Private respondents appealed the trial courts decision to the Court of Appeals. On September 23, 1998, the
appellate court issued the assailed Decision, which reversed the ruling of the RTC. It held that private respondents
could not be held liable for the loss of San Miguel Corporations cargo because said loss occurred as a consequence
of a fortuitous event, and that such fortuitous event was the proximate and only cause of the loss.[5]

Petitioner thus filed the present petition, contending that:

(A)IN REVERSING AND SETTING ASIDE THE DECISION OF RTC BR. 134 OF MAKATI CITY ON THE BASIS OF THE
FINDINGS OF THE BOARD OF MARINE INQUIRY, APPELLATE COURT DECIDED THE CASE AT BAR NOT IN ACCORD
WITH LAW OR WITH THE APPLICABLE DECISIONS OF THE HONORABLE COURT;
(B)IN REVERSING THE TRIAL COURTS DECISION, THE APPELLATE COURT GRAVELY ERRED IN CONTRADICTING AND
IN DISTURBING THE FINDINGS OF THE FORMER;
(C)THE APPELLATE COURT GRAVELY ERRED IN REVERSING THE DECISION OF THE TRIAL COURT AND IN DISMISSING
THE COMPLAINT.[6]

Common carriers, from the nature of their business and for reasons of public policy, are mandated to observe
extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by
them.[7] Owing to this high degree of diligence required of them, common carriers, as a general rule, are
presumed to have been at fault or negligent if the goods transported by them are lost, destroyed or if the same
deteriorated.[8]
However, this presumption of fault or negligence does not arise in the cases enumerated under Article 1734 of
the Civil Code:
Common carriers are responsible for the loss, destruction, or deterioration of the goods, unless the same
is due to any of the following causes only:

(1) Flood, storm, earthquake, lightning or other natural disaster or calamity;

(2) Act of the public enemy in war, whether international or civil;
(3) Act or omission of the shipper or owner of the goods;
(4) The character of the goods or defects in the packing or in the containers;
(5) Order or act of competent public authority.

In order that a common carrier may be absolved from liability where the loss, destruction or deterioration
of the goods is due to a natural disaster or calamity, it must further be shown that the such natural disaster or
calamity was the proximate and only cause of the loss;[9] there must be an entire exclusion of human agency from
the cause of the injury of the loss.[10]
Moreover, even in cases where a natural disaster is the proximate and only cause of the loss, a common
carrier is still required to exercise due diligence to prevent or minimize loss before, during and after the occurrence
of the natural disaster, for it to be exempt from liability under the law for the loss of the goods.[11] If a common
carrier fails to exercise due diligence--or that ordinary care which the circumstances of the particular case
demand[12] --to preserve and protect the goods carried by it on the occasion of a natural disaster, it will be
deemed to have been negligent, and the loss will not be considered as having been due to a natural disaster under
Article 1734 (1).
In the case at bar, the issues may be narrowed down to whether the loss of the cargo was due to the
occurrence of a natural disaster, and if so, whether such natural disaster was the sole and proximate cause of the
loss or whether private respondents were partly to blame for failing to exercise due diligence to prevent the loss
of the cargo.
The parties do not dispute that on the day the M/V Peatheray Patrick-G sunk, said vessel encountered
strong winds and huge waves ranging from six to ten feet in height. The vessel listed at the port side and eventually
sunk at Cawit Point, Cortes, Surigao del Sur.
The Court of Appeals, citing the decision of the Board of Marine Inquiry in the administrative case against
the vessels crew (BMI--646-87), found that the loss of the cargo was due solely to the existence of a fortuitous
event, particularly the presence of strong winds and huge waves at Cortes, Surigao del Sur on March 3, 1987:

III. WHAT WAS THE PROXIMATE CAUSE OF SINKING?

Evidence shows that when "LCT Peatheray Patrick-G" left the port of Mandawe, Cebu for Bislig, Surigao del Sur on
March 2, 1987 the Captain had observed the fair atmospheric condition of the area of the pier and confirmed this
good weather condition with the Coast Guard Detachment of Mandawe City. However, on March 3, 1987 at about
10:00 o'clock in the evening, when the vessel had already passed Surigao Strait. the vessel started to experience
waves as high as 6 to 7 feet and that the Northeasterly wind was blowing at about five (5) knot velocity. At about
11:00 o'clock P.M. when the vessel was already about 4.5 miles off Cawit Point, Cortes, Surigao del Sur, the vessel
was discovered to be listing 15 degrees to port side and that the strength of the wind had increased to 15 knots
and the waves were about ten (10) feet high [Ramilo TSN 10-27-87 p. 32). Immediately thereafter, emergency
measures were taken by the crew. The officers had suspected that a leak or crack might had developed at the
bottom hull particularly below one or two of the empty wing tanks at port side serving as buoyancy tanks resulting
in ingress of sea water in the tanks was confirmed when the Captain ordered to use the cargo pump. The suction
valves to the said tanks of port side were opened in order to suck or draw out any amount of water that entered
into the tanks. The suction pressure of the pump had drawn out sea water in large quantity indicating therefore,
that a leak or crack had developed in the hull as the vessel was continuously batted and pounded by the huge
waves. Bailing out of the water through the pump was done continuously in an effort of the crew to prevent the
vessel from sinking. but then efforts were in vain. The vessel still continued to list even more despite the
continuous pumping and discharging of sea water from the wing tanks indicating that the amount of the ingress
of sea water was greater in volume that that was being discharged by the pump. Considering therefore, the
location of the suspected source of the ingress of sea water which was a crack or hole at the bottom hull below
the buoyancy tank's port side which was not acessible (sic) for the crew to check or control the flow of sea water
into the said tank. The accumulation of sea water aggravated by the continuous pounding, rolling and pitching of
the vessel against huge waves and strong northeasterly wind, the Captain then had no other recourse except to
order abandonship to save their lives.[13]
The presence of a crack in the ill-fated vessel through which water seeped in was confirmed by the
Greutzman Divers who were commissioned by the private respondents to conduct an underwater survey and
inspection of the vessel to determine the cause and circumstances of its sinking. In its report, Greutzman Divers
stated that along the port side platings, a small hole and two separate cracks were found at about midship.[14]
The findings of the Board of Marine Inquiry indicate that the attendance of strong winds and huge waves
while the M/V Peatheray Patrick-G was sailing through Cortes, Surigao del Norte on March 3, 1987 was indeed
fortuitous. A fortuitous event has been defined as one which could not be foreseen, or which though foreseen, is
inevitable.[15] An event is considered fortuitous if the following elements concur:
xxx (a) the cause of the unforeseen and unexpected occurrence, or the failure of the debtor to comply
with his obligations, must be independent of human will; (b) 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; (c) the occurrence must be
such as to render it impossible for the debtor to fulfill his obligation in a normal manner; and (d) the obligor must
be free from any participation in the aggravation of the injury resulting to the creditor. xxx[16]
In the case at bar, it was adequately shown that before the M/V Peatheray Patrick-G left the port of
Mandaue City, the Captain confirmed with the Coast Guard that the weather condition would permit the safe
travel of the vessel to Bislig, Surigao del Sur. Thus, he could not be expected to have foreseen the unfavorable
weather condition that awaited the vessel in Cortes, Surigao del Sur. It was the presence of the strong winds and
enormous waves which caused the vessel to list, keel over, and consequently lose the cargo contained therein.
The appellate court likewise found that there was no negligence on the part of the crew of the M/V Peatheray
Patrick-G, citing the following portion of the decision of the Board of Marine Inquiry:

I. WAS LCT PEATHERAY PATRICK-G SEAWORTHY WHEN SHE LEFT THE PORT OF MANDAWE, CEBU AND AT THE
TIME OF SINKING?
Evidence clearly shows that the vessel was propelled with three (3) diesel engines of 250 BHP each or a total of
750 BHP. It had three (3) propellers which were operating satisfactorily from the time the vessel left the port of
Mandawe up to the time when the hull on the double bottom tank was heavily floaded (sic) by uncontrollable
entry of sea water resulting in the stoppage of engines. The vessel was also equipped with operating generator
pumps for emergency cases. This equipment was also operating satisfactorily up to the time when the engine
room was heavily floaded (sic) with sea water. Further, the vessel had undergone emergency drydocking and
repair before the accident occurred (sic) on November 9, 1986 at Trigon Shipyard, San Fernando, Cebu as shown
by the billing for the Drydocking and Repair and certificate of Inspection No. 2588-86 issued by the Philippine
coast Guard on December 5, 1986 which expired on November 8, 1987.
LCT Peatheray Patrick-G was skippered by Mr. Manuel P. Ramilo, competent and experienced licensed
Major Patron who had been in command of the vessel for more than three (3) years from July 1984 up to the time
of sinking March 3, 1987. His Chief Mate Mr. Mariano Alalin also a licensed Major Patron had been the Chief Mate
of " LCT Peatheray Patrick-G" for one year and three months at the time of the accident. Further Chief Mate Alalin
had commanded a tanker vessel named M/T Mercedes of MGM Corporation for almost two (2) years from 1983-
1985 (Alalin TSN-4-13-88 pp. 32-33).
That the vessel was granted SOLAS clearance by the Philippine Coast Guard on March 1, 1987 to depart
from Mandawe City for Bislig, Surigao del Sur as evidenced by a certification issued to D.C. Gaerlan Oil Products
by Coast Guard Station Cebu dated December 23, 1987.
Based on the foregoing circumstances, "LCT Peatheray Patrick-G" should be considered seaworthy vessel
at the time she undertook that fateful voyage on March 2, 1987.
To be seaworthy, a vessel must not only be staunch and fit in the hull for the voyage to be undertaken but
also must be properly equipped and for that purpose there is a duty upon the owner to provide a competent
master and a crew adequate in number and competent for their duty and equals in disposition and seamanship
to the ordinary in that calling. (Ralph 299 F-52, 1924 AMC 942). American President 2td v. Ren Fen Fed 629. AMC
1723 LCA 9 CAL 1924).[17]
Overloading was also eliminated as a possible cause of the sinking of the vessel, as the evidence showed
that its freeboard clearance was substantially greater than the authorized freeboard clearance.[18]
Although the Board of Marine Inquiry ruled only on the administrative liability of the captain and crew of
the M/V Peatheray Patrick-G, it had to conduct a thorough investigation of the circumstances surrounding the
sinking of the vessel and the loss of its cargo in order to determine their responsibility, if any. The results of its
investigation as embodied in its decision on the administrative case clearly indicate that the loss of the cargo was
due solely to the attendance of strong winds and huge waves which caused the vessel accumulate water, tilt to
the port side and to eventually keel over. There was thus no error on the part of the Court of Appeals in relying
on the factual findings of the Board of Marine Inquiry, for such factual findings, being supported by substantial
evidence are persuasive, considering that said administrative body is an expert in matters concerning marine
casualties.[19]
Since the presence of strong winds and enormous waves at Cortes, Surigao del Sur on March 3, 1987 was
shown to be the proximate and only cause of the sinking of the M/V Peatheray Patrick-G and the loss of the cargo
belonging to San Miguel Corporation, private respondents cannot be held liable for the said loss.
WHEREFORE, the assailed Decision of the Court of Appeals is hereby AFFIRMED and the petition is hereby
DENIED.
SO ORDERED.

6. Pilapil V. CA

FACTS: Petitioner Pilapil, on board respondents bus was hit above his eye by a stone hurled by an unidentified
bystander. Respondents personnel lost no time in bringing him to a hospital, but eventually petitioner partially
lost his left eyes vision and sustained a permanent scar.
Thus, Petitioner lodged an action for recovery of damages before the Court of First Instance of Camarines Sur
which the latter granted. On appeal, the Court of Appeals reversed said decision.
ISSUE: Whether or not common carriers assume risks to passengers such as the stoning in this case?
HELD: In consideration of the right granted to it by the public to engage in the business of transporting passengers
and goods, a common carrier does not give its consent to become an insurer of any and all risks to passengers and
goods. It merely undertakes to perform certain duties to the public as the law imposes, and holds itself liable for
any breach thereof.
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 the absolute safety of its passengers.
Article 1763. A common carrier is responsible for injuries suffered by a passenger on account of the wilful
acts or negligence of other passengers or of strangers, if the common carrier's employees through the exercise of
the diligence of a good father of a family could have prevented or stopped the act or omission.
Clearly under the above provision, a tort committed by a stranger which causes injury to a passenger does
not accord the latter a cause of action against the carrier. The negligence for which a common carrier is held
responsible is the negligent omission by the carrier's employees to prevent the tort from being committed when
the same could have been foreseen and prevented by them. Further, under the same provision, 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 a family.

7. Fortune Express VS CA
This is an appeal by petition for review on certiorari of the decision, dated July 29, 1994, of the Court of Appeals,
which reversed the decision of the Regional Trial Court, Branch VI, Iligan City. The aforesaid decision of the trial
court dismissed the complaint of private respondents against petitioner for damages for breach of contract of
carriage filed on the ground that petitioner had not exercised the required degree of diligence in the operation of
one of its buses. Atty. Talib Caorong, whose heirs are private respondents herein, was a passenger of the bus and
was killed in the ambush involving said bus.

The facts of the instant case are as follows:

Petitioner is a bus company in northern Mindanao. Private respondent Paulie Caorong is the widow of Atty.
Caorong, while private respondents Yasser King, Rose Heinni, and Prince Alexander are their minor children.

On November 18, 1989, a bus of petitioner figured in an accident with a jeepney in Kauswagan, Lanao del Norte,
resulting in the death of several passengers of the jeepney, including two Maranaos. Crisanto Generalao, a
volunteer field agent of the Constabulary Regional Security Unit No. X, conducted an investigation of the accident.
He found that the owner of the jeepney was a Maranao residing in Delabayan, Lanao del Norte and that certain
Maranaos were planning to take revenge on the petitioner by burning some of its buses. Generalao rendered a
report on his findings to Sgt. Reynaldo Bastasa of the Philippine Constabulary Regional Hearquarters at Cagayan
de Oro. Upon the instruction of Sgt. Bastasa, he went to see Diosdado Bravo, operations manager of petitioner,
at its main office in Cagayan de Oro City. Bravo assured him that the necessary precautions to insure the safety of
lives and property would be taken.[1]

At about 6:45 P.M. on November 22, 1989, three armed Maranaos who pretended to be passengers, seized a bus
of petitioner at Linamon, Lanao del Norte while on its way to Iligan City. Among the passengers of the bus was
Atty. Caorong. The leader of the Maranaos, identified as one Bashier Mananggolo, ordered the driver, Godofredo
Cabatuan, to stop the bus on the side of the highway. Mananggolo then shot Cabatuan on the arm, which caused
him to slump on the steering wheel. Then one of the companions of Mananggolo started pouring gasoline inside
the bus, as the other held the passengers at bay with a handgun. Mananggolo then ordered the passengers to get
off the bus. The passengers, including Atty. Caorong, stepped out of the bus and went behind the bushes in a field
some distance from the highway.[2]

However, Atty. Caorong returned to the bus to retrieve something from the overhead rack. At that time, one of
the armed men was pouring gasoline on the head of the driver. Cabatuan, who had meantime regained
consciousness, heard Atty. Caorong pleading with the armed men to spare the driver as he was innocent of any
wrong doing and was only trying to make a living. The armed men were, however, adamant as they repeated their
warning that they were going to burn the bus along with its driver. During this exchange between Atty. Caorong
and the assailants, Cabatuan climbed out of the left window of the bus and crawled to the canal on the opposite
side of the highway. He heard shots from inside the bus. Larry de la Cruz, one of the passengers, saw that Atty.
Caorong was hit. Then the bus was set on fire. Some of the passengers were able to pull Atty. Caorong out of the
burning bus and rush him to the Mercy Community Hospital in Iligan City, but he died while undergoing
operation.[3]

The private respondents brought this suit for breach of contract of carriage in the Regional Trial Court, Branch VI,
Iligan City. In his decision, dated December 28, 1990, the trial court dismissed the complaint, holding as follows:

The fact that defendant, through Operations Manager Diosdado Bravo, was informed of the rumors that the
Moslems intended to take revenge by burning five buses of defendant is established since the latter also utilized
Crisanto Generalaos as a witness. Yet despite this information, the plaintiffs charge, defendant did not take proper
precautions. . . . Consequently, plaintiffs now fault the defendant for ignoring the report. Their position is that the
defendant should have provided its buses with security guards. Does the law require common carriers to install
security guards in its buses for the protection and safety of its passengers? Is the failure to post guards an omission
of the duty to exercise the diligence of a good father of the family which could have prevented the killing of Atty.
Caorong? To our mind, the diligence demanded by law does not include the posting of security guards in buses. It
is an obligation that properly belongs to the State. Besides, will the presence of one or two security guards suffice
to deter a determined assault of the lawless and thus prevent the injury complained of? Maybe so, but again,
perhaps not. In other words, the presence of a security guard is not a guarantee that the killing of Atty. Caorong
would have been definitely avoided.

Accordingly, the failure of defendant to accord faith and credit to the report of Mr. Generalao and the fact that it
did not provide security to its buses cannot, in the light of the circumstances, be characterized as negligence.

Finally, the evidence clearly shows that the assailants did not have the least intention of harming any of the
passengers. They ordered all the passengers to alight and set fire on the bus only after all the passengers were
out of danger. The death of Atty. Caorong was an unexpected and unforseen occurrence over which defendant
had no control. Atty. Caorong performed an act of charity and heroism in coming to the succor of the driver even
in the face of danger. He deserves the undying gratitude of the driver whose life he saved. No one should blame
him for an act of extraordinary charity and altruism which cost his life. But neither should any blame be laid on
the doorstep of defendant. His death was solely due to the willful acts of the lawless which defendant could
neither prevent nor stop.

.
WHEREFORE, in view of the foregoing, the complaint is hereby dismissed. For lack of merit, the counter-claim is
likewise dismissed. No cost.[4]

On appeal, however, the Court of Appeals reversed. It held:

In the case at bench, how did defendant-appellee react to the tip or information that certain Maranao hotheads
were planning to burn five of its buses out of revenge for the deaths of two Maranaos in an earlier collision
involving appellees bus? Except for the remarks of appellees operations manager that we will have our action . . .
. and Ill be the one to settle it personally, nothing concrete whatsoever was taken by appellee or its employees to
prevent the execution of the threat. Defendant-appellee never adopted even a single safety measure for the
protection of its paying passengers. Were there available safeguards? Of course, there were: one was frisking
passengers particularly those en route to the area where the threats were likely to be carried out such as where
the earlier accident occurred or the place of influence of the victims or their locality. If frisking was resorted to,
even temporarily, . . . . appellee might be legally excused from liability. Frisking of passengers picked up along the
route could have been implemented by the bus conductor; for those boarding at the bus terminal, frisking could
have been conducted by him and perhaps by additional personnel of defendant-appellee. On hindsight, the
handguns and especially the gallon of gasoline used by the felons all of which were brought inside the bus would
have been discovered, thus preventing the burning of the bus and the fatal shooting of the victim.

Appellees argument that there is no law requiring it to provide guards on its buses and that the safety of citizens
is the duty of the government, is not well taken. To be sure, appellee is not expected to assign security guards on
all of its buses; if at all, it has the duty to post guards only on its buses plying predominantly Maranao areas. As
discussed in the next preceding paragraph, the least appellee could have done in response to the report was to
adopt a system of verification such as frisking of passengers boarding its buses. Nothing, and to repeat, nothing
at all, was done by defendant-appellee to protect its innocent passengers from the danger arising from the
Maranao threats. It must be observed that frisking is not a novelty as a safety measure in our society. Sensitive
places in fact, nearly all important places have applied this method of security enhancement. Gadgets and devices
are available in the market for this purpose. It would not have weighed much against the budget of the bus
company if such items were made available to its personnel to cope up with situations such as the Maranao
threats.

In view of the constitutional right to personal privacy, our pronouncement in this decision should not be construed
as an advocacy of mandatory frisking in all public conveyances. What we are saying is that given the circumstances
obtaining in the case at bench that: (a) two Maranaos died because of a vehicular collision involving one of
appellees vehicles; (b) appellee received a written report from a member of the Regional Security Unit,
Constabulary Security Group, that the tribal/ethnic group of the two deceased were planning to burn five buses
of appellee out of revenge; and (c) appellee did nothing absolutely nothing for the safety of its passengers
travelling in the area of influence of the victims, appellee has failed to exercise the degree of diligence required
of common carriers. Hence, appellee must be adjudged liable.

WHEREFORE, the decision appealed from is hereby REVERSED and another rendered ordering defendant-appellee
to pay plaintiffs-appellants the following:

1) P3,399,649.20 as death indemnity;

2) P50,000.00 and P500.00 per appearance as attorneys fees; and

Costs against defendant-appellee.[5]

Hence, this appeal. Petitioner contends:

(A) THAT PUBLIC RESPONDENT ERRED IN REVERSING THE DECISION OF THE REGIONAL TRIAL COURT DATED
DECEMBER 28, 1990 DISMISSING THE COMPLAINT AS WELL AS THE COUNTERCLAIM, AND FINDING FOR PRIVATE
RESPONDENTS BY ORDERING PETITIONER TO PAY THE GARGANTUAN SUM OF P3,449,649.20 PLUS P500.00 PER
APPEARANCE AS ATTORNEYS FEES, AS WELL AS DENYING PETITIONERS MOTION FOR RECONSIDERATION AND THE
SUPPLEMENT TO SAID MOTION, WHILE HOLDING, AMONG OTHERS, THAT PETITIONER BREACHED THE CONTRACT
OF CARIAGE BY ITS FAILURE TO EXERCISE THE REQUIRED DEGREE OF DILIGENCE;

(B) THAT THE ACTS OF THE MARANAO OUTLAWS WERE SO GRAVE, IRRESISTIBLE, VIOLENT, AND FORCEFUL, AS TO
BE REGARDED AS CASO FORTUITO; AND

(C) THAT PUBLIC RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN HOLDING THAT PETITIONER COULD HAVE
PROVIDED ADEQUATE SECURITY IN PREDOMINANTLY MUSLIM AREAS AS PART OF ITS DUTY TO OBSERVE EXTRA-
ORDINARY DILIGENCE AS A COMMON CARRIER.

The instant petition has no merit.

First. Petitioners Breach of the Contract of Carriage

Art. 1763 of the Civil Code provides that a common carrier is responsible for injuries suffered by a passenger on
account of the wilful acts of other passengers, if the employees of the common carrier could have prevented the
act the exercise of the diligence of a good father of a family. In the present case, it is clear that because of the
negligence of petitioners employees, the seizure of the bus by Mananggolo and his men was made possible.

Despite warning by the Philippine Constabulary at Cagayan de Oro that the Maranaos were planning to take
revenge on the petitioner by burning some of its buses and the assurance of petitioners operation manager,
Diosdado Bravo, that the necessary precautions would be taken, petitioner did nothing to protect the safety of its
passengers.

Had petitioner and its employees been vigilant they would not have failed to see that the malefactors had a large
quantity of gasoline with them. Under the circumstances, simple precautionary measures to protect the safety of
passengers, such as frisking passengers and inspecting their baggages, preferably with non-intrusive gadgets such
as metal detectors, before allowing them on board could have been employed without violating the passengers
constitutional rights. As this Court intimated in Gacal v. Philippine Air Lines, Inc.,[6] a common carrier can be held
liable for failing to prevent a hijacking by frisking passengers and inspecting their baggages.

From the foregoing, it is evident that petitioners employees failed to prevent the attack on one of petitioners
buses because they did not exercise the diligence of a good father of a family. Hence, petitioner should be held
liable for the death of Atty. Caorong.

Second. Seizure of Petitioners Bus not a Case of Force Majeure

The petitioner contends that the seizure of its bus by the armed assailants was a fortuitous event for which it
could not be held liable.

Art. 1174 of the Civil Code defines a fortuitous even as an occurrence which could not be foreseen or which though
foreseen, is inevitable. In Yobido v. Court of Appeals,[7] we held that to be considered as force majeure, it is
necessary that: (1) the cause of the breach of the obligation must be independent of the human will; (2) the event
must be either unforeseeable or unavoidable; (3) the occurrence must be such as to render it impossible for the
debtor to fulfill the obligation in a normal manner; and (4) the obligor must be free of participation in, or
aggravation of, the injury to the creditor. The absence of any of the requisites mentioned above would prevent
the obligor from being excused from liability.

Thus, in Vasquez v. Court of Appeals,[8] it was held that the common carrier was liable for its failure to take the
necessary precautions against an approaching typhoon, of which it was warned, resulting in the loss of the lives
of several passengers. The event was foreseeable, and, thus, the second requisite mentioned above was not
fulfilled. This ruling applies by analogy to the present case. Despite the report of PC agent Generalao that the
Maranaos were going to attack its buses, petitioner took no steps to safeguard the lives and properties of its
passengers. The seizure of the bus of the petitioner was foreseeable and, therefore, was not a fortuitous event
which would exempt petitioner from liability.

Petitioner invokes the ruling in Pilapil v. Court of Appeals[9] and De Guzman v. Court of Appeals[10] in support of
its contention that the seizure of its bus by the assailants constitutes force majeure. In Pilapil v. Court of
Appeals,[11] it was held that a common carrier is not liable for failing to install window grills on its buses to protect
passengers from injuries caused by rocks hurled at the bus by lawless elements. On the other hand, in De Guzman
v. Court of Appeals,[12] it was ruled that a common carrier is not responsible for goods lost as a result of a robbery
which is attended by grave or irresistible threat, violence, or force.

It is clear that the cases of Pilapil and De Guzman do not apply to the present case. Art. 1755 of the Civil Code
provides that a common carrier is bound to carry the passengers as far as human care and foresight can provide,
using the utmost diligence of very cautious person, with due regard for all the circumstances. Thus, we held in
Pilapil and De Guzman that the respondents therein were not negligent in failing to take special precautions
against threats to the safety of passengers which could not be foreseen, such as tortious or criminal acts of third
persons. In the present case, this factor of unforeseeablility (the second requisite for an event to be considered
force majeure) is lacking. As already stated, despite the report of PC agent Generalao that the Maranaos were
planning to burn some of petitioners buses and the assurance of petitioners operations manager (Diosdado Bravo)
that the necessary precautions would be taken, nothing was really done by petitioner to protect the safety of
passengers.

Third. Deceased not Guilty of Contributory Negligence

The petitioner contends that Atty. Caorong was guilty of contributory negligence in returning to the bus to retrieve
something. But Atty. Caorong did not act recklessly. It should be pointed out that the intended targets of the
violence were petitioner and its employees, not its passengers. The assailants motive was to retaliate for the loss
of life of two Maranaos as a result of the collision between petitioners bus and the jeepney in which the two
Maranaos were riding. Mananggolo, the leader of the group which had hijacked the bus, ordered the passengers
to get off the bus as they intended to burn it and its driver. The armed men actually allowed Atty. Caorong to
retrieve something from the bus. What apparently angered them was his attempt to help the driver of the bus by
pleading for his life. He was playing the role of the good Samaritan. Certainly, this act cannot be considered an act
of negligence, let alone recklessness.
Fourth. Petitioner Liable to Private Respondents for Damages

We now consider the question of damages that the heirs of Atty. Caorong, private respondents herein, are entitled
to recover from the petitioner.

Indemnity for Death. Art. 1764 of the Civil Code, in relation to Art. 2206 thereof, provides for the payment of
indemnity for the death of passengers caused by the breached of contract of carriage by a common carrier. Initially
fixed in Art. 2206 at P3,000.00, the amount of the said indemnity for death has through the years been gradually
increased in view of the declining value of the peso. It is presently fixed at P50,000.00.[13] Private respondents
are entitled to this amount.

Actual damages. Art. 2199 provides that Except as provided by law or by stipulation, one is entitled to an adequate
compensation only for such pecuniary loss suffered by him as he has duly proved. The trial court found that the
private respondents spent P30,000.00 for the wake and burial of Atty. Caorong.[14] Since petitioner does not
question this finding of the trial court, it is liable to private respondents in the said amount as actual damages.

Moral Damages. Under Art. 2206, the spouse, legitimate and illegitimate descendants and ascendants of the
deceased may demand moral damages for mental anguish by reason of the death of the deceased. The trial court
found that private respondent Paulie Caorong suffered pain from the death of her husband and worry on how to
provide support for their minor children, private respondents Yasser King, Rose Heinni, and Prince Alexander.[15]
The petitioner likewise does not question this finding of the trial court. Thus, in accordance with recent decisions
of this Court,[16] we hold that the petitioner is liable to the private respondents in the amount of P100,000.00 as
moral damages for the death of Atty. Caorong.

Exemplary Damages. Art. 2232 provides that in contracts and quasi-contracts, the court may award exemplary
damages if the defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner. In the
present case, the petitioner acted in a wanton and reckless manner. Despite warning that the Maranaos were
planning to take revenge against the petitioner by burning some of its buses, and contrary to the assurance made
by its operations manager that the necessary precautions would be taken, the petitioner and its employees did
nothing to protect the safety of passengers. Under the circumstances, we deem it reasonable to award private
respondents exemplary damages in the amount of P100,000.00.[17]

Attorneys Fees. Pursuant to Art. 2208, attorneys fees may be recovered when, as in the instant case, exemplary
damages are awarded. In the recent case of Sulpicio Lines, Inc. v. Court of Appeals,[18] we held an award of
P50,000.00 as attorneys fees to be reasonable. Hence, the private respondents are entitled to attorneys fees in
that amount.

Compensation for Loss of Earning Capacity. Art. 1764 of the Civil Code, in relation to Art. 2206 thereof, provides
that in addition to the indemnity for death arising from the breach of contract of carriage by a common carrier,
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. The formula established in decided cases for computing net earning capacity is as
follows:[19]

Gross Necessary
Net earning = Life x Annual - Living
Capacity Expectancy Income Expenses
Life expectancy is equivalent to two thirds (2/3) multiplied by the difference of eighty (80) and the age of the
deceased.[20] Since Atty. Caorong was 37 years old at the time of his death,[21] he had a life expectancy of 28
2/3 more years.[22] His projected gross annual income, computed based on his monthly salary of P11,385.00[23]
as a lawyer in the Department of Agrarian Reform at the time of his death, was P148,005.00.[24] allowing for
necessary living expenses of fifty percent (50%)[25]of his projected gross annual income, his total earning capacity
amounts to P2,121,404.90.[26] Hence, the petitioner is liable to the private respondents in the said amount as
compensation for loss of earning capacity.

WHEREFORE, the decision, dated July 29, 1994, of the Court of Appeals is hereby AFFIRMED with the
MODIFICATION that petitioner Fortune Express, Inc. is ordered to pay the following amounts to private
respondents Paulie, Yasser King, Rose Heinni, and Prince Alexander Caorong:

1. death indemnity in the amount of fifty thousand pesos (P50,000.00);

2. actual damages in the amount of thirty thousand pesos (P30,000.00);
3. moral damages in the amount of one hundred thousand pesos(P100,000.00);
4. exemplary damages in the amount of one hundred thousand pesos (P100,000.00);
5. attorneys fees in the amount of fifty thousand pesos (P50,000.00);
6. compensation for loss of earning capacity in the amount of two million one hundred twenty-one thousand four
hundred four pesos and ninety centavos (P2,121,404.90); and
7) costs of suits. SO ORDERED.

8. Juntilla V Fontanar
FACTS:
Jeepney was driven by Berfol Camoro from Danao City to Cebu City. It was Clemente Fontanar but was
actually owned by defendant Fernando Banzon.
When the jeepney reached Mandaue City, the right rear tire exploded causing the vehicle to turn
turtle. Roberto Juntilla was sitting at the front seat was thrown out of the vehicle.
Upon landing on the ground, he momentarily lost consciousness. When he came to his senses,
he found that he had a lacerated wound on his right palm. He also injured his left arm, right thigh
and on his back.
Because of his shock and injuries, he went back to Danao City but on the way, he discovered that his
"Omega" wrist watch worth P 852.70 was lost. Upon his arrival in Danao City, he immediately entered
the Danao City Hospital to attend to his injuries, and also requested his father-in-law to proceed
immediately to the place of the accident and look for the watch.
Roberto Juntilla filed for breach of contract with damages
Respondents: beyond the control since tire that exploded was newly bought and was only slightly
used
RTC: favored Roberto Juntilla
CA: Reversed since accident was due to fortuitous event
ISSUE: W/N there is a fortuitous event
HELD: NO. CA reversed, RTC reinstated.
passenger jeepney was running at a very fast speed before the accident
at a regular and safe speed will not jump into a ditch when its right rear tire blows up
passenger jeepney was overloaded
3 passengers in the front seat
14 passengers in the rear
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 fulfill his obligation in a normal
manner.
(4) the obligor (debtor) must be free from any participation in the aggravation of the injury resulting to
the creditor.
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 their 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
the source of a common carrier's legal liability is the contract of carriage, and by entering into the said
contract, it binds itself to carry the passengers safely as far as human care and foresight can provide, using
the utmost diligence of a very cautious person, with a due regard for all the circumstances. The records
show that this obligation was not met by the respondents
respondents likewise argue that the petitioner cannot recover any amount for failure to prove such
damages during the trial
findings of facts of the City Court of Cebu

9. Lasam V Smith
The plaintiff 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 plaintiffs and the defendant appeal,
the former maintaining that the damages awarded are insufficient while the latter denies all liability for any
damages whatever.
It appears from the evidence that on February 27, 1918, the defendant was the owner of a public garage in the
town of San Fernando, La Union, and engaged in the business of carrying passengers for hire from the one point
to another in the Province of La Union and the surrounding provinces. On the date mentioned, he undertook to
convey the plaintiffs from San Fernando to Currimao, Ilocos Norte, in a Ford automobile. On leaving San Fernando,
the automobile was operated by a licensed chauffeur, but after having reached the town of San Juan, the
chauffeur allowed his assistant, Remigio Bueno, to drive the car. Bueno held no 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 the witnesses for the plaintiffs, 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 defects in the automobile; the result would be practically the same in either event.
In going over the bank of the road, the automobile was overturned and the plaintiffs 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
suffered a nervous breakdown from which she had not fully recovered at the time of the trial.
The complaint in the case was filed 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 chauffeur, 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 & Pacific Co. (7 Phil., 359), and the distinction between extra-contractual 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. vs. Compania
Trasatlantica and Atlantic, Gulf & Pacific Co., 38 Phil., 875; De Guia vs. Manila Electric Railroad & Light Co., 40 Phil.,
706.) It is sufficient to reiterate that the source of the defendant's legal liability is the contract of carriage; that by
entering into that contract he bound himself to carry the plaintiffs 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 fulfill 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 effort to define the term caso fortuito and hold that the
two expressions are synonymous. (Manresa, Comentarios al Codigo Civil Espaol, vol. 8, pp. 88 et seq.; Scvola,
Codigo Civil, vol. 19, pp. 526 et seq.)
The antecedent to article 1105 is found in Law 11, Title 33, Partida 7, which defines caso fortuito as "occasion que
a case por aventura de que non se puede ante ver. E son estos, derrivamientos de casas e fuego que se enciende
a 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 defines caso fortuito as "an unexpected event or act of God which could either be foreseen nor resisted,
such as floods, torrents, shipwrecks, conflagrations, lightning, compulsion, insurrections, destructions, destruction
of buildings by unforseen 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 fulfill 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 element 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 records 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, affords 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 off the platform, sustaining severe 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 plaintiff was
exposed to no greater danger than that inherent in that particular mode of travel, the plaintiff 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 plaintiffs 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 plaintiffs 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 fulfillment 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; 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 plaintiffs 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 removed by
a surgical operation. As a consequence of her refusal to submit such an operation, a series of infections ensued
and which required constant and expensive medical treatment for several years. We agree with the court below
that the defendant should not be charged with these expenses.
For the reasons stated, the judgment appealed from is affirmed, without costs in this instance. So ordered

10. Gacal v PAL

NATURE
Petition for review on certiorari of the decision of the Court of First Instance
FACTS
Franklin G. Gacal and his wife, Corazon, Bonifacio S. Anislag and his wife, Mansueta, and the late Elma de Guzman,
boarded a PAL flight to Manila from the Davao Airport. Commander Zapata, and five other armed members of the
Moro National Liberation Front (MNLF), all passengers of the same flight, hijacked the aircraft ten minutes after
take off. The hijackers directed the pilot to fly to Libya but upon the pilots explanation of the fuel limitations,
they relented and directed the aircraft to land at Zamboanga Airport.
At the runway of the Zamboanga Airport, the aircraft was met by two armored cars of the military with machine
guns pointed at the plane. The rebels demanded that a DC-aircraft take them to Libya with the President of PAL
as hostage and that they be given $375,000 and 6 armalites, otherwise they will blow up the plane. The
negotiations lasted for three days and it was only on the third day that the passengers were served 1/4 slice of a
sandwich and 1/10 cup of PAL water. On the same day, relatives of the hijackers were allowed to board the plane
but immediately after they alighted therefrom, a battle between the military and the hijackers ensued,
culminating in the liberation of the surviving crew and passengers, the death of 10 passengers and 3 hijackers,
and the capture of the 3 others.
Franklin G. Gacal was unhurt but his wife suffered injuries and was hospitalized for 2 days. Bonifacio S. Anislag
also escaped unhurt but Mrs. Anislag suffered a fracture at the radial bone of her left elbow for which she was
hospitalized and operated on. Elma de Guzman died because of that battle.
The plaintiffs filed an action for damages demanding from PAL actual damages for hospital and medical expenses
and the value of lost personal belongings, moral damages, attorneys fees and exemplary damages. The trial
court dismissed the complaints finding that all the damages sustained in the premises were attributed to force
majeure. Hence, this petition.
ISSUE
Whether or not PAL is liable for damages
HELD
NO. Under Art 1733 of the Civil Code, common carriers are required to exercise extraordinary diligence in their
vigilance over the goods and for the safety of passengers transported by them, according so all the circumstances
of each case. They are presumed at fault or to have acted negligently whenever a passenger dies or is injured or
for the loss, destruction or deterioration of goods in cases other than those enumerated in Article 1734 of the Civil
Code.
The source of a common carrier's legal liability is the contract of carriage, and by entering into said contract, it
binds itself to carry the passengers safely as far as human care and foresight can provide. There is breach of this
obligation if it fails to exert extraordinary diligence according to all the circumstances of the case in exercise of
the utmost diligence of a very cautious person.
It is the duty of a common carrier to overcome the presumption of negligence and it must be shown that the
carrier had observed the required extraordinary diligence of a very cautious person as far as human care and
foresight can provide or that the accident was caused by a fortuitous event. Thus, as ruled by this Court, no person
shall be responsible for those "events which could not be foreseen or which though foreseen were inevitable."
(Article 1174, Civil Code). The term is synonymous with caso fortuito which is of the same sense as "force
majeure".
In order to constitute a caso fortuito or force majeure that would exempt a person from liability under Article
1174 of the Civil Code, it is necessary that the following elements must concur: (a) the cause of the breach of the
obligation must be independent of the human will (the will of the debtor or the obligor); (b) the event must be
either unforeseeable or unavoidable; (c) the event must be such as to render it impossible for the debtor to fulfill
his obligation in a normal manner; and (d) the debtor must be free from any participation in, or aggravation of the
injury to the creditor. Caso fortuito or force majeure, by definition, are extraordinary events not foreseeable or
avoidable, events that could not be foreseen, or which, though foreseen, are inevitable. It is, therefore, not
enough that the event should not have been foreseen or anticipated, as is

11. Ganzon V CA
he private respondent instituted in the Court of First Instance of Manila 1 an action against the petitioner for
damages based on culpa contractual. The antecedent facts, as found by the respondent Court, 2 are undisputed:
On November 28, 1956, Gelacio Tumambing contracted the services of Mauro B. Ganzon to haul 305 tons of scrap
iron from Mariveles, Bataan, to the port of Manila on board the lighter LCT "Batman" (Exhibit 1, Stipulation of
Facts, Amended Record on Appeal, p. 38). Pursuant to that agreement, Mauro B. Ganzon sent his lighter "Batman"
to Mariveles where it docked in three feet of water (t.s.n., September 28, 1972, p. 31). On December 1, 1956,
Gelacio Tumambing delivered the scrap iron to defendant Filomeno Niza, captain of the lighter, for loading which
was actually begun on the same date by the crew of the lighter under the captain's supervision. When about half
of the scrap iron was already loaded (t.s.n., December 14, 1972, p. 20), Mayor Jose Advincula of Mariveles, Bataan,
arrived and demanded P5,000.00 from Gelacio Tumambing. The latter resisted the shakedown and after a heated
argument between them, Mayor Jose Advincula drew his gun and fired at Gelacio Tumambing (t.s.n., March 19,
1971, p. 9; September 28, 1972, pp. 6-7).<re||an1w> The gunshot was not fatal but Tumambing had to be
taken to a hospital in Balanga, Bataan, for treatment (t.s.n., March 19, 1971, p. 13; September 28, 1972, p. 15).
After sometime, the loading of the scrap iron was resumed. But on December 4, 1956, Acting Mayor Basilio Rub,
accompanied by three policemen, ordered captain Filomeno Niza and his crew to dump the scrap iron (t.s.n., June
16, 1972, pp. 8-9) where the lighter was docked (t.s.n., September 28, 1972, p. 31). The rest was brought to the
compound of NASSCO (Record on Appeal, pp. 20-22). Later on Acting Mayor Rub issued a receipt stating that the
Municipality of Mariveles had taken custody of the scrap iron (Stipulation of Facts, Record on Appeal, p. 40; t.s.n.,
September 28, 1972, p. 10.)
On the basis of the above findings, the respondent Court rendered a decision, the dispositive portion of which
states:
WHEREFORE, the decision appealed from is hereby reversed and set aside and a new one entered ordering
defendant-appellee Mauro Ganzon to pay plaintiff-appellant Gelacio E. Tumambimg the sum of P5,895.00 as
actual damages, the sum of P5,000.00 as exemplary damages, and the amount of P2,000.00 as attorney's fees.
Costs against defendant-appellee Ganzon. 3
In this petition for review on certiorari, the alleged errors in the decision of the Court of Appeals are:
I
THE COURT OF APPEALS FINDING THE HEREIN PETITIONER GUILTY OF BREACH OF THE CONTRACT OF
TRANSPORTATION AND IN IMPOSING A LIABILITY AGAINST HIM COMMENCING FROM THE TIME THE SCRAP WAS
PLACED IN HIS CUSTODY AND CONTROL HAVE NO BASIS IN FACT AND IN LAW.
II
THE APPELLATE COURT ERRED IN CONDEMNING THE PETITIONER FOR THE ACTS OF HIS EMPLOYEES IN DUMPING
THE SCRAP INTO THE SEA DESPITE THAT IT WAS ORDERED BY THE LOCAL GOVERNMENT OFFICIAL WITHOUT HIS
PARTICIPATION.
III
THE APPELLATE COURT FAILED TO CONSIDER THAT THE LOSS OF THE SCRAP WAS DUE TO A FORTUITOUS EVENT
AND THE PETITIONER IS THEREFORE NOT LIABLE FOR LOSSES AS A CONSEQUENCE THEREOF. 4
The petitioner, in his first assignment of error, insists that the scrap iron had not been unconditionally placed
under his custody and control to make him liable. However, he completely agrees with the respondent Court's
finding that on December 1, 1956, the private respondent delivered the scraps to Captain Filomeno Niza for
loading in the lighter "Batman," That the petitioner, thru his employees, actually received the scraps is freely
admitted. Significantly, there is not the slightest allegation or showing of any condition, qualification, or restriction
accompanying the delivery by the private respondent-shipper of the scraps, or the receipt of the same by the
petitioner. On the contrary, soon after the scraps were delivered to, and received by the petitioner-common
carrier, loading was commenced.
By the said act of delivery, the scraps were unconditionally placed in the possession and control of the common
carrier, and upon their receipt by the carrier for transportation, the contract of carriage was deemed perfected.
Consequently, the petitioner-carrier's extraordinary responsibility for the loss, destruction or deterioration of the
goods commenced. Pursuant to Art. 1736, such extraordinary responsibility would cease only upon the delivery,
actual or constructive, by the carrier to the consignee, or to the person who has a right to receive them. 5 The fact
that part of the shipment had not been loaded on board the lighter did not impair the said contract of
transportation as the goods remained in the custody and control of the carrier, albeit still unloaded.
The petitioner has failed to show that the loss of the scraps was due to any of the following causes enumerated
in Article 1734 of the Civil Code, namely:
(1) Flood, storm, earthquake, lightning, or other natural disaster or calamity;
(2) Act of the public enemy in war, whether international or civil;
(3) Act or omission of the shipper or owner of the goods;
(4) The character of the goods or defects in the packing or in the containers;
(5) Order or act of competent public authority.
Hence, the petitioner is presumed to have been at fault or to have acted negligently. 6 By reason of this
presumption, the court is not even required to make an express finding of fault or negligence before it could hold
the petitioner answerable for the breach of the contract of carriage. Still, the petitioner could have been exempted
from any liability had he been able to prove that he observed extraordinary diligence in the vigilance over the
goods in his custody, according to all the circumstances of the case, or that the loss was due to an unforeseen
event or to force majeure. As it was, there was hardly any attempt on the part of the petitioner to prove that he
exercised such extraordinary diligence.
It is in the second and third assignments of error where the petitioner maintains that he is exempt from any
liability because the loss of the scraps was due mainly to the intervention of the municipal officials of Mariveles
which constitutes a caso fortuito as defined in Article 1174 of the Civil Code. 7
We cannot sustain the theory of caso fortuito. In the courts below, the petitioner's defense was that the loss of
the scraps was due to an "order or act of competent public authority," and this contention was correctly passed
upon by the Court of Appeals which ruled that:
... In the second place, before the appellee Ganzon could be absolved from responsibility on the ground that he
was ordered by competent public authority to unload the scrap iron, it must be shown that Acting Mayor Basilio
Rub had the power to issue the disputed order, or that it was lawful, or that it was issued under legal process of
authority. The appellee failed to establish this. Indeed, no authority or power of the acting mayor to issue such an
order was given in evidence. Neither has it been shown that the cargo of scrap iron belonged to the Municipality
of Mariveles. What we have in the record is the stipulation of the parties that the cargo of scrap iron was
accilmillated by the appellant through separate purchases here and there from private individuals (Record on
Appeal, pp. 38-39). The fact remains that the order given by the acting mayor to dump the scrap iron into the sea
was part of the pressure applied by Mayor Jose Advincula to shakedown the appellant for P5,000.00. The order of
the acting mayor did not constitute valid authority for appellee Mauro Ganzon and his representatives to carry
out.
Now the petitioner is changing his theory to caso fortuito. Such a change of theory on appeal we cannot, however,
allow. In any case, the intervention of the municipal officials was not In any case, of a character that would render
impossible the fulfillment by the carrier of its obligation. The petitioner was not duty bound to obey the illegal
order to dump into the sea the scrap iron. Moreover, there is absence of sufficient proof that the issuance of the
same order was attended with such force or intimidation as to completely overpower the will of the petitioner's
employees. The mere difficulty in the fullfilment of the obligation is not considered force majeure. We agree with
the private respondent that the scraps could have been properly unloaded at the shore or at the NASSCO
compound, so that after the dispute with the local officials concerned was settled, the scraps could then be
delivered in accordance with the contract of carriage.
There is no incompatibility between the Civil Code provisions on common carriers and Articles 361 8 and 362 9 of
the Code of Commerce which were the basis for this Court's ruling in Government of the Philippine Islands vs.
Ynchausti & Co.10 and which the petitioner invokes in tills petition. For Art. 1735 of the Civil Code, conversely
stated, means that the shipper will suffer the losses and deterioration arising from the causes enumerated in Art.
1734; and in these instances, the burden of proving that damages were caused by the fault or negligence of the
carrier rests upon him. However, the carrier must first establish that the loss or deterioration was occasioned by
one of the excepted causes or was due to an unforeseen event or to force majeure. Be that as it may, insofar as
Art. 362 appears to require of the carrier only ordinary diligence, the same is .deemed to have been modified by
Art. 1733 of the Civil Code.
Finding the award of actual and exemplary damages to be proper, the same will not be disturbed by us. Besides,
these were not sufficiently controverted by the petitioner.
WHEREFORE, the petition is DENIED; the assailed decision of the Court of Appeals is hereby AFFIRMED. Costs
against the petitioner.

12. Maranan V Perez

Rogelio Corachea, on October 18, 1960, was a passenger in a taxicab owned and operated by Pascual Perez when
he was stabbed and killed by the driver, Simeon Valenzuela.
Valenzuela was prosecuted for homicide in the Court of First Instance of Batangas. Found guilty, he was sentenced
to suffer imprisonment and to indemnify the heirs of the deceased in the sum of P6,000. Appeal from said
conviction was taken to the Court of Appeals.1wph1.t
On December 6 1961, while appeal was pending in the Court of Appeals, Antonia Maranan, Rogelio's mother, filed
an action in the Court of First Instance of Batangas to recover damages from Perez and Valenzuela for the death
of her son. Defendants asserted that the deceased was killed in self-defense, since he first assaulted the driver by
stabbing him from behind. Defendant Perez further claimed that the death was a caso fortuito for which the
carrier was not liable.
The court a quo, after trial, found for the plaintiff and awarded her P3,000 as damages against defendant Perez.
The claim against defendant Valenzuela was dismissed. From this ruling, both plaintiff and defendant Perez
appealed to this Court, the former asking for more damages and the latter insisting on non-liability. Subsequently,
the Court of Appeals affirmed the judgment of conviction earlier mentioned, during the pendency of the herein
appeal, and on May 19, 1964, final judgment was entered therein. (Rollo, p. 33).
Defendant-appellant relies solely on the ruling enunciated in Gillaco v. Manila Railroad Co., 97 Phil. 884, that the
carrier is under no absolute liability for assaults of its employees upon the passengers. The attendant facts and
controlling law of that case and the one at bar are very different however. In the Gillaco case, the passenger was
killed outside the scope and the course of duty of the guilty employee. As this Court there found:
x x x when the crime took place, the guard Devesa had no duties to discharge in connection with the transportation
of the deceased from Calamba to Manila. The stipulation of facts is clear that when Devesa shot and killed Gillaco,
Devesa was assigned to guard the Manila-San Fernando (La Union) trains, and he was at Paco Station awaiting
transportation to Tutuban, the starting point of the train that he was engaged to guard. In fact, his tour of duty
was to start at 9:00 two hours after the commission of the crime. Devesa was therefore under no obligation to
safeguard the passengers of the Calamba-Manila train, where the deceased was riding; and the killing of Gillaco
was not done in line of duty. The position of Devesa at the time was that of another would be passenger, a stranger
also awaiting transportation, and not that of an employee assigned to discharge any of the duties that the Railroad
had assumed by its contract with the deceased. As a result, Devesa's assault can not be deemed in law a breach
of Gillaco's contract of transportation by a servant or employee of the carrier. . . . (Emphasis supplied)
Now here, the killing was perpetrated by the driver of the very cab transporting the passenger, in whose hands
the carrier had entrusted the duty of executing the contract of carriage. In other words, unlike the Gillaco case,
the killing of the passenger here took place in the course of duty of the guilty employee and when the employee
was acting within the scope of his duties.
Moreover, the Gillaco case was decided under the provisions of the Civil Code of 1889 which, unlike the present
Civil Code, did not impose upon common carriers absolute liability for the safety of passengers against wilful
assaults or negligent acts committed by their employees. The death of the passenger in the Gillaco case was truly
a fortuitous event which exempted the carrier from liability. It is true that Art. 1105 of the old Civil Code on
fortuitous events has been substantially reproduced in Art. 1174 of the Civil Code of the Philippines but both
articles clearly remove from their exempting effect the case where the law expressly provides for liability in spite
of the occurrence of force majeure. And herein significantly lies the statutory difference between the old and
present Civil Codes, in the backdrop of the factual situation before Us, which further accounts for a different result
in the Gillaco case. Unlike the old Civil Code, the new Civil Code of the Philippines expressly makes the common
carrier liable for intentional assaults committed by its employees upon its passengers, by the wording of Art. 1759
which categorically states that
Common carriers are liable for the death of or injuries to passengers through the negligence or willful acts of the
former's employees, although such employees may have acted beyond the scope of their authority or in violation
of the orders of the common carriers.
The Civil Code provisions on the subject of Common Carriers1 are new and were taken from Anglo-American
Law.2There, the basis of the carrier's liability for assaults on passengers committed by its drivers rests either on
(1) the doctrine of respondeat superior or (2) the principle that it is the carrier's implied duty to transport the
passenger safely.3
Under the first, which is the minority view, the carrier is liable only when the act of the employee is within the
scope of his authority and duty. It is not sufficient that the act be within the course of employment only.4
Under the second view, upheld by the majority and also by the later cases, it is enough that the assault happens
within the course of the employee's duty. It is no defense for the carrier that the act was done in excess of
authority or in disobedience of the carrier's orders.5 The carrier's liability here is absolute in the sense that it
practically secures the passengers from assaults committed by its own employees.6
As can be gleaned from Art. 1759, the Civil Code of the Philippines evidently follows the rule based on the second
view. At least three very cogent reasons underlie this rule. As explained in Texas Midland R.R. v. Monroe, 110 Tex.
97, 216 S.W. 388, 389-390, and Haver v. Central Railroad Co., 43 LRA 84, 85: (1) the special undertaking of the
carrier requires that it furnish its passenger that full measure of protection afforded by the exercise of the high
degree of care prescribed by the law, inter alia from violence and insults at the hands of strangers and other
passengers, but above all, from the acts of the carrier's own servants charged with the passenger's safety; (2) said
liability of the carrier for the servant's violation of duty to passengers, is the result of the formers confiding in the
servant's hands the performance of his contract to safely transport the passenger, delegating therewith the duty
of protecting the passenger with the utmost care prescribed by law; and (3) as between the carrier and the
passenger, the former must bear the risk of wrongful acts or negligence of the carrier's employees against
passengers, since it, and not the passengers, has power to select and remove them.
Accordingly, it is the carrier's strict obligation to select its drivers and similar employees with due regard not only
to their technical competence and physical ability, but also, no less important, to their total personality, including
their patterns of behavior, moral fibers, and social attitude.
Applying this stringent norm to the facts in this case, therefore, the lower court rightly adjudged the defendant
carrier liable pursuant to Art. 1759 of the Civil Code. The dismissal of the claim against the defendant driver was
also correct. Plaintiff's action was predicated on breach of contract of carriage7 and the cab driver was not a party
thereto. His civil liability is covered in the criminal case wherein he was convicted by final judgment.
In connection with the award of damages, the court a quo granted only P3,000 to plaintiff-appellant. This is the
minimum compensatory damages amount recoverable under Art. 1764 in connection with Art. 2206 of the Civil
Code when a breach of contract results in the passenger's death. As has been the policy followed by this Court,
this minimal award should be increased to P6,000. As to other alleged actual damages, the lower court's finding
that plaintiff's evidence thereon was not convincing,8 should not be disturbed. Still, Arts. 2206 and 1764
award moral damages in addition to compensatory damages, to the parents of the passenger killed to compensate
for the mental anguish they suffered. A claim therefor, having been properly made, it becomes the court's duty
to award moral damages.9 Plaintiff demands P5,000 as moral damages; however, in the circumstances, We
consider P3,000 moral damages, in addition to the P6,000 damages afore-stated, as sufficient. Interest upon such
damages are also due to plaintiff-appellant. 10
Wherefore, with the modification increasing the award of actual damages in plaintiff's favor to P6,000, plus
P3,000.00 moral damages, with legal interest on both from the filing of the complaint on December 6, 1961 until
the whole amount is paid, the judgment appealed from is affirmed in all other respects. No costs. So ordered.

13. De Gillaco V Manila Railroad Co.

The Manila Railroad Company has appealed from a judgment of the Court of First Instance of Laguna sentencing
it to pay P4,000 damages to the appellees herein, the widow and children of the late Tomas Gillaco, shot by an
employee of the Company in April, 1946.
The judgment was rendered upon the following stipulation of facts:
That at about 7:30 a.m., on the morning of April 1, 1946, Lieut. Tomas Gillaco, husband of the plaintiff, was a
passenger in the early morning train of the Manila Railroad Company from Calamba, Laguna to Manila;
That when the train reached the Paco Railroad station, Emilio Devesa, a train guard of the Manila Railroad
Company assigned in the Manila-San Fernando, La Union Line, happened to be in said station waiting for the same
train which would take him to Tutuban Station, where he was going to report for duty;
That Emilio Devesa had a long standing personal grudge against Tomas Gillaco, same dating back during the
Japanese occupation;
That because of this personal grudge, Devesa shot Gillaco with the carbine furnished to him by the Manila Railroad
Company for his use as such train guard, upon seeing him inside the train coach;
That Tomas Gillaco died as a result of the would which he sustained from the shot fired by Devesa.
It is also undisputed that Devesa was convicted with homicide by final judgment of the Court of Appeals.
Appellant's contention is that, on the foregoing facts, no liability attaches to it as employer of the killer, Emilio
Devesa; that it is not responsible subsidiary ex delicto, under Art. 103 of the Revised Penal Code, because the
crime was not committed while the slayer was in the actual performance of his ordinary duties and service; nor is
it responsible ex contractu, since the complaint did not aver sufficient facts to establish such liability, and no
negligence on appellant's party was shown. The Court below held the Railroad company responsible on the ground
that a contract of transportation implies protection of the passengers against acts of personal violence by the
agents or employees of the carrier.
There can be no quarrel with the principle that a passenger is entitled to protection from personal violence by the
carrier or its agents or employees, since the contract of transportation obligates the carrier to transport a
passenger safely to his destination. But under the law of the case, this responsibility extends only to those that
the carrier could foresee or avoid through the exercise of the degree of car and diligence required of it.
Discussing the basis of a carrier's liability under the old Civil Code of 1889 (which was in force in 1946, when Gillaco
was shot) this Court said in Lasam vs. Smith (45 Phil., 657):
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 & Pacific Co. (7 Phil., 359), and the distinction between extra-contractual 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 vs. Compaia
Transatlantica and Atlantic, Gulf & Pacific Co., 38 Phil., 875; De Guia vs. Manila Electric Railroad & Light Co., 40
Phil., 706). It is sufficient to reiterate that the source of the defendant's legal liability is the contract of carriage;
that by entering into that contract he bound himself to carry the plaintiff 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 fulfill 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."
The act of guard Devesa in shooting passenger Gillaco (because of a personal grudge nurtured against the latter
since the Japanese occupation) was entirely unforeseeable by the Manila Railroad Co. The latter had no means to
ascertain or anticipate that the two would meet, nor could it reasonably foresee every personal rancor that might
exist between each one of its many employees and any one of the thousands of eventual passengers riding in its
trains. The shooting in question was therefore "caso fortuito" within the definition of article 105 of the old Civil
Code, being both unforeseeable and inevitable under the given circumstances; and pursuant to established
doctrine, the resulting breach of appellant's contract of safe carriage with the late Tomas Gillaco was excused
thereby.
No doubt that a common carrier is held to a very high degree of care and diligence in the protection of its
passengers; but, considering the vast and complex activities of modern rail transportation, to require of appellant
that it should guard against all possible misunderstanding between each and every one of its employees and every
passenger that might chance to ride in its conveyances at any time, strikes us as demanding diligence beyond what
human care and foresight can provide.
The lower Court and the appellees both relied on the American authorities that particularly hold carriers to be
insurers of the safety of their passengers against willful assault and intentional ill treatment on the part of their
servants, it being immaterial that the act should be one of private retribution on the part of the servant, impelled
by personal malice toward the passenger (10 Am. Jur. 108; Ed. Note to Gassenheimer vs. Wester R. Co. 40 LRA
(NS), p. 999, et seq.) But as can be inferred from the previous jurisprudence of this Court , the Civil Code of 1889
did not impose such absolute liability (Lasam vs. Smith, supra). The liability of a carrier as an insurer was not
recognized in this jurisdiction (Government vs. Inchausti & Co., 40 Phil., 219; Oriental Comm. Co. vs. Naviera
Filipina, 38 Off. Gaz., 1020).
Another very important consideration that must be borne in mind is that, when the crime took place, the guard
Devesa had no duties to discharge in connection with the transportation of the deceased from Calamba to Manila.
The stipulation of facts is clear that when Devesa shot and killed Gillaco, Devesa was assigned to guard the Manila-
San Fernando (La Union) trains, and he was at Paco Station awaiting transportation to Tutuban, the starting point
of the train that he was engaged to guard. In fact, his tour of duty was to start at 9:00 a.m., two hours after the
commission of the crime. Devesa was therefore under no obligation to safeguard the passenger of the Calamba-
Manila train, where the deceased was riding; and the killing of Gillaco was not done in line of duty. The position
of Devesa at the time was that of another would be passenger, a stranger also awaiting transportation, and not
that of an employee assigned to discharge any of the duties that the Railroad had assumed by its contract with
the deceased. As a result, Devesa's assault cannot be deemed in law a breach of Gillaco's contract of
transportation by a servant or employee of the carrier. We agree with the position taken by the Supreme Court
of Texas in a similar case, where it held:
The only good reason for making the carrier responsible for the misconduct of the servant perpetrated in his own
interest, and not in that of his employer, or otherwise within the scope of his employment, is that the servant is
clothed with the delegated authority, and charge with the duty by the carrier, to execute his undertaking with the
passenger. And it cannot be said, we think, that there is any such delegation to the employees at a station with
reference to passenger embarking at another or traveling on the train. Of course, we are speaking only of the
principle which holds a carrier responsible for wrong done to passenger by servants acting in their own interest,
and not in that of the employer. That principle is not the ordinary rule, respondent superior, by which the employer
is held responsible only for act or omissions of the employee in the scope of his employment; but the only reason
in our opinion for a broader liability arises from the fact that the servant, in mistreating the passenger wholly for
some private purpose of his own, in the very act, violates the contractual obligation of the employer for the
performance of which he has put the employee in his place. The reason does not exist where the employee who
committed the assault was never in a position in which it became his duty to his employer to represent him in
discharging any duty of the latter toward the passenger. The proposition that the carrier clothes every employee
engaged in the transportation business with the comprehensive duty of protecting every passenger with whom
he may in any way come in contact, and hereby makes himself liable for every assault commited by such servant,
without regard to the inquiry whether or not the passenger has come within the sphere of duty of that servant as
indicated by the employment, is regarded as not only not sustained by the authorities, but as being unsound and
oppressive both to the employer and the employee. (Houston & T. C. R. Co. vs. Bush, 32 LRA (NS), p. 1205.)
Wherefore, the judgment appealed from is reversed and the complaint ordered dismissed, without cost. So
ordered.

14. Bachelor Express V CA

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 for collection of "a sum
of money" and finding the petitioners solidarily liable for damages in the total amount of One Hundred Twenty
Thousand Pesos (P120,000.00). The petitioners also question the appellate court's resolution denying a motion
for reconsideration.
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 Rautraut.
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 (15) minutes later, a
passenger at the rear portion suddenly stabbed a PC soldier which caused commotion and panic among the
passengers; that when the bus stopped, passengers Ornominio Beter 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 assailant alighted from the bus and ran toward the bushes but was
killed by the police. Thereafter, the heirs of Ornominio Beter and Narcisa Rautraut, private respondents herein
(Ricardo Beter and Sergia Beter are the parents of Ornominio while Teofilo Rautraut and Zoetera [should be
Zotera] Rautraut are the parents of Narcisa) filed a complaint for "sum of money" against Bachelor Express, Inc.
its alleged owner Samson Yasay and the driver Rivera.
In their answer, the petitioners denied liability for the death of Ornominio Beter and Narcisa Rautraut. They
alleged that ... the driver was able to transport his passengers safely to their respective places of destination
except Ornominio Beter and Narcisa Rautraut who jumped off the bus without the knowledge and consent, much
less, the fault of the driver and conductor and the defendants in this 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 accident; it was an incident or event very much beyond the
control of the defendants; defendants were not parties to the incident complained of as it was an act of a third
party who is not in any way connected with the defendants and of which the latter have no control and
supervision; ..." (Rollo, pp. 112-113).itc-asl
After due trial, the trial court issued an order dated August 8, 1985 dismissing the complaint.
Upon appeal however, the trial court's decision was reversed and set aside. The dispositive portion of the decision
of the Court of Appeals states:
WHEREFORE, the Decision appealed from is REVERSED and SET ASIDE and a new one entered finding the appellees
jointly and solidarily liable to pay the plaintiffs-appellants the following amounts:
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,
2) To the heirs of Narcisa Rautraut, the amount of Forty Five Thousand Pesos (P45,000.00) for straight death
indemnity, moral damages and attorney's fees. Costs against appellees. (Rollo, pp. 71-72)
The petitioners now pose the following questions
What was the proximate cause of the whole incident? Why were the passengers on board the bus panicked (sic)
and why were they shoving one another? Why did Narcisa Rautraut and Ornominio Beter jump off from the
running bus?
The petitioners opine that answers to these questions are material to arrive at "a fair, just and equitable
judgment." (Rollo, p. 5) They claim that the assailed decision is based on a misapprehension of facts and its
conclusion is grounded on speculation, surmises or conjectures.
As regards the proximate cause of the death of Ornominio Beter and Narcisa Rautraut, the petitioners maintain
that it was the act of the passenger who ran amuck and stabbed another passenger of the bus. They contend that
the stabbing incident triggered off the commotion and panic among the passengers who pushed one another and
that presumably out of fear and moved by that human instinct of self-preservation Beter and Rautraut jumped off
the bus while the bus was still running 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 and absolutely attributable to a third person, the passenger who ran amuck, for without his
criminal act, Beter and Rautraut could not have been subjected to fear and shock which compelled them to jump
off the running bus. They argue that they should not be made liable for damages arising from acts of third persons
over whom they have no control or supervision.
Furthermore, the petitioners maintain that the driver of the bus, before, during and after the incident was driving
cautiously giving due regard to traffic rules, laws and regulations. The petitioners also argue that they are not
insurers of their passengers as ruled by the trial court.
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:
ART. 1732. Common carriers are persons, corporations, firms or associations engaged in the business of carrying
or transporting passengers or goods or both by land, water, or air, for compensation, offering their services to the
public.
ART. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to
observe extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported
by them, according to all the circumstances of each case.
xxx xxx xxx
ART. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can
provide, using the utmost diligence of very cautious persons, with a 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 they prove that they observed extraordinary diligence as prescribed in Articles
1733 and 1755.
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 far as human care and
foresight can provide using the utmost diligence of very cautious persons, with a due regard for all the
circumstances.
In the case at bar, Ornominio Beter and Narcisa Rautraut were passengers of a bus belonging to petitioner
Bachelor Express, Inc. and, while passengers of the bus, suffered injuries which caused their death. Consequently,
pursuant to Article 1756 of the Civil Code, petitioner Bachelor Express, Inc. is presumed to have acted negligently
unless it can prove that it had observed extraordinary diligence in accordance with Articles 1733 and 1755 of the
New Civil Code.
Bachelor Express, Inc. denies liability for the death of Beter and Rautraut on its posture that the death of the said
passengers was caused by a third person who was beyond its control and supervision. In 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 by force majeure or caso fortuito over which
the common carrier did not have any control.
Article 1174 of the present Civil Code states:
Except in cases expressly specified by law, or when it is otherwise declared by stipulations, or when the nature of
the obligation requires the assumption of risk, no person shall be responsible for those events which could not be
foreseen, or which though foreseen, were inevitable.
The above-mentioned provision was substantially copied from Article 1105 of the old Civil Code which states"
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 liability.
In the case of Lasam v. Smith (45 Phil. 657 [1924]), we defined "events" which cannot be foreseen and which,
having been foreseen, are inevitable in the following manner:
... The Spanish authorities regard the language employed as an effort to define the term 'caso fortuito' and hold
that the two expressions are synonymous. (Manresa Comentarios al Codigo 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 II, Title 33, Partida 7, which defines caso fortuito as 'occasion que
acaese por aventura de que non se puede ante ver. E son estos, derrivamientos de casas e fuego que enciende a
so ora, e quebrantamiento de navio, fuerca de ladrones' (An event that takes place by incident and could not have
been foreseen. Examples of this are destruction of houses, unexpected fire, shipwreck, violence of robbers ...)
Escriche defines caso fortuito as an unexpected event or act of God which could neither be foreseen nor resisted,
such as floods, torrents, shipwrecks, conflagrations, 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 fulfill 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. ...
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 shoving each other resulting
in the falling off the bus by passengers Beter and Rautraut causing them fatal injuries. The sudden act of the
passenger who stabbed another passenger in the bus is within the context of force majeure.
However, in order that a common carrier may be absolved from liability in case of force majeure, it is 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:
From all the foregoing, it is concluded that the defendant is not liable for the loss and damage of the 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 diligence on the part of the
defendant company or its agents. (Tan Chiong Sian v. Inchausti & Co., 22 Phil. 152 [1912]; Emphasis supplied).
This principle was reiterated in a more recent case, Batangas Laguna Tayabas Co. v. Intermediate Appellate
Court (167 SCRA 379 [1988]), wherein we ruled:
... [F]or their defense of force majeure or act of God to prosper the accident must be due to natural causes
and exclusively without human intervention. (Emphasis supplied)
Therefore, the next question to be determined is whether or not the petitioner's common carrier observed
extraordinary diligence to safeguard the lives of its passengers.
In this regard the trial court and the appellate court arrived at conflicting factual findings.
The trial court found the following facts:
The parties presented conflicting evidence as to how the two deceased Narcisa Rautruat and Ornominio Beter
met their deaths.
However, from the evidence adduced by the plaintiffs, the Court could not see why the two deceased could have
fallen off the bus when their own witnesses testified that when the commotion ensued 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 because according to the evidence the door
was locked.
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 fear, they jumped
off from the bus by passing through the window.
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 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 knowledge of the transportation
company's personnel, the latter should not be faulted. (Rollo, pp. 46-47)
A thorough examination of the records, however, show that there are material facts ignored by the trial court
which were discussed by the appellate court to arrive at a different conclusion. These circumstances show that
the petitioner common carrier was negligent in the provision of safety precautions so that its passengers may be
transported safely to their destinations. The appellate court states:
A critical eye must be accorded the lower court's conclusions of fact in its tersely written ratio decidendi. The
lower court concluded that the door of the bus was closed; secondly, the passengers, specifically the two
deceased, jumped out of the window. The lower court therefore concluded that the defendant common carrier is
not liable for the death of the said passengers which it implicitly attributed to the unforeseen acts of the
unidentified passenger who went amuck.
There is nothing in the record to support the conclusion that the solitary door of the bus was locked as 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 they were in a state of panic. Sergia
Beter categorically stated that she actually saw her son fall from the bus as the door was forced open by the force
of the onrushing passengers.
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 himself panicked and
had gone to open the door. Portions of the testimony of Leonila Cullano, quoted below, are illuminating:
xxx xxx xxx
Q When you said the conductor opened the door, the door at the front or rear portion of the bus?
A Front door.
Q And these two persons whom you said alighted, where did they pass, the fron(t) door or rear door?
A Front door.
xxx xxx xxx
(Tsn., p. 4, Aug. 8, 1984)
xxx xxx xxx
Q What happened after there was a commotion at the rear portion of the bus?
A When the commotion occurred, I stood up and I noticed that there was a passenger who was sounded (sic). The
conductor panicked because the passengers were shouting 'stop, stop'. The conductor opened the bus.'
(Tsn. p. 3, August 8, 1984).
Accordingly, there is no reason to believe that the deceased passengers jumped from the window when it was
entirely possible for them to have alighted through the door. The lower court's reliance on 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 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:
xxx xxx xxx
Q So what happened to the passengers inside your bus?
A Some of the passengers jumped out of the window.
COURT:
Q While the bus was in motion?
A Yes, your Honor, but the speed was slow because we have just picked up a passenger.
Atty. Gambe:
Q You said that at the time of the incident the bus was running slow because you have just picked up a passenger.
Can you estimate what was your speed at that time?
Atty. Calo:
No basis, your Honor, he is neither a driver nor a conductor.
COURT:
Let the witness answer. Estimate only, the conductor experienced.
Witness:
Not less than 30 to 40 miles.
COURT:
Kilometers or miles?
A Miles.
Atty. Gambe:
Q That is only your estimate by your experience?
A Yes, sir, estimate.
(Tsn., pp. 4-5, Oct. 17, 1983).
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 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.).
In the light of the foregoing, the negligence of the common carrier, through its employees, consisted of 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 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 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 for under the Land Transportation and Traffic Code (RA 4136
as amended.) (Rollo, pp. 23-26)
Considering the factual findings of the Court of Appeals-the bus driver did not immediately stop the bus 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 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 fault and negligence found in the law governing
common carriers.
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 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 Tayabas Co. v. Intermediate Appellate
Court, supra).
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 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 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 the petitioners were not negligent.
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:
Ornominio Beter was 32 years of age at the time of his death, single, in good health and rendering support and
service to his mother. As far as Narcisa Rautraut is concerned, the only evidence adduced is to the effect that at
her death, she was 23 years of age, in good health and without visible means of support.
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 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 and mental suffering (Alcantara, et al. v. Surro, et al., 93
Phil. 470).
In the case of People v. Daniel (No. L-66551, April 25, 1985, 136 SCRA 92, at page 104), the High 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 the basis of which the damages
shall be computed; and (2) the rate at which the losses sustained by 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 normal life
expectancy is 33-1/3 years based on the American Expectancy Table of Mortality (2/3 x 80-32).itc-asl By taking
into account the pace and nature of the life of a carpenter, it is reasonable to make allowances for these
circumstances and reduce the life expectancy of the deceased Ornominio Beter to 25 years (People v.
Daniel, supra). To fix the rate of losses it must be noted that Art. 2206 refers to gross earnings less necessary living
expenses of the deceased, in other words, only net earnings are to be considered (People v. Daniel, supra; Villa
Rey Transit, Inc. v. Court of Appeals, supra).
Applying the foregoing rules with respect to Ornominio Beter, it is both just and reasonable, considering his social
standing and position, to fix the deductible, living and incidental expenses at the 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 is seasonal, it is safe to assume that he shall have
work for twenty (20) days a month at Twenty Five Pesos (P150,000.00) for twenty five years. Deducting therefrom
his necessary expenses, his heirs would be entitled to Thirty Thousand Pesos (P30,000.00) representing loss of
support and service (P150,000.00 less P120,000.00). In addition, his heirs are entitled to Thirty Thousand Pesos
(P30,000.00) as straight death indemnity pursuant to Article 2206 (People v. Daniel, supra). For damages for their
moral and mental anguish, his heirs are entitled to the reasonable sum of P10,000.00 as an exception to the
general rule against moral damages in case of breach of contract rule Art. 2200 (Necesito v. Paras, 104 Phil. 75).
As attorney's fees, Beter's heirs are entitled to P5,000.00. All in all, the plaintiff-appellants Ricardo and Sergia
Beter as heirs of their son Ornominio are entitled to an indemnity of Seventy Five Thousand Pesos (P75,000.00).
In the case of Narcisa Rautraut, her heirs are entitled to a straight death indemnity of Thirty Thousand Pesos
(P30,000.00), to moral damages in the amount of Ten Thousand Pesos (P10,000.00) and Five Thousand Pesos
(P5,000.00) as attorney's fees, or a total of Forty Five Thousand Pesos (P45,000.00) as total indemnity for her
death in the absence of any evidence that she had visible means of support. (Rollo, pp. 30-31)
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.
SO ORDERED.

15. Isaac V A.L Ammen Transpo

A. L. Ammen Transportation Co., Inc., hereinafter referred to as defendant, is a corporation engaged in the
business of transporting passengers by land for compensation in the Bicol provinces and one of the lines it
operates is the one connecting Legaspi City, Albay with Naga City, Camarines Sur. One of the buses which
defendant was operating is Bus No. 31. On May 31, 1951, plaintiff boarded said bus as a passenger paying the
required fare from Ligao, Albay bound for Pili, Camarines Sur, but before reaching his destination, the bus collided
with a motor vehicle of the pick-up type coming from the opposite direction, as a result of which plaintiff's left
arm was completely severed and the severed portion fell inside the bus. Plaintiff was rushed to a hospital in Iriga,
Camarines Sur where he was given blood transfusion to save his life. After four days, he was transferred to another
hospital in Tabaco, Albay, where he under went treatment for three months. He was moved later to the
Orthopedic Hospital where he was operated on and stayed there for another two months. For these services, he
incurred expenses amounting to P623.40, excluding medical fees which were paid by defendant.
As an aftermath, plaintiff brought this action against defendants for damages alleging that the collision which
resulted in the loss of his left arm was mainly due to the gross incompetence and recklessness of the driver of the
bus operated by defendant and that defendant incurred in culpa contractual arising from its non-compliance with
its obligation to transport plaintiff safely to his, destination. Plaintiff prays for judgment against defendant as
follows: (1) P5,000 as expenses for his medical treatment, and P3,000 as the cost of an artificial arm, or a total of
P8,000; (2) P6,000 representing loss of earning; (3) P75,000 for diminution of his earning capacity; (4) P50,000 as
moral damages; and (5) P10,000 as attorneys' fees and costs of suit.
Defendant set up as special defense that the injury suffered by plaintiff was due entirely to the fault or negligence
of the driver of the pick-up car which collided with the bus driven by its driver and to the contributory negligence
of plaintiff himself. Defendant further claims that the accident which resulted in the injury of plaintiff is one which
defendant could not foresee or, though foreseen, was inevitable.
The after trial found that the collision occurred due to the negligence of the driver of the pick-up car and not to
that of the driver of the bus it appearing that the latter did everything he could to avoid the same but that
notwithstanding his efforts, he was not able to avoid it. As a consequence, the court dismissed complaint, with
costs against plaintiff. This is an appeal from said decision.
It appears that plaintiff boarded a bus of defendant as paying passenger from Ligao, Albay, bound for Pili,
Camarines Sur, but before reaching his destination, the bus collided with a pick-up car which was coming from the
opposite direction and, as a, result, his left arm was completely severed and fell inside the back part of the bus.
Having this background in view, and considering that plaintiff chose to hold defendant liable on its contractual
obligation to carry him safely to his place of destination, it becomes important to determine the nature and extent
of the liability of a common carrier to a passenger in the light of the law applicable in this jurisdiction.
In this connection, appellant invokes the rule that, "when an action is based on a contract of carriage, as in this
case, all that is necessary to sustain recovery is proof of the existence of the contract of the breach thereof by act
or omission", and in support thereof, he cites several Philippine cases.1 With the ruling in mind, appellant seems
to imply that once the contract of carriage is established and there is proof that the same was broken by failure
of the carrier to transport the passenger safely to his destination, the liability of the former attaches. On the other
hand, appellee claims that is a wrong presentation of the rule. It claims that the decisions of this Court in the cases
cited do not warrant the construction sought to be placed upon, them by appellant for a mere perusal thereof
would show that the liability of the carrier was predicated not upon mere breach of its contract of carriage but
upon the finding that its negligence was found to be the direct or proximate cause of the injury complained of.
Thus, appellee contends that "if there is no negligence on the part of the common carrier but that the accident
resulting in injuries is due to causes which are inevitable and which could not have been avoided or anticipated
notwithstanding the exercise of that high degree of care and skill which the carrier is bound to exercise for the
safety of his passengers", neither the common carrier nor the driver is liable therefor.
We believe that the law concerning the liability of a common carrier has now suffered a substantial modification
in view of the innovations introduced by the new Civil Code. These innovations are the ones embodied in Articles
1733, 1755 and 1756 in so far as the relation between a common carrier and its passengers is concerned, which,
for ready reference, we quote hereunder:
ART. 1733. Common carriers, from the nature of their business and for reasons of public policy, are bound to
observe extra ordinary 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.
Such extraordinary diligence in the vigilance over the goods is further expressed in articles 1734, 1735, and 1745,
Nos. 5, 6, and 7, while the extraordinary diligence for the safety of the passengers is further set forth in articles
1755 and 1756.
ART. 1755. A common carrier is bound to carry the passengers safely as far as human care and foresight can
provide, using the utmost diligence of very cautious persons, with a 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 they prove that they observed extraordinary diligence as prescribed in articles
1733 and 1755.
The Code Commission, in justifying this extraordinary diligence required of a common carrier, says the following:
A common carrier is bound to carry the passengers safely as far as human care and foresight can provide, using
the utmost deligence of very cautions persons, with due regard for all circumstances. This extraordinary diligence
required of common carriers is calculated to protect the passengers from the tragic mishaps that frequently occur
in connection with rapid modern transportation. This high standard of care is imperatively demanded by the
precariousness of human life and by the consideration that every person must in every way be safeguarded against
all injury. (Report of the Code Commission, pp. 35-36)" (Padilla, Civil Code of the Philippines, Vol. IV, 1956 ed., p.
197).
From the above legal provisions, we can make the following restatement of the principles governing the liability
of a common carrier: (1) the liability of a carrier is contractual and arises upon breach of its obligation. There is
breach if it fails to exert extraordinary diligence according to all circumstances of each case; (2) a carrier is obliged
to carry its passenger with the utmost diligence of a very cautious person, having due regard for all the
circumstances; (3) a carrier is presumed to be at fault or to have acted negligently in case of death of, or injury to,
passengers, it being its duty to prove that it exercised extraordinary diligence; and (4) the carrier is not an insurer
against all risks of travel.
The question that now arises is: Has defendant observed extraordinary diligence or the utmost diligence of every
cautious person, having due regard for all circumstances, in avoiding the collision which resulted in the injury
caused to the plaintiff?
After examining the evidence in connection with how the collision occurred, the lower court made the following
finding:
Hemos examinado muy detenidamente las pruebas presentadas en la vista, principalmente, las declaraciones que
hemos acotado arriba, y hernos Ilegado a la conclusion de que el demandado ha hecho, todo cuanto estuviere de
su parte para evitar el accidente, pero sin embargo, no ha podido evitarlo.
EI hecho de que el demandado, antes del choque, tuvo que hacer pasar su truck encima de los montones de grava
que estaban depositados en la orilla del camino, sin que haya ido mas alla, por el grave riesgo que corrian las vidas
de sus pasajeros, es prueba concluyente de lo que tenemos dicho, a saber: que el cuanto esuba de su parte,
para evitar el accidente, sin que haya podidoevitardo, por estar fuera de su control.
The evidence would appear to support the above finding. Thus, it appears that Bus No. 31, immediately prior to
the collision, was running at a moderate speed because it had just stopped at the school zone of Matacong,
Polangui, Albay. The pick-up car was at full speed and was running outside of its proper lane. The driver of the
bus, upon seeing the manner in which the pick-up was then running, swerved the bus to the very extreme right
of the road until its front and rear wheels have gone over the pile of stones or gravel situated on the rampart of
the road. Said driver could not move the bus farther right and run over a greater portion of the pile, the peak of
which was about 3 feet high, without endangering the safety of his passengers. And notwithstanding all these
efforts, the rear left side of the bus was hit by the pick-up car.
Of course, this finding is disputed by appellant who cannot see eye to eye with the evidence for the appellee and
insists that the collision took place because the driver of the bus was going at a fast speed. He contends that,
having seen that a car was coming from the opposite direction at a distance which allows the use of moderate
care and prudence to avoid an accident, and knowing that on the side of the road along which he was going there
was a pile of gravel, the driver of the bus should have stopped and waited for the vehicle from the opposite
direction to pass, and should have proceeded only after the other vehicle had passed. In other words, according
to appellant, the act of the driver of the bus in squeezing his way through of the bus in squeezing his way through
between the oncoming pick-up and the pile of gravel under the circumstances was considered negligent.
But this matter is one of credibility and evaluation of the evidence. This is evidence. This is the function of the trial
court. The trial court has already spoken on this matter as we have pointed out above. This is also a matter of
appreciation of the situation on the part of the driver. While the position taken by appellant appeals more to the
sense of caution that one should observe in a given situation to avoid an accident or mishap, such however can
not always be expected from one who is placed suddenly in a predicament where he is not given enough time to
take the course of action as he should under ordinary circumstances. One who is placed in such a predicament
cannot exercise such coolness or accuracy of judgment as is required of him under ordinary circumstances and he
cannot therefore be expected to observe the same judgment, care and precaution as in the latter. For this reason,
authorities abound where failure to observe the same degree of care that as ordinary prudent man would exercise
under ordinary circumstances when confronted with a sadden emergency was held to be warranted and a
justification to exempt the carrier from liability. Thus, it was held that "where a carrier's employee is confronted
with a sudden emergency, the fact that he is obliged to act quickly and without a chance for deliberation must be
taken into account, and he is held to the some degree of care that he would otherwise be required to exercise in
the absence of such emergency but must exercise only such care as any ordinary prudent person would exercise
under like circumstances and conditions, and the failure on his part to exercise the best judgement the case
renders possible does not establish lack of care and skill on his part which renders the company, liable. . . . (13 C.
J. S., 1412; 10 C. J.,970). Considering all the circumstances, we are persuaded to conclude that the driver of the
bus has done what a prudent man could have done to avoid the collision and in our opinion this relieves appellee
from legibility under our law.
A circumstances which miliates against the stand of appellant is the fact borne out by the evidence that when he
boarded the bus in question, he seated himself on the left side thereof resting his left arm on the window sill but
with his left elbow outside the window, this being his position in the bus when the collision took place. It is for
this reason that the collision resulted in the severance of said left arm from the body of appellant thus doing him
a great damage. It is therefore apparent that appellant is guilty of contributory negligence. Had he not placed his
left arm on the window sill with a portion thereof protruding outside, perhaps the injury would have been avoided
as is the case with the other passenger. It is to be noted that appellant was the only victim of the collision.
It is true that such contributory negligence cannot relieve appellee of its liability but will only entitle it to a
reduction of the amount of damage caused (Article 1762, new Civil Code), but this is a circumstance which further
militates against the position taken by appellant in this case.
It is the prevailing rule that it is negligence per se for a passenger on a railroad voluntarily or inadvertently to
protrude his arm, hand, elbow, or any other part of his body through the window of a moving car beyond the
outer edge of the window or outer surface of the car, so as to come in contact with objects or obstacles near the
track, and that no recovery can be had for an injury which but for such negligence would not have been sustained.
(10 C. J. 1139)
Plaintiff, (passenger) while riding on an interurban car, to flick the ashes, from his cigar, thrust his hand over the
guard rail a sufficient distance beyond the side line of the car to bring it in contact with the trunk of a tree standing
beside the track; the force of the blow breaking his wrist. Held, that he was guilty of contributory negligence as a
matter of law. (Malakia vs. Rhode Island Co., 89 A., 337.)
Wherefore, the decision appealed from is affirmed, with cost against appellant.

16. Compania Maritima V CA

Petitioner Compaia Maritima seeks to set aside through this petition for review on certiorari the decision 1 of the
Court of Appeals dated December 5, 1965, adjudging petitioner liable to private respondent Vicente E. Concepcion
for damages in the amount of P24,652.97 with legal interest from the date said decision shall have become final,
for petitioner's failure to deliver safely private respondent's payloader, and for costs of suit. The payloader was
declared abandoned in favor of petitioner.
The facts of the case are as follows:
Private respondent Vicente E. Concepcion, a civil engineer doing business under the name and style of
Consolidated Construction with office address at Room 412, Don Santiago Bldg., Taft Avenue, Manila, had a
contract with the Civil Aeronautics Administration (CAA) sometime in 1964 for the construction of the airport in
Cagayan de Oro City Misamis Oriental.
Being a Manila based contractor, Vicente E. Concepcion had to ship his construction equipment to Cagayan de
Oro City. Having shipped some of his equipment through petitioner and having settled the balance of P2,628.77
with respect to said shipment, Concepcion negotiated anew with petitioner, thru its collector, Pacifico Fernandez,
on August 28, 1964 for the shipment to Cagayan de Oro City of one (1) unit payloader, four (4) units 6x6 Reo trucks
and two (2) pieces of water tanks. He was issued Bill of Lading 113 on the same date upon delivery of the
equipment at the Manila North Harbor. 2
These equipment were loaded aboard the MV Cebu in its Voyage No. 316, which left Manila on August 30, 1964
and arrived at Cagayan de Oro City in the afternoon of September 1, 1964. The Reo trucks and water tanks were
safely unloaded within a few hours after arrival, but while the payloader was about two (2) meters above the pier
in the course of unloading, the swivel pin of the heel block of the port block of Hatch No. 2 gave way, causing the
payloader to fall. 3 The payloader was damaged and was thereafter taken to petitioner's compound in Cagayan de
Oro City.
On September 7, 1964, Consolidated Construction, thru Vicente E. Concepcion, wrote Compaia Maritima to
demand a replacement of the payloader which it was considering as a complete loss because of the extent of
damage. 4 Consolidated Construction likewise notified petitioner of its claim for damages. Unable to elicit
response, the demand was repeated in a letter dated October 2, 1964. 5
Meanwhile, petitioner shipped the payloader to Manila where it was weighed at the San Miguel Corporation.
Finding that the payloader weighed 7.5 tons and not 2.5 tons as declared in the B-111 of Lading, petitioner denied
the claim for damages of Consolidated Construction in its letter dated October 7, 1964, contending that had
Vicente E. Concepcion declared the actual weight of the payloader, damage to their ship as well as to his payloader
could have been prevented. 6
To replace the damaged payloader, Consolidated Construction in the meantime bought a new one at P45,000.00
from Bormaheco Inc. on December 3, 1964, and on July 6, 1965., Vicente E. Concepcion filed an action for damages
against petitioner with the then Court of First Instance of Manila, Branch VII, docketed as Civil Case No. 61551,
seeking to recover damages in the amount of P41,225.00 allegedly suffered for the period of 97 days that he was
not able to employ a payloader in the construction job at the rate of P450.00 a day; P34,000.00 representing the
cost of the damaged payloader; Pl 1, 000. 00 representing the difference between the cost of the damaged
payloader and that of the new payloader; P20,000.00 representing the losses suffered by him due to the diversion
of funds to enable him to buy a new payloader; P10,000.00 as attorney's fees; P5,000.00 as exemplary damages;
and cost of the suit. 7
After trial, the then Court of First Instance of Manila, Branch VII, dismissed on April 24, 1968 the complaint with
costs against therein plaintiff, herein private respondent Vicente E. Concepcion, stating that the proximate cause
of the fall of the payloader was Vicente E. Concepcion's act or omission in having misrepresented the weight of
the payloader as 2.5 tons instead of its true weight of 7.5 tons, which underdeclaration was intended to defraud
Compaia Maritima of the payment of the freight charges and which likewise led the Chief Officer of the vessel to
use the heel block of hatch No. 2 in unloading the payloader. 8
From the adverse decision against him, Vicente E. Concepcion appealed to the Court of Appeals which, on
December 5, 1965 rendered a decision, the dispositive portion of which reads:
IN VIEW WHEREOF, judgment must have to be as it is hereby reversed; defendant is condemned to pay unto
plaintiff the sum in damages of P24,652.07 with legal interest from the date the present decision shall have
become final; the payloader is declared abandoned to defendant; costs against the latter. 9
Hence, the instant petition.
The principal issue in the instant case is whether or not the act of private respondent Vicente E. Concepcion in
furnishing petitioner Compaia Maritima with an inaccurate weight of 2.5 tons instead of the payloader's actual
weight of 7.5 tons was the proximate and only cause of the damage on the Oliver Payloader OC-12 when it fell
while being unloaded by petitioner's crew, as would absolutely exempt petitioner from liability for damages under
paragraph 3 of Article 1734 of the Civil Code, which provides:
Art. 1734. Common carriers are responsible for the loss, destruction, or deterioration of the goods, unless the
same is due to any of the following causes only:
xxx xxx xxx
(3) Act or omission of the shipper or owner of the goods.
Petitioner claims absolute exemption under this provision upon the reasoning that private respondent's act of
furnishing it with an inaccurate weight of the payloader constitutes misrepresentation within the meaning of "act
or omission of the shipper or owner of the goods" under the above- quoted article. It likewise faults the
respondent Court of Appeals for reversing the decision of the trial court notwithstanding that said appellate court
also found that by representing the weight of the payloader to be only 2.5 tons, private respondent had led
petitioner's officer to believe that the same was within the 5 tons capacity of the heel block of Hatch No. 2.
Petitioner would thus insist that the proximate and only cause of the damage to the payloader was private
respondent's alleged misrepresentation of the weight of the machinery in question; hence, any resultant damage
to it must be borne by private respondent Vicente E. Concepcion.
The general rule under Articles 1735 and 1752 of the Civil Code is that common carriers are presumed to have
been at fault or to have acted negligently in case the goods transported by them are lost, destroyed or had
deteriorated. To overcome the presumption of liability for the loss, destruction or deterioration of the goods
under Article 1735, the common carriers must prove that they observed extraordinary diligence as required in
Article 1733 of the Civil Code. The responsibility of observing extraordinary diligence in the vigilance over the
goods is further expressed in Article 1734 of the same Code, the article invoked by petitioner to avoid liability for
damages.
Corollary is the rule that mere proof of delivery of the goods in good order to a common carrier, and of their arrival
at the place of destination in bad order, makes out prima facie case against the common carrier, so that if no
explanation is given as to how the loss, deterioration or destruction of the goods occurred, the common carrier
must be held responsible. 10 Otherwise stated, it is incumbent upon the common carrier to prove that the loss,
deterioration or destruction was due to accident or some other circumstances inconsistent with its liability.
In the instant case, We are not persuaded by the proferred explanation of petitioner alleged to be the proximate
cause of the fall of the payloader while it was being unloaded at the Cagayan de Oro City pier. Petitioner seems
to have overlooked the extraordinary diligence required of common carriers in the vigilance over the goods
transported by them by virtue of the nature of their business, which is impressed with a special public duty.
Thus, Article 1733 of the Civil Code provides:
Art. 1733. Common carriers, from the nature of their business and for reason of public policy, are bound to observe
extraordinary diligence in the vigilance over the goods and for the safety of the passengers transported by them
according to all the circumstances of each case.
Such extraordinary diligence in the vigilance over the goods is further expressed in Articles 1734, 1735 and 1745,
Nos. 5, 6 and 7, ...
The extraordinary diligence in the vigilance over the goods tendered for shipment requires the common carrier to
know and to follow the required precaution for avoiding damage to, or destruction of the goods entrusted to it
for safe carriage and delivery. It requires common carriers to render service with the greatest skill and foresight
and "to use all reasonable means to ascertain the nature and characteristic of goods tendered for shipment, and
to exercise due care in the handling and stowage including such methods as their nature requires." 11 Under Article
1736 of the Civil Code, the responsibility to observe extraordinary diligence commences and lasts from the time
the goods are unconditionally placed in the possession of, and received by the carrier for transportation until the
same are delivered, actually or constructively, by the carrier to the consignee, or to the person who has the right
to receive them without prejudice to the provisions of Article 1738.
Where, as in the instant case, petitioner, upon the testimonies of its own crew, failed to take the necessary and
adequate precautions for avoiding damage to, or destruction of, the payloader entrusted to it for safe carriage
and delivery to Cagayan de Oro City, it cannot be reasonably concluded that the damage caused to the payloader
was due to the alleged misrepresentation of private respondent Concepcion as to the correct and accurate weight
of the payloader. As found by the respondent Court of Appeals, the fact is that petitioner used a 5-ton capacity
lifting apparatus to lift and unload a visibly heavy cargo like a payloader. Private respondent has, likewise,
sufficiently established the laxity and carelessness of petitioner's crew in their methods of ascertaining the weight
of heavy cargoes offered for shipment before loading and unloading them, as is customary among careful persons.
It must be noted that the weight submitted by private respondent Concepcion appearing at the left-hand portion
of Exhibit 8 12 as an addendum to the original enumeration of equipment to be shipped was entered into the bill
of lading by petitioner, thru Pacifico Fernandez, a company collector, without seeing the equipment to be
shipped. 13 Mr. Mariano Gupana, assistant traffic manager of petitioner, confirmed in his testimony that the
company never checked the information entered in the bill of lading. 14 Worse, the weight of the payloader as
entered in the bill of lading was assumed to be correct by Mr. Felix Pisang, Chief Officer of MV Cebu. 15
The weights stated in a bill of lading are prima facie evidence of the amount received and the fact that the weighing
was done by another will not relieve the common carrier where it accepted such weight and entered it on the bill
of lading. 16 Besides, common carriers can protect themselves against mistakes in the bill of lading as to weight by
exercising diligence before issuing the same. 17
While petitioner has proven that private respondent Concepcion did furnish it with an inaccurate weight of the
payloader, petitioner is nonetheless liable, for the damage caused to the machinery could have been avoided by
the exercise of reasonable skill and attention on its part in overseeing the unloading of such a heavy equipment.
And circumstances clearly show that the fall of the payloader could have been avoided by petitioner's crew.
Evidence on record sufficiently show that the crew of petitioner had been negligent in the performance of its
obligation by reason of their having failed to take the necessary precaution under the circumstances which usage
has established among careful persons, more particularly its Chief Officer, Mr. Felix Pisang, who is tasked with the
over-all supervision of loading and unloading heavy cargoes and upon whom rests the burden of deciding as to
what particular winch the unloading of the payloader should be undertaken. 18 While it was his duty to determine
the weight of heavy cargoes before accepting them. Mr. Felix Pisang took the bill of lading on its face value and
presumed the same to be correct by merely "seeing" it. 19 Acknowledging that there was a "jumbo" in the MV
Cebu which has the capacity of lifting 20 to 25 ton cargoes, Mr. Felix Pisang chose not to use it, because according
to him, since the ordinary boom has a capacity of 5 tons while the payloader was only 2.5 tons, he did not bother
to use the "jumbo" anymore. 20
In that sense, therefore, private respondent's act of furnishing petitioner with an inaccurate weight of the
payloader upon being asked by petitioner's collector, cannot be used by said petitioner as an excuse to avoid
liability for the damage caused, as the same could have been avoided had petitioner utilized the "jumbo" lifting
apparatus which has a capacity of lifting 20 to 25 tons of heavy cargoes. It is a fact known to the Chief Officer of
MV Cebu that the payloader was loaded aboard the MV Cebu at the Manila North Harbor on August 28, 1964 by
means of a terminal crane. 21 Even if petitioner chose not to take the necessary precaution to avoid damage by
checking the correct weight of the payloader, extraordinary care and diligence compel the use of the "jumbo"
lifting apparatus as the most prudent course for petitioner.
While the act of private respondent in furnishing petitioner with an inaccurate weight of the payloader cannot
successfully be used as an excuse by petitioner to avoid liability to the damage thus caused, said act constitutes a
contributory circumstance to the damage caused on the payloader, which mitigates the liability for damages of
petitioner in accordance with Article 1741 of the Civil Code, to wit:
Art. 1741. If the shipper or owner merely contributed to the loss, destruction or deterioration of the goods, the
proximate cause thereof being the negligence of the common carrier, the latter shall be liable in damages, which
however, shall be equitably reduced.
We find equitable the conclusion of the Court of Appeals reducing the recoverable amount of damages by 20% or
1/5 of the value of the payloader, which at the time the instant case arose, was valued at P34,000. 00, thereby
reducing the recoverable amount at 80% or 4/5 of P34,000.00 or the sum of P27,200.00. Considering that the
freight charges for the entire cargoes shipped by private respondent amounting to P2,318.40 remained unpaid..
the same would be deducted from the P27,000.00 plus an additional deduction of P228.63 representing the freight
charges for the undeclared weight of 5 tons (difference between 7.5 and 2.5 tons) leaving, therefore, a final
recoverable amount of damages of P24,652.97 due to private respondent Concepcion.
Notwithstanding the favorable judgment in his favor, private respondent assailed the Court of Appeals' decision
insofar as it limited the damages due him to only P24,652.97 and the cost of the suit. Invoking the provisions on
damages under the Civil Code, more particularly Articles 2200 and 2208, private respondent further seeks
additional damages allegedly because the construction project was delayed and that in spite of his demands,
petitioner failed to take any steps to settle his valid, just and demandable claim for damages.
We find private respondent's submission erroneous. It is well- settled that an appellee, who is not an appellant,
may assign errors in his brief where his purpose is to maintain the judgment on other grounds, but he may not do
so if his purpose is to have the judgment modified or reversed, for, in such case, he must appeal. 22 Since private
respondent did not appeal from the judgment insofar as it limited the award of damages due him, the reduction
of 20% or 1/5 of the value of the payloader stands.
WHEREFORE, in view of the foregoing, the petition is DENIED. The decision of the Court of Appeals is hereby
AFFIRMED in all respects with costs against petitioner. In view of the length of time this case has been pending,
this decision is immediately executory.

17. Cangco V Manila Railroad Co.

At the time of the occurrence which gave rise to this litigation the plaintiff, Jose Cangco, was in the employment
of Manila Railroad Company in the capacity of clerk, with a monthly wage of P25. He lived in the pueblo of San
Mateo, in the province of Rizal, which is located upon the line of the defendant railroad company; and in coming
daily by train to the company's office in the city of Manila where he 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 in the second class-car where he was riding and, making, his exit
through the door, took his position upon the steps of the coach, seizing the upright guardrail with his right hand
for support.
On the side of the train where passengers alight at the San Mateo station there is a cement platform which begins
to rise with a moderate gradient some distance away from the company's office and extends along in front of said
office for a distance sufficient to cover the length of several coaches. As the train slowed down another passenger,
named Emilio Zuiga, also an employee of the railroad company, got off the same car, alighting safely at the point
where the platform begins to rise from the level of the ground. When the train had proceeded a little farther the
plaintiff Jose Cangco stepped off also, but one or both of his feet came in contact with a sack of watermelons with
the result that his feet slipped from under him and he fell violently on the platform. His body at once rolled from
the platform and was drawn under the moving car, where his right arm was badly crushed and lacerated. It
appears that after the plaintiff alighted from the train the car moved forward possibly six meters before it came
to a full stop.
The accident occurred between 7 and 8 o'clock on a dark night, and as the railroad station was lighted dimly by a
single light located some distance away, objects on the platform where the accident occurred were difficult to
discern especially to a person emerging from a lighted car.
The explanation of the presence of a sack of melons on the platform where the plaintiff alighted is found in the
fact that it was the customary season for harvesting these melons and a large lot had been 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 was so placed of melons and the edge of
platform; and it is clear that the fall of the plaintiff was due to the fact that his foot alighted upon one of these
melons at the moment he stepped upon the platform. His statement that he failed to see these objects in the
darkness is readily to be credited.
The plaintiff was drawn from under the car in an unconscious condition, and it appeared that the 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 of this operation was unsatisfactory, and
the plaintiff was then carried to another hospital where a second operation was performed and the member was
again amputated higher up near the shoulder. 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 August 31, 1915, he instituted this proceeding in the Court of First Instance of the city of Manila to recover
damages of the defendant company, founding his action upon the negligence of the servants and employees of
the defendant in placing the sacks of melons upon the platform and leaving them so placed as to be a menace to
the security of passenger alighting from the company's trains. At the hearing in the Court of First Instance, his
Honor, the trial judge, found the facts substantially as above 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 passing to and from the cars, nevertheless, the plaintiff himself had
failed to use due caution in alighting from the coach and was therefore precluded form recovering. Judgment was
accordingly entered in favor of the defendant company, and the plaintiff appealed.
It can not be doubted that the employees of the railroad company were guilty of negligence in piling these sacks
on the platform in the manner above stated; that their presence caused the plaintiff to fall as he alighted from
the train; and that they therefore constituted an effective legal cause of the injuries sustained by the plaintiff. It
necessarily follows that the defendant company is liable for the damage thereby occasioned unless recovery is
barred by the plaintiff's own contributory negligence. In resolving this problem it is necessary that each of these
conceptions of liability, to-wit, the primary responsibility of the defendant company and the contributory
negligence of the plaintiff should be separately examined.
It is important to note that the foundation of the legal liability of the defendant is the contract of 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 performance. That is to say, its liability is
direct and immediate, differing essentially, in legal viewpoint from that presumptive responsibility for the
negligence of its servants, imposed by article 1903 of the Civil Code, which can be rebutted by proof of the exercise
of due care in their selection and supervision. Article 1903 of the Civil Code is not applicable to obligations arising
ex contractu, but only to extra-contractual obligations or to use the technical form of expression, that article
relates only to culpa aquiliana and not to culpa contractual.
Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104 of the Civil Code, clearly points out this
distinction, which was also recognized by this Court in its decision in the case of Rakes vs. Atlantic, Gulf and Pacific
Co. (7 Phil. rep., 359). In commenting upon article 1093 Manresa clearly points 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 accident in the performance of an obligation already
existing . . . ."
In the Rakes case (supra) the decision of this court was made to rest squarely upon the proposition that article
1903 of the Civil Code is not applicable to acts of negligence which constitute the breach of a contract.
Upon this point the Court said:
The acts to which these articles [1902 and 1903 of the Civil Code] are applicable are understood to be those not
growing out of pre-existing duties of the parties to one another. But where relations already formed give rise to
duties, whether springing from contract or quasi-contract, then breaches of those duties are subject to article
1101, 1103, and 1104 of the same code. (Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. Rep., 359 at 365.)
This distinction is of the utmost importance. The liability, which, under the Spanish law, is, in certain cases imposed
upon employers with respect to damages occasioned by the negligence of their employees to persons to whom
they are not bound by contract, is not based, as in the English Common 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 imposes upon all persons who by their fault or negligence, do
injury to another, the obligation of making good the damage caused. One who places a powerful automobile in
the hands of a servant whom he knows to be ignorant of the method of managing such a vehicle, is himself guilty
of an act of negligence which makes him liable for all the consequences of his imprudence. The obligation to make
good the damage arises at the very instant that the unskillful servant, while acting within the scope of his
employment causes the injury. The liability of the master is personal and direct. But, if the master has not been
guilty of any negligence whatever in the selection and direction of the servant, he is not 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 person injured.
It is not accurate to say that proof of diligence and care in the selection and control of the servant relieves the
master from liability for the latter's acts on the contrary, that proof shows that the responsibility has never
existed. As Manresa says (vol. 8, p. 68) the liability arising from extra-contractual culpa is always based upon a
voluntary act or omission which, without willful intent, but by mere negligence or inattention, has caused damage
to another. A master who exercises all possible 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 diligence, thereby performs his duty to third persons to whom he is bound by no
contractual ties, and he incurs no liability whatever if, by reason of the negligence of his servants, even within the
scope of their employment, such third person suffer damage. True it is that under article 1903 of the Civil Code
the law creates a presumption that he has been negligent in the selection or direction of his servant, but the
presumption is rebuttable and yield to proof of due care and diligence in this respect.
The supreme court of Porto Rico, in interpreting identical provisions, as found in the Porto Rico Code, has held
that these articles are applicable to cases of extra-contractual culpa exclusively. (Carmona vs. Cuesta, 20 Porto
Rico Reports, 215.)
This distinction was again made patent by this Court in its decision in the case of Bahia vs. Litonjua and Leynes,
(30 Phil. rep., 624), which was an action brought upon the theory of the extra-contractual 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 the Civil Code, said:
From this article two things are apparent: (1) That when an injury is caused by the negligence of a servant or
employee there instantly arises a presumption of law that there was negligence on the part of the master or
employer either in selection of the servant or employee, or in supervision over him after the selection, or both;
and (2) that that presumption is juris tantum and not juris et de jure, and consequently, may be rebutted. It follows
necessarily that if the employer shows to the satisfaction of the court that in selection and supervision he has
exercised the care and diligence of a good father of a family, the presumption is overcome and he is relieved from
liability.
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 contrast to the American
doctrine that, in relations with strangers, the negligence of the servant in conclusively the negligence of the
master.
The opinion there expressed by this Court, to the effect that in case of extra-contractual culpa based upon
negligence, it is necessary that there shall have been some fault attributable to the defendant personally, and that
the last paragraph of article 1903 merely establishes a rebuttable presumption, is in complete accord with the
authoritative opinion of Manresa, who says (vol. 12, p. 611) that the liability created by article 1903 is imposed by
reason of the breach of the duties inherent in the special 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.
On the other hand, the liability of masters and employers for the negligent acts or omissions of their servants or
agents, when such acts or omissions cause damages which amount to the breach of a contact, is not based upon
a mere presumption of the master's negligence in their selection or control, 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.
Every legal obligation must of necessity be extra-contractual or contractual. Extra-contractual obligation has its
source in the breach or omission of those mutual duties which civilized society imposes upon it members, or which
arise from these relations, other than contractual, of certain members of society to others, generally embraced in
the concept of status. The legal rights of each member of society constitute the measure of the corresponding
legal duties, mainly negative in character, which the existence of those rights imposes upon all other members of
society. The breach of these general duties whether due to willful intent or to mere inattention, if productive of
injury, give rise to an obligation to indemnify the injured party. The fundamental distinction between obligations
of 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, whereas in
contractual relations the vinculum exists independently of the breach of the voluntary duty assumed by the
parties when entering into the contractual relation.
With respect to extra-contractual obligation arising from negligence, whether of act or omission, it is 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, without regard to the lack of
moral culpability, so as to include responsibility for the negligence of those person who acts or mission are
imputable, by a legal fiction, to others who are in a position to exercise an absolute or limited control over them.
The legislature which adopted our Civil Code has elected to limit extra-contractual liability with certain well-
defined exceptions to cases in which moral culpability can be directly imputed to the persons to be charged.
This moral responsibility may consist in having failed to exercise due care in the selection and control of one's
agents or servants, or 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.
The position of a natural or juridical person who has undertaken by contract to render service to another, is wholly
different from that to which article 1903 relates. When the sources of the obligation 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 a contractual undertaking by defendant for the
benefit of plaintiff, and it is alleged that plaintiff has failed or refused to perform the contract, it is not necessary
for plaintiff to specify in his pleadings whether the breach of the contract is due to willful fault or to negligence
on the part of the defendant, or of his servants or agents. Proof of the contract and of its nonperformance is
sufficient prima facie to warrant a recovery.
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 contrary, in a case of
negligence which presupposes the existence of a contractual obligation, if the creditor shows that it exists and
that it has been broken, it is not necessary for him to prove negligence. (Manresa, vol. 8, p. 71 [1907 ed., p. 76]).
As it is not necessary for the plaintiff in an action for the breach of a contract to show that the breach was due to
the negligent conduct of defendant or of his servants, even though such be in fact the actual cause of the breach,
it is obvious that proof on the part of defendant that the negligence or omission of his servants or agents caused
the breach of the contract would not constitute a defense to 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 of agents or servants in the performance of their contracts, would be in a
better position than those acting in person. If one delivers a valuable watch to watchmaker who contract to repair
it, and the bailee, by a personal negligent act causes its destruction, he is unquestionably liable. Would it be logical
to free him from his liability for the breach of his contract, which involves the duty to exercise 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 immunity from damages arising from the
breach of their contracts if caused by negligent acts as such juridical persons can of necessity only act through
agents or servants, and it would no doubt be true in most instances that reasonable care had been taken in
selection and direction of such servants. If one 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 of liability for the breach of its contract to return the collateral upon the payment of the
debt by proving that due care had been exercised in the selection and direction of the clerk?
This distinction between culpa aquiliana, as the source of an obligation, and culpa contractual as a mere incident
to the performance of a contract has frequently been recognized by the supreme court of Spain. (Sentencias of
June 27, 1894; November 20, 1896; and December 13, 1896.) In the decisions of November 20, 1896, it appeared
that plaintiff's action arose ex contractu, but that defendant sought 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:
These are not cases of injury caused, without any pre-existing obligation, by fault or negligence, such as those to
which article 1902 of the Civil Code relates, but of damages caused by the defendant's failure to carry out the
undertakings imposed by the contracts . . . .
A brief review of the earlier decision of this court involving the liability of employers for damage done by the
negligent acts of their servants will show that in no case has the court ever decided that the negligence of the
defendant's servants has been held to constitute a defense to an action for damages for breach of contract.
In the case of Johnson vs. David (5 Phil. Rep., 663), the court held that the owner of a carriage was not liable for
the damages caused by the negligence of his driver. In that case the court commented on the fact that no evidence
had been adduced in the trial court that the defendant had been negligent in the employment of the driver, or
that he had any knowledge of his lack of skill or carefulness.
In the case of Baer Senior & Co's Successors vs. Compania Maritima (6 Phil. Rep., 215), the plaintiff sued the
defendant for damages caused by the loss of a barge belonging to plaintiff which was allowed to get adrift by the
negligence of defendant's servants in the course of the performance of a contract of towage. The court held, citing
Manresa (vol. 8, pp. 29, 69) that if the "obligation of the defendant grew out of a contract made between it and
the plaintiff . . . we do not think that the provisions of articles 1902 and 1903 are applicable to the case."
In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff sued the defendant to recover damages for
the personal injuries caused by the negligence of defendant's chauffeur while driving defendant's automobile in
which defendant was riding at the time. The court found that the damages were caused by the negligence of the
driver of the automobile, but held that the master was not liable, although he was present at the time, saying:
. . . unless the negligent acts of the driver are continued for a length of time as to give the owner a reasonable
opportunity to observe them and to direct the driver to desist therefrom. . . . The act complained of must be
continued in the presence of the owner for such length of time that the owner by his acquiescence, makes the
driver's acts his own.
In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage & Taxicab Co. (33 Phil. Rep., 8), it is true that
the court rested its conclusion as to the liability of the defendant upon article 1903, although 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 article 1903, in dealing with the liability
of a master for the negligent acts of his servants "makes the distinction between private individuals and public
enterprise;" that as to the latter the law creates a rebuttable presumption of negligence in the selection or
direction of servants; and that in the particular case the presumption of negligence had not been overcome.
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 of the pleadings and of
the briefs shows that the questions of law were in fact discussed upon this theory. Viewed from the standpoint of
the defendant the practical result must have been the same in 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 defendant had been guilty of negligence in its failure to exercise proper
discretion in the direction of the servant. Defendant was, therefore, liable for the injury suffered by plaintiff,
whether the breach of the duty were to be regarded as constituting culpa aquiliana or culpa contractual. As
Manresa points 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 essential
characteristics are identical. There is always an act or omission productive of damage due to carelessness or
inattention on the part of the defendant. Consequently, when the court holds that a defendant is liable in damages
for having failed to exercise due care, either directly, or in failing to 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 that defendant was liable for the damages negligently caused
by its servants to a person to whom it was bound by contract, and made reference to the fact that the defendant
was negligent in the selection and control of its servants, that in such a case the court would have held that it
would have been a good defense to the action, if presented squarely upon the theory of the breach of the contract,
for defendant to have proved that it did in fact exercise care in the selection and control of the servant.
The true explanation of such cases is to be found by directing the attention to the relative spheres of contractual
and extra-contractual obligations. The field of non- contractual obligation is much more broader than that of
contractual obligations, comprising, as it does, the whole extent of juridical human 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. When such a contractual relation exists the obligor
may break the contract under such conditions that the same act which constitutes the source of an extra-
contractual obligation had no contract existed between the parties.
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, being contractual, was
direct and immediate, and its non-performance could not be excused by proof that the fault was morally
imputable to defendant's servants.
The railroad company's defense involves the assumption that even granting that the negligent conduct of its
servants in placing an obstruction upon the platform was a breach of its contractual obligation to maintain safe
means of approaching and leaving its trains, the direct and proximate cause of the injury suffered by plaintiff was
his own contributory negligence in failing to wait until the train had come to a complete stop before alighting.
Under the doctrine of comparative negligence announced in the Rakes case (supra), if the accident was caused by
plaintiff's own negligence, no liability is imposed upon defendant's negligence and plaintiff's negligence merely
contributed to his injury, the damages should be apportioned. It is, therefore, important to ascertain if defendant
was in fact guilty of negligence.
It may be admitted that had plaintiff waited until the train had come to a full stop before alighting, the particular
injury suffered by him could not have occurred. Defendant contends, and cites many authorities in support of the
contention, that it is negligence per se for a passenger to alight from a moving train. We are not disposed to
subscribe to this doctrine in its absolute form. We are of the opinion that this proposition is too badly stated and
is at variance with the experience of every-day life. In this particular instance, that the train was barely moving
when plaintiff alighted is shown conclusively by the fact that it came to stop within six meters from the place
where he stepped from it. Thousands of person alight from trains under these conditions every day of the year,
and sustain no injury where the company has kept its platform free from dangerous obstructions. There is no
reason to believe that plaintiff would have suffered any injury whatever in alighting as he did had it not been for
defendant's negligent failure to perform its duty to provide a safe alighting place.
We are of the opinion that the correct doctrine relating to this subject is that expressed in Thompson's work on
Negligence (vol. 3, sec. 3010) as follows:
The test by which to determine whether the passenger has been guilty of negligence in attempting to alight from
a moving railway train, is that of ordinary or reasonable care. It is to be considered whether 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, not the care which may or should be
used by the prudent man generally, but the care which a man of ordinary prudence would use under similar
circumstances, to avoid injury." (Thompson, Commentaries on Negligence, vol. 3, sec. 3010.)
Or, it we prefer to adopt the mode of exposition used by this court in Picart vs. Smith (37 Phil. rep., 809), we may
say that the test is this; Was there anything in the circumstances surrounding the plaintiff at the time he alighted
from the train which would have admonished a person of average prudence 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
As the case now before us presents itself, the only fact from which a conclusion can be drawn to the effect that
plaintiff was guilty of contributory negligence is that he stepped off the car without being 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, ignorant of the fact that the obstruction
which was caused by the sacks of melons piled on the platform existed; and as the defendant was bound by reason
of its duty as a public carrier to afford to its passengers facilities for safe egress from its trains, the plaintiff had a
right to assume, in the absence of some circumstance to warn him to the contrary, that the platform was clear.
The place, as we have already stated, was dark, or dimly lighted, and this also is proof of a failure upon the part
of the defendant in the performance of a duty owing by it to the plaintiff; for if it were by any possibility concede
that it had right to pile these sacks in the path of alighting passengers, the placing of them adequately so that their
presence would be revealed.
As pertinent to the question of contributory negligence on the part of the plaintiff in this case the following
circumstances are to be noted: The company's platform was constructed upon a level higher than that of the
roadbed and the surrounding ground. The distance from the steps of the car to the spot where the alighting
passenger would place his feet on the platform was thus reduced, thereby decreasing the risk incident to stepping
off. The nature of the platform, constructed as it was of cement material, also assured to the passenger a stable
and even surface on which to alight. Furthermore, the plaintiff was possessed of the vigor and agility of young
manhood, and it was by no means so risky for him to get off while the train was yet moving as the same act would
have been in an aged or feeble person. In determining the question of contributory negligence in performing such
act that is to say, whether the passenger acted prudently or recklessly the age, sex, and physical condition
of the 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 safety under such
conditions, as the nature of their wearing apparel obstructs the free movement of 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 platform where he was alighting. Our conclusion is that the
conduct of the plaintiff in undertaking to alight while the train was yet slightly under way was not characterized
by imprudence and that therefore he was not guilty of contributory negligence.
The evidence shows that the plaintiff, at the time of the accident, was earning P25 a month as a copyist clerk, and
that the injuries he has suffered have permanently disabled him from continuing that 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 are of the opinion that a fair compensation for
the damage suffered by him for his permanent disability is the sum of P2,500, and that he is also entitled to recover
of defendant the additional sum of P790.25 for medical attention, hospital services, and other incidental
expenditures connected with the treatment of his injuries.
The decision of lower court is reversed, and judgment is hereby rendered plaintiff for the sum of P3,290.25, and
for the costs of both instances. So ordered.

18. Del Prado v Meralco

This action was instituted in the Court of First Instance of Manila by Ignacio del Prado to recover damages in the
amount of P50,000 for personal injuries alleged to have been caused by the negligence of te defendant, the Manila
Electric Company, in the operation of one of its street cars in the City of Manila. Upon hearing the cause the trial
court awarded to the plaintiff the sum of P10,000, as damages, with costs of suit, and the defendant appealed.
The appellant, the Manila Electric Company, is engaged in operating street cars in the City for the conveyance of
passengers; and on the morning of November 18, 1925, one Teodorico Florenciano, as appellant's motorman, was
in charge of car No. 74 running from east to west on R. Hidalgo Street, the scene of the accident being at a point
near the intersection of said street and Mendoza Street. After the car had stopped at its appointed place for taking
on and letting off passengers, just east of the intersection, it resumed its course at a moderate speed under the
guidance of the motorman. The car had proceeded only a short distance, however, when the plaintiff, Ignacio del
Prado, ran across the street to catch the car, his approach being made from the left. The car was of the kind having
entrance and exist at either end, and the movement of the plaintiff was so timed that he arrived at the front
entrance of the car at the moment when the car was passing.
The testimony of the plaintiff and of Ciriaco Guevara, one of his witnesses, tends to shows that the plaintiff, upon
approaching the car, raised his hand as an indication to the motorman of his desire to board the car, in response
to which the motorman eased up a little, without stopping. Upon this the plaintiff seized, with his hand, the front
perpendicular handspot, at the same time placing his left foot upon the platform. However, before the plaintiff's
position had become secure, and even before his raised right foot had reached the flatform, the motorman applied
the power, with the result that the car gave a slight lurch forward. This sudden impulse to the car caused the
plaintiff's foot to slip, and his hand was jerked loose from the handpost, He therefore fell to the ground, and his
right foot was caught and crushed by the moving car. The next day the member had to be amputated in the
hospital. The witness, Ciriaco Guevara, also stated that, as the plaintiff started to board the car, he grasped the
handpost on either side with both right and left hand. The latter statement may possibly be incorrect as regards
the use of his right hand by the plaintiff, but we are of the opinion that the finding of the trial court to the effect
that the motorman slowed up slightly as the plaintiff was boarding the car that the plaintiff's fall was due in part
at lease to a sudden forward movement at the moment when the plaintiff put his foot on the platform is supported
by the evidence and ought not to be disturbed by us.
The motorman stated at the trial that he did not see the plaintiff attempting to board the car; that he did not
accelerate the speed of the car as claimed by the plaintiff's witnesses; and that he in fact knew nothing of the
incident until after the plaintiff had been hurt and some one called to him to stop. We are not convinced of the
complete candor of this statement, for we are unable to see how a motorman operating this car could have failed
to see a person boarding the car under the circumstances revealed in this case. It must be remembered that the
front handpost which, as all witness agree, was grasped by the plaintiff in attempting to board the car, was
immediately on the left side of the motorman.
With respect to the legal aspects of the case we may observe at the outset that there is no obligation on the part
of a street railway company to stop its cars to let on intending passengers at other points than those appointed
for stoppage. In fact it would be impossible to operate a system of street cars if a company engage in this business
were required to stop any and everywhere to take on people who were too indolent, or who imagine themselves
to be in too great a hurry, to go to the proper places for boarding the cars. Nevertheless, although the motorman
of this car was not bound to stop to let the plaintiff on, it was his duty to do act that would have the effect of
increasing the plaintiff's peril while he was attempting to board the car. The premature acceleration of the car
was, in our opinion, a breach of this duty.
The relation between a carrier of passengers for hire and its patrons is of a contractual nature; and in failure on
the part of the carrier to use due care in carrying its passengers safely is a breach of duty (culpa contructual) under
articles 1101, 1103 and 1104 of the Civil Code. Furthermore, the duty that the carrier of passengers owes to its
patrons extends to persons boarding the cars as well as to those alighting therefrom. The case of Cangco vs. Manila
Railroad Co. (38 Phil., 768), supplies an instance of the violation of this duty with respect to a passenger who was
getting off of a train. In that case the plaintiff stepped off of a moving train, while it was slowing down in a station,
and at the time when it was too dark for him to see clearly where he was putting his feet. The employees of the
company had carelessly left watermelons on the platform at the place where the plaintiff alighted, with the result
that his feet slipped and he fell under the car, where his right arm badly injured. This court held that the railroad
company was liable for breach positive duty (culpa contractual), and the plaintiff was awarded damages in the
amount of P2,500 for the loss of his arm. In the opinion in that case the distinction is clearly drawn between a
liability for negligence arising from breach of contructual duty and that arising articles 1902 and 1903 of the Civil
Code (culpa aquiliana).
The distiction between these two sorts of negligence is important in this jurisdiction, for the reason that where
liability arises from a mere tort (culpa aquiliana), not involving a breach of positive obligation, an employer, or
master, may exculpate himself, under the last paragraph of article 1903 of the Civil Code, by providing that he had
exercised due degligence to prevent the damage; whereas this defense is not available if the liability of the master
arises from a breach of contrauctual duty (culpa contractual). In the case bfore us the company pleaded as a
special defense that it had used all the deligence of a good father of a family to prevent the damage suffered by
the plaintiff; and to establish this contention the company introduced testimony showing that due care had been
used in training and instructing the motorman in charge of this car in his art. But this proof is irrelevant in view of
the fact that the liability involved was derived from a breach of obligation under article 1101 of the Civil Code and
related provisions. (Manila Railroad Co. vs. Compana Transatlantica and Atlantic, Gulf & Pacific Co., 38 Phil., 875,
887; De Guia vs. Manila Electric Railroad & Light Co., 40 Phil., 706, 710.)
Another practical difference between liability for negligence arising under 1902 of the Civil Code and liability
arising from negligence in the performance of a positive duty, under article 1101 and related provisions of the
Civil Code, is that, in dealing with the latter form of negligence, the court is given a discretion to mitigate liability
according to the circumstances of the case (art 1103). No such general discretion is given by the Code in dealing
with liability arising under article 1902; although possibly the same end is reached by courts in dealing with the
latter form of liability because of the latitude of the considerations pertinent to cases arising under this article.
As to the contributory negligence of the plaintiff, we are of the opinion that it should be treated, as in Rakes vs.
Atlantic, Gulf and Pacific Co. (7 Phil., 359), as a mitigating circumstance under article 1103 of the Civil Code. It is
obvious that the plaintiff's negligence in attempting to board the moving car was not the proximate cause of the
injury. The direct and proximate cause of the injury was the act of appellant's motorman in putting on the power
prematurely. A person boarding a moving car must be taken to assume the risk of injury from boarding the car
under the conditions open to his view, but he cannot fairly be held to assume the risk that the motorman, having
the situation in view, will increase his peril by accelerating the speed of the car before he is planted safely on the
platform. Again, the situation before us is one where the negligent act of the company's servant succeeded the
negligent act of the plaintiff, and the negligence of the company must be considered the proximate cause of the
injury. The rule here applicable seems to be analogous to, if not identical with that which is sometimes referred
to as the doctrine of "the last clear chance." In accordance with this doctrine, the contributory negligence of the
party injured will not defeat the action if it be shown that the defendant might, by the exercise of reasonable care
and prudence, have avoided the consequences of the negligence of the injured party (20 R. C. L., p. 139; Carr vs.
Interurban Ry. Co., 185 Iowa, 872; 171 N. W., 167). The negligence of the plaintiff was, however, contributory to
the accident and must be considered as a mitigating circumstance.
With respect to the effect of this injury upon the plaintiff's earning power, we note that, although he lost his foot,
he is able to use an artificial member without great inconvenience and his earning capacity has probably not been
reduced by more than 30 per centum. In view of the precedents found in our decisions with respect to the
damages that ought to be awarded for the loss of limb, and more particularly Rakes vs. Atlantic, Gulf and Pacific
Co. (7 Phil., 359); Cangco vs. Manila Railroad Co. (38 Phil., 768); and Borromeo vs. Manila Electric Railroad and
Light Co. (44 Phil., 165), and in view of all the circumstances connected with the case, we are of the opinion that
the plaintiff will be adequately compensated by an award of P2,500.
It being understood, therefore, that the appealed judgment is modified by reducing the recovery to the sum of
P2,500, the judgment, as thus modified, is affirmed. So ordered, with costs against the appellant.

19. PNR v CA
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 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.
The pertinent facts are summarized by the respondent court as follows:
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, as a paying passenger
bound for Manila. Due to some mechanical defect, the train stopped at Sipocot, Camarines Sur, for repairs, taking
some two hours before the train could resume its trip to Manila. 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. Instead, the train conductor Perfecto Abrazado,
called the station agent at Candelaria, Quezon, and requested for verification of the information. Police authorities
of Lucena City were dispatched to the Iyam Bridge where they found the lifeless body of Winifredo Tupang.
As shown by the autopsy report, Winifredo Tupang died of cardio-respiratory failure due to massive cerebral
hemorrhage due to traumatic injury [Exhibits B and C, Folder of Exhibits],Tupang was later buried in the public
cemetery of Lucena City by the local police authorities. [Rollo, pp. 91-92]
Upon complaint filed by the deceased's widow, Rosario Tupang, the then Court of First Instance of Rizal, after trial,
held the petitioner PNR liable for damages for breach of contract of carriage and ordered "to pay the plaintiff the
sum of P12,000,00 for the death of Winifredo Tupang, plus P20,000.00 for loss of his earning capacity and the
further sum of P10,000.00 as moral damages, and P2,000.00 as attorney's fees, and costs. 1
On appeal, the Appellate Court sustained the holding of the trial court that the PNR did not exercise the 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 damages.
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 without distinct or
separate personality of its own, and that its funds are governmental in character 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.
Hence, this petition for review.
The petition is devoid of merit. 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. 2
The petitioner's contention that the funds of the PNR are not subject to garnishment or execution 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 proceeding, whether or not the funds
of the Philippine National Railways, could be garnished or levied upon on execution was resolved in two recent
decisions, the Philippine National Bank v. Court of Industrial Relations [81 SCRA 314] and Philippine National Bank
v. Hon. Judge Pabalan [83 SCRA 595]. This Court in both cases answered the question in the affirmative. There
was no legal bar to garnishment or execution. The argument based on non-suability of a state allegedly because
the funds are governmental in character was unavailing.So it must be again."
In support of the above conclusion, Justice Fernando cited the Court's holding in Philippine National Bank v. Court
of Industrial Relations, to wit: "The premise that the funds could be spoken of as public in 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. National Shipyard and Steel Corporation v.
Court of Industrial Relations is squarely in point. As was explicitly stated in the opinion of then Justice, later Chief
Justice, Concepcion: "The allegation to the 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 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 *
* *, pursuant to which the NASSCO has been established- 'all the powers of a corporation under the Corporation
Law * * *. 4
As far back as 1941, this Court in the case of Manila Hotel Employees Association v. Manila Hotel Co., 5 laid down
the rule that "when the government enters into commercial business, it abandons its 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 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 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 legally set up the doctrine of non-suability as a bar to the plaintiff's suit for damages.
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. 7
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, 8 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. 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, fraudulent, reckless, oppressive or malevolent manner. 9There being no evidence
of fraud, malice or bad faith on the part of petitioner, the grant of exemplary damages should be discarded.
WHEREFORE, the decision of the respondent appellate court is hereby modified by eliminating therefrom the
amounts of P10,000.00 and P5,000.00 adjudicated as moral and exemplary damages, respectively. No costs.
SO ORDERED.