CANCO vs.

MANILA RAILROAD
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 Zuñiga, 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.

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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

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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 ha d 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.

Separate Opinions - MALCOLM, J., dissenting:

With one sentence in the majority decision, we are of full accord, namely, "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." With the general rule relative to a passenger's
contributory negligence, we are likewise in full accord, namely, "An attempt to alight from a moving train is negligence per se." Adding these two
points together, should be absolved from the complaint, and judgment affirmed.

ISAAC VS. AL AMMEN TRANSPORTATION

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.

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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, 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,

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 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.

NOCUM VS LAGUNA TAYABAS BUS CO

Appeal of the Laguna Tayabas Bus Co., defendant in the Court below, from a judgment of the said court (Court of First Instance of Batangas) in
its Civil Case No. 834, wherein appellee Herminio L. Nocum was plaintiff, sentencing appellant to pay appellee the sum of P1,351.00 for actual
damages and P500.00 as attorney's fees with legal interest from the filing of the complaint plus costs. Appellee, who was a passenger in
appellant's Bus No. 120 then making a trip within the barrio of Dita, Municipality of Bay, Laguna, was injured as a consequence of the explosion of
firecrackers, contained in a box, loaded in said bus and declared to its conductor as containing clothes and miscellaneous items by a co-
passenger. The findings of fact of the trial court are not assailed. The appeal is purely on legal questions.
Appellee has not filed any brief. All that We have before Us is appellant's brief with the following assignment of errors:
I.BASED ON THE FACTS THE LOWER COURT FOUND AS ESTABLISHED, IT ERRED AS A MATTER OF LAW IN NOT ABSOLVING APPELLANT FROM
LIABILITY RESULTING FROM THE EXPLOSION OF FIRECRACKERS CONTAINED IN A PACKAGE, THE CONTENTS OF WHICH WERE
MISREPRESENTED BY A PASSENGER.
II.THE LOWER COURT ERRED, AS A MATTER OF LAW, IN AWARDING DAMAGES WITH LEGAL INTEREST IN FAVOR OF THE APPELLEE.
III.THE LOWER COURT ERRED IN NOT DISMISSING THE COMPLAINT, WITH COSTS AGAINST THE APPELLEE.
Upon consideration of the points raised and discussed by appellant, We find the appeal to be well taken.
The main basis of the trial court's decision is that appellant did not observe the extraordinary or utmost diligence of a very cautious person
required by the following articles of the Civil Code:
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.
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.
Analyzing the evidence presented by the parties, His Honor found:
According to Severino Andaya, a witness for the plaintiff, a man with a box went up the baggage compartment of the bus where he already
was and said box was placed under the seat. They left Azcarraga at about 11:30 in the morning and when the explosion occurred, he was
thrown out. PC investigation report states that thirty seven (37) passengers were injured (Exhibits "O" and "2").
The bus conductor, Sancho Mendoza, testified that the box belonged to a passenger whose name he does not know and who told him that it
contained miscellaneous items and clothes. He helped the owner in loading the baggage which weighed about twelve (12) kilos and because
of company regulation, he charged him for it twenty-five centavos (P0.25). From its appearance there was no indication at all that the
contents were explosives or firecrackers. Neither did he open the box because he just relied on the word of the owner.
Dispatcher Nicolas Cornista of defendant company corroborrated the testimony of Mendoza and he said, among other things, that he was
present when the box was loaded in the truck and the owner agreed to pay its fare. He added that they were not authorized to open the
baggages of passengers because instruction from the management was to call the police if there were packages containing articles which
were against regulations.
xxx xxx xxx
There is no question that Bus No. 120 was road worthy when it left its Manila Terminal for Lucena that morning of December 5, 1960. The
injuries suffered by the plaintiff were not due to mechanical defects but to the explosion of firecrackers inside the bus which was loaded by
a co-passenger.
... Turning to the present case, it is quite clear that extraordinary or utmost diligence of a very cautious person was not observed by the
defendant company. The service manual, exhibits "3" and "3-A," prohibits the employees to allow explosives, such as dynamite and
firecrackers to be transported on its buses. To implement this particular rule for 'the safety of passengers, it was therefore incumbent upon
the employees of the company to make the proper inspection of all the baggages which are carried by the passengers.
But then, can it not be said that the breach of the contract was due to fortuitous event? The Supreme Court in the case of Lasam vs. Smith,
45 Phil. 657, quoted Escriche's definition of caso fortuito as "an unexpected event or act of God which could neither be foreseen nor
resisted, such as floods, torrents, shipwrecks, conflagrations, lightning, compulsions, insurrections, destructions of buildings by unforeseen
accidents and other occurrences of a similar nature." In other words, the cause of the unexpected event must be independent of the will of
man or something which cannot be avoided. This cannot be said of the instant case. If proper and rigid inspection were observed by the
defendant, the contents of the box could have been discovered and the accident avoided. Refusal by the passenger to have the package
opened was no excuse because, as stated by Dispatcher Cornista, employees should call the police if there were packages containing
articles against company regulations. Neither was failure by employees of defendant company to detect the contents of the packages of
passengers because like the rationale in the Necesito vs. Paras case (supra), a passenger has neither choice nor control in the exercise of
their discretion in determining what are inside the package of co-passengers which may eventually prove fatal.
We cannot agree. No doubt, the views of His Honor do seem to be in line with the reasons that the Code Commission had for incorporating the
above-quoted provisions in its draft of the Civil Code. Indeed, in approving the said draft, Congress must have concurred with the Commission
that by requiring the highest degree of diligence from common carriers in the safe transport of their passengers and by creating a presumption of
negligence against them, the recklessness of their drivers which is a common sight even in crowded areas and, particularly, on the highways
throughout the country may, somehow, if not in a large measure, be curbed. We are not convinced, however, that the exacting criterion of said
provisions has not been met by appellant in the circumstances of this particular case.
It is undisputed that before the box containing the firecrackers were allowed to be loaded in the bus by the conductor, inquiry was made with the
passenger carrying the same as to what was in it, since its "opening ... was folded and tied with abaca." (Decision p. 16, Record on Appeal.)
According to His Honor, "if proper and rigid inspection were observed by the defendant, the contents of the box could have been discovered and
the accident avoided. Refusal by the passenger to have the package opened was no excuse because, as stated by Dispatcher Cornista, employees
should call the police if there were packages containing articles against company regulations." That may be true, but it is Our considered opinion
that the law does not require as much. Article 1733 is not as unbending as His Honor has held, for it reasonably qualifies the extraordinary
diligence required of common carriers for the safety of the passengers transported by them to be "according to all the circumstances of each
case." In fact, Article 1755 repeats this same qualification: "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 due regard for all the circumstances."
In this particular case before Us, it must be considered that while it is true the passengers of appellant's bus should not be made to suffer for
something over which they had no control, as enunciated in the decision of this Court cited by His Honor, 1 fairness demands that in measuring a
common carrier's duty towards its passengers, allowance must be given to the reliance that should be reposed on the sense of responsibility of all
the passengers in regard to their common safety. It is to be presumed that a passenger will not take with him anything dangerous to the lives and
limbs of his co-passengers, not to speak of his own. Not to be lightly considered must be the right to privacy to which each passenger is entitled.
He cannot be subjected to any unusual search, when he protests the innocuousness of his baggage and nothing appears to indicate the contrary,
as in the case at bar. In other words, inquiry may be verbally made as to the nature of a passenger's baggage when such is not outwardly
perceptible, but beyond this, constitutional boundaries are already in danger of being transgressed. Calling a policeman to his aid, as suggested
by the service manual invoked by the trial judge, in compelling the passenger to submit to more rigid inspection, after the passenger had already
declared that the box contained mere clothes and other miscellaneous, could not have justified invasion of a constitutionally protected domain.
Police officers acting without judicial authority secured in the manner provided by law are not beyond the pale of constitutional inhibitions
designed to protect individual human rights and liberties. Withal, what must be importantly considered here is not so much the infringement of
the fundamental sacred rights of the particular passenger herein involved, but the constant threat any contrary ruling would pose on the right of
privacy of all passengers of all common carriers, considering how easily the duty to inspect can be made an excuse for mischief and abuse. Of
course, when there are sufficient indications that the representations of the passenger regarding the nature of his baggage may not be true, in

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the interest of the common safety of all, the assistance of the police authorities may be solicited, not necessarily to force the passenger to open
his baggage, but to conduct the needed investigation consistent with the rules of propriety and, above all, the constitutional rights of the
passenger. It is in this sense that the mentioned service manual issued by appellant to its conductors must be understood.
Decisions in other jurisdictions cited by appellant in its brief, evidently because of the paucity of local precedents square ly in point, emphasize that
there is need, as We hold here, for evidence of circumstances indicating cause or causes for apprehension that the passenger's baggage is
dangerous and that it is failure of the common carrier's employee to act in the face of such evidence that constitutes the cornerstone of the
common carrier's liability in cases similar to the present one.
The principle that must control the servants of the carrier in a case like the one before us is correctly stated in the opinion in the case of
Clarke v. Louisville & N.R. Co. 20 Ky L. Rep. 839, 49 S.W. 1120. In that case Clarke was a passenger on the defendant's train. Another
passenger took a quantity of gasoline into the same coach in which Clarke was riding. It ignited and exploded, by reason of which he was
severely injured. The trial court peremptorily instructed the jury to find for the defendant. In the opinion, affirming the judgment, it is said:
"It may be stated briefly, in assuming the liability of a railroad to its passengers for injury done by another passenger, on ly where the
conduct of this passenger had been such before the injury as to induce a reasonably prudent and vigilant conductor to believe that there was
reasonable ground to apprehend violence and danger to the other passengers, and in that case asserting it to be the duty of the conductor of
the railroad train to use all reasonable means to prevent such injury, and if he neglects this reasonable duty, and injury is done, that then
the company is responsible; that otherwise the railroad is not responsible."
The opinion quotes with approval from the case of Gulf, C. & S. F. R. Co. vs. Shields, 9 Tex. Civ. App. 652, 29 S. W. 652, in which case the
plaintiff was injured by alcohol which had been carried upon the train by another passenger. In the opinion in that case it is said: "It was but
a short period of time after the alcohol was spilt when it was set on fire and the accident occurred, and it was not shown that appellant's
employees knew that the jug contained alcohol. In fact, it is not shown that the conductor or any other employee knew that Harris had a jug
with him until it fell out of the sack, though the conductor had collected ... (his) fare, and doubtless knew that he had the sack on the seat
with him. ... It cannot be successfully denied that Harris had the right as a passenger to carry baggage on the train, and that he had a right
to carry it in a sack if he chose to do so. We think it is equally clear that, in the absence of some intimation or circumstance indicating that
the sack contained something dangerous to other passengers, it was not the duty of appellant's conductor or any other employee to open
the sack and examine its contents." Quinn v. Louisville & N. R. Co. 98 Ky. 231, 32 S. W. 742; Wood v. Louisville & N. R. Co. 101 Ky. 703, 42
S. W. 349; Louisville & N. R. Co. v. Vincent, 29 Ky. L. Rep. 1049, 96 S. W. 898; Louisville & N. R. Co. v. Renfro, 142 Ky. 590, 33 L. R. A. (N.
S.) 133, 135 S. W. 266.2 (Emphasis supplied)
Explosive or Dangerous Contents. — A carrier is ordinarily not liable for injuries to passengers from fires or explosions caused by articles
brought into its conveyances by other passengers, in the absence of any evidence that the carrier, through its employees, was aware of the
nature of the article or had any reason to anticipate danger therefrom. (Bogard v. Illinois C. R Co. 144 Ky. 649, 139 S. W. 855, 36 L. R.
A.[N. S.] 337; Clarke v. Louisville & N. R. Co. 101 Ky. 34, 39 S. W. 840, 36 L. R. A. 123 [explosion of can of gasoline]; East Indian R. Co. v.
Mukerjee [1901] A. C. [Eng.] 396, 3 B. R. C. 420 — P. C. [explosion of fireworks]; Annotation: 37 L. R. A. [N. S.] 725.)3
Appellant further invokes Article 1174 of the Civil Code which relieves all obligors, including, of course, common carriers like appellant, from the
consequence of fortuitous events. The court a quo held that "the breach of contract (in this case) was not due to fortuitous event and that,
therefore, the defendant is liable in damages." Since We hold that appellant has succeeded in rebutting the presumption of negligence by showing
that it has exercised extraordinary diligence for the safety of its passengers, "according to the circumstances of the (each) case", We deem it
unnecessary to rule whether or not there was any fortuitous event in this case.
ACCORDINGLY, the appealed judgment of the trial court is reversed and the case is dismissed, without costs.

LASAM VS 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 noth ing
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 t o 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 Español, vol. 8, pp. 88 et seq.; Scævola, 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 Española 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

6|TRANSPOfulltext(Session4)
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 Española, 309.)
As will be seen, these authorities agree that some extraordinary circumstance independent of the will of the obligor, or of h is 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.

NECESITO VS PARAS
These cases involve ex contractu against the owners and operators of the common carrier known as Philippine Rabbit Bus Lines, filed by one
passenger, and the heirs of another, who injured as a result of the fall into a river of the vehicle in which they were ridin g.
In the morning of January 28, 1964, Severina Garces and her one-year old son, Precillano Necesito, carrying vegetables, boarded passenger auto
truck or bus No. 199 of the Philippine Rabbit Bus Lines at Agno, Pangasinan. The passenger truck, driven by Francisco Bandonell, then proceeded
on its regular run from Agno to Manila. After passing Mangatarem, Pangasinan truck No. 199 entered a wooden bridge, but the front wheels
swerved to the right; the driver lost control, and after wrecking the bridge's wooden rails, the truck fell on its right side into a creek where water
was breast deep. The mother, Severina Garces, was drowned; the son, Precillano Necesito, was injured, suffering abrasions and fracture of the
left femur. He was brought to the Provincial Hospital at Dagupan, where the fracture was set but with fragments one centimeter out of line. The
money, wrist watch and cargo of vegetables were lost.
Two actions for damages and attorney's fees totalling over P85,000 having been filed in the Court of First Instance of Tarlac (Cases Nos. 908 and
909) against the carrier, the latter pleaded that the accident was due to "engine or mechanical trouble" independent or beyond the control of the
defendants or of the driver Bandonell.
After joint trial, the Court of First Instance found that the bus was proceeding slowly due to the bad condition of the road; that the accident was
caused by the fracture of the right steering knuckle, which was defective in that its center or core was not compact but "bubbled and cellulous", a
condition that could not be known or ascertained by the carrier despite the fact that regular thirty-day inspections were made of the steering
knuckle, since the steel exterior was smooth and shiny to the depth of 3/16 of an inch all around; that the knuckles are designed and
manufactured for heavy duty and may last up to ten years; that the knuckle of bus No. 199 that broke on January 28, 1954, was last inspected
on January 5, 1954, and was due to be inspected again on February 5th. Hence, the trial court, holding that the accident was exclusively due to
fortuitous event, dismissed both actions. Plaintiffs appealed directly to this Court in view of the amount in controversy.
We are inclined to agree with the trial court that it is not likely that bus No. 199 of the Philippine Rabbit Lines was driven over the deeply rutted
road leading to the bridge at a speed of 50 miles per hour, as testified for the plaintiffs. Such conduct on the part of the driver would have
provoked instant and vehement protest on the part of the passengers because of the attendant discomfort, and there is no trace of any such
complaint in the records. We are thus forced to assume that the proximate cause of the accident was the reduced strength of the steering knuckle
of the vehicle caused by defects in casting it. While appellants hint that the broken knuckle exhibited in court was not the real fitting attached to
the truck at the time of the accident, the records they registered no objection on that ground at the trial below. The issue is thus reduced to the
question whether or not the carrier is liable for the manufacturing defect of the steering knuckle, and whether the evidence discloses that in
regard thereto the carrier exercised the diligence required by law (Art. 1755, new Civil Code).
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 the all the circumstances.
It is clear that the carrier is not an insurer of the passengers' safety. His liability rests upon negligence, his failure to exercise the "utmost" degree
of diligence that the law requires, and by Art. 1756, in case of a passenger's death or injury the carrier bears the burden of satisfying the court
that he has duly discharged the duty of prudence required. In the American law, where the carrier is held to the same degree of diligence as
under the new Civil Code, the rule on the liability of carriers for defects of equipment is thus expressed: "The preponderance of authority is in
favor of the doctrine that a passenger is entitled to recover damages from a carrier for an injury resulting from a defect in an appliance purchased
from a manufacturer, whenever it appears that the defect would have been discovered by the carrier if it had exercised the degree of care which
under the circumstances was incumbent upon it, with regard to inspection and application of the necessary tests. For the purposes of this
doctrine, the manufacturer is considered as being in law the agent or servant of the carrier, as far as regards the work of constructing the
appliance. According to this theory, the good repute of the manufacturer will not relieve the carrier from liability" (10 Am. Jur. 205, s, 1324; see
also Pennsylvania R. Co. vs. Roy, 102 U. S. 451; 20 L. Ed. 141; Southern R. Co. vs. Hussey, 74 ALR 1172; 42 Fed. 2d 70; and Ed Note, 29 ALR
788; Ann. Cas. 1916E 929).
The rationale of the carrier's liability is the fact that the passenger has neither choice nor control over the carrier in the selection and use of the
equipment and appliances in use by the carrier. Having no privity whatever with the manufacturer or vendor of the defective equipment, the
passenger has no remedy against him, while the carrier usually has. It is but logical, therefore, that the carrier, while not in insurer of the safety
of his passengers, should nevertheless be held to answer for the flaws of his equipment if such flaws were at all discoverable. Thus Hannen, J.,
in Francis vs. Cockrell, LR 5 Q. B. 184, said:
In the ordinary course of things, the passenger does not know whether the carrier has himself manufactured the means of carriage, or
contracted with someone else for its manufacture. If the carrier has contracted with someone else the passenger does not usually know
who that person is, and in no case has he any share in the selection. The liability of the manufacturer must depend on the terms of the
contract between him and the carrier, of which the passenger has no knowledge, and over which he can have no control, while the
carrier can introduce what stipulations and take what securities he may think proper. For injury resulting to the carrier himself by the
manufacturer's want of care, the carrier has a remedy against the manufacturer; but the passenger has no remedy against the
manufacturer for damage arising from a mere breach of contract with the carrier . . . . Unless, therefore, the presumed intention of the
parties be that the passenger should, in the event of his being injured by the breach of the manufacturer's contract, of which he has no
knowledge, be without remedy, the only way in which effect can be given to a different intention is by supposing that the carrier is to be
responsible to the passenger, and to look for his indemnity to the person whom he selected and whose breach of contract has caused
the mischief. (29 ALR 789)
And in the leading case of Morgan vs. Chesapeake & O. R. Co. 15 LRA (NS) 790, 16 Ann. Cas. 608, the Court, in holding the carrier responsible
for damages caused by the fracture of a car axle, due to a "sand hole" in the course of moulding the axle, made the following observations.
The carrier, in consideration of certain well-known and highly valuable rights granted to it by the public, undertakes certain duties
toward the public, among them being to provide itself with suitable and safe cars and vehicles in which carry the traveling public. There
is no such duty on the manufacturer of the cars. There is no reciprocal legal relation between him and the public in this respect. When

7|TRANSPOfulltext(Session4)
 the carrier elects to have another build its cars, it ought not to be absolved by that facts from its duty to the public to furnish safe cars.
The carrier cannot lessen its responsibility by shifting its undertaking to another's shoulders. Its duty to furnish safe cars is side by side
with its duty to furnish safe track, and to operate them in a safe manner. None of its duties in these respects can be sublet so as to
relieve it from the full measure primarily exacted of it by law. The carrier selects the manufacturer of its cars, if it does not itself
construct them, precisely as it does those who grade its road, and lay its tracks, and operate its trains. That it does not exercise control
over the former is because it elects to place that matter in the hands of the manufacturer, instead of retaining the supervising control
itself. The manufacturer should be deemed the agent of the carrier as respects its duty to select the material out of which its cars and
locomotive are built, as well as in inspecting each step of their construction. If there be tests known to the crafts of car builders, or iron
moulders, by which such defects might be discovered before the part was incorporated into the car, then the failure of the manufacturer
to make the test will be deemed a failure by the carrier to make it. This is not a vicarious responsibility. It extends, as the necessity of
this business demands, the rule of respondeat superior to a situation which falls clearly within its scope and spirit. Where an injury is
inflicted upon a passenger by the breaking or wrecking of a part of the train on which he is riding, it is presumably the result of
negligence at some point by the carrier. As stated by Judge Story, in Story on Bailments, sec. 601a: "When the injury or damage
happens to the passenger by the breaking down or overturning of the coach, or by any other accident occurring on the ground, the
presumption prima facie is that it occurred by the negligence of the coachmen, and onus probandi is on the proprietors of the coach to
establish that there has been no negligence whatever, and that the damage or injury has been occasioned by inevitable casualty, or by
some cause which human care and foresight could not prevent; for the law will, in tenderness to human life and limb, hold the
proprietors liable for the slightest negligence, and will compel them to repel by satisfactory proofs every imputation thereof." When the
passenger has proved his injury as the result of a breakage in the car or the wrecking of the train on which he was being carried,
whether the defect was in the particular car in which he was riding or not, the burden is then cast upon the carrier to show that it was
due to a cause or causes which the exercise of the utmost human skill and foresight could not prevent. And the carrier in this
connection must show, if the accident was due to a latent defect in the material or construction of the car, that not only could it not
have discovered the defect by the exercise of such care, but that the builders could not by the exercise of the same care have
discovered the defect or foreseen the result. This rule applies the same whether the defective car belonged to the carrier or not.
In the case now before us, the record is to the effect that the only test applied to the steering knuckle in question was a purely visual inspection
every thirty days, to see if any cracks developed. It nowhere appears that either the manufacturer or the carrier at any time tested the steering
knuckle to ascertain whether its strength was up to standard, or that it had no hidden flaws would impair that strength. And yet the carrier must
have been aware of the critical importance of the knuckle's resistance; that its failure or breakage would result in loss of balance and steering
control of the bus, with disastrous effects upon the passengers. No argument is required to establish that a visual inspection could not directly
determine whether the resistance of this critically important part was not impaired. Nor has it been shown that the weakening of the knuckle was
impossible to detect by any known test; on the contrary, there is testimony that it could be detected. We are satisfied that the periodical visual
inspection of the steering knuckle as practiced by the carrier's agents did not measure up to the required legal standard of "utmost diligence of
very cautious persons" — "as far as human care and foresight can provide", and therefore that the knuckle's failure can not be considered a
fortuitous event that exempts the carrier from responsibility (Lasam vs. Smith, 45 Phil. 657; Son vs. Cebu Autobus Co., 94 Phil., 892.)
It may be impracticable, as appellee argues, to require of carriers to test the strength of each and every part of its vehicles before each trip; but
we are of the opinion that a due regard for the carrier's obligations toward the traveling public demands adequate periodical tests to determine
the condition and strength of those vehicle portions the failure of which may endanger the safe of the passengers.
As to the damages suffered by the plaintiffs, we agree with appellee that no allowance may be made for moral damages, since under Article 2220
of the new Civil Code, in case of suits for breach of contract, moral damages are recoverable only where the defendant acted fraudulently or in
bad faith, and there is none in the case before us. As to exemplary damages, the carrier has not acted in a "wanton, fraudulent, reckless,
oppressive or malevolent manner" to warrant their award. Hence, we believe that for the minor Precillano Necesito (G. R. No. L-10605), an
indemnity of P5,000 would be adequate for the abrasions and fracture of the femur, including medical and hospitalization expenses, there being
no evidence that there would be any permanent impairment of his faculties or bodily functions, beyond the lack of anatomical symmetry. As for
the death of Severina Garces (G. R. No. L-10606) who was 33 years old, with seven minor children when she died, her heirs are obviously entitled
to indemnity not only for the incidental loses of property (cash, wrist watch and merchandise) worth P394 that she carried at the time of the
accident and for the burial expenses of P490, but also for the loss of her earnings (shown to average P120 a month) and for the deprivation of her
protection, guidance and company. In our judgment, an award of P15,000 would be adequate (cf Alcantara vs. Surro, 49 Off. Gaz. 2769; 93 Phil.,
472).
The low income of the plaintiffs-appellants makes an award for attorney's fees just and equitable (Civil Code, Art. 2208, par. 11). Considering that
he two cases filed were tried jointly, a fee of P3,500 would be reasonable.
In view of the foregoing, the decision appealed from is reversed, and the defendants-appellees are sentenced to indemnify the plaintiffs-
appellants in the following amounts: P5,000 to Precillano Necesito, and P15,000 to the heirs of the deceased Severina Garces, plus P3,500 by way
of attorney's fees and litigation expenses. Costs against defendants-appellees. So ordered.

R E S O L U T I O N (Sep 11, 1958)

REYES, J. B. L., J.:
Defendants-appellees have Submitted a motion asking this Court to reconsider its decision of June 30, 1958, and that the same be modified with
respect to (1) its holding the carrier liable for the breakage of the steering knuckle that caused the autobus No. 199 to overturn, whereby the
passengers riding in it were injured; (2) the damages awarded, that appellees argue to be excessive; and (3) the award of attorneys' fees.
(1) The rule prevailing in this jurisdiction as established in previous decisions of this Court, cited in our main opinion, is that a carrier is liable to
its passengers for damages caused by mechanical defects of the conveyance. As early as 1924, in Lasam vs. Smith, 45 Phil. 659 this Court ruled:
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 caso fortuito.
And in Son vs. Cebu Autobus Company, 94 Phil., 892, this Court held a common carrier liable in damages to passenger for injuries cause by an
accident due to the breakage of a faulty drag-link spring.
It can be seen that while the courts of the United States are at variance on the question of a carrier's liability for latent mechanical defects, the
rule in this jurisdiction has been consistent in holding the carrier responsible. This Court has quoted from American and English decisions, not
because it felt bound to follow the same, but merely in approval of the rationale of the rule as expressed therein, since the previous Philippine
cases did not enlarge on the ideas underlying the doctrine established thereby.
The new evidence sought to be introduced do not warrant the grant of a new trial, since the proposed proof available when the original trial was
held. Said evidence is not newly discovered.
(2) With regard to the indemnity awarded to the child Precilliano Necesito, the injuries suffered by him are incapable of accurate pecuniary
estimation, particularly because the full effect of the injury is not ascertainable immediately. This uncertainty, however, does not preclude the
right to an indemnity, since the injury is patent and not denied (Civil Code, Art. 2224). The reasons behind this award are expounded by the Code
Commission in its report:
There are cases where from the nature of the case, definite proof of pecuniary loss cannot be offered, although the court is convinced that
there has been such loss. For instance, injury to one's commercial credit or to the goodwill of a business firm is often hard to show with
certainty in terms of money. Should damages be denied for that reason? The judge should be empowered to calculate moderate damages
in such cases, rather than that the plaintiff should suffer, without redress, from the defendant's wrongful act." (Report of the Code
Commission, p. 75)
In awarding to the heirs of the deceased Severina Garces an indemnity for the loss of her "guidance, protection and company," although it is but
moral damage, the Court took into account that the case of a passenger who dies in the course of an accident, due to the carrier's negligence
constitutes an exception to the general rule. While, as pointed out in the main decision, under Article 2220 of the new Civil Code there can be no
recovery of moral damages for a breach of contract in the absence of fraud malice or bad faith, the case of a violation of the contract of carriage
leading to a passenger's death escapes this general rule, in view of Article 1764 in connection with Article 2206, No. 3 of the new Civil Code.
ART. 1764. Damages in cases comprised in this Section shall be awarded in accordance with Title XVIII of this Book, concerning Damages.
Article 2206 shall also apply to the death of a passenger caused by the breach of contract by a comman carrier. ART. 2206. . .
(3) The spouse, legitimate and eligimate descendants and ascendants of the deceased may demand moral damages for mental anguish by
reason of the death of the deceased.
Being a special rule limited to cases of fatal injuries, these articles prevail over the general rule of Art. 2220. Special provisions control general
ones (Lichauco & Co. vs. Apostol, 44 Phil. 138; Sancio vs. Lizarraga, 55 Phil. 601).

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It thus appears that under the new Civil Code, in case of accident due to a carrier's negligence, the heirs of a deceased passenger may recover
moral damages, even though a passenger who is injured, but manages to survive, is not entitled to them. There is, therefore, no conflict between
our main decision in the instant case and that of Cachero vs. Manila Yellow Taxi Cab Co., 101 Phil., 523, where the passenger suffered injuries,
but did not lose his life.
(3) In the Cachero case this Court disallowed attorneys' fees to the injured plaintiff because the litigation arose out of his exaggerated and
unreasonable deeds for an indemnity that was out of proportion with the compensatory damages to which he was solely entitled. But in the
present case, plaintiffs' original claims can not be deemed a priori wholly unreasonable, since they had a right to indemnity for moral damages
besides compensatory ones, and moral damages are not determined by set and invariable bounds.
Neither does the fact that the contract between the passengers and their counsel was on a contingent basis affect the former's right to counsel
fees. As pointed out for appellants, the Court's award is an party and not to counsel. A litigant who improvidently stipulate higher counsel fees
than those to which he is lawfully entitled, does not for that reason earn the right to a larger indemnity; but, by parity of reasoning, he should not
be deprived of counsel fees if by law he is entitled to recover them.
We find no reason to alter the main decision heretofore rendered. Ultimately, the position taken by this Court is that a common carrier's contract
is not to be regarded as a game of chance wherein the passenger stakes his limb and life against the carrier's property and profits.
Wherefore, the motion for reconsideration is hereby denied. So ordered.

LA MALLORCA VS DE JESUS
La Mallorca and Pampanga Bus Company, Inc., commonly known as La Mallorca-Pambusco, filed this appeal by certiorari from the decision of the
Court of Appeals which affirmed that rendered by the Court of First Instance of Bulacan in its civil case No. 2100, entitled "Valentin de Jesus and
Manolo Tolentino vs. La Mallorca-Pambusco." The court a quo sentenced the defendant, now petitioner, "to pay to plaintiffs the amount of
P2,132.50 for actual damages; P14,400.00 as compensatory damages; P10,000.00 to each plaintiff by way of moral damages; and P3,000.00 as
counsel fees."
Two errors are attributed to the appellate Court: (1) "in sustaining the decision (of the court a quo) holding that the petitioners were liable for the
accident which was caused by a blow-out of one of the tires of the bus and in not considering the same as caso fortuito," and (2) in holding
petitioners liable for moral damages.
The suit arose by reason of the death of Lolita de Jesus, 20-year old daughter of Valentin de Jesus and wife of Manolo Tolentino, in a head-on
collision between petitioner's bus, on which she was a passenger, and a freight truck traveling in the opposite direction, in a barrio in Marilao
Bulacan, in the morning of October 8, 1959. The immediate cause of the collision was the fact that the driver of the bus lost control of the wheel
when its left front tire suddenly exploded.
Petitioner maintains that a tire blow-out is a fortuitous event and gives rise to no liability for negligence, citing the rulings of the Court of Appeals
in Rodriguez vs. Red Line Transportation Co., CA-G.R. No. 8136, December 29, 1954, and People vs. Palapad, CA-G.R. No. 18480, June 27, 1958.
These rulings, however, not only are not not binding on this Court but were based on considerations quite different from those that obtain in the
at bar. The appellate Court there made no findings of any specified acts of negligence on the part of the defendants and confined itself to the
question of whether or not a tire blow-out, by itself alone and without a showing as to the causative factors, would generate liability. In the
present case, the cause of the blow-out was known. The inner tube of the left front tire, according to petitioner's own evidence and as found by
the Court of Appeals "was pressed between the inner circle of the left wheel and the rim which had slipped out of the wheel." This was, said Court
correctly held, a mechanical defect of the conveyance or a fault in its equipment which was easily discoverable if the bus had been subjected to a
more thorough, or rigid check-up before it took to the road that morning.
Then again both the trial court and the Court of Appeals found as a fact that the bus was running quite fast immediately before the accident.
Considering that the tire which exploded was not new — petitioner describes it as "hindi masyadong kalbo," or not so very worn out — the plea
of caso fortuito cannot be entertained.1äwphï1.ñët
The second issue raised by petitioner is already a settled one. In this jurisdiction moral damages are recoverable by reason of the death of a
passenger caused by the breach of contract of a common carrier, as provided in Article 1764, in relation to Article 2206, of the Civil Code. These
articles have been applied by this Court in a number of cases, among them Necesito, etc. vs. Paras, et al., L-10605-06, June 30, 1958; Mercado
vs. Lira, L-13328-29, Sept. 29, 1961; Villa-Rey Transit vs. Bello, L-18957, April 23, 1963.
Wherefore, the judgment appealed from is affirmed, with costs against petitioners.

LANDINGIN VS PANTRANCO
Direct appeal on a question of law from the portion of the judgment of the Court of First Instance of Manila ordering the defendants Pangasinan
Transportation Co. (PANTRANCO) and Marcelo Oligan to pay the plaintiffs in Civil Case No. D-1468
(L-28014) the sum of P6,500.00, and the plaintiffs in Civil Case No. 1470 (L-28015) the sum of P3,500.00.
The complaints in said Civil Cases Nos. D-1468 and D-1470 were filed by the spouses Marcelo Landingin and Racquel Bocasas, and the spouses
Pedro Garcia and Eufracia Landingin, respectively, for damages allegedly suffered by them in connection with the death of their respective
daughter, Leonila Landingin and Estrella Garcia, due to the alleged negligence of the defendants and/or breach of contract of carriage. In their
complaints, plaintiffs averred, among others, that in the morning of April 20, 1963, their above-mentioned daughters were among the passengers
in the bus driven by defendant Marcelo Oligan and owned and operated by defendant PANTRANCO on an excursion trip from Dagupan City to
Baguio City and back, that the bus was open on one side and enclosed on the other, in gross violation of the rules of the Public Service
Commission; that defendant PANTRANCO acted with negligence, fraud and bad faith in pretending to have previously secured a special permit for
the trip when in truth it had not done so; that upon reaching an uphill point at Camp 8, Kennon Road, Baguio City, on the onward trip, defendant
driver, through utter lack of foresight, experience and driving knowledge, caused the bus to stall and stop for a few moments; that through the
said defendant's fault and mishandling, the motor ceased to function, causing the bus to slide back unchecked; that when the said defendant
suddenly swerved and steered the bus toward the mountainside, Leonila and Estrella, together with several other passengers, were thrown out of
the bus through its open side unto the road, suffering serious injuries as a result of which Leonila and Estrella died at the hospital and the same
day; and that in connection with the incident, defendant driver had been charged with and convicted of multiple homicide and multiple slight
physical injuries on account of the death of Leonila and Estrella and of the injuries suffered by four others, although it may be said, by way of
parenthesis, that this case is now pending appeal in a higher court. The plaintiffs prayed for awards of moral, actual and exemplary damages in
the total sum of P40,000.00 in Civil Case No. D-1468, and in the total sum of P25,000.00 in Civil Case No. D-1470 as well as attorney's fees in
the amounts of P5,000.00 and P4,000.00, respectively.
Defendants filed a joint answer to each of the two complaints alleging, among others, that at the time of the accident, defendant driver was
driving the bus at, the slow speed of about 10 kilometers per hour; that while the said defendant was steering his bus toward the mountainside
after hearing a sound coming from under the rear end of the bus, Leonila and Estrella recklessly, and in disobedience to his shouted warnings and
advice, jumped out of the bus causing their heads to hit the road or pavement; that the bus was then being driven with extraordinary care,
prudence and diligence; that defendant PANTRANCO observed the care and diligence of a good father of a family to prevent the accident as well
as in the selection and supervision of its employees, particularly of defendant driver; and that the decision convicting the said defendant was not
yet final, the same having been appealed to the Court of Appeals where it was still pending.
By agreement of the parties, the two cases were tried jointly. On October 17, 1966, the court a quo rendered its decision therein in which it made
the following findings; that upon reaching the fatal spot at Camp 8, a sudden snapping or breaking of metal below the floor of the bus was heard,
and the bus abruptly stopped, rolling back a few moments later; that as a result, some of the passengers jumped out of the bus, while others
stepped down; that defendant driver maneuvered the bus safely to and against the side of the mountain where its rear end was made to rest,
ensuring the safety of the many passengers still inside the bus; that while defendant driver as steering the bus towards the mountainside, he
advised the passengers not to jump, but to remain seated; that Leonila and Estrella were not thrown out of the bus, but that they panicked and
jumped out; that the malfunctioning of the motor resulted from the breakage of the cross-joint; that there was no negligence on the part of either
of the defendants; that only the day before, the said cross-joint was duly inspected and found to be in order; and that defendant PANTRANCO had
exercised the requisite care in the selection and supervision of its employees, including the defendant driver. The court concluded that "the
accident was caused by a fortuitous event or an act of God brought about by some extra-ordinary circumstances independent of the will of the
Pantranco or its employees."
One would wonder why in the face of such factual findings and conclusion of the trial court, the defendants, instead of the plaintiffs, should come
to this Court on appeal. The answer lies in the dispositive portion of the decision, to wit:
IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court hereby renders judgment: (a) Absolving the defendants from any liability
on account of negligence on their part and therefore dismissing the complaints in these two cases; (b) However, as stated above, the
Court hereby orders the defendant Pantranco to pay to the plaintiffs spouses Marcelo Tandingin and Racquel Bocasas in Civil Case No.

9|TRANSPOfulltext(Session4)
 D-1468 the amount of P6,500.00; and the amount of P3,500.00 to the spouses Pedro Garcia and Eufracia Landingin in Civil Case No. D-
1470, not in payment of liability because of any negligence on the part of the defendants but as an expression of sympathy and
goodwill. (Emphasis supplied.)
As to what impelled the court below to include item (b) in the dispositive portion of its decision, can be gathered from the penultimate paragraph
of the decision, which reads:
However, there is evidence to the effect that an offer of P8,500.00 in the instant cases without any admission of fault or negligence had
been made by the defendant Pantranco and that actually in Civil Case No. D-1469 for the death of Pacita Descalso, the other deceased
passenger of the bus in question, the heirs of the decease received P3,000.00 in addition to hospital and medical bills and the coffin of
the deceased for the dismissal of the said case without Pantranco accepting liability. There was as a matter of fact during the pre-trial of
these two cases a continuing offer of settlement on the part of the defendant Pantranco without accepting any liability for such damages,
and the Court understood that the Pantranco would be willing still to pay said amounts even if these cases were to be tried on the merits.
It is well-known that the defendant Pantranco is zealous in the preservation of its public relations. In the spirit therefore of the offer of
the defendant Pantranco aforesaid, to assuage the feelings of the herein plaintiffs an award of P6,500.00 for the spouses Marcelo
Landingin and Racquel Bocasas in Civil Case No. D-1468 whose daughter Leonila was, when she died, a third-year Commerce student at
the Far Eastern University, and P3,500.00 for the spouses Pedro Garcia and Eufracia Landingin in Civil Case No. D-1470 whose daughter
Estrella was in the fourth year High at the Dagupan Colleges when she died, is hereby made in their favor. This award is in addition to
what Pantranco might have spent to help the parents of both deceased after the accident.
Defendants-appellants complain that having found them to be absolutely free from fault or negligence, and having in fact dismissed the
complaints against them, the court should not have ordered them to assume any pecuniary liability. There would be merit in his
argument but for the fact that defendant-appellant PANTRANCO was guilty of breach of contract of carriage. It will be noted that in each
of the two complaints it is averred that two buses including the one in which the two deceased girls were riding, were hired to transport
the excursionist passengers from Dagupan City to Baguio City, and return, and that the said two passengers did not reach destination
safely.
As a common carrier, defendant-appellant PANTRANCO was duty 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." (Article 1755, Civil Code.) Did
defendant-appellant PANTRANCO measure up to the degree of care and foresight required it under the circumstances? We think not. The court
below found that the cross-joint of the bus in which the deceased were riding broke, which caused the malfunctioning of the motor, which in turn
resulted in panic among some of the passengers. This is a finding of fact which this Court may not disturb. We are of the opinion, however, that
the lower court's conclusion drawn from that fact, i.e., that "the accident was caused by a fortuitous event or an act of God brought about by
some extraordinary circumstances independent of the will of the Pantranco or its employees," is in large measure conjectural and speculative, and
was arrived at without due regard to all the circumstances, as required by Article 1755. In Lasam vs. Smith (45 Phil. 660), this Court held that an
accident caused by defects in the automobile is not a caso fortuito. The rationale of the carrier's liability is the fact that "the passenger has neither
the choice nor control over the carrier in the selection and use of the equipment and appliances in use by the carrier." (Necesito, et al. vs. Paras,
et al., 104 Phil. 75.)
When a passenger dies or is injured, the presumption is that the common carrier is at fault or that it acted negligently (Article 1756). This
presumption is only rebutted by proof on the carrier's part that it observed the "extraordinary diligence" required in Article 1733 and the "utmost
diligence of very cautious persons" required in Article 1755 (Article 1756). In the instant case it appears that the court be low considered the
presumption rebutted on the strength of defendants-appellants' evidence that only the day before the incident, the crossjoint in question was duly
inspected and found to be in order. It does not appear, however, that the carrier gave due regard for all the circumstances in connection with the
said inspection. The bus in which the deceased were riding was heavily laden with passengers, and it would be traversing mountainous, circuitous
and ascending roads. Thus the entire bus, including its mechanical parts, would naturally be taxed more heavily than it would be under ordinary
circumstances. The mere fact that the bus was inspected only recently and found to be in order would not exempt the carrier from liability unless
it is shown that the particular circumstances under which the bus would travel were also considered.
In the premises, it was error for the trial court to dismiss the complaints. The awards made by the court should be considered in the concept of
damages for breach of contracts of carriage.
IN VIEW OF THE FOREGOING CONSIDERATIONS, the judgment appealed from is modified as indicated above, and defendant-appellant
PANTRANCO is ordered to pay to plaintiffs-appellees the amounts stated in the judgment appealed from, as damages for breach of contracts, with
interest thereon at the legal rate from the date of the filing of the complaints. Costs against defendant-appellant PANTRANCO.

JUNTILLA VS FONTANAR
This is a petition for review, on questions of law, of the decision of the Court of First Instance of Cebu which reversed the decision of the City
Court of Cebu and exonerated the respondents from any liability arising from a vehicular accident.
The background facts which led to the filing of a complaint for breach of contract and damages against the respondents are summarized by the
Court of First Instance of Cebu as follows:
The facts established after trial show that the plaintiff was a passenger of the public utility jeepney bearing plate No. PUJ-71-7 on the course
of the trip from Danao City to Cebu City. The jeepney was driven by defendant Berfol Camoro. It was registered under the franchise of
defendant Clemente Fontanar but was actually owned by defendant Fernando Banzon. When the jeepney reached Mandaue City, the r ight
rear tire exploded causing the vehicle to turn turtle. In the process, the plaintiff who was sitting at the front seat was thrown out of the
vehicle. Upon landing on the ground, the plaintiff momentarily lost consciousness. When he came to his senses, he found that he had a
lacerated wound on his right palm. Aside from this, he suffered injuries on his left arm, right thigh and on his back. (Exh. "D"). Because of
his shock and injuries, he went back to Danao City but on the way, he discovered that his "Omega" wrist watch 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. In spite of the efforts of his father-in-law, the wrist watch, which he bought
for P 852.70 (Exh. "B") could no longer be found.
xxx xxx xxx
Petitioner Roberto Juntilla filed Civil Case No. R-17378 for breach of contract with damages before the City Court of Cebu City, Branch I against
Clemente Fontanar, Fernando Banzon and Berfol Camoro.
The respondents filed their answer, alleging inter alia that the accident that caused losses to the petitioner was beyond the control of the
respondents taking into account that the tire that exploded was newly bought and was only slightly used at the time it blew up.
After trial, Judge Romulo R. Senining of the Civil Court of Cebu rendered judgment in favor of the petitioner and against the respondents. The
dispositive portion of the decision reads:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants and the latter are hereby ordered, jointly
and severally, to pay the plaintiff the sum of P750.00 as reimbursement for the lost Omega wrist watch, the sum of P246.64 as unrealized
salary of the plaintiff from his employer, the further sum of P100.00 for the doctor's fees and medicine, an additional sum of P300.00 for
attorney's fees and the costs.
The respondents appealed to the Court of First Instance of Cebu, Branch XIV.
Judge Leonardo B. Canares reversed the judgment of the City Court of Cebu upon a finding that the accident in question was due to a fortuitous
event. The dispositive portion of the decision reads:
WHEREFORE, judgment is hereby rendered exonerating the defendants from any liability to the plaintiff without pronouncement as to
costs.
A motion for reconsideration was denied by the Court of First Instance.
The petitioner raises the following alleged errors committed by the Court of First Instance of Cebu on appeal—
a. The Honorable Court below committed grave abuse of discretion in failing to take cognizance of the fact that defendants and/or their
employee failed to exercise "utmost and/or extraordinary diligence" required of common carriers contemplated under Art. 1755 of the Civil
Code of the Philippines.
b. The Honorable Court below committed grave abuse of discretion by deciding the case contrary to the doctrine laid down by the
Honorable Supreme Court in the case of Necesito et al. v. Paras, et al.
We find the petition impressed with merit.
The City Court and the Court of First Instance of Cebu found that the right rear tire of the passenger jeepney in which the petitioner was riding
blew up causing the vehicle to fall on its side. The petitioner questions the conclusion of the respondent court drawn from this finding of fact.

10 | T R A N S P O f u l l t e x t ( S e s s i o n 4 )
The Court of First Instance of Cebu erred when it absolved the carrier from any liability upon a finding that the tire blow out is a fortuitous event.
The Court of First Instance of Cebu ruled that:
After reviewing the records of the case, this Court finds that the accident in question was due to a fortuitous event. A tire blow-out, such
as what happened in the case at bar, is an inevitable accident that exempts the carrier from liability, there being absence of a showing
that there was misconduct or negligence on the part of the operator in the operation and maintenance of the vehicle involved. The fact
that the right rear tire exploded, despite being brand new, constitutes a clear case of caso fortuito which can be a proper basis for
exonerating the defendants from liability. ...
The Court of First Instance relied on the ruling of the Court of Appeals in Rodriguez v. Red Line Transportation Co., CA G.R. No. 8136, December
29, 1954, where the Court of Appeals ruled that:
A tire blow-out does not constitute negligence unless the tire was already old and should not have been used at all. Indeed, this would be
a clear case of fortuitous event.
The foregoing conclusions of the Court of First Instance of Cebu are based on a misapprehension of overall facts from which a conclusion should
be drawn. The reliance of the Court of First Instance on the Rodriguez case is not in order. In La Mallorca and Pampanga Bus Co. v. De Jesus, et
al. (17 SCRA 23), we held that:
Petitioner maintains that a tire blow-out is a fortuitous event and gives rise to no liability for negligence, citing the rulings of the Court of
Appeals in Rodriguez v. Red Line Transportation Co., CA G.R. No. 8136, December 29, 1954, and People v. Palapad, CA-G.R. No. 18480,
June 27, 1958. These rulings, however, not only are not binding on this Court but were based on considerations quite different from
those that obtain in the case at bar. The appellate court there made no findings of any specific acts of negligence on the part of the
defendants and confined itself to the question of whether or not a tire blow-out, by itself alone and without a showing as to the causative
factors, would generate liability. ...
In the case at bar, there are specific acts of negligence on the part of the respondents. The records show that the passenger jeepney turned turtle
and jumped into a ditch immediately after its right rear tire exploded. The evidence shows that the passenger jeepney was running at a very fast
speed before the accident. We agree with the observation of the petitioner that a public utility jeep running at a regular and safe speed will not
jump into a ditch when its right rear tire blows up. There is also evidence to show that the passenger jeepney was overloaded at the time of the
accident. The petitioner stated that there were 3 passengers in the front seat and fourteen (14) passengers in the rear.
While it may be true that the tire that blew-up was still good because the grooves of the tire were still visible, this fact alone does not make the
explosion of the tire a fortuitous event. No evidence was presented to show that the accident was due to adverse road conditions or that
precautions were taken by the jeepney driver to compensate for any conditions liable to cause accidents. The sudden blowing-up, therefore, could
have been caused by too much air pressure injected into the tire coupled by the fact that the jeepney was overloaded and speeding at the time of
the accident.
In Lasam v. Smith (45 Phil. 657), we laid down the following essential characteristics of caso fortuito:
... 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 Encyclopedia Juridica Espanola, 309.)
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. Relative to the contingency of mechanical defects, we held in Necesito, v. Paras, (104 Phil. 75), that:
... The preponderance of authority is in favor of the doctrine that a passenger is entitled to recover damages from a carrier for an injury
resulting from a defect in an appliance purchased from a manufacturer, whenever it appears that the defect would have been discovered
by the carrier if it had exercised the degree of care which under the circumstances was incumbent upon it, with regard to inspection and
application of the necessary tests. For the purposes of this doctrine, the manufacturer is considered as being in law the agent or servant
of the carrier, as far as regards the work of constructing the appliance. According to this theory, the good repute of the manufacturer will
not relieve the carrier from liability' (10 Am. Jur. 205, s, 1324; see also Pennsylvania R. Co. v. Roy, 102 U.S. 451; 20 L. Ed. 141;
Southern R. Co. v. Hussey, 74 ALR 1172; 42 Fed. 2d 70; and Ed Note, 29 ALR 788.: Ann. Cas. 1916E 929).
The rationale of the carrier's liability is the fact that the passenger has neither choice nor control over the carrier in the selection and use
of the equipment and appliances in use by the carrier. Having no privity whatever with the manufacturer or vendor of the defective
equipment, the passenger has no remedy against him, while the carrier usually has. It is but logical, therefore, that the carrier, while not
an insurer of the safety of his passengers, should nevertheless be held to answer for the flaws of his equipment if such flaws were at all
discoverable. ...
It is sufficient to reiterate that 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.
The respondents likewise argue that the petitioner cannot recover any amount for failure to prove such damages during the trial. The respondents
submit that if the petitioner was really injured, why was he treated in Danao City and not in Mandaue City where the accident took place. The
respondents argue that the doctor who issued the medical certificate was not presented during the trial, and hence not cross-examined. The
respondents also claim that the petitioner was not wearing any wrist watch during the accident.
It should be noted that the City Court of Cebu found that the petitioner had a lacerated wound on his right palm aside from injuries on his left
arm, right thigh and on his back, and that on his way back to Danao City, he discovered that his "Omega" wrist watch was lost. These are findings
of facts of the City Court of Cebu which we find no reason to disturb. More so when we consider the fact that the Court of First Instance of Cebu
impliedly concurred in these matters when it confined itself to the question of whether or not the tire blow out was a fortuitous event.
WHEREFORE, the decision of the Court of First Instance of Cebu, Branch IV appealed from is hereby REVERSED and SET ASIDE, and the decision
of the City Court of Cebu, Branch I is REINSTATED, with the modification that the damages shall earn interest at 12% per annum and the
attorney's fees are increased to SIX HUNDRED PESOS (P600.00). Damages shall earn interests from January 27, 1975.

GATCHALIAN VS DELIM
At noon time on 11 July 1973, petitioner Reynalda Gatchalian boarded, as a paying passenger, respondent's "Thames" mini-bus at a point in San
Eugenio, Aringay, La Union, bound for Bauang, of the same province. On the way, while the bus was running along the highway in Barrio Payocpoc,
Bauang, La Union, "a snapping sound" was suddenly heard at one part of the bus and, shortly thereafter, the vehicle bumped a cement flower pot
on the side of the road, went off the road, turned turtle and fell into aditch. Several passengers, including petitioner Gatchalian, were injured. They
were promptly taken to Bethany Hospital at San Fernando, La Union, for medical treatment. Upon medical examination, petitioner was found to
have sustained physical injuries on the leg, arm and forehead, specifically described as follows: lacerated wound, forehead; abrasion, elbow, left;
abrasion, knee, left; abrasion, lateral surface, leg, left. [1]
On 14 July 1973, while injured passengers were confined in the hospital, Mrs. Adela Delim, wife of respondent, visited them and later paid for their
hospitalization and medical expenses. She also gave petitioner P12.00 with which to pay her transportation expense in going home from the hospital.
However, before Mrs. Delim left, she had the injured passengers, including petitioner, sign an already prepared Joint Affidavit which stated, among
other things:
"That we were passengers of Thames with Plate No. 52-222 PUJ Phil. 73 and victims after the said Thames met an accident at Barrio Payocpoc
Norte, Bauang, La Union while passing through the National Highway No. 3;
That after a thorough investigation the said Thames met the accident due to mechanical defect and went off the road and turned turtle to the east
canal of the road into a creek causing physical injuries to us:
That we are no longer interested to file a complaint, criminal or civil against the said driver and owner of the said Thames, because it was an
accident and the said driver and owner of the said Thames have gone to the extent of helping us to be treated upon our injuries. (Underscoring
supplied)
Notwithstanding this document, petitioner Gatchalian filed with the then Court of First Instance of La Union an action extra contractu to recover
compensatory and moral damages. She alleged in the complaint that her injuries sustained from the vehicular mishap had left her with a conspicuous
white scar measuring 1 by ½ inches on the forehead, generating mental suffering and an inferiority complex on her part; and that as a result, she
had to retire in seclusion and stay away from her friends. She also alleged that the scar diminished her facial beauty and deprived her of opportunities

11 | T R A N S P O f u l l t e x t ( S e s s i o n 4 )
for employment. She prayed for an award of: P10,000.00 for loss of employment and other opportunities; P10,000.00 for the cost of plastic surgery
for removal of the scar on her forehead; P30,000.00 for moral damages; and P1,000.00 as attorney's fees.
In defense, respondent averred that the vehicular mishap was due to force majeure, and that petitioner had already been paid and moreover had
waived any right to institute any action against him (private respondent) and his driver, when petitioner Gatchalian signed the Joint Affidavit on 14
July 1973.
After trial, the trial court dismissed the complaint upon the ground that when petitioner Gatchalian signed the Joint Affidavit, she relinquished any
right of action (whether criminal or civil) that she may have had against respondent and the driver of the mini-bus.
On appeal by petitioner, the Court of Appeals reversed the trial court's conclusion that there had been a valid waiver, but affirmed the dismissal of
the case by denying petitioner's claim for damages:
"We are not in accord, therefore, of (sic) the ground of the trial court's dismissal of the complaint, although we conform to the trial court's disposition
of the case -- its dismissal.
IN VIEW OF THE FOREGOING considerations, there being no error committed by the lower court in dismissing the plaintiff-appellant's complaint,
the judgment of dismissal is hereby affirmed.
Without special pronouncement as to costs. SO ORDERED.[3]
In the present Petition for Review filed in forma pauperis, petitioner assails the decision of the Court of Appeals and asks this Court to award her
actual or compensatory damages as well as moral damages.
We agree with the majority of the Court of Appeals who held that no valid waiver of her cause of action had been made by petitioner. The relevant
language of the Joint Affidavit may be quoted again:
"That we are no longer interested to file a complaint, criminal or civil against the said driver and owner of the said Thames, because it was an
accident and the said driver and owner of the said Thames have gone to the extent of helping us to be treated upon our injuries." (Underscoring
supplied)
A waiver, to be valid and effective, must in the first place be couched in clear and unequivocal terms which leave no doubt as to the intention
of a person to give up a right or benefit which legally pertains to him. [4] A waiver may not casually be attributed to a person when the terms thereof
do not explicitly and clearly evidence an intent to abandon a right vested in such person.
The degree of explicitness which this Court has required in purported waivers isillustrated in Yepes and Susaya v. Samar Express Transit (supra),
where the Court in reading and rejecting a purported waiver said:
"x x x It appears that before their transfer to the Leyte Provincial Hospital, appellees were asked to sign as, in fact, they signed the document
Exhibit I wherein they stated that 'in consideration of the expenses which said operator has incurred in properly giving us the proper medical
treatment, we hereby manifest our desire to waive any and all claims against the operator of the Samar Express Transit. 'x x x
xxx xxx xxx
Even a cursory examination of the document mentioned above will readily show that appellees did not actually waive their right to claim
damages from appellant for the latter's failure to comply with their contract of carriage. All that said document proves is that they expressed a
'desire' to make the waiver -- which obviously is not the same as making an actual waiver of their right. A waiver of the kind invoked by appellant
must be clear and unequivocal (Decision of the Supreme Court of Spain of July 8, 1887) -- which is not the case of the one relied upon in this
appeal." (Underscoring supplied)

If we apply the standard used in Yepes and Susaya, we would have to conclude that the terms of the Joint Affidavit in the instant case cannot be
regarded as a waiver cast in "clear and unequivocal" terms. Moreover, the circumstances under which the Joint Affidavit was s igned by petitioner
Gatchalian need to be considered. Petitioner testified that she was still reeling from the effects of the vehicular accident, having been in the hospital
for only three days, when the purported waiver in the form of the Joint Affidavit was presented to her for signing; that while reading the same, she
experienced dizziness but that, seeing the other passengers who had also suffered injuries sign the document, she too signed without bothering to
read the Joint Affidavit in its entirety. Considering these circumstances, there appears substantial doubt whether petitioner understood fully the
import of the Joint Affidavit (prepared by or at the instance of private respondent) she signed and whether she actually inte nded thereby to waive
any right of action against private respondent.
Finally, because what is involved here is the liability of a common carrier for injuries sustained by passengers in respect of whose safety a common
carrier must exercise extraordinary diligence, we must construe any such purported waiver most strictly against the common carrier. For a waiver
to be valid and effective, it must not be contrary to law, morals, public policy or good customs. [5] To uphold a supposed waiver of any right to claim
damages by an injured passenger, under circumstances like those exhibited in this case, would be to dilute and weaken the standard of extraordinary
diligence exacted by the law from common carriers and hence to render that standard unenforceable. [6] We believe such a purported waiver is
offensive to public policy.
Petitioner Gatchalian also argues that the Court of Appeals, having by majority vote held that there was no enforceable waiver of her right of action,
should have awarded her actual or compensatory and moral damages as a matter of course.
We have already noted that a duty to exercise extraordinary diligence in protecting the safety of its passengers is imposed upon a common
carrier.[7] In case of death or injuries to passengers, a statutory presumption arises that the common carrier was at fault or had acted negligently
"unless it proves that it [had] observed extraordinary diligence as prescribed in Articles 1733 and 1755".[8] In fact, because of this statutory
presumption, it has been held that a court need not even make an express finding of fault or negligence on the part of the common carrier in order
to hold it liable.[9] To overcome this presumption, the common carrier must show to the court that it had exercised extraordinary diligence to prevent
the injuries.[10] The standard of extraordinary diligence imposed upon common carriers is considerably more demanding than the standard of
ordinary diligence, i.e., the diligence of a good paterfamilias established in respect of the ordinary relations between members of society. A common
carrier is bound to carry its passengers safely "as far as human care and foresight can provide, using the utmost diligence of a very cautious person,
with due regard to all the circumstances".[11]

Thus, the question which must be addressed is whether or not private respondent has successfully proved that he had exercised extraordinary
diligence to prevent the mishap involving his mini-bus. The records before the Court are bereft of any evidence showing that respondent had
exercised the extraordinary diligence required by law. Curiously, respondent did not even attempt, during the trial before the court a quo, to prove
that he had indeed exercised the requisite extraordinary diligence. Respondent did try to exculpate himself from liability by alleging that the mishap
was the result of force majeure. But allegation is not proof and here again, respondent utterly failed to substantiate his defense of force majeure.
To exempt a common carrier from liability for death or physical injuries to passengers upon the ground of force majeure, the carrier must clearly
show not only that the efficient cause of the casualty was entirely independent of the human will, but also that it was impossible to avoid. Any
participation by the common carrier in the occurrence of the injury will defeat the defense of force majeure. In Servando v. Philippine
Steam Navigation Company,[12]the Court summed up the essential characteristics of force majeure by quoting with approval from the Enciclopedia
Juridical Española:
"Thus, where fortuitous event or force majeure is the immediate and proximate cause of the loss, the obligor is exempt from liability for non-
performance. The Partidas, the antecedent of Article 1174 of the Civil Code, defines 'caso fortuito' as '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.'
In its dissertation on the phrase 'caso fortuito' the Enciclopedia Juridical Española says: 'In 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 must be free from any participation in the aggravation of the injury
resulting to the creditor."
Upon the other hand, the record yields affirmative evidence of fault or negligence on the part of respondent common carrier. In her direct
examination, petitioner Gatchalian narrated that shortly before the vehicle went off the road and into a ditch, a "snapping sound" was suddenly
heard at one part of the bus. One of the passengers an old woman, cried out, "What happened?" ("Apay addan samet nadadaelen?"). The driver
replied, nonchalantly, "That is only normal" ("Ugali ti makina dayta"). The driver did not stop to check if anything had gone wrong with the bus.
Moreover, the driver's reply necessarily indicated that the same "snapping sound" had been heard in the bus on previous occasions. This could only
mean that the bus had not been checked physically or mechanically to determine what was causing the "snapping sound" which had occurred so
frequently that the driver had gotten accustomed to it. Such a sound is obviously alien to a motor vehicle in good operating condition, and even a
modicum of concern for life and limb of passengers dictated that the bus be checked and repaired. The obvious continued failu re of respondent to
look after the roadworthiness and safety of the bus, coupled with the driver's refusal or neglect to stop the mini-bus after he had heard once again

12 | T R A N S P O f u l l t e x t ( S e s s i o n 4 )
the "snapping sound" and the cry of alarm from one of the passengers, constituted wanton disregard of the physical safety of the passengers, and
hence gross negligence on the part of respondent and his driver.
We turn to petitioner's claim for damages. The first item in that claim relates to revenue which petitioner said she failed t o realize because of the
effects of the vehicular mishap. Petitioner maintains that on the day that the mini-bus went off the road, she was supposed to confer with the district
supervisor of public schools for a substitute teacher's job, a job which she had held off and on as a "casual employee". The Court of Appeals,
however, found that at the time of the accident, she was no longer employed in a public school since, being a casual employee and not a Civil
Service eligible, she had been laid off. Her employment as a substitute teacher was occasional and episodic, contingent upon the availability of
vacancies for substitute teachers. In view of her employment status as such, the Court of Appeals held that she could not be said to have in fact
lost any employment after and by reason of the accident. [13] Such was the factual finding of the Court of Appeals, a finding entitled to due respect
from this Court. Petitioner Gatchalian has not submitted any basis for overturning this finding of fact, and she may not be awarded damages on the
basis of speculation or conjecture.[14]

Petitioner's claim for the cost of plastic surgery for removal of the scar on her forehead, is another matter. A person is entitled to the physical
integrity of his or her body; if that integrity is violated or diminished, actual injury is suffered for which actual or compensatory damages are due
and assessable. Petitioner Gatchalian is entitled to be placed as nearly as possible in the condition that she was before the mishap. A scar, especially
one on the face of the woman, resulting from the infliction of injury upon her, is a violation of bodily integrity, giving raise to a legitimate claim for
restoration to her conditio ante. If the scar is relatively small and does not grievously disfigure the victim, the cost of surgery may be expected to
be correspondingly modest. In Araneta, et al. v. Areglado, et al.,[15] this Court awarded actual or compensatory damages for, among other things,
the surgical removal of the scar on the face of a young boy who had been injured in a vehicular collision. The Court there held:
"We agree with the appellants that the damages awarded by the lower court for the injuries suffered by Benjamin Araneta are inadequate. In
allowing not more that P1,000.00 as compensation for the 'permanent deformity and -- something like an inferiority complex' as well as for the
'pathological condition on the left side of the jaw' caused to said plaintiff, the court below overlooked the clear evidence on record that to arrest the
degenerative process taking place in the mandible and restore the injured boy to a nearly normal condition, surgical intervention was needed, for
which to doctor's charges would amount to P3,000.00, exclusive of hospitalization fees, expenses and medicines. Furthermore, the operation,
according to Dr. Diño, would probably have to be repeated in order to effectuate a complete cure, while removal of the scar on the face obviously
demanded plastic surgery.

The father's failure to submit his son to a plastic operation as soon as possible does not prove that such treatment is not called for. The damage to
the jaw and the existence of the scar in Benjamin Araneta's face are physical facts that can not be reasoned out of existence. That the injury should
be treated in order to restore him as far as possible to his original condition is undeniable. The father's delay, or even his negligence, should not be
allowed to prejudice the son who has no control over the parent's action nor impair his right to a full indemnity.
x x x Still, taking into account the necessity and cost of corrective measures to fully repair the damage; the pain suffered by the injured party; his
feelings of inferiority due to consciousness of his present deformity, as well as the voluntary character of the injury inflicted; and
further considering that a repair, however skillfully conducted, is never equivalent to the original state, we are of the opinion that the indemnity
granted by the trial court should be increased to a total of P18,000.00. (Underscoring supplied)
Petitioner estimated that the cost of having her scar surgically removed was somewhere between P10,000.00 to P15,000.00. [16] Upon the other
hand, Dr. Fe Tayao Lasam, a witness presented as an expert by petitioner, testified that the cost would probably be between P5,000.00 to
P10,000.00.[17] In view of this testimony, and the fact that a considerable amount of time has lapsed since the mishap in 1973 which may be
expected to increase not only the cost but also very probably the difficulty of removing the scar, we consider that the amoun t of P15,000.00 to
cover the cost of such plastic surgery is not unreasonable.
Turning to petitioner's claim for moral damages, the long-established rule is that moral damages may be awarded where gross negligence on the
part of the common carrier is shown.[18] Since we have earlier concluded that respondent common carrier and his driver had been grossly negligent
in connection with the bus mishap which had injured petitioner and other passengers, and recalling the aggressive maneuvers of respondent,
through his wife, to get the victims to waive their right to recover damages even as they were still hospitalized for their injuries, petitioner must be
held entitled to such moral damages. Considering the extent of pain and anxiety which petitioner must have suffered as a result of her physical
injuries including the permanent scar on her forehead, we believe that the amount of P30,000.00 would be a reasonable award. Petitioner's claim
for P1,000.00 as attorney fees is in fact even more modest. [19]
WHEREFORE, the Decision of the Court of Appeals dated 24 October 1980, as well as the decision of the then Court of First Instance of La Union
dated 4 December 1975 are hereby REVERSED and SET ASIDE. Respondent is hereby ORDERED to pay petitioner Reynalda Gatchalian the following
sums: 1) P15,000.00 as actual or compensatory damages to cover the cost of plastic surgery for the removal of the scar on pet itioner's forehead;
2) P30,000.00 as moral damages; and 3) P1,000.00 as attorney's fees, the aggregate amount to bear interest at the legal rate of 6% per annum
counting from the promulgation of this decision until full payment thereof. Costs against private respondent.

YOBIDO VS CA
In this petition for review on certiorari of the decision of the Court of Appeals, the issue is whether or not the explosion of a newly installed
tire of a passenger vehicle is a fortuitous event that exempts the carrier from liability for the death of a passenger.
On April 26, 1988, spouses Tito and Leny Tumboy and their minor children named Ardee and Jasmin, boarded at Mangagoy, Surigao del Sur,
a Yobido Liner bus bound for Davao City. Along Picop Road in Km. 17, Sta. Maria, Agusan del Sur, the left front tire of the bus exploded. The bus
fell into a ravine around three (3) feet from the road and struck a tree. The incident resulted in the death of 28-year-old Tito Tumboy and physical
injuries to other passengers.
On November 21, 1988, a complaint for breach of contract of carriage, damages and attorneys fees was filed by Leny and her children against
Alberta Yobido, the owner of the bus, and Cresencio Yobido, its driver, before the Regional Trial Court of Davao City. When the defendants therein
filed their answer to the complaint, they raised the affirmative defense of caso fortuito. They also filed a third-party complaint against Philippine
Phoenix Surety and Insurance, Inc. This third-party defendant filed an answer with compulsory counterclaim. At the pre-trial conference, the parties
agreed to a stipulation of facts.[1]
Upon a finding that the third party defendant was not liable under the insurance contract, the lower court dismissed the thir d party
complaint. No amicable settlement having been arrived at by the parties, trial on the merits ensued.
The plaintiffs asserted that violation of the contract of carriage between them and the defendants was brought about by the drivers failure to
exercise the diligence required of the carrier in transporting passengers safely to their place of destination. According to Leny Tumboy, the bus left
Mangagoy at 3:00 oclock in the afternoon. The winding road it traversed was not cemented and was wet due to the rain; it was rough with crushed
rocks. The bus which was full of passengers had cargoes on top. Since it was running fast, she cautioned the driver to slow down but he merely
stared at her through the mirror. At around 3:30 p.m., in Trento, she heard something explode and immediately, the bus fell into a ravine.
For their part, the defendants tried to establish that the accident was due to a fortuitous event. Abundio Salce, who was the bus conductor
when the incident happened, testified that the 42-seater bus was not full as there were only 32 passengers, such that he himself managed to get a
seat. He added that the bus was running at a speed of 60 to 50 and that it was going slow because of the zigzag road. He affirmed that the left
front tire that exploded was a brand new tire that he mounted on the bus on April 21, 1988 or only five (5) days before the incident. The Yobido
Liner secretary, Minerva Fernando, bought the new Goodyear tire from Davao Toyo Parts on April 20, 1988 and she was present when it was
mounted on the bus by Salce. She stated that all driver applicants in Yobido Liner underwent actual driving tests before they were employed.
Defendant Cresencio Yobido underwent such test and submitted his professional drivers license and clearances from the barangay, the fiscal and
the police.
On August 29, 1991, the lower court rendered a decision [2] dismissing the action for lack of merit. On the issue of whether or not the tire
blowout was a caso fortuito, it found that the falling of the bus to the cliff was a result of no other outside factor than the tire blow-out. It held that
the ruling in the La Mallorca and Pampanga Bus Co. v. De Jesus[3] that a tire blowout is a mechanical defect of the conveyance or a fault in its
equipment which was easily discoverable if the bus had been subjected to a more thorough or rigid check-up before it took to the road that morning
is inapplicable to this case. It reasoned out that in said case, it was found that the blowout was caused by the established fact that the inner tube
of the left front tire was pressed between the inner circle of the left wheel and the rim which had slipped out of the wheel. In this case, however,
the cause of the explosion remains a mystery until at present. As such, the court added, the tire blowout was a caso fortuito which is completely an
extraordinary circumstance independent of the will of the defendants who should be relieved of whatever liability the plaintiffs may have suffered
by reason of the explosion pursuant to Article 1174 [4] of the Civil Code.

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 Dissatisfied, the plaintiffs appealed to the Court of Appeals. They ascribed to the lower court the following errors: (a) finding that the tire
blowout was a caso fortuito; (b) failing to hold that the defendants did not exercise utmost and/or extraordinary diligence required of carriers under
Article 1755 of the Civil Code, and (c) deciding the case contrary to the ruling in Juntilla v. Fontanar,[5] and Necesito v. Paras.[6]
On August 23, 1993, the Court of Appeals rendered the Decision [7] reversing that of the lower court. It held that:
To Our mind, the explosion of the tire is not in itself a fortuitous event. The cause of the blow-out, if due to a factory defect, improper mounting,
excessive tire pressure, is not an unavoidable event. On the other hand, there may have been adverse conditions on the road that were
unforeseeable and/or inevitable, which could make the blow-out a caso fortuito. The fact that the cause of the blow-out was not known does not
relieve the carrier of liability. Owing to the statutory presumption of negligence against the carrier and its obligation to exercise the utmost
diligence of very cautious persons to carry the passenger safely as far as human care and foresight can provide, it is the burden of the defendants
to prove that the cause of the blow-out was a fortuitous event. It is not incumbent upon the plaintiff to prove that the cause of the blow-out is not
caso-fortuito.
Proving that the tire that exploded is a new Goodyear tire is not sufficient to discharge defendants burden. As enunciated in Necesito vs. Paras,
the passenger has neither choice nor control over the carrier in the selection and use of its equipment, and the good repute of the manufacturer
will not necessarily relieve the carrier from liability.
Moreover, there is evidence that the bus was moving fast, and the road was wet and rough. The driver could have explained that the blow-out
that precipitated the accident that caused the death of Toto Tumboy could not have been prevented even if he had exercised due care to avoid
the same, but he was not presented as witness.
The Court of Appeals thus disposed of the appeal as follows:
WHEREFORE, the judgment of the court a quo is set aside and another one entered ordering defendants to pay plaintiffs the sum of P50,000.00
for the death of Tito Tumboy, P30,000.00 in moral damages, and P7,000.00 for funeral and burial expenses. SO ORDERED.
The defendants filed a motion for reconsideration of said decision which was denied on November 4, 1993 by the Court of Appeals. Hence,
the instant petition asserting the position that the tire blowout that caused the death of Tito Tumboy was a caso fortuito. Petitioners claim further
that the Court of Appeals, in ruling contrary to that of the lower court, misapprehended facts and, therefore, its findings of fact cannot be considered
final which shall bind this Court. Hence, they pray that this Court review the facts of the case.
The Court did re-examine the facts and evidence in this case because of the inapplicability of the established principle that the factual findings
of the Court of Appeals are final and may not be reviewed on appeal by this Court. This general principle is subject to exceptions such as the one
present in this case, namely, that the lower court and the Court of Appeals arrived at diverse factual findings. [8] However, upon such re-examination,
we found no reason to overturn the findings and conclusions of the Court of Appeals.
As a rule, when a passenger boards a common carrier, he takes the risks incidental to the mode of travel he has taken. After all, a carrier is
not an insurer of the safety of its passengers and is not bound absolutely and at all events to carry them safely and without injury. [9] However,
when a passenger is injured or dies while travelling, the law presumes that the common carrier is negligent. Thus, the Civil Code provides:
Art. 1756. In case of death 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 1755 provides that (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. Accordingly, in culpa contractual, once a passenger dies
or is injured, the carrier is presumed to have been at fault or to have acted negligently. This disputable presumption may on ly be overcome by
evidence that the carrier had observed extraordinary diligence as prescribed by Articles 1733, [10] 1755 and 1756 of the Civil Code or that the death
or injury of the passenger was due to a fortuitous event.[11] Consequently, the court need not make an express finding of fault or negligence on the
part of the carrier to hold it responsible for damages sought by the passenger. [12]
In view of the foregoing, petitioners contention that they should be exempt from liability because the tire blowout was no more than a
fortuitous event that could not have been foreseen, must fail. A fortuitous event is possessed of the following characteristics: (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. [13] As Article 1174 provides, no person shall be responsible for a fortuitous
event which could not be foreseen, or which, though foreseen, was inevitable. In other words, there must be an entire exclusion of human agency
from the cause of injury or loss
Under the circumstances of this case, the explosion of the new tire may not be considered a fortuitous event. There are human factors involved
in the situation. The fact that the tire was new did not imply that it was entirely free from manufacturing defects or that it was properly mounted
on the vehicle. Neither may the fact that the tire bought and used in the vehicle is of a brand name noted for quality, resulting in the conc lusion
that it could not explode within five days use. Be that as it may, it is settled that an accident caused either by defects in the automobile or through
the negligence of its driver is not a caso fortuitothat would exempt the carrier from liability for damages. [15]
Moreover, a common carrier may not be absolved from liability in case of force majeure or fortuitous event alone. The common carrier must
still prove that it was not negligent in causing the death or injury resulting from an accident.[16] This Court has had occasion to state:
While it may be true that the tire that blew-up was still good because the grooves of the tire were still visible, this fact alone does not make the
explosion of the tire a fortuitous event. No evidence was presented to show that the accident was due to adverse road conditions or that
precautions were taken by the jeepney driver to compensate for any conditions liable to cause accidents. The sudden blowing-up, therefore, could
have been caused by too much air pressure injected into the tire coupled by the fact that the jeepney was overloaded and speeding at the time of
the accident
It is interesting to note that petitioners proved through the bus conductor, Salce, that the bus was running at 60-50 kilometers per hour only
or within the prescribed lawful speed limit. However, they failed to rebut the testimony of Leny Tumboy that the bus was running so fast that she
cautioned the driver to slow down. These contradictory facts must, therefore, be resolved in favor of liability in view of the presumption of negligence
of the carrier in the law. Coupled with this is the established condition of the road rough, winding and wet due to the rain. It was incumbent upon
the defense to establish that it took precautionary measures considering partially dangerous condition of the road. As stated above, proof that the
tire was new and of good quality is not sufficient proof that it was not negligent. Petitioners should have shown that it undertook extraordinary
diligence in the care of its carrier, such as conducting daily routinary check-ups of the vehicles parts. As the late Justice J.B.L. Reyes said:
It may be impracticable, as appellee argues, to require of carriers to test the strength of each and every part of its vehicles before each trip; but
we are of the opinion that a due regard for the carriers obligations toward the traveling public demands adequate periodical tests to determine the
condition and strength of those vehicle portions the failure of which may endanger the safety of the passengers. [18]
Having failed to discharge its duty to overthrow the presumption of negligence with clear and convincing evidence, petitioners are hereby held
liable for damages. Article 1764[19] in relation to Article 2206[20] of the Civil Code prescribes the amount of at least three thousand pesos as damages
for the death of a passenger. Under prevailing jurisprudence, the award of damages under Article 2206 has been increased to P50,000.00
Moral damages are generally not recoverable in culpa contractual except when bad faith had been proven. However, the same damages may
be recovered when breach of contract of carriage results in the death of a passenger, [22] as in this case. Exemplary damages, awarded by way of
example or correction for the public good when moral damages are awarded, [23] may likewise be recovered in contractual obligations if the defendant
acted in wanton, fraudulent, reckless, oppressive, or malevolent manner. [24] Because petitioners failed to exercise the extraordinary diligence
required of a common carrier, which resulted in the death of Tito Tumboy, it is deemed to have acted recklessly. [25] As such, private respondents
shall be entitled to exemplary damages.
WHEREFORE, the Decision of the Court of Appeals is hereby AFFIRMED subject to the modification that petitioners shall, in addition to the
monetary awards therein, be liable for the award of exemplary damages in the amount of P20,000.00. Costs against petitioners.

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