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*
G.R. No. 116110. May 15, 1996.

BALIWAG TRANSIT, INC., petitioner, vs. COURT OF APPEALS,

SPOUSES ANTONIO GARCIA & LETICIA GARCIA, A & J
TRADING AND JULIO RECONTIQUE, respondents.

Common Carriers; Presumptions; In a contract of carriage, it is

presumed that the common carrier was at fault or was negligent when a
passenger dies or is injured.—As a common carrier, Baliwag breached its
contract of carriage when it failed to deliver its passengers, Leticia and
Allan Garcia to their destination safe and sound. 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 for all
the circumstances. In a contract of carriage, it is presumed that the common
carrier was at fault or was negligent when a passenger dies or is injured.
Unless the presumption is rebutted, the court need not even make an express
finding of fault or negligence on the part of the common carrier. This
statutory presumption may only be overcome by evidence that the carrier
exercised extraordinary diligence as prescribed in Articles 1733 and 1755 of
the Civil Code.
Same; Early Warning Devices (EWD); A kerosene lamp or torch at the
edge of the road, near the rear portion of the truck to serve as an early
warning device substantially complies with Section 34(g) of the Land
Transportation and Traffic Code.—Col. dela Cruz and Romano testified that
they did not see any early warning device at the scene of the accident. They
were referring to the triangular reflectorized plates in red and yellow issued
by the Land Trans-

________________

* SECOND DIVISION.

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portation Office. However, the evidence shows that Recontique and Ecala
placed a kerosene lamp or torch at the edge of the road, near the rear portion
of the truck to serve as an early warning device. This substantially complies
with Section 34 (g) of the Land Transportation and Traffic Code.
Same; Damages; Evidence; To prove actual damages, the best
evidence available to the injured party must be presented—the court cannot
rely on uncorroborated testimony whose truth is suspect but must depend
upon competent proof that damages have been actually suffered.—The
propriety of the amount awarded as hospitalization and medical fees. The
award of P25,000.00 is not supported by the evidence on record. The
Garcias presented receipts marked as Exhibits “B-1” to “B-42” but their
total amounted only to P5,017.74. To be sure, Leticia testified as to the extra
amount spent for her medical needs but without more reliable evidence, her
lone testimony cannot justify the award of P25,000.00. To prove actual
damages, the best evidence available to the injured party must be presented.
The court cannot rely on uncorroborated testimony whose truth is suspect,
but must depend upon competent proof that damages have been actually
suffered. Thus, we reduce the actual damages for medical and
hospitalization expenses to P5,017.74.
Same; Same; In a breach of contract of carriage, moral damages are
recoverable if the carrier, through its agent, acted fraudulently or in bad
faith.—The award of moral damages is in accord with law. In a breach of
contract of carriage, moral damages are recoverable if the carrier, through its
agent, acted fraudulently or in bad faith. The evidence shows the gross
negligence of the driver of Baliwag bus which amounted to bad faith.

PETITION for certiorari to review a decision of the Court of

Appeals.

The facts are stated in the opinion of the Court.

     Leopoldo C. Sta. Maria for Baliwag Transit, Inc.
     Arturo D. Vallar for Sps. Antonio and Leticia Garcia.
     Alan A. Leynes for A & J Trading and Julio Recontique.

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PUNO, J.:
1
This is a petition for certiorari to review the Decision of the Court
of Appeals in CA-G.R. CV-31246 awarding damages in favor of the
spouses 2Antonio and Leticia Garcia for breach of contract of
carriage.
The records show that on July 31, 1980, Leticia Garcia, and her
five-year old son, Allan Garcia, boarded Baliwag Transit Bus No.

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2036 bound for Cabanatuan City driven by Jaime Santiago. They

took the seat behind the driver.
At about 7:30 in the evening, in Malimba, Gapan, Nueva Ecija,
the bus passengers saw a cargo truck parked at the shoulder of the
national highway. Its left rear portion jutted to the outer lane, as the
shoulder of the road was too narrow to accommodate the whole
truck. A kerosene lamp appeared at the edge of the road obviously to
serve as a warning device. The truck driver, Julio Recontique, and
his helper, Arturo Escala, were then replacing a flat tire. The truck is
owned by respondent A & J Trading.
Bus driver Santiago was driving at an inordinately fast speed and
failed to notice the truck and the kerosene lamp at the edge of the
road. Santiago’s passengers urged him to slow down but he paid
them no heed. Santiago even carried animated conversations with
his co-employees while driving. When the danger of collision
became imminent, the bus passengers shouted “Babangga tayo!.”
Santiago stepped on the brake, but it was too late. His bus rammed
into the stalled cargo truck. It caused the instant death of Santiago
and Escala, and injury to several others. Leticia and Allan Garcia
were among the injured passengers.

_______________

1 Penned by Associate Justice Corona Ibay-Somera, with Associate Justices Fidel

P. Purisima and Asaali S. Isnani concurring.
2 The case at bar is related with GR No. 117152 filed by the spouses Garcia
questioning the same Court of Appeal’s Decision which reduced their award of
damages. On November 13, 1995, we denied their petition for review.

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Baliwag Transit, Inc. vs. Court of Appeals

Leticia suffered a fracture in her pelvis and right leg. They rushed
her to the provincial hospital in Cabanatuan City where she was
given emergency treatment. After three days, she was transferred to
the National Orthopedic Hospital where she was confined for more
3
than a month. She underwent an operation for partial hip
4
prosthesis.
Allan, on the other hand, broke a leg. He was also given
emergency treatment at the provincial hospital.
Spouses Antonio and Leticia Garcia sued Baliwag Transit, Inc.,
A & J Trading and Julio Recontique for damages in the Regional
5
Trial Court of Bulacan. Leticia sued as an injured passenger of
Baliwag and as mother of Allan. At the time of the complaint, Allan
was a minor, hence, the suit initiated by his parents in his favor.

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Baliwag, A & J Trading and Recontique disclaimed

responsibility for the mishap. Baliwag alleged that the accident was
caused solely by the fault and negligence of A & J Trading and its
driver, Recontique. Baliwag charged that Recontique failed to place
an early warning device at 6
the corner of the disabled cargo truck to
warn oncoming vehicles. On the other hand, A & J Trading and
Recontique alleged that the accident was the result of the negligence
7
and reckless driving of Santiago, bus driver of Baliwag.
After hearing, the trial court found all the defendants liable, thus:

xxx
“In view thereof, the Court holds that both defendants should be held
liable; the defendant Baliwag Transit, Inc. for having failed to deliver the
plaintiff and her son to their point of destination safely in violation of
plaintiff’s and defendant Baliwag Transit’s contractual relation.

_______________

3 From August 2, 1980 to September 15, 1980.

4 Exhibit “A,” Records, p. 116.
5 Annex “A” of the Petition, Rollo, pp. 23-25.
6 Records, p. 43.
7 Records, pp. 17-18.

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Baliwag Transit, Inc. vs. Court of Appeals

The defendant A & J and Julio Recontique for failure to provide its cargo
8
truck with an early warning device in violation of the Motor Vehicle Law.”

The trial court ordered Baliwag, A & J Trading and Recontique to

pay jointly and severally the Garcia spouses the following: (1)
P25,000.00 hospitalization and medication fee, (2) P450,000.00 loss
of earnings in eight (8) years, (3) P2,000.00 for the hospitalization of
their son Allan Garcia, 9(4) P50,000.00 moral damages, and (5)
P30,000.00 attorney’s fee.
On appeal, the Court of Appeals modified the trial court’s
Decision by absolving A & J Trading from liability and by reducing
the award of attorney’s fees to P10,000.00 and loss of earnings to
10
P300,000.00, respectively.
Baliwag filed the present petition for review raising the following
issues:

“1. Did the Court of Appeals err in absolving A & J Trading

from liability and holding Baliwag solely liable for the
injuries suffered by Leticia and Allan Garcia in the
accident?
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2. Is the amount of damages awarded by the Court of Appeals

to the Garcia spouses correct?”

We affirm the factual findings of the Court of Appeals.

As a common carrier, Baliwag breached its contract of carriage

when it failed to deliver its passengers, Leticia and Allan Garcia to
their destination safe and sound. 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
for all the circum-

_______________

8 Decision of Regional Trial Court of Malolos Bulacan Branch 14, Rollo, pp. 47-
48.
9 Decision of Regional Trial Court of Malolos Bulacan Branch 14, Rollo, p. 48.
10 Decision of the Court of Appeals, Rollo, p. 62.

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11
stances. In a contract of carriage, it is presumed that the common
carrier was at fault or was negligent when a passenger dies or is
injured. Unless the presumption is rebutted, the court need not even
make an express finding of fault or negligence on the part of the
common carrier. This statutory presumption may only be overcome
by evidence that the carrier exercised extraordinary 12diligence as
prescribed in Articles 1733 and 1755 of the Civil Code.
The records are bereft of any proof to show that Baliwag
exercised extraordinary diligence. On the contrary, the evidence
demonstrates its driver’s recklessness. Leticia Garcia testified that
the bus was running at a very high speed despite the drizzle and the
darkness of the highway. The passengers 13
pleaded for its driver to
slow down, but their plea was ignored. Leticia also revealed that
14
the driver was smelling of liquor. She could smell him as she was
seated right behind the driver. Another passenger, Felix Cruz
testified that immediately before the collision, the bus driver was
15
conversing with a co-employee. All these prove the bus driver’s
wanton disregard for the physical safety of his passengers, which
makes Baliwag as a common carrier liable for damages under
Article 1759 of the Civil Code:

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“Art. 1759. Common carriers are liable for the death of or injuries to
passengers through the negligence or willful acts of the former’s employees,
although such employees may have acted beyond the scope of their
authority or in violation of the orders of the common carriers.
This liability of the common carriers do not cease upon proof that they
exercised all the diligence of a good father of a family in the selection or
supervision of their employees.”

_______________

11 Article 1755, Civil Code.

12 Article 1756, Civil Code; Philippine Rabbit But Lines, Inc. vs. Intermediate
Appellate Court, 189 SCRA 158 (1990).
13 TSN, February 9, 1989, p. 4.
14 TSN, February 9, 1989, p. 10.
15 Exhibit “6” (A & J Trading), Records, p. 206.

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Baliwag cannot evade its liability by insisting that the accident was
caused solely by the negligence of A & J Trading and Julio
Recontique. It harps on their alleged non use of an early warning
device as testified to by Col. Demetrio dela Cruz, the station
commander of Gapan, Nueva Ecija who investigated the incident,
and Francisco Romano, the bus conductor.
The records do not bear out Baliwag’s contention. Col. dela Cruz
and Romano testified that they did not see any early warning device
16
at the scene of the accident. They were referring to the triangular
reflectorized plates in red and yellow issued by the Land
Transportation Office. However, the evidence shows that Recontique
and Ecala placed a kerosene lamp or torch at the edge of the road,
near the17
rear portion of the truck to serve as an early warning
device. This substantially complies with Section 34 (g) of the Land
Transportation and Traffic Code, to wit:

“(g) Lights and reflector when parked or disabled.—Appropriate parking

lights or flares visible one hundred meters away shall be displayed at the
corner of the vehicle whenever such vehicle is parked on highways or in
places that are not well-lighted or, is placed in such manner as to endanger
passing traffic. Furthermore, every motor vehicle shall be provided at all
times with built-in reflectors or other similar warning devices either pasted,
painted or attached at its front and back which shall likewise be visible at
night at least one hundred meters away. No vehicle not provided with any of
the requirements mentioned in this subsection shall be registered. (emphasis
supplied)”

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Baliwag’s argument that the kerosene lamp or torch does not

substantially comply with the law is untenable. The aforequoted law
clearly allows the use not only of an early warning device of the
triangular reflectorized plates variety

_______________

16 TSN, August 22, 1989, p. 5; Exhibit “5” (Baliwag), Records, pp. 196-197.
17 TSN, February 9, 1989, p. 18; Exhibit “6” (A & J Trading), Records, p. 207.

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but also parking lights or flares visible one hundred meters away.
Indeed, Col. dela Cruz himself admitted that a kerosene lamp is an
18
acceptable substitute for the reflectorized plates. No negligence,
therefore, may be imputed to A & J Trading and its driver,
Recontique.
Anent this factual issue, the analysis of evidence made by the
Court of Appeals deserves our concurrence, viz:

xxx
“In the case at bar, both the injured passengers of the Baliwag involved
in the accident testified that they saw some sort of kerosene or a torch on the
rear portion of the truck before the accident. Baliwag Transit’s conductor
attempted to defeat such testimony by declaring that he noticed no early
warning device in front of the truck.
Among the testimonies offered by the witnesses who were present at the
scene of the accident, we rule to uphold the affirmative testimonies given by
the two injured passengers and give less credence to the testimony of the
bus conductor who solely testified that no such early warning device exists.
The testimonies of injured passengers who may well be considered as
disinterested witness appear to be natural and more probable than the
testimony given by Francisco Romano who is undoubtedly interested in the
outcome of the case, being the conductor of the defendant-appellant
Baliwag Transit, Inc.
It must be borne in mind that the situation then prevailing at the time of
the accident was admittedly drizzly and all dark. This being so, it would be
improbable and perhaps impossible on the part of the truck helper without
the torch nor the kerosene to remove the flat tires of the truck. Moreover,
witness including the bus conductor himself admitted that the passengers
shouted, that they are going to bump before the collision which
consequently caused the bus driver to apply the brake 3 to 4 meters away
from the truck. Again, without the kerosene nor the torch in front of the
truck, it would be improbable for the driver, more so the passengers to

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notice the truck to be bumped by the bus considering the darkness of the
place at the time of the accident.
xxx

_______________

18 TSN, August 22, 1989, p. 12.

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While it is true that the investigating officer testified that he found no early
warning device at the time of his investigation, We rule to give less credence
to such testimony insofar as he himself admitted on cross examination that
he did not notice the presence of any kerosene lamp at the back of the truck
because when he arrived at the scene of the accident, there were already
many people surrounding the place (TSN, Aug. 22, 1989, p. 13). He further
admitted that there exists a probability that the lights of the truck may have
been smashed by the bus at the time of the accident considering the location
of the truck where its rear portion was connected with the front portion of
the bus (TSN, March 29, 1985, pp. 11-13). Investigator’s testimony
therefore did not confirm nor deny the existence of such warning device,
19
making his testimony of little probative value.”

II

We now review the amount of damages awarded to the Garcia

spouses.
First, the propriety of the amount awarded as hospitalization and
medical fees. The award of P25,000.00 is not supported by the
evidence on record. The Garcias presented receipts marked as
Exhibits “B-1” to “B-42” but their total amounted only to P5,017.74.
To be sure, Leticia testified as to the extra amount spent for her
medical needs but without more reliable evidence, her lone
testimony cannot justify the award of P25,000.00. To prove actual
damages, the best evidence available to the injured party must be
presented. The court cannot rely on uncorroborated testimony whose
truth is suspect, but must depend 20upon competent proof that
damages have been actually suffered. Thus, we reduce the actual
damages for medical and hospitalization expenses to P5,017.74.
Second, we find as reasonable the award of P300,000.00
representing Leticia’s lost earnings. Before the accident,

_______________

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19 Decision of the Court of Appeals, Rollo, pp. 55-57.
20 Development Bank of the Philippines vs. Court of Appeals, et al., G.R. No.
110053, October 15, 1995; Alejandro Fuentes, Jr. vs. Court of Appeals and People,
G.R. No. 111692, February 9, 1996.

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21
Leticia was engaged in embroidery, earning P5,000.00 per month.
Her injuries forced her to stop working. Considering the nature and
extent of her injuries and the length of time it would take her to
22
recover, we find it proper that Baliwag should compensate her lost
23
income for five (5) years.
Third, the award of moral damages is in accord with law. In a
breach of contract of carriage, moral damages are recoverable if the
24
carrier, through its agent, acted fraudulently or in bad faith. The
evidence shows the gross negligence of the driver of Baliwag bus
which amounted to bad faith. Without doubt, Leticia and Allan
experienced physical suffering, mental anguish and serious anxiety
by reason of the accident. Leticia underwent an operation to replace
her broken hip bone with a metal plate. She was confined at the
National Orthopedic Hospital for 45 days. The young Allan was also
confined in the hospital for his foot injury. Contrary to the
contention of Baliwag, the decision of the trial court as affirmed by
the Court of Appeals awarded moral damages to Antonio and Leticia
Garcia not in their capacity as parents of Allan. Leticia was given
moral damages as an injured party. Allan was also granted moral
damages as an injured party but because of his minority, the award
in his favor has to be given to his father who represented him in the
suit.
Finally, we find the award of attorney’s fees justified. The
complaint for damages was instituted by the Garcia spouses on
December 15, 1982, following the unjustified refusal of Baliwag to
settle their claim. The Decision was promulgated by the trial court
only on January 29, 1991 or about nine years later. Numerous
pleadings were filed before the trial court, the appellate court and to
this Court. Given the

_______________

21 TSN, February 9, 1989, p. 13.

22 The Medical Report issued by the attending physician, Dr. Jaime Tamayo,
indicates that Leticia Garcia suffered partial permanent disability (Annex “A,”
Records, p. 116).
23 See Manuel vs. Court of Appeals, 227 SCRA 29, (1993).

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24 Philippine National Railways vs. Intermediate Appellate Court, 217 SCRA 401
(1994); Metro Manila Transit Corp. vs. Court
of Appeals, 223 SCRA 521 (1994).

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25
complexity of the case and the amount of damages involved, the
award of attorney’s fee for P10,000.00 is just and reasonable.
IN VIEW WHEREOF, the Decision of the respondent Court of
Appeals in CA-G.R. CV-31246 is AFFIRMED with the
MODIFICATION reducing the actual damages for hospitalization
and medical fees to P5,017.74. No costs.
SO ORDERED.

          Regalado (Chairman), Romero, Mendoza and Torres, Jr.,

JJ., concur.

Judgment affirmed with modification.

Notes.—When the goods shipped either are lost or arrive in

damaged condition, a presumption arises against the carrier of its
failure to observe that requisite diligence, and there need not be an
express finding of negligence to hold it liable. (Eastern Shipping
Lines, Inc. vs. Court of Appeals, 234 SCRA 78 [1994])
When one devotes his property to a use in which the public has
an interest, he, in effect, grants to the public an interest in that use,
and must submit to the control by the public for the common good,
to the extent of the interest he has thus created. (Kilusang Mayo Uno
Labor Center vs. Garcia, Jr., 239 SCRA 386 [1994])

——o0o——

_______________

25 See Del Rosario vs. Court of Appeals, 237 SCRA 39 (1994).

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