G.R. No.

L-29462 March 7, 1929

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


Separate Opinions
JOHNSON, J ., dissenting:
This appeal presents a hard case, whichever way it is decided.
I read the entire record in this case before it was submitted to the second division for decision. I
was then theponente. I was then convinced, as I am now, after a re-examination of the record,
that the judgment of the lower court should be revoked for the following reasons:
(a) That the motorman managed the car carefully and with ordinary prudence at the
moment the alleged accident occured;
(b) That the appellee acted with imprudence and lack of due care in attempting to board a
street car while the same was in motion; and
(c) That he contributed to his own injury, without any negligence or malice or imprudence
on the part of the defendant.
There is nothing in the record which even remotely justifies a contribution of damages between
the appellee and the appellant. The appellee should be required to suffer the damages which he
himself, through his own negligence, occasioned, without any negligence, imprudence or malice
on the part of the appellant.
Therefore, the judgment of the court a quo should be revoked, and the appellant absolved from
all liability under the complaint.
Johns, J., concur.

















































G.R. No. 95582 October 7, 1991
DANGWA TRANSPORTATION CO., INC. and THEODORE LARDIZABAL y
MALECDAN, petitioners,
vs.
COURT OF APPEALS, INOCENCIA CUDIAMAT, EMILIA CUDIAMAT BANDOY, FERNANDO
CUDLAMAT, MARRIETA CUDIAMAT, NORMA CUDIAMAT, DANTE CUDIAMAT, SAMUEL
CUDIAMAT and LIGAYA CUDIAMAT, all Heirs of the late Pedrito Cudiamat represented by
Inocencia Cudiamat, respondents.
Francisco S. Reyes Law Office for petitioners.
Antonio C. de Guzman for private respondents.

REGALADO, J .:p
On May 13, 1985, private respondents filed a complaint 1 for damages against petitioners for the
death of Pedrito Cudiamat as a result of a vehicular accident which occurred on March 25, 1985
at Marivic, Sapid, Mankayan, Benguet. Among others, it was alleged that on said date, while
petitioner Theodore M. Lardizabal was driving a passenger bus belonging to petitioner
corporation in a reckless and imprudent manner and without due regard to traffic rules and
regulations and safety to persons and property, it ran over its passenger, Pedrito Cudiamat.
However, instead of bringing Pedrito immediately to the nearest hospital, the said driver, in utter
bad faith and without regard to the welfare of the victim, first brought his other passengers and
cargo to their respective destinations before banging said victim to the Lepanto Hospital where he
expired.
On the other hand, petitioners alleged that they had observed and continued to observe the
extraordinary diligence required in the operation of the transportation company and the
supervision of the employees, even as they add that they are not absolute insurers of the safety
of the public at large. Further, it was alleged that it was the victim's own carelessness and
negligence which gave rise to the subject incident, hence they prayed for the dismissal of the
complaint plus an award of damages in their favor by way of a counterclaim.
On July 29, 1988, the trial court rendered a decision, effectively in favor of petitioners, with this
decretal portion:
IN VIEW OF ALL THE FOREGOING, judgment is hereby pronounced that
Pedrito Cudiamat was negligent, which negligence was the proximate cause of
his death. Nonetheless, defendants in equity, are hereby ordered to pay the heirs
of Pedrito Cudiamat the sum of P10,000.00 which approximates the amount
defendants initially offered said heirs for the amicable settlement of the case. No
costs.
SO ORDERED. 2
Not satisfied therewith, private respondents appealed to the Court of Appeals which, in a
decision 3 in CA-G.R. CV No. 19504 promulgated on August 14, 1990, set aside the decision of
the lower court, and ordered petitioners to pay private respondents:
1. The sum of Thirty Thousand (P30,000.00) Pesos by way of indemnity for
death of the victim Pedrito Cudiamat;
2. The sum of Twenty Thousand (P20,000.00) by way of moral damages;
3. The sum of Two Hundred Eighty Eight Thousand (P288,000.00) Pesos as
actual and compensatory damages;
4. The costs of this suit. 4
Petitioners' motion for reconsideration was denied by the Court of Appeals in its resolution dated
October 4, 1990, 5hence this petition with the central issue herein being whether respondent
court erred in reversing the decision of the trial court and in finding petitioners negligent and liable
for the damages claimed.
It is an established principle that the factual findings of the Court of Appeals as a rule are final
and may not be reviewed by this Court on appeal. However, this is subject to settled exceptions,
one of which is when the findings of the appellate court are contrary to those of the trial court, in
which case a reexamination of the facts and evidence may be undertaken. 6
In the case at bar, the trial court and the Court of Appeal have discordant positions as to who
between the petitioners an the victim is guilty of negligence. Perforce, we have had to conduct an
evaluation of the evidence in this case for the prope calibration of their conflicting factual findings
and legal conclusions.
The lower court, in declaring that the victim was negligent, made the following findings:
This Court is satisfied that Pedrito Cudiamat was negligent in trying to board a
moving vehicle, especially with one of his hands holding an umbrella. And,
without having given the driver or the conductor any indication that he wishes to
board the bus. But defendants can also be found wanting of the necessary
diligence. In this connection, it is safe to assume that when the deceased
Cudiamat attempted to board defendants' bus, the vehicle's door was open
instead of being closed. This should be so, for it is hard to believe that one would
even attempt to board a vehicle (i)n motion if the door of said vehicle is closed.
Here lies the defendant's lack of diligence. Under such circumstances, equity
demands that there must be something given to the heirs of the victim to
assuage their feelings. This, also considering that initially, defendant common
carrier had made overtures to amicably settle the case. It did offer a certain
monetary consideration to the victim's heirs. 7
However, respondent court, in arriving at a different opinion, declares that:
From the testimony of appellees'own witness in the person of Vitaliano Safarita, it
is evident that the subject bus was at full stop when the victim Pedrito Cudiamat
boarded the same as it was precisely on this instance where a certain Miss
Abenoja alighted from the bus. Moreover, contrary to the assertion of the
appellees, the victim did indicate his intention to board the bus as can be seen
from the testimony of the said witness when he declared that Pedrito Cudiamat
was no longer walking and made a sign to board the bus when the latter was still
at a distance from him. It was at the instance when Pedrito Cudiamat was closing
his umbrella at the platform of the bus when the latter made a sudden jerk
movement (as) the driver commenced to accelerate the bus.
Evidently, the incident took place due to the gross negligence of the appellee-
driver in prematurely stepping on the accelerator and in not waiting for the
passenger to first secure his seat especially so when we take into account that
the platform of the bus was at the time slippery and wet because of a drizzle. The
defendants-appellees utterly failed to observe their duty and obligation as
common carrier to the end that they should observe extra-ordinary diligence in
the vigilance over the goods and for the safety of the passengers transported by
them according to the circumstances of each case (Article 1733, New Civil
Code). 8
After a careful review of the evidence on record, we find no reason to disturb the above holding of
the Court of Appeals. Its aforesaid findings are supported by the testimony of petitioners' own
witnesses. One of them, Virginia Abalos, testified on cross-examination as follows:
Q It is not a fact Madam witness, that at bunkhouse 54, that is
before the place of the incident, there is a crossing?
A The way going to the mines but it is not being pass(ed) by the
bus.
Q And the incident happened before bunkhouse 56, is that not
correct?
A It happened between 54 and 53 bunkhouses. 9
The bus conductor, Martin Anglog, also declared:
Q When you arrived at Lepanto on March 25, 1985, will you
please inform this Honorable Court if there was anv unusual
incident that occurred?
A When we delivered a baggage at Marivic because a person
alighted there between Bunkhouse 53 and 54.
Q What happened when you delivered this passenger at this
particular place in Lepanto?
A When we reached the place, a passenger alighted and I
signalled my driver. When we stopped we went out because I
saw an umbrella about a split second and I signalled again the
driver, so the driver stopped and we went down and we saw
Pedrito Cudiamat asking for help because he was lying down.
Q How far away was this certain person, Pedrito Cudiamat,
when you saw him lying down from the bus how far was he?
A It is about two to three meters.
Q On what direction of the bus was he found about three meters
from the bus, was it at the front or at the back?
A At the back, sir. 10 (Emphasis supplied.)
The foregoing testimonies show that the place of the accident and the place where one of the
passengers alighted were both between Bunkhouses 53 and 54, hence the finding of the Court of
Appeals that the bus was at full stop when the victim boarded the same is correct. They further
confirm the conclusion that the victim fell from the platform of the bus when it suddenly
accelerated forward and was run over by the rear right tires of the vehicle, as shown by the
physical evidence on where he was thereafter found in relation to the bus when it stopped. Under
such circumstances, it cannot be said that the deceased was guilty of negligence.
The contention of petitioners that the driver and the conductor had no knowledge that the victim
would ride on the bus, since the latter had supposedly not manifested his intention to board the
same, does not merit consideration. When the bus is not in motion there is no necessity for a
person who wants to ride the same to signal his intention to board. A public utility bus, once it
stops, is in effect making a continuous offer to bus riders. Hence, it becomes the duty of the driver
and the conductor, every time the bus stops, to do no act that would have the effect of increasing
the peril to a passenger while he was attempting to board the same. The premature acceleration
of the bus in this case was a breach of such duty. 11
It is the duty of common carriers of passengers, including common carriers by railroad train,
streetcar, or motorbus, to stop their conveyances a reasonable length of time in order to afford
passengers an opportunity to board and enter, and they are liable for injuries suffered by
boarding passengers resulting from the sudden starting up or jerking of their conveyances while
they are doing so. 12
Further, even assuming that the bus was moving, the act of the victim in boarding the same
cannot be considered negligent under the circumstances. As clearly explained in the testimony of
the aforestated witness for petitioners, Virginia Abalos, th bus had "just started" and "was still in
slow motion" at the point where the victim had boarded and was on its platform. 13
It is not negligence per se, or as a matter of law, for one attempt to board a train or streetcar
which is moving slowly.14 An ordinarily prudent person would have made the attempt board the
moving conveyance under the same or similar circumstances. The fact that passengers board
and alight from slowly moving vehicle is a matter of common experience both the driver and
conductor in this case could not have been unaware of such an ordinary practice.
The victim herein, by stepping and standing on the platform of the bus, is already considered a
passenger and is entitled all the rights and protection pertaining to such a contractual relation.
Hence, it has been held that the duty which the carrier passengers owes to its patrons extends to
persons boarding cars as well as to those alighting therefrom. 15
Common carriers, from the nature of their business and reasons of public policy, are bound to
observe extraordina diligence for the safety of the passengers transported by the according to all
the circumstances of each case. 16 A common carrier is bound to carry the passengers safely as
far as human care and foresight can provide, using the utmost diligence very cautious persons,
with a due regard for all the circumstances. 17
It has also been repeatedly held that 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 by the passenger. By contract of carriage, the carrier
assumes the express obligation to transport the passenger to his destination safely and observe
extraordinary diligence with a due regard for all the circumstances, and any injury that might be
suffered by the passenger is right away attributable to the fault or negligence of the carrier. 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 Articles
1733 and 1755 of the Civil Code. 18
Moreover, the circumstances under which the driver and the conductor failed to bring the gravely
injured victim immediately to the hospital for medical treatment is a patent and incontrovertible
proof of their negligence. It defies understanding and can even be stigmatized as callous
indifference. The evidence shows that after the accident the bus could have forthwith turned at
Bunk 56 and thence to the hospital, but its driver instead opted to first proceed to Bunk 70 to
allow a passenger to alight and to deliver a refrigerator, despite the serious condition of the
victim. The vacuous reason given by petitioners that it was the wife of the deceased who caused
the delay was tersely and correctly confuted by respondent court:
... The pretension of the appellees that the delay was due to the fact that they
had to wait for about twenty minutes for Inocencia Cudiamat to get dressed
deserves scant consideration. It is rather scandalous and deplorable for a wife
whose husband is at the verge of dying to have the luxury of dressing herself up
for about twenty minutes before attending to help her distressed and helpless
husband. 19
Further, it cannot be said that the main intention of petitioner Lardizabal in going to Bunk 70 was
to inform the victim's family of the mishap, since it was not said bus driver nor the conductor but
the companion of the victim who informed his family thereof. 20 In fact, it was only after the
refrigerator was unloaded that one of the passengers thought of sending somebody to the house
of the victim, as shown by the testimony of Virginia Abalos again, to wit:
Q Why, what happened to your refrigerator at that particular
time?
A I asked them to bring it down because that is the nearest place
to our house and when I went down and asked somebody to
bring down the refrigerator, I also asked somebody to call the
family of Mr. Cudiamat.
COURT:
Q Why did you ask somebody to call the family of Mr. Cudiamat?
A Because Mr. Cudiamat met an accident, so I ask somebody to
call for the family of Mr. Cudiamat.
Q But nobody ask(ed) you to call for the family of Mr. Cudiamat?
A No sir. 21
With respect to the award of damages, an oversight was, however, committed by respondent
Court of Appeals in computing the actual damages based on the gross income of the victim. The
rule is that the amount recoverable by the heirs of a victim of a tort is not the loss of the entire
earnings, but rather the loss of that portion of the earnings which the beneficiary would have
received. In other words, only net earnings, not gross earnings, are to be considered, that is, the
total of the earnings less expenses necessary in the creation of such earnings or income and
minus living and other incidental expenses. 22
We are of the opinion that the deductible living and other expense of the deceased may fairly and
reasonably be fixed at P500.00 a month or P6,000.00 a year. In adjudicating the actual or
compensatory damages, respondent court found that the deceased was 48 years old, in good
health with a remaining productive life expectancy of 12 years, and then earning P24,000.00 a
year. Using the gross annual income as the basis, and multiplying the same by 12 years, it
accordingly awarded P288,000. Applying the aforestated rule on computation based on the net
earnings, said award must be, as it hereby is, rectified and reduced to P216,000.00. However, in
accordance with prevailing jurisprudence, the death indemnity is hereby increased to
P50,000.00. 23
WHEREFORE, subject to the above modifications, the challenged judgment and resolution of
respondent Court of Appeals are hereby AFFIRMED in all other respects.
SO ORDERED.
Melencio-Herrera (Chairperson), Paras, Padilla and Sarmiento, JJ., concur.



















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.
Ahmed Garcia for respondents.
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.
The facts of the case as found by the Court of Appeals, briefly are:
On December 20, 1953, at about noontime, plaintiffs, husband and wife, together with
their minor daughters, namely, Milagros, 13 years old, Raquel, about 4 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 belonging. 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 otherbayong, 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 hisbayong 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 a 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 P16,000 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.
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 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 judgement 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 bayongwhich 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 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.
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 cautions 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, 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, necessary to
transport plaintiffs and their daughter safely as far as human 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
peculiarily 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 on 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, that the Court of Appeals committed error in raising
the amount of the award for damages is, evidently, meritorious.1wph1.t
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.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Bengzon, J.P., Zaldivar, Sanchez and Castro,
JJ., concur.
Makalintal, J., concurs in the result.
G.R. No. 84458 November 6, 1989
ABOITIZ SHIPPING CORPORATION, petitioner,
vs.
HON. COURT OF APPEALS, 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.

REGALADO, J .:
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; P150,000.00 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: .
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.
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.
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 plantiffs:
(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; F 5,000.00, 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.
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 of the trial court except as to the
amount of damages awarded to the Vianas.
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 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
Appears 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
e 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.
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

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.
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 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.
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.
G.R. No. L-82619 September 15, 1993
PHILIPPINE AIRLINES, INC., petitioner,
vs.
COURT OF APPEALS and PEDRO ZAPATOS, respondents.
Leighton R. Liazon for petitioner.
Balmes L. Ocampo for private respondent.

BELLOSILLO, J .:
This petition for review in certiorari seeks to annul and set aside the decision of the then
Intermediate Appellant Court,
1
now Court of Appeals, dated 28 February 1985, in AC-G.R. CV
No. 69327 ("Pedro Zapatos v. Philippine Airlines, Inc.") affirming the decision of the then Court of
first Instance, now Regional Trial Court, declaring Philippine Airlines, Inc., liable in damages for
breach of contract.
On 25 November 1976, private respondent filed a complaint for damages for breach of contract of
carriage
2
against Philippine Airlines, Inc. (PAL), before the then Court of First Instance, now
Regional Trial Court, of Misamis Occidental, at Ozamiz City. According to him, on 2 August 1976,
he was among the twenty-one (21) passengers of PAL Flight 477 that took off from Cebu bound
for Ozamiz City. The routing of this flight was Cebu-Ozamiz-Cotabato. While on flight and just
about fifteen (15) minutes before landing at Ozamiz City, the pilot received a radio message that
the airport was closed due to heavy rains and inclement weather and that he should proceed to
Cotabato City instead.
Upon arrival at Cotabato City, the PAL Station Agent informed the passengers of their options to
return to Cebu on flight 560 of the same day and thence to Ozamiz City on 4 August 1975, or
take the next flight to Cebu the following day, or remain at Cotabato and take the next available
flight to Ozamiz City on 5 August 1975.
3
The Station Agent likewise informed them that Flight 560
bound for Manila would make a stop-over at Cebu to bring some of the diverted passengers; that
there were only six (6) seats available as there were already confirmed passengers for Manila;
and, that the basis for priority would be the check-in sequence at Cebu.
Private respondent chose to return to Cebu but was not accommodated because he checked-in
as passenger No. 9 on Flight 477. He insisted on being given priority over the confirmed
passengers in the accommodation, but the Station Agent refused private respondent's demand
explaining that the latter's predicament was not due to PAL's own doing but to be a force
majeure.
4

Private respondent tried to stop the departure of Flight 560 as his personal belongings, including
a package containing a camera which a certain Miwa from Japan asked him to deliver to Mrs. Fe
Obid of Gingoog City, were still on board. His plea fell on deaf ears. PAL then issued to private
respondent a free ticket to Iligan city, which the latter received under protest.
5
Private respondent
was left at the airport and could not even hitch a ride in the Ford Fiera loaded with PAL
personnel.
6
PAL neither provided private respondent with transportation from the airport to the
city proper nor food and accommodation for his stay in Cotabato City.
The following day, private respondent purchased a PAL ticket to Iligan City. He informed PAL
personnel that he would not use the free ticket because he was filing a case against PAL.
7
In
Iligan City, private respondent hired a car from the airport to Kolambugan, Lanao del Norte,
reaching Ozamiz City by crossing the bay in a launch.
8
His personal effects including the camera,
which were valued at P2,000.00 were no longer recovered.
On 13 January 1977, PAL filed its answer denying that it unjustifiably refused to accommodate
private respondent.
9
It alleged that there was simply no more seat for private respondent on Flight
560 since there were only six (6) seats available and the priority of accommodation on Flight 560
was based on the check-in sequence in Cebu; that the first six (6) priority passengers on Flight
477 chose to take Flight 560; that its Station Agent explained in a courteous and polite manner to
all passengers the reason for PAL's inability to transport all of them back to Cebu; that the
stranded passengers agreed to avail of the options and had their respective tickets exchanged for
their onward trips; that it was
only the private respondent who insisted on being given priority in the accommodation; that
pieces of checked-in baggage and had carried items of the Ozamiz City passengers were
removed from the aircraft; that the reason for their pilot's inability to land at Ozamis City airport
was because the runway was wet due to rains thus posing a threat to the safety of both
passengers and aircraft; and, that such reason of force majeure was a valid justification for the
pilot to bypass Ozamiz City and proceed directly to Cotabato City.
On 4 June 1981, the trial court rendered its decision
10
the dispositive portion of which states:
WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against
the defendant Philippine AirLines, Inc. ordering the latter to pay:
(1) As actual damages, the sum of Two Hundred Pesos (P200.00) representing
plaintiff's expenses for transportation, food and accommodation during his
stranded stay at Cotabato City; the sum of Forty-Eight Pesos (P48.00)
representing his flight fare from Cotabato City to Iligan city; the sum of Five
Hundred Pesos (P500.00) representing plaintiff's transportation expenses from
Iligan City to Ozamiz City; and the sum of Five Thousand Pesos (P5,000.00) as
loss of business opportunities during his stranded stay in Cotabato City;
(2) As moral damages, the sum of Fifty Thousand Pesos (P50,000.00) for
plaintiff's hurt feelings, serious anxiety, mental anguish and unkind and
discourteous treatment perpetrated by defendant's employees during his stay as
stranded passenger in Cotabato City;
(3) As exemplary damages, the sum of Ten Thousand Pesos (P10,000.00) to set
a precedent to the defendant airline that it shall provide means to give comfort
and convenience to stranded passengers;
(4) The sum of Three Thousand Pesos (P3,000.00) as attorney's fees;
(5) To pay the costs of this suit.
PAL appealed to the Court of Appeals which on 28 February 1985, finding no reversible error,
affirmed the judgment of the court a quo.
11

PAL then sought recourse to this Court by way of a petition for review on certiorari
12
upon the
following issues: (1) Can the Court of Appeals render a decision finding petitioner (then
defendant-appellant in the court below) negligent and, consequently, liable for damages on a
question of substance which was neither raised on a question nor proved at the trial? (2) Can the
Court of Appeals award actual and moral damages contrary to the evidence and established
jurisprudence?
13

An assiduous examination of the records yields no valid reason for reversal of the judgment on
appeal; only a modification of its disposition.
In its petition, PAL vigorously maintains that private respondent's principal cause of action was its
alleged denial of private respondent's demand for priority over the confirmed passengers on
Flight 560. Likewise, PAL points out that the complaint did not impute to PAL neglect in failing to
attend to the needs of the diverted passengers; and, that the question of negligence was not and
never put in issue by the pleadings or proved at the trial.
Contrary to the above arguments, private respondent's amended complaint touched on PAL's
indifference and inattention to his predicament. The pertinent portion of the amended
complaint
14
reads:
10. That by virtue of the refusal of the defendant through its agent in Cotabato to
accommodate (sic) and allow the plaintiff to take and board the plane back to
Cebu, and by accomodating (sic) and allowing passengers from Cotabato for
Cebu in his stead and place, thus forcing the plaintiff against his will, to be left
and stranded in Cotabato, exposed to the peril and danger of muslim rebels
plundering at the time, the plaintiff, as a consequence, (have) suffered mental
anguish, mental torture, social humiliation, bismirched reputation and wounded
feeling, all amounting to a conservative amount of thirty thousand (P30,000.00)
Pesos.
To substantiate this aspect of apathy, private respondent testified
15

A I did not even notice that I was I think the last passenger or the
last person out of the PAL employees and army personnel that
were left there. I did not notice that when I was already outside of
the building after our conversation.
Q What did you do next?
A I banished (sic) because it seems that there was a war not far
from the airport. The sound of guns and the soldiers were plenty.
Q After that what did you do?
A I tried to look for a transportation that could bring me down to
the City of Cotabato.
Q Were you able to go there?
A I was at about 7:00 o'clock in the evening more or less and it
was a private jeep that I boarded. I was even questioned why I
and who am (sic) I then. Then I explained my side that I am (sic)
stranded passenger. Then they brought me downtown at
Cotabato.
Q During your conversation with the Manager were you not
offered any vehicle or transportation to Cotabato airport
downtown?
A In fact I told him (Manager) now I am by-passed passenger
here which is not my destination what can you offer me. Then
they answered, "it is not my fault. Let us forget that."
Q In other words when the Manager told you that offer was there
a vehicle ready?
A Not yet. Not long after that the Ford Fiera loaded with PAL
personnel was passing by going to the City of Cotabato and I
stopped it to take me a ride because there was no more
available transportation but I was not accommodated.
Significantly, PAL did not seem to mind the introduction of evidence which focused on its alleged
negligence in caring for its stranded passengers. Well-settled is the rule in evidence that the
protest or objection against the admission of evidence should be presented at the time the
evidence is offered, and that the proper time to make protest or objection to the admissibility of
evidence is when the question is presented to the witness or at the time the answer thereto is
given.
16
There being no objection, such evidence becomes property of the case and all the
parties are amenable to any favorable or unfavorable effects resulting from the evidence.
17

PAL instead attempted to rebut the aforequoted testimony. In the process, it failed to substantiate
its counter allegation for want of concrete proof
18

Atty. Rubin O. Rivera PAL's counsel:
Q You said PAL refused to help you when you were in Cotabato,
is that right?
Private respondent:
A Yes.
Q Did you ask them to help you regarding any offer of
transportation or of any other matter asked of them?
A Yes, he (PAL PERSONNEL) said what is? It is not our fault.
Q Are you not aware that one fellow passenger even claimed
that he was given Hotel accommodation because they have no
money?
xxx xxx xxx
A No, sir, that was never offered to me. I said, I tried to stop
them but they were already riding that PAL pick-up jeep, and I
was not accommodated.
Having joined in the issue over the alleged lack of care it exhibited towards its passengers, PAL
cannot now turn around and feign surprise at the outcome of the case. When issues not raised by
the pleadings are tried by express or implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings.
19

With regard to the award of damages affirmed by the appellate court, PAL argues that the same
is unfounded. It asserts that it should not be charged with the task of looking after the
passengers' comfort and convenience because the diversion of the flight was due to a fortuitous
event, and that if made liable, an added burden is given to PAL which is over and beyond its
duties under the contract of carriage. It submits that granting arguendo that negligence exists,
PAL cannot be liable in damages in the absence of fraud or bad faith; that private respondent
failed to apprise PAL of the nature of his trip and possible business losses; and, that private
respondent himself is to be blamed for unreasonably refusing to use the free ticket which PAL
issued.
The contract of air carriage is a peculiar one. Being imbued with public interest, the law requires
common carriers to carry the passengers safely as far as human care and foresight can provide,
using the utmost diligence of very cautious persons, with due regard for all the
circumstances.
20
In Air France v. Carrascoso,
21
we held that
A contract to transport passengers is quite different in kind and degree from any
other contractual relation. And this, because of the relation which an air carrier
sustains with the public. Its business is mainly with the travelling public. It invites
people to avail of the comforts and advantages it offers. The contract of air
carriage, therefore, generates a relation attended with a public duty . . . . (
emphasis supplied).
The position taken by PAL in this case clearly illustrates its failure to grasp the exacting standard
required by law. Undisputably, PAL's diversion of its flight due to inclement weather was a
fortuitous event. Nonetheless, such occurrence did not terminate PAL's contract with its
passengers. Being in the business of air carriage and the sole one to operate in the country, PAL
is deemed equipped to deal with situations as in the case at bar. What we said in one case once
again must be stressed, i.e., the relation of carrier and passenger continues until the latter has
been landed at the port of destination and has left the carrier's premises.
22
Hence, PAL
necessarily would still have to exercise extraordinary diligence in safeguarding the comfort,
convenience and safety of its stranded passengers until they have reached their final destination.
On this score, PAL grossly failed considering the then ongoing battle between government forces
and Muslim rebels in Cotabato City and the fact that the private respondent was a stranger to the
place. As the appellate court correctly ruled
While the failure of plaintiff in the first instance to reach his destination at Ozamis
City in accordance with the contract of carriage was due to the closure of the
airport on account of rain and inclement weather which was radioed to defendant
15 minutes before landing, it has not been disputed by defendant airline that
Ozamis City has no all-weather airport and has to cancel its flight to Ozamis City
or by-pass it in the event of inclement weather. Knowing this fact, it becomes the
duty of defendant to provide all means of comfort and convenience to its
passengers when they would have to be left in a strange place in case of such
by-passing. The steps taken by defendant airline company towards this end has
not been put in evidence, especially for those 7 others who were not
accommodated in the return trip to Cebu, only 6 of the 21 having been so
accommodated. It appears that plaintiff had to leave on the next flight 2 days
later. If the cause of non-fulfillment of the contract is due to a fortuitous event, it
has to be the sole and only cause (Art. 1755 CC., Art. 1733 C.C.) Since part of
the failure to comply with the obligation of common carrier to deliver its
passengers safely to their destination lay in the defendant's failure to provide
comfort and convenience to its stranded passengers using extra-ordinary
diligence, the cause of non-fulfillment is not solely and exclusively due to
fortuitous event, but due to something which defendant airline could have
prevented, defendant becomes liable to plaintiff.
23

While we find PAL remiss in its duty of extending utmost care to private respondent while being
stranded in Cotabato City, there is no sufficient basis to conclude that PAL failed to inform him
about his non-accommodation on Flight 560, or that it was inattentive to his queries relative
thereto.
On 3 August 1975, the Station Agent reported to his Branch Manager in Cotabato City that
3. Of the fifteen stranded passengers two pax elected to take F478 on August 05,
three pax opted to take F442 August 03. The remaining ten (10) including subject
requested that they be instead accommodated (sic) on F446 CBO-IGN the
following day where they intended to take the surface transportation to OZC. Mr.
Pedro Zapatos had by then been very vocal and boiceterous (sic) at the counter
and we tactfully managed to steer him inside the Station Agent's office. Mr. Pedro
Zapatos then adamantly insisted that all the diverted passengers should have
been given priority over the originating passengers of F560 whether confirmed or
otherwise. We explained our policies and after awhile he seemed pacified and
thereafter took his ticket (in-lieued (sic) to CBO-IGN, COCON basis), at the
counter in the presence of five other passengers who were waiting for their
tickets too. The rest of the diverted pax had left earlier after being assured their
tickets will be ready the following day.
24

Aforesaid Report being an entry in the course of business is prima facie evidence of the facts
therein stated. Private respondent, apart from his testimony, did not offer any controverting
evidence. If indeed PAL omitted to give information about the options available to its diverted
passengers, it would have been deluged with complaints. But, only private respondent
complained
Atty. Rivera (for PAL)
Q I understand from you Mr. Zapatos that at the time you were
waiting at Cotabato Airport for the decision of PAL, you were not
informed of the decision until after the airplane left is that
correct?
A Yes.
COURT:
Q What do you mean by "yes"? You meant you were not
informed?
A Yes, I was not informed of their decision, that they will only
accommodate few passengers.
Q Aside from you there were many other stranded passengers?
A I believed, yes.
Q And you want us to believe that PAL did not explain (to) any of
these passengers about the decision regarding those who will
board the aircraft back to Cebu?
A No, Sir.
Q Despite these facts Mr. Zapatos did any of the other
passengers complained (sic) regarding that incident?
xxx xxx xxx
A There were plenty of argument and I was one of those talking
about my case.
Q Did you hear anybody complained (sic) that he has not been
informed of the decision before the plane left for Cebu?
A No.
25

Admittedly, private respondent's insistence on being given priority in accommodation was
unreasonable considering the fortuitous event and that there was a sequence to be observed in
the booking, i.e., in the order the passengers checked-in at their port of origin. His intransigence
in fact was the main cause for his having to stay at the airport longer than was necessary.
Atty. Rivera:
Q And, you were saying that despite the fact that according to
your testimony there were at least 16 passengers who were
stranded there in Cotabato airport according to your testimony,
and later you said that there were no other people left there at
that time, is that correct?
A Yes, I did not see anyone there around. I think I was the only
civilian who was left there.
Q Why is it that it took you long time to leave that place?
A Because I was arguing with the PAL personnel.
26

Anent the plaint that PAL employees were disrespectful and inattentive toward private
respondent, the records are bereft of evidence to support the same. Thus, the ruling of
respondent Court of Appeals in this regard is without basis.
27
On the contrary, private respondent
was attended to not only by the personnel of PAL but also by its Manager."
28

In the light of these findings, we find the award of moral damages of Fifty Thousand Pesos
(P50,000.00) unreasonably excessive; hence, we reduce the same to Ten Thousand Pesos
(P10,000.00). Conformably herewith, the award of exemplary damages is also reduced to five
Thousand Pesos (5,000.00). Moral damages are not intended to enrich the private respondent.
They are awarded only to enable the injured party to obtain means, diversion or amusements that
will serve to alleviate the moral suffering he has undergone by reason of the defendant's culpable
action.
29

With regard to the award of actual damages in the amount of P5,000.00 representing private
respondent's alleged business losses occasioned by his stay at Cotabato City, we find the same
unwarranted. Private respondent's testimony that he had a scheduled business "transaction of
shark liver oil supposedly to have been consummated on August 3, 1975 in the morning" and that
"since (private respondent) was out for nearly two weeks I missed to buy about 10 barrels of
shark liver oil,"
30
are purely speculative. Actual or compensatory damages cannot be presumed
but must be duly proved with reasonable degree of certainty. A court cannot rely on speculation,
conjecture or guesswork as to the fact and amount of damages, but must depend upon
competent proof that they have suffered and on evidence of the actual amount thereof.
31

WHEREFORE the decision appealed from is AFFIRMED with modification however that the
award of moral damages of Fifty Thousand Pesos (P50,000.00) is reduced to Ten Thousand
Pesos (P10,000.00) while the exemplary damages of Ten Thousand Pesos (P10,000.00) is also
reduced to Five Thousand Pesos (P5,000.00). The award of actual damages in the amount Five
Thousand Pesos (P5,000.00) representing business losses occasioned by private respondent's
being stranded in Cotabato City is deleted.
SO ORDERED.
Cruz, Grio-Aquino, Davide, Jr. and Quiason, JJ., concur.










[G.R. No. 118664. August 7, 1998]
JAPAN AIRLINES, petitioner, vs. THE COURT OF APPEALS ENRIQUE AGANA, MARIA
ANGELA NINA AGANA, ADALIA B. FRANCISCO and JOSE MIRANDA, respondents.
D E C I S I O N
ROMERO, J .:
Before us is an appeal by certiorari filed by petitioner Japan Airlines, Inc. (JAL) seeking the
reversal of the decision of the Court of Appeals,
[1]
which affirmed with modification the award of
damages made by the trial court in favor of herein private respondents Enrique Agana, Maria
Angela Nina Agana, Adelia Francisco and Jose Miranda.
On June 13, 1991, private respondent Jose Miranda boarded JAL flight No. JL 001 in San
Francisco, California bound for Manila. Likewise, on the same day private respondents Enrique
Agana, Maria Angela Nina Agana and Adelia Francisco left Los Angeles, California for Manila via
JAL flight No. JL 061. As an incentive for travelling on the said airline, both flights were to make
an overnight stopover at Narita, Japan, at the airlines expense, thereafter proceeding to Manila
the following day.
Upon arrival at Narita, Japan on June 14, 1991, private respondents were billeted at Hotel
Nikko Narita for the night. The next day, private respondents, on the final leg of their journey,
went to the airport to take their flight to Manila. However, due to the Mt. Pinatubo eruption,
unrelenting ashfall blanketed Ninoy Aquino International Airport (NAIA), rendering it inaccessible
to airline traffic. Hence, private respondents trip to Manila was cancelled indefinitely.
To accommodate the needs of its stranded passengers, JAL rebooked all the Manila-bound
passengers on flight No. 741 due to depart on June 16, 1991 and also paid for the hotel
expenses for their unexpected overnight stay. On June 16, 1991, much to the dismay of the
private respondents, their long anticipated flight to Manila was again cancelled due to NAIAs
indefinite closure. At this point, JAL informed the private respondents that it would no longer
defray their hotel and accommodation expense during their stay in Narita.
Since NAIA was only reopened to airline traffic on June 22, 1991, private respondents were
forced to pay for their accommodations and meal expenses from their personal funds from June
16 to June 21, 1991. Their unexpected stay in Narita ended on June 22, 1991 when they arrived
in Manila on board JL flight No. 741.
Obviously, still reeling from the experience, private respondents, on July 25, 1991,
commenced an action for damages against JAL before the Regional Trial Court of Quezon City,
Branch 104.
[2]
To support their claim, private respondents asserted that JAL failed to live up to its
duty to provide care and comfort to its stranded passengers when it refused to pay for their hotel
and accommodation expenses from June 16 to 21, 1991 at Narita, Japan. In other words, they
insisted that JAL was obligated to shoulder their expenses as long as they were still stranded in
Narita. On the other hand, JAL denied this allegation and averred that airline passengers have
no vested right to these amenities in case a flight is cancelled due to force majeure.
On June 18, 1992, the trial court rendered its judgment in favor of private respondents
holding JAL liable for damages, viz.:
WHEREFORE, judgment is rendered in favor of plaintiffs ordering the defendant Japan Airlines
to pay the plaintiffs Enrique Agana, Adalia B. Francisco and Maria Angela Nina Agana the sum of
One million Two Hundred forty-six Thousand Nine Hundred Thirty-Six Pesos (P1,246,936.00) and
Jose Miranda the sum of Three Hundred Twenty Thousand Six Hundred sixteen and 31/100
(P320,616.31) as actual, moral and exemplary damages and pay attorneys fees in the amount of
Two Hundred Thousand Pesos (P200,000.00), and to pay the costs of suit.
Undaunted, JAL appealed the decision before the Court of Appeals, which, however, with
the exception of lowering the damages awarded affirmed the trial courts finding,
[3]
thus:
Thus, the award of moral damages should be as it is hereby reduced to P200,000.00 for each of
the plaintiffs, the exemplary damages to P300,000.00 and the attorneys fees toP100,000.00 plus
the costs.
WHEREFORE, with the foregoing Modification, the judgment appealed from is hereby
AFFIRMED in all other respects.
JAL filed a motion for reconsideration which proved futile and unavailing.
[4]

Failing in its bid to reconsider the decision, JAL has now filed this instant petition.
The issue to be resolved is whether JAL, as a common carrier has the obligation to shoulder
the hotel and meal expenses of its stranded passengers until they have reached their final
destination, even if the delay were caused by force majeure.
To begin with, there is no dispute that the Mt. Pinatubo eruption prevented JAL from
proceeding to Manila on schedule. Likewise, private respondents concede that such event can
be considered as force majeure since their delayed arrival in Manila was not imputable to JAL.
[5]

However, private respondents contend that while JAL cannot be held responsible for the
delayed arrival in Manila, it was nevertheless liable for their living expenses during their
unexpected stay in Narita since airlines have the obligation to ensure the comfort and
convenience of its passengers. While we sympathize with the private respondents plight, we are
unable to accept this contention.
We are not unmindful of the fact that in a plethora of cases we have consistently ruled that a
contract to transport passengers is quite different in kind and degree from any other contractual
relation. It is safe to conclude that it is a relationship imbued with public interest. Failure on the
part of the common carrier to live up to the exacting standards of care and diligence renders it
liable for any damages that may be sustained by its passengers. However, this is not to say that
common carriers are absolutely responsible for all injuries or damages even if the same were
caused by a fortuitous event. To rule otherwise would render the defense of force majeure, as
an exception from any liability, illusory and ineffective.
Accordingly, there is no question that when a party is unable to fulfill his obligation because
of force majeure, the general rule is that he cannot be held liable for damages for non-
performance.
[6]
Corollarily, when JAL was prevented from resuming its flight to Manila due to the
effects of Mt. Pinatubo eruption, whatever losses or damages in the form of hotel and meal
expenses the stranded passengers incurred, cannot be charged to JAL. Yet it is undeniable that
JAL assumed the hotel expenses of respondents for their unexpected overnight stay on June 15,
1991.
Admittedly, to be stranded for almost a week in a foreign land was an exasperating
experience for the private respondents. To be sure, they underwent distress and anxiety during
their unanticipated stay in Narita, but their predicament was not due to the fault or negligence of
JAL but the closure of NAIA to international flights. Indeed, to hold JAL, in the absence of bad
faith or negligence, liable for the amenities of its stranded passengers by reason of a fortuitous
event is too much of a burden to assume.
Furthermore, it has been held that airline passengers must take such risks incident to the
mode of travel.
[7]
In this regard, adverse weather conditions or extreme climatic changes are
some of the perils involved in air travel, the consequences of which the passenger must assume
or expect. After all, common carriers are not the insurer of all risks.
[8]

Paradoxically, the Court of Appeals, despite the presence of force majeure, still
ruled against JAL relying in our decision in PAL v. Court of Appeals,
[9]
thus:
The position taken by PAL in this case clearly illustrates its failure to grasp the exacting standard
required by law. Undisputably, PALs diversion of its flight due to inclement weather was a
fortuitous event. Nonetheless, such occurrence did not terminate PALs contract with its
passengers. Being in the business of air carriage and the sole one to operate in the country, PAL
is deemed equipped to deal with situations as in the case at bar. What we said in one case once
again must be stressed, i.e., the relation of carrier and passenger continues until the latter has
been landed at the port of destination and has left the carriers premises. Hence, PAL
necessarily would still have to exercise extraordinary diligence in safeguarding the comfort,
convenience and safety of its stranded passengers until they have reached their final
destination. On this score, PAL grossly failed considering the then ongoing battle between
government forces and Muslim rebels in Cotabato City and the fact that the private respondent
was a stranger to the place.
The reliance is misplaced. The factual background of the PAL case is different from the
instant petition. In that case there was indeed a fortuitous event resulting in the diversion of the
PAL flight. However, the unforeseen diversion was worsened when private respondents
(passenger) was left at the airport and could not even hitch a ride in a Ford Fiera loaded with PAL
personnel,
[10]
not to mention the apparent apathy of the PAL station manager as to the
predicament of the stranded passengers.
[11]
In light of these circumstances, we held that if the
fortuitous event was accompanied by neglect and malfeasance by the carriers employees, an
action for damages against the carrier is permissible. Unfortunately, for private respondents,
none of these conditions are present in the instant petition.
We are not prepared, however, to completely absolve petitioner JAL from any liability. It
must be noted that private respondents bought tickets from the United States with Manila as their
final destination. While JAL was no longer required to defray private respondents living expenses
during their stay in Narita on account of the fortuitous event, JAL had the duty to make the
necessary arrangements to transport private respondents on the first available connecting flight
to Manila. Petitioner JAL reneged on its obligation to look after the comfort and convenience of its
passengers when it declassified private respondents from transit passengers to new
passengers as a result of which private respondents were obliged to make the necessary
arrangements themselves for the next flight to Manila. Private respondents were placed on the
waiting list from June 20 to June 24. To assure themselves of a seat on an available flight,
they were compelled to stay in the airport the whole day of June 22, 1991 and it was only at 8:00
p.m. of the aforesaid date that they were advised that they could be accommodated in said flight
which flew at about 9:00 a.m. the next day.
We are not oblivious to the fact that the cancellation of JAL flights to Manila from June 15 to
June 21, 1991 caused considerable disruption in passenger booking and reservation. In fact, it
would be unreasonable to expect, considering NAIAs closure, that JAL flight operations would be
normal on the days affected. Nevertheless, this does not excuse JAL from its obligation to make
the necessary arrangements to transport private respondents on its first available flight to Manila.
After all, it had a contract to transport private respondents from the United States to Manila as
their final destination.
Consequently, the award of nominal damages is in order. Nominal damages are adjudicated
in order that a right of a plaintiff, which has been violated or invaded by the defendant, may be
vindicated or recognized and not for the purpose of indemnifying any loss suffered by him.
[12]
The
court may award nominal damages in every obligation arising from any source enumerated in
Article 1157, or in every case where any property right has been invaded.
[13]

WHEREFORE, in view of the foregoing, the decision of the Court of Appeals dated
December 22, 1993 is hereby MODIFIED. The award of actual, moral and exemplary damages is
hereby DELETED. Petitioner JAL is ordered to pay each of the private respondents
nominal damages in the sum of P100,000.00 each including attorneys fees of P50,000.00 plus
costs.
SO ORDERED.
Narvasa, C.J. (Chairman), Kapunan and Purisima, JJ. concur.






















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.

GUTIERREZ, JR., J .:
This is a petition for review of the decision of the Court of Appeals which reversed and set aside
the order of the Regional Trial Court, Branch I, Butuan City dismissing the private respondents'
complaint for collection of "a sum of money" and finding the petitioners solidarily liable for
damages in the total amount of One Hundred Twenty Thousand Pesos (P120,000.00). The
petitioners also question the appellate court's resolution denying a motion for reconsideration.
On August 1, 1980, Bus No. 800 owned by Bachelor Express, Inc. and driven by Cresencio
Rivera was the situs of a stampede which resulted in the death of passengers Ornominio Beter
and Narcisa Rautraut.
The evidence shows that the bus came from Davao City on its way to Cagayan de Oro City
passing Butuan City; that while at Tabon-Tabon, Butuan City, the bus picked up a passenger; that
about fifteen (15) minutes later, a passenger at the rear portion suddenly stabbed a PC soldier
which caused commotion and panic among the passengers; that when the bus stopped,
passengers Ornominio Beter and Narcisa Rautraut were found lying down the road, the former
already dead as a result of head injuries and the latter also suffering from severe injuries which
caused her death later. The passenger assailant alighted from the bus and ran toward the bushes
but was killed by the police. Thereafter, the heirs of Ornominio Beter and Narcisa Rautraut,
private respondents herein (Ricardo Beter and Sergia Beter are the parents of Ornominio while
Teofilo Rautraut and Zoetera [should be Zotera] Rautraut are the parents of Narcisa) filed a
complaint for "sum of money" against Bachelor Express, Inc. its alleged owner Samson Yasay
and the driver Rivera.
In their answer, the petitioners denied liability for the death of Ornominio Beter and Narcisa
Rautraut. They alleged that ... the driver was able to transport his passengers safely to their
respective places of destination except Ornominio Beter and Narcisa Rautraut who jumped off the
bus without the knowledge and consent, much less, the fault of the driver and conductor and the
defendants in this case; the defendant corporation had exercised due diligence in the choice of its
employees to avoid as much as possible accidents; the incident on August 1, 1980 was not a
traffic accident or vehicular accident; it was an incident or event very much beyond the control of
the defendants; defendants were not parties to the incident complained of as it was an act of a
third party who is not in any way connected with the defendants and of which the latter have no
control and supervision; ..." (Rollo, pp. 112-113).itc-asl
After due trial, the trial court issued an order dated August 8, 1985 dismissing the complaint.
Upon appeal however, the trial court's decision was reversed and set aside. The dispositive
portion of the decision of the Court of Appeals states:
WHEREFORE, the Decision appealed from is REVERSED and SET ASIDE and
a new one entered finding the appellees jointly and solidarily liable to pay the
plaintiffs-appellants the following amounts:
1) To the heirs of Ornominio Beter, the amount of Seventy Five Thousand Pesos
(P75,000.00) in loss of earnings and support, moral damages, straight death
indemnity and attorney's fees; and,
2) To the heirs of Narcisa Rautraut, the amount of Forty Five Thousand Pesos
(P45,000.00) for straight death indemnity, moral damages and attorney's fees.
Costs against appellees. (Rollo, pp. 71-72)
The petitioners now pose the following questions
What was the proximate cause of the whole incident? Why were the passengers
on board the bus panicked (sic) and why were they shoving one another? Why
did Narcisa Rautraut and Ornominio Beter jump off from the running bus?
The petitioners opine that answers to these questions are material to arrive at "a fair, just and
equitable judgment." (Rollo, p. 5) They claim that the assailed decision is based on a
misapprehension of facts and its conclusion is grounded on speculation, surmises or conjectures.
As regards the proximate cause of the death of Ornominio Beter and Narcisa Rautraut, the
petitioners maintain that it was the act of the passenger who ran amuck and stabbed another
passenger of the bus. They contend that the stabbing incident triggered off the commotion and
panic among the passengers who pushed one another and thatpresumably out of fear and moved
by that human instinct of self-preservation Beter and Rautraut jumped off the bus while the bus
was still running resulting in their untimely death." (Rollo, p. 6) Under these circumstances, the
petitioners asseverate that they were not negligent in the performance of their duties and that the
incident was completely and absolutely attributable to a third person, the passenger who ran
amuck, for without his criminal act, Beter and Rautraut could not have been subjected to fear and
shock which compelled them to jump off the running bus. They argue that they should not be
made liable for damages arising from acts of third persons over whom they have no control or
supervision.
Furthermore, the petitioners maintain that the driver of the bus, before, during and after the
incident was driving cautiously giving due regard to traffic rules, laws and regulations. The
petitioners also argue that they are not insurers of their passengers as ruled by the trial court.
The liability, if any, of the petitioners is anchored on culpa contractual or breach of contract of
carriage. The applicable provisions of law under the New Civil Code are as follows:
ART. 1732. Common carriers are persons, corporations, firms or associations
engaged in the business of carrying or transporting passengers or goods or both
by land, water, or air, for compensation, offering their services to the public.
ART. 1733. Common carriers, from the nature of their business and for reasons
of public policy, are bound to observe extraordinary diligence in the vigilance
over the goods and for the safety of the passengers transported by them,
according to all the circumstances of each case.
xxx xxx xxx
ART. 1755. A common carrier is bound to carry the passengers safely as far as
human care and foresight can provide, using the utmost diligence of very
cautious persons, with a due regard for all the circumstances.
ART. 1756. In case of death of or injuries to passengers, common carriers are
presumed to have been at fault or to have acted negligently, unless they prove
that they observed extraordinary diligence as prescribed in Articles 1733 and
1755.
There is no question that Bachelor Express, Inc. is a common carrier. Hence, from the nature of
its business and for reasons of public policy Bachelor Express, Inc. is bound to carry its
passengers safely as far as human care and foresight can provide using the utmost diligence of
very cautious persons, with a due regard for all the circumstances.
In the case at bar, Ornominio Beter and Narcisa Rautraut were passengers of a bus belonging to
petitioner Bachelor Express, Inc. and, while passengers of the bus, suffered injuries which
caused their death. Consequently, pursuant to Article 1756 of the Civil Code, petitioner Bachelor
Express, Inc. is presumed to have acted negligently unless it can prove that it had observed
extraordinary diligence in accordance with Articles 1733 and 1755 of the New Civil Code.
Bachelor Express, Inc. denies liability for the death of Beter and Rautraut on its posture that the
death of the said passengers was caused by a third person who was beyond its control and
supervision. In effect, the petitioner, in order to overcome the presumption of fault or negligence
under the law, states that the vehicular incident resulting in the death of passengers Beter and
Rautraut was caused by force majeure or caso fortuito over which the common carrier did not
have any control.
Article 1174 of the present Civil Code states:
Except in cases expressly specified by law, or when it is otherwise declared by
stipulations, or when the nature of the obligation requires the assumption of risk,
no person shall be responsible for those events which could not be foreseen, or
which though foreseen, were inevitable.
The above-mentioned provision was substantially copied from Article 1105 of the old Civil Code
which states"
No one shall be liable for events which could not be foreseen or which, even if
foreseen, were inevitable, with the exception of the cases in which the law
expressly provides otherwise and those in which the obligation itself imposes
liability.
In the case of Lasam v. Smith (45 Phil. 657 [1924]), we defined "events" which cannot be
foreseen and which, having been foreseen, are inevitable in the following manner:
... The Spanish authorities regard the language employed as an effort to define
the term 'caso fortuito' and hold that the two expressions are synonymous.
(Manresa Comentarios al Codigo Civil Espaol, vol. 8, pp. 88 et seq.; Scaevola,
Codigo Civil, vol. 19, pp. 526 et seq.)
The antecedent to Article 1105 is found in Law II, Title 33, Partida 7, which
defines caso fortuito as 'occasion que acaese por aventura de que non se puede
ante ver. E son estos, derrivamientos de casas e fuego que enciende a so ora, e
quebrantamiento de navio, fuerca de ladrones' (An event that takes place by
incident and could not have been foreseen. Examples of this are destruction of
houses, unexpected fire, shipwreck, violence of robbers ...)
Escriche defines caso fortuito as an unexpected event or act of God which could
neither be foreseen nor resisted, such as floods, torrents, shipwrecks,
conflagrations, lightning, compulsion, insurrections, destruction of buildings by
unforeseen accidents and other occurrences of a similar nature.
In discussing and analyzing the term caso fortuito the Enciclopedia Juridica
Espaola says: 'In a legal sense and, consequently, also in relation to contracts,
a caso fortuito presents the following essential characteristics: (1) The cause of
the unforeseen and unexpected occurrence, or of the failure of the debtor to
comply with his obligation, must be independent of the human will. (2) It must be
impossible to foresee the event which constitutes the caso fortuito, or if it can be
foreseen, it must be impossible to avoid. (3) The occurrence must be such as to
render it impossible for the debtor to fulfill his obligation in a normal manner. And
(4) the obligor (debtor) must be free from any participation in the aggravation of
the injury resulting to the creditor. (5) Enciclopedia Juridica Espaola, 309)
As will be seen, these authorities agree that some extraordinary circumstance
independent of the will of the obligor or of his employees, is an essential element
of a caso fortuito. ...
The running amuck of the passenger was the proximate cause of the incident as it triggered off a
commotion and panic among the passengers such that the passengers started running to the
sole exit shoving each other resulting in the falling off the bus by passengers Beter and Rautraut
causing them fatal injuries. The sudden act of the passenger who stabbed another passenger in
the bus is within the context of force majeure.
However, in order that a common carrier may be absolved from liability in case of force majeure,
it is not enough that the accident was caused by force majeure. The common carrier must still
prove that it was not negligent in causing the injuries resulting from such accident. Thus, as early
as 1912, we ruled:
From all the foregoing, it is concluded that the defendant is not liable for the loss
and damage of the goods shipped on the lorcha Pilar by the Chinaman, Ong
Bien Sip, inasmuch as such loss and damage were the result of a fortuitous
event or force majeure, and there was no negligence or lack of care and
diligence on the part of the defendant company or its agents. (Tan Chiong Sian v.
Inchausti & Co., 22 Phil. 152 [1912]; Emphasis supplied).
This principle was reiterated in a more recent case, Batangas Laguna Tayabas Co. v.
Intermediate Appellate Court(167 SCRA 379 [1988]), wherein we ruled:
... [F]or their defense of force majeure or act of God to prosper the accident must
be due to natural causes and exclusively without human intervention. (Emphasis
supplied)
Therefore, the next question to be determined is whether or not the petitioner's common carrier
observed extraordinary diligence to safeguard the lives of its passengers.
In this regard the trial court and the appellate court arrived at conflicting factual findings.
The trial court found the following facts:
The parties presented conflicting evidence as to how the two deceased Narcisa
Rautruat and Ornominio Beter met their deaths.
However, from the evidence adduced by the plaintiffs, the Court could not see
why the two deceased could have fallen off the bus when their own witnesses
testified that when the commotion ensued inside the bus, the passengers pushed
and shoved each other towards the door apparently in order to get off from the
bus through the door. But the passengers also could not pass through the door
because according to the evidence the door was locked.
On the other hand, the Court is inclined to give credence to the evidence
adduced by the defendants that when the commotion ensued inside the bus, the
two deceased panicked and, in state of shock and fear, they jumped off from the
bus by passing through the window.
It is the prevailing rule and settled jurisprudence that transportation companies
are not insurers of their passengers. The evidence on record does not show that
defendants' personnel were negligent in their duties. The defendants' personnel
have every right to accept passengers absent any manifestation of violence or
drunkenness. If and when such passengers harm other passengers without the
knowledge of the transportation company's personnel, the latter should not be
faulted. (Rollo, pp. 46-47)
A thorough examination of the records, however, show that there are material facts ignored by
the trial court which were discussed by the appellate court to arrive at a different conclusion.
These circumstances show that the petitioner common carrier was negligent in the provision of
safety precautions so that its passengers may be transported safely to their destinations. The
appellate court states:
A critical eye must be accorded the lower court's conclusions of fact in its tersely
written ratio decidendi. The lower court concluded that the door of the bus was
closed; secondly, the passengers, specifically the two deceased, jumped out of
the window. The lower court therefore concluded that the defendant common
carrier is not liable for the death of the said passengers which it implicitly
attributed to the unforeseen acts of the unidentified passenger who went amuck.
There is nothing in the record to support the conclusion that the solitary door of
the bus was locked as to prevent the passengers from passing through. Leonila
Cullano, testifying for the defense, clearly stated that the conductor opened the
door when the passengers were shouting that the bus stop while they were in a
state of panic. Sergia Beter categorically stated that she actually saw her son fall
from the bus as the door was forced open by the force of the onrushing
passengers.
Pedro Collango, on the other hand, testified that he shut the door after the last
passenger had boarded the bus. But he had quite conveniently neglected to say
that when the passengers had panicked, he himself panicked and had gone to
open the door. Portions of the testimony of Leonila Cullano, quoted below, are
illuminating:
xxx xxx xxx
Q When you said the conductor opened the door, the door at the front or rear
portion of the bus?
A Front door.
Q And these two persons whom you said alighted, where did they pass, the
fron(t) door or rear door?
A Front door.
xxx xxx xxx
(Tsn., p. 4, Aug. 8, 1984)
xxx xxx xxx
Q What happened after there was a commotion at the rear portion of the bus?
A When the commotion occurred, I stood up and I noticed that there was a
passenger who was sounded (sic). The conductor panicked because the
passengers were shouting 'stop, stop'. The conductor opened the bus.'
(Tsn. p. 3, August 8, 1984).
Accordingly, there is no reason to believe that the deceased passengers jumped
from the window when it was entirely possible for them to have alighted through
the door. The lower court's reliance on the testimony of Pedro Collango, as the
conductor and employee of the common carrier, is unjustified, in the light of the
clear testimony of Leonila Cullano as the sole uninterested eyewitness of the
entire episode. Instead we find Pedro Collango's testimony to be infused by bias
and fraught with inconsistencies, if not notably unreliable for lack of veracity. On
direct examination, he testified:
xxx xxx xxx
Q So what happened to the passengers inside your bus?
A Some of the passengers jumped out of the window.
COURT:
Q While the bus was in motion?
A Yes, your Honor, but the speed was slow because we have just picked up a
passenger.
Atty. Gambe:
Q You said that at the time of the incident the bus was running slow because you
have just picked up a passenger. Can you estimate what was your speed at that
time?
Atty. Calo:
No basis, your Honor, he is neither a driver nor a conductor.
COURT:
Let the witness answer. Estimate only, the conductor experienced.
Witness:
Not less than 30 to 40 miles.
COURT:
Kilometers or miles?
A Miles.
Atty. Gambe:
Q That is only your estimate by your experience?
A Yes, sir, estimate.
(Tsn., pp. 4-5, Oct. 17, 1983).
At such speed of not less than 30 to 40 miles ..., or about 48 to 65 kilometers per
hour, the speed of the bus could scarcely be considered slow considering that
according to Collango himself, the bus had just come from a full stop after picking
a passenger (Tsn, p. 4, Id.) and that the bus was still on its second or third gear
(Tsn., p. 12, Id.).
In the light of the foregoing, the negligence of the common carrier, through its
employees, consisted of the lack of extraordinary diligence required of common
carriers, in exercising vigilance and utmost care of the safety of its passengers,
exemplified by the driver's belated stop and the reckless opening of the doors of
the bus while the same was travelling at an appreciably fast speed. At the same
time, the common carrier itself acknowledged, through its administrative officer,
Benjamin Granada, that the bus was commissioned to travel and take on
passengers and the public at large, while equipped with only a solitary door for a
bus its size and loading capacity, in contravention of rules and regulations
provided for under the Land Transportation and Traffic Code (RA 4136 as
amended.) (Rollo, pp. 23-26)
Considering the factual findings of the Court of Appeals-the bus driver did not immediately stop
the bus at the height of the commotion; the bus was speeding from a full stop; the victims fell from
the bus door when it was opened or gave way while the bus was still running; the conductor
panicked and blew his whistle after people had already fallen off the bus; and the bus was not
properly equipped with doors in accordance with law-it is clear that the petitioners have failed to
overcome the presumption of fault and negligence found in the law governing common carriers.
The petitioners' argument that the petitioners "are not insurers of their passengers" deserves no
merit in view of the failure of the petitioners to prove that the deaths of the two passengers were
exclusively due to force majeure and not to the failure of the petitioners to observe extraordinary
diligence in transporting safely the passengers to their destinations as warranted by law. (See
Batangas Laguna Tayabas Co. v. Intermediate Appellate Court, supra).
The petitioners also contend that the private respondents failed to show to the court that they are
the parents of Ornominio Beter and Narcisa Rautraut respectively and therefore have no legal
personality to sue the petitioners. This argument deserves scant consideration. We find this
argument a belated attempt on the part of the petitioners to avoid liability for the deaths of Beter
and Rautraut. The private respondents were Identified as the parents of the victims by witnesses
during the trial and the trial court recognized them as such. The trial court dismissed the
complaint solely on the ground that the petitioners were not negligent.
Finally, the amount of damages awarded to the heirs of Beter and Rautraut by the appellate court
is supported by the evidence. The appellate court stated:
Ornominio Beter was 32 years of age at the time of his death, single, in good
health and rendering support and service to his mother. As far as Narcisa
Rautraut is concerned, the only evidence adduced is to the effect that at her
death, she was 23 years of age, in good health and without visible means of
support.
In accordance with Art. 1764 in conjunction with Art. 2206 of the Civil Code, and
established jurisprudence, several factors may be considered in determining the
award of damages, namely: 1) life expectancy (considering the state of health of
the deceased and the mortality tables are deemed conclusive) and loss of
earning capacity; (2) pecuniary loss, loss of support and service; and (3) moral
and mental suffering (Alcantara, et al. v. Surro, et al., 93 Phil. 470).
In the case of People v. Daniel (No. L-66551, April 25, 1985, 136 SCRA 92, at
page 104), the High Tribunal, reiterating the rule in Villa Rey Transit, Inc. v. Court
of Appeals (31 SCRA 511), stated that the amount of loss of earring capacity is
based mainly on two factors, namely, (1) the number of years on the basis of
which the damages shall be computed; and (2) the rate at which the losses
sustained by the heirs should be fixed.
As the formula adopted in the case of Davila v. Philippine Air Lines, 49 SCRA
497, at the age of 30 one's normal life expectancy is 33-1/3 years based on the
American Expectancy Table of Mortality (2/3 x 80-32).itc-asl By taking into
account the pace and nature of the life of a carpenter, it is reasonable to make
allowances for these circumstances and reduce the life expectancy of the
deceased Ornominio Beter to 25 years (People v. Daniel, supra). To fix the rate
of losses it must be noted that Art. 2206 refers to gross earnings less necessary
living expenses of the deceased, in other words, only net earnings are to be
considered (People v. Daniel, supra; Villa Rey Transit, Inc. v. Court of
Appeals, supra).
Applying the foregoing rules with respect to Ornominio Beter, it is both just and
reasonable, considering his social standing and position, to fix the deductible,
living and incidental expenses at the sum of Four Hundred Pesos (P400.00) a
month, or Four Thousand Eight Hundred Pesos (P4,800.00) annually. As to his
income, considering the irregular nature of the work of a daily wage carpenter
which is seasonal, it is safe to assume that he shall have work for twenty (20)
days a month at Twenty Five Pesos (P150,000.00) for twenty five years.
Deducting therefrom his necessary expenses, his heirs would be entitled to Thirty
Thousand Pesos (P30,000.00) representing loss of support and service
(P150,000.00 less P120,000.00). In addition, his heirs are entitled to Thirty
Thousand Pesos (P30,000.00) as straight death indemnity pursuant to Article
2206 (People v. Daniel, supra). For damages for their moral and mental anguish,
his heirs are entitled to the reasonable sum of P10,000.00 as an exception to the
general rule against moral damages in case of breach of contract rule Art. 2200
(Necesito v. Paras, 104 Phil. 75). As attorney's fees, Beter's heirs are entitled to
P5,000.00. All in all, the plaintiff-appellants Ricardo and Sergia Beter as heirs of
their son Ornominio are entitled to an indemnity of Seventy Five Thousand Pesos
(P75,000.00).
In the case of Narcisa Rautraut, her heirs are entitled to a straight death
indemnity of Thirty Thousand Pesos (P30,000.00), to moral damages in the
amount of Ten Thousand Pesos (P10,000.00) and Five Thousand Pesos
(P5,000.00) as attorney's fees, or a total of Forty Five Thousand Pesos
(P45,000.00) as total indemnity for her death in the absence of any evidence that
she had visible means of support. (Rollo, pp. 30-31)
WHEREFORE, the instant petition is DISMISSED. The questioned decision dated May 19, 1988
and the resolution dated August 1, 1988 of the Court of Appeals are AFFIRMED.
SO ORDERED.
Fernan, C.J., (Chairman), Feliciano, Bidin and Cortes, JJ., concur.


























[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.
D E C I S I O N
MENDOZA, J .:
This is an appeal by petition for review on certiorari of the decision, dated July 29, 1994, of
the Court of Appeals, which reversed the decision of the Regional Trial Court, Branch VI, Iligan
City. The aforesaid decision of the trial court dismissed the complaint of private respondents
against petitioner for damages for breach of contract of carriage filed on the ground that petitioner
had not exercised the required degree of diligence in the operation of one of its buses. Atty. Talib
Caorong, whose heirs are private respondents herein, was a passenger of the bus and was killed
in the ambush involving said bus.
The facts of the instant case are as follows:
Petitioner is a bus company in northern Mindanao. Private respondent Paulie Caorong is
the widow of Atty. Caorong, while private respondents Yasser King, Rose Heinni, and Prince
Alexander are their minor children.
On November 18, 1989, a bus of petitioner figured in an accident with a jeepney in
Kauswagan, Lanao del Norte, resulting in the death of several passengers of the jeepney,
including two Maranaos. Crisanto Generalao, a volunteer field agent of the Constabulary
Regional Security Unit No. X, conducted an investigation of the accident. He found that the
owner of the jeepney was a Maranao residing in Delabayan, Lanao del Norte and that certain
Maranaos were planning to take revenge on the petitioner by burning some of its
buses. Generalao rendered a report on his findings to Sgt. Reynaldo Bastasa of the Philippine
Constabulary Regional Hearquarters at Cagayan de Oro. Upon the instruction of Sgt. Bastasa,
he went to see Diosdado Bravo, operations manager of petitioner, at its main office in Cagayan
de Oro City. Bravo assured him that the necessary precautions to insure the safety of lives and
property would be taken.
[1]

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

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

The private respondents brought this suit for breach of contract of carriage in the Regional
Trial Court, Branch VI, Iligan City. In his decision, dated December 28, 1990, the trial court
dismissed the complaint, holding as follows:
The fact that defendant, through Operations Manager Diosdado Bravo, was informed of the
rumors that the Moslems intended to take revenge by burning five buses of defendant is
established since the latter also utilized Crisanto Generalaos as a witness. Yet despite this
information, the plaintiffs charge, defendant did not take proper precautions. . . . Consequently,
plaintiffs now fault the defendant for ignoring the report. Their position is that the defendant
should have provided its buses with security guards. Does the law require common carriers to
install security guards in its buses for the protection and safety of its passengers? Is the failure to
post guards an omission of the duty to exercise the diligence of a good father of the family
which could have prevented the killing of Atty. Caorong? To our mind, the diligence demanded
by law does not include the posting of security guards in buses. It is an obligation that properly
belongs to the State. Besides, will the presence of one or two security guards suffice to deter a
determined assault of the lawless and thus prevent the injury complained of? Maybe so, but
again, perhaps not. In other words, the presence of a security guard is not a guarantee that the
killing of Atty. Caorong would have been definitely avoided.
.
Accordingly, the failure of defendant to accord faith and credit to the report of Mr. Generalao and
the fact that it did not provide security to its buses cannot, in the light of the circumstances, be
characterized as negligence.
Finally, the evidence clearly shows that the assailants did not have the least intention of harming
any of the passengers. They ordered all the passengers to alight and set fire on the bus only
after all the passengers were out of danger. The death of Atty. Caorong was an unexpected and
unforseen occurrence over which defendant had no control. Atty. Caorong performed an act of
charity and heroism in coming to the succor of the driver even in the face of danger. He deserves
the undying gratitude of the driver whose life he saved. No one should blame him for an act of
extraordinary charity and altruism which cost his life. But neither should any blame be laid on the
doorstep of defendant. His death was solely due to the willful acts of the lawless which defendant
could neither prevent nor stop.
.
WHEREFORE, in view of the foregoing, the complaint is hereby dismissed. For lack of merit, the
counter-claim is likewise dismissed. No cost.
[4]

On appeal, however, the Court of Appeals reversed. It held:
In the case at bench, how did defendant-appellee react to the tip or information that certain
Maranao hotheads were planning to burn five of its buses out of revenge for the deaths of two
Maranaos in an earlier collision involving appellees bus? Except for the remarks of appellees
operations manager that we will have our action . . . . and Ill be the one to settle it personally,
nothing concrete whatsoever was taken by appellee or its employees to prevent the execution of
the threat. Defendant-appellee never adopted even a single safety measure for the protection of
its paying passengers. Were there available safeguards? Of course, there were: one was
frisking passengers particularly those en route to the area where the threats were likely to be
carried out such as where the earlier accident occurred or the place of influence of the victims or
their locality. If frisking was resorted to, even temporarily, . . . . appellee might be legally excused
from liability. Frisking of passengers picked up along the route could have been implemented by
the bus conductor; for those boarding at the bus terminal, frisking could have been conducted by
him and perhaps by additional personnel of defendant-appellee. On hindsight, the handguns and
especially the gallon of gasoline used by the felons all of which were brought inside the bus would
have been discovered, thus preventing the burning of the bus and the fatal shooting of the victim.
Appellees argument that there is no law requiring it to provide guards on its buses and that the
safety of citizens is the duty of the government, is not well taken. To be sure, appellee is not
expected to assign security guards on all of its buses; if at all, it has the duty to post guards only
on its buses plying predominantly Maranao areas. As discussed in the next preceding paragraph,
the least appellee could have done in response to the report was to adopt a system of verification
such as frisking of passengers boarding its buses. Nothing, and to repeat, nothing at all, was
done by defendant-appellee to protect its innocent passengers from the danger arising from the
Maranao threats. It must be observed that frisking is not a novelty as a safety measure in our
society. Sensitive places in fact, nearly all important places have applied this method of
security enhancement. Gadgets and devices are available in the market for this purpose. It
would not have weighed much against the budget of the bus company if such items were made
available to its personnel to cope up with situations such as the Maranao threats.
In view of the constitutional right to personal privacy, our pronouncement in this decision should
not be construed as an advocacy of mandatory frisking in all public conveyances. What we are
saying is that given the circumstances obtaining in the case at bench that: (a) two Maranaos died
because of a vehicular collision involving one of appellees vehicles; (b) appellee received a
written report from a member of the Regional Security Unit, Constabulary Security Group, that the
tribal/ethnic group of the two deceased were planning to burn five buses of appellee out of
revenge; and (c) appellee did nothing absolutely nothing for the safety of its passengers
travelling in the area of influence of the victims, appellee has failed to exercise the degree of
diligence required of common carriers. Hence, appellee must be adjudged liable.
.
WHEREFORE, the decision appealed from is hereby REVERSED and another rendered ordering
defendant-appellee to pay plaintiffs-appellants the following:
1) P3,399,649.20 as death indemnity;
2) P50,000.00 and P500.00 per appearance as attorneys fees; and
Costs against defendant-appellee.
[5]

Hence, this appeal. Petitioner contends:
(A) THAT PUBLIC RESPONDENT ERRED IN REVERSING THE DECISION OF THE
REGIONAL TRIAL COURT DATED DECEMBER 28, 1990 DISMISSING THE
COMPLAINT AS WELL AS THE COUNTERCLAIM, AND FINDING FOR
PRIVATE RESPONDENTS BY ORDERING PETITIONER TO PAY THE
GARGANTUAN SUM OF P3,449,649.20 PLUS P500.00 PER APPEARANCE AS
ATTORNEYS FEES, AS WELL AS DENYING PETITIONERS MOTION
FOR RECONSIDERATION AND THE SUPPLEMENT TO SAID MOTION, WHILE
HOLDING, AMONG OTHERS, THAT PETITIONER BREACHED THE
CONTRACT OF CARIAGE BY ITS FAILURE TO EXERCISE THE REQUIRED
DEGREE OF DILIGENCE;
(B) THAT THE ACTS OF THE MARANAO OUTLAWS WERE SO GRAVE,
IRRESISTIBLE, VIOLENT, AND FORCEFUL, AS TO BE REGARDED AS CASO
FORTUITO; AND
(C) THAT PUBLIC RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN
HOLDING THAT PETITIONER COULD HAVE PROVIDED ADEQUATE
SECURITY IN PREDOMINANTLY MUSLIM AREAS AS PART OF ITS DUTY TO
OBSERVE EXTRA-ORDINARY DILIGENCE AS A COMMON CARRIER.
The instant petition has no merit.
First. Petitioners Breach of the Contract of Carriage

Art. 1763 of the Civil Code provides that a common carrier is responsible for injuries suffered
by a passenger on account of the wilful acts of other passengers, if the employees of the
common carrier could have prevented the act the exercise of the diligence of a good father of a
family. In the present case, it is clear that because of the negligence of petitioners employees,
the seizure of the bus by Mananggolo and his men was made possible.
Despite warning by the Philippine Constabulary at Cagayan de Oro that the Maranaos were
planning to take revenge on the petitioner by burning some of its buses and the assurance of
petitioners operation manager, Diosdado Bravo, that the necessary precautions would be taken,
petitioner did nothing to protect the safety of its passengers.
Had petitioner and its employees been vigilant they would not have failed to see that the
malefactors had a large quantity of gasoline with them. Under the circumstances, simple
precautionary measures to protect the safety of passengers, such as frisking passengers and
inspecting their baggages, preferably with non-intrusive gadgets such as metal detectors, before
allowing them on board could have been employed without violating the passengers
constitutional rights. As this Court intimated in Gacal v. Philippine Air Lines, Inc.,
[6]
a common
carrier can be held liable for failing to prevent a hijacking by frisking passengers and inspecting
their baggages.
From the foregoing, it is evident that petitioners employees failed to prevent the attack on
one of petitioners buses because they did not exercise the diligence of a good father of a
family. Hence, petitioner should be held liable for the death of Atty. Caorong.
Second. Seizure of Petitioners Bus not a Case of Force Majeure

The petitioner contends that the seizure of its bus by the armed assailants was a fortuitous
event for which it could not be held liable.
Art. 1174 of the Civil Code defines a fortuitous even as an occurrence which could not be
foreseen or which though foreseen, is inevitable. In Yobido v. Court of Appeals,
[7]
we held that to
be considered as force majeure, it is necessary that: (1) the cause of the breach of the obligation
must be independent of the human will; (2) the event must be either unforeseeable or
unavoidable; (3) the occurrence must be such as to render it impossible for the debtor to fulfill the
obligation in a normal manner; and (4) the obligor must be free of participation in, or aggravation
of, the injury to the creditor. The absence of any of the requisites mentioned above would
prevent the obligor from being excused from liability.
Thus, in Vasquez v. Court of Appeals,
[8]
it was held that the common carrier was liable for its
failure to take the necessary precautions against an approaching typhoon, of which it was
warned, resulting in the loss of the lives of several passengers. The event was foreseeable, and,
thus, the second requisite mentioned above was not fulfilled. This ruling applies by analogy to
the present case. Despite the report of PC agent Generalao that the Maranaos were going to
attack its buses, petitioner took no steps to safeguard the lives and properties of its
passengers. The seizure of the bus of the petitioner was foreseeable and, therefore, was not a
fortuitous event which would exempt petitioner from liability.
Petitioner invokes the ruling in Pilapil v. Court of Appeals
[9]
and De Guzman v. Court of
Appeals
[10]
in support of its contention that the seizure of its bus by the assailants constitutes
force majeure. In Pilapil v. Court of Appeals,
[11]
it was held that a common carrier is not liable for
failing to install window grills on its buses to protect passengers from injuries caused by rocks
hurled at the bus by lawless elements. On the other hand, in De Guzman v. Court of
Appeals,
[12]
it was ruled that a common carrier is not responsible for goods lost as a result of a
robbery which is attended by grave or irresistible threat, violence, or force.
It is clear that the cases of Pilapil and De Guzman do not apply to the present case. Art.
1755 of the Civil Code provides that a common carrier is bound to carry the passengers as far as
human care and foresight can provide, using the utmost diligence of very cautious person, with
due regard for all the circumstances. Thus, we held in Pilapil and De Guzman that the
respondents therein were not negligent in failing to take special precautions against threats to the
safety of passengers which could not be foreseen, such as tortious or criminal acts of third
persons. In the present case, this factor of unforeseeablility (the second requisite for an event to
be considered force majeure) is lacking. As already stated, despite the report of PC agent
Generalao that the Maranaos were planning to burn some of petitioners buses and the
assurance of petitioners operations manager (Diosdado Bravo) that the necessary precautions
would be taken, nothing was really done by petitioner to protect the safety of passengers.
Third. Deceased not Guilty of Contributory Negligence

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

We now consider the question of damages that the heirs of Atty. Caorong, private
respondents herein, are entitled to recover from the petitioner.
Indemnity for Death. Art. 1764 of the Civil Code, in relation to Art. 2206 thereof, provides for
the payment of indemnity for the death of passengers caused by the breached of contract of
carriage by a common carrier. Initially fixed in Art. 2206 at P3,000.00, the amount of the said
indemnity for death has through the years been gradually increased in view of the declining value
of the peso. It is presently fixed at P50,000.00.
[13]
Private respondents are entitled to this amount.
Actual damages. Art. 2199 provides that Except as provided by law or by stipulation, one is
entitled to an adequate compensation only for such pecuniary loss suffered by him as he has duly
proved. The trial court found that the private respondents spent P30,000.00 for the wake and
burial of Atty. Caorong.
[14]
Since petitioner does not question this finding of the trial court, it is
liable to private respondents in the said amount as actual damages.
Moral Damages. Under Art. 2206, the spouse, legitimate and illegitimate descendants and
ascendants of the deceased may demand moral damages for mental anguish by reason of the
death of the deceased. The trial court found that private respondent Paulie Caorong suffered
pain from the death of her husband and worry on how to provide support for their minor children,
private respondents Yasser King, Rose Heinni, and Prince Alexander.
[15]
The petitioner likewise
does not question this finding of the trial court. Thus, in accordance with recent decisions of this
Court,
[16]
we hold that the petitioner is liable to the private respondents in the amount
of P100,000.00 as moral damages for the death of Atty. Caorong.
Exemplary Damages. Art. 2232 provides that in contracts and quasi-contracts, the court
may award exemplary damages if the defendant acted in a wanton, fraudulent, reckless,
oppressive, or malevolent manner. In the present case, the petitioner acted in a wanton and
reckless manner. Despite warning that the Maranaos were planning to take revenge against the
petitioner by burning some of its buses, and contrary to the assurance made by its operations
manager that the necessary precautions would be taken, the petitioner and its employees did
nothing to protect the safety of passengers. Under the circumstances, we deem it reasonable to
award private respondents exemplary damages in the amount of P100,000.00.
[17]

Attorneys Fees. Pursuant to Art. 2208, attorneys fees may be recovered when, as in the
instant case, exemplary damages are awarded. In the recent case of Sulpicio Lines, Inc. v. Court
of Appeals,
[18]
we held an award of P50,000.00 as attorneys fees to be reasonable. Hence, the
private respondents are entitled to attorneys fees in that amount.
Compensation for Loss of Earning Capacity. Art. 1764 of the Civil Code, in relation to Art.
2206 thereof, provides that in addition to the indemnity for death arising from the breach of
contract of carriage by a common carrier, the defendant shall be liable for the loss of the earning
capacity of the deceased, and the indemnity shall be paid to the heirs of the latter. The formula
established in decided cases for computing net earning capacity is as follows:
[19]

Gross Necessary
Net earning = Life x Annual - Living
Capacity Expectancy Income Expenses
Life expectancy is equivalent to two thirds (2/3) multiplied by the difference of eighty (80) and
the age of the deceased.
[20]
Since Atty. Caorong was 37 years old at the time of his death,
[21]
he
had a life expectancy of 28 2/3 more years.
[22]
His projected gross annual income, computed
based on his monthly salary of P11,385.00
[23]
as a lawyer in the Department of Agrarian Reform
at the time of his death, was P148,005.00.
[24]
allowing for necessary living expenses of fifty
percent (50%)
[25]
of his projected gross annual income, his total earning capacity amounts
to P2,121,404.90.
[26]
Hence, the petitioner is liable to the private respondents in the said amount
as compensation for loss of earning capacity.
WHEREFORE, the decision, dated July 29, 1994, of the Court of Appeals is hereby
AFFIRMED with the MODIFICATION that petitioner Fortune Express, Inc. is ordered to pay the
following amounts to private respondents Paulie, Yasser King, Rose Heinni, and Prince
Alexander Caorong:
1. death indemnity in the amount of fifty thousand pesos (P50,000.00);
2. actual damages in the amount of thirty thousand pesos (P30,000.00);
3. moral damages in the amount of one hundred thousand pesos(P100,000.00);
4. exemplary damages in the amount of one hundred thousand pesos (P100,000.00);
5. attorneys fees in the amount of fifty thousand pesos (P50,000.00);
6. compensation for loss of earning capacity in the amount of two million one hundred
twenty-one thousand four hundred four pesos and ninety centavos (P2,121,404.90); and
7) costs of suits.
SO ORDERED.
Bellosillo, (Chairman), Puno, and Buena, JJ., concur.
Quisumbing, J., on official business abroad.






















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.
REYES, J.B.L., J .:
The Manila Railroad Company has appealed from a judgment of the Court of First Instance of
Laguna sentencing it to pay P4,000 damages to the appellees herein, the widow and children of
the late Tomas Gillaco, shot by an employee of the Company in April, 1946.
The judgment was rendered upon the following stipulation of facts:
That at about 7:30 a.m., on the morning of April 1, 1946, Lieut. Tomas Gillaco, husband
of the plaintiff, was a passenger in the early morning train of the Manila Railroad
Company from Calamba, Laguna to Manila;
That when the train reached the Paco Railroad station, Emilio Devesa, a train guard of
the Manila Railroad Company assigned in the Manila-San Fernando, La Union Line,
happened to be in said station waiting for the same train which would take him to
Tutuban Station, where he was going to report for duty;
That Emilio Devesa had a long standing personal grudge against Tomas Gillaco, same
dating back during the Japanese occupation;
That because of this personal grudge, Devesa shot Gillaco with the carbine furnished to
him by the Manila Railroad Company for his use as such train guard, upon seeing him
inside the train coach;
That Tomas Gillaco died as a result of the would which he sustained from the shot fired
by Devesa.
It is also undisputed that Devesa was convicted with homicide by final judgment of the Court of
Appeals.
Appellant's contention is that, on the foregoing facts, no liability attaches to it as employer of the
killer, Emilio Devesa; that it is not responsible subsidiary ex delicto, under Art. 103 of the Revised
Penal Code, because the crime was not committed while the slayer was in the actual
performance of his ordinary duties and service; nor is it responsible ex contractu, since the
complaint did not aver sufficient facts to establish such liability, and no negligence on appellant's
party was shown. The Court below held the Railroad company responsible on the ground that a
contract of transportation implies protection of the passengers against acts of personal violence
by the agents or employees of the carrier.
There can be no quarrel with the principle that a passenger is entitled to protection from personal
violence by the carrier or its agents or employees, since the contract of transportation obligates
the carrier to transport a passenger safely to his destination. But under the law of the case, this
responsibility extends only to those that the carrier could foresee or avoid through the exercise of
the degree of car and diligence required of it.
Discussing the basis of a carrier's liability under the old Civil Code of 1889 (which was in force in
1946, when Gillaco was shot) this Court said in Lasam vs. Smith (45 Phil., 657):
In our opinion, the conclusions of the court below are entirely correct. That upon the facts
stated the defendant's liability, if any, is contractual, is well settled by previous decisions
of the court, beginning with the case of Rakes vs. Atlantic, Gulf & Pacific Co. (7 Phil.,
359), and the distinction between extra-contractual liability and contractual liability has
been so ably and exhaustively discussed in various other cases that nothing further need
here be said upon that subject. (See Cangco vs. Manila Railroad Co., 38 Phil., 768;
Manila Railroad vs. Compaia Transatlantica and Atlantic, Gulf & Pacific Co., 38 Phil.,
875; De Guia vs.Manila Electric Railroad & Light Co., 40 Phil., 706). It is sufficient to
reiterate that the source of the defendant's legal liability is the contract of carriage; that by
entering into that contract he bound himself to carry the plaintiff safely and securely to
their destination; and that having failed to do so he is liable in damages unless he shows
that the failure to fulfill his obligation was due to causes mentioned in article 1105 of the
Civil Code, which reads as follows:
"No one shall be liable for events which could not be foreseen or which, even if foreseen,
were inevitable, with the exception of the cases in which the law expressly provides
otherwise and those in which the obligation itself imposes such liability."
The act of guard Devesa in shooting passenger Gillaco (because of a personal grudge nurtured
against the latter since the Japanese occupation) was entirely unforeseeable by the Manila
Railroad Co. The latter had no means to ascertain or anticipate that the two would meet, nor
could it reasonably foresee every personal rancor that might exist between each one of its many
employees and any one of the thousands of eventual passengers riding in its trains. The shooting
in question was therefore "caso fortuito" within the definition of article 105 of the old Civil Code,
being both unforeseeable and inevitable under the given circumstances; and pursuant to
established doctrine, the resulting breach of appellant's contract of safe carriage with the late
Tomas Gillaco was excused thereby.
No doubt that a common carrier is held to a very high degree of care and diligence in the
protection of its passengers; but, considering the vast and complex activities of modern rail
transportation, to require of appellant that it should guard against all possible misunderstanding
between each and every one of its employees and every passenger that might chance to ride in
its conveyances at any time, strikes us as demanding diligence beyond what human care and
foresight can provide.
The lower Court and the appellees both relied on the American authorities that particularly hold
carriers to be insurers of the safety of their passengers against willful assault and intentional ill
treatment on the part of their servants, it being immaterial that the act should be one of private
retribution on the part of the servant, impelled by personal malice toward the passenger (10 Am.
Jur. 108; Ed. Note to Gassenheimer vs. Wester R. Co. 40 LRA (NS), p. 999, et seq.) But as can
be inferred from the previous jurisprudence of this Court , the Civil Code of 1889 did not impose
such absolute liability (Lasam vs. Smith, supra). The liability of a carrier as an insurer was not
recognized in this jurisdiction (Government vs. Inchausti & Co., 40 Phil., 219; Oriental Comm.
Co. vs. Naviera Filipina, 38 Off. Gaz., 1020).
Another very important consideration that must be borne in mind is that, when the crime took
place, the guard Devesa had no duties to discharge in connection with the transportation of the
deceased from Calamba to Manila. The stipulation of facts is clear that when Devesa shot and
killed Gillaco, Devesa was assigned to guard the Manila-San Fernando (La Union) trains, and he
was at Paco Station awaiting transportation to Tutuban, the starting point of the train that he was
engaged to guard. In fact, his tour of duty was to start at 9:00 a.m., two hours after the
commission of the crime. Devesa was therefore under no obligation to safeguard the passenger
of the Calamba-Manila train, where the deceased was riding; and the killing of Gillaco was not
done in line of duty. The position of Devesa at the time was that of another would be passenger,
a stranger also awaiting transportation, and not that of an employee assigned to discharge any of
the duties that the Railroad had assumed by its contract with the deceased. As a result, Devesa's
assault cannot be deemed in law a breach of Gillaco's contract of transportation by a servant or
employee of the carrier. We agree with the position taken by the Supreme Court of Texas in a
similar case, where it held:
The only good reason for making the carrier responsible for the misconduct of the servant
perpetrated in his own interest, and not in that of his employer, or otherwise within the
scope of his employment, is that the servant is clothed with the delegated authority, and
charge with the duty by the carrier, to execute his undertaking with the passenger. And it
cannot be said, we think, that there is any such delegation to the employees at a station
with reference to passenger embarking at another or traveling on the train. Of course, we
are speaking only of the principle which holds a carrier responsible for wrong done to
passenger by servants acting in their own interest, and not in that of the employer. That
principle is not the ordinary rule,respondent superior, by which the employer is held
responsible only for act or omissions of the employee in the scope of his employment; but
the only reason in our opinion for a broader liability arises from the fact that the servant,
in mistreating the passenger wholly for some private purpose of his own, in the very act,
violates the contractual obligation of the employer for the performance of which he has
put the employee in his place. The reason does not exist where the employee who
committed the assault was never in a position in which it became his duty to his employer
to represent him in discharging any duty of the latter toward the passenger. The
proposition that the carrier clothes every employee engaged in the transportation
business with the comprehensive duty of protecting every passenger with whom he may
in any way come in contact, and hereby makes himself liable for every assault commited
by such servant, without regard to the inquiry whether or not the passenger has come
within the sphere of duty of that servant as indicated by the employment, is regarded as
not only not sustained by the authorities, but as being unsound and oppressive both to
the employer and the employee. (Houston & T. C. R. Co. vs. Bush, 32 LRA (NS), p.
1205.)
Wherefore, the judgment appealed from is reversed and the complaint ordered dismissed, without
cost. So ordered.
Bengzon, Padilla, Montemayor, Reyes, A., Jugo, Bautista Angelo, and Concepcion, JJ., concur.






G.R. No. L-22272 June 26, 1967
ANTONIA MARANAN, plaintiff-appellant,
vs.
PASCUAL PEREZ, ET AL., defendants.
PASCUAL PEREZ, defendant appellant.
Pedro Panganiban for plaintiff-appellant.
Magno T. Bueser for defendant-appellant.
BENGZON, J.P., J .:
Rogelio Corachea, on October 18, 1960, was a passenger in a taxicab owned and operated by
Pascual Perez when he was stabbed and killed by the driver, Simeon Valenzuela.
Valenzuela was prosecuted for homicide in the Court of First Instance of Batangas. Found guilty,
he was sentenced to suffer imprisonment and to indemnify the heirs of the deceased in the sum
of P6,000. Appeal from said conviction was taken to the Court of Appeals.1wph1.t
On December 6 1961, while appeal was pending in the Court of Appeals, Antonia Maranan,
Rogelio's mother, filed an action in the Court of First Instance of Batangas to recover damages
from Perez and Valenzuela for the death of her son. Defendants asserted that the deceased was
killed in self-defense, since he first assaulted the driver by stabbing him from behind. Defendant
Perez further claimed that the death was a caso fortuito for which the carrier was not liable.
The court a quo, after trial, found for the plaintiff and awarded her P3,000 as damages against
defendant Perez. The claim against defendant Valenzuela was dismissed. From this ruling, both
plaintiff and defendant Perez appealed to this Court, the former asking for more damages and the
latter insisting on non-liability. Subsequently, the Court of Appeals affirmed the judgment of
conviction earlier mentioned, during the pendency of the herein appeal, and on May 19, 1964,
final judgment was entered therein. (Rollo, p. 33).
Defendant-appellant relies solely on the ruling enunciated in Gillaco v. Manila Railroad Co., 97
Phil. 884, that the carrier is under no absolute liability for assaults of its employees upon the
passengers. The attendant facts and controlling law of that case and the one at bar are very
different however. In the Gillaco case, the passenger was killed outside the scope and the course
of duty of the guilty employee. As this Court there found:
x x x when the crime took place, the guard Devesa had no duties to discharge in
connection with the transportation of the deceased from Calamba to Manila. The
stipulation of facts is clear that when Devesa shot and killed Gillaco, Devesa was
assigned to guard the Manila-San Fernando (La Union) trains, and he was at Paco
Station awaiting transportation to Tutuban, the starting point of the train that he was
engaged to guard. In fact, his tour of duty was to start at 9:00 two hours after the
commission of the crime. Devesa was therefore under no obligation to safeguard the
passengers of the Calamba-Manila train, where the deceased was riding; and the killing
of Gillaco was not done in line of duty. The position of Devesa at the time was that of
another would be passenger, a stranger also awaiting transportation, and not that of an
employee assigned to discharge any of the duties that the Railroad had assumed by its
contract with the deceased. As a result, Devesa's assault can not be deemed in law a
breach of Gillaco's contract of transportation by a servant or employee of the carrier. . . .
(Emphasis supplied)
Now here, the killing was perpetrated by the driver of the very cab transporting the passenger, in
whose hands the carrier had entrusted the duty of executing the contract of carriage. In other
words, unlike the Gillaco case, the killing of the passenger here took place in the course of duty of
the guilty employee and when the employee was acting within the scope of his duties.
Moreover, the Gillaco case was decided under the provisions of the Civil Code of 1889 which,
unlike the present Civil Code, did not impose upon common carriers absolute liability for the
safety of passengers against wilful assaults or negligent acts committed by their employees. The
death of the passenger in the Gillaco case was truly a fortuitous event which exempted the carrier
from liability. It is true that Art. 1105 of the old Civil Code on fortuitous events has been
substantially reproduced in Art. 1174 of the Civil Code of the Philippines but both articles clearly
remove from their exempting effect the case where the law expressly provides for liability in spite
of the occurrence of force majeure. And herein significantly lies the statutory difference between
the old and present Civil Codes, in the backdrop of the factual situation before Us, which further
accounts for a different result in the Gillaco case. Unlike the old Civil Code, the new Civil Code of
the Philippines expressly makes the common carrier liable for intentional assaults committed by
its employees upon its passengers, by the wording of Art. 1759 which categorically states that
Common carriers are liable for the death of or injuries to passengers through the
negligence or willful acts of the former's employees, although such employees may have
acted beyond the scope of their authority or in violation of the orders of the common
carriers.
The Civil Code provisions on the subject of Common Carriers
1
are new and were taken from
Anglo-American Law.
2
There, the basis of the carrier's liability for assaults on passengers
committed by its drivers rests either on (1) the doctrine of respondeat superior or (2) the principle
that it is the carrier's implied duty to transport the passenger safely.
3

Under the first, which is the minority view, the carrier is liable only when the act of the employee
is within the scope of his authority and duty. It is not sufficient that the act be within the course of
employment only.
4

Under the second view, upheld by the majority and also by the later cases, it is enough that the
assault happens within the course of the employee's duty. It is no defense for the carrier that the
act was done in excess of authority or in disobedience of the carrier's orders.
5
The carrier's
liability here is absolute in the sense that it practically secures the passengers from assaults
committed by its own employees.
6

As can be gleaned from Art. 1759, the Civil Code of the Philippines evidently follows the rule
based on the second view. At least three very cogent reasons underlie this rule. As explained
in Texas Midland R.R. v. Monroe, 110 Tex. 97, 216 S.W. 388, 389-390, and Haver v. Central
Railroad Co., 43 LRA 84, 85: (1) the special undertaking of the carrier requires that it furnish its
passenger that full measure of protection afforded by the exercise of the high degree of care
prescribed by the law, inter alia from violence and insults at the hands of strangers and other
passengers, but above all, from the acts of the carrier's own servants charged with the
passenger's safety; (2) said liability of the carrier for the servant's violation of duty to passengers,
is the result of the formers confiding in the servant's hands the performance of his contract to
safely transport the passenger, delegating therewith the duty of protecting the passenger with the
utmost care prescribed by law; and (3) as between the carrier and the passenger, the former
must bear the risk of wrongful acts or negligence of the carrier's employees against passengers,
since it, and not the passengers, has power to select and remove them.
Accordingly, it is the carrier's strict obligation to select its drivers and similar employees with due
regard not only to their technical competence and physical ability, but also, no less important, to
their total personality, including their patterns of behavior, moral fibers, and social attitude.
Applying this stringent norm to the facts in this case, therefore, the lower court rightly adjudged
the defendant carrier liable pursuant to Art. 1759 of the Civil Code. The dismissal of the claim
against the defendant driver was also correct. Plaintiff's action was predicated on breach of
contract of carriage
7
and the cab driver was not a party thereto. His civil liability is covered in the
criminal case wherein he was convicted by final judgment.
In connection with the award of damages, the court a quo granted only P3,000 to plaintiff-
appellant. This is the minimum compensatory damages amount recoverable under Art. 1764 in
connection with Art. 2206 of the Civil Code when a breach of contract results in the passenger's
death. As has been the policy followed by this Court, this minimal award should be increased to
P6,000. As to other alleged actual damages, the lower court's finding that plaintiff's evidence
thereon was not convincing,
8
should not be disturbed. Still, Arts. 2206 and 1764
award moraldamages in addition to compensatory damages, to the parents of the passenger
killed to compensate for the mental anguish they suffered. A claim therefor, having been properly
made, it becomes the court's duty to award moral damages.
9
Plaintiff demands P5,000 as moral
damages; however, in the circumstances, We consider P3,000 moral damages, in addition to the
P6,000 damages afore-stated, as sufficient. Interest upon such damages are also due to plaintiff-
appellant.
10

Wherefore, with the modification increasing the award of actual damages in plaintiff's favor to
P6,000, plus P3,000.00 moral damages, with legal interest on both from the filing of the complaint
on December 6, 1961 until the whole amount is paid, the judgment appealed from is affirmed in
all other respects. No costs. So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez and Castro, JJ., concur.











G.R. No. L-19161 April 29, 1966
MANILA RAILROAD COMPANY, petitioner,
vs.
MACARIA BALLESTEROS, TIMOTEO CAMAYO, JOSE REYES and JULIAN MAIMBAN,
JR., respondents.
Gov't Corp. Counsel S. M. Gopengco and Atty. R. G. Fernando, for petitioner.
George G. Arbolario, for respondents.
MAKALINTAL, J .:
In civil case No. 45968 of the Court of First Instance of Manila (Macaria Ballesteros, Timoteo
Camayo, Jose Reyes and Julian Maimban, Jr. vs. Manila Railroad Company) the defendant was
adjudged to pay damages in the following amounts: P2,400 to Macaria Ballesteros; P4,000 to
Timoteo Camayo; P3,000 to Jose Reyes: and P2,000, plus P1,000 as attorney's fees, to Julian
Maimban, Jr.
The defendant appealed from the judgment, but upon motion by the plaintiffs, the trial court, by
order dated October 14, 1961, dismissed the appeal on the ground that it was "manifestly and
palpably frivolous and interposed ostensibly to delay the settlement of the just and reasonable
claims of the herein plaintiffs, which have been pending since 1958." The defendant moved to
reconsider, and upon denial of its motion instituted in this Court the instant petition
for mandamus to set aside the order of dismissal and to order respondent court to give due
course to the appeal.
In filing the petition directly with this Court, petitioner evidently intended to raise only questions of
law in the appeal contemplated, since under Rule 41, section 15, "when erroneously a motion to
dismiss an appeal is granted or a record on appeal is disallowed by the trial court, a proper
petition for mandamus may be filed in the appellate court;" and under section 17(6) of the
Judiciary Act this Court may review on appeal only questions of law in civil cases decided by
inferior courts unless the value in controversy exceeds P200,000.1wph1.t
The fact that an appeal is frivolous and interposed only for purposes of delay has been
recognized as a valid ground to deny issuance of the writ of mandamus to compel the trial court
to approve and certify the appeal. In De la Cruz vs. Blanco and Quevedo, 73 Phil. 596, We held:
And where as in the instant case, the dismissal has been ordered by the trial court, it
would not be disturbed in the Appellate Court if the latter finds the appeal to have been
interposed ostensibly for delay. It has been held that a frivolous appeal is one presenting
no justiciable question or one so readily cognizable as devoid of merit on the face of the
record that there is little, if any, prospect that it can over succeed. The instant case is one
such instance in which the appeal is evidently without merit, taken manifestly for delay.
And in Paner vs. Yatco, 87 Phil. 271, We denied the writ prayed for and held that "while strictly
and legally speaking the petition may be granted, we may, before acting thereon, inquire into the
facts involved in order to determine whether once the writ is granted and the case is brought up
here on appeal the appellant has any chance, even possibility, of having the basic decision of the
trial court set aside or modified; for if the appellant has not that prospect or likelihood then the
granting of the writ and the consequent appeal would be futile and would mean only a waste of
time to the parties and to this Court."
The material facts, as found by respondent court in its decision, are as follows: Private
respondents here, plaintiffs below, were passengers on petitioner's bus, the driver of which was
Jose Anastacio. In Bayombong, Nueva Vizcaya, Anastacio stopped the bus and got off to replace
a defective spark plug. While he was thus engaged, one Dionisio Abello, an auditor assigned to
defendant company by the General Auditing Office, took the wheel and told the driver to sit
somewhere else. With Abello driving, the bus proceeded on its way, from time to time stopping to
pick up passengers. Anastacio tried twice to take the wheel back but Abello would not relinquish
it. Then, in the language of the trial court, "while the bus was negotiating between Km. posts 328
and 329 (in Isabela) a freight truck ... driven by Marcial Nocum ... bound for Manila, was also
negotiating the same place; when these two vehicles were about to meet at the bend of the road
Marcial Nocum, in trying to evade several holes on the right lane, where his truck was running,
swerved his truck towards the middle part of the road and in so doing, the left front fender and left
side of the freight truck smashed the left side of the bus resulting in extensive damages to the
body of the bus and injuries to seventeen of its passengers, ... including the plaintiffs herein."
In rejecting petitioner's contention that the negligence of Marcial Nocum could not be imputed to it
and relieved it from liability, the trial court found that Dionisio Abello "was likewise reckless when
he was driving the bus at the rate of from 40 to 50 kilometers per hour on a bumpy road at the
moment of the collision."
Another defense put up by petitioner is that since Abello was not its employee it should not be
held responsible for his acts. This defense was correctly overruled by the trial court, considering
the provisions of Article 1763 of the Civil Code and section 48 (b) of the Motor Vehicle Law, which
respectively provide as follows:
Art. 1763. A common carrier is responsible for injuries suffered by a passenger on
account of the wilfull 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.
Sec. 48(b). No professional chauffeur shall permit any unlicensed person to drive the
motor vehicle under his control, or permit a person, sitting beside him or in any other part
of the car, to interfere with him in the operation of the motor vehicle, by allowing said
person to take hold of the steering wheel, or in any other manner take part in the
manipulation or control of the car.
It appears further, and so the trial court found, that there were negotiations between the parties to
compromise the case, as a result of which respondents herein, plaintiffs below, considerably
reduced their claims to the amounts subsequently awarded in the judgment; that petitioner had in
fact settled the claims of the other passengers who were also injured in the same accident and
even the claim for damages filed in another action by the owner of the freight truck; and that the
Government Corporate Counsel himself, who represents herein petitioner, rendered two separate
opinions (Op. No. 86, May 19, 1960; and Op. No. 99, series of 1961) wherein, after analyzing the
facts and the law applicable, he reached the conclusion that the acts of the bus personnel,
particularly "in allowing Mr. Abello to drive despite two occasions when the bus stopped and the
regular driver could have taken over, constitute reckless imprudence and wanton injurious
conduct on the part of the MRR employees." On the basis of those opinions the Government
Corporate Counsel advised petitioner that the offer of the claimants was reasonable and should
be accepted. His advice, however, was not favorably acted upon, petitioner obviously preferring
to litigate.
The issues proposed to be taken up on appeal, as set forth in the petition, are whether or not
Dionisio Abello acted with reckless negligence while driving petitioner's bus at the time of the
accident, and whether or not petitioner may be held liable on account of such negligence,
considering that he was not its employee. These are no longer justiciable questions which would
justify our issuing the peremptory writ prayed for. The first is a question of fact on which the
affirmative finding of respondent court is not reviewable by Us; and the second is one as to which
there can be no possible doubt in view of the provisions of the Civil Code and of the Motor
Vehicle Law hereinbefore cited. There would be no point in giving the appeal due course.
The writ prayed for is denied, with costs against petitioner.
Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Dizon, Regala, Bengzon,
J.P., and Sanchez, JJ., concur.






















G.R. No. L-28692 July 30, 1982
CONRADA VDA. DE ABETO, CARME0000LO ABETO, CECILIA ABETO, CONCEPCION
ABETO, MARIA ABETO, ESTELA ABETO, PERLA ABETO, PATRIA ABETO and ALBERTO
ABETO, plaintiffs-appellees,
vs.
PHILIPPINE AIR LINES, INCORPORATED, defendant-appellant.
Quijano, Arroyo & Padilla Law Offices for plaintiffs-appellees.
Siguion Reyna, Montecillo & Ongsiako, Belo and Associates for defendant-appellant.

RELOVA, J ..
Appeal from the decision of the Court of First Instance of Iloilo finding that defendant-appellant
"did not exercise extraordinary diligence or prudence as far as human foresight can provide ... but
on the contrary showed negligence and indifference for the safety of the passengers that it was
bound to transport, " and for the death of Judge Quirico Abeto, defendant- appellant was
ordered to pay plaintiffs, the heirs of Judge Abeto, the following:
1st For the death of Judge Quirico Abeto, the amount of P6,000.00;
2nd For the loss of his earning capacity, for 4.75 (4 ) years at the rate of
P7,200.00 per annum in the amount of P34,200.00;
3rd For moral damages in favor of the plaintiffs in the sum of P10,000.00;
4th For actual damages in the sum of P2,000.00 minus P400.00 received
under Voucher Exhibit 'H' the amount of Pl,600.00;
5th For attorney's fees, the sum of P6,000.00 and/or the total sum of
P57,800.00 and; To pay the costs of this proceedings.
Plaintiff's evidence shows that about 5:30 in the afternoon of November 23, 1960, Judge Quirico
Abeto, with the necessary tickets, boarded the Philippine Air Lines' PI-C133 plane at the
Mandurriao Airport, Iloilo City for Manila. He was listed as the No. 18 passenger in its Load
Manifest (Exhibit A). The plane which would then take two hours from Iloilo to Manila did not
reach its destination and the next day there was news that the plane was missing. After three
weeks, it was ascertained that the plane crashed at Mt. Baco, Province of Mindoro. All the
passengers, including Judge Abeto, must have been killed instantly and their remains were
scattered all over the area. Among the articles recovered on the site of the crash was a leather
bag with the name "Judge Quirico Abeto. " (Exhibit C.)
Judge Abeto, prior to the plane crash, was a Technical Assistant in the Office of the President
receiving an annual compensation of P7,200.00; and before that, has held the various positions in
the government, namely: Municipal President of Iloilo; Provincial Fiscal of Antique, Negros
Occidental and Cebu; Judge of the Court of First Instance of Manila, and Secretary of Justice. He
was in good health before the incident even if he was already 79 years old at that time.
Plaintiff-appellee Conrada Vda. de Abeto was appointed administratrix of the estate of Judge
Abeto. The other plaintiffs-appellees are the children of the deceased. When they received the
news of the plane crash, Mrs. Abeto was shocked and until it was ascertained that the plane had
crashed three weeks after, she could not sleep and eat. She felt sick and was miserable after
that. The members of the family also suffered.
Personal belongings which were lost amounted to P300.00. Burial expenses of the late judge was
P1,700.00.
When defendant-appellant would not hear demands for settlement of damages, plaintiffs-
appellees were compelled to hire counsel for the institution and prosecution of this case.
Defendant-appellant tried to prove that the plane crash at Mt. Baco was beyond the control of the
pilot. The plane at the time of the crash was airworthy for the purpose of conveying passengers
across the country as shown by the certificate of airworthiness issued by the Civil Aeronautics
Administration (CAA). There was navigational error but no negligence or malfeasance on the part
of the pilot. The plane had undergone 1,822 pre- flight checks, 364 thorough checks, 957
terminating checks and 501 after maintenance checks. These checks were part of the quality
control operation of defendant airline Further, deviation from its prescribed route was due to the
bad weather conditions between Mt. Baco and Romblon and strong winds which caused the
plane to drift to Mt. Baco. Under the circumstances, appellant argues that the crash was a
fortuitous event and, therefore, defendant-appellant cannot be held liable under the provisions of
Article 1174 of the New Civil Code. Besides, appellant tried to prove that it had exercised all the
cares, skill and diligence required by law on that particular flight in question.
The trial court, finding for the plaintiffs, said:
The Court after a thorough perusal of the evidences, testimonial and
documentaries submitted by both parties has come into the conclusion that the
evidence introduced by the plaintiffs have established the following significant
facts which proved the negligence of the defendant's pilot of the plane on that
flight- in question.
1st That the Pilot of the plane disobeyed instruction given in not following the
route of Amber 1 prescribed by the CAA in Violation of Standard Regulation.
Second The defendant failed to perform the pre-flight test on plane PIC-133
before the same took off from Mandurriao Airport to Manila in order to find out a
possible defect of the plane.
Third When the defendant allowed during the flight in question, student Officer
Rodriguez on training as proved when his body was found on the plane's cockpit
with its microphone hanging still on his left leg.
Fourth When the Pilot during the flight in question failed or did not report his
position over or abeam Romblon which is a compulsory reporting point.
These facts as established by the evidence of the plaintiff lead to the inevitable
conclusion that the defendant did not exercise extraordinary diligence or
prudence as far as human foresight can provide imposed upon by the Law, but
on the contrary showed negligence and indifference for the safety of the
passengers that it was bound to transport. By the very evidence of the defendant,
as shown by the deposition of one Jose Abanilla, dated December 13, 1963,
Section Chief of the Actuarial Department of the Insular Life Insurance Company
regarding life expectancy through American experience, the late Judge Abeto at
the age of 79 would still live or have a life expectancy of 4.75 years.
Appealing to this Court, defendant claimed that the trial court erred:
I
... in finding, contrary to the evidence, that the appellant was negligent;
III
... in not finding that the appellant, in the conduct and operation of PI-C133,
exercised its statutory obligation over the passengers of PI C133 of extraordinary
diligence 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 and
in not finding that the crash of PI-C133 was caused by fortuitous events;
... in awarding damages to the appellees; and
IV
... in not finding that appellant acted in good faith and exerted efforts to minimize
damages.
The issue before Us in this appeal is whether or not the defendant is liable for violation of its
contract of carriage.
The provisions of the Civil Code on this question of liability are clear and explicit. Article 1733
binds common carriers, "from the nature of their business and by reasons of public policy, ... to
observe extraordinary diligence in the vigilance ... for the safety of the passengers transported by
them according to all the circumstances of each case." Article 1755 establishes the standard of
care required of a common carrier, which is, "to carry the passengers safely as far as human care
and foresight can provide, using the utmost diligence of very cautious persons, with due regard
for all the circumstances." Article 1756 fixes the burden of proof by providing that "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 extra-ordinary diligence as
prescribed in Articles 1733 and 1755." Lastly, Article 1757 states that "the responsibility of a
common carrier for the safety of passengers ... cannot be dispensed with or lessened by
stipulation, by the posting of notices, by statements on tickets, or otherwise."
The prescribed airway of plane PI-C133 that afternoon of November 23, 1960, with Capt. de
Mesa, as the pilot, was Iloilo-Romblon-Manila, denominated as airway "Amber l," and the
prescribed elevation of the flight was 6,000 ft. The fact is, the plane did not take the designated
route because it was some 30 miles to the west when it crashed at Mt. Baco. According to
defendant's witness, Ramon A. Pedroza, Administrative Assistant of the Philippine Air Lines, Inc.,
this tragic crash would have not happened had the pilot continued on the route indicated.
Hereunder is Mr. Pedroza's testimony on this point:
Q Had the pilot continued on the route indicated, Amber A-1
there would have been no crash, obviously?
A Yes, Your Honor
ATTY. HILADO:
(To the witness)
Q Because Mt. Baco is 30 miles from Amber I?
A Yes,sir.(TSN,p.75,Oct.22,1963 hearing)
xxx xxx xxx
And, Assistant Director Cesar Mijares of the Civil Aeronautics Administration testified that the pilot
of said plane was "off course."
Q But the fact is that you found him out, that he was off course?
A Yes, sir.
Q And off course, you mean that he did not follow the route
prescribed for him?
A Yes, sir.
Q And the route for him to follow was Amber A-l?
A Yes, sir.
Q And the route for Iloilo direct to Manila, is passing Romblon to
Manila?
A Yes, passing Romblon to Manila.
Q And you found that he was not at all following the route to
Romblon to Manila?
A Yes, sir.
Q You know Mr. Witness that a disregard or, violation, or
disregard of instruction is punishable by law?
A Yes,sir. (TSN,pp.247-248,Dec. 20, 1963)
xxx xxx xxx
It is clear that the pilot did not follow the designated route for his flight between
Romblon and Manila. The weather was clear and he was supposed to cross
airway "Amber I" over Romblon; instead, he made a straight flight to Manila in
violation of air traffic rules.
At any rate, in the absence of a satisfactory explanation by appellant as to how the accident
occurred, the presumption is, it is at fault.
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 (Art. 1756, New
Civil Code). This is an exception to the general rule that negligence must be
proved. (Batangas Transportation Company vs. Caguimbal, 22 SCRA 171.)
The total of the different items which the lower court adjudged herein appellant to pay the
plaintiffs is P57,800.00. The judgment of the court a quo is modified in the sense that the
defendant is hereby ordered to pay the said amount to the plaintiffs, with legal interest thereon
from the finality of this judgment. With costs against defendant-appellant.
Teehankee (Chairman), Makasiar, Melencio-Herrera, Plana and Vasquez, JJ., concur.
Gutierrez, Jr., J., is on leave.









































FIRST DIVISION

[G.R. No. L-62961. September 2, 1983.]

PHILIPPINE AIRLINES, INC. and CAPT. JAIME H. MANZANO, Petitioners, v. NATIONAL
LABOR RELATIONS COMMISSION and SALVADOR GEMPIS, Respondents.

Blanco, Siapno, Lorredo & Associates, for Petitioners.

Felipe P. Fuentes, Jr. for Private Respondent.


SYLLABUS


1. LABOR LAWS; EMPLOYER EMPLOYEE RELATIONSHIP; APPLICATION FOR CLEARANCE
TO TERMINATE EMPLOYMENT UPHELD IN THE CASE AT BAR. The business of petitioner
Philippine Airlines is such that whenever a passenger dies or is injured the presumption is, it is at
fault notwithstanding the fact that it has exercised due diligence of a good father of a family in the
selection and supervision of its employees. Thus, extraordinary measures and diligence should
be exercised by it for the safety of its passengers and their belongings. Needless to state, a pilot
must be sober all the time for he may be called upon to fly a plane even before his regular
scheduled hours, otherwise so many lives will be in danger if he is drunk. It would be unjust for an
employer like herein petitioner PAL to be compelled to continue with the employment of a person
whose continuance in the Service is obviously inimical to its interest.


D E C I S I O N


RELOVA, J .:


Philippine Airlines, Inc. (PAL) and Captain Jaime H. Manzano seek to annul the decision
promulgated by respondent National Labor Relations Commission, dated November 29, 1982,
affirming the decision of the Labor Arbiter Teodorico Dogelio in Case No. AB-11-9118-80
(NCRSTF-11-6503-80) entitled "Salvador Gempis v. Philippine Airlines, Et Al.," as
follows:jgc:chanrobles.com.ph

"WHEREFORE, responsive to the foregoing consideration, judgment is hereby
rendered:chanrob1es virtual 1aw library

a) Denying respondents application for clearance to terminate complainants services; the
penalty of six (6)months demotion being enough to appear in complainants employment file; and

b) Ordering respondent to effect immediate reinstatement of complainant to his position as YS-11
Captain, with back wages for a period of six (6) months corresponding to said position."cralaw
virtua1aw library

Records show that on November 3, 1980, private respondent, Salvador Gempis, a YS-11 pilot of
PAL with the rank of captain, filed with the Ministry of Labor, National Capital Region, a complaint
against PAL for illegal suspension and dismissal. The next day, November 4, 1980, PAL filed with
the same office an application for clearance to terminate the employment of Gempis on the
grounds of (1) serious misconduct and (2) violation of the liquor ban and company policies.

The charge of petitioners against Gempis was "serious misconduct (abuse of authority)" for
forcing First Officers A. Barcebal and J. Ranches to drink on February 27, 1980, at 10:30 in the
evening at the coffee shop of the Triton Hotel at Cebu, six (6) bottles of beer each, within thirty
minutes. Unable to consume the bottles of beer within the time limit set by private respondent
Salvador Gempis, the two pilots were ordered to stand erect and were hit on the stomach by
private Respondent. The petition alleged that "the incident occurred with the full knowledge of
private respondent that the two (2) affected co-pilots have flight duties the next day with initial
assignments as early as 0710 H (7:10 a.m.) and as late as 1200H (12:00 p.m.)." (pp. 4-5,
Rollo)chanrobles.com.ph : virtual law library

We quote the decision of respondent National Labor Relations Commission (NLRC) which based
its finding on the decision of the labor arbiter as follows:jgc:chanrobles.com.ph

"Under the foregoing circumstances, the specific issue for resolution is whether or not the
complainant Salvador Gempis is being dismissed for a just and valid cause.

"We find the decision of the Committee on appeal which recommended the termination which is
an increase in the original penalty of demotion in rank and pay of complainant, unjustified and
oppressive if not void, for being violative of Sec. XIII Part B 2(b) requiring a unanimous vote of all
three (3) members thereof. To impose the penalty of dismissal for violation of the liquor ban which
is applicable to all pilots of Company, the Committee should have likewise recommended the
investigation of all personnel involved in the drinking session on 27 February 1980. While this
alleged offense forms part or is related to the original one (abuse of authority), the committee, in
justice to the complainant should have remanded the case to the investigating Committee so as
to include the more serious offense considering that the earlier investigation dealt mainly on
complainants alleged gross misconduct committed against his subordinates.

"Moreover, we do not clearly see that the presence of a complainant posed a serious and
imminent threat to the property of respondent firm in order to justify the preventive suspension
imposed upon the former effective November 1, 1980 when it applied for clearance to terminate
the petitioners services.

"Nevertheless, we find every piece of evidence on record to be more in support that complainant
did commit abuse of authority amounting to gross misconduct when he forced F/Os A. Barcebal
and J. Ranches to each consume three (3) bottles of beer within thirty (30) minutes and when
they failed, they were ordered to stand erect and boxed on their stomachs, at about 8:30 P.M. on
27, February 1980.

"It is highly improbable that with such a report containing a charge of a more or less serious
incident, would be reaching management, though belatedly, if the same did not occur. We see no
reason for management, much less its officers, to concoct such an incident if only to harass
complainant when no reasonable basis therefor existed. The records do not show the
complainant is involved in any previous incident incurring managements ire or disfavor or of
having participated in any labor dispute or activities as a member (sic) of the ALPAP, as a basis
for such harassment.

"Finally, there was the investigation conducted by the investigating Committee, the constitution of
and procedure in which was never questioned before hand. As it appears, the investigation was
conducted in a most impartial and regular manner wherein complainant was given the opportunity
to explain his side, examine reports and confront witnesses. We see no impartiality in the conduct
of hearing . . .

"While we agree with the finding of the Labor Arbiter that the complainant did commit abuse of
authority amounting to gross misconduct when he forced F/Os A. Barcebal and J. Ranches to
each consume three (3) bottles of beer within thirty (30) minutes and when they failed, they were
ordered to stand erect and boxed on their stomachs, we find that the penalty of demotion for a
period of six (6) months at the most which the Labor Arbiter imposed is the commensurate and
equitable penalty." (pp. 23-25, Rollo)

On the basis of the above findings of facts by respondent NLRC, We fully agree with the position
of herein petitioner that

" [I]t would be grossly unfair to order petitioners to reinstate him back to his work as pilot. The
nature of employment of herein private respondent necessitates that he should not violate the
liquor ban as provided for in the Basic Operations Manual in order to protect not only the interest
of the company but the public as well. Private respondent is a risk and liability rather than an
asset to petitioner PAL.

". . . The private respondent and those persons he abused (F/Os A. Barcebal and J. Ranches)
are pilots. The foremost consideration called for by their position as pilots is the safety of the
passengers. This is so because the duties of a pilot consist of handling controls of the aircraft and
to ensure that the flight is conducted safely and economically . . .
x x x


". . . The respondent Commission committed a grave abuse of discretion amounting to lack of
jurisdiction in not imposing the appropriate penalty of dismissal as called for not only by company
regulations (BOM) but also by the CAA, when as borne by its own (NLRC) findings, private
respondent did commit the offense complained of. Under these facts, clearance to terminate
should have been given for the dismissal of private Respondent." (pp. 15-19, Rollo)

The business of petitioner Philippine Airlines is such that whenever a passenger dies or is injured
the presumption is, it is at fault notwithstanding the fact that it has exercised due diligence of a
good father of a family in the selection and supervision of its employees. Thus, extraordinary
measures and diligence should be exercised by it for the safety of its passengers and their
belongings. Needless to state, a pilot must be sober all the time for he may be called upon to fly a
plane even before his regular scheduled hours, otherwise so many lives will be in danger if he is
drunk. It would be unjust for an employer like herein petitioner PAL to be compelled to continue
with the employment of a person whose continuance in the service is obviously inimical to its
interests.chanrobles virtual lawlibrary

ACCORDINGLY, the decision of respondent National Labor Relations Commission dated
November 29, 1982, is SET ASIDE and petitioners application for clearance to terminate private
respondent Salvador Gempis from employment is hereby APPROVED.

SO ORDERED.

Teehankee (Chairman), Melencio-Herrera, Plana, Vasquez and Gutierrez, Jr., JJ., concur.






G.R. No. 52159 December 22, 1989
JOSE PILAPIL, petitioner,
vs.
HON. COURT OF APPEALS and ALATCO TRANSPORTATION COMPANY,
INC., respondents.
Martin Badong, Jr. for petitioner.
Eufronio K. Maristela for private respondent.

PADILLA, J .:
This is a petition to review on certiorari the decision* rendered by the Court of Appeals dated 19
October 1979 in CA-G.R. No. 57354-R entitled "Jose Pilapil, plaintiff-appellee versus Alatco
Transportation Co., Inc., defendant-appellant," which reversed and set aside the judgment of the
Court of First Instance of Camarines Sur in Civil Case No. 7230 ordering respondent
transportation company to pay to petitioner damages in the total sum of sixteen thousand three
hundred pesos (P 16,300.00).
The record discloses the following facts:
Petitioner-plaintiff Jose Pilapil, a paying passenger, boarded respondent-defendant's bus bearing
No. 409 at San Nicolas, Iriga City on 16 September 1971 at about 6:00 P.M. While said bus No.
409 was in due course negotiating the distance between Iriga City and Naga City, upon reaching
the vicinity of the cemetery of the Municipality of Baao, Camarines Sur, on the way to Naga City,
an unidentified man, a bystander along said national highway, hurled a stone at the left side of
the bus, which hit petitioner above his left eye. Private respondent's personnel lost no time in
bringing the petitioner to the provincial hospital in Naga City where he was confined and treated.
Considering that the sight of his left eye was impaired, petitioner was taken to Dr. Malabanan of
Iriga City where he was treated for another week. Since there was no improvement in his left
eye's vision, petitioner went to V. Luna Hospital, Quezon City where he was treated by Dr.
Capulong. Despite the treatment accorded to him by Dr. Capulong, petitioner lost partially his left
eye's vision and sustained a permanent scar above the left eye.
Thereupon, petitioner instituted before the Court of First Instance of Camarines Sur, Branch I an
action for recovery of damages sustained as a result of the stone-throwing incident. After trial, the
court a quo rendered judgment with the following dispositive part:
Wherefore, judgment is hereby entered:
1. Ordering defendant transportation company to pay plaintiff
Jose Pilapil the sum of P 10,000.00, Philippine Currency,
representing actual and material damages for causing a
permanent scar on the face and injuring the eye-sight of the
plaintiff;
2. Ordering further defendant transportation company to pay the
sum of P 5,000.00, Philippine Currency, to the plaintiff as moral
and exemplary damages;
3. Ordering furthermore, defendant transportation company to
reimburse plaintiff the sum of P 300.00 for his medical expenses
and attorney's fees in the sum of P 1,000.00, Philippine
Currency; and
4. To pay the costs.
SO ORDERED
1

From the judgment, private respondent appealed to the Court of Appeals where the appeal was
docketed as CA-G.R. No. 57354R. On 19 October 1979, the Court of Appeals, in a Special
Division of Five, rendered judgment reversing and setting aside the judgment of the court a quo.
Hence the present petition.
In seeking a reversal of the decision of the Court of Appeals, petitioner contends that said court
has decided the issue not in accord with law. Specifically, petitioner argues that the nature of the
business of a transportation company requires the assumption of certain risks, and the stoning of
the bus by a stranger resulting in injury to petitioner-passenger is one such risk from which the
common carrier may not exempt itself from liability.
We do not agree.
In consideration of the right granted to it by the public to engage in the business of transporting
passengers and goods, a common carrier does not give its consent to become an insurer of any
and all risks to passengers and goods. It merely undertakes to perform certain duties to the public
as the law imposes, and holds itself liable for any breach thereof.
Under Article 1733 of the Civil Code, common carriers are required to observe extraordinary
diligence for the safety of the passenger transported by them, according to all the circumstances
of each case. The requirement of extraordinary diligence imposed upon common carriers is
restated in Article 1755: "A common carrier is bound to carry the passengers safely as far as
human care and foresight can provide, using the utmost diligence of very cautious persons, with
due regard for all the circumstances." Further, in case of death of or injuries to passengers, the
law presumes said common carriers to be at fault or to have acted negligently.
2

While the law requires the highest degree of diligence from common carriers in the safe transport
of their passengers and creates a presumption of negligence against them, it does not, however,
make the carrier an insurer of the absolute safety of its passengers.
3

Article 1755 of the Civil Code qualifies the duty of extraordinary care, vigilance and precaution in
the carriage of passengers by common carriers to only such as human care and foresight can
provide. what constitutes compliance with said duty is adjudged with due regard to all the
circumstances.
Article 1756 of the Civil Code, in creating a presumption of fault or negligence on the part of the
common carrier when its passenger is injured, merely relieves the latter, for the time being, from
introducing evidence to fasten the negligence on the former, because the presumption stands in
the place of evidence. Being a mere presumption, however, the same is rebuttable by proof that
the common carrier had exercised extraordinary diligence as required by law in the performance
of its contractual obligation, or that the injury suffered by the passenger was solely due to a
fortuitous event.
4

In fine, we can only infer from the law the intention of the Code Commission and Congress to
curb the recklessness of drivers and operators of common carriers in the conduct of their
business.
Thus, it is clear that neither the law nor the nature of the business of a transportation company
makes it an insurer of the passenger's safety, but that its liability for personal injuries sustained by
its passenger rests upon its negligence, its failure to exercise the degree of diligence that the law
requires.
5

Petitioner contends that respondent common carrier failed to rebut the presumption of negligence
against it by proof on its part that it exercised extraordinary diligence for the safety of its
passengers.
We do not agree.
First, as stated earlier, the presumption of fault or negligence against the carrier is only a
disputable presumption. It gives in where contrary facts are established proving either that the
carrier had exercised the degree of diligence required by law or the injury suffered by the
passenger was due to a fortuitous event. Where, as in the instant case, the injury sustained by
the petitioner was in no way due to any defect in the means of transport or in the method of
transporting or to the negligent or willful acts of private respondent's employees, and therefore
involving no issue of negligence in its duty to provide safe and suitable cars as well as competent
employees, with the injury arising wholly from causes created by strangers over which the carrier
had no control or even knowledge or could not have prevented, the presumption is rebutted and
the carrier is not and ought not to be held liable. To rule otherwise would make the common
carrier the insurer of the absolute safety of its passengers which is not the intention of the
lawmakers.
Second, while as a general rule, common carriers are bound to exercise extraordinary diligence
in the safe transport of their passengers, it would seem that this is not the standard by which its
liability is to be determined when intervening acts of strangers is to be determined directly cause
the injury, while the contract of carriage Article 1763 governs:
Article 1763. A common carrier is responsible for injuries suffered by a
passenger on account of the wilful acts or negligence of other passengers or of
strangers, if the common carrier's employees through the exercise of the
diligence of a good father of a family could have prevented or stopped the act or
omission.
Clearly under the above provision, a tort committed by a stranger which causes injury to a
passenger does not accord the latter a cause of action against the carrier. The negligence for
which a common carrier is held responsible is the negligent omission by the carrier's employees
to prevent the tort from being committed when the same could have been foreseen and
prevented by them. Further, under the same provision, it is to be noted that when the violation of
the contract is due to the willful acts of strangers, as in the instant case, the degree of care
essential to be exercised by the common carrier for the protection of its passenger is only that of
a good father of a family.
Petitioner has charged respondent carrier of negligence on the ground that the injury complained
of could have been prevented by the common carrier if something like mesh-work grills had
covered the windows of its bus.
We do not agree.
Although the suggested precaution could have prevented the injury complained of, the rule of
ordinary care and prudence is not so exacting as to require one charged with its exercise to take
doubtful or unreasonable precautions to guard against unlawful acts of strangers. The carrier is
not charged with the duty of providing or maintaining vehicles as to absolutely prevent any and all
injuries to passengers. Where the carrier uses cars of the most approved type, in general use by
others engaged in the same occupation, and exercises a high degree of care in maintaining them
in suitable condition, the carrier cannot be charged with negligence in this respect.
6

Finally, petitioner contends that it is to the greater interest of the State if a carrier were made
liable for such stone-throwing incidents rather than have the bus riding public lose confidence in
the transportation system.
Sad to say, we are not in a position to so hold; such a policy would be better left to the
consideration of Congress which is empowered to enact laws to protect the public from the
increasing risks and dangers of lawlessness in society.
WHEREFORE, the judgment appealed from is hereby AFFIRMED.
SO ORDERED.
Melencio-Herrera (Chairperson), Sarmiento and Regalado, concur.
Paras, J., took no part.














G.R. No. L-55300 March 15, 1990
FRANKLIN G. GACAL and CORAZON M. GACAL, the latter assisted by her husband,
FRANKLIN G. GACAL,petitioners,
vs.
PHILIPPINE AIR LINES, INC., and THE HONORABLE PEDRO SAMSON C. ANIMAS, in his
capacity as PRESIDING JUDGE of the COURT OF FIRST INSTANCE OF SOUTH
COTABATO, BRANCH I, respondents.
Vicente A. Mirabueno for petitioners.
Siguion Reyna, Montecillo & Ongsiako for private respondent.

PARAS, J .:
This is a, petition for review on certiorari of the decision of the Court of First Instance of South
Cotabato, Branch 1, *promulgated on August 26, 1980 dismissing three (3) consolidated cases
for damages: Civil Case No. 1701, Civil Case No. 1773 and Civil Case No. 1797 (Rollo, p. 35).
The facts, as found by respondent court, are as follows:
Plaintiffs Franklin G. Gacal and his wife, Corazon M. Gacal, Bonifacio S. Anislag
and his wife, Mansueta L. Anislag, and the late Elma de Guzman, were then
passengers boarding defendant's BAC 1-11 at Davao Airport for a flight to
Manila, not knowing that on the same flight, Macalinog, Taurac Pendatum known
as Commander Zapata, Nasser Omar, Liling Pusuan Radia, Dimantong
Dimarosing and Mike Randa, all of Marawi City and members of the Moro
National Liberation Front (MNLF), were their co-passengers, three (3) armed with
grenades, two (2) with .45 caliber pistols, and one with a .22 caliber pistol. Ten
(10) minutes after take off at about 2:30 in the afternoon, the hijackers
brandishing their respective firearms announced the hijacking of the aircraft and
directed its pilot to fly to Libya. With the pilot explaining to them especially to its
leader, Commander Zapata, of the inherent fuel limitations of the plane and that
they are not rated for international flights, the hijackers directed the pilot to fly to
Sabah. With the same explanation, they relented and directed the aircraft to land
at Zamboanga Airport, Zamboanga City for refueling. The aircraft landed at 3:00
o'clock in the afternoon of May 21, 1976 at Zamboanga Airport. When the plane
began to taxi at the runway, it was met by two armored cars of the military with
machine guns pointed at the plane, and it stopped there. The rebels thru its
commander demanded that a DC-aircraft take them to Libya with the President of
the defendant company as hostage and that they be given $375,000 and six (6)
armalites, otherwise they will blow up the plane if their demands will not be met
by the government and Philippine Air Lines. Meanwhile, the passengers were not
served any food nor water and it was only on May 23, a Sunday, at about 1:00
o'clock in the afternoon that they were served 1/4 slice of a sandwich and 1/10
cup of PAL water. After that, relatives of the hijackers were allowed to board the
plane but immediately after they alighted therefrom, an armored car bumped the
stairs. That commenced the battle between the military and the hijackers which
led ultimately to the liberation of the surviving crew and the passengers, with the
final score of ten (10) passengers and three (3) hijackers dead on the spot and
three (3) hijackers captured.
City Fiscal Franklin G. Gacal was unhurt. Mrs. Corazon M. Gacal suffered
injuries in the course of her jumping out of the plane when it was peppered with
bullets by the army and after two (2) hand grenades exploded inside the plane.
She was hospitalized at General Santos Doctors Hospital, General Santos City,
for two (2) days, spending P245.60 for hospital and medical expenses, Assistant
City Fiscal Bonifacio S. Anislag also escaped unhurt but Mrs. Anislag suffered a
fracture at the radial bone of her left elbow for which she was hospitalized and
operated on at the San Pedro Hospital, Davao City, and therefore, at Davao
Regional Hospital, Davao City, spending P4,500.00. Elma de Guzman died
because of that battle. Hence, the action of damages instituted by the plaintiffs
demanding the following damages, to wit:
Civil Case No. 1701
City Fiscal Franklin G. Gacal and Mrs. Corazon M. Gacal
actual damages: P245.60 for hospital and medical expenses of
Mrs Gacal; P8,995.00 for their personal belongings which were
lost and not recovered; P50,000.00 each for moral damages;
and P5,000.00 for attorney's fees, apart from the prayer for an
award of exemplary damages (Record, pp. 4-6, Civil Case No.
1701).
Civil Case No. 1773
xxx xxx xxx
Civil Case No. 1797
xxx xxx xxx
The trial court, on August 26, 1980, dismissed the complaints finding that all the damages
sustained in the premises were attributed to force majeure.
On September 12, 1980 the spouses Franklin G. Gacal and Corazon M. Gacal, plaintiffs in Civil
Case No. 1701, filed a notice of appeal with the lower court on pure questions of law (Rollo, p.
55) and the petition for review oncertiorari was filed with this Court on October 20, 1980 (Rollo, p.
30).
The Court gave due course to the petition (Rollo, p. 147) and both parties filed their respective
briefs but petitioner failed to file reply brief which was noted by the Court in the resolution dated
May 3, 1982 (Rollo, p. 183).
Petitioners alleged that the main cause of the unfortunate incident is the gross, wanton and
inexcusable negligence of respondent Airline personnel in their failure to frisk the passengers
adequately in order to discover hidden weapons in the bodies of the six (6) hijackers. They
claimed that despite the prevalence of skyjacking, PAL did not use a metal detector which is the
most effective means of discovering potential skyjackers among the passengers (Rollo, pp. 6-7).
Respondent Airline averred that in the performance of its obligation to safely transport
passengers as far as human care and foresight can provide, it has exercised the utmost diligence
of a very cautious person with due regard to all circumstances, but the security checks and
measures and surveillance precautions in all flights, including the inspection of baggages and
cargo and frisking of passengers at the Davao Airport were performed and rendered solely by
military personnel who under appropriate authority had assumed exclusive jurisdiction over the
same in all airports in the Philippines.
Similarly, the negotiations with the hijackers were a purely government matter and a military
operation, handled by and subject to the absolute and exclusive jurisdiction of the military
authorities. Hence, it concluded that the accident that befell RP-C1161 was caused by fortuitous
event, force majeure and other causes beyond the control of the respondent Airline.
The determinative issue in this case is whether or not hijacking or air piracy during martial law
and under the circumstances obtaining herein, is a caso fortuito or force majeure which would
exempt an aircraft from payment of damages to its passengers whose lives were put in jeopardy
and whose personal belongings were lost during the incident.
Under the Civil Code, common carriers are required to exercise extraordinary diligence in their
vigilance over the goods and for the safety of passengers transported by them, according to all
the circumstances of each case (Article 1733). They are presumed at fault or to have acted
negligently whenever a passenger dies or is injured (Philippine Airlines, Inc. v. National Labor
Relations Commission, 124 SCRA 583 [1983]) or for the loss, destruction or deterioration of
goods in cases other than those enumerated in Article 1734 of the Civil Code (Eastern Shipping
Lines, Inc. v. Intermediate Appellate Court, 150 SCRA 463 [1987]).
The source of a common carrier's legal liability is the contract of carriage, and by entering into
said contract, it binds itself to carry the passengers safely as far as human care and foresight can
provide. There is breach of this obligation if it fails to exert extraordinary diligence according to all
the circumstances of the case in exercise of the utmost diligence of a very cautious person (Isaac
v. Ammen Transportation Co., 101 Phil. 1046 [1957]; Juntilla v. Fontanar, 136 SCRA 624 [1985]).
It is the duty of a common carrier to overcome the presumption of negligence (Philippine National
Railways v. Court of Appeals, 139 SCRA 87 [1985]) and it must be shown that the carrier had
observed the required extraordinary diligence of a very cautious person as far as human care and
foresight can provide or that the accident was caused by a fortuitous event (Estrada v.
Consolacion, 71 SCRA 523 [1976]). Thus, as ruled by this Court, no person shall be responsible
for those "events which could not be foreseen or which though foreseen were inevitable. (Article
1174, Civil Code). The term is synonymous with caso fortuito (Lasam v. Smith, 45 Phil. 657
[1924]) which is of the same sense as "force majeure" (Words and Phrases Permanent Edition,
Vol. 17, p. 362).
In order to constitute a caso fortuito or force majeure that would exempt a person from liability
under Article 1174 of the Civil Code, it is necessary that the following elements must concur: (a)
the cause of the breach of the obligation must be independent of the human will (the will of the
debtor or the obligor); (b) the event must be either unforeseeable or unavoidable; (c) the event
must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner;
and (d) the debtor must be free from any participation in, or aggravation of the injury to the
creditor (Lasam v. Smith, 45 Phil. 657 [1924]; Austria v. Court of Appeals, 39 SCRA 527 [1971];
Estrada v. Consolacion, supra; Vasquez v. Court of Appeals, 138 SCRA 553 [1985]; Juan F.
Nakpil & Sons v. Court of Appeals, 144 SCRA 596 [1986]). Caso fortuito or force majeure, by
definition, are extraordinary events not foreseeable or avoidable, events that could not be
foreseen, or which, though foreseen, are inevitable. It is, therefore, not enough that the event
should not have been foreseen or anticipated, as is commonly believed, but it must be one
impossible to foresee or to avoid. The mere difficulty to foresee the happening is not impossibility
to foresee the same (Republic v. Luzon Stevedoring Corporation, 21 SCRA 279 [1967]).
Applying the above guidelines to the case at bar, the failure to transport petitioners safely from
Davao to Manila was due to the skyjacking incident staged by six (6) passengers of the same
plane, all members of the Moro National Liberation Front (MNLF), without any connection with
private respondent, hence, independent of the will of either the PAL or of its passengers.
Under normal circumstances, PAL might have foreseen the skyjacking incident which could have
been avoided had there been a more thorough frisking of passengers and inspection of baggages
as authorized by R.A. No. 6235. But the incident in question occurred during Martial Law where
there was a military take-over of airport security including the frisking of passengers and the
inspection of their luggage preparatory to boarding domestic and international flights. In fact
military take-over was specifically announced on October 20, 1973 by General Jose L. Rancudo,
Commanding General of the Philippine Air Force in a letter to Brig. Gen. Jesus Singson, then
Director of the Civil Aeronautics Administration (Rollo, pp. 71-72) later confirmed shortly before
the hijacking incident of May 21, 1976 by Letter of Instruction No. 399 issued on April 28, 1976
(Rollo, p. 72).
Otherwise stated, these events rendered it impossible for PAL to perform its obligations in a
nominal manner and obviously it cannot be faulted with negligence in the performance of duty
taken over by the Armed Forces of the Philippines to the exclusion of the former.
Finally, there is no dispute that the fourth element has also been satisfied. Consequently the
existence of force majeure has been established exempting respondent PAL from the payment of
damages to its passengers who suffered death or injuries in their persons and for loss of their
baggages.
PREMISES CONSIDERED, the petition is hereby DISMISSED for lack of merit and the decision
of the Court of First Instance of South Cotabato, Branch I is hereby AFFIRMED.
SO ORDERED.
Melencio-Herrera, Padilla, Sarmiento and Regalado, JJ., concur.











G.R. No. L-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.

NARVASA, J .:
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 Leoffler were among the 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 tum gave the same to 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 a hold-up and ordered the pilot not to send any SOS.
The hold-uppers divested 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 Leoffler was divested of a wrist watch, cash and a wallet
in the total 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 holduppers.
8. Upon landing at the Manila International Airport. 'Zaldy' and his three
companions succeeded in escaping.
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, 998, 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 majeure, 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.
Tamn 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 gems 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 behaviour 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 says,
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 behavioural 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 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 circumstance 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 proscribes,
10
but also because those 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, Grio-Aquino and Medialdea, JJ., concur.
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 and appellant.
MONTEMAYOR, J .:
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, sated to the right of
Bataclan, another passenger apparently from the Visayan Islands whom the witnesses just called
Visaya, apparently not knowing his name, seated in 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 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 torch made of bamboo with a
wick on one end, evidently fueled with petroleum. These men presumably approach 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 deemed passengers inside the bus were removed
and duly identified 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 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 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 extra ordinary 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 willful acts of the former's employees, although such employees may
have acted beyond the scope of their authority or in violation of the order 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 responsible for injuries suffered by a passenger on
account of the willful 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-zaging, 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 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 ordinary
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
under the circumstances obtaining in the same, we do not hesitate to hold that the proximate
cause 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 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;
and what was more natural than that said rescuers should innocently approach the vehicle to
extend the aid and effect the rescue requested from them. In other words, the coming of the men
with a 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 is driver and its
conductor. According to the witness, 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 directed 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 regard 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 for the loss of
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, because according to the fiscal, the witnesses on whose testimony he was banking to
support the complaint, either failed or appear or were reluctant to testify. But the record of the
case before us shows the several witnesses, passengers, in that bus, willingly and unhesitatingly
testified in court to the effect of 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 the attorney's fees, respectively, the decision appealed is from hereby affirmed, with
costs.
Paras, C. J., Bengzon, Padilla, Reyes, A., Bautista Angelo, Labrador, Concepcion, Reyes, J. B.
L., Endencia, and Felix, JJ., concur.






G.R. No. L-9907 June 30, 1958
LOURDES J. LARA, ET AL., plaintiffs-appellants,
vs.
BRIGIDO R. VALENCIA, defendant-appellant.
Castillo, Cervantes, Occea, Lozano, Montana, Cunanan, Sison and Castillo and Eligio G.
Lagman for defendant-appellant.
Donato C. Endriga and Emigdio Dakanay for plaintiffs-appellants.
BAUTISTA ANGELO, J .:
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 oath of Demetrio Lara, Sr. was due to the
negligence of defendant and the portion of the judgment which orders dependant 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 Lara of 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 cove red 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 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).
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 dias, en su ultimo dia Lara
no durmio toda la noche, al dia siguiente, Lara fue atacado de malaria, tenia inflamada la
cara y cuerpo, sufria dolores de cabeza con erupciones en la cara y cuerpo; que en la
manana, del dia 2 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.
x x x x x x x x x
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 enfermo de cierta gravedad, tenia el cuerpo y cara
inflamados, atacado de malaria, con dolores de cabeza y con erupciones en 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 pick-up; particularmente, para la salud de Lara;
el permitirlo, el demandado no ha tomado las precausiones, para evitar un posible
accidente fatal. La negative de Lara de ocupar el asiento delantero del pick-up no
constituye a juicio del Juzgado una defensa, pues el demendado conociendo el estado
delicado de salud de Lara, no debio de haber permitido que aquel regrese a Davao en su
pick-up; si querria prestar a aquel un favor, debio de haver provisto a Lara de un
automobil para su regrese a Davao, ya que el demendado es un millionario; si no podia
prestar a aquel este favor, debio de haver 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 therefore 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 accused by the fact that 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 the 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 occured 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 traveling 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 a 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.
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.
Paras, C. J., Bengzon, Reyes, A., Concepcion, Reyes, J. B. L., Endencia and Felix, JJ., concur.









































[G.R. No. 111127. July 26, 1996]
MR. & MRS. ENGRACIO FABRE, JR.
*
and PORFIRIO CABIL, petitioners, vs. COURT OF
APPEALS, THE WORD FOR THE WORLD CHRISTIAN FELLOWSHIP, INC.,
AMYLINE ANTONIO, JOHN RICHARDS, GONZALO GONZALES, VICENTE V. QUE,
JR., ICLI CORDOVA, ARLENE GOJOCCO, ALBERTO ROXAS CORDERO, RICHARD
BAUTISTA, JOCELYN GARCIA, YOLANDA CORDOVA, NOEL ROQUE, EDWARD
TAN, ERNESTO NARCISO, ENRIQUETA LOCSIN, FRANCIS NORMAN O. LOPEZ,
JULIUS CAESAR GARCIA, ROSARIO MA. V. ORTIZ, MARIETTA C. CLAVO, ELVIE
SENIEL, ROSARIO MARA-MARA, TERESITA REGALA, MELINDA TORRES,
MARELLA MIJARES, JOSEFA CABATINGAN, MARA NADOC, DIANE MAYO, TESS
PLATA, MAYETTE JOCSON, ARLENE Y. MORTIZ, LIZA MAYO, CARLOS RANARIO,
ROSAMARIA T. RADOC and BERNADETTE FERRER, respondents.
D E C I S I O N
MENDOZA, J .:
This is a petition for review on certiorari of the decision of the Court of Appeals
[1]
in CA-GR
No. 28245, dated September 30, 1992, which affirmed with modification the decision of the
Regional Trial Court of Makati, Branch 58, ordering petitioners jointly and severally to pay
damages to private respondent Amyline Antonio, and its resolution which denied petitioners
motion for reconsideration for lack of merit.
Petitioners Engracio Fabre, Jr. and his wife were owners of a 1982 model Mazda
minibus. They used the bus principally in connection with a bus service for school children which
they operated in Manila. The couple had a driver, Porfirio J. Cabil, whom they hired in 1981, after
trying him out for two weeks. His job was to take school children to and from the St. Scholasticas
College in Malate, Manila.
On November 2, 1984 private respondent Word for the World Christian Fellowship Inc.
(WWCF) arranged with petitioners for the transportation of 33 members of its Young Adults
Ministry from Manila to La Union and back in consideration of which private respondent paid
petitioners the amount of P3,000.00.
The group was scheduled to leave on November 2, 1984, at 5:00 oclock in the
afternoon. However, as several members of the party were late, the bus did not leave the
Tropical Hut at the corner of Ortigas Avenue and EDSA until 8:00 oclock in the
evening. Petitioner Porfirio Cabil drove the minibus.
The usual route to Caba, La Union was through Carmen, Pangasinan. However, the bridge
at Carmen was under repair, so that petitioner Cabil, who was unfamiliar with the area (it being
his first trip to La Union), was forced to take a detour through the town of Ba-ay in Lingayen,
Pangasinan. At 11:30 that night, petitioner Cabil came upon a sharp curve on the highway,
running on a south to east direction, which he described as siete. The road was slippery
because it was raining, causing the bus, which was running at the speed of 50 kilometers per
hour, to skid to the left road shoulder. The bus hit the left traffic steel brace and sign along the
road and rammed the fence of one Jesus Escano, then turned over and landed on its left side,
coming to a full stop only after a series of impacts. The bus came to rest off the road. A coconut
tree which it had hit fell on it and smashed its front portion.
Several passengers were injured. Private respondent Amyline Antonio was thrown on the
floor of the bus and pinned down by a wooden seat which came off after being unscrewed. It
took three persons to safely remove her from this position. She was in great pain and could not
move.
The driver, petitioner Cabil, claimed he did not see the curve until it was too late. He said he
was not familiar with the area and he could not have seen the curve despite the care he took in
driving the bus, because it was dark and there was no sign on the road. He said that he saw the
curve when he was already within 15 to 30 meters of it. He allegedly slowed down to 30
kilometers per hour, but it was too late.
The Lingayen police investigated the incident the next day, November 3, 1984. On the basis
of their finding they filed a criminal complaint against the driver, Porfirio Cabil. The case was later
filed with the Lingayen Regional Trial Court. Petitioners Fabre paid Jesus Escano P1,500.00 for
the damage to the latters fence. On the basis of Escanos affidavit of desistance the case
against petitioners Fabre was dismissed.
Amyline Antonio, who was seriously injured, brought this case in the RTC of Makati, Metro
Manila. As a result of the accident, she is now suffering from paraplegia and is permanently
paralyzed from the waist down. During the trial she described the operations she underwent and
adduced evidence regarding the cost of her treatment and therapy. Immediately after the
accident, she was taken to the Nazareth Hospital in Ba-ay, Lingayen. As this hospital was not
adequately equipped, she was transferred to the Sto. Nio Hospital, also in the town of Ba-ay,
where she was given sedatives. An x-ray was taken and the damage to her spine was
determined to be too severe to be treated there. She was therefore brought to Manila, first to the
Philippine General Hospital and later to the Makati Medical Center where she underwent an
operation to correct the dislocation of her spine.
In its decision dated April 17, 1989, the trial court found that:
No convincing evidence was shown that the minibus was properly checked for travel to a long
distance trip and that the driver was properly screened and tested before being admitted for
employment. Indeed, all the evidence presented have shown the negligent act of the defendants
which ultimately resulted to the accident subject of this case.
Accordingly, it gave judgment for private respondents holding:
Considering that plaintiffs Word for the World Christian Fellowship, Inc. and Ms. Amyline Antonio
were the only ones who adduced evidence in support of their claim for damages, the Court is
therefore not in a position to award damages to the other plaintiffs.
WHEREFORE, premises considered, the Court hereby renders judgment against defendants Mr.
& Mrs. Engracio Fabre, Jr. and Porfirio Cabil y Jamil pursuant to articles 2176 and 2180 of the
Civil Code of the Philippines and said defendants are ordered to pay jointly and severally to the
plaintiffs the following amount:
1) P93,657.11 as compensatory and actual damages;
2) P500,000.00 as the reasonable amount of loss of earning capacity of plaintiff
Amyline Antonio;
3) P20,000.00 as moral damages;
4) P20,000.00 as exemplary damages; and
5) 25% of the recoverable amount as attorneys fees;
6) Costs of suit.
SO ORDERED.
The Court of Appeals affirmed the decision of the trial court with respect to Amyline Antonio
but dismissed it with respect to the other plaintiffs on the ground that they failed to prove their
respective claims. The Court of Appeals modified the award of damages as follows:
1) P93,657.11 as actual damages;
2) P600,000.00 as compensatory damages;
3) P50,000.00 as moral damages;
4) P20,000.00 as exemplary damages;
5) P10,000.00 as attorneys fees; and
6) Costs of suit.
The Court of Appeals sustained the trial courts finding that petitioner Cabil failed to exercise
due care and precaution in the operation of his vehicle considering the time and the place of the
accident. The Court of Appeals held that the Fabres were themselves presumptively
negligent. Hence, this petition. Petitioners raise the following issues:
I. WHETHER OR NOT PETITIONERS WERE NEGLIGENT.
II. WHETHER OR NOT PETITIONERS WERE LIABLE FOR THE INJURIES
SUFFERED BY PRIVATE RESPONDENTS.
III. WHETHER OR NOT DAMAGES CAN BE AWARDED AND IN THE POSITIVE, UP
TO WHAT EXTENT.
Petitioners challenge the propriety of the award of compensatory damages in the amount of
P600,000.00. It is insisted that, on the assumption that petitioners are liable, an award of
P600,000.00 is unconscionable and highly speculative. Amyline Antonio testified that she was a
casual employee of a company called Suaco, earning P1,650.00 a month, and a dealer of Avon
products, earning an average of P1,000.00 monthly. Petitioners contend that as casual
employees do not have security of tenure, the award of P600,000.00, considering Amyline
Antonios earnings, is without factual basis as there is no assurance that she would be regularly
earning these amounts.
With the exception of the award of damages, the petition is devoid of merit.
First, it is unnecessary for our purpose to determine whether to decide this case on the
theory that petitioners are liable for breach of contract of carriage or culpa contractual or on the
theory of quasi delict or culpa aquiliana as both the Regional Trial Court and the Court of Appeals
held, for although the relation of passenger and carrier is contractual both in origin and nature,
nevertheless the act that breaks the contract may be also a tort.
[2]
In either case, the question is
whether the bus driver, petitioner Porfirio Cabil, was negligent.
The finding that Cabil drove his bus negligently, while his employer, the Fabres, who owned
the bus, failed to exercise the diligence of a good father of the family in the selection and
supervision of their employee is fully supported by the evidence on record. These factual findings
of the two courts we regard as final and conclusive, supported as they are by the
evidence. Indeed, it was admitted by Cabil that on the night in question, it was raining, and, as a
consequence, the road was slippery, and it was dark. He averred these facts to justify his failure
to see that there lay a sharp curve ahead. However, it is undisputed that Cabil drove his bus at
the speed of 50 kilometers per hour and only slowed down when he noticed the curve some 15 to
30 meters ahead.
[3]
By then it was too late for him to avoid falling off the road. Given the
conditions of the road and considering that the trip was Cabils first one outside of Manila, Cabil
should have driven his vehicle at a moderate speed. There is testimony
[4]
that the vehicles
passing on that portion of the road should only be running 20 kilometers per hour, so that at 50
kilometers per hour, Cabil was running at a very high speed.
Considering the foregoing the fact that it was raining and the road was slippery, that it was
dark, that he drove his bus at 50 kilometers an hour when even on a good day the normal speed
was only 20 kilometers an hour, and that he was unfamiliar with the terrain, Cabil was grossly
negligent and should be held liable for the injuries suffered by private respondent Amyline
Antonio.
Pursuant to Arts. 2176 and 2180 of the Civil Code his negligence gave rise to the
presumption that his employers, the Fabres, were themselves negligent in the selection and
supervision of their employee.
Due diligence in selection of employees is not satisfied by finding that the applicant
possessed a professional drivers license. The employer should also examine the applicant for
his qualifications, experience and record of service.
[5]
Due diligence in supervision, on the other
hand, requires the formulation of rules and regulations for the guidance of employees and the
issuance of proper instructions as well as actual implementation and monitoring of consistent
compliance with the rules.
[6]

In the case at bar, the Fabres, in allowing Cabil to drive the bus to La Union, apparently did
not consider the fact that Cabil had been driving for school children only, from their homes to the
St. Scholasticas College in Metro Manila.
[7]
They had hired him only after a two-week
apprenticeship. They had tested him for certain matters, such as whether he could remember the
names of the children he would be taking to school, which were irrelevant to his qualification to
drive on a long distance travel, especially considering that the trip to La Union was his first. The
existence of hiring procedures and supervisory policies cannot be casually invoked to overturn
the presumption of negligence on the part of an employer.
[8]

Petitioners argue that they are not liable because (1) an earlier departure (made impossible
by the congregations delayed meeting) could have averted the mishap and (2) under the
contract, the WWCF was directly responsible for the conduct of the trip. Neither of these
contentions hold water. The hour of departure had not been fixed. Even if it had been, the delay
did not bear directly on the cause of the accident. With respect to the second contention, it was
held in an early case that:
[A] person who hires a public automobile and gives the driver directions as to the place to which
he wishes to be conveyed, but exercises no other control over the conduct of the driver, is not
responsible for acts of negligence of the latter or prevented from recovering for injuries suffered
from a collision between the automobile and a train, caused by the negligence either of the
locomotive engineer or the automobile driver.
[9]

As already stated, this case actually involves a contract of carriage. Petitioners, the Fabres,
did not have to be engaged in the business of public transportation for the provisions of the Civil
Code on common carriers to apply to them. As this Court has held:
[10]

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.
The above article makes no distinction between one whose principal business activity is the
carrying of persons or goods or both, and one who does such carrying only as an ancillary activity
(in local idiom, as a sideline). Article 1732 also carefully avoids making any distinction between
a person or enterprise offering transportation service on a regular or scheduled basis and one
offering such service on an occasional, episodic or unscheduled basis. Neither does Article 1732
distinguish between a carrier offering its services to the general public, i.e., the general
community or population, and one who offers services or solicits business only from a narrow
segment of the general population. We think that Article 1732 deliberately refrained from making
such distinctions.
As common carriers, the Fabres were bound to exercise extraordinary diligence for the safe
transportation of the passengers to their destination. This duty of care is not excused by proof
that they exercised the diligence of a good father of the family in the selection and supervision of
their employee. As Art. 1759 of the Code provides:
Common carriers are liable for the death of or injuries to passengers through the negligence
or wilful acts of the formers employees, although such employees may have acted beyond the
scope of their authority or in violation of the orders of the common carriers.
This liability of the common carriers does not cease upon proof that they exercised all the
diligence of a good father of a family in the selection and supervision of their employees.
The same circumstances detailed above, supporting the finding of the trial court and of the
appellate court that petitioners are liable under Arts. 2176 and 2180 for quasi delict, fully justify
finding them guilty of breach of contract of carriage under Arts. 1733, 1755 and 1759 of the Civil
Code.
Secondly, we sustain the award of damages in favor of Amyline Antonio. However, we think
the Court of Appeals erred in increasing the amount of compensatory damages because private
respondents did not question this award as inadequate.
[11]
To the contrary, the award of
P500,000.00 for compensatory damages which the Regional Trial Court made is reasonable
considering the contingent nature of her income as a casual employee of a company and as
distributor of beauty products and the fact that the possibility that she might be able to work again
has not been foreclosed. In fact she testified that one of her previous employers had expressed
willingness to employ her again.
With respect to the other awards, while the decisions of the trial court and the Court of
Appeals do not sufficiently indicate the factual and legal basis for them, we find that they are
nevertheless supported by evidence in the records of this case. Viewed as an action for quasi
delict, this case falls squarely within the purview of Art. 2219(2) providing for the payment of
moral damages in cases of quasi delict. On the theory that petitioners are liable for breach of
contract of carriage, the award of moral damages is authorized by Art. 1764, in relation to Art.
2220, since Cabils gross negligence amounted to bad faith.
[12]
Amyline Antonios testimony, as
well as the testimonies of her father and co-passengers, fully establish the physical suffering and
mental anguish she endured as a result of the injuries caused by petitioners negligence.
The award of exemplary damages and attorneys fees was also properly made. However,
for the same reason that it was error for the appellate court to increase the award of
compensatory damages, we hold that it was also error for it to increase the award of moral
damages and reduce the award of attorneys fees, inasmuch as private respondents, in whose
favor the awards were made, have not appealed.
[13]

As above stated, the decision of the Court of Appeals can be sustained either on the theory
of quasi delict or on that of breach of contract. The question is whether, as the two courts below
held, petitioners, who are the owners and driver of the bus, may be made to respond jointly and
severally to private respondent. We hold that they may be. In Dangwa Trans. Co. Inc. v. Court of
Appeals,
[14]
on facts similar to those in this case, this Court held the bus company and the driver
jointly and severally liable for damages for injuries suffered by a passenger. Again, in Bachelor
Express, Inc. v. Court of Appeals
[15]
a driver found negligent in failing to stop the bus in order to
let off passengers when a fellow passenger ran amuck, as a result of which the passengers
jumped out of the speeding bus and suffered injuries, was held also jointly and severally liable
with the bus company to the injured passengers.
The same rule of liability was applied in situations where the negligence of the driver of the
bus on which plaintiff was riding concurred with the negligence of a third party who was the driver
of another vehicle, thus causing an accident. In Anuran v. Buo,
[16]
Batangas Laguna Tayabas
Bus Co. v. Intermediate Appellate Court,
[17]
and Metro Manila Transit Corporation v. Court of
Appeals,
[18]
the bus company, its driver, the operator of the other vehicle and the driver of the
vehicle were jointly and severally held liable to the injured passenger or the latters heirs. The
basis of this allocation of liability was explained in Viluan v. Court of Appeals,
[19]
thus:
Nor should it make any difference that the liability of petitioner [bus owner] springs from contract
while that of respondents [owner and driver of other vehicle] arises from quasi-delict. As early as
1913, we already ruled in Gutierrez vs. Gutierrez, 56 Phil. 177, that in case of injury to a
passenger due to the negligence of the driver of the bus on which he was riding and of the driver
of another vehicle, the drivers as well as the owners of the two vehicles are jointly and severally
liable for damages. Some members of the Court, though, are of the view that under the
circumstances they are liable on quasi-delict.
[20]

It is true that in Philippine Rabbit Bus Lines, Inc. v. Court of Appeals
[21]
this Court exonerated
the jeepney driver from liability to the injured passengers and their families while holding the
owners of the jeepney jointly and severally liable, but that is because that case was expressly
tried and decided exclusively on the theory of culpa contractual. As this Court there explained:
The trial court was therefore right in finding that Manalo [the driver] and spouses Mangune and
Carreon [the jeepney owners] were negligent. However, its ruling that spouses Mangune and
Carreon are jointly and severally liable with Manalo is erroneous. The driver cannot be held
jointly and severally liable with the carrier in case of breach of the contract of carriage. The
rationale behind this is readily discernible. Firstly, the contract of carriage is between the carrier
and the passenger, and in the event of contractual liability, the carrier is exclusively responsible
therefore to the passenger, even if such breach be due to the negligence of his driver (see
Viluan v. The Court of Appeals, et al., G.R. Nos. L-21477-81, April 29, 1966, 16 SCRA 742) . . .
[22]

As in the case of BLTB, private respondents in this case and her co-plaintiffs did not stake
out their claim against the carrier and the driver exclusively on one theory, much less on that of
breach of contract alone. After all, it was permitted for them to allege alternative causes of action
and join as many parties as may be liable on such causes of action
[23]
so long as private
respondent and her co-plaintiffs do not recover twice for the same injury. What is clear from the
cases is the intent of the plaintiff there to recover from both the carrier and the driver, thus
justifying the holding that the carrier and the driver were jointly and severally liable because their
separate and distinct acts concurred to produce the same injury.
WHEREFORE, the decision of the Court of Appeals is AFFIRMED with MODIFICATION as
to the award of damages. Petitioners are ORDERED to PAY jointly and severally the private
respondent Amyline Antonio the following amounts:
1) P93,657.11 as actual damages;
2) P500,000.00 as the reasonable amount of loss of earning capacity of plaintiff
Amyline Antonio;
3) P20,000.00 as moral damages;
4) P20,000.00 as exemplary damages;
5) 25% of the recoverable amount as attorneys fees; and
6) costs of suit.
SO ORDERED.
Regalado, (Chairman), Romero, Puno, and Torres, Jr., JJ., concur.


G.R. No. 106279 July 14, 1995
SULPICIO LINES, INC., petitioner,
vs.
THE HONORABLE COURT OF APPEALS (Twelfth Division) and JACINTA L.
PAMALARAN, respondents.

QUIASON, J .:
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).
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. No. 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;
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; emphasis 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 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 (Rollo, pp. 31-32; Emphasis 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.
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.
Padilla, Davide, Jr. and Kapunan, JJ., concur.
Bellosillo, J., is on leave.

[G.R. NO. 166640 : July 31, 2009]
HERMINIO MARIANO, JR., Petitioner, v. ILDEFONSO C. CALLEJAS and EDGAR DE
BORJA,Respondents.
D E C I S I O N
PUNO, C.J .:
On appeal are the Decision
1
and Resolution
2
of the Court of Appeals in CA-G.R. CV No. 66891,
dated May 21, 2004 and January 7, 2005 respectively, which reversed the Decision
3
of the
Regional Trial Court (RTC) of Quezon City, dated September 13, 1999, which found respondents
jointly and severally liable to pay petitioner damages for the death of his wife.
First, the facts:
Petitioner Herminio Mariano, Jr. is the surviving spouse of Dr. Frelinda Mariano who was a
passenger of a Celyrosa Express bus bound for Tagaytay when she met her death. Respondent
Ildefonso C. Callejas is the registered owner of Celyrosa Express, while respondent Edgar de
Borja was the driver of the bus on which the deceased was a passenger.
At around 6:30 p.m. on November 12, 1991, along Aguinaldo Highway, San Agustin,
Dasmarias, Cavite, the Celyrosa Express bus, carrying Dr. Mariano as its passenger, collided
with an Isuzu truck with trailer bearing plate numbers PJH 906 and TRH 531. The passenger bus
was bound for Tagaytay while the trailer truck came from the opposite direction, bound for Manila.
The trailer truck bumped the passenger bus on its left middle portion. Due to the impact, the
passenger bus fell on its right side on the right shoulder of the highway and caused the death of
Dr. Mariano and physical injuries to four other passengers. Dr. Mariano was 36 years old at the
time of her death. She left behind three minor children, aged four, three and two years.
Petitioner filed a complaint for breach of contract of carriage and damages against respondents
for their failure to transport his wife and mother of his three minor children safely to her
destination. Respondents denied liability for the death of Dr. Mariano. They claimed that the
proximate cause of the accident was the recklessness of the driver of the trailer truck which
bumped their bus while allegedly at a halt on the shoulder of the road in its rightful lane. Thus,
respondent Callejas filed a third-party complaint against Liong Chio Chang, doing business under
the name and style of La Perla Sugar Supply, the owner of the trailer truck, for indemnity in the
event that he would be held liable for damages to petitioner.rbl r l l
lbrr
Other cases were filed. Callejas filed a complaint,
4
docketed as Civil Case No. NC-397 before the
RTC of Naic, Cavite, against La Perla Sugar Supply and Arcadio Arcilla, the truck driver, for
damages he incurred due to the vehicular accident. On September 24, 1992, the said court
dismissed the complaint against La Perla Sugar Supply for lack of evidence. It, however, found
Arcilla liable to pay Callejas the cost of the repairs of his passenger bus, his lost earnings,
exemplary damages and attorney's fees.
5

A criminal case, Criminal Case No. 2223-92, was also filed against truck driver Arcilla in the RTC
of Imus, Cavite. On May 3, 1994, the said court convicted truck driver Arcadio Arcilla of the crime
of reckless imprudence resulting to homicide, multiple slight physical injuries and damage to
property.
6

In the case at bar, the trial court, in its Decision dated September 13, 1999, found respondents
Ildefonso Callejas and Edgar de Borja, together with Liong Chio Chang, jointly and severally
liable to pay petitioner damages and costs of suit. The dispositive portion of the Decision reads:
ACCORDINGLY, the defendants are ordered to pay as follows:
1. The sum of P50,000.00 as civil indemnity for the loss of life;
2. The sum of P40,000.00 as actual and compensatory damages;
3. The sum of P1,829,200.00 as foregone income;
4. The sum of P30,000.00 as moral damages;
5. The sum of P20,000.00 as exemplary damages;
6. The costs of suit.
SO ORDERED.
7

Respondents Callejas and De Borja appealed to the Court of Appeals, contending that the trial
court erred in holding them guilty of breach of contract of carriage.
On May 21, 2004, the Court of Appeals reversed the decision of the trial court. It reasoned:
. . . the presumption of fault or negligence against the carrier is only a disputable presumption. It
gives in where contrary facts are established proving either that the carrier had exercised the
degree of diligence required by law or the injury suffered by the passenger was due to a fortuitous
event. Where, as in the instant case, the injury sustained by the petitioner was in no way due to
any defect in the means of transport or in the method of transporting or to the negligent or wilful
acts of private respondent's employees, and therefore involving no issue of negligence in its duty
to provide safe and suitable cars as well as competent employees, with the injury arising wholly
from causes created by strangers over which the carrier had no control or even knowledge or
could not have prevented, the presumption is rebutted and the carrier is not and ought not to be
held liable. To rule otherwise would make the common carrier the insurer of the absolute safety of
its passengers which is not the intention of the lawmakers.
8

The dispositive portion of the Decision reads:
WHEREFORE, the decision appealed from, insofar as it found defendants-appellants Ildefonso
Callejas and Edgar de Borja liable for damages to plaintiff-appellee Herminio E. Mariano, Jr., is
REVERSED and SET ASIDE and another one entered absolving them from any liability for the
death of Dr. Frelinda Cargo Mariano.
9

The appellate court also denied the motion for reconsideration filed by petitioner.
Hence, this appeal, relying on the following ground:
THE DECISION OF THE HONORABLE COURT OF APPEALS, SPECIAL FOURTEENTH
DIVISION IS NOT IN ACCORD WITH THE FACTUAL BASIS OF THE CASE.
10

The following are the provisions of the Civil Code pertinent to the case at bar:
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.
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.
In accord with the above provisions, Celyrosa Express, a common carrier, through its driver,
respondent De Borja, and its registered owner, respondent Callejas, has the express obligation
"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,"
11
and to observe
extraordinary diligence in the discharge of its duty. The death of the wife of the petitioner in the
course of transporting her to her destination gave rise to the presumption of negligence of the
carrier. To overcome the presumption, respondents have to show that they observed
extraordinary diligence in the discharge of their duty, or that the accident was caused by a
fortuitous event.
This Court interpreted the above quoted provisions in Pilapil v. Court of Appeals.
12
We elucidated:
While the law requires the highest degree of diligence from common carriers in the safe transport
of their passengers and creates a presumption of negligence against them, it does not, however,
make the carrier an insurer of the absolute safety of its passengers.
Article 1755 of the Civil Code qualifies the duty of extraordinary care, vigilance and precaution in
the carriage of passengers by common carriers to only such as human care and foresight can
provide. What constitutes compliance with said duty is adjudged with due regard to all the
circumstances.
Article 1756 of the Civil Code, in creating a presumption of fault or negligence on the part of the
common carrier when its passenger is injured, merely relieves the latter, for the time being, from
introducing evidence to fasten the negligence on the former, because the presumption stands in
the place of evidence. Being a mere presumption, however, the same is rebuttable by proof that
the common carrier had exercised extraordinary diligence as required by law in the performance
of its contractual obligation, or that the injury suffered by the passenger was solely due to a
fortuitous event.
In fine, we can only infer from the law the intention of the Code Commission and Congress to
curb the recklessness of drivers and operators of common carriers in the conduct of their
business.
Thus, it is clear that neither the law nor the nature of the business of a transportation company
makes it an insurer of the passenger's safety, but that its liability for personal injuries sustained by
its passenger rests upon its negligence, its failure to exercise the degree of diligence that the law
requires.
In the case at bar, petitioner cannot succeed in his contention that respondents failed to
overcome the presumption of negligence against them. The totality of evidence shows that the
death of petitioner's spouse was caused by the reckless negligence of the driver of the Isuzu
trailer truck which lost its brakes and bumped the Celyrosa Express bus, owned and operated by
respondents.
First, we advert to the sketch prepared by PO3 Magno S. de Villa, who investigated the accident.
The sketch
13
shows the passenger bus facing the direction of Tagaytay City and lying on its right
side on the shoulder of the road, about five meters away from the point of impact. On the other
hand, the trailer truck was on the opposite direction, about 500 meters away from the point of
impact. PO3 De Villa stated that he interviewed De Borja, respondent driver of the passenger
bus, who said that he was about to unload some passengers when his bus was bumped by the
driver of the trailer truck that lost its brakes. PO3 De Villa checked out the trailer truck and found
that its brakes really failed. He testified before the trial court, as follows:
ATTY. ESTELYDIZ:
q You pointed to the Isuzu truck beyond the point of impact. Did you investigate why did (sic) the
Isuzu truck is beyond the point of impact?cralawred
a Because the truck has no brakes.
COURT:
q What is the distance between that circle which is marked as Exh. 1-c to the place where you
found the same?cralawred
a More or less 500 meters.
q Why did you say that the truck has no brakes?cralawred
a I tested it.
q And you found no brakes?cralawred
a Yes, sir.
x x x
q When you went to the scene of accident, what was the position of Celyrosa bus?cralawred
a It was lying on its side.
COURT:
q Right side or left side?cralawred
a Right side.
ATTY. ESTELYDIZ:
q On what part of the road was it lying?cralawred
a On the shoulder of the road.
COURT:
q How many meters from the point of impact?cralawred
a Near, about 5 meters.
14

His police report bolsters his testimony and states:
Said vehicle 1 [passenger bus] was running from Manila toward south direction when, in the
course of its travel, it was hit and bumped by vehicle 2 [truck with trailer] then running fast from
opposite direction, causing said vehicle 1 to fall on its side on the road shoulder, causing the
death of one and injuries of some passengers thereof, and its damage, after collission (sic),
vehicle 2 continiously (sic)ran and stopped at approximately 500 meters away from the
piont (sic) of impact.
15

In fine, the evidence shows that before the collision, the passenger bus was cruising on its rightful
lane along the Aguinaldo Highway when the trailer truck coming from the opposite direction, on
full speed, suddenly swerved and encroached on its lane, and bumped the passenger bus on its
left middle portion. Respondent driver De Borja had every right to expect that the trailer truck
coming from the opposite direction would stay on its proper lane. He was not expected to know
that the trailer truck had lost its brakes. The swerving of the trailer truck was abrupt and it was
running on a fast speed as it was found 500 meters away from the point of collision. Secondly,
any doubt as to the culpability of the driver of the trailer truck ought to vanish when he pleaded
guilty to the charge of reckless imprudence resulting to multiple slight physical injuries and
damage to property in Criminal Case No. 2223-92, involving the same incident.rbl
r l l lbrr
IN VIEW WHEREOF, the petition is DENIED. The Decision dated May 21, 2004 and the
Resolution dated January 7, 2005 of the Court of Appeals in CA-G.R. CV No. 66891 are
AFFIRMED.
SO ORDERED.