45 Phil.

657

OSTRAND, J.:

The plaintiffs 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 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 de- fendant 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. Compaña
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 Espanol, vol. 8, pp. 88 et
seq.; Scaevola, Codigo Civil, vol. 19, pp. 526 et seq.)

The antecedent to article 1105 is found in Law 11, Title 33, Partida 7, which defines caso
fortuito as "ocasion que acaese 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 de- struction 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 Encyclopedia Juridica Espanola 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 nor- mal manner. And (4) the obligor (debtor)
must be free from any participation in the aggravation of the injury resulting to th e creditor." (5
Enciclopedia Juridica Espanola, 309.)

As will be seen, these authorities agree that some ex- traordinary 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 record shows, the accident was caused either by defects in
the automobile or else through the negligence of its driver. That is not a caso fortuito.

We agree with counsel that neither under the American nor Spanish law is a carrier of
passengers an absolute insurer against the risks of travel from which the passenger may protect
himself by exercising ordinary care and diligence. The case of Alba vs. Sociedad Anonima de
Tranvias, Jurisprudencia Civil, vol. 102, p. 928, cited by the defendant in support of his
contentions, 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 to 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.

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