1. [G.R. No. 50076. September 14, 1990.

]
NORBERTO QUISUMBING, SR., and GUNTHER LOEFFLER, petitioners, vs. COURT OF
APPEALS and PHILIPPINE AIR LINES, INC., respondents.

N.J. Quisumbing & Associates for petitioners.

Siguion Reyna, Montecillo & Ongsiako for private respondent.

DECISION

NARVASA, J p:
Having met with no success in the Court of First Instance of Rizal and in the Court of Appeals, the petitioners
are now in this Court in a third and final attempt to recover from the Philippine Airlines, Inc. (hereafter, simply
PAL) the value of jewelry, other valuables and money taken from them by four (4) armed robbers on board one
of the latter's airplanes while on a flight from Mactan City to Manila, as well as moral and exemplary damages,
attorney's fees and expenses of litigation.
The petitioners accept the correctness of the basic facts adopted by the Court of Appeals from the judgment of
the Court of First Instance, to wit: 1
1. " . . . Norberto Quisumbing, Sr. and Gunther Loeffler were among the passengers of . . .
(PAL's) Fokker 'Friendship' PIC-536 plane in its flight of November 6, 1968 which left Mactan
City at about 7:30 in the evening with Manila for its destination."
2. "After the plane had taken off, Florencio O. Villarin, a Senior NBI Agent who was also a
passenger of the said plane, noticed a certain 'Zaldy,' a suspect in the killing of Judge Valdez,
seated at the front seat near the door leading to the cockpit of the plane. A check by Villarin
with the passenger's ticket in the possession of flight Stewardess Annie Bontigao, who was
seated at the last seat right row revealed that 'Zaldy' had used the name 'Cardente,' one of his
aliases known to Villarin. Villarin also came to know from the stewardess that 'Zaldy had three
companions on board the plane."
3. Villarin then scribbled a note addressed to the pilot of the plane requesting the latter to
contact NBI duty agents in Manila for the said agents to ask the Director of the NBI to send
about six NBI agents to meet the plane because the suspect in the killing of Judge Valdez was
on board (Exh. 'G'). The said note was handed by Villarin to the stewardess who in turn gave
the same in the pilot."
4. "After receiving the note, which was about 15 minutes after take off, the pilot of the plane,
Capt. Luis Bonnevie, Jr., came out of the cockpit and sat beside Villarin at the rear portion of
the plane and explained that he could not send the message because it would be heard by all
ground aircraft stations. Villarin, however, told the pilot of the danger of commission of violent
acts on board the plane by the notorious 'Zaldy and his three companions."
5. "While the pilot and Villarin were talking, 'Zaldy' and one of his companions walked to the
rear and stood behind them. Capt. Bonnevie then stood up and went back to the cockpit. 'Zaldy'
and his companions returned to their seats, but after a few minutes they moved back to the rear
throwing ugly looks at Villarin who, sensing danger, stood up and went back to his original
seat across the aisle on the second to the last seat near the window. 'Zaldy' and his companion
likewise went back to their respective seats in front.'
6. "Soon thereafter an exchange of gunshots ensued between Villarin and 'Zaldy' and the
latter's companions. 'Zaldy' announced to the passengers and the pilots in the cockpit that it was
hold-up and ordered the pilot not to send any SOS. The hold-uppers divested the passengers of
their belongings."
7. "Specifically, . . . Norberto Quisumbing, Sr. was divested of jewelries and cash in the total
amount of P18,650.00 out of which recoveries were made amounting to P4,550.00. . . .
Gunther Loeffler was divested of a wrist watch, cash and a wallet in the total amount of
P1,700.00. As a result of the incident . . Quisumbing, Sr. suffered shock, because a gun had
been pointed at him by one of the hold-uppers."
8. "Upon landing at the Manila International Airport, Zaldy and his three companions
succeeded in escaping."

1
Demands were thereafter made on PAL by Quisumbing and Loeffler "to indemnify . . . (them) on their aforesaid
loss, but . . . (PAL) refused . . . (averring that) it is not liable to (them) in law or in fact." 2
Contending that the "aforesaid loss is a result of breach of . . . (PAL's) contractual obligation to carry . . . (them)
and their belongings and effects to their Manila destination without loss or damage, and constitutes a serious
dereliction of . . . (PAL's) legal duty to exercise extraordinary diligence in the vigilance over the same,"
Quisumbing and Loeffler brought suit against PAL in the Court of First Instance of Rizal, as stated in this
opinion's opening paragraph, to recover the value of the property lost by them to the robbers as well as moral
and exemplary damages, attorney's fees and expenses of litigation. 3 The plaintiffs declared that their suit was
instituted ". . . pursuant to Civil Code articles 1754, 1998, 2000 and 2001 and on the ground that in relation to
said Civil Code article 2001 the complained-of act of the armed robbers is not a force , as the 'use of arms' or
`irresistible force' was not taken advantage of by said armed robbers in gaining entrance to defendant's ill-fated
plane in questions. And, with respect to said Civil Code article 1998, it is not essential that the lost effects and
belongings of plaintiffs were actually delivered to defendant's plane personnel or that the latter were notified
thereof (De los Santos v. Tam Khey, [CA] 58 O.G. 7693)." 4
PAL filed answer denying liability, alleging inter alia that the robbery during the flight and after the aircraft
was forcibly landed at the Manila Airport did indeed constitute force majeure, and neither of the plaintiffs had
notified PAL "or its crew or employees that they were in possession of cash, German marks and valuable
jewelries and watches" or surrendered said items to "the crew or personnel on board the aircraft." 5
After trial, the Court of First Instance rendered judgment "dismissing plaintiffs' complaint with costs against . . .
(them)." 6 The Court opined that since the plaintiffs "did not notify defendant or its employees that they were in
possession of the cash, jewelries, and the wallet they are now claiming," the very provision of law invoked by
them, Article 1998 of the Civil Code, denies them any recourse against PAL. The Court also pointed out that —
". . . while it is true that the use of arms was not taken advantage of by the robbers in gaining
entrance to defendant's ill-fated plane, the armed robbery that took place constitutes force
majeure for which defendant is not liable because the robbers were able to gain entrance to the
plane with the guns they used already in their possession, which fact could not have been
prevented nor avoided by the defendant since it was not authorized to search its passengers for
firearms and deadly weapons as shown in Exhibits '6,' '7,' '8,' and '8-A.' As its robbery
constitutes force majeure, defendant is not liable.
The plaintiffs appealed to the Court of Appeals. 7 The Court affirmed the trial court's judgment. 8 It rejected the
argument that "the use of arms or . . . irresistible force" referred to in Article 2001 constitutes force majeure
only if resorted to gain entry into the airplane, and not if it attends "the robbery itself. The Court ruled that
under the facts, "the highjacking-robbery was force majeure," observing that —
". . . hijackers do not board an airplane through a blatant display of firepower and violent fury.
Firearms, hand-grenades, dynamite, and explosives are introduced into the airplane
surreptitiously and with the utmost cunning and stealth, although there is an occasional use of
innocent hostages who will be coldly murdered unless a plane is given to the hijackers'
complete disposal. The objective of modern-day hijackers is to display the irresistible force
amounting to force majeure only when it is most effective and that is when the jetliner is
winging its way at Himalayan altitudes and ill-advised heroics by either crew or passengers
would send the multi-million peso airplane and the priceless lives of all its occupants into
certain death and destruction. . . .
The Appellate Court also ruled that in light of the evidence PAL could not be faulted for want of diligence,
particularly for failing "to take positive measures to implement Civil Aeronautics Administration regulations
prohibiting civilians from carrying firearms on board aircrafts;" and that "the absence of coded transmissions,
the amateurish behavior of the pilot in dealing with the NBI agent, the allegedly open cockpit door and the
failure to return to Mactan, in the light of the circumstances of the case . . ., were not negligent acts sufficient to
overcome the force majeure nature of the armed robbery." In fact, the Court went on to say, 9
". . . it is illusive to assume that had these precautions been taken, the hijacking or the robbery
would not have succeeded. The mandatory use of the most sophisticated electronic detection
devices and magnetometers, the imposition of severe penalties, the development of screening
procedures, the compilation of hijacker behavioral profiles, the assignment of sky marshals,
and the weight of outraged world opinion may have minimized hijackings but all these have
proved ineffective against truly determined hijackers. World experience shows that if a group
of armed hijackers want to take over a plane in flight, they can elude the latest combined
government and airline industry measures. And as our own experience in Zamboanga City
2
 illustrates, the use of force to overcome hijackers, results in the death and injury of innocent
passengers and crew members. We are not in the least bit suggesting that the Philippine
Airlines should not do everything humanly possible to protect passengers from hijackers' acts.
We merely state that where the defendant has faithfully complied with the requirements of
government agencies and adhered to the established procedures and precautions of the airline
industry at any particular time, its failure to take certain steps that a passenger in hindsight
believes should have been taken is not the negligence or misconduct which mingles with force
majeure as an active and cooperative cause.

Under the circumstances of the instant case, the acts of the airline and its crew cannot be
faulted as negligence. The hijackers had already shown their willingness to kill one passenger
was in fact killed and another survived gunshot wounds. The lives of the rest of the passengers
and crew were more important than their properties. Cooperation with the hijackers until they
released their hostages at the runway end near the South Superhighway was dictated by the
circumstances."
Insisting that the evidence demonstrates negligence on the part of the PAL crew "occurring before and exposing
them to hijacking," Quisumbing and Loeffler have come up to this Court praying that the judgments of the trial
Court and the Court of Appeals be reversed and another rendered in their favor. Once again, the issue will be
resolved against them.
A careful analysis of the record in relation to the memoranda and other pleadings of the parties, convinces this
Court of the correctness of the essential conclusion of both the trial and appellate courts that the evidence does
indeed fail to prove any want of diligence on the part of PAL, or that, more specifically, it had failed to comply
with applicable regulations or universally accepted and observed procedures to preclude hijacking; and that the
particular acts singled out by the petitioners as supposedly demonstrative of negligence were, in the light of the
circumstances of the case, not in truth negligent acts "sufficient to overcome the force majeure nature of the
armed robbery.' The Court quite agrees, too, with the Appellate Tribunal's wry observation that PAL's "failure
to take certain steps that a passenger in hindsight believes should have been taken is not the negligence or
misconduct which mingles with force majeure as an active and cooperative cause."
No success can therefore attend petitioners' appeal, not only because they wish to have a review and
modification of factual conclusions of the Court of Appeals, which established and uniformly observed axiom
prescribes, 10 but also because these factual conclusions have in this Court's view been correctly drawn from
the proofs on record.
WHEREFORE, the petition is DENIED and the appealed Decision of the Court of Appeals is AFFIRMED, with
costs against petitioners.
SO ORDERED.
Cruz, Gancayco, Griño-Aquino and Medialdea, JJ., concur.
||| (Quisumbing, Sr. v. Court of Appeals, G.R. No. 50076, [September 14, 1990], 267 PHIL 637-644)

2. [G.R. No. L-20761. July 27, 1966.]

LA MALLORCA, petitioner, vs. HONORABLE COURT OF APPEALS, MARIANO BELTRAN,
ET AL., respondents.

G. E. Yabut, R. Monterey and M. C. Lagman for petitioner.

Achmed Garcia for respondents.

SYLLABUS
1. COMMON CARRIERS; CARRIER - PASSENGER RELATION CONTINUES UNTIL
PASSENGER HAS REASONABLE TIME TO LEAVE CARRIER'S PREMISES. — The
relation of carrier and passenger does not cease at the moment the passenger alights from the carrier's
vehicle at a place selected by the carrier at the point of destination, but continues until the passenger has had
a reasonable time or a reasonable opportunity to leave the carrier's premises (Ormond vs. Hayes, 60 Tex.
180, cited in 10 C.J. 626).

3
 2. ID.; ID.; "REASONABLE TIME" CONSTRUED. — What is a reasonable time or a reasonable
delay is to be determined from all the circumstances. Thus, a person who, after alighting from a train, walks
along the station platform, is considered still a passenger (Keefe vs. Boston, etc. R. Co., 142 Mass. 251, 7
N.E. 874). So also, where a passenger has alighted at his destination and is proceeding by the usual way to
leave the company's premises, but before actually doing so is halted by the report that his brother, a fellow
passenger, has been shot, and he in good faith and without intent of engaging in the difficulty, returns to
relieve his brother, he is deemed reasonably and necessarily delayed and thus continues to be a passenger
entitled as such to the protection of the railroad and company and its agents (Layne vs. Chesapeake, etc., R.
Co., 68 W. Va. 213, 69 S.E. 700, 31 L.R.A., [N.S.] 414).
3. ID.; ID.; CARRIER'S RESPONSIBILITY FOR NEGLIGENCE; CASE AT BAR. — In the
present case, the father returned to the bus to get one of his baggages which was not unloaded when he end
other members of his family alighted from the bus. The victim, one of his minor daughters, must have
followed her father. However, although the father was still on the running board of the bus awaiting for the
conductor to hand to him the bag or bayong, the bus started to run, so that even he (the father) had to jump
down from the moving vehicle. It was at this instance that the child, who must be near the bus, was run over
and killed. Held: In the circumstances, it cannot be claimed that the carrier's agent had exercised the "utmost
diligence" of a "very cautious person" required by Article 1755 of the Civil Code to be observed by a
common carrier in the discharge of its obligation to transport safely its passengers. In the first place, the
driver, although stopping the bus, did not put off the engine. Secondly, he started to run the bus even before
the bus conductor gave him the signal to go and while the latter was still unloading a baggage of some
passengers. The presence of said passengers near the bus was not unreasonable and they are, therefore, to be
considered still as passengers of the carrier, entitled to the protection under their contract of carriage.
4. ID.; ID.; ID.; AVERMENT FOR QUASI-DELICT, ALTHOUGH INCOMPATIBLE WITH
CLAIM UNDER CONTRACT OF CARRIAGE, PERMISSIBLE. — The inclusion of the averment for
quasi-delict in appellee's complaint in the court a quo, while incompatible with the other claim under the
contract of carriage, is permissible under Section 2, Rule 8 of the new Rules of Court, which allows a
plaintiff to allege causes of action in the alternative, be they compatible with each other or not, to the end
that the real matter in controversy may be resolved and determined (Nelayan, et al. vs. Nelayan, et al., 109
Phil., 183).
5. ID.; ID.; ID.; ID.; EFFECT OF PRESENTATION OF PROOF OF CARRIER'S NEGLIGENCE;
CASE AT BAR. - The presentation of proof of the negligence of its employee gave rise to the presumption
that the defendant employer did not exercise the diligence of a good father of the family in the selection and
supervision of its employees. This presumption not having been overcome, the employer must be adjudged
pecuniarily liable for the death of the passenger.
6. ID.; ID.; ID.; ID.; ID.; SUFFICIENT ALLEGATION IN THE COMPLAINT; CASE AT BAR.
— The allegation in the complaint to the effect that "the death of Raquel Beltran, plaintiffs' daughter, was
caused by the negligence and want of exercise of the utmost diligence of a very cautious person on the
part of the defendants and their agent," sufficiently pleads the culpa or negligence upon which the claim was
predicated. This allegation was proved when it was established during the trial that the driver, even before
receiving the proper signal from the conductor, and while there were still persons on the running
board of the bus and near it, started to run off the vehicle.
7. APPEALS; WHAT CAN BE PASSED UPON ON APPEAL; CASE AT BAR. — Generally, the
appellate court can only pass upon and consider questions or issues raised and argued in appellant's brief. In
the case at bar, plaintiffs did not appeal from that portion of the judgment of the trial court awarding them
only P3,000.00 as damages for the death of their daughter. Neither did they point out in their brief in
the Court of Appeals that the award was inadequate, or that the inclusion of that figure was merely a clerical
error, in order that the matter may be treated as an exception to the general rule (Section 7, Rule 51, new
Rules of Court). The Court of Appeals therefore erred in raising the amount of the award.

DECISION
BARRERA, J .:
La Mallorca seeks the review of the decision of the Court of Appeals in CA- G. R. No. 23267-R,
holding it liable for quasi-delict and ordering it to pay to respondents Mariano Beltran, et al. P6,000.00 for
the death of his minor daughter Raquel Beltran, plus P400.00 as actual damages. cdrep
The facts of the case, as found by the Court of Appeals, briefly are:

4
 "On December 20, 1953, at about noontime, plaintiffs, husband and wife, together with
their minor daughters, namely Milagros, 13 years old, Raquel, about 4-1/2 years old, and Fe,
over 2 years old, boarded the Pambusco Bus No. 352, bearing plate TPU No. 757 (1953
Pampanga), owned and operated by the defendant, at San Fernando, Pampanga, bound for
Anao, Mexico, Pampanga. At the time, they were carrying with them four pieces of baggages
containing their personal belongings. The conductor of the bus who happened to be a half-
brother of plaintiff Mariano Beltran, issued three tickets (Exhs. A, B, & C) covering the full
fares of the plaintiff and their eldest child, Milagros. No fare was charged on Raquel and Fe,
since both were below the height at which fare is charged in accordance with the appellant's
rules and regulations.
"After about an hour's trip, the bus reached Anao, whereat it stopped to allow the
passengers bound therefor, among whom were the plaintiffs and their children to get off. With
respect to the group of the plaintiffs, Mariano Beltran, then carrying some of their baggages,
was the first to get down the bus, followed by his wife and his children. Mariano led his
companions to a shaded spot on the left pedestrians side of the road about four or five meters
away from the vehicle. Afterwards, he returned to the bus in controversy to get his
other bayong, which he had left behind, but in so doing, his daughter Raquel followed him
unnoticed by her father. While said Mariano Beltran was on the running board of the bus
waiting for the conductor to hand him his bayong which he left under one of its seats near the
door; the bus, whose motor was not shut off while unloading, suddenly started moving
forward, evidently to resume its trip, notwithstanding the fact that the conductor has not given
the driver the customary signal to start, since said conductor was still attending to the baggage
left behind by Mariano Beltran. Incidentally, when the bus was again placed into a complete
stop, it had travelled about ten meters from the point where the plaintiffs had gotten off.
"Sensing that the bus was again in motion, Mariano Beltran immediately jumped from
the running board without getting his bayong from the conductor. He landed on the side of the
road almost in front of the shaded place where he left his wife and children. At that precise
time, he saw people beginning to gather around the body of the child lying prostrate on the
ground, her skull, crushed, and without life. The child was none other than his daughter
Raquel, who was run over by the bus in which she rode earlier together with her parents.
"For the death of their said child, the plaintiffs commenced the present suit against the
defendant seeking to recover from the latter an aggregate amount of P6,000 to cover moral
damages and actual damages sustained as a result thereof and attorney's fees. After trial on the
merits the court below rendered the judgment in question."
On the basis of these facts, the trial court found defendant liable for breach of contract of carriage
and sentenced it to pay P3,000.00 for the death of the child and P400.00 as compensatory damages
representing burial expenses and costs. LLpr
On appeal to the Court of Appeals, La Mallorca claimed that there could not be a breach of contract
in the case, for the reason that when the child met her death, she was no longer a passenger of the bus
involved in the incident and, therefore, the contract of carriage had already terminated. Although
the Court of Appeals sustained this theory, it nevertheless found the defendant-appellant guilty of quasi-
delict and held the latter liable for damages, for the negligence of its driver, in accordance with Article
2180 of the Civil Code. And, the Court of Appeals did not only find the petitioner liable, but increased the
damages awarded the plaintiffs-appellees to P6,000.00, instead of P3,000.00 granted by the trial court.
In its brief now before us, La Mallorca contends that the Court of Appeals erred (1) in holding it
liable for quasi- delict, considering that respondents' complaint was one for breach of contract, and (2) in
raising the award of damages from P3,000.00 to P6,000.00 although respondents did not appeal from the
decision of the lower court.
Under the facts as found by the Court of Appeals we have to sustain the judgment holding petitioner
liable for damages for the death of the child, Raquel Beltran. It may be pointed out that although it is true
that respondent Mariano Beltran, his wife, and their children (including the deceased child) had alighted
from the bus at a place designated for disembarking or unloading of passengers, it was also established that
the father had to return to the vehicle (which was still at a stop) to get one of his bags or bayong that was left
under one of the seats of the bus. There can be no controversy that as far as the father is concerned, when he
returned to the bus for his bayong which was not unloaded, the relation of passenger and carrier between
him and the petitioner remained subsisting. For, the relation of carrier and passenger does not necessarily
cease where the latter, after alighting from the car, aids the carrier's servant or employee in removing his
5
baggage from the car. 1 The issue to be determined here is whether as to the child, who was already led by
the father to a place about 5 meters away from the bus, the liability of the carrier for her safety under the
contract of carriage also persisted. LexLib
It has been recognized as a rule that the relation of carrier and passenger does not cease at the
moment the passenger alights from the carrier's vehicle at a place selected by the carrier at the
point of destination, but continues until the passenger has had a reasonable time or a reasonable opportunity
to leave the carrier's premises. And, what is a reasonable time or a reasonable delay within this rule is to
be determined from all the circumstances. Thus, a person who, after alighting from a train, walks along the
station platform is considered still a passenger. 2 So also, where a passenger has alighted at his destination
and is proceeding by the usual way to leave the company's premises, but before actually doing so is halted
by the report that his brother, a fellow passenger, has been shot, and he in good faith and without
intent of engaging in the difficulty, returns to relieve his brother, he is deemed reasonably and necessarily
delayed and thus continues to be a passenger entitled as such to the protection of the railroad and company
and its agents. 3
In the present case, the father returned to the bus to get one of his baggages which was not unloaded
when they alighted from the bus. Raquel, the child that she was, must have followed the father. However,
although the father was still on the running board of the bus awaiting for the conductor to hand him the bag
or bayong, the bus started to run, so that even he (the father) had to jump down from the moving vehicle. It
was at this instance that the child, who must be near the bus, was run over and killed. In the circumstances,
it cannot be claimed that the carrier's agent had exercised the "utmost diligence" of a "very cautious person"
required by Article 1755 of the Civil Code to be observed by a common carrier in the discharge of its
obligation to transport safely its passengers. In the first place, the driver, although stopping the bus,
nevertheless did not put off the engine. Secondly, he started to run the bus even before the bus conductor
gave him the signal to go and while the latter was still unloading part of the baggages of the passengers
Mariano Beltran and family. The presence of said passengers near the bus was not unreasonable and they
are, therefore, to be considered still as passengers of the carrier, entitled to the protection under their
contract of carriage.
But even assuming arguendo that the contract of carriage has already terminated, herein petitioner
can be held liable for the negligence of its driver, as ruled by the Court of Appeals, pursuant to Article
2180 of the Civil Code. Paragraph 7 of the complaint, which reads —
"That aside from the aforesaid breach of contract, the death of Raquel Beltran,
plaintiff's daughter, was caused by the negligence and want of uxorious of the utmost
diligence of a very cautious person on the part of the defendants and their agent, necessary to
transport plaintiffs and their daughter safely as far as human and care and foresight can provide
in the operation of their vehicle."
is clearly an allegation for quasi-delict. The inclusion of this averment for quasi-delict, while
incompatible with the other claim under the contract of carriage, is permissible under Section 2 of Rule
8 of the New Rules of Court, which allows a plaintiff to allege causes of action in the alternative, be they
compatible with each other or not, to the end that the real matter in controversy may be resolved and
determined. 4
The plaintiffs sufficiently pleaded the culpa or negligence upon which the claim was predicated
when it was alleged in the complaint that "the death of Raquel Beltran, plaintiffs' daughter, was caused by
the negligence and want of exercise of the utmost diligence of a very cautious person on the part of the
defendants and their agent." This allegation was also proved when it was established during the trial that the
driver, even before receiving the proper signal from the conductor, and while there were still persons on the
running board of the bus and near it, started to run off the vehicle. The presentation of proof of the
negligence of its employee gave rise to the presumption that the defendant employer did not exercise
the diligence of a good father of the family in the selection and supervision of its employees. And this
presumption, as the Court of Appeals found, petitioner had failed to overcome. Consequently, petitioner
must be adjudged pecuniarily liable for the death of the child Raquel Beltran.
The increase of the award of damages from P3,000.00 to P6,000.00 by the Court of Appeals,
however, cannot be sustained. Generally, the appellate court can only pass upon and consider questions or
issues raised and argued in appellant's brief. Plaintiffs did not appeal from that portion of the
judgment of the trial court awarding them only P3,000.00 damages for the death of their daughter. Neither
does it appear that, as appellees in the Court of Appeals, plaintiffs have pointed out in their brief the
inadequacy of the award, or that the inclusion of the figure P3,000.00 was merely a clerical error, in order
that the matter may be treated as an exception to the general rule. 5 Herein petitioner's contention, therefore,
6
 that the Court of Appeals committed error in raising the amount of the award for damages is, evidently,
meritorious. cdrep
WHEREFORE, the decision of the Court of Appeals is hereby modified by sentencing the
petitioner to pay to the respondents Mariano Beltran, et al., the sum of P3,000.00 for the death of the
child, Raquel Beltran, and the amount of P400.00 as actual damages. No costs in this instance. So ordered.
||| (La Mallorca v. Court of Appeals, G.R. No. L-20761, [July 27, 1966], 124 PHIL 145-153) [G.R. No. 118971.
September 15, 1999.]

3. [G.R. No. L-42926. September 13, 1985.]

PEDRO VASQUEZ, SOLEDAD ORTEGA, CLETO B. BAGAIPO, AGUSTINA VIRTUDES, ROMEO
VASQUEZ and MAXIMINA CAINAY, petitioners, vs. THE COURT OF APPEALS and FILIPINAS
PIONEER LINES, INC., respondents.

Emilio D. Castellanes for petitioners.

Apolinario A. Abantao for private respondents.

DECISION

MELENCIO-HERRERA, J p:
This litigation involves a claim for damages for the loss at sea of petitioners' respective children after
the shipwreck of MV Pioneer Cebu due to typhoon "Klaring" in May of 1966. LLjur
The factual antecedents, as summarized by the trial Court and adopted by respondent Court, and
which we find supported by the record, read as follows:
"When the interisland vessel MV 'Pioneer Cebu' left the Port of Manila in the early
morning of May 15, 1966 bound for Cebu, it had on board the spouses Alfonso Vasquez and
Filipinas Bagaipo and a four-year old boy, Mario Marlon Vasquez, among her passengers. The
MV 'Pioneer Cebu' encountered typhoon 'Klaring' and struck a reef on the southern part of
Malapascua Island, located somewhere north of the island of Cebu and subsequently sunk. The
aforementioned passengers were unheard from since then.
Plaintiffs Pedro Vasquez and Soledad Ortega are the parents of Alfonso Vasquez; plaintiffs Cleto
Bagaipo and Agustina Virtudes are the parents of Filipinas Bagaipo; and plaintiffs Romeo Vasquez and
Maximina Cainay are the parents of the child, Mario Marlon Vasquez. They seek the recovery of damages
due to the loss of Alfonso Vasquez, Filipinas Bagaipo and Mario Marlon Vasquez during said voyage.
At the pre-trial, the defendant admitted its contract of carriage with Alfonso Vasquez, Filipinas
Bagaipo and Mario Marlon Vasquez, and the fact of the sinking of the MV 'Pioneer Cebu'. The issues of the
case were limited to the defenses alleged by the defendant that the sinking of the vessel was caused by force
majeure, and that the defendant's liability had been extinguished by the total loss of the vessel.
The evidence on record as to the circumstances of the last voyage of the MV 'Pioneer Cebu' came
mainly, if not exclusively, from the defendant. The MV 'Pioneer Cebu' was owned and operated by the
defendant and used in the transportation of goods and passengers in the interisland shipping. Scheduled to
leave the Port of Manila at 9:00 p.m. on May 14, 1966, it actually left port at 5:00 a.m. the following day,
May 15, 1966. It had a passenger capacity of three hundred twenty-two (322) including the crew. It
undertook the said voyage on a special permit issued by the Collector of Customs inasmuch as, upon
inspection, it was found to be without an emergency electrical power system. The special permit authorized
the vessel to carry only two hundred sixty (260) passengers due to the said deficiency and for lack of safety
devices for 322 passengers (Exh 2). A headcount was made of the passengers on board, resulting on the
tallying of 168 adults and 20 minors, although the passengers manifest only listed 106 passengers. It has
been admitted, however, that the headcount is not reliable inasmuch as it was only done by one man on
board the vessel.
When the vessel left Manila, its officers were already aware of the typhoon Klaring building up
somewhere in Mindanao. There being no typhoon signals on the route from Manila to Cebu, and the vessel
having been cleared by the Customs authorities, the MV 'Pioneer Cebu' left on its voyage to Cebu despite
the typhoon. When it reached Romblon Island, it was decided not to seek shelter thereat, inasmuch as the
weather condition was Still good. After passing Romblon and while near Jintotolo island, the barometer still
indicated the existence of good weather condition continued until the vessel approached Tanguingui island.

7
Upon passing the latter island, however, the weather suddenly changed and heavy rains fell. Fearing that
due to zero visibility, the vessel might hit Chocolate island group, the captain ordered a reversal of the
course so that the vessel could 'weather out' the typhoon by facing the winds and the waves in the open.
Unfortunately, at about noontime on May 16, 1966, the vessel struck a reef near Malapascua island,
sustained leaks and eventually sunk, bringing with her Captain Floro Yap who was in command of the
vessel."
Due to the loss of their children, petitioners sued for damages before the Court of First Instance of
Manila (Civil Case No. 67139). Respondent defended on the plea of force majeure, and the extinction of its
liability by the actual total loss of the vessel.
After proper proceedings, the trial Court awarded damages, thus:
"WHEREFORE, judgment is hereby rendered ordering the defendant to pay:
(a) Plaintiffs Pedro Vasquez and Soledad Ortega the sums of P15,000.00 for the loss of earning
capacity of the deceased Alfonso Vasquez, P2,100.00 for support, and P10,000.00 for moral damages;
(b) Plaintiffs Cleto B. Bagaipo and Agustina Virtudes the sum of P17,000.00 for loss of earning
capacity of deceased Filipinas Bagaipo, and P10,000.00 for moral damages; and
(c) Plaintiffs Romeo Vasquez and Maximina Cainay the sum of P10,000.00 by way of moral
damages by reason of the death of Mario Marlon Vasquez.
On appeal, respondent Court reversed the aforementioned judgment and absolved private respondent
from any and all liability.
Hence, this Petition for Review on Certiorari, the basic issue being the liability for damages of
private respondent for the presumptive death of petitioners' children.
The trial Court found the defense of caso fortuito untenable due to various decisive factors, thus:
". . . It is an admitted fact that even before the vessel left on its last voyage, its officers
and crew were already aware of the typhoon brewing somewhere in the same general direction
to which the vessel was going. The crew of the vessel took a calculated risk when it proceeded
despite the typhoon advisory. This is quite evident from the fact that the officers of the vessel
had to conduct conferences amongst themselves to decide whether or not to proceed. The crew
assumed a greater risk when, instead of seeking shelter in Romblon and other islands the vessel
passed enroute, they decided to take a change on the expected continuation of the good weather
the vessel was encountering, and the possibility that the typhoon would veer to some other
directions. The eagerness of the crew of the vessel to proceed on its voyage and to arrive at its
destination is readily understandable. It is undeniably lamentable, however, that they did so at
the risk of the lives of the passengers on board."
Contrariwise, respondent Appellate Court believed that the calamity was caused solely and
proximately by fortuitous event which not even extraordinary diligence of the highest degree could have
guarded against; and that there was no negligence on the part of the common carrier in the discharge of its
duties.
Upon the evidence and the applicable law, we sustain the trial Court. "To constitute a caso
fortuito that would exempt a person from responsibility, it is necessary that (1) the event must be
independent of the human will; (2) the occurrence must render it impossible for the debtor to fulfill the
obligation in a normal manner; and that (3) the obligor must be free of participation in, or aggravation of,
the injury to the creditor." 1 In the language of the law, the event must have been impossible to foresee, or if
it could be foreseen, must have been impossible to avoid. 2 There must be an entire exclusion of human
agency from the cause of injury or loss. 3
Turning to this case, before they sailed from the port of Manila, the officers and crew were aware of
typhoon "Klaring" that was reported building up at 260 kms. east of Surigao. In fact, they had lashed all the
cargo in the hold before sailing in anticipation of strong winds and rough waters. 4 They proceeded on their
way, as did other vessels that day. Upon reaching Romblon, they received the weather report that the
typhoon was 154 kms. east southeast of Tacloban and was moving west northwest. 5 Since they were still
not within the radius of the typhoon and the weather was clear, they deliberated and decided to proceed with
the course. At Jintotolo Island, the typhoon was already reported to be reaching the mainland of
Samar. 6 They still decided to proceed noting that the weather was still "good" although, according to the
Chief Forecaster of the Weather Bureau, they were already within the typhoon zone. 7 At Tanguingui
Island, about 2:00 A.M. of May 16, 1966, the typhoon was in an area quite close to Catbalogan, placing

8
 Tanguingui also within the typhoon zone. Despite knowledge of that fact, they again decided to proceed
relying on the forecast that the typhoon would weaken upon crossing the mainland of Samar. 8 After about
half an hour of navigation towards Chocolate Island, there was a sudden fall of the barometer accompanied
by heavy downpour, big waves, and zero visibility. The Captain of the vessel decided to reverse course and
face the waves in the open sea but because the visibility did not improve they were in total darkness and, as
a consequence, the vessel ran aground a reef and sank on May 16, 1966 around 12:45 P.M. near Malapascua
Island somewhere north of the island of Cebu. Cdpr
Under the circumstances, while, indeed, the typhoon was an inevitable occurrence, yet, having been
kept posted on the course of the typhoon by weather bulletins at intervals of six hours, the captain and crew
were well aware of the risk they were taking as they hopped from island to island from Romblon up to
Tanguingui. They held frequent conferences, and oblivious of the utmost diligence required of very cautious
persons, 9 they decided to take a calculated risk. In so doing, they failed to observe that extraordinary
diligence required of them explicitly by law for the safety of the passengers transported by them with due
regard for all circumstances 10 and unnecessarily exposed the vessel and passengers to the tragic mishap.
They failed to overcome that presumption of fault or negligence that arises in cases of death or injuries to
passengers. 11
While the Board of Marine Inquiry, which investigated the disaster, exonerated the captain from any
negligence, it was because it had considered the question of negligence as "moot and academic," the captain
having "lived up to the true tradition of the profession." While we are bound by the Board's factual findings,
we disagree with its conclusion since it obviously had not taken into account the legal responsibility of a
common carrier towards the safety of the passengers involved.
With respect to private respondent's submission that the total loss of the vessel extinguished its
liability pursuant to Article 587 of the Code of Commerce 12 as construed in Yangco vs. Laserna, 73 Phil.
330 [1941], suffice it to state that even in the cited case, it was held that the liability of a shipowner is
limited to the value of the vessel or to the insurance thereon. Despite the total loss of the vessel therefore, its
insurance answers for the damages that a shipowner or agent may be held liable for by reason of the death of
its passengers. LLpr
WHEREFORE, the appealed judgment is hereby REVERSED and the judgment of the then Court of
First Instance of Manila, Branch V, in Civil Case No. 67139, is hereby reinstated. No costs.
SO ORDERED.
||| (Vasquez v. Court of Appeals, G.R. No. L-42926, [September 13, 1985], 223 PHIL 147-154)

4. [G.R. Nos. L-28014-15. May 29, 1970.]

SPOUSES MARCELO LANDINGIN and RACQUEL BOCASAS, plaintiffs-
appellees, vs. PANGASINAN TRANSPORTATION CO. and MARCELO OLIGAN, defendants-
appellants.

SPOUSES PEDRO GARCIA and EUFRACIA LANDINGIN, plaintiffs-

appellees, vs. PANGASINAN TRANSPORTATION CO. and MARCELO OLIGAN, defendants-
appellants.

Gabriel A. Zabala for plaintiff -appellees.

Vicente M. Erfe Law Office for defendants-appellants.

SYLLABUS
1. CIVIL LAW; CONTRACTS; CONTRACT OF CARRIAGE; DUTY OF COMMON CARRIER,
ARTICLE 1755 NEW CIVIL CODE. — As a common carrier defendant-appellant was duty 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."
2. ID.; ID.; ID.; ID.; DEFECT IN AUTOMOBILE NOT CASE FORTUITO; CASE OF LASAM
VS. SMITH. — In Lasam vs. Smith, the 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."
3. ID.; ID.; ID.; ID.; PRESUMPTION OF NEGLIGENCE REBUTTABLE IN CASE AT BAR. —
When a passenger dies or is injured, the presumption is that the common carrier is at fault or that it acted
9
 negligently. 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 required of a very cautious
person."
4. ID.; ID.; ID.; ID.; INSTANT CASE. — In the instant case it appears that although the day before
the broken joint was duly inspected and found to be in order, due regard for all the circumstances like the
bus was heavily laden with passengers; that it would traverse mountainous, circuitous and ascending roads
were not considered in connection with the said inspection. Unless it is shown that the particular
circumstances under which the bus would travel were also considered, the mere inspection would not
exempt the carrier from liability.

DECISION
VILLAMOR, J p:
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 on 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 was 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;
10
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
Landingin and Racquel Bocasas in Civil Case No. 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 deceased 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)

11
 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 below
considered the presumption rebutted on the strength of defendants-appellants' evidence that only the day
before the incident, the cross-joint 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 we 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.
||| (Landingin v. Pangasinan Transportation Co., G.R. Nos. L-28014-15, [May 29, 1970], 144 PHIL 386-392)

5. [G.R. No. 80447. January 31, 1989.]

BALIWAG TRANSIT, INC. petitioner, vs. HON. COURT OF APPEALS and SPS. SOTERO
CAILIPAN, JR. and ZENAIDA LOPEZ and GEORGE L. CAILIPAN, respondents.

Sta. Maria & Associates for petitioner.

Punzalan and Associates Law Office for respondents.

SYLLABUS
1. REMEDIAL LAW; CIVIL ACTIONS; ACTION FOR BREACH OF CONTRACT; RELEASE
OF CLAIMS EXECUTED BY INJURED PARTY OF LEGAL AGE, VALID. — We hold that since the
suit is one for breach of contract of carriage, the Release of Claims executed by him, as the injured party,
discharging Fortune Insurance and Baliwag from any and all liability is valid. He was then of legal age, a
graduating student of Agricultural Engineering, and had the capacity to do acts with legal effect (Article 37
in relation to Article 402, Civil Code). Thus, he could sue and be sued even without the assistance of his
parents.
2. CIVIL LAW; COMMON CARRIERS; CARRIER LIABLE FOR INQUIRIES CAUSED ITS
PASSENGERS. — The contract of carriage was actually between George, as the paying passenger, and
Baliwag, as the common carrier. As such carrier, Baliwag was bound to carry its passengers safely as far as
human care and foresight could provide, and is liable for injuries to them through the negligence or wilful
acts of its employees (Articles 1755 and 1759, Civil Code). Thus, George had the right to be safely brought
to his destination and Baliwag had the correlative obligation to do so. Since a contract may be violated only
by the parties thereto, as against each other, in an action upon that contract, the real parties in interest, either
as plaintiff or as defendant, must be parties to said contract (Marimperio Compania Naviera, S.A. vs. Court
of Appeals, No. L-40234, December 14, 1987, 156 SCRA 368).
3. REMEDIAL LAW; CIVIL ACTIONS; REAL PARTY-IN-INTEREST, DEFINED. — A real
party-in-interest-plaintiff is one who has a legal right while a real party-in-interest-defendant is one who has
a correlative legal obligation whose act or omission violates the legal right of the former (Lee vs. Romillo,
Jr., G.R. No. 60973, May 28, 1988).
4. ID.; ID.; ACTION FOR BREACH OF CONTRACT, PERSONS NOT PARTIES TO
CONTRACT, NOT REAL PARTIES-IN-INTEREST. — In the absence of any contract of carriage between
Baliwag and George's parents, the latter are not real parties-in-interest in an action for breach of that
contract.
5. STATUTORY CONSTRUCTION; IF THE TERMS OF THE CONTRACT ARE CLEAR AND
LEAVES NO ROOM FOR DOUBT, THE LITERAL MEANING OF STIPULATION CONTROLS. — If

12
the terms of a contract are clear and leave no doubt upon the intention of the contracting parties, the literal
meaning of its stipulations shall control (Article 1370, Civil Code).
6. ID.; ID.; CASE AT BAR. — The phraseology "any and all claims or causes of action" is broad
enough to include all damages that may accrue to the injured party arising from the unfortunate accident.
7. REMEDIAL LAW; CIVIL ACTIONS; RELEASE OF CLAIMS HAD THE EFFECT OF
COMPROMISE AGREEMENT. — The Release of Claims had the effect of a compromise agreement since
it was entered into for the purpose of making a full and final compromise adjustment and settlement of the
cause of action involved.
8. ID.; ID.; COMPROMISE AGREEMENT; CONSTRUED. — A compromise is a contract
whereby the parties, by making reciprocal concessions, avoid a litigation or put an end to one already
commenced (Article 2028, Civil Code). The Release of Claims executed by the injured party himself wrote
finish to this litigation.
DECISION
MELENCIO-HERRERA, J p:
On 10 April 1985 a Complaint for damages arising from breach of contract of carriage was filed by
private respondents, the Spouses Sotero Cailipan, Jr. and Zenaida Lopez, and their son George, of legal age,
against petitioner Baliwag Transit (Baliwag, for brevity). The Complaint alleged that George, who was a
paying passenger on a Baliwag bus on 17 December 1984, suffered multiple serious physical injuries when
he was thrown off said bus driven in a careless and negligent manner by Leonardo Cruz, the authorized bus
driver, along Barangay Patubig, Marilao, Bulacan. As a result, he was confined in the hospital for treatment,
incurring medical expenses, which were borne by his parents, the respondent Spouses, in the sum of about
P200,000.00 plus other incidental expenses of about P10,000.00.
On 26 April 1985 an Answer was filed by petitioner alleging that the cause of the injuries sustained
by George was solely attributable to his own voluntary act in that, without warning and provocation, he
suddenly stood up from his seat and headed for the door of the bus as if in a daze, opened it and jumped off
while said bus was in motion, in spite of the protestations by the driver and without the knowledge of the
conductor.
Baliwag then filed a Third-Party Complaint against Fortune Insurance & Surety Company, Inc., on
its third-party liability insurance in the amount of P50,000.00. In its Answer, Fortune Insurance claimed
limited liability, the coverage being subject to a Schedule of Indemnities forming part of the insurance
policy.
On 14 November 1985 and 18 November 1985, respectively, Fortune Insurance and Baliwag each
filed Motions to Dismiss on the ground that George, in consideration of the sum of P8,020.50 had executed
a "Release of Claims" dated 16 May 1985. These Motions were denied by the Trial Court in an Order dated
13 January 1986 as they were filed beyond the time for pleading and after the Answer were already
filed. prcd
On 5 February 1986 Baliwag filed a Motion to Admit Amended Answer, which was granted by the
Trial Court. The Amended Answer incorporated the affirmative defense in the Motion to Dismiss to the
effect that on 16 May 1985, George had been paid all his claims for damages arising from the incident
subject matter of the complaint when he executed the following "Release of Claims":
"For and in consideration of the payment to me/us of the sum of EIGHT
THOUSAND TWENTY and 50/100 PESOS ONLY (P8,020.50), the receipt of which is
hereby acknowledged, I/we, being of lawful age, do hereby release, acquit and forever
discharge Fortune Insurance and/or Baliwag Transit, Inc. his/her heirs, executors and assigns,
from any and all liability now accrued or hereafter to accrue on account of any and all claims
or causes of action which I/we now or may hereafter have for personal injuries, damage to
property, loss of services, medical expenses, losses or damages of any and every kind or
nature whatsoever, now known or what may hereafter develop by me/us sustained or
received on or about 17th day of December, 1984 through Reckless Imprudence Resulting to
Physical Injuries, and I/we hereby declare that I/we fully understand the terms of this
settlement and voluntarily accept said sum for the purpose of making a full and final
compromise adjustment and settlement of the injuries and damages, expenses and
inconvenience above mentioned." (Rollo, p. 11)
During the preliminary hearing on the aforementioned affirmative defense, Baliwag waived the
presentation of testimonial evidence and instead offered as its Exhibit "1" the "Release of Claims" signed by
George and witnessed by his brother Benjamin L. Cailipan, a licensed engineer.
13
 By way of opposition to petitioner's affirmative defense, respondent Sotero Cailipan, Jr. testified that
he is the father of George, who at the time of the incident was a student, living with his parents and totally
dependent on them for their support; that the expenses for his hospitalization were shouldered by his
parents; and that they had not signed the "Release of Claims."
In an Order dated 29 August 1986, the Regional Trial Court of Bulacan, Branch 20, 1 dismissed the
Complaint and Third-party Complaint, ruling that since the contract of carriage is between Baliwag and
George L. Cailipan, the latter, who is of legal age, had the exclusive right to execute the Release of Claims
despite the fact that he is still a student and dependent on his parents for support. Consequently, the
execution by George of the Release of Claims discharges Baliwag and Fortune Insurance. Cdpr
Aggrieved, the Spouses appealed to respondent Court of Appeals.
On 22 October 1987, the Appellate Court rendered a Decision 2 setting aside the appealed Order and
holding that the "Release of Claims" cannot operate as a valid ground for the dismissal of the case because it
does not have the conformity of all the parties, particularly George's parents, who have a substantial interest
in the case as they stand to be prejudiced by the judgment because they spent a sizeable amount for the
medical bills of their son; that the Release of Claims was secured by Fortune Insurance for the consideration
of P8,020.50 as the full and final settlement of its liability under the insurance policy and not for the purpose
of releasing Baliwag from its liability as a carrier in this suit for breach of contract. The Appellate Court
also ordered the remand of the case to the lower Court for trial on the merits and for George to return the
amount of P8,020.50 to Fortune Insurance.
Hence, this Petition for Review on Certiorari by Baliwag assailing the Appellate Court judgment.
The issue brought to the fore is the legal effect of the Release of Claims executed by George during
the pendency of this case.
We hold that since the suit is one for breach of contract of carriage, the Release of Claims executed
by him, as the injured party, discharging Fortune Insurance and Baliwag from any and all liability is valid.
He was then of legal age, a graduating student of Agricultural Engineering, and had the capacity to do acts
with legal effect (Article 37 in relation to Article 402, Civil Code). Thus, he could sue and be sued even
without the assistance of his parents.
Significantly, the contract of carriage was actually between George, as the paying passenger, and
Baliwag, as the common carrier. As such carrier, Baliwag was bound to carry its passengers safely as far as
human care and foresight could provide, and is liable for injuries to them through the negligence or wilful
acts of its employees (Articles 1755 and 1759, Civil Code). Thus, George had the right to be safely brought
to his destination and Baliwag had the correlative obligation to do so. Since a contract may be violated only
by the parties thereto, as against each other, in an action upon that contract, the real parties in interest, either
as plaintiff or as defendant, must be parties to said contract (Marimperio Compania Naviera, S.A. vs. Court
of Appeals, No. L-40234, December 14, 1987, 156 SCRA 368). A real party-in-interest-plaintiff is one who
has a legal right while a real party-in-interest-defendant is one who has a correlative legal obligation whose
act or omission violates the legal right of the former (Lee vs. Romillo, Jr., G.R. No. 60973, May 28, 1988).
In the absence of any contract of carriage between Baliwag and George's parents, the latter are not real
parties-in-interest in an action for breach of that contract. Cdpr
"The general rule of the common law is that every action must be brought in the name
of the party whose legal right has been invaded or infringed." 15 Enc. P1. & Pr. p. 484. "For
the immediate wrong and damage the person injured is the only one who can maintain the
action." Id. p. 578. "The person who sustains an injury is the person to bring an action for the
injury against the wrongdoer." Dicey, parties to Actions, 347. (Cited in Green v. Shoemaker,
73 A 688, 23 L.R.A., N.S. 667).
There is no question regarding the genuineness and due execution of the Release of Claims. It is a
duly notarized public document. It clearly stipulates that the consideration of P8,020.50 received by George
was "to release and forever discharge Fortune Insurance and/or Baliwag from any and all liabilities now
accrued or to accrue on account of any and all claims or causes of action . . . for personal injuries, damage to
property, loss of services, medical expenses, losses or damages of any and every kind or nature whatsoever,
sustained by him on 17 December 1984 thru Reckless Imprudence Resulting to Physical Injuries."
Consequently, the ruling of respondent Appellate Court that the "Release of Claims" was intended only as
the full and final settlement of a third-party-liability for bodily injury claim and not for the purpose of
releasing Baliwag from its liability, if any, in a breach of a contract of carriage, has to be rejected for being
contrary to the very terms thereof. If the terms of a contract are clear and leave no doubt upon the intention
of the contracting parties, the literal meaning of its stipulations shall control (Article 1370, Civil Code). The
14
 phraseology "any and all claims or causes of action" is broad enough to include all damages that may accrue
to the injured party arising from the unfortunate accident.
The Release of Claims had the effect of a compromise agreement since it was entered into for the
purpose of making a full and final compromise adjustment and settlement of the cause of action involved. A
compromise is a contract whereby the parties, by making reciprocal concessions, avoid a litigation or put an
end to one already commenced (Article 2028, Civil Code). The Release of Claims executed by the injured
party himself wrote finish to this litigation.
WHEREFORE, the Decision dated 22 October 1987 of respondent Court of Appeals is SET ASIDE,
the Decision of the Regional Trial Court of Bulacan, Branch 20, is REINSTATED, and the Complaint and
Third-Party-Complaint are hereby ordered DISMISSED. No costs.
SO ORDERED.
||| (Baliwag Transit, Inc. v. Court of Appeals, G.R. No. 80447, [January 31, 1989], 251 PHIL 784-790)

6. [G.R. No. L-16086. May 29, 1964.]

M. RUIZ HIGHWAY TRANSIT, INC. and MARTIN BUENA, petitioners, vs.
COURT OF APPEALS, GUILLERMO MONSERRAT, and MARTA CONSIGNADO, respondents.

T. F. Cachero for petitioners.

Godofredo C. Montesines for respondents.

SYLLABUS
1. DAMAGES; CONTRACT OF CARRIAGE; LIABILITY FOR FAILURE TO PROVIDE SAFE
FLOOR IN PASSENGER BUS. — A common carrier neglects its duty to transport its passengers safely
where one of its passengers died because the floor of its bus gave way after a tire blow-out caused by
overcrowding, overspeeding and weak flooring.
2. ID.; ID.; CARRIER'S LIABILITY NOT DISCHARGED BY ERRONEOUS
AFFIDAVITS OF PARENTS OF VICTIM. — Signed statements of the claimants expressing their belief
that the transportation company is not liable to them are not proof that the latter have discharged their legal
liability to claimants, where such belief is erroneous and said claimants are ignorant.
3. ID.; ID.; MORAL DAMAGES AND ATTORNEY'S FEES AWARDED. — In a
contract of carriage breached by the passenger's death, moral damages and attorney's fees may be awarded.

DECISION
BENGZON, J p:
Appeal by certiorari from a decision of the Court of Appeals.
In the Laguna court of first instance, the spouses Guillermo Monserrat and Marta Consignado
sued M. Ruiz Highway Transit, Inc., and Martin Buena to recover damages for the death of their four-year
old daughter Victoria.
In the morning of May 22, 1954, said child and her parents were paying passengers in a
bus of defendant transportation company driven by co-defendant Buena, bound for Antipolo, Rizal. In Sta.
Rosa, Laguna, while the bus was running, a rear tire exploded, blasting a hole in the very place where
Victoria was standing in front of her mother. As a result, the child fell through the hole, and died that same
morning from injuries sustained in the fall.
The court of first instance dismissed the complaint on the ground that (1) the accident was not due to
negligence of the carrier, but was an act of God; and (2) even if negligence was attributable to defendants,
their liability had been discharged, as evidenced by Exhibits 2 and 3 quoted in the footnote. 1
On appeal by plaintiffs, the Court of Appeals reversed the judgment, upon the finding that (1)
defendants failed to prove the extraordinary diligence required of carriers; and (2) exhibits 2 and 3 did not
effect a waiver of plaintiffs' right to damages. Said appellate court, therefore required defendants to pay
plaintiffs P6,000 as indemnity for the child's death, P2,000.00 as moral damages and P500.00 as attorney's
fees, with interest from the date of its decision, minus the P150.00 that had been given to plaintiff Guillermo
Monserrat, thru Exhibit 3).

15
 In their petition for review by certiorari, the carrier and the driver raise the following issues: (1)
whether in a contract of carriage breached by the passenger's death, his parents may be granted moral
damages; and (2) whether the sum of P6,000.00 may be awarded as death indemnity for a child passenger.
In their brief, they pose the following questions in addition to the above issues: (3) was there a
contract of carriage between the deceased child and petitioner transportation company; (4) have petitioners
rebutted the presumption that they have been negligent; (5) was the bus crowded; (6) was the bus running
fast when the tire exploded; (7) what caused the bursting of the tire; (8) was the bus floor weak; (9) was the
blow-out of the tire caso fortuito; and (10) was petitioners' liability cancelled by Exhibits 2 and 3?
The alleged lack of contract of carriage between the deceased child and petitioner transportation
company, if true, is a complete defense against claimants' cause of action. However, the issue is now
inarguable, it being partly factual, on which the appellate court made its finding. cdll
Respondents and the child were paying passengers in the bus; petitioners were duty bound to
transport them, using the utmost diligence of very cautious persons (Art. 1755, New Civil Code). Therein
they failed. The child died because the floor of the bus gave way; this reinforces the presumption that
petitioners had neglected to provide a safe conveyance (Art. 1756, New Civil Code). Evidence of the
required extraordinary diligence was not introduced to rebut the presumption.
On the contrary, the appellate court found that the bus was overcrowded and overspeeding, and the
floor thereof was weak — persuasive indications of negligence; and reasoned out that the tire exploded due
to one or a combination of the following: "The tire was not strong and safe; the air pressure was not
properly checked; the load was heavy; the excessive speed of the bus must have overstrained the tire; and
the high velocity generated heat in the tire which could have expanded the already compressed air
therein." 2
Petitioners venture to guess that it was due either to accidental puncture by a sharp instrument, as a
nail, or to latent defect in the tire. Evidence should have been — but was not — presented to establish such
defense.
Even conceding that the tire blow-out was accidental, we could still hold the carrier liable for failure
to provide a safe floor in the bus.
Exhibits 2 and 3 are not proof that petitioners have discharged their legal liability to claimants. What
is expressed there is the latter's belief — clearly erroneous — that petitioners are not liable to them, and
acknowledgment of the voluntary help extended by petitioner transportation company. The belief is
baseless. That respondents entertained such an ill-founded impression is not to be wondered at. They are
ignorant, illiterate, indigent, and, at the time they signed Exhibit 2 and 3, thoroughly confused and distracted
by the death of their child.
The minimum death indemnity is P3,000 3 , although this Court has in various instances granted
P6,000.00. As for moral damages, the carrier is liable therefor to the parents of a child who meets death
while a passenger in any of the carrier's vehicles (Art. 2206 and 1764, New Civil Code). Since respondents
are indigents, and have litigated as paupers, they should be allowed attorney's fees of P500.00.
FOR THESE REASONS, the appealed decision is affirmed, with costs.
||| (M. Ruiz Highway Transit, Inc. v. Court of Appeals, G.R. No. L-16086, [May 29, 1964], 120 PHIL 102-106)

7. [G.R. No. L-24471. August 30, 1968.]

SILVERIO MARCHAN and PHILIPPINE RABBIT BUS CO., INC., petitioners, vs.
ARSENIO MENDOZA, LEONARDA ILAYA, and ZENAIDA MENDOZA, respondents.

Angel A. Sison for petitioners.

Manuel M. Crudo for respondents.

SYLLABUS
1. CIVIL LAW; CONTRACT OF CARRIAGE; RESPONSIBILITY FOR BREACH THEREOF. —
It is clear from Article 1759 of the Civil Code that common carriers cannot escape liability "for the death of
or injuries to passengers through the negligence and 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 . . . ." From Vda.
de Medina v. Cresencia, 99 Phil. 506 (1956), where this Court, through Justice J.B.L. Reyes, stressed the
"direct and immediate" liability of the carrier under the above legal provision, "not merely subsidiary or

16
 secondary," to Maranan v. Perez, L-22272, June 26, 1967, the invariable holding has been the responsibility
for breach of the contract of carriage on the part of the carrier.
2. ID.; ID.; ID.; COMPENSATORY DAMAGES; BASES FOR AWARD. — Considering that
respondent A. Mendoza was only in his middle twenties when, thru the negligence of petitioners, he lost the
use of his limbs, being condemned for the remainder of his life to be a paralytic, in effect leading a maimed,
well-nigh useless existence, the fixing of such liability in the amount of P40,000.00 as compensatory
damages was well within the discretion of the Court of Appeals.
3. ID.; ID.; ID.; EXEMPLARY DAMAGES; AWARD DISCRETIONARY UPON THE COURT;
MAY BE AWARDED EVEN THOUGH NOT EXPRESSLY PLEADED IN THE COMPLAINT. —
Suffice it to state that when plaintiffs prayed in their complaint for such other relief and remedies that may
be availed of under the premises, in effect, therefore, the court is called upon to exercise and use its
discretion on whether the imposition of punitive or exemplary damages even though not expressly prayed or
pleaded in the plaintiff's complaint is proper.
4. ID.; ID.; ID.; WHEN INTEREST ON DAMAGES AND ATTORNEY'S FEES BEGIN. —
Respondents are entitled to the sum of P40,000.00 in the concept of compensatory damages with interest at
the legal rate from and after the date of the decision of the lower court and the sum of P30,000.00 as
exemplary damages with interest at the legal rate from and after the date of the decision of the Court of
Appeals, as well as for the sum of P5,000.00 as attorney's fees, likewise earning a legal rate of interest from
and after the date of the decision of the lower court.

DECISION
FERNANDO, J p:
Petitioners, the driver of the passenger bus responsible for the injuries sustained by respondents for
which he was duly prosecuted and thereafter convicted for serious, less serious, and slight physical injuries,
and the bus firm, the Philippine Rabbit Bus Lines, seek the reversal of a Court of Appeals decision of
December 14, 1964 and a resolution of March 31, 1965, holding them liable both for compensatory and
exemplary damages as well as attorney's fees. It is the contention of petitioners that errors of law were
committed when, in the aforesaid decision, it was held that there was an implied contract of carriage
between the petitioner bus firm and respondents, the breach of which was the occasion for their liability for
compensatory and exemplary damages as well as attorney's fees.

The facts as found by the Court of Appeals follow: "In the evening of February 22, 1954, between
9:00 and 9:30 o'clock, a passenger bus No. 141 of the Philippine Rabbit Bus Lines, bearing Plate No. TPU-
708 which was then driven by Silverio Marchan fell into a ditch somewhere in barrio Malanday, Polo,
Bulacan, while travelling on its way to Manila; as a result of which plaintiffs-appellees Arsenio Mendoza,
his wife and child, [respondents in this proceedings], who were then inside the bus as passengers were
thrown out to the ground resulting in their multiple injuries. Plaintiff Arsenio Mendoza suffered the most
serious injuries which damaged his vertebrae causing the paralysis of his lower extremities which up to the
time when this case was tried he continued to suffer. The physician who attended and treated plaintiff
Arsenio Mendoza opined that he may never walk again. Consequently, the driver of said bus
Silverio Marchan [now petitioner] was prosecuted for serious, less serious and slight physical injuries
through reckless imprudence before the Justice of the Peace Court of Polo, Bulacan, and thereafter
convicted as charged on June 29, 1956 . . ., which judgment of conviction was subsequently affirmed by the
Court of First Instance of same province . . . In this present action before us, plaintiffs-appellees
Arsenio Mendoza, his wife and child sought to recover damages against the defendant-appellant
Silverio Marchan, then the driver of bus No. 141 of the Philippine Rabbit Bus Lines, and from defendants-
appellants Bienvenido P. Buan and Natividad Paras in their capacity as administrator and administratrix,
respectively, of the estate of the late Florencio P. Buan, doing business under the style name of the
Philippine Rabbit Bus Lines, predicated not only on a breach of contract of carriage for failure of defendants
operator as well as the defendant driver to safely convey them to their destination, but also on account of a
criminal negligence on the part of defendant Silverio Marchan resulting to plaintiff-appellee's multiple
physical injuries." 1
The Court of Appeals in the decision under review found that there was a preponderance of evidence
to the effect that while respondents Arsenio Mendoza, his wife, Leonarda Ilaya, and child,
Zenaida Mendoza "were waiting for a passenger bus on January 22, 1954 at about 9:00 in the evening at
Malanday, they boarded defendants- appellants' bus bearing No. 141 of the Philippine Rabbit Bus Lines
with Plate No. TPU-708 bound for Manila. And they were treated as passengers thereto, for they paid their
corresponding fares. As they travelled along the highway bound for Manila, said bus was traveling at a high
17
rate of speed without due regard to the safety of the passengers. So much so that one of the passengers had
to call the attention of Silverio Marchan who was then at the steering wheel of said bus to lessen the speed
or to slow down, but then defendant Silverio Marchan did not heed the request of said passenger; neither did
he slacken his speed. On the contrary, defendant Silverio Marchan even increased his speed while
approaching a six-by-six truck which was then parked ahead, apparently for the purpose of passing the said
parked truck and to avoid collision with the incoming vehicle from the opposite direction. But, when
appellant Silverio Marchan veered his truck to resume position over the right lane, the rear tires of said truck
skidded because of his high rate of speed, thereby causing said truck to fall into a ditch. Substantially, the
happening of the accident resulting to the multiple injuries of plaintiffs-appellees, was explained by
defendant Silverio Marchan who declared that while he was driving his bus from barrio Malanday bound
towards Manila on a road test, he suddenly noticed an oncoming vehicle. He thus shifted his light from dim
to bright. Just then, he noticed a six-by-six truck parked on the right lane of the road where he was driving.
Confronted with such situation that if he would apply his brake he would bump his bus against the parked
truck he then increased his speed with the view of passing the said parked truck, and thereafter he veered to
negotiate for the proper position on the right lane, but in so doing he swerved to the right in order to avoid
collision from the oncoming vehicle the rear portion of the bus skidded and fell into the ditch." 2
Hence the finding of negligence in the decision under review. Thus: "From the facts as established
preponderantly by the plaintiff and substantially corroborated by the defendant Silverio Marchan, it is clear
that the cause of the accident was the gross negligence of the defendant Silverio Marchan who when driving
his vehicle on the night in question was expected to have employed the highest degree of care; and should
have been assiduously prudent in handling his vehicle to insure the safety of his passengers. There is no
reason why he could not have stopped his vehicle when noticing a parked truck ahead of him if he was not
driving at a high speed. His admission to the effect that if he would apply his brake he would bump or hit
the parked truck ahead of him, since there was no time for him to stop the bus he was driving, is a patent
indication that he was travelling at a high rate of speed without taking the necessary precaution under the
circumstance, considering that it was then nighttime. It is our considered view that under the situation as
pictured before us by the driver of said bus, he should not have increased his speed and bypassed the parked
truck obviously with the view of preventing a collision with the incoming vehicle. Any prudent person
placed under the situation of the appellant would not have assumed the risk as what appellant did. The most
natural reaction that could be expected from one under the circumstance was for him to have slackened and
reduced his speed. But this was not done simply because defendant-appellant could not possibly do so under
the circumstance because he was then travelling at a high rate of speed. In fact, he had increased his speed in
order to avoid ramming the parked truck without, however, taking the necessary precaution to insure the
safety of his passengers." 3
On the above facts, the Court of Appeals, in its decision of December 14, 1964, affirmed the amount
of P40,000.00 awarded by the court below as compensatory damages modifying the appealed lower court
decision by holding petitioners to pay the amount of P30,000.00 as exemplary damages and sustaining the
award of attorney's fees in the amount of P5,000.00. Then came the resolution of March 31, 1965 by the
Court of Appeals, where the motion for reconsideration of petitioners was denied for lack of merit.
In their brief as petitioners, the first error assigned is the alleged absence of an implied contract of
carriage by the petitioner bus firm and respondents. On this point, it was the holding of the Court of
Appeals: "Since it is undisputed by the evidence on record that appellant Silverio Marchan was then at the
steering wheel of the vehicle of the defendant transportation company at that moment, the riding public is
not expected to inquire from time to time before they board the passenger bus whether or not the driver who
is at the steering wheel of said bus was authorized to drive said vehicle or that said driver is acting within
the scope of his authority and observing the existing rules and regulations required of him by the
management. To hold otherwise would in effect render the aforequoted provision of law (Article 1759)
ineffective." 4 It is clear from the above Civil Code provision that common carriers cannot escape liability
"for the death of or injuries to passengers through the negligence and 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 . . ." 5 From Vda. de Medina v. Cresencia, 6 where this Court, through Justice J. B. L. Reyes,
stressed the "direct and immediate" liability of the carrier under the above legal provision, "not merely
subsidiary or secondary," to Maranan v. Perez, 7 a 1967 decision, the invariable holding has been the
responsibility for breach of the contract of carriage on the part of the carrier. According to the facts as
above disclosed, which this Court cannot disturb, the applicability of Article 1759 is indisputable. Hence,
the total absence of merit of the first assignment of error.
The next two errors assigned would dispute the holding of the Court of Appeals in imposing liability
in the respective amounts of P40,000.00 for compensatory damages and P30,000.00 for exemplary damages.

18
Again, such assignments of error cannot be looked upon with favor. What the Court of Appeals did deserves
not reprobation but approval by this Court.
As to why the amount in compensatory damages should be fixed in the sum of P40,000.00 is
explained in the appealed decision thus: "Likewise, it is our considered view that the amount of P40,000.00
awarded by the court below as compensatory damages is quite reasonable and fair, considering that plaintiff
Arsenio Mendoza had suffered paralysis on the lower extremities, which will incapacitate him to engage in
his customary occupation throughout the remaining years of his life, especially so if we take into account
that plaintiff Arsenio Mendoza was only 26 years old when he met an accident on January 22, 1954; and
taking the average span of life of a Filipino, he may be expected to live for 30 years more; and bearing in
mind the earning capacity of Arsenio Mendoza who before the happening of this accident derived an income
of almost P100.00 a month from the business of his father-in-law as Assistant Supervisor of the small [fairs]
and his income of P100.00 a month which he derived as a professional boxer." 8 Considering that
respondent Arsenio Mendoza was only in his middle twenties when, thru the negligence of petitioners, he
lost the use of his limbs, being condemned for the remainder of his life to be a paralytic, in effect leading a
maimed, well-nigh useless existence, the fixing of such liability in the amount of P40,000.00 as
compensatory damages was well within the discretion of the Court of Appeals.
As to the finding of liability for exemplary damages, the Court of Appeals, in its resolution of March
31, 1965, stated the following: "We now come to the imposition of exemplary damages upon defendants-
appellants' carrier. It is argued that this Court is without jurisdiction to adjudicate this exemplary damages
since there was no allegation nor prayer, nor proof, nor counterclaim of error for the same by the appellees.
It is to be observed, however, that in the complaint, plaintiffs 'prayed for such other and further relief as this
Court may deem just and equitable.' Now, since the body of the complaint sought to recover damages
against the defendant-carrier wherein plaintiffs prayed for indemnification for the damages they suffered as
a result of the negligence of said Silverio Marchan who is appellant's employee; and since exemplary
damages is intimately connected with general damages, plaintiffs may not be expected to single out by
express term the kind of damages they are trying to recover against the defendant's carrier. Suffice it to state
that when plaintiffs prayed in their complaint for such other relief and remedies that may be availed of under
the premises, in effect, therefore, the court is called upon to exercise and use its discretion whether the
imposition of punitive or exemplary damages even though not expressly prayed or pleaded in the plaintiffs'
complaint." 9
In support of the above view, Singson v. Aragon was cited by the Court of Appeals. 10 As was there
held by this Court: "From the above legal provisions it appears that exemplary damages may be imposed by
way of example or correction only in addition, among others, to compensatory damages, but that they
cannot be recovered as a matter of right, their determination depending upon the discretion of the court. It
further appears that the amount of exemplary damages need not be proved, because its determination
depends upon the amount of compensatory damages that may be awarded to the claimant. If the amount of
exemplary damages need not be proved, it need not also be alleged, and the reason is obvious because it is
merely incidental or dependent upon what the court may award as compensatory damages. Unless and until
this premise is determined and established, what may be claimed as exemplary damages would amount to a
mere surmise or speculation. It follows as a necessary consequence that the amount of exemplary damages
need not be pleaded in the complaint because the same cannot be predetermined. One can merely ask that it
be determined by the court if in the use of its discretion the same is warranted by the evidence, and this is
just what appellee has done."
Such a principle has been repeatedly upheld. 11 In Corpuz v. Cuaderno, 12 this Court, again
through Justice J. B. L. Reyes, made clear that the amount "lies within the province of the court a quo, . . . "
It must be admitted, of course, that where it could be that a tribunal acted "with vindictiveness or
wantonness and not in the exercise of honest judgment," then there is room for the interposition of the
corrective power of this Tribunal.
No such reproach can be hurled at the decision and resolution now under review. No such indictment
would be justified. As noted earlier, both the second and the third assignments of error are devoid of merit.
Nor is there any occasion to consider further the fourth assigned error, petitioner being dissatisfied
with the award of P5,000.00 as attorney's fees to respondents. On its face, such an assignment of an alleged
error is conspicuously futile.
The judgment, however, must be modified in accordance with the ruling of this Court in Soberano v.
Manila Railroad Co. 13 Respondents are entitled to interest for the amount of compensatory damages from
the date of the decision of the lower court and legal interest on the exemplary damages from the date of the
decision of the Court of Appeals.
19
 WHEREFORE, as thus modified, the decision is affirmed, petitioners being liable for the sum of
P40,000.00 in the concept of compensatory damages with interest at the legal rate from and after January
26, 1960, and the sum of P30,000.00 as exemplary damages with interest at the legal rate from and after
December 14, 1964, as well as for the sum of P5,000.00 as attorney's fees, likewise earning a legal rate of
interest from and after January 26, 1960. Costs against petitioners.
||| (Marchan v. Mendoza, G.R. No. L-24471, [August 30, 1968], 133 PHIL 940-948)

8. [G.R. Nos. L-21353 and L-21354. May 20, 1966.]

GREGORIO ANURAN, MARIA MALIGAYA, LAPAZ LARO, ET AL., petitioners, vs. PEPITO
BUÑO, PEDRO GAHOL, LUISA ALCANTARA, GUILLERMO RAZON, ANSELMO
MALIGAYA and CEFERINA ARO, respondents.

Victoriano A. Endaya for petitioners.

Trinidad & Borromeo for respondents Buño, et al.
Contreras & Adapon for respondents Razon, et al.

SYLLABUS
1. COMMON CARRIERS; DUTY TO TRANSPORT PASSENGERS SAFELY; LIABILITY OF
DRIVER AND OWNER OF VEHICLE. — The driver and the owner of the vehicle must answer for
injuries to its passengers resulting from the negligence of the driver.
2. ID.; ID.; APPLICATION OF PRINCIPLE OF LAST CLEAR CHANCE. — The principle of "last
clear chance" applies in a suit between the owners and drivers of two colliding vehicles. It does not arise
where a passenger demands responsibility from the carrier to enforce its contractual obligation.

DECISION
BENGZON, C.J p:
At noon of January 12, 1958, a passenger jeepney was parked on the road to Taal, Batangas. A
motor truck speeding along, negligently bumped it from behind, with such violence that three of its
passengers died, even as two others (passengers too) suffered injuries that required their confinement at the
Provincial Hospital for many days.
So, in February 1958 these suits were instituted by the representatives of the dead and of the injured,
to recover consequential damages against the driver and the owners of the truck and also against the driver
and the owners of the jeepney.
The Batangas court of first instance, after trial, rendered judgment absolving the driver of the
jeepney and its owners, but it required the truck driver and the owners thereof to make compensation.
The plaintiffs appealed to the Court of Appeals insisting that the driver and the owners of the
jeepney should also be made liable for damages.
The last mentioned court, upon reviewing the record, declared that:
"It is admitted that at about noon-time on January 13, 1958, the passenger jeepney
owned by defendants spouses Pedro Gahol and Luisa Alcantara, bearing plate No. TPU-13548,
then being driven by their regular driver, defendant Pepito Buño, was on its regular route
travelling from Mahabang Ludlod, Taal, Batangas, towards the poblacion of the said
municipality. When said passenger jeepney crossed the bridge separating Barrios Mahabang
Ludlod and Balisong, Taal, Batangas, it had fourteen passengers, excluding the driver,
according to the testimony of defendant Buño (pp. 12 & 18, t.s.n. July 17, 1958), or sixteen
passengers according to the testimony of plaintiff Edita de Sagun, (pp. 9, 12 & 13, t.s.n. June
26, 1958). However, the facts remains that the vehicle was overloaded with passengers at the
time, because according to the partial stipulation of facts "the maximum capacity of the
Jeepney bearing plate No. TPU-13548 of said defendants was eleven (11) passengers including
the driver." (Printed Rec. on Appeal, pp. 35, 37.)
"After crossing the bridge, defendant Buño stopped his vehicle in order to allow one of
his passengers to alight. But he so parked his jeepney in such a way that one-half of its width
(the left wheels) — was on the asphalted pavement of the road and the other half, on the right
shoulder of said road (pp. 21-22, t.s.n. May 26, 1958; p. 12 t.s.n. July 17, 1958).
20
 Approximately five minutes later and before Buño could start his vehicle, a speeding water
truck, which bore plate No. T-17526 and owned by defendants-spouses Anselmo Maligaya and
Ceferina Aro, then being driven by Guillermo Razon from the direction of Mahabang Ludlod,
Taal, Batangas, towards the poblacion of that municipality, violently smashed against the
parked jeepney from behind, causing it to turn turtle into a nearby ditch."
Then said Appellate Court went on to affirm the exoneration of the jeepney driver and of its owners.
It explained that although "the driver of the ill-starred vehicle Was not free from fault, for he was guilty of
an antecedent negligence in parking his vehicle with a portion thereof occupying the asphalted road", it
considered the truck driver guilty of greater negligence which was the efficient cause of the collision; and
applying the doctrine of the "last clear chance" 1 said court ordered the owners of the truck to pay, solidarily
with its driver, damages as follows:
". . . the sum of P6,000.00 for the death of their daughter Emelita, another sum of
P5,000.00 as moral damages and the sum of P500.00 as actual damages, and to plaintiffs
Simplicio, Alberto, Avelina and Alfredo, all surnamed Arriola, and represented by their
guardian ad litem Agustin Arriola, the sum of P6,000.00 for the death of their natural mother,
Leonor Masongsong, another sum of P5,000.00 as moral damages, the sum of P3,600.00 for
loss of earning capacity of said deceased and the sum of P850.00 as actual damages."
The plaintiff brought the matter to this Supreme Court insisting that the driver and the owners of the
jeepney should also be made liable.
We gave due course to the petition for review, because we thought the decision meant exoneration of
the carrier from liability to its passengers, notwithstanding the negligence of its driver.
Upon further and more extended consideration of the matter, we have become convinced that error
of law was committed in releasing the jeepney from liability. It must be remembered that the obligation of
the carrier to transport its passengers safely is such that the New Civil Code requires "utmost diligence"
from the carriers (Act. 1755) who are "presumed to have been at fault or to have acted negligently, unless
they prove that they have observed extraordinary diligence" (Art. 1756). In this instance, this legal
presumption of negligence is confirmed by the Court of Appeals' finding that the driver of the jeepney in
question was at fault in parking the vehicle improperly. It must follow that the driver — and the owners —
of the jeepney must answer for injuries to its passengers.
The principle about the "last clear chance" would call for application in a suit between the owners
and drivers of the two colliding vehicles. It does not arise where a passenger demands responsibility from
the carrier to enforce its contractual obligation. For it would be inequitable to exempt the negligent driver of
the jeepney and its owners on the ground that the other driver was likewise guilty of negligence.
Now, as to damages. The driver and the owners of the truck have not appealed from the Court of
Appeals' assessment. 'The plaintiffs (petitioners) have not asked here for a greater amount of indemnity.
They merely pray for a declaration that Pepito Buño, Pedro Gahol and Luisa Alcantara (the driver and the
owners of the jeepney, respectively) be declared jointly and severally liable with the other defendants.
WHEREFORE, affirming the decision under review, we hereby modify it in the sense prayed for by
plaintiffs-petitioners. The three defendants last mentioned are required to pay solidarily with the other
defendants-respondents the amounts fixed by the appealed decision. Costs of both appeals against said three
defendants. So ordered.
||| (Anuran v. Buño, G.R. Nos. L-21353 and L-21354, [May 20, 1966], 123 PHIL 1073-1077)

21
9. [G.R. No. L-22985. January 24, 1968.]
BATANGAS TRANSPORTATION COMPANY, petitioner, vs.
GREGORIO CAGUIMBAL, PANCRACIO CAGUIMBAL, MARIA MARANAN DE
CAGUIMBAL, BIÑAN TRANSPORTATION COMPANY and MARCIANO
ILAGAN, respondents.

Ozaeta, Gibbs & Ozaeta and Domingo E. de Lara for the petitioner.
Victoriano H. Endaya for the respondents.

SYLLABUS
1. COMMON CARRIERS; CONTRACT OF CARRIAGE; DUTY OF CARRIER TOWARDS
PASSENGERS; ACTION TO RECOVER DAMAGE FOR BREACH OF CONTRACT OF CARRIAGE;
FINDINGS AS TO NEGLIGENCE; DUTY OF COURT. — In an action based on a contract of carriage,
the court need not make an express finding of fault or negligence on the part of the carrier in order to hold it
responsible to pay the damages sought for by the passenger. By the contract of carriage, the carrier assumes
the express obligation to transport the passenger to his destination safely and to observe extraordinary
diligence with a due regard for all the circumstances, and any injury that might be suffered by the passenger
is right away attributable to the fault or negligence of the carrier (Article 1756, new Civil Code). This is an
exception to the general rule that negligence must be proved, and it is therefore incumbent upon the carrier
to prove that it has exercised extraordinary diligence as prescribed in Article 1733 and 1755 of the new Civil
Code. (Brito Sy v. Malata Taxicab & Garage, Inc. 102 Phil. 482).
2. ID.; ID.; ATTORNEY'S FEES. — Where respondents were forced to litigate for over thirteen
(13) years to vindicate their rights, and the public utility operators are not conscious of the nature and extent
of their responsibility in respect of the safety of their passengers; and their duty to exercise greater care in
the selection of drivers and conductors and in supervising the performance of their duties, in accordance, not
only with Article 1733 of the Civil Code of the Philippines, but also, with Articles 1755 and 1756 thereof, as
disclosed by the letter thereof, award of attorney's fees is authorized under Article 2208, paragraph 11
thereof.

DECISION
CONCEPCION, C.J p:
Appeal by certiorari from a decision of the Court of Appeals.
The main facts are set forth in said decision from which we quote:
"There is no dispute at all that the deceased Pedro Caguimbal, Barrio Lieutenant of
Barrio Calansayan, San Jose, Batangas, was a paying passenger of BTCO bus, with plate TPU-
507, going south on its regular route from Calamba, Laguna, to Batangas, Batangas, driven by
Tomas Perez, its regular driver, at about 5:30 o'clock on the early morning of April 25, 1954.
The deceased's destination was his residence at Calansayan, San Jose, Batangas. The bus of the
Biñan Transportation Company, bearing plate TPU-820, driven by Marciano Ilagan, was
coming from the opposite direction (north-bound). Along the national highway at Barrio
Daraza, Tanauan, Batangas, on the date and hour above indicated, a horse-driven rig (calesa)
managed by Benito Makahiya, which was then ahead of the Biñan bus, was also coming from
the opposite direction, meaning proceeding towards the north. As to what transpired thereafter,
the lower court chose to give more credence to defendant Batangas Transportation Company's
version which, in the words of the Court a quo, is as follows: 'As the BTCO bus was nearing a
house, a passenger requested the conductor to stop as he was going to alight, and when he
heard the signal of the conductor, the driver Tomas Perez slowed down his bus swerving it
farther to the right in order to stop; at this juncture, a calesa then driven by Benito Makahiya
was at a distance of several meters facing the BTCO bus coming from the opposite direction;
that at the same time the Biñan bus was about 100 meters away likewise going northward and
following the direction of the calesa; that upon seeing the Biñan bus, the driver of the BTCO
bus dimmed his light as established by Magno Ilaw, the very conductor of the Biñan bus at the
time of the accident; that as the calesa and the BTCO bus were passing each other from the
opposite directions, the Biñan bus following the calesa swerved to its left in an attempt to pass
between the BTCO bus and the calesa; that without diminishing its speed of about seventy (70)
kilometers an hour, the Biñan bus passed through the space between the BTCO bus and
the calesa hitting first the left side of the BTCO bus with the left front corner of its body and
then bumped and struck the calesa which was completely wrecked; that the driver was
22
 seriously injured and the horse was killed; that the second and all other posts supporting the top
of the left side of the BTCO bus were completely smashed and half of the back wall to the left
was ripped open (Exhibits 1 and 2). The BTCO bus suffered damages for the repair of its
damaged portion.'
As a consequence of this occurrence, two (2) passengers of BTCO died, namely, Pedro Caguimbal
and Guillermo Tolentino, apart from others who were injured. The widow and children of Caguimbal
instituted the present action, which was tried jointly with a similar action of the Tolentinos, to recover
damages from the Batangas Transportation Company, hereinafter referred to as BTCO. The latter, in turn,
filed a third-party complaint against the Biñan Transportation Company — hereinafter referred to as Biñan
— and its driver, Marciano Ilagan. Subsequently, the Caguimbals amended their complaint, to include
therein, as defendants, said Biñan and Ilagan.
After appropriate proceedings, the Court of First Instance of Batangas rendered a decision
dismissing the complaint insofar as the BTCO is concerned, without prejudice to plaintiffs' right to sue
Biñan — which had stopped participating in the proceedings herein, owing, apparently, to a case in the
Court of First Instance of Laguna for the insolvency of said enterprise — and Ilagan, and without
pronouncement as to costs.
On appeal taken by the Caguimbals, the Court of Appeals reversed said decision and rendered
judgment for them, sentencing the BTCO, Biñan and Ilagan to, jointly and severally, pay to the plaintiffs the
aggregate sum of P10,500.00 1 and the costs in both instances. Hence, this appeal by BTCO, upon the
ground that the Court of Appeals erred: 1) in finding said appellant liable for damages; and 2) in awarding
attorney's fees.
In connection with the first assignment of error, we note that the recklessness of defendant Ilagan
was, manifestly, a major factor in the occurrence of the accident which resulted, inter alia, in the death of
Pedro Caguimbal. Indeed, as driver of the Biñan bus, he overtook Benito Makahiya's horse-driven rig
or calesa and passed between the same and the BTCO bus despite the fact that the space available was not
big enough therefor, in view of which the Biñan bus hit the left side of the BTCO bus and then the calesa.
This notwithstanding, the Court of Appeals rendered judgment against the BTCO, upon the ground that its
driver, Tomas Perez, had failed to exercise the "extraordinary diligence," required in Article 1733 of the
new Civil Code, "in the vigilance for the safety" of his passengers. 2
The record shows that, in order to permit one of them to disembark, Perez drove his BTCO bus
partly to the right shoulder of the road and partly on the asphalted portion thereof. Yet, he could have and
should have seen to it — had he exercised "extraordinary diligence" — that his bus was completely outside
the asphalted portion of the road, and fully within the shoulder thereof, the width of which being more than
sufficient to accommodate the bus. He could have and should have done this, because, when the
aforementioned passenger expressed his wish to alight from the bus, Ilagan had seen the aforementioned
"calesa", driven by Makahiya, a few meters away, coming from the opposite direction, with the Biñan bus
about 100 meters behind the rig, cruising at a good speed. 3 When Perez slowed down his BTCO bus to
permit said passenger to disembark, he must have known, therefore, that the Biñan bus would overtake the
"calesa", at about the time when the latter and BTCO bus would probably be on the same line, on opposite
sides of the asphalted portions of the road, and that the space between the BTCO bus and the "calesa" would
not be enough to allow the Biñan bus to go through. It is true that the driver of the Biñan bus should have
slowed down or stopped, and, hence, was reckless in not doing so; but, he had no especial obligations
towards the passengers of the BTCO, unlike Perez whose duty was to exercise "utmost" or "extraordinary"
diligence for their safety. Perez was thus under obligation to avoid a situation which would be hazardous for
his passengers, and make their safety dependent upon the diligence of the Biñan driver. Such obligation
becomes more patent which we consider the fact — of which the Court may take judicial cognizance — that
our motor vehicle drivers, particularly those of public utilities, have not distinguished themselves for their
concern over the safety, the comfort or the convenience of others. Besides, as correctly stated in the syllabus
to Brito Sy vs. Malate Taxicab & Garage, Inc. 4
"In an action based on a contract of carriage, the court need not make an express
finding of fault or negligence on the part of the carrier in order to hold it responsible to pay the
damages sought for by the passenger. By the contract of carriage, the carrier assumes the
express obligation to transport the passenger to his destination safely and to observe
extraordinary diligence with a due regard for all the circumstances, and any injury that might
be suffered by the passenger is right away attributable to the fault or negligence of the carrier
(Article 1756, new Civil Code). This is an exception to the general rule that negligence must be

23
 proved, and it is therefore incumbent upon the carrier to prove that it has exercised
extraordinary diligence as prescribed in Article 1733 and 1755 of the new Civil Code."
In the case at bar, BTCO has not proven the exercise of extraordinary diligence on its part. For this
reason, the case of Isaac vs. A.L. Ammen Trans. Co., Inc., 5 relied upon by BTCO, is not in point, for, in
said case, the public utility driver had done "everything he could to avoid" the accident, and could not have
possibly avoided it, for he "swerved the bus to the very extreme right of the road," which the driver, in the
present case, had failed to do.
As regards the second assignment of error, appellant argues that the award of attorney's fees is not
authorized by law, because, of the eleven (11) cases specified in Article 1208 of the new Civil Code, only
the fifth and the last are relevant to the one under consideration; but the fifth case requires bad faith, which
does not exist in the case at bar. As regards the last case, which permits the award, "where the court deems it
just and equitable that attorney's fees . . . should be recovered," it is urged that the evidence on record does
not show the existence of such just and equitable grounds.
We, however, believe otherwise, for: (1) the accident in question took place on April 25, 1954, and
the Caguimbals have been constrained to litigate for over thirteen (13) years to vindicate their rights; and (2)
it is high time to impress effectively upon public utility operators the nature and extent of their
responsibility in respect of the safety of their passengers and their duty to exercise greater care in the
selection of drivers and conductors and in supervising the performance of their duties, in accordance, not
only with Article 1733 of the Civil Code of the Philippines, but, also, with Articles 1755 and 1756
thereof 6 and the spirit of these provisions, as disclosed by the letter thereof, and elucidated by the
Commission that drafted the same. 7
Wherefore, the decision appealed from should be, as it is hereby affirmed, with the costs of this
instance against appellant Batangas Transportation Company.
||| (Batangas Transportation Co. v. Gregorio Caguimbal, G.R. No. L-22985, [January 24, 1968], 130 PHIL
166-172)

10. [G.R. No. 56487. October 21, 1991.]

REYNALDA GATCHALIAN, petitioner, vs. ARSENIO DELIM and the HON. COURT OF
APPEALS, respondents.

Pedro G. Peralta for petitioner.

Florentino G. Libatique for private respondent.

SYLLABUS
1. CIVIL LAW; HUMAN RELATIONS; WAIVER OF RIGHT; RULE FOR ITS VALIDITY. — 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. 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.
2. ID.; ID.; ID.; MUST NOT BE CONTRARY TO LAW, MORALS, PUBLIC POLICY AND GOOD
CUSTOMS. — 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. 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. We believe such a purported waiver is offensive to public
policy.
3. ID.; COMMON CARRIER; PRESUMED AT FAULT OR HAD ACTED NEGLIGENTLY IN CASE OF
DEATH OR INJURIES TO PASSENGERS. — We have already noted that a duty to exercise extraordinary
diligence in protecting the safety of its passengers is imposed upon a common carrier. 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." 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. To overcome
24
this presumption, the common carrier must show to the court that it had exercised extraordinary diligence to
present the injuries. 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".
4. ID.; ID.; ID.; MAY BE OVERTURNED BY PROOF OF EXERCISE OF EXTRAORDINARY
DILIGENCE; NOT ESTABLISHED IN CASE AT BAR. — 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. 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 failure 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 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.
5. ID.; ID.; ID.; FORCE MAJEURE AS AN EXEMPTION; RULE. — 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, the Court summed up the
essential characteristics of force majeure by quoting with approval from the Encyclopedia Juridica Española.
6. ID.; DAMAGES; ACTUAL DAMAGES FOR LOSS OF EMPLOYMENT; NOT AVAILABLE IN CASE
AT BAR. — The claim relates to revenue which petitioner said she failed to 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. 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.
7. ID.; ID.; ACTUAL DAMAGE TO COVER THE COST OF PLASTIC SURGERY FOR THE REMOVAL
OF SCAR; PROPER IN CASE AT BAR. — 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.

25
DECISION
FELICIANO, J p:
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 a ditch. 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;
xxx xxx xxx
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.

xxx xxx xxx 2

(Emphasis 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 1/2
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 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. prLL
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.

26
 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." (Emphasis
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 is illustrated in Yepes and
Susaya v. Samar Express Transit (supra), where the Court in reading and rejecting a purported waiver said:
" . . . 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.' . . . .
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." (Emphasis supplied) cdphil
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 signed 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 intended 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
27
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 present 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 Encyclopedia Juridica 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.' LLphil
In its dissertation on the phrase 'caso fortuito' the Encyclopedia Juridica 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 failure 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 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 to 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
28
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. vs. Arreglado, 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 than 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 the 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.
xxx xxx xxx
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.
. . . 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. (Emphasis 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 amount 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's 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 petitioner'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. LLphil
SO ORDERED.||| (Gatchalian v. Delim, G.R. No. 56487, [October 21, 1991], 280 PHIL 137-151)
29
11. [G.R. No. L-10126. October 22, 1957.]
SALUD VILLANUEVA VDA. DE BATACLAN and the minors NORMA, LUZVIMINDA,
ELENITA, OSCAR and ALFREDO BATACLAN, represented by their Natural guardian,
SALUD VILLANUEVA VDA. DE BATACLAN, plaintiffs-appellants, vs.
MARIANO MEDINA, defendant-appellant.

Lope E. Adriano, Emmanuel Andamo and Jose R. Francisco for plaintiffs-appellants.

Fortunato Jose for defendant-appellant.

SYLLABUS
1. DAMAGES; CARRIER'S LIABILITY; WORDS AND PHRASES; PROXIMATE CAUSE
DEFINED. — "The proximate legal cause is that the acting first and producing the injury, either
immediately or by setting other events in motion., all constituting a natural and continuous chain of events,
each having a close causal connection with its immediate predecessor, the final event in the chain
immediately affecting the injury as a natural and probable result of the cause which first acted, under such
circumstances that the person responsible for the first event should, as ordinarily prudent and intelligent
person, have reasonable ground to expect at the moment of his act or default that an injury to some person
might be probably result therefrom."
2. ID.; ID.; OVERTURNING OF BUS; PROXIMATE CAUSE OF DEATH. — When a vehicle
turned not only on its side but completely on its back, the leaking of the gasoline from the tank was not
unnatural or unexpected; that the coming of the men with the lighted torch was in response to the call for
help, made not only by the passengers, but most probably by the driver and the conductor themselves, and
that because it was very dark (about 2:30 in the morning), the rescuers had to carry a light with them; and
coming as they did from a rural area where the lanterns and flashlights were not available, they had to use a
torch the most handy and available; and what was more natural, that said rescuers should innocently
approached the overtuned vehicle to extend the aid and effect the rescue requested from them. Held: That
the proximate cause of the death of B was overturning of the vehicle thru the negligence of defendant and
his agent.
3. ID.; ID.; CARRIER'S NEGLIGENCE; BURNING OF THE BUS. — The burning of the bus
wherein some of the passengers were trapped can also be attributed to the negligence of the carrier, through
the driver and conductor who were on the road walking back and forth. They should and must have known
that in the position in which the overtuned bus was, gasoline could and must have leaked from the gasoline
tank and soaked the area in and around the bus, this aside from the fact that gasoline when spilled,
especially over a large area, can be smelt and detected even from a distance, Held: That the failure of the
driver and the conductor to have cautioned or taken steps to warn the rescuers not to bring the lighted torch
too near the bus, constitute negligence on the part of the agents of the carrier under the provisions of the
Civil Code, particularly, Article 1733, 1759 and 1763 thereof.

DECISION
MONTEMAYOR, J p:
Shortly after midnight, on September 13, 1952, bus No. 30 of the Medina Transportation, operated
by its owner, defendant Mariano Medina, under a certificate of public convenience, left the town of
Amadeo, Cavite, on its way to Pasay City, driven by its regular chauffeur, Conrado Saylon. There were
about eighteen passengers, including the driver and conductor. Among the passengers were Juan Bataclan,
seated beside and to the right of the driver, Felipe Lara, seated to the right of Bataclan, another passenger
apparently from the Visayan Islands whom the witnesses just called Visaya, apparently not knowing his
name, seated on the left side of the driver, and a woman named Natalia Villanueva, seated just behind the
four last mentioned. At about 2 :00 o'clock that same morning, while the bus was running within the
jurisdiction of Imus, Cavite, one of the front tires burst and the vehicle began to zig-zag until it fell into a
canal or ditch on the right side of the road and turned turtle. Some of the passengers managed to leave the
bus the best way they could, others had to be helped or pulled out, while the three passengers seated beside
the driver, named Bataclan, Lara and the Visayan and the woman behind them named Natalia Villanueva,
could not get out of the overturned bus. Some of the passengers, after they had clambered up to the road,
heard groans and moans from inside the bus, particularly, shouts for help from Bataclan and Lara, who said
that they could not get out of the bus. There, is nothing in the evidence to show whether or not the
passengers already free from the wreck, including the driver and the conductor, made any attempt to pull out
or extricate and rescue the four passengers trapped inside the vehicle, but calls or shouts for help were made
to the houses in the neighborhood. After half an hour, came about ten men, one of them carrying a lighted

30
torch made of bamboo with a wick on one end, evidently fueled with petroleum. These men presumably
approached the overturned bus, and almost immediately, a fierce fire started, burning and all but consuming
the bus, including the four passengers trapped inside it. It would appear that as the bus overturned, gasoline
began to leak and escape from the gasoline tank on the side of the chassis, spreading over and permeating
the body of the bus and the ground under and around it, and that the lighted torch brought by one of the men
who answered the call for help set it on fire.
That same day, the charred bodies of the four doomed passengers inside the bus were removed and
duly identified, specially that of Juan Bataclan. By reason of his death, his widow, Salud Villanueva, in her
name and in behalf of her five minor children, brought the present suit to recover from
Mariano Medina compensatory, moral, and exemplary damages and attorney's fees in the total amount of
P87,150. After trial, the Court of First Instance of Cavite awarded P1,000 to the plaintiffs, plus P600 as
attorney's fee, plus P100, the value of the merchandise being carried by Bataclan to Pasay City for sale and
which was lost in the fire. The plaintiffs and the defendants appealed the decision to the Court of Appeals,
but the latter court endorsed the appeal to us because of the value involved in the claim in the complaint.
Our New Civil Code amply provides for the responsibility of a common carrier to its passengers and
their goods. For purposes of reference, we are reproducing the pertinent codal provisions:
"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."
"ART. 1759. Common carriers are liable for the death of or injuries to passengers
through the negligence or wilful 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 does not cease upon proof that they exercised all
the diligence of a good father of a family in the selection and supervision of their employees."
"ART. 1763. A common carrier is responsible for injuries suffered by a passenger on
account of the wilful acts or negligence of other passengers or of strangers, if the common
carrier's employees through the exercise of the diligence of a good father of a family could
have prevented or stopped the act or omission."
We agree with the trial court that the case involves a breach of contract of transportation for hire,
the Medina Transportation having undertaken to carry Bataclan safely to his destination, Pasay City. We
also agree with the trial court that there was negligence on the part of the defendant, through his agent, the
driver Saylon. There is evidence to show that at the time of the blow out, the bus was speeding, as testified
to by one of the passengers, and as shown by the fact that according to the testimony of the witnesses,
including that of the defense, from the point where one of the front tires burst up to the canal where the bus
overturned after zig-zagging, there was a distance of about 150 meters. The chauffeur, after the blow-out,
must have applied the brakes in order to stop the bus, but because of the velocity at which the bus must have
been running, its momentum carried it over a distance of 150 meters before it fell into the canal and turned
turtle.
There is no question that under the circumstances, the defendant carrier is liable. The only question
is to what degree. The trial court was of the opinion that the proximate cause of the death of Bataclan was
not the overturning of the bus, but rather, the fire that burned the bus, including himself and his co-
passengers who were unable to leave it; that at the time the fire started, Bataclan, though he must have
suffered physical injuries, perhaps serious, was still alive, and so damages were awarded, not for his death,
but for the physical injuries suffered by him. We disagree. A satisfactory definition of proximate cause is

31
found in Volume 38, pages 695-696 of American Jurisprudence, cited by plaintiffs-appellants in their brief.
It is as follows:

". . . 'that cause, which, in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury, and without which the result would not have occurred.'
And more comprehensively, 'the proximate legal cause is that acting first and producing the
injury, either immediately or by setting other events in motion, all constituting a natural and
continuous chain of events, each having a close causal connection with its immediate
predecessor, the final event in the chain immediately effecting the injury as a natural and
probable result of the cause which first acted, under such circumstances that the person
responsible for the first event should, as an ordinarily prudent and intelligent person, have
reasonable ground to expect at the moment of his act or default that an injury to some person
might probably result therefrom."
It may be that ordinarily, when a passenger bus overturns, and pins down a passenger, merely causing him
physical injuries, if through some event, unexpected and extraordinary, the overturned bus is set on fire, say,
by lightning, or if some highwaymen after looting the vehicle sets it on fire, and the passenger is burned to
death, one might still contend that the proximate cause of his death was the fire and not the overturning of
the vehicle. But in the present case and under the circumstances obtaining in the same, we do not hesitate to
hold that the proximate cause of the death of Bataclan was the overturning of the bus, this for the reason that
when the vehicle turned not only on its side but completely on its back, the leaking of the gasoline from the
tank was not unnatural or unexpected; that the coming of the men with a lighted torch was in response to the
call for help, made not only by the passengers, but most probably, by the driver and the conductor
themselves, and that because it was very dark (about 2:30 in the morning), the rescuers had to carry a light
with them; and coming as they did from a rural area where lanterns and flashlights were not available, they
had to use a torch, the most handy and available; and what was more natural than that said rescuers should
innocently approach the overturned vehicle to extend the aid and effect the rescue requested from them. In
other words, the coming of the men with the torch was to be expected and was a natural sequence of the
overturning of the bus, the trapping of some of its passengers and the call for outside help. What is more, the
burning of the bus can also in part be attributed to the negligence of the carrier, through its driver and its
conductor. According to the witnesses, the driver and the conductor were on the road walking back and
forth. They, or at least, the driver should and must have known that in the position in which the overturned
bus was, gasoline could and must have leaked from the gasoline tank and soaked the area in and around the
bus, this aside from the fact that gasoline when spilled, specially over a large area, can be smelt and detected
even from a distance, and yet neither the driver nor the conductor would appear to have cautioned or taken
steps to warn the rescuers not to bring the lighted torch too near the bus. Said negligence on the part of the
agents of the carrier come under the codal provisions above- reproduced, particularly, Articles 1733, 1759
and 1763.
As regards the damages to which plaintiffs are entitled, considering the earning capacity of the
deceased, as well as the other elements entering into a damage award, we are satisfied that the amount of
SIX THOUSAND (P6,000) PESOS would constitute satisfactory compensation, this to include
compensatory, moral, and other damages. We also believe that plaintiffs are entitled to attorney's fees, and
assessing the legal services rendered by plaintiffs' attorneys not only in the trial court, but also in the course
of the appeal, and not losing sight of the able briefs prepared by them, the attorney's fees may well be fixed
at EIGHT HUNDRED (P800) PESOS. The award made by the trial court of ONE HUNDRED (P100)
PESOS for the loss of the merchandise carried by the deceased in the bus, is adequate and will not be
disturbed.
There is one phase of this case which disturbs if it does not shock us. According to the evidence, one
of the passengers who, because of the injuries suffered by her, was hospitalized, and while in the hospital,
she was visited by the defendant Mariano Medina, and in the course of his visit, she overheard him speaking
to one of his bus inspectors, telling said inspector to have the tires of the bus changed immediately because
they were already old, and that as a matter of fact, he had been telling the driver to change the said tires, but
that the driver did not follow his instructions. If this be true, it goes to prove that the driver had not been
diligent and had not taken the necessary precautions to insure the safety of his passengers. Had he changed
the tires, specially those in front, with new ones, as he had been instructed to do, probably, despite his
speeding, as we have already stated, the blow out would not have occurred. All in all, there is reason to
believe that the driver operated and drove his vehicle negligently, resulting in the death of four of his
passengers, physical injuries to others, and the complete loss and destruction of their goods, and yet the
criminal case against him, on motion of the fiscal and with his consent, was provisionally dismissed,

32
 because according to the fiscal, the witnesses on whose testimony he was banking to support the complaint,
either failed to appear or were reluctant to testify. But the record of the case before us shows that several
witnesses, passengers in that bus, willingly and unhesitatingly testified in court to the effect that the said
driver was negligent. In the public interest, the prosecution of said erring driver should be pursued, this, not
only as a matter of justice, but for the promotion of the safety of passengers on public utility buses. Let a
copy of this decision be furnished the Department of Justice and the Provincial Fiscal of Cavite.
In view of the foregoing, with the modification that the damages awarded by the trial court are
increased from ONE THOUSAND (P1,000) PESOS to SIX THOUSAND (P6,000) PESOS, and from SIX
HUNDRED PESOS TO EIGHT HUNDRED (P800) PESOS, for the death of Bataclan and for attorney's
fees, respectively, the decision appealed from is hereby affirmed, with costs.
||| (Vda. de Bataclan v. Medina, G.R. No. L-10126, [October 22, 1957], 102 PHIL 181-189)

12. [G.R. No. 85691. July 31, 1990.]

BACHELOR EXPRESS, INCORPORATED, and CRESENCIO RIVERA, petitioners, vs. THE
HONORABLE COURT OF APPEALS (Sixth Division), RICARDO BETER, SERGIA BETER,
TEOFILO RAUTRAUT and ZOETERA RAUTRAUT, respondents.

Aquino W. Gambe for petitioners.

Tranquilino O.Calo, Jr.for private respondents.

DECISION
GUTIERREZ, JR.,J p:
sion of the Court of Appeals which reversed and set aside the order of the Regional Trial Court, Branch I,
Butuan City dismissing the private respondents' complaint for collection of "a sum of money" and finding the
petitioners solidarily liable for damages in the total amount of One Hundred Twenty Thousand Pesos
(P120,000.00).The petitioners also question the appellate court's resolution denying a motion for
reconsideration.
On August 1, 1980, Bus No. 800 owned by Bachelor Express, Inc. and driven by Cresencio Rivera was the
situs of a stampede which resulted in the death of passengers Ornominio Beter and Narcisa Rautraut.
The evidence shows that the bus came from Davao City on its way to Cagayan de Oro City passing Butuan
City; that while at Tabon-Tabon, Butuan City, the bus picked up a passenger; that about fifteen (15) minutes
later, a passenger at the rear portion suddenly stabbed a PC soldier which caused commotion and panic among
the passengers; that when the bus stopped, passengers Ornominio Beter and Narcisa Rautraut were found lying
down the road, the former already dead as a result of head injuries and the latter also suffering from severe
injuries which caused her death later. The passenger-assailant alighted from the bus and ran toward the bushes
but was killed by the police. Thereafter, the heirs of Ornomino Beter and Narcisa Rautraut, private respondents
herein (Ricardo Beter and Sergia Beter are the parents of Ornominio while Teofilo Rautraut and Zoetera [should
be Zotera] Rautraut are the parents of Narcisa) filed a complaint for "sum of money"
against Bachelor Express, Inc. its alleged owner Samson Yasay, and the driver Rivera.
In their answer, the petitioners denied liability for the death of Ornominio Beter and Narcisa Rautraut. They
alleged that "...the driver was able to transport his passengers safely to their respective places of destination
except Ornominio Beter and Narcisa Rautraut who jumped off the bus without the knowledge and consent,
much less, the fault of the driver and conductor and the defendants in this case; the defendant corporation had
exercised due diligence in the choice of its employees to avoid as much as possible accidents; the incident on
August 1, 1980 was not a traffic accident or vehicular accident, it was an incident or event very much beyond
the control of the defendants; defendants were not parties to the incident complained of as it was an act of a
third party who is not in any way connected with the defendants and of which the latter have no control and
supervision; ..." (Rollo, pp. 112-113).
After due trial, the trial court issued an order dated August 8, 1985 dismissing the complaint.LibLex
Upon appeal however, the trial court's decision was reversed and set aside. The dispositive portion of the
decision of the Court of Appeals states:
"WHEREFORE, the Decision appealed from is REVERSED and SET ASIDE and a new one
entered finding the appellees jointly and solidarily liable to pay the plaintiffs-appellants the
following amounts:

33
 1) To the heirs of Ornominio Beter, the amount of Seventy Five Thousand Pesos (P75,000.00)
in loss of earnings and support, moral damages, straight death indemnity and attorney's fees;
and,
2) To the heirs of Narcisa Rautraut, the amount of Forty Five Thousand Pesos (P45,000.00) for
straight death indemnity, moral damages and attorney's fees. Costs against appellees." (Rollo,
pp. 71-72)
The petitioners now pose the following questions:
"What was the proximate cause of the whole incident? Why were the passengers on board the
bus panicked (sic) and why were they shoving one another? Why did Narcisa Rautraut and
Ornominio Beter jump off from the running bus?"
The petitioners opine that answers to these questions are material to arrive at "a fair, just and equitable
judgment." (Rollo, p. 5) They claim that the assailed decision is based on a misapprehension of facts and its
conclusion is grounded on speculation, surmises or conjectures.
As regards the proximate cause of the death of Ornominio Beter and Narcisa Rautraut, the petitioners maintain
that it was the act of the passenger who ran amuck and stabbed another passenger of the bus. They contend that
the stabbing incident triggered off the commotion and panic among the passengers who pushed one another and
that "presumably out of fear and moved by that human instinct of self-preservation Beter and Rautraut jumped
off the bus while the bus was still running resulting in their untimely death.' (Rollo, p. 6) Under these
circumstances, the petitioners asseverate that they were not negligent in the performance of their duties and that
the incident was completely and absolutely attributable to a third person, the passenger who ran amuck, for
without his criminal act, Beter and Rautraut could not have been subjected to fear and shock which compelled
them to jump off the running bus. They argue that they should not be made liable for damages arising from
acts of third persons over whom they have no control or supervision.
Furthermore, the petitioners maintain that the driver of the bus, before, during and after the incident was driving
cautiously giving due regard to traffic rules, laws and regulations. The petitioners also argue that they are not
insurers of their passengers as ruled by the trial court.
The liability, if any, of the petitioners is anchored on culpa contractual or breach of contract of carriage. The
applicable provisions of law under the New Civil Code are as follows:
"ART. 1732. Common carriers are persons, corporations, firms or associations engaged in the
business of carrying or transporting passengers or goods or both by land, water, or air, for
compensation, offering their services to the public.
"ART. 1733. Common carriers, from the nature of their business and for reasons of public
policy, are bound to observe extraordinary diligence in the vigilance over the goods and for the
safety of the passengers transported by them, according to all the circumstances of each case.
xxx xxx xxx
"ART. 1755. A common carrier is bound to carry the passengers safely as far as human care
and foresight can provide, using the utmost diligence of very cautious persons, with a due
regard for all the circumstances.
"ART. 1756. In case of death of or injuries to passengers, common carriers are presumed to
have been at fault or to have acted negligently, unless they prove that they observed
extraordinary diligence as prescribed in Articles 1733 and 1755."
There is no question that Bachelor Express, Inc. is a common carrier. Hence, from the nature of its business and
for reasons of public policy Bachelor Express, Inc. is bound to carry its passengers safely as far as human care
and foresight can provide using the utmost diligence of very cautious persons, with a due regard for all the
circumstances.
In the case at bar, Ornominio Beter and Narcisa Rautraut were passengers of a bus belonging to
petitioner Bachelor Express, Inc. and, while passengers of the bus, suffered injuries which caused their death.
Consequently, pursuant to Article 1756 of the Civil Code, petitioner Bachelor Express, Inc. is presumed to have
acted negligently unless it can prove that it had observed extraordinary diligence in accordance with Articles
1733 and 1755 of the New Civil Code.
Bachelor Express, Inc. denies liability for the death of Beter and Rautraut on its posture that the death of the
said passengers was caused by a third person who was beyond its control and supervision. In effect, the
34
petitioner, in order to overcome the presumption of fault or negligence under the law, states that the vehicular
incident resulting in the death of passengers Beter and Rautraut was caused by force majeure or caso
fortuito over which the common carrier did not have any control.
Article 1174 of the present Civil Code states:
"Except in cases expressly specified by law, or when it is otherwise declared by stipulations, or
when the nature of the obligation requires the assumption of risk, no person shall be
responsible for those events which could not be foreseen, or which though foreseen, were
inevitable."
The above - mentioned provision was substantially copied from Article 1105 of the old Civil Code which
states"
"No one shall be liable for events which could not be foreseen or which, even if foreseen, were
inevitable, with the exception of the cases in which the law expressly provides otherwise and
those in which the obligation itself imposes liability."
In the case of Lasam v. Smith (45 Phil. 657 [1924]),we defined "events" which cannot be foreseen and which,
having been foreseen, are inevitable in the following manner:
"...The Spanish authorities regard the language employed as an effort to define the term 'caso
fortuito' and hold that the two expressions are synonymous. (Manresa Comentarios al Codigo
Civil Español, vol. 8, pp. 88 et seq.;Scaevola, Codigo Civil, vol. 19, pp. 526 et seq.)
The antecedent to Article 1105 is found in Law II, Title 33, Partida 7, which defines caso
fortuito as 'ocasion que acaese por aventura de que non se puede ante ver. E son estos,
derrivamientos de casas e fuego que enciende a so ora, e quebrantamiento de navio, fuerca de
ladrones.' (An event that takes place by incident and could not have been foreseen.
Examples of this are destruction of houses, unexpected fire, shipwreck, violence of robbers. ...)
Escriche defines caso fortuito as an unexpected event or act of God which could neither be
foreseen nor resisted, such as floods, torrents, shipwrecks, conflagrations, lightning,
compulsion, insurrections, destruction of buildings by unforeseen accidents and other
occurrences of a similar nature.

In discussing and analyzing the term caso fortuito the Enciclopedia Juridica 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 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 his employees, is an essential element of a caso
fortuito. ..."
The running amuck of the passenger was the proximate cause of the incident as it triggered off a commotion
and panic among the passengers such that the passengers started running to the sole exit shoving each other
resulting in the falling off the bus by passengers Beter and Rautraut causing them fatal injuries. The
sudden act of the passenger who stabbed another passenger in the bus is within the context of force majeure.
However, in order that a common carrier may be absolved from liability in case of force majeure, it is not
enough that the accident was caused by force majeure.The common carrier must still prove that it was not
negligent in causing the injuries resulting from such accident. Thus, as early as 1912, we ruled:
"From all the foregoing, it is concluded that the defendant is not liable for the loss and
damage of the goods shipped on the lorcha Pilar by the Chinaman, Ong Bien Sip,
inasmuch as such loss and damage were the result of a fortuitous event or force
majeure, and there was no negligence or lack of care and diligence on the part of the
defendant company or its agents." (Tan Chiong Sian v. Inchausti & Co.,22 Phil. 152
[1912] Emphasis supplied).
35
 This principle was reiterated in a more recent case, Batangas Laguna Tayabas Co. v. Intermediate
Appellate Court (167 SCRA 379 [1988]),wherein we ruled:
"...[F]or their defense of force majeure or act of God to prosper the accident must be due to
natural causes and exclusively without human intervention." (Emphasis supplied)
Therefore, the next question to be determined is whether or not the petitioner's common carrier observed
extraordinary diligence to safeguard the lives of its passengers.
In this regard the trial court and the appellate court arrived at conflicting factual findings.
The trial court found the following facts:
"The parties presented conflicting evidence as to how the two deceased Narcisa Rautruat and
Ornominio Beter met their deaths.
However, from the evidence adduced by the plaintiffs, the Court could not see why the two
deceased could have fallen off the bus when their own witnesses testified that when the
commotion ensued inside the bus, the passengers pushed and shoved each other towards the
door apparently in order to get off from the bus through the door. But the passengers also could
not pass through the door because according to the evidence the door was locked.
On the other hand, the Court is inclined to give credence to the evidence adduced by the
defendants that when the commotion ensued inside the bus, the two deceased panicked and, in
state of shock and fear, they jumped off from the bus by passing through the window. prcd
It is the prevailing rule and settled jurisprudence that transportation companies are not
insurers of their passengers. The evidence on record does not show that defendants' personnel
were negligent in their duties. The defendants' personnel have every right to accept passengers
absent any manifestation of violence or drunkenness. If and when such passengers harm other
passengers without the knowledge of the transportation company's personnel, the latter should
not be faulted." (Rollo, pp. 46-47)
A thorough examination of the records, however, show that there are material facts ignored by the
trial court which were discussed by the appellate court to arrive at a different conclusion. These circumstances
show that the petitioner common carrier was negligent in the provision of safety precautions so that its
passengers may be transported safely to their destinations. The appellate court states: LibLex
"A critical eye must be accorded the lower court's conclusions of fact in its tersely written ratio
decidendi.The lower court concluded that the door of the bus was closed; secondly, the
passengers, specifically the two deceased, jumped out of the window. The
lower court therefore concluded that the defendant common carrier is not liable for the
death of the said passengers which it implicitly attributed to the unforeseen acts of the
unidentified passenger who went amuck.
There is nothing in the record to support the conclusion that the solitary door of the bus was
locked as to prevent the passengers from passing through. Leonila Cullano, testifying for the
defense, clearly stated that the conductor opened the door when the passengers were shouting
that the bus stop while they were in a state of panic. Sergia Beter categorically stated that she
actually saw her son fall from the bus as the door was forced open by the force of the
onrushing passengers.
Pedro Collango, on the other hand, testified that he shut the door after the last passenger had
boarded the bus. But he had quite conveniently neglected to say that when the passengers had
panicked, he himself panicked and had gone to open the door. Portions of the
testimony of Leonila Cullano, quoted below, are illuminating:
'xxx xxx xxx
Q When you said the conductor opened the door, the door at the front or rear portion of the
bus?
A Front door.
Q And these two persons whom you said alighted, where did they pass, the fron(t) door or rear
door?
A Front door.
36
xxx xxx xxx
(Tsn.,p. 4, Aug. 8, 1984)
xxx xxx xxx
Q What happened after there was a commotion at the rear portion of the bus?
A When the commotion occurred, I stood up and I noticed that there was a passenger who was
sounded (sic).The conductor panicked because the passengers were shouting 'stop,
stop'.The conductor opened the bus.'"
(Tsn.,p. 3, August 8, 1984).
Accordingly, there is no reason to believe that the deceased passengers jumped from the
window when it was entirely possible for them to have alighted through the door. The
lower court's reliance on the testimony of Pedro Collango, as the conductor and
employee of the common carrier, is unjustified, in the light of the clear testimony of Leonila
Cullano as the sole uninterested eyewitness of the entire episode. Instead we find Pedro
Collango's testimony to be infused by bias and fraught with inconsistencies, if not notably
unreliable for lack of veracity. On direct examination, he testified:
xxx xxx xxx
Q So what happened to the passengers inside your bus?
A Some of the passengers jumped out of the window.
COURT:
Q While the bus was in motion?
A Yes, your Honor, but the speed was slow because we have just picked up a passenger.
Atty. Gambe:
Q You said that at the time of the incident the bus was running slow because you have just
picked up a passenger. Can you estimate what was your speed at that time?.
Atty. Calo:
No basis, your Honor, he is neither a driver nor a conductor.
COURT:
Let the witness answer. Estimate only, the conductor experienced.
Witness:
Not less than 30 to 40 miles.
COURT:
Kilometers or miles?
A Miles.
Atty. Gambe:
Q That is only your estimate by your experience?
A Yes, sir, estimate.
(Tsn.,pp. 4-5, Oct. 17, 1983).
At such speed of not less than 30 to 40 miles ...,or about 48 to 65 kilometers per hour, the
speed of the bus could scarcely be considered slow considering that according to Collango
himself, the bus had just come from a full stop after picking a passenger (Tsn, p. 4, id.) and that
the bus was still on its second or third gear (Tsn.,p. 12, id.).
In the light of the foregoing, the negligence of the common carrier, through its employees,
consisted of the lack of extraordinary diligence required of common carriers, in exercising
vigilance and utmost care of the safety of its passengers, exemplified by the driver's belated

37
 stop and the reckless opening of the doors of the bus while the same was travelling at an
appreciably fast speed. At the same time, the common carrier itself acknowledged, through its
administrative officer, Benjamin Granada, that the bus was commissioned to travel and take on
passengers and the public at large, while equipped with only a solitary door for a bus its size
and loading capacity, in contravention of rules and regulations provided for under the Land
Transportation and Traffic Code (RA 4136 as amended.)" (Rollo, pp. 23-26)
Considering the factual findings of the Court of Appeals — the bus driver did not immediately stop the bus at
the height of the commotion; the bus was speeding from a full stop; the victims fell from the bus door when it
was opened or gave way while the bus was still running; the conductor panicked and blew his whistle after
people had already fallen off the bus; and the bus was not properly equipped with doors in accordance with law
— it is clear that the petitioners have failed to overcome the presumption of fault and negligence found in the
law governing common carriers.
The petitioners' argument that the petitioners "are not insurers of their passengers" deserves no merit in
view of the failure of the petitioners to prove that the deaths of the two passengers were exclusively due to force
majeure and not to the failure of the petitioners to observe extraordinary diligence in transporting safely the
passengers to their destinations as warranted by law. (See Batangas Laguna Tayabas Co. v. Intermediate
Appellate Court, supra).
The petitioners also contend that the private respondents failed to show to the court that they are the
parents of Ornominio Beter and Narcisa Rautraut respectively and therefore have no legal personality to sue the
petitioners. This argument deserves scant consideration. We find this argument a belated attempt on the
part of the petitioners to avoid liability for the deaths of Beter and Rautraut. The private respondents were
identified as the parents of the victims by witnesses during the trial and the trial court recognized them as such.
The trial court dismissed the complaint solely on the ground that the petitioners were not negligent.
Finally, the amount of damages awarded to the heirs of Beter and Rautraut by the appellate court is supported
by the evidence. The appellate court stated: prLL
"Ornominio Beter was 32 years of age at the time of his death, single, in good health and
rendering support and service to his mother. As far as Narcisa Rautraut is concerned, the only
evidence adduced is to the effect that at her death, she was 23 years of age, in good health and
without visible means of support.
In accordance with Art. 1764 in conjunction with Art. 2206 of the Civil Code, and established
jurisprudence, several factors may be considered in determining the award of damages,
namely: 1) life expectancy (considering the state of health of the deceased and the mortality
tables are deemed conclusive) and loss of earning capacity; (2) pecuniary loss, loss of support
and service; and (3) moral and mental suffering (Alcantara, et el. v. Surro, et al., 93 Phil. 470).
In the case of People v. Daniel (No. L-66551, April 25, 1985, 136 SCRA 92, at page 104),the
High Tribunal, reiterating the rule in Villa Rey Transit, Inc.v. Court of Appeals (31 SCRA
511),stated that the amount of loss of earning capacity is based mainly on two factors, namely,
(1) the number of years on the basis of which the damages shall be computed; and (2) the rate
at which the losses sustained by the heirs should be fixed.
As the formula adopted in the case of Davila v. Philippine Air Lines, 49 SCRA 497, at the
age of 30 one's normal life expectancy is 33 1/3 years based on the American Expectancy
Table of Mortality (2/3 x 80-32).By taking into account the pace and nature of the life of a
carpenter, it is reasonable to make allowances for these circumstances and reduce the life
expectancy of the deceased Ornominio Beter to 25 years (People v. Daniel, supra).To fix the
rate of losses it must be noted that Art. 2206 refers to gross earnings less necessary living
expenses of the deceased, in other words, only net earnings are to be considered (People v.
Daniel, supra; Villa Rey Transit, Inc. v. Court of Appeals, supra).
Applying the foregoing rules with respect to Ornominio Beter, it is both just and reasonable,
considering his social standing and position, to fix the deductible, living and incidental
expenses at the sum of Four Hundred Pesos (P400.00) a month, or Four Thousand Eight
Hundred Pesos (P4,800.00) annually. As to his income, considering the irregular nature of the
work of a daily wage carpenter which is seasonal, it is safe to assume that he shall have worked
for twenty (20) days a month at Twenty Five Pesos (P25.00) a day or Five Hundred Pesos
(P500.00) a month. Annually, his income would amount to Six Thousand Pesos (P6,000.00) or
One Hundred Fifty Thousand Pesos (P150,000.00) for twenty five years. Deducting therefrom
38
 his necessary expenses, his heirs would be entitled to Thirty Thousand Pesos (P30,000.00)
representing loss of support and service (P150,000.00 less P120,000.00).In addition, his heirs
are entitled to Thirty Thousand Pesos (P30,000.00) as straight death indemnity pursuant to
Article 2206 (People v. Daniel, supra).For damages for their moral and mental anguish, his
heirs are entitled to the reasonable sum of P10,000.00 as an exception to the general rule
against moral damages in case of breach of contract rule Art. 2200 (Necesito v. Paras, 104 Phil.
75).As attorney's fees, Beter's heirs are entitled to P5,000.00. All in all, the plaintiff-appellants
Ricardo and Sergia Beter as heirs of their son Ornominio are entitled to an
indemnity of Seventy Five Thousand Pesos (P75,000.00). cdphil
In the case of Narcisa Rautraut, her heirs are entitled to a straight death indemnity of Thirty
Thousand Pesos (P30,000.00),to moral damages in the amount of Ten Thousand Pesos
(P10,000.00) and Five Thousand Pesos (P5,000.00) as attorneys fees, or a total of Forty Five
Thousand Pesos (P45,000.00) as total indemnity for her death in the absence of any evidence
that she had visible means of support." (Rollo, pp. 30-31)
WHEREFORE, the instant petition is DISMISSED. The questioned decision dated May 19, 1988 and the
resolution dated August 1, 1988 of the Court of Appeals are AFFIRMED.
SO ORDERED.
||| (Bachelor Express, Inc. v. Court of Appeals, G.R. No. 85691, [July 31, 1990], 266 PHIL 233-249)

13. [G.R. No. L-9907. June 30, 1958.]

LOURDES J. LARA, ET AL., plaintiffs-appellants, vs. BRIGIDO R. VALENCIA, defendant-
appellant.

Castillo, Cervantes, Occena, Lozano, Montana, Cunanan, Sison & Castillo and Eligio G. Lagman for
defendant and appellant.
Donato C. Endriga and Emigdio Dakanay for plaintiffs and appellants.

SYLLABUS
1. DAMAGES; AUTOMOBILE; INVITED GUEST; OWNERS DUTY TO EXERCISE
ORDINARY OR REASONABLE CARE. — The owner and driver of a vehicle owes to accommodation
passengers or invited guests merely the duty to exercise reasonable care so that they may be transported
safely to their destination. Thus, "The rule is established by weight of authority that the owner or operator of
an automobile owes the duty to an invited guest to exercise reasonable care in its operation, and not
unreasonably to expose him to danger and injury by increasing the hazard of travel. The owner of the
vehicle in the case at bar is only required to observe ordinary care, and is not in duty bound to exercise
extraordinary diligence as required by our law. (Articles 1755 and 1756, new Civil Code).
2. ID.; LIABILITY OF CARRIER; PASSENGERS INJURY ON HIS OWN NEGLIGENCE. — A
passenger must observe the diligence of a father of a family to avoid injury to himself (Article 1761, new
Civil Code) which means that if the injury to the passenger has been proximately caused by his own
negligence, the carrier cannot be held liable.

DECISION
BAUTISTA ANGELO, J p:
This is an action for damages brought by plaintiffs against defendant in the Court of First Instance of
Davao for the death of one Demetrio Lara, Sr. allegedly caused by the negligent act of defendant. Defendant
denied the charge of negligence and set up certain affirmative defenses and a counterclaim.
The court after hearing rendered judgment ordering defendant to pay the plaintiffs the following
amount: (a) P10,000 as moral damages; (b) P3,000 as exemplary damages; and (c) P1,000 as attorney's fees,
in addition to the costs of action. Both parties appealed to this Court because the damages claimed in the
complaint exceed the sum of P50,000.
In their appeal, plaintiffs claim that the court a quo erred in disregarding their claim of P41,400 as
actual or compensatory damages and in awarding as attorneys' fees only the sum of P1,000 instead of
P3,000 as agreed upon between plaintiffs and their counsel. Defendant, on the other hand, disputes the
finding of the court a quo that the death of Demetrio Lara, Sr. was due to the negligence of defendant and

39
the portion of the judgment which orders defendant to pay to plaintiffs moral and exemplary damages as
well as attorneys' fees, said defendant contending that the court should have declared that the death of Lara
was due to unavoidable accident.
The deceased was an inspector of the Bureau of Forestry stationed in Davao with an annual salary of
P1,800. The defendant is engaged in the business of exporting logs from his lumber concession in Cotabato.
Lara went to said concession upon instructions of his chief to classify the logs of defendant which were
about to be loaded on a ship anchored in the port of Parang. The work of Lara lasted for six days during
which he contracted malaria fever. In the morning of January 9, 1954, Lara who then in a hurry to return to
Davao asked defendant if he could take him in his pick-up as there was then no other means of
transportation, to which defendant agreed, and in that same morning the pick-up left Parang bound for
Davao taking along six passengers, including Lara.
The pick-up has a front seat where the driver and two passengers can be accommodated and the back
has a steel flooring enclosed with a steel walling of 16 to 17 inches tall on the sides and with a 19 inches tall
walling at the back. Before leaving Parang, the sitting arrangement was as follows: defendant was at the
wheel and seated with him in the front seat were Mrs. Valencia and Nicanor Quinain; on the back of the
pick-up were two improvised benches placed on each side, and seated on the right bench were Ricardo
Alojipan and Antonio Lagahit, and on the left one Bernardo and Pastor Geronimo. A person by the name of
Leoning was seated on a box located on the left side while in the middle Lara sat on a bag. Before leaving
Parang, defendant invited Lara to sit with him on the front seat but Lara declined. It was their understanding
that upon reaching barrio Samoay, Cotabato, the passengers were to alight and take a bus bound for Davao,
but when they arrived at that place, only Bernardo alighted and the other passengers requested defendant to
allow them to ride with him up to Davao because there was then no available bus that they could take in
going to that place. Defendant again accommodated the passengers.
When they continued their trip, the sitting arrangement of the passengers remained the same, Lara
being seated on a bag in the middle with his arms on a suitcase and his head covered by a jacket. Upon
reaching Km. 96, barrio Catidtuan, Lara accidentally fell from the pick-up and as a result he suffered serious
injuries. Valencia stopped the pick-up to see what happened to Lara. He sought the help of the residents of
that place and applied water to Lara but to no avail. They brought Lara to the nearest place where they could
find a doctor and not having found any they took him to St. Joseph's Clinic of Kidapawan. But when Lara
arrived he was already dead. From there they proceeded to Davao City and immediately notified the local
authorities. An investigation was made regarding the circumstances surrounding the death of Lara
but no criminal action was taken against defendant.
It should be noted that the deceased went to the lumber concession of defendant in Parang, Cotabato
upon instructions of his chief in order to classify the logs of defendant which were then ready to be exported
and to be loaded on a ship anchored in the port of Parang. It took Lara six days to do his work during which
he contracted malaria fever and for that reason he evinced a desire to return immediately to Davao. At that
time, there was no available bus that could take him back to Davao and so he requested the defendant if he
could take him in his own pick-up. Defendant agreed and, together with Lara, other passengers tagged
along, most of them were employees of the Government. Defendant merely accommodated them and did
not charge them any fee for the service. It was also their understanding that upon reaching barrio Samoay,
the passengers would alight and transfer to a bus that regularly makes the trip to Davao but unfortunately
there was none available at the time and so the same passengers, including Lara, again requested the
defendant to drive them to Davao. Defendant again accommodated them and upon reaching Km. 96, Lara
accidentally fell suffering fatal injuries.
It therefore appears that the deceased, as well as his companions who rode in the pick-up of
defendant, were merely accommodation passengers who paid nothing for the service and so they can be
considered as invited guests within the meaning of the law. As accommodation passengers or invited guests,
defendant as owner and driver of the pick-up owes to them merely the duty to exercise reasonable care so
that they may be transported safely to their destination. Thus, "The rule is established by the weight of
authority that the owner or operator of an automobile owes the duty to an invited guest to exercise
reasonable care in its operation, and not unreasonably to expose him to danger and injury by increasing the
hazard of travel. This rule, as frequently stated by the courts, is that an owner of an automobile owes a guest
the duty to exercise ordinary or reasonable care to avoid injuring him. Since one riding in an automobile
is no less a guest because he asked for the privilege of doing so, the same obligation of care is imposed upon
the driver as in the case of one expressly invited to ride" (5 Am. Jur., 626-627). Defendant, therefore, is only
required to observe ordinary care, and is not in duty bound to exercise extraordinary diligence as required of
a common carrier by our law (Articles 1755 and 1756, new Civil Code).

40
 The question that now arises is: Is there enough evidence to show that defendant failed to observe
ordinary care or diligence in transporting the deceased from Parang to Davao on the date in question?
The trial court answered the question in the affirmative but in so doing it took into account only the
following facts:
"No debe perderse de vista el hecho, que los negocios de exportacion de trozos del
demandado tiene un volumen de P1,200. Lara era empleado de la Oficina de Montes,
asalariado por el gobierno, no pagado por el demandado para classificar los trozos exportados;
debido a los trabajos de classificacion que duro 6 días, en su ultimo dia Lara no durmio toda la
noche, al día siguiente, Lara fue atacado de malaria, tenia inflamada y cuerpo, sufria dolores de
cabeza con erupciones en la cara y cuerpo; que en la mañana del día 8 de enero de 1954, fecha
en que Lara salio de Davao para Parang, en aeroplano para clasificar los trozos del demandado,
el automobil de este condujo a aquel al aerodromo de Davao.
xxx xxx xxx
"El viaje de Cotabato a Davao no es menos de 8 horas, su carretera esta en malas
condiciones, desnivelada, con piedras salientes y baches, que hacen del vehiculo no estable en
su marcha. Lara estaba enfelmo de cierta gravedad, tenia el cuerpo y cara inflamados, atacado
de malaria, con dolores de cabesa y con erupciones on la cara y cuerpo.
"A la vista de estos hechos, el demandado debia de saber que era sumamente peligroso
llevar 5 pasajeros en la parte trasera del pickup; particularmente, para la salud de Lara; el
permitirlo, el demandado no ha tomado las debidas precausiones, para evitar un posible
accidente fatal. La negativa de Lara de ocupar el asiento delantero del pickup no constituye a
juicio del Juzgado una defensa, pues el demandado conociendo el estado delicado de salud de
Lara, no debio de haber permitido que aquel regrese a Davao en su pickup; si querria prestar a
aquel un favor, debio de haber provisto a Lara de un automobil para su regrese a Davao, ya que
el damandado es un millionario; si no podia prestar a aquel este favor, debio de haber dejado a
Lara en Samuay para coger aquel un camion de pasajero de Cotabato a Davao."

Even if we admit as true the facts found by the trial court, still we find that the same are not
sufficient to show that defendant has failed to take the precaution necessary to conduct his passengers safely
to their place of destination for there is nothing there to indicate that defendant has acted with negligence or
without taking the precaution that an ordinary prudent man would have taken under similar circumstances. It
should be noted that Lara went to the lumber concession of defendant in answer to a call of duty which he
was bound to perform because of the requirement of his office and he contracted the malaria fever in the
course of the performance of that duty. It should also be noted that defendant was not in duty bound to take
the deceased in his own pick-up to Davao because from Parang to Cotabato there was a line of
transportation that regularly makes trips for the public, and if defendant agreed to take the deceased in his
own car, it was only to accommodate him considering his feverish condition and his request that he be so
accommodated. It should also be noted that the passengers who rode in the pick-up of defendant took their
respective seats therein at their own choice and not upon indication of defendant with the particularity that
defendant invited the deceased to sit with him in the front seat but which invitation the deceased
declined. The reason for this can only be attributed to his desire to be at the back so that he could sit on a
bag and travel in a reclining position because such was more convenient for him due to his feverish
condition. All the circumstances thereof clearly indicate that defendant had done what a reasonable prudent
man would have done under the circumstances.
There is every reason to believe that the unfortunate happening was only due to an unforeseen
accident caused by the fact at the time the deceased was half asleep and must have fallen from the pick-up
when it ran into some stones causing it to jerk considering that the road was then bumpy, rough and full of
stones.
The finding of the trial court that the pick-up was running at more than 40 kilometers per hour is not
supported by evidence. This is a mere surmise made by the trial court considering the time the pick- up left
barrio Samoay and the time the accident occurred in relation to the distance covered by the pick-up. And
even if this is correct, still we say that such speed is not unreasonable considering that they were travelling
on a national road and the traffic then was not heavy. We may rather attribute the incident to lack of care on
the part of the deceased considering that the pick-up was open and he was then in crouching position.
Indeed the law provides that "A passenger must observe the diligence of a good father of a family to avoid
injury to himself" (Article 1761, new Civil Code), which means that if the injury to the passenger has
been proximately caused by his own negligence, the carrier cannot be held liable.
41
 All things considered, we are persuaded to conclude that the accident occurred not due to the
negligence of defendant but to circumstances beyond his control and so he should be exempt from liability.
Wherefore, the decision appealed from is reversed, without pronouncement as to costs.
||| (Lara v. Valencia, G.R. No. L-9907, [June 30, 1958], 104 PHIL 65-71)

14. [G.R. No. L-8034. November 18, 1955.]

CORNELIA A. DE GILLACO, ET AL., plaintiffs-appellees, vs. MANILA RAILROAD
COMPANY, defendant-appellant.

First Assistant Corporate Counsel Federico C. Alikpala and Attorney Higino R. Francisco for appellant.
Restituto Luna for appellees.
SYLLABUS
1. CARRIES; BREACH OF TRANSPORTATION CONTRACT; EXTENT OF CARRIES'
LIABILITY. — While a passenger is entitled to protection from personal violence by the carrier or its
agents or employees, sine the contract of transportation obligates the carrier to transport a passenger safety
to this destination, the responsibility of the carrier extends only to those acts that the carrier could foresee or
avoid through the exercise of the degree of care and diligence required of it.
2. ID.; ID.; ID.; RULE UNDER THE CIVIL CODE OF 1889. — The old Civil Code of 1889 did not
impose upon carriers absolute liability for assaults of their employees upon the passenger.
3. ID.; ID.; ID.; "CASO FORTUITO" RELIEVES CARRIER OF LIABILITY FOR BREACH OF
TRANSPORTATION CONTRACT. — In the present case, the cat of the train guard of the Manila Railroad
Company in shooting the passenger (because of a personal grudge natured against the latter since the
Japanese occupation) was entirely unforseeable by the Manila Railroad Co. The latter had no means to
ascertain or anticipate that the two would meet, nor could it reasonably foresee every personal rancor that
might exist between one of its many employees and any one of the thousands of eventual passengers riding
in its trains. The shooting in question was therefore "caso fortuito" within the definition of Art. 1105 of the
old Civil Code (which is the law applicable), being both unforeseeable and inevitable under the given
circumstances; and pursuant to established doctrine, the resulting breach of the company's contract of safe
carriage with the deceased was excused thereby.
4. ID.; ID.; ID.; ID.; CARRIER IS EXEMPT FROM LIABILITY FOR ACTS NOT DONE IN
LINE OF DUTY. — Where the crime was committed by a train who had no duties to discharge in
connection with the transportation of the victim, the crime stands on the same footing as if committed by a
stranger or co-passenger, since the killing was not done in line of duty.

DECISION
REYES, J.B.L., J p:
The Manila Railroad Company has appealed from a judgment of the Court of First Instance of
Laguna sentencing it to pay P4,000 damages to the appellees herein, the widow and children of the late
Tomas Gillaco, shot by an employee of the Company in April, 1946.
The judgment was rendered upon the following stipulation of facts:
"That at about 7:30 a.m., on the morning of April 1, 1946, Lieut. Tomas Gillaco,
husband of the plaintiff, was a passenger in the early morning train of the Manila Railroad
Company from Calamba, Laguna to Manila;
That when the train reached the Paco Railroad station, Emilio Devesa, a train guard of
the Manila Railroad Company assigned in the Manila-San Fernando, La Union Line, happened
to be in said station waiting for the same train which would take him to Tutuban Station, where
he was going to report for duty;
That Devesa's tour of duty on that day was from 9:00 a.m., until the train to which he
was assigned reached La Union at 7:00 p.m. of the same day;.
That Emilio Devesa had a long standing personal grudge against Tomas Gillaco, same
dating back during the Japanese occupation;

42
 That because of this personal grudge, Devesa shot Gillaco with the carbine furnished to
him by the Manila Railroad Company for his use as such train guard, upon seeing him inside
the train coach;
That Tomas Gillaco died as a result of the would which he sustained from the shot fired
by Devesa."
It is also undisputed that Devesa was convicted of homicide by final judgment of the Court of
Appeals.
Appellant's contention is that, on the foregoing facts, on liability attaches to it as employer of the
killer, Emilio Devesa; that it is not responsible subsidiary ex delicto, under Art. 103 of the Revised Penal
Code, because the crime was not committed while the slayer was in the actual performance of his ordinary
duties and service; nor is it responsible ex contractu, since the complaint did not aver sufficient facts to
establish such liability, and no negligence on appellant's part was shown. The Court below held the Railroad
company responsible on the ground that a contract of transportation implies protection of the passengers
against acts of personal violence by the agents or employees of the carrier.
There can be no quarrel with the principle that a passenger is entitled to protection from personal
violence by the carrier or its agents or employees, since the contract of transportation obligates the carrier to
transport a passenger safely to his destination. But under the law of the case, this responsibility extends only
to those that the carrier could foresee or avoid through the exercise of the degree of care and diligence
required of it.
Discussing the basis of a carrier's liability under the old Civil Code of 1889 (which was in force in
1946, when Gillaco was shot), this Court said in Lasam vs. Smith (45 Phil., 657):
"In our opinion, the conclusions of the court below are entirely correct. That upon the
facts stated the defendant's liability, if any, is contractual, is well settled by previous decisions
of the court, beginning with the case of Rakes vs. Atlantic, Gulf & Pacific Co. (7 Phil., 359),
and the distinction between extra-contractual liability and contractual liability has been so ably
and exhaustively discussed in various other cases, that nothing further need here be said upon
that subject. (See Cangco vs. Manila Railroad Co., 38 Phil., 768; Manila
Railroad vs. Compañia Transatlantica and Atlantic, Gulf & Pacific Co., 38 Phil., 875; De
Guia vs. Manila Electric Railroad & Light Co., 40 Phil., 706). It is sufficient to reiterate that
the source of the defendant's legal liability is the contract of carriage; that by entering into that
contract he bound himself to carry the plaintiff safely and securely to their destination; and that
having failed to do so he is liable in damages unless he shows that the failure to fulfill his
obligation was due to causes mentioned in article 1105 of the Civil Code, which reads as
follows:
" 'No one shall be liable for events which could not be foreseen or which, even if
foreseen, were inevitable, with the exception of the cases in which the law expressly provides
otherwise and those in which the obligation itself imposes such liability.' "
The act of guard Devesa in shooting passenger Gillaco (because of a personal grudge nurtured
against the latter since the Japanese occupation) was entirely unforseeable by the Manila Railroad Co. The
latter had no means to ascertain or anticipate that the two would meet, nor could it reasonably foresee every
personal rancor that might exist between each one of its many employees and any one of the thousands of
eventual passengers riding in its trains. The shooting in question was therefore "caso fortuito" within the
definition of article 1105 of the old Civil Code, being both unforeseeable and inevitable under the given
circumstances; and pursuant to established doctrine, the resulting breach of appellant's contract of safe
carriage with the late Tomas Gillaco was excused thereby.
No doubt that a common carrier is held to a very high degree of care and diligence in the protection
of its passengers; but, considering the vast and complex activities of modern rail transportation, to require of
appellant that it should guard against all possible misunderstanding between each and every one of its
employees and every passenger that might chance to ride in its conveyances at any time, strikes us as
demanding diligence beyond what human care and foresight can provide.
The lower Court and the appellees both relied on the American authorities that particularly hold
carriers to be insurers of the safety of their passengers against willful assault and intentional ill-treatment on
the part of their servants, it being immaterial that the act should be one of private retribution on the part of
the servant, impelled by personal malice toward the passenger (10 Am. Jur. 108; Ed. Note to
Gassenheimer vs. Wester R. Co. 40 LRA (NS), p. 999, et seq.). But as can be inferred from the previous
jurisprudence of this Court, the Civil Code of 1889 did not impose such absolute liability
(Lasam vs. Smith, supra). The liability of a carrier as an insurer was not recognized in this jurisdiction
43
 (Government vs. Inchausti & Co., 40 Phil., 219; Oriental Comm. Co. vs. Naviera Filipina, 38 Off. Gaz.,
1020).
Another very important consideration that must be borne in mind is that, when the crime took place,
the guard Devesa had no duties to discharge in connection with the transportation of the deceased from
Calamba to Manila. The stipulation of facts is clear that when Devesa shot and killed Gillaco, Devesa was
assigned to guard the Manila-San Fernando (La Union) trains, and he was at Paco Station awaiting
transportation to Tutuban, the starting point of the train that he was engaged to guard. In fact, his tour of
duty was to start at 9:00 a.m., two hours after the commission of the crime. Devesa was therefore
under no obligation to safeguard the passengers of the Calamba-Manila train, where the deceased was
riding; and the killing of Gillaco was not done in line of duty. The position of Devesa at the time was that of
another would be passenger, a stranger also awaiting transportation, and not that of an employee assigned to
discharge any of the duties that the Railroad had assumed by its contract with the deceased. As a result,
Devesa's assault cannot be deemed in law a breach of Gillaco's contract of transportation by a servant or
employee of the carrier. We agree with the position taken by the Supreme Court of Texas in a similar case,
where it held:
"The only good reason for making the carrier responsible for the misconduct of the
servant perpetrated in his own interest, and not in that of his employer, or otherwise within the
scope of his employment, is that the servant is clothed with the delegated authority, and
charged with the duty by the carrier, to execute his undertaking with the passenger. And it
cannot be said, we think, that there is any such delegation to the employees at a station with
reference to passengers embarking at another or traveling on the train. Of course, we are
speaking only of the principle which holds a carrier responsible for wrongs done to passengers
by servants acting in their own interest, and not in that of the employer. That principle is not
the ordinary rule, respondent superior, by which the employer is held responsible only for acts
or omissions of the employee in the scope of his employment; but the only reason in our
opinion for a broader liability arises from the fact that the servant, in mistreating the passenger
wholly for some private purpose of his own, in the very act, violates the contractual obligation
of the employer for the performance of which he has put the employee in his place. That reason
does not exist where the employee who committed the assault was never in a position in which
it became his duty to his employer to represent him in discharging any duty of the latter
towards the passenger. The proposition that the carrier clothes every employee engaged in the
transportation business with the comprehensive duty of protecting every passenger with whom
he may in any way come in contact, and thereby makes himself liable for every assault
committed by each servant, without regard to the inquiry whether or not the passenger has
come within the sphere of duty of that servant as indicated by the employment, is regarded as
not only not sustained by the authorities, but as being unsound and oppressive both to the
employer and the employee. (Houston & T. C. R. Co. vs. Bush, 32 LRA (NS), p. 1205.)

Wherefore, the judgment appealed from is reversed and the complaint ordered dismissed, without
costs. So ordered.
||| (De Gillaco v. Manila Railroad Co., G.R. No. L-8034, [November 18, 1955], 97 PHIL 884-889)

15. [G.R. No. 106279. July 14, 1995.]

SULPICIO LINES, INC., petitioner, vs. THE HONORABLE COURT OF APPEALS (Twelfth
Division) and JACINTA L. PAMALARAN, respondents.

Angara, Abella, Concepcion, Regala, & Cruz Law Offices for petitioner.
Caballero, Armentado, & Hubahilo Law Offices for private respondent.

SYLLABUS
COMMERCIAL LAWS; TRANSPORTATION; CONTRACT OF CARRIAGE; DAMAGES;
PARTIES LIABLE. — This Court agrees with the Court of Appeals that although Pamalaran was never a
passenger of Sulpicio Lines, Inc. (herein petitioner) still the latter is liable as a common carrier for his death.
The Court of Appeals relied on Canas v. Dabatos,8 Court of Appeals Report 918 (1965).Ago Lumber
Company (ALC) had a contract of carriage with petitioner. The presence of the stevedores sent by ALC on
board the barge of petitioner was called for by the contract of carriage. For how else would its lumber be
transported unless it is placed on board? And by whom? Of course, the stevedores. Definitely, petitioner
44
 could not expect the shipper itself to load the lumber without the aid of the stevedores. Furthermore,
petitioner knew of the presence and role of the stevedores in its barge and thus consented to their presence.
Hence, petitioner was responsible for their safety while on board the barge. Petitioner next claims that its
employees even warned the stevedores and tried to prevent their entry into the storeroom. Such argument,
again, is demolished by the findings of the Court of Appeals, thus: "....However, appellant failed to prove
that its employees were actually trained or given specific instructions to see to it that the barge is fit and safe
not only in transporting goods but also for people who would be loading the cargo into the bodega of the
barge. It is not enough that appellant's employees have warned the laborers not to enter the barge after the
hatch was opened. Appellant's employees should have been sufficiently instructed to see to it that the hatch
of the barge is not opened by any unauthorized person and that the hatch is not easily opened by anyone.At
the very least, precautionary measures should have been observed by appellant's employees to see to it
that no one could enter the bodega of the barge until after they have made sure that it is safe for anyone to
enter the same. Failing to exercise due diligence in the supervision of its employees, the lower court was
correct in holding appellant liable for damages."
DECISION
QUIASON,J p:
This is a petition for review on certiorari under Rule 45 of the Revised Rules of Court to reverse the
Decision dated April 8, 1992 of the Court of Appeals in CA-G.R. CV No. 21919, affirming the decision of
the Regional Trial Court of Bohol, Branch 2, Tagbilaran City, which awarded the claim for damages filed
by private respondent against CBL Timber Corporation.(CBL), AGO Lumber Company (ALC), Sulpicio
Lines, Inc. (SLI) and Ernie Santiago (Civil Case No. 2864). prLL
We deny the petition.
I
A contract of carriage was entered into between petitioner and ALC for the transport of the latter's
timber from Pugad, Lianga, Surigao del Sur.
On March 17, 1976, petitioner sent its tugboat "MT Edmund" and barge "Solid VI" to Lianga to pick
up ALC's timber. However, no loading could be made because of the heavy downpour. The next morning,
several stevedores of CBL, who were hired by ALC, boarded the "Solid VI" and opened its storeroom. The
stevedores were warned of the gas and heat generated by the copra stored in the holds of the ship. Not
heeding the warning, a stevedore entered the storeroom and fell unconscious. Two other stevedores
followed, one of whom was Leoncio L. Pamalaran. He also lost consciousness and eventually died of gas
poisoning.
Thus, Civil Case No. 2864 for damages was filed with the Regional Trial Court of Bohol, Branch 2,
Tagbilaran by Pamalaran's heirs against petitioner CBL, ALC and its manager, Ernie Santiago. The trial
court ruled in favor of plaintiffs, disposing as follows:
"WHEREFORE, finding a preponderance of evidence in favor of the plaintiffs,
judgment is hereby rendered:
"Ordering defendants CBL Timber Corporation, AGO Lumber Company, Sulpicio
Lines, Inc. and Ernie Santiago to pay plaintiffs jointly and severally:
1. Actual and compensatory damages of P40,000.00;
2. Moral damages of P50,000.00;
3. Attorney's fees of P20,000.00 and the costs of the suit" (Rollo,p. 57).
On appeal, the Court of Appeals in its Decision dated April 8, 1992 in CA-G.R. CV No. 21919,
affirmed the lower court's decision, the dispositive portion of which reads:
"WHEREFORE, WE AFFIRM the appealed judgment there being no justifiable reason
that warrants the reversal thereof. Costs against defendant-appellant" (Rollo,p. 32).
Not satisfied with the appellate court's decision, petitioner filed this petition.

II
Petitioner raises the following arguments:
1. Pamalaran was never a passenger of petitioner. Therefore, it is not liable as a common
carrier;

45
 2. Petitioner and its employees were not negligent in the series of events which led to the death
of Pamalaran;
3. Petitioner is not liable under Article 2180 of the New Civil Code;
4. It is CBL and/or ALC which should be held liable for the death of the victim; and,
5. Petitioner should have been granted its just and valid counterclaims and cross claims.
We agree with the Court of Appeals that although Pamalaran was never a passenger of petitioner,
still the latter is liable as a common carrier for his death. The Court of Appeals relied on Canas v. Dabatos,8
Court of Appeals Report 918 (1965).In said case, 13 persons were on board the vessel of defendant not as
passengers but as 'cargadores' of the shipper's goods. They were there with the consent and knowledge of
the owner of the vessel. Despite the absence of a passenger-carrier relationship between them, the appellate
court, just the same, held the patron thereof liable as a common carrier. The appellate court ruled:
"There is no debate as to the fact that not one of the thirteen passengers have paid an
amount of money as fare for their conveyance from Hingotanan to Cebu. The undisputed fact,
however, is that all of them were in the boat with the knowledge and consent of the patron. The
eleven passengers, other than Encarnacion and Diosdado, were in the boat because they have
helped in loading cargoes in the boat, and 'to serve as cargadores of the cargoes,' presumably,
in unloading them at the place of destination. For those services they were permitted to be in
the boat and to proceed to their destination in Cebu. The services rendered were the valuable
consideration in exchange for the transportation fare.'In onerous contracts the cause is
understood to be, for each contracting party, the prestation or promise of a thing or service by
the other; ...'" (at p. 925; Italics supplied).
ALC had a contract of carriage with petitioner. The presence of the stevedores sent by ALC on board
the barge of petitioner was called for by the contract of carriage. For how else would its lumber be
transported unless it is placed on board? And by whom? Of course, the stevedores. Definitely, petitioner
could not expect the shipper itself to load the lumber without the aid of the stevedores. Furthermore,
petitioner knew of the presence and role of the stevedores in its barge and thus consented to their presence.
Hence, petitioner was safety while on board the barge.
Petitioner next claims that its employees even warned the stevedores and tried to prevent their entry
into the storeroom. Such argument, again, is demolished by the findings of the Court of Appeals, thus:
"....However, appellant failed to prove that its employees were actually trained or given
specific instructions to see to it that the barge is fit and safe not only in transporting goods but
also for people who would be loading the cargo into the bodega of the barge. It is not enough
that appellant's employees have warned the laborers not to enter the barge after the hatch was
opened. Appellant's employees should have been sufficiently instructed to see to it that the
hatch of the barge is not opened by any unauthorized person and that the hatch is not easily
opened by anyone.At the very least, precautionary measures should have been observed by
appellant's employees to see to it that no one could enter the bodega of the barge until after
they have made sure that it is safe for anyone to enter the same. Failing to exercise due
diligence in the supervision of its employees, the lower court was correct in holding appellant
liable for damages" (Rollo,pp. 31-32; Italics supplied).
Inasmuch as the findings of the Court of Appeals are merely an affirmance of the findings of the trial
court, which findings are supported by the evidence, we do not find any reason to reverse the same.
There is no quarrel that ALC and CBL are also liable as they were in fact held liable by both the trial
and appellate courts.
Both the counterclaims and cross-claims of petitioner are without legal basis. The counterclaims and
cross claims were based on the assumption that the other defendants are the ones solely liable. However,
inasmuch as its solidary liability with the other defendants has clearly been established by both the trial and
the appellate courts, which we find to be in order, we cannot make a different conclusion contrary to that of
the said courts. LibLex
Finally, the indemnity for the death of Leoncio L. Pamalaran is increased from P40,000.00 to
P50,000.00 in accordance with our ruling in People v. Flores,237 SCRA 653 (1994).
WHEREFORE, the Decision of the Court of Appeals is AFFIRMED with the MODIFICATION that
the award of actual and compensatory damages is increased to P50,000.00. SO ORDERED. (Sulpicio Lines,
Inc. v. Court of Appeals, G.R. No. 106279, [July 14, 1995], 316 PHIL 365-370)
16. [G.R. No. 84458. November 6, 1989.]

46
ABOITIZ SHIPPING CORPORATION, petitioner, vs. HON. COURT OFAPPEALS,
ELEVENTH DIVISION, LUCILA C. VIANA, SPS. ANTONIO VIANA and GORGONIA
VIANA, and PIONEER STEVEDORING CORPORATION, respondents.

Herenio E. Martinez for petitioner.

M.R. Villaluz Law Office for private respondent.

SYLLABUS
1. COMMERCIAL LAW; COMMON CARRIERS; CARRIER-PASSENGER RELATIONSHIP;
CONTINUES UNTIL PASSENGER HAS BEEN LANDED AT THE PORT OF DESTINATION AND
HAS LEFT VESSEL OWNER'S DOCK OR PREMISES. — The rule is that the relation of carrier and
passenger continues until the passenger has been landed at the port of destination and has left the vessel
owner's dock or premises. Once created, the relationship will not ordinarily terminate until the passenger
has, after reaching his destination, safely alighted from the carrier's conveyance or had a reasonable
opportunity to leave the carrier's premises. All persons who remain on the premises a reasonable time after
leaving the conveyance are to be deemed passengers, and what is a reasonable time or a reasonable delay
within this rule is to be determined from all the circumstances, and includes a reasonable time to see after
his baggage and prepare for his departure. The carrier-passenger relationship is not terminated merely by the
fact that the person transported has been carried to his destination if, for example, such person remains in
the carrier's premises to claim his baggage.
2. ID.; ID.; ID.; EXISTENCE OF A REASONABLE CAUSE AS WILL JUSTIFY
PRESENCE OF VICTIM ON OR NEAR PETITIONER'S VESSEL, A PRIMARY FACTOR. — It is
apparent from the case of La Mallorca vs. Court of Appeals, et. al. that what prompted the Court to rule as it
did in said case is the fact of the passenger's reasonable presence within the carrier's premises. That
reasonableness of time should be made to depend on the attending circumstances of the case, such as the
kind of common carrier, the nature of its business, the customs of the place, and so forth, and therefore
precludes a consideration of the time element per se without taking into account such other factors. It is
thus of no moment whether in the cited case of La Mallorca there was no appreciable interregnum for the
passenger therein to leave the carrier's premises whereas in the case at bar, an interval of one (1) hour had
elapsed before the victim met the accident. The primary factor to be considered is the existence of a
reasonable cause as will justify the presence of the victim on or near the petitioner's vessel. We believe there
exists such a justifiable cause.
3. ID.; ID.; ID.; PASSENGERS OF VESSELS ARE AUDITED A LONGER PERIOD OF TIME
TO DISEMBARK FROM SHIP THAN OTHER COMMON CARRIERS; REASON. — It is of common
knowledge that, by the very nature of petitioner's business as a shipper, the passengers of vessels are allotted
a longer period of time to disembark from the ship than other common carriers such as a passenger bus.
With respect to the bulk of cargoes and the number of passengers it can load, such vessels are
capable of accommodating a bigger volume of both as compared to the capacity of a regular commuter bus.
Consequently, a ship passenger will need at least an hour as is the usual practice, to disembark from the
vessel and claim his baggage whereas a bus passenger can easily get off the bus and retrieve his luggage in a
very short period of time. Verily, petitioner cannot categorically claim, through the bare
expedient of comparing the period of time entailed in getting the passenger's cargoes, that the ruling in La
Mallorca is inapplicable to the case at bar. On the contrary, if we are to apply the doctrine enunciated
therein to the instant petition, we cannot in reason doubt that the victim Anacleto Viana was still a passenger
at the time of the incident. When the accident occurred, the victim was in the act of unloading his cargoes,
which he had every right to do, from petitioner's vessel. As earlier stated, a carrier is duty bound not only to
bring its passengers safely to their destination but also to afford them a reasonable time to claim their
baggage.
4. ID.; ID.; ID.; VICTIM RETRIEVING HIS BAGGAGE, DEEMED A
PASSENGER OF CARRIER. — It is not definitely shown that one (1) hour prior to the incident, the victim
had already disembarked from the vessel. Petitioner failed to prove this. What is clear to us is that at the
time the victim was taking his cargoes, the vessel had already docked an hour earlier. In consonance with
common shipping procedure as to the minimum time of one (1) hour allowed for the passengers to
disembark, it may be presumed that the victim had just gotten off the vessel when he went to retrieve his
baggage. Yet, even if he had already disembarked an hour earlier, his presence in petitioner's premises was
not without cause. The victim had to claim his baggage which was possible only one (1) hour after the
vessel arrived since it was admittedly standard procedure in the case of petitioner's vessels that the

47
unloading operations shall start only after that time. Consequently, under the foregoing circumstances, the
victim Anacleto Viana is still deemed a passenger of said carrier at the time of his tragic death.
5. ID.; ID.; DUTIES THEREOF, CITED. — Common carriers are, from the nature of their business
and for reasons of public policy, 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.
More particularly, 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.
6. ID.; ID.; CONTRACT OF CARRIAGE; DEATH OR INJURY OF PASSENGER GIVES RISE
TO AN ACTION FOR BREACH, PROOF REQUIRED TO PROVE BREACH. — Where a passenger dies
or is injured, the common carrier is presumed to have been at fault or to have acted negligently. This gives
rise to an action for breach of contract of carriage where all that is required of plaintiff is to prove the
existence of the contract of carriage and its non-performance by the carrier, that is, the failure of the carrier
to carry the passenger safely to his destination, which, in the instant case, necessarily includes its failure to
safeguard its passenger with extraordinary diligence while such relation subsists.
7. ID.; ID.; ID.; PRESUMPTION OF VESSEL'S NEGLIGENCE; HIGHEST DEGREE OF CARE
AND DILIGENCE REQUIRED. — The presumption is, therefore, established by law that in case of a
passenger's death or injury the operator of the vessel was at fault or negligent, having failed to exercise
extraordinary diligence, and it is incumbent upon it to rebut the same. This is in consonance with the
avowed policy of the State to afford full protection to the passengers of common carriers which can be
carried out only by imposing a stringent statutory obligation upon the latter. Concomitantly, this Court has
likewise adopted a rigid posture in the application of the law by exacting the highest degree of care and
diligence from common carriers, bearing utmost in mind the welfare of the passengers who often become
hapless victims of indifferent and profit-oriented carriers. We cannot in reason deny that petitioner failed to
rebut the presumption against it. Under the facts obtaining in the present case, it cannot be gainsaid that
petitioner had inadequately complied with the required degree of diligence to prevent the accident from
happening.
8. ID.; ID.; ID.; EXTRAORDINARY DILIGENCE NOT SHOWN BY PRECAUTIONARY
MEASURES OF PETITIONER. — The evidence does not show that there was a cordon of drums around
the perimeter of the crane, as claimed by petitioner. It also adverted to the fact that the alleged
presence of visible warning signs in the vicinity was disputable and not indubitably established. Thus, we
are not inclined to accept petitioner's explanation that the victim and other passengers were sufficiently
warned that merely venturing into the area in question was fraught with serious peril. Definitely, even
assuming the existence of the supposed cordon of drums loosely placed around the unloading area and the
guard's admonitions against entry therein, these were at most insufficient precautions which pale into
insignificance if considered vis-a-vis the gravity of the danger to which the deceased was exposed. There is
no showing that petitioner was extraordinarily diligent in requiring or seeing to it that said precautionary
measures were strictly and actually enforced to subserve their purpose of preventing entry into the forbidden
area. By no stretch of liberal evaluation can such perfunctory acts approximate the "utmost diligence of very
cautious persons" to be exercised "as far as human care and foresight can provide" which is required by
law of common carriers with respect to their passengers.
9. ID.; ID.; ID.; EVEN IF VICTIM IS CONTRIBUTORILY NEGLIGENT, PROXIMATE AND
DIRECT CAUSE OF VICTIM'S DEATH IS PETITIONER'S FAILURE TO OBSERVE
EXTRAORDINARY DILIGENCE. — While the victim was admittedly contributorily negligent, still
petitioner's aforesaid failure to exercise extraordinary diligence was the proximate and direct cause of,
because it could definitely have prevented, the former's death. Moreover, in paragraph 5.6 of its petition, at
bar, petitioner has expressly conceded the factual finding of respondent Court of Appeals that petitioner did
not present sufficient evidence in support of its submission that the deceased Anacleto Viana was
guilty of gross negligence. Petitioner cannot now be heard to claim otherwise.
10. ID.; ID.; NEGLIGENCE; IMPUTATION THEREOF ON PRIVATE RESPONDENT
CORPORATION, NOT PROPER; RATIONALE. — Aboitiz joined Pioneer in proving the alleged gross
negligence of the victim, hence its present contention that the death of the passenger was due to the
negligence of the crane operator cannot be sustained both on grounds of estoppel and for lack of evidence
on its present theory. Even in its answer filed in the court below it readily alleged that Pioneer had taken the
necessary safeguards insofar as its unloading operations were concerned, a fact which appears to have been
accepted by the plaintiff therein by not impleading Pioneer as a defendant, and likewise inceptively
by Aboitiz by filing its third-party complaint only after ten (10) months from the institution of the suit
against it. Parenthetically, Pioneer is not within the ambit of the rule on extraordinary diligence required of,
48
 and the corresponding presumption of negligence foisted on, common carriers like Aboitiz. This, of course,
does not detract from what we have said that no negligence can be imputed to Pioneer but, that on the
contrary, the failure of Aboitiz to exercise extraordinary diligence for the safety of its passenger is the
rationale for our finding on its liability.

DECISION
REGALADO, J p:
In this appeal by certiorari, petitioner Aboitiz Shipping Corporation seeks a review of the
decision 1 of respondent Court of Appeals, dated July 29, 1988, the decretal portion of which reads:
"WHEREFORE, the judgment appealed from as modified by the order of October 27,
1982, is hereby affirmed with the modification that appellant Aboitiz Shipping is hereby
ordered to pay plaintiff-appellees the amount of P30,000.00 for the death of Anacleto Viana;
actual damages of P9,800.00; P160,000.00 for unearned income; P7,200.00 as support for
deceased's parents;-P20,000.00 as moral damages; P10,000.00 as attorney's fees; and to pay the
costs."
The undisputed facts of the case, as found by the court a quo and adopted by respondent court, are as
follows: cdrep
"The evidence disclosed that on May 11, 1975, Anacleto Viana boarded the vessel
M/V Antonia, owned by defendant, at the port at San Jose, Occidental Mindoro, bound for
Manila, having purchased a ticket (No. 117392) in the sum of P23.10 (Exh. 'B'). On May 12,
1975, said vessel arrived at Pier 4, North Harbor, Manila, and the passengers therein
disembarked, a gangplank having been provided connecting the side of the vessel to the pier.
Instead of using said gangplank, Anacleto Viana disembarked on the third deck which was on
the level with the pier. After said vessel had landed, the Pioneer Stevedoring Corporation took
over the exclusive control of the cargoes loaded on said vessel pursuant to the
Memorandum of Agreement dated July 26, 1975 (Exh. '2') between the third party defendant
Pioneer Stevedoring Corporation and defendant Aboitiz Shipping Corporation.
"The crane owned by the third party defendant and operated by its crane operator Alejo
Figueroa was placed alongside the vessel and one (1) hour after the passengers of said vessel
had disembarked, it started operation by unloading the cargoes from said vessel. While the
crane was being operated, Anacleto Viana who had already disembarked from said vessel
obviously remembering that some of his cargoes were still loaded in the vessel, went back to
the vessel, and it was while he was pointing to the crew of the said vessel to the place where
his cargoes were loaded that the crane hit him, pinning him between the side of the vessel and
the crane. He was thereafter brought to the hospital where he later expired three (3) days
thereafter, on May 15, 1975, the cause of his death according to the Death Certificate (Exh. 'C')
being "hypostatic pneumonia secondary to traumatic fracture of the pubic bone lacerating the
urinary bladder" (See also Exh. 'B'). For his hospitalization, medical, burial and other
miscellaneous expenses, Anacleto's wife, herein plaintiff, spent a total of P9,800.00 (Exhibits
'E', 'E-1', to 'E-5'). Anacleto Viana who was only forty (40) years old when he met said fateful
accident (Exh. 'E') was in good health. His average annual income as a farmer or a farm
supervisor was 400 cavans of palay annually. His parents, herein plaintiffs Antonio and
Gorgonia Viana, prior to his death had been recipient of twenty (20) cavans of palay as support
or P120.00 monthly. Because of Anacleto's death, plaintiffs suffered mental anguish and
extreme worry or moral damages. For the filing of the instant case, they had to hire a lawyer
for an agreed fee of ten thousand (P10,000.00) pesos." 2
Private respondents Vianas filed a complaint 3 for damages against petitioner corporation (Aboitiz,
for brevity) for breach of contract of carriage.
In its answer, 4 Aboitiz denied responsibility contending that at the time of the accident, the vessel
was completely under the control of respondent Pioneer Stevedoring Corporation (Pioneer, for short) as the
exclusive stevedoring contractor of Aboitiz, which handled the unloading of cargoes from the
vessel of Aboitiz. It is also averred that since the crane operator was not an employee of Aboitiz, the latter
cannot be held liable under the fellow-servant rule. prcd
Thereafter, Aboitiz, as third-party plaintiff, filed a third-party complaint 5 against Pioneer imputing
liability thereto for Anacleto Viana's death as having been allegedly caused by the negligence of the crane
operator who was an employee of Pioneer under its exclusive control and supervision.
49
 Pioneer, in its answer to the third-party complaint, 6 raised the defenses that Aboitiz had no
cause of action against Pioneer considering that Aboitiz is being sued by the Vianas for
breach of contract of carriage to which Pioneer is not a party; that Pioneer had observed the diligence of a
good father of a family both in the selection and supervision of its employees as well as in the
prevention of damage or injury to anyone including the victim Anacleto Viana; that Anacleto Viana's gross
negligence was the direct and proximate cause of his death; and that the filing of the third-party complaint
was premature by reason of the pendency of the criminal case for homicide through reckless imprudence
filed against the crane operator, Alejo Figueroa.
In a decision rendered on April 17, 1980 by the trial court, 7 Aboitiz was ordered to pay the Vianas
for damages incurred, and Pioneer was ordered to reimburse Aboitiz for whatever amount the latter paid the
Vianas. The dispositive portion of said decision provides:
"WHEREFORE, judgment is hereby rendered in favor of the plaintiffs:
"(1) ordering defendant Aboitiz Shipping Corporation to pay to plaintiffs the
sum of P12,000.00 for the death of Anacleto Viana; P9,800.00 as actual damages; P533,200.00
value of the 10,664 cavans of palay computed at P50.00 per cavan; P10,000.00 as attorney's
fees; P5,000.00, value of the 100 cavans of palay as support for five (5) years for deceased
(sic) parents, herein plaintiffs Antonio and Gorgonia Viana computed at P50.00 per cavan;
P7,200.00 as support for deceased's parents computed at P120.00 a month for five years
pursuant to Art. 2206, Par. 2, of the Civil Code; P20,000.00 as moral damages, and costs; and
"(2) ordering the third party defendant Pioneer Stevedoring Corporation to reimburse
defendant and third party plaintiff-Aboitiz Shipping Corporation the said amounts that it is
ordered to pay to herein plaintiffs."
Both Aboitiz and Pioneer filed separate motions for reconsideration wherein they similarly raised the
trial court's failure to declare that Anacleto Viana acted with gross negligence despite the overwhelming
evidence presented in support thereof. In addition, Aboitiz alleged, in opposition to Pioneer's motion, that
under the memorandum of agreement the liability of Pioneer as contractor is automatic for any damages or
losses whatsoever occasioned by and arising from the operation of its arrastre and stevedoring
service. LLjur
In an order dated October 27, 1982, 8 the trial court absolved Pioneer from liability for failure of the
Vianas and Aboitiz to preponderantly establish a case of negligence against the crane operator which
the court a quo ruled is never presumed, aside from the fact that the memorandum of agreement supposedly
refers only to Pioneer's liability in case of loss or damage to goods handled by it but not in the
case of personal injuries, and, finally, that Aboitiz cannot properly invoke the fellow-servant rule simply
because its liability stems from a breach of contract of carriage. The dispositive portion of said order reads:
"WHEREFORE, judgment is hereby modified insofar as third party defendant Pioneer
Stevedoring Corporation is concerned rendered in favor of the plaintiffs:
"(1) Ordering defendant Aboitiz Shipping Corporation to pay the plaintiffs the
sum of P12,000.00 for the death of Anacleto Viana; P9,000.00 (sic) as actual damages;
P533,200.00 value of the 10,664 cavans of palay computed at P50.00 per cavan; P10,000.00 as
attorney's fees; P5,000.00 value of the 100 cavans of palay as support for five (5) years for
deceased's parents, herein plaintiffs Antonio and Gorgonia Viana, computed at P50.00 per
cavan; P7,200.00 as support for deceased's parents computed at P120.00 a month for five years
pursuant to Art. 2206, Par. 2, of the Civil Code; P20,000.00 as moral damages, and costs; and"
(2) Absolving third-party defendant Pioneer Stevedoring Corporation for (sic) any
liability for the death of Anacleto Viana, the passenger of M/V Antonia owned by defendant
third party plaintiff Aboitiz Shipping Corporation it appearing that the negligence of its crane
operator has not been established therein."
Not satisfied with the modified judgment of the trial court, Aboitiz appealed the same to
respondent Court of Appeals which affirmed the findings of the trial court except as to the
amount of damages awarded to the Vianas. llcd
Hence, this petition wherein petitioner Aboitiz postulates that respondent court erred:
"(A) In holding that the doctrine laid down by this Honorable Court in La
Mallorca vs. Court of Appeals, et al. (17 SCRA 739, July 27, 1966) is applicable to the case in

50
 the face of the undisputable fact that the factual situation under the La Mallorca case is
radically different from the facts obtaining in this case;
"(B) In holding petitioner liable for damages in the face of the finding of the court a
quo and confirmed by the Honorable respondent Court of Appeals that the deceased, Anacleto
Viana was guilty of contributory negligence, which, we respectfully submit, contributory
negligence was the proximate cause of his death; specifically the Honorable
respondent Court of Appeals failed to apply Art. 1762 of the New Civil Code;"
(C) In the alternative assuming the holding of the Honorable
respondent Court of Appeals that petitioner may be legally condemned to pay damages to the
private respondents we respectfully submit that it committed a reversible error when it
dismissed petitioner's third party complaint against private respondent Pioneer Stevedoring
Corporation instead of compelling the latter to reimburse the petitioner for whatever damages it
may be compelled to pay to the private respondents Vianas." 9
At threshold, it is to be observed that both the trial court and respondent Court of Appeals found the
victim Anacleto Viana guilty of contributory negligence, but holding that it was the negligence of Aboitiz in
prematurely turning over the vessel to the arrastre operator for the unloading of cargoes which was the
direct, immediate and proximate cause of the victim's death.
I. Petitioner contends that since one (1) hour had already elapsed from the time Anacleto Viana
disembarked from the vessel and that he was given more than ample opportunity to unload his cargoes prior
to the operation of the crane, his presence on the vessel was no longer reasonable and he consequently
ceased to be a passenger. Corollarily, it insists that the doctrine in La Mallorca vs. Court of Appeals, et
al. 10 is not applicable to the case at bar.
The rule is that the relation of carrier and passenger continues until the passenger has been landed at
the port of destination and has left the vessel owner's dock or premises. 11 Once created, the relationship
will not ordinarily terminate until the passenger has, after reaching his destination, safely alighted from the
carrier's conveyance or had a reasonable opportunity to leave the carrier's premises. All persons who remain
on the premises a reasonable time after leaving the conveyance are to be deemed passengers, and what is a
reasonable time or a reasonable delay within this rule is to be determined from all the circumstances, and
includes a reasonable time to see after his baggage and prepare for his departure. 12 The carrier-passenger
relationship is not terminated merely by the fact that the person transported has been carried to his
destination if, for example, such person remains in the carrier's premises to claim his baggage. 13
It was in accordance with this rationale that the doctrine in the aforesaid case of La Mallorca was
enunciated, to wit:
"It has been recognized as a rule that the relation of carrier and passenger does not
cease at the moment the passenger alights from the carrier's vehicle at a place selected by the
carrier at the point of destination, but continues until the passenger has had a reasonable time
or a reasonable opportunity to leave the carrier's premises. And, what is a reasonable time or a
reasonable delay within this rule is to be determined from all the circumstances. Thus, a person
who, after alighting from a train, walks along the station platform is considered still a
passenger. So also, where a passenger has alighted at his destination and is proceeding by the
usual way to leave the company's premises, but before actually doing so is halted by the report
that his brother, a fellow passenger, has been shot, and he in good faith and without
intent of engaging in the difficulty, returns to relieve his brother, he is deemed reasonably and
necessarily delayed and thus continues to be a passenger entitled as such to the
protection of the railroad company and its agents. llcd
"In the present case, the father returned to the bus to get one of his baggages which was
not unloaded when they alighted from the bus. Racquel, the child that she was, must have
followed the father. However, although the father was still on the running board of the bus
waiting for the conductor to hand him the bag or bayong, the bus started to run, so that even he
(the father) had to jump down from the moving vehicle. It was at this instance that the child,
who must be near the bus, was run over and killed. In the circumstances, it cannot be claimed
that the carrier's agent had exercised the 'utmost diligence' of a 'very cautious person' required
by Article 1755 of the Civil Code to be observed by a common carrier in the discharge of its
obligation to transport safely its passengers . . . The presence of said passengers near the bus
was not unreasonable and they are, therefore, to be considered still as passengers of the carrier,
entitled to the protection under their contract of carriage." 14
51
 It is apparent from the foregoing that what prompted the Court to rule as it did in said case is the
fact of the passenger's reasonable presence within the carrier's premises. That reasonableness of time should
be made to depend on the attending circumstances of the case, such as the kind of common carrier, the
nature of its business, the customs of the place, and so forth, and therefore precludes a consideration of the
time element per se without taking into account such other factors. It is thus of no moment whether in the
cited case of La Mallorca there was no appreciable interregnum for the passenger therein to leave the
carrier's premises whereas in the case at bar, an interval of one (1) hour had elapsed before the victim met
the accident. The primary factor to be considered is the existence of a reasonable cause as will justify the
presence of the victim on or near the petitioner's vessel. We believe there exists such a justifiable cause.
It is of common knowledge that, by the very nature of petitioner's business as a shipper, the
passengers of vessels are allotted a longer period of time to disembark from the ship than other common
carriers such as a passenger bus. With respect to the bulk of cargoes and the number of passengers it can
load, such vessels are capable of accommodating a bigger volume of both as compared to the capacity of a
regular commuter bus. Consequently, a ship passenger will need at least an hour as is the usual practice, to
disembark from the vessel and claim his baggage whereas a bus passenger can easily get off the bus and
retrieve his luggage in a very short period of time. Verily, petitioner cannot categorically claim, through the
bare expedient of comparing the period of time entailed in getting the passenger's cargoes, that the ruling
in La Mallorca is inapplicable to the case at bar. On the contrary, if we are to apply the doctrine enunciated
therein to the instant petition, we cannot in reason doubt that the victim Anacleto Viana was still a passenger
at the time of the incident. When the accident occurred, the victim was in the act of unloading his cargoes,
which he had every right to do, from petitioner's vessel. As earlier stated, a carrier is duty bound not only to
bring its passengers safely to their destination but also to afford them a reasonable time to claim their
baggage.
It is not definitely shown that one (1) hour prior to the incident, the victim had already disembarked
from the vessel. Petitioner failed to prove this. What is clear to us is that at the time the victim was taking
his cargoes, the vessel had already docked an hour earlier. In consonance with common shipping procedure
as to the minimum time of one (1) hour allowed for the passengers to disembark, it may be presumed that
the victim had just gotten off the vessel when he went to retrieve his baggage. Yet, even if he had already
disembarked an hour earlier, his presence in petitioner's premises was not without cause. The victim had to
claim his baggage which was possible only one (1) hour after the vessel arrived since it was admittedly
standard procedure in the case of petitioner's vessels that the unloading operations shall start only after that
time. Consequently, under the foregoing circumstances, the victim Anacleto Viana is still deemed a
passenger of said carrier at the time of his tragic death. prcd
II. Under the law, common carriers are, from the nature of their business and for reasons of public
policy, 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. 15 More particularly, 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. 16 Thus,
where a passenger dies or is injured, the common carrier is presumed to have been at fault or to have acted
negligently. 17 This gives rise to an action for breach of contract of carriage where all that is
required of plaintiff is to prove the existence of the contract of carriage and its non-performance by the
carrier, that is, the failure of the carrier to carry the passenger safely to his destination, 18 which, in the
instant case, necessarily includes its failure to safeguard its passenger with extraordinary diligence while
such relation subsists.
The presumption is, therefore, established by law that in case of a passenger's death or injury the
operator of the vessel was at fault or negligent, having failed to exercise extraordinary diligence, and it is
incumbent upon it to rebut the same. This is in consonance with the avowed policy of the State to afford full
protection to the passengers of common carriers which can be carried out only by imposing a stringent
statutory obligation upon the latter. Concomitantly, this Court has likewise adopted a rigid posture in the
application of the law by exacting the highest degree of care and diligence from common carriers, bearing
utmost in mind the welfare of the passengers who often become hapless victims of indifferent and profit-
oriented carriers. We cannot in reason deny that petitioner failed to rebut the presumption against it. Under
the facts obtaining in the present case, it cannot be gainsaid that petitioner had inadequately complied with
the required degree of diligence to prevent the accident from happening.
As found by the Court of Appeals, the evidence does not show that there was a cordon of drums
around the perimeter of the crane, as claimed by petitioner. It also adverted to the fact that the alleged
presence of visible warning signs in the vicinity was disputable and not indubitably established. Thus, we
are not inclined to accept petitioner's explanation that the victim and other passengers were sufficiently
52
 warned that merely venturing into the area in question was fraught with serious peril. Definitely, even
assuming the existence of the supposed cordon of drums loosely placed around the unloading area and the
guard's admonitions against entry therein, these were at most insufficient precautions which pale into
insignificance if considered vis-a-vis the gravity of the danger to which the deceased was exposed. There is
no showing that petitioner was extraordinarily diligent in requiring or seeing to it that said precautionary
measures were strictly and actually enforced to subserve their purpose of preventing entry into the forbidden
area. By no stretch of liberal evaluation can such perfunctory acts approximate the "utmost diligence of very
cautious persons" to be exercised "as far as human care and foresight can provide" which is required by
law of common carriers with respect to their passengers.
While the victim was admittedly contributorily negligent, still petitioner's aforesaid failure to
exercise extraordinary diligence was the proximate and direct cause of, because it could definitely have
prevented, the former's death. Moreover, in paragraph 5.6 of its petition, at bar, 19 petitioner has expressly
conceded the factual finding of respondent Court of Appeals that petitioner did not present sufficient
evidence in support of its submission that the deceased Anacleto Viana was guilty of gross negligence.
Petitioner cannot now be heard to claim otherwise. LLpr
No excepting circumstance being present, we are likewise bound by respondent court's declaration
that there was no negligence on the part of Pioneer Stevedoring Corporation, a confirmation of the
trial court's finding to that effect, hence our conformity to Pioneer's being absolved of any liability.
As correctly observed by both courts, Aboitiz joined Pioneer in proving the alleged gross
negligence of the victim, hence its present contention that the death of the passenger was due to the
negligence of the crane operator cannot be sustained both on grounds of estoppel and for lack of evidence
on its present theory. Even in its answer filed in the court below it readily alleged that Pioneer had taken the
necessary safeguards insofar as its unloading operations were concerned, a fact which appears to have been
accepted by the plaintiff therein by not impleading Pioneer as a defendant, and likewise inceptively
by Aboitiz by filing its third-party complaint only after ten (10) months from the institution of the suit
against it. Parenthetically, Pioneer is not within the ambit of the rule on extraordinary diligence required of,
and the corresponding presumption of negligence foisted on, common carriers like Aboitiz. This, of course,
does not detract from what we have said that no negligence can be imputed to Pioneer but, that on the
contrary, the failure of Aboitiz to exercise extraordinary diligence for the safety of its passenger is the
rationale for our finding on its liability.
WHEREFORE, the petition is DENIED and the judgment appealed from is hereby AFFIRMED in
toto.
SO ORDERED.
||| (Aboitiz Shipping Corp. v. Court of Appeals, G.R. No. 84458, [November 6, 1989], 258-A PHIL 665-680)

17. [G.R. No. 119756. March 18, 1999.]

FORTUNE EXPRESS, INC., petitioner, vs. COURT OF APPEALS, PAULIE U. CAORONG, and
minor children YASSER KING CAORONG, ROSE HEINNI and PRINCE ALEXANDER, all
surnamed CAORONG, and represented by their mother PAULIE U. CAORONG, respondents.

Geocadin & Sabig Law Office for petitioner.

Alan L. Flores for private respondents.
SYNOPSIS
Petitioner Fortune Express, Inc. is a bus company in Northern Mindanao. On November 18, 1989, one
of its buses collided with a jeepney owned by a Maranao which resulted in the death of several passengers of
the jeepney including two Maranaos. In relation thereto, the Philippine Constabulary of Cagayan de Oro warned
the petitioner, through its operations manager Diosdado Bravo, that the Maranaos were planning to take revenge
on the petitioner by burning some of its buses. Bravo assured them that the necessary precautions to ensure the
safety of lives and properties of the passengers would be taken. On November 22, 1989, three armed Maranaos
who pretended to be passengers, seized and burned the bus of the petitioner at Linamon, Lanao del Norte while
on its way to Iligan City which resulted in the death one of its passengers, Atty. Talib Caorong. Thus the heirs
of Atty. Caorong filed before the Regional Trial Court, Branch VI, Iligan City a complaint for damages for
breach of contract of carriage against the petitioner. The trial court dismissed the complaint. However, the Court
of Appeals reversed the decision of the trial court.
Hence, this petition for review.

53
 Article 1763 of the Civil Code provides that a common carrier is responsible for injuries suffered by a
passenger on account of the wilful acts of other passengers, if the employees of the common carrier could have
prevented the act through the exercise of the diligence of a good father of a family. In the present case, it is clear
that because of the negligence of petitioner's employees, the seizure of the bus by Manggolo and his men was
made possible. Despite warning by the Philippine Constabulary at Cagayan de Oro that the Maranaos were
planning to take revenge on the petitioner by burning some of its buses and the assurance of petitioner's
operations manager, Diosdado Bravo, that the necessary precautions would be taken, petitioner did nothing to
protect the safety of its passengers. Had petitioner and its employees been vigilant, they would not have failed
to see that the malefactors had a large quantity of gasoline with them. Under the circumstances, simple
precautionary measures to protect the safety of passengers, such as frisking passengers and inspecting their
baggages, preferably with non-intrusive gadgets such as metal detectors, before allowing them on board could
have been employed without violating the passenger's constitutional rights.
The decision of the Court of Appeals was AFFIRMED.

SYLLABUS

1. CIVIL LAW; OBLIGATIONS AND CONTRACTS; COMMON CARRIER; RESPONSIBLE FOR

INJURIES SUFFERED BY PASSENGER ON ACCOUNT OF WILFUL ACTS OF OTHER PASSENGERS.
— Art. 1763 of the Civil Code provides that a common carrier is responsible for injuries suffered by a
passenger on account of the wilful acts of other passengers, if the employees of the common carrier could have
prevented the act through the exercise of the diligence of a good father of a family. cdasia
2. ID.; ID.; ID.; CASE AT BAR. — In the present case, it is clear that because of the negligence of
petitioner's employees, the seizure of the bus by Mananggolo and his men was made possible. Despite warning
by the Philippine Constabulary at Cagayan de Oro that the Maranaos were planning to take revenge on the
petitioner by burning some of its buses and the assurance of petitioner's operation manager, Diosdado Bravo,
that the necessary precautions would be taken, petitioner did nothing to protect the safety of its passengers. Had
petitioner and its employees been vigilant they would not have failed to see that the malefactors had a large
quantity of gasoline with them. Under the circumstances, simple precautionary measures to protect the safety of
passengers, such as frisking passengers and inspecting their baggages, preferably with non-intrusive gadgets
such as metal detectors, before allowing them on board could have been employed without violating the
passenger's constitutional rights.
3. ID.; ID.; FORTUITOUS EVENT; DEFINED. — Art. 1174 of the Civil Code defines a fortuitous
event as an occurrence which could not be foreseen or which though foreseen, is inevitable. In Yobido v. Court
of Appeals, we held that to be considered as force majeure, it is necessary that: (1) the cause of the breach of the
obligation must be independent of the human will; (2) the event must be either unforeseeable or unavoidable;
(3) the occurrence must be such as to render it impossible for the debtor to fulfill the obligation in a normal
manner; and (4) the obligor must be free of participation in, or aggravation of, the injury to the creditor. The
absence of any of the requisites mentioned above would prevent the obligor from being excused from liability.
4. ID.; ID.; ID.; NOT PRESENT IN CASE AT BAR. — Thus, in Vasquez v. Court of Appeals, it was
held that the common carrier was liable for its failure to take necessary precautions against an approaching
typhoon, of which it was warned, resulting in the loss of the lives of several passengers. The event was
foreseeable, and, thus, the second requisite mentioned above was not fulfilled. This ruling applies by analogy to
the present case. Despite the report of PC agent Generalao that the Maranaos were going to attack its buses,
petitioner took no steps to safeguard the lives and properties of its passengers. The seizure of the bus of the
petitioner was foreseeable and, therefore, was not a fortuitous event which would exempt petitioner from
liability.
5. ID.; ID.; DAMAGES; DECEASED NOT GUILTY OF CONTRIBUTORY NEGLIGENCE. — The
petitioner contends that Atty. Caorong was guilty of contributory negligence in returning to the bus to retrieve
something. But Atty. Caorong did not act recklessly. It should be pointed out that the intended targets of the
violence were petitioner and its employee, not its passengers. The assailant's motive was to retaliate for the loss
of life of two Maranaos as a result of the collision between petitioner's bus and the jeepney in which the two
Maranaos were riding. Mananggolo, the leader of the group which had hijacked the bus, ordered the passengers
to get off the bus as they intended to burn it and its driver. The armed men actually allowed Atty. Caorong to
retrieve something from the bus. What apparently angered them was his attempt to help the driver of the bus by
pleading for his life. He was playing the role of the good Samaritan. Certainly, this act cannot be considered an
act of negligence, let alone recklessness.

54
 6. ID.; ID.; ID.; INDEMNITY FOR DEATH. — Art. 1764 of the Civil Code, in relation to Art. 2206
thereof, provides for the payment of indemnity for the death of passengers caused by the breach of contract of
carriage by a common carrier. Initially fixed in Art. 2206 at P3,000.00, the amount of the said indemnity for
death has through the years been gradually increased in view of the declining value of the peso. It is presently
fixed at P50,000.00. Private respondents are entitled to this amount.
7. ID.; ID.; ID.; ACTUAL DAMAGES. — Art. 2199 provides that "except as provided by law or by
stipulation, one is entitled to an adequate compensation only for such pecuniary loss suffered by him as he has
duly proved." The trial court found that the private respondents spent P30,000.00 for the wake and burial of
Atty. Caorong. Since petitioner does not question this finding of the trial court, it is liable to private respondents
in the said amount as actual damages.
8. ID.; ID.; ID.; MORAL DAMAGES. — Under Art. 2206, the "spouse, legitimate and illegitimate
descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the
death of the deceased." The trial court found that private respondent Paulie Caorong suffered pain from the
death of her husband and worry on how to provide support for their minor children, private respondents Yasser
King, Rose Heinni, and Prince Alexander. The petitioner likewise does not question this finding of the trial
court. Thus, in accordance with recent decisions of this Court, we hold that the petitioner is liable to the private
respondents in the amount of P100,000.00 as moral damages for the death of Atty. Caorong.
9. ID.; ID.; ID.; EXEMPLARY DAMAGES. — Art. 2232 provides that "in contracts and quasi-
contracts, the court may award exemplary damages if the defendant acted in a wanton, fraudulent, reckless,
oppressive, or malevolent manner." In the present case, the petitioner acted in a wanton and reckless manner.
Despite warning that the Maranaos were planning to take revenge against the petitioner by burning some of its
buses, and contrary to the assurance made by its operations manager that the necessary precautions would be
taken, the petitioner and its employees did nothing to protect the safety of passengers. Under the circumstances,
we deem it reasonable to award private respondents exemplary damages in the amount of P100,000.00.
10. ID.; ID.; ID.; ATTORNEY'S FEES MAY BE RECOVERED WHEN EXEMPLARY DAMAGES
ARE AWARDED. — Pursuant to Art. 2208, attorney's fees may be recovered when, as in the instant case,
exemplary damages are awarded. In the recent case of Sulpicio Lines, Inc. v. Court of Appeals, we held an
award of P50,000.00 as attorney's fees to be reasonable. Hence, the private respondents are entitled to attorney's
fees in that amount.
11. ID.; ID.; ID.; COMPENSATION FOR LOSS OF EARNING CAPACITY. — Art. 1764 of the Civil
Code, in relation to Art. 2206 thereof, provides that in addition to the indemnity for death arising from the
breach of contract of carriage by a common carrier, the "defendant shall be liable for the loss of the earning
capacity of the deceased, and the indemnity shall be paid to the heirs of the latter." The formula established in
decided cases for computing net earning capacity is as follows: Net Earning Capacity = Life Expectancy x
[Gross Annual Income - Necessary Living Expenses]. Life expectancy is equivalent to two thirds (2/3)
multiplied by the difference of eighty (80) and the age of the deceased. IcESDA

DECISION
MENDOZA, J p:
This is an appeal by petition for review on certiorari of the decision, dated July 29, 1994, of the Court of
Appeals, which reversed the decision of the Regional Trial Court, Branch VI, Iligan City. The aforesaid
decision of the trial court dismissed the complaint of private respondents against petitioner for damages for
breach of contract of carriage filed on the ground that petitioner had not exercised the required degree of
diligence in the operation of one of its buses. Atty. Talib Caorong, whose heirs are private respondents herein,
was a passenger of the bus and was killed in the ambush involving said bus.
The facts of the instant case are as follows:
Petitioner is a bus company in northern Mindanao. Private respondent Paulie Caorong is the widow of
Atty. Caorong, while private respondents Yasser King, Rose Heinni, and Prince Alexander are their minor
children.
On November 18, 1989, a bus of petitioner figured in an accident with a jeepney in Kauswagan, Lanao
del Norte, resulting in the death of several passengers of the jeepney, including two Maranaos. Crisanto
Generalao, a volunteer field agent of the Constabulary Regional Security Unit No. X, conducted an
investigation of the accident. He found that the owner of the jeepney was a Maranao residing in Delabayan,
Lanao del Norte and that certain Maranaos were planning to take revenge on the petitioner by burning some of
its buses. Generalao rendered a report on his findings to Sgt. Reynaldo Bastasa of the Philippine Constabulary
55
Regional Headquarters at Cagayan de Oro. Upon the instruction of Sgt. Bastasa he went to see Diosdado Bravo,
operations manager of petitioner, at its main office in Cagayan de Oro City. Bravo assured him that the
necessary precautions to insure the safety of lives and property would be taken. 1
At about 6:45 P.M. on November 22, 1989, three armed Maranaos who pretended to be passengers,
seized a bus of petitioner at Linamon, Lanao del Norte while on its way to Iligan City. Among the passengers of
the bus was Atty. Caorong. The leader of the Maranaos, identified as one Bashier Mananggolo, ordered the
driver, Godofredo Cabatuan, to stop the bus on the side of the highway. Mananggolo then shot Cabatuan on the
arm, which caused him to slump on the steering wheel. Then one of the companions of Mananggolo started
pouring gasoline inside the bus, as the other held the passengers at bay with a handgun. Mananggolo then
ordered the passengers to get off the bus. The passengers, including Atty. Caorong, stepped out of the bus and
went behind the bushes in a field some distance from the highway. 2 LibLex
However, Atty. Caorong returned to the bus to retrieve something from the overhead rack. At that time,
one of the armed men was pouring gasoline on the head of the driver. Cabatuan, who had meantime regained
consciousness, heard Atty. Caorong pleading with the armed men to spare the driver as he was innocent of any
wrong doing and was only trying to make a living. The armed men were, however, adamant as they repeated
their warning that they were going to burn the bus along with its driver. During this exchange between Atty.
Caorong and the assailants, Cabatuan climbed out of the left window of the bus and crawled to the canal on the
opposite side of the highway. He heard shots from inside the bus. Larry de la Cruz, one of the passengers, saw
that Atty. Caorong was hit. Then the bus was set on fire. Some of the passengers were able to pull Atty.
Caorong out of the burning bus and rush him to the Mercy Community Hospital in Iligan City, but he died
while undergoing operation. 3
The private respondents brought this suit for breach of contract of carriage in the Regional Trial Court,
Branch VI, Iligan City. In its decision, dated December 28, 1990, the trial court dismissed the complaint,
holding as follows:
The fact that defendant, through Operations Manager Diosdado Bravo, was informed of
the "rumors" that the Moslems intended to take revenge by burning five buses of defendant is
established since the latter also utilized Crisanto Generalao as a witness. Yet despite this
information, the plaintiffs charge, defendant did not take proper precautions . . . .
Consequently, plaintiffs now fault the defendant for ignoring the report. Their position is that
the defendant should have provided its buses with security guards. Does the law require
common carriers to install security guards in its buses for the protection and safety of its
passengers? Is the failure to post guards an omission of the duty to "exercise the diligence of a
good father of the family" which could have prevented the killing of Atty. Caorong? To our
mind, the diligence demanded by law does not include the posting of security guards in buses.
It is an obligation that properly belongs to the State. Besides, will the presence of one or two
security guards suffice to deter a determined assault of the lawless and thus prevent the injury
complained of? Maybe so, but again, perhaps not. In other words, the presence of a security
guard is not a guarantee that the killing of Atty. Caorong would have been definitely avoided.
xxx xxx xxx
Accordingly, the failure of defendant to accord faith and credit to the report of Mr.
Generalao and the fact that it did not provide security to its buses cannot, in the light of the
circumstances, be characterized as negligence.
Finally, the evidence clearly shows that the assailants did not have the least intention of
harming any of the passengers. They ordered all the passengers to alight and set fire on the bus
only after all the passengers were out of danger. The death of Atty. Caorong was an
unexpected and unforeseen occurrence over which defendant had no control. Atty. Caorong
performed an act of charity and heroism in coming to the succor of the driver even in the face
of danger. He deserves the undying gratitude of the driver whose life he saved. No one should
blame him for an act of extraordinary charity and altruism which cost his life. But neither
should any blame be laid on the doorstep of defendant. His death was solely due to the willful
acts of the lawless which defendant could neither prevent nor stop. cdphil
xxx xxx xxx
WHEREFORE, in view of the foregoing, the complaint is hereby dismissed. For lack of
merit, the counter-claim is likewise dismissed. No cost. 4
On appeal, however, the Court of Appeals reversed. It held:
56
 In the case at bench, how did defendant-appellee react to the tip or information that
certain Maranao hotheads were planning to burn five of its buses out of revenge for the deaths
of two Maranaos in an earlier collision involving appellee's bus? Except for the remarks of
appellee's operations manager that "we will have our action . . . and I'll be the one to settle it
personally," nothing concrete whatsoever was taken by appellee or its employees to prevent the
execution of the threat. Defendant-appellee never adopted even a single safety measure for the
protection of its paying passengers. Were there available safeguards? Of course, there were:
one was frisking passengers particularly those en route to the area where the threats were likely
to be carried out such as where the earlier accident occurred or the place of influence of the
victims or their locality. If frisking was resorted to, even temporarily, . . . appellee might be
legally excused from liability. Frisking of passengers picked up along the route could have
been implemented by the bus conductor; for those boarding at the bus terminal, frisking could
have been conducted by him and perhaps by additional personnel of defendant-appellee. On
hindsight, the handguns and especially the gallon of gasoline used by the felons all of which
were brought inside the bus would have been discovered, thus preventing the burning of the
bus and the fatal shooting of the victim.
Appellee's argument that there is no law requiring it to provide guards on its buses and
that the safety of citizens is the duty of the government, is not well taken. To be sure, appellee
is not expected to assign security guards on all of its buses; if at all, it has the duty to post
guards only on its buses plying predominantly Maranao areas. As discussed in the next
preceding paragraph, the least appellee could have done in response to the report was to adopt
a system of verification such as the frisking of passengers boarding its buses. Nothing, and to
repeat, nothing at all, was done by defendant-appellee to protect its innocent passengers from
the danger arising from the "Maranao threats." It must be observed that frisking is not a novelty
as a safety measure in our society. Sensitive places — in fact, nearly all important places —
have applied this method of security enhancement. Gadgets and devices are available in the
market for this purpose. It would not have weighed much against the budget of the bus
company if such items were made available to its personnel to cope up with situations such as
the "Maranao threats." prcd
In view of the constitutional right to personal privacy, our pronouncement in this
decision should not be construed as an advocacy of mandatory frisking in all public
conveyances. What we are saying is that given the circumstances obtaining in the case at bench
that: (a) two Maranaos died because of a vehicular collision involving one of appellee's
vehicles; (b) appellee received a written report from a member of the Regional Security Unit,
Constabulary Security Group, that the tribal/ethnic group of the two deceased were planning to
burn five buses of appellee out of revenge; and (c) appellee did nothing — absolutely nothing
— for the safety of its passengers travelling in the area of influence of the victims, appellee has
failed to exercise the degree of diligence required of common carriers. Hence, appellee must be
adjudged liable.
xxx xxx xxx
WHEREFORE, the decision appealed from is hereby REVERSED and another
rendered ordering defendant-appellee to pay plaintiffs-appellants the following:
1) P3,399,649.20 as death indemnity;
2) P50,000.00 and P500.00 per appearance as attorney's fees; and
Costs against defendant-appellee. 5
Hence, this appeal. Petitioner contends:
(A) THAT PUBLIC RESPONDENT ERRED IN REVERSING THE DECISION OF THE
REGIONAL TRIAL COURT DATED DECEMBER 28, 1990 DISMISSING THE
COMPLAINT AS WELL AS THE COUNTERCLAIM, AND FINDING FOR
PRIVATE RESPONDENTS BY ORDERING PETITIONER TO PAY THE
GARGANTUAN SUM OF P3,449,649.20 PLUS P500.00 PER APPEARANCE AS
ATTORNEY'S FEES, AS WELL AS DENYING PETITIONER'S MOTION FOR
RECONSIDERATION AND THE SUPPLEMENT TO SAID MOTION, WHILE
HOLDING, AMONG OTHERS, THAT PETITIONER BREACHED THE

57
 CONTRACT OF CARRIAGE BY ITS FAILURE TO EXERCISE THE REQUIRED
DEGREE OF DILIGENCE;
(B) THAT THE ACTS OF THE MARANAO OUTLAWS WERE SO GRAVE,
IRRESISTIBLE, VIOLENT, AND FORCEFUL, AS TO BE REGARDED AS CASO
FORTUITO; AND
(C) THAT PUBLIC RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN
HOLDING THAT PETITIONER COULD HAVE PROVIDED ADEQUATE
SECURITY IN PREDOMINANTLY MUSLIM AREAS AS PART OF ITS DUTY TO
OBSERVE EXTRA-ORDINARY DILIGENCE AS A COMMON CARRIER. dctai
The instant petition has no merit.
First. Petitioner's Breach of the Contract of Carriage
Art. 1763 of the Civil Code provides that a common carrier is responsible for injuries suffered by a
passenger on account of the wilful acts of other passengers, if the employees of the common carrier could have
prevented the act through the exercise of the diligence of a good father of a family. In the present case, it is clear
that because of the negligence of petitioner's employees, the seizure of the bus by Mananggolo and his men was
made possible.
Despite warning by the Philippine Constabulary at Cagayan de Oro that the Maranaos were planning to
take revenge on the petitioner by burning some of its buses and the assurance of petitioner's operation manager,
Diosdado Bravo, that the necessary precautions would be taken, petitioner did nothing to protect the safety of its
passengers.
Had petitioner and its employees been vigilant they would not have failed to see that the malefactors had
a large quantity of gasoline with them. Under the circumstances, simple precautionary measures to protect the
safety of passengers, such as frisking passengers and inspecting their baggages, preferably with non-intrusive
gadgets such as metal detectors, before allowing them on board could have been employed without violating the
passenger's constitutional rights. As this Court intimated in Gacal v. Philippine Air Lines, Inc., 6 a common
carrier can be held liable for failing to prevent a hijacking by frisking passengers and inspecting their baggages.
From the foregoing, it is evident that petitioner's employees failed to prevent the attack on one of
petitioner's buses because they did not exercise the diligence of a good father of a family. Hence, petitioner
should be held liable for the death of Atty. Caorong.
Second. Seizure of Petitioner's Bus not a Case of Force Majeure
The petitioner contends that the seizure of its bus by the armed assailants was a fortuitous event for
which it could not be held liable. cdasia
Art. 1174 of the Civil Code defines a fortuitous event as an occurrence which could not be foreseen or
which though foreseen, is inevitable. In Yobido v. Court of Appeals, 7 we held that to be considered as force
majeure, it is necessary that: (1) the cause of the breach of the obligation must be independent of the human
will; (2) the event must be either unforeseeable or unavoidable; (3) the occurrence must be such as to render it
impossible for the debtor to fulfill the obligation in a normal manner; and (4) the obligor must be free of
participation in, or aggravation of, the injury to the creditor. The absence of any of the requisites mentioned
above would prevent the obligor from being excused from liability.
Thus, in Vasquez v. Court of Appeals, 8 it was held that the common carrier was liable for its failure to
take the necessary precautions against an approaching typhoon, of which it was warned, resulting in the loss of
the lives of several passengers. The event was foreseeable, and, thus, the second requisite mentioned above was
not fulfilled. This ruling applies by analogy to the present case. Despite the report of PC agent Generalao that
the Maranaos were going to attack its buses, petitioner took no steps to safeguard the lives and properties of its
passengers. The seizure of the bus of the petitioner was foreseeable and, therefore, was not a fortuitous event
which would exempt petitioner from liability.
Petitioner invokes the ruling in Pilapil v. Court of Appeals 9 and De Guzman v. Court of Appeals 10 in
support of its contention that the seizure of its bus by the assailants constitutes force majeure. In Pilapil v. Court
of Appeals, 11 it was held that a common carrier is not liable for failing to install window grills on its buses to
protect passengers from injuries caused by rocks hurled at the bus by lawless elements. On the other hand, in De
Guzman v. Court of Appeals, 12 it was ruled that a common carrier is not responsible for goods lost as a result
of a robbery which is attended by grave or irresistible threat, violence, or force.

58
 It is clear that the cases of Pilapil and De Guzman do not apply to the present case. Art. 1755 of
the Civil Code provides that "a common carrier is bound to carry the passengers as far as human care and
foresight can provide, using the utmost diligence of very cautious persons, with due regard for all the
circumstances." Thus, we held in Pilapil and De Guzman that the respondents therein were not negligent in
failing to take special precautions against threats to the safety of passengers which could not be foreseen, such
as tortious or criminal acts of third persons. In the present case, this factor of unforeseeability (the second
requisite for an event to be considered force majeure) is lacking. As already stated, despite the report of PC
agent Generalao that the Maranaos were planning to burn some of petitioner's buses and the assurance of
petitioner's operations manager (Diosdado Bravo) that the necessary precautions would be taken, nothing was
really done by petitioner to protect the safety of passengers. cda
Third. Deceased not Guilty of Contributory Negligence
The petitioner contends that Atty. Caorong was guilty of contributory negligence in returning to the bus
to retrieve something. But Atty. Caorong did not act recklessly. It should be pointed out that the intended targets
of the violence were petitioner and its employees, not its passengers. The assailant's motive was to retaliate for
the loss of life of two Maranaos as a result of the collision between petitioner's bus and the jeepney in which the
two Maranaos were riding. Mananggolo, the leader of the group which had hijacked the bus, ordered the
passengers to get off the bus as they intended to burn it and its driver. The armed men actually allowed Atty.
Caorong to retrieve something from the bus. What apparently angered them was his attempt to help the driver of
the bus by pleading for his life. He was playing the role of the good Samaritan. Certainly, this act cannot be
considered an act of negligence, let alone recklessness.
Fourth. Petitioner Liable to Private Respondents for Damages
We now consider the question of damages that the heirs of Atty. Caorong, private respondents herein,
are entitled to recover from the petitioner.
Indemnity for Death. Art. 1764 of the Civil Code, in relation to Art. 2206 thereof, provides for the
payment of indemnity for the death of passengers caused by the breach of contract of carriage by a common
carrier. Initially fixed in Art. 2206 at P3,000.00, the amount of the said indemnity for death has through the
years been gradually increased in view of the declining value of the peso. It is presently fixed at
P50,000.00. 13 Private respondents are entitled to this amount.
Actual Damages. Art. 2199 provides that "except as provided by law or by stipulation, one is entitled to
an adequate compensation only for such pecuniary loss suffered by him as he has duly proved." The trial court
found that the private respondents spent P30,000.00 for the wake and burial of Atty. Caorong. 14 Since
petitioner does not question this finding of the trial court, it is liable to private respondents in the said amount as
actual damages.
Moral Damages. Under Art. 2206, the "spouse, legitimate and illegitimate descendants and ascendants
of the deceased may demand moral damages for mental anguish by reason of the death of the deceased." The
trial court found that private respondent Paulie Caorong suffered pain from the death of her husband and worry
on how to provide support for their minor children, private respondents Yasser King, Rose Heinni, and Prince
Alexander. 15 The petitioner likewise does not question this finding of the trial court. Thus, in accordance with
recent decisions of this Court, 16 we hold that the petitioner is liable to the private respondents in the amount of
P100,000.00 as moral damages for the death of Atty. Caorong.
Exemplary Damages. Art. 2232 provides that "in contracts and quasi-contracts, the court may award
exemplary damages if the defendant acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner."
In the present case, the petitioner acted in a wanton and reckless manner. Despite warning that the Maranaos
were planning to take revenge against the petitioner by burning some of its buses, and contrary to the assurance
made by its operations manager that the necessary precautions would be taken, the petitioner and its employees
did nothing to protect the safety of passengers. Under the circumstances, we deem it reasonable to award private
respondents exemplary damages in the amount of P100,000.00. 17 cdll
Attorney's Fees. Pursuant to Art. 2208, attorney's fees may be recovered when, as in the instant case,
exemplary damages are awarded. In the recent case of Sulpicio Lines, Inc. v. Court of Appeals, 18 we held an
award of P50,000.00 as attorney's fees to be reasonable. Hence, the private respondents are entitled to attorney's
fees in that amount.
Compensation for Loss of Earning Capacity. Art. 1764 of the Civil Code, in relation to Art. 2206
thereof, provides that in addition to the indemnity for death arising from the breach of contract of carriage by a
common carrier, the "defendant shall be liable for the loss of the earning capacity of the deceased, and the

59
indemnity shall be paid to the heirs of the latter." The formula established in decided cases for computing net
earning capacity is as follows: 19
Life expectancy is equivalent to two thirds (2/3) multiplied by the difference of eighty (80) and the age
of the deceased. 20 Since Atty. Caorong was 37 years old at the time of his death, 21 he had a life expectancy of
28 2/3 more years. 22 His projected gross annual income, computed based on his monthly salary of
P11,385.00 23 as a lawyer in the Department of Agrarian Reform at the time of his death, was
P148,005.00. 24 Allowing for necessary living expenses of fifty percent (50%) 25 of his projected gross annual
income, his total earning capacity amounts to P2,121,404.90. 26 Hence, the petitioner is liable to the private
respondents in the said amount as compensation for loss of earning capacity. cdlex
WHEREFORE, the decision, dated July 29, 1994, of the Court of Appeals is hereby AFFIRMED with
the MODIFICATION that petitioner Fortune Express, Inc. is ordered to pay the following amounts to private
respondents Paulie, Yasser King, Rose Heinni, and Prince Alexander Caorong:
1. death indemnity in the amount of fifty thousand pesos (P50,000.00);
2. actual damages in the amount of thirty thousand pesos (P30,000.00);
3. moral damages in the amount of one hundred thousand pesos (P100,000.00);
4. exemplary damages in the amount of one hundred thousand pesos (P100,000.00);
5. attorney's fees in the amount of fifty thousand pesos (P50,000.00);
6. compensation for loss of earning capacity in the amount of two million one hundred twenty-one
thousand four hundred four pesos and ninety centavos (P2,121,404.90); and
7. costs of suits.
SO ORDERED.
||| (Fortune Express, Inc. v. Court of Appeals, G.R. No. 119756, [March 18, 1999], 364 PHIL 480-496)

18. [G.R. No. L-30309. November 25, 1983.]

CLEMENTE BRIÑAS, petitioner, vs. THE PEOPLE OF THE PHILIPPINES, and HONORABLE
COURT OF APPEALS, respondents.

Mariano R. Abad for petitioner.

The Solicitor General for respondents.

SYLLABUS
1. REMEDIAL LAW; EVIDENCE; FACTUAL FINDINGS OF THE TRIAL COURT AND
CONCLUSION DRAWN THEREFROM: CORRECT AND SUFFICIENTLY ESTABLISHED; CASE AT
BAR. — It is undisputed that the victims were on board the second coach where the petitioner-appellant was
assigned as conductor and that when the train slackened its speed and the conductor shouted "Lusacan,
Lusacan," they stood up and proceeded to the nearest exit. It is also undisputed that the train unexpectedly
resumed its regular speed and as a result "the old woman and the child stumbled and they were
seen no more."
2. CIVIL LAW; OBLIGATIONS AND CONTRACT; CULPA CONTRACTUAL; TRAIN
CONDUCTOR'S NEGLIGENCE; PROXIMATE CAUSE OF PASSENGERS' DEATH. — The proximate
cause of the death of the victims was the premature and erroneous announcement of petitioner-appellant
Brinas. It was negligence on the conductor's part to announce the next flag stop when said stop was still a
full three minutes ahead. This announcement prompted the two victims to stand and proceed to the nearest
exit. Without said announcement, the victims would have been safely seated in their respective seats when
the train jerked as it picked up speed. The connection between the premature and erroneous announcement
of petitioner-appellant and the deaths of the victims is direct and natural, unbroken by any intervening
efficient causes.
3. ID.; ID.; ID.; CONTRIBUTORY NEGLIGENCE OF THE VICTIMS; NOT A GROUND FOR
EXCULPATION OF OFFENDER. — The negligence of petitioner-appellant in prematurely and
erroneously announcing the next flag stop was the proximate cause of the deaths of Martina Bool and
Emelita Gesmundo. Any negligence of the victims was at most contributory and does not exculpate the
accused from criminal liability.
60
 4. REMEDIAL LAW; CRIMINAL PROCEDURE; INCLUSION OF CIVIL LIABILITY IN
JUDGMENT OF CONVICTION DESPITE THE FILING OF AN INDEPENDENT CIVIL ACTION;
ACTIONS CONSTITUTE TWO DISTINCT SOURCES OF OBLIGATION WITHIN THE COURT'S
JURISDICTION. — The source of the obligation sought to be enforced in Civil Case No. 5978 is culpa
contractual, not an act or omission punishable by law. We also note from the appellant's arguments and from
the title of the civil case that the party defendant is the Manila Railroad Company and not petitioner-
appellant Briñas. Culpa contractual and an act or omission punishable by law are two distinct sources of
obligation. The complainants in the criminal action for double homicide thru reckless imprudence did not
only reserve their right to file at independent civil action but in fact filed a separate civil action against the
Manila Railroad Company. The trial court acted within its jurisdiction when, despite the filing with it of the
separate civil action against the Manila Railroad Company, it still awarded death indemnity in the judgment
of conviction against the petitioner-appellant.
5. CRIMINAL LAW; ITEMS OF DAMAGES THAT MAY BE RECOVERED IN CASE OF
DEATH BY REASON OF THE COMMISSION OF A CRIME, WELL-SETTLED. — It is well-settled that
when death occurs as a result of the commission of a crime, the following items of damages may be
recovered: (1) an indemnity for the death of the victim; (2) an indemnity for loss of earning capacity of the
deceased; (3) moral damages; (4) exemplary damages; (5) attorney's fees and expenses of litigation, and (6)
interest in proper cases.
6. CIVIL LAW; OBLIGATIONS AND CONTRACT; INDEMNITY RECOVERABLE
SEPARATELY FROM AND IN ADDITION TO THE FIXED INDEMNITY FOR THE SOLE FACT OF
DEATH. — The indemnity for loss of earning capacity, moral damages, exemplary damages, attorney's
fees, and interests are recoverable separately from and in addition to the fixed sum of P12,000.00
corresponding to the indemnity for the sole fact of death. This indemnity arising from the fact of death due
to a crime is fixed whereas the others are still subject to the determination of the court based on the evidence
presented. The fact that the witnesses were not interrogated on the issue of damages is of no moment
because the death indemnity fixed for death is separate and distinct from the other forms of indemnity for
damages.

DECISION
GUTIERREZ, JR., J p:
This is a petition to review the decision of respondent Court of Appeals, now Intermediate Appellate
Court, affirming the decision of the Court of First Instance of Quezon, Ninth Judicial District, Branch I,
which found the accused Clemente Briñas guilty of the crime of DOUBLE HOMICIDE THRU RECKLESS
IMPRUDENCE for the deaths of Martina Bool and Emelita Gesmundo.
The information charged the accused-appellant and others as follows:
"That on or about the 6th day of January, 1957, in the Municipality of Tiaong, Province
of Quezon, Philippines, and within the jurisdiction of this Hon. Court, the said accused Victor
Milan, Clemente Briñas and Hermogenes Buencamino, being then persons in charge of
passenger Train No. 522-6 of the Manila Railroad Company, then running from Tagkawayan
to San Pablo City, as engine driver, conductor and assistant conductor, respectively, wilfully
and unlawfully drove and operated the same in a negligent, careless and imprudent manner,
without due regard to existing laws, regulations and ordinances, that although there were
passengers on board the passenger coach, they failed to provide lamps or lights therein, and
failed to take the necessary precautions for the safety of passengers and to prevent accident to
persons and damage to property, causing by such negligence, carelessness and imprudence,
that when said passenger Train No. 522-6 was passing the railroad tracks in the Municipality of
Tiaong, Quezon, two of its passengers, Martina Bool, an old woman, and Emelita Gesmundo, a
child about three years of age, fell from the passenger coach of the said train, as a result of
which, they were over run, causing their instantaneous death."
The facts established by the prosecution and accepted by the respondent court as basis for the
decision are summarized as follows:
"The evidence of the prosecution tends to show that in the afternoon of January 6,
1957, Juanito Gesmundo bought a train ticket at the railroad station in Tagkawayan, Quezon
for his 55-year old mother Martina Bool and his 3-year old daughter Emelita Gesmundo, who
were bound for Barrio Lusacan, Tiaong, same province. At about 2:00 p.m., Train No. 522 left
Tagkawayan with the old woman and her granddaughter among the passengers. At Hondagua
the train's complement were relieved, with Victor Millan taking over as engineman, Clemente
61
 Briñas as conductor, and Hermogenes Buencamino as assistant conductor. Upon approaching
Barrio Lagalag in Tiaong at about 8:00 p.m. of that same night, the train slowed down and the
conductor shouted 'Lusacan', 'Lusacan'. Thereupon, the old woman walked towards the left
front door facing the direction of Tiaong, carrying the child with one hand and holding her
baggage with the other. When Martina and Emelita were near the door, the train suddenly
picked up speed. As a result the old woman and the child stumbled and they were
seen no more. It took three minutes more before the train stopped at the next barrio, Lusacan,
and the victims were not among the passengers who disembarked thereat.
"Next morning, the Tiaong police received a report that two corpses were found along
the railroad tracks at Barrio Lagalag. Repairing to the scene to investigate, they found the
lifeless body of a female child, about 2 feet from the railroad tracks, sprawled to the ground
with her belly down, the hand resting on the forehead, and with the back portion of the head
crushed. The investigators also found the corpse of an old woman about 2 feet away from the
railroad tracks with the head and both legs severed and the left hand missing. The head was
located farther west between the rails. An arm was found midway from the body of the child to
the body of the old woman. Blood, pieces of scattered brain and pieces of clothes were at the
scene. Later, the bodies were identified as those of Martina Bool and Emelita Gesmundo.
Among the personal effects found on Martina was a train ticket (Exhibits "B")
On January 7, 1957, the bodies of the deceased were autopsied by Dr. Pastor Huertas, the Municipal
Health Officer of Tiaong. Dr. Huertas testified on the cause of death of the victims as follows:
"FISCAL YNGENTE:
"Q What could have caused the death of those women?
"A Shock.
"Q What could have caused that shock?
"A Traumatic injury.
"Q What could have caused traumatic injury?
"A The running over by the wheel of the train.
"Q With those injuries, has a person a chance to survive?
"A No chance to survive.
"Q What would you say death would come?
"A Instantaneous.
"Q How about the girl, the young girl about four years old, what could have caused the death?
"A Shock too.
"Q What could have caused the shock?
"A Compound fracture of the skull and going out of the brain.
"Q What could have caused the fracture of the skull and the going out of the brain? 06cdasia
"A That is the impact against a steel object." (TSN" pp. 81-82, July 1, 1959)
The Court of First Instance of Quezon convicted defendant-appellant Clemente Briñas for double
homicide thru reckless imprudence but acquitted Hermogenes Buencamino and Victor Millan. The
dispositive portion of the decision reads:
"WHEREFORE, the court finds the defendant Clemente Briñas guilty beyond doubt of
the crime of double homicide thru reckless imprudence, defined and punished under Article
305 in connection with Article 249 of the Revised Penal Code, and sentences him to suffer six
(6) months and one (1) day of prision correccional, to indemnify the heirs of the deceased
Martina Bool and Emelita Gesmundo in the amounts of P6,000 and P3,000, respectively, with
subsidiary imprisonment in case of insolvency not to exceed one-third of the principal penalty,
and to pay the costs.

62
 "For lack of sufficient evidence against the defendant Hermogenes Buencamino and on
the ground of reasonable doubt in the case of defendant Victor Millan, the court hereby acquits
them of the crime charged in the information and their bail bonds declared cancelled.
"As to the responsibility of the Manila Railroad Company in this case, this will be the
subject of court determination in another proceeding."
On appeal, the respondent Court of Appeals affirmed the judgment of the lower court.
During the pendency of the criminal prosecution in the Court of First Instance of Quezon, the heirs
of the deceased victims filed with the same court, a separate civil action for damages against the Manila
Railroad Company entitled "Civil Case No. 5978, Manaleyo Gesmundo, et al., v. Manila Railroad
Company". The separate civil action was filed for the recovery of P30,350.00 from the Manila Railroad
Company as damages resulting from the accident.
The accused-appellant alleges that the Court of Appeals made the following errors in its decision:
I
THE HONORABLE COURT OF APPEALS ERRED IN CONVICTING PETITIONER-
APPELLANT UNDER THE FACTS AS FOUND BY SAID COURT; and.
II
THE HONORABLE COURT OF APPEALS ERRED IN INCLUDING THE PAYMENT OF
DEATH INDEMNITY BY THE PETITIONER-APPELLANT, WITH SUBSIDIARY IMPRISONMENT
IN CASE OF INSOLVENCY, AFTER THE HEIRS OF THE DECEASED HAVE ALREADY
COMMENCED A SEPARATE CIVIL ACTION FOR DAMAGES AGAINST THE RAILROAD
COMPANY ARISING FROM THE SAME MISHAP.
We see no error in the factual findings of the respondent court and in the conclusion drawn from
those findings.
It is undisputed that the victims were on board the second coach where the petitioner-appellant was
assigned as conductor and that when the train slackened its speed and the conductor shouted "Lusacan,
Lusacan", they stood up and proceeded to the nearest exit. It is also undisputed that the train unexpectedly
resumed its regular speed and as a result "the old woman and the child stumbled and they were
seen no more."
In finding petitioner-appellant negligent, respondent Court of Appeals ruled that: cdphil
xxx xxx xxx
"The appellant's announcement was premature and erroneous, for it took a full three
minutes more before the next barrio of Lusacan was reached. In making the erroneous and
premature announcement, appellant was negligent. He ought to have known that train
passengers invariably prepare to alight upon notice from the conductor that the destination was
reached and that the train was about to stop. Upon the facts, it was the appellant's negligent act
which led the victims to the door. Said acts virtually exposed the victims to peril, for had not
the appellant mistakenly made the announcement, the victims would be safely ensconced in
their seats when the train jerked while picking up speed. Although it might be argued that the
negligent act of the appellant was not the immediate cause of, or the cause nearest in time to,
the injury, for the train jerked before the victims stumbled, yet in legal contemplation
appellant's negligent act was the proximate cause of the injury. As this Court held in Tucker v.
Milan, CA-G.R. No. 7059-R, June 3, 1953: `The proximate cause of the injury is not
necessarily the immediate cause of, or the cause nearest in time to, the injury. It is only when
the causes are independent of each other that the nearest is to be charged with the disaster. So
long as there is a natural, direct and continuous sequence between the negligent act the injury
(sic) that it can reasonably be said that but for the act the injury could not have occurred, such
negligent act is the proximate cause of the injury, and whoever is responsible therefore is liable
for damages resulting therefrom. One who negligently creates a dangerous condition cannot
escape liability for the natural and probable consequences thereof, although the act of a third
person, or an act of God for which he is not responsible intervenes to precipitate the loss."
xxx xxx xxx
It is a matter of common knowledge and experience about common carriers like trains and buses that
before reaching a station or flagstop they slow down and the conductor announces the name of the place. It
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is also a matter of common experience that as the train or bus slackens its speed, some passengers usually
stand and proceed to the nearest exit, ready to disembark as the train or bus comes to a full stop. This is
especially true of a train because passengers feel that if the train resumes its run before they are able to
disembark, there is no way to stop it as a bus may be stopped.
It was negligence on the conductor's part to announce the next flag stop when said stop was still a
full three minutes ahead. As the respondent Court of Appeals correctly observed, "the appellant's
announcement was premature and erroneous."
That the announcement was premature and erroneous is shown by the fact that immediately after the
train slowed down, it unexpectedly accelerated to full speed. Petitioner-appellant failed to show any reason
why the train suddenly resumed its regular speed. The announcement was made while the train was still in
Barrio Lagalag.
The proximate cause of the death of the victims was the premature and erroneous announcement of
petitioner-appellant Briñas. This announcement prompted the two victims to stand and proceed to the
nearest exit. Without said announcement, the victims would have been safely seated in their respective seats
when the train jerked as it picked up speed. The connection between the premature and erroneous
announcement of petitioner-appellant and the deaths of the victims is direct and natural, unbroken by any
intervening efficient causes.
Petitioner-appellant also argues that it was negligence per se for Martina Bool to go to the door of
the coach while the train was still in motion and that it was this negligence that was the proximate cause of
their deaths.
We have carefully examined the records and we agree with the respondent court that the negligence
of petitioner-appellant in prematurely and erroneously announcing the next flag stop was the proximate
cause of the deaths of Martina Bool and Emelita Gesmundo. Any negligence of the victims was at most
contributory and does not exculpate the accused from criminal liability. cdll
With respect to the second assignment of error, the petitioner argues that after the heirs of Martina
Bool and Emelita Gesmundo had actually commenced the separate civil action for damages in the same trial
court during the pendency of the criminal action, the said court had no more power to include any civil
liability in its judgment of conviction.
The source of the obligation sought to be enforced in Civil Case No. 5978 is culpa contractual, not
an act or omission punishable by law. We also note from the appellant's arguments and from the title of the
civil case that the party defendant is the Manila Railroad Company and not petitioner-appellant Briñas.
Culpa contractual and an act or omission punishable by law are two distinct sources of obligation.
The petitioner-appellant argues that since the information did not allege the existence of any kind of
damages whatsoever coupled by the fact that no private prosecutors appeared and the prosecution witnesses
were not interrogated on the issue of damages, the trial court erred in awarding death indemnity in its
judgment of conviction.
A perusal of the records clearly shows that the complainants in the criminal action for double
homicide thru reckless imprudence did not only reserve their right to file an independent civil action but in
fact filed a separate civil action against the Manila Railroad Company.
The trial court acted within its jurisdiction when, despite the filing with it of the separate civil action
against the Manila Railroad Company, it still awarded death indemnity in the judgment of conviction
against the petitioner-appellant.
It is well-settled that when death occurs as a result of the commission of a crime, the following items
of damages may be recovered: (1) an indemnity for the death of the victim; (2) an indemnity for loss of
earning capacity of the deceased; (3) moral damages; (4) exemplary damages; (5) attorney's fees and
expenses of litigation, and (6) interest in proper cases.
The indemnity for loss of earning capacity, moral damages, exemplary damages, attorney's fees, and
interests are recoverable separately from and in addition to the fixed sum of P12,000.00 corresponding to
the indemnity for the sole fact of death. This indemnity arising from the fact of death due to a crime is fixed
whereas the others are still subject to the determination of the court based on the evidence presented. The
fact that the witnesses were not interrogated on the issue of damages is of no moment because the death
indemnity fixed for death is separate and distinct from the other forms of indemnity for damages. cdphil
WHEREFORE, the judgment appealed from is modified in that the award for death indemnity is
increased to P12,000.00 for the death of Martina Bool instead of P6,000.00 and P12,000.00 for the death of

64
 Emelita Gesmundo instead of P3,000.00, but deleting the subsidiary imprisonment in case of insolvency
imposed by the lower court. The judgment is AFFIRMED in all other respects.
SO ORDERED.
||| (Briñas v. People, G.R. No. L-30309, [November 25, 1983], 211 PHIL 37-46)

20. [G.R. No. L-9671. August 23, 1957.]

CESAR L. ISAAC, plaintiff-appellant, vs. A. L. AMMEN TRANSPORTATION CO.,
INC., defendant-appellee.

Angel S. Gamboa for appellant.

Manuel O. Chan for appellee.

SYLLABUS
1. PUBLIC UTILITIES; PRINCIPLES GOVERNING LIABILITY OF COMMON CARRIER. —
The following are 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 a breach if it fails to exert extraordinary
diligence according to all the 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 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.
2. ID.; ID.; CONTRIBUTORY NEGLIGENCE OF PASSENGER MILITATES AGAINST HIS
CLAIM; CASE AT BAR. — A circumstance which militates 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.

DECISION
BENGZON, J p:

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 underwent 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 defendant for damages alleging that the
collision which resulted in the loss of his left arm was mainly due to the gross incompetence and
recklessness of the driver of the bus operated by defendant and that defendant incurred in culpa
contractual arising from its non-compliance with its obligation to transport plaintiff safely to his destination.
Plaintiff prays for judgment against defendant as follows: (1) P5,000 as expenses for his medical treatment,
and P3,000 as the cost of an artificial arm, or a total of P8,000; (2) P6,000 representing loss of earning; (3)
P75,000 for diminution of his earning capacity; (4) P50,000 as moral damages; and (5) P10,000 as attorneys'
fees and costs of suit.
Defendant set up as special defense that the injury suffered by plaintiff was due entirely to the fault
or negligence of the driver of the pick-up car which collided with the bus driven by its driver and to the
contributory negligence of plaintiff himself. Defendant further claims that the accident which resulted in the
injury of plaintiff is one which defendant could not foresee or, though foreseen, was inevitable.
65
 The court 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
the 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 and of the
breach thereof by act or omission", and in support thereof, he cites several Philippine cases.1 With this
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 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 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."
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 diligence of very cautious 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
preciousness of human life and by the consideration that every person must in every way be
safeguarded against all injury. (Report of the Code Commission, pr. 35-36)" (Padilla, Civil
Code of the Philippines, Vol. IV, 1956 ed., p. 197).
From the above legal provisions, we can make the following restatement of the principles governing
the liability of a common carrier: (1) the liability of a carrier is contractual and arises upon breach of its
obligation. There is breach if it fails to exert extraordinary diligence according to all the 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
66
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 hemos llegado 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.

"El 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 demandado hizo cuanto estaba de su parte, para evitar el
accidente, sin que haya podido evitarlo, 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
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 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 proper 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
sudden 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 not held to the
same 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 judgment 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
liability under our law.
A circumstance which militates 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
67
 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 passengers. It is to be
noted that appellant was the only victim of the collision.
It is true that such contributory negligence cannot relieve appellee of its liability but will only entitle
it to a reduction of the amount of damage caused (Article 1762, new Civil Code), but this is a circumstance
which further militates against the position taken by appellant in this case.
"It is the prevailing rule that it is negligence per se for a passenger on a railroad
voluntarily or inadvertently to protrude his arm, hand, elbow, or any other part of his body
through the window of a moving car beyond the outer edge of the window or outer surface of
the car, so as to come in contact with objects or obstacles near the track, and that no recovery
can be had for an injury which but for such negligence would not have been sustained. . . ." (10
C. J. 1139).
"Plaintiff (passenger) while riding on an interurban car, to flick the ashes from his
cigar, thrust his hand over the guard rail a sufficient distance beyond the side line of the car to
bring it in contact with the trunk of a tree standing beside the track; the force of the blow
breaking his wrist. Held, that he was guilty of contributory negligence as a matter of law."
(Malakia vs. Rhode Island Co., 89 A., 337.)
Wherefore, the decision appealed from is affirmed, with costs against appellant.
||| (Isaac v. A.L. Ammen Transportation Co., Inc., G.R. No. L-9671, [August 23, 1957], 101 PHIL 1046-1054)

68