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G.R. No.

L-56487 October 21, 1991


REYNALDA
GATCHALIAN, petitioner,
vs.
ARSENIO DELIM and the HON. COURT OF
APPEALS, respondents.
Pedro G. Peralta for petitioner.
Florentino G. Libatique for private respondent.

FELICIANO, J.:p
At noon time on 11 July 1973, petitioner Reynalda
Gatchalian boarded, as a paying passenger,
respondent's "Thames" mini bus at a point in San
Eugenio, Aringay, La Union, bound for Bauang, of
the same province. On the way, while the bus was
running along the highway in Barrio Payocpoc,
Bauang, Union, "a snapping sound" was suddenly
heard at one part of the bus and, shortly
thereafter, the vehicle bumped a cement flower
pot on the side of the road, went off the road,
turned turtle and fell into a ditch. Several
passengers, including petitioner Gatchalian, were
injured. They were promptly taken to Bethany
Hospital at San Fernando, La Union, for medical

treatment. Upon medical examination, petitioner


was found to have sustained physical injuries on
the leg, arm and forehead, specifically described
as follows: lacerated wound, forehead; abrasion,
elbow, left; abrasion, knee, left; abrasion, lateral
surface, leg, left. 1
On 14 July 1973, while injured. passengers were
confined in the hospital, Mrs. Adela Delim, wife of
respondent, visited them and later paid for their
hospitalization and medical expenses. She also
gave petitioner P12.00 with which to pay her
transportation expense in going home from the
hospital. However, before Mrs. Delim left, she had
the injured passengers, including petitioner, sign
an already prepared Joint Affidavit which stated,
among other things:
That we were passengers of Thames
with Plate No. 52-222 PUJ Phil. 73 and
victims after the said Thames met an
accident at Barrio Payocpoc Norte,
Bauang, La Union while passing
through the National Highway No. 3;
That after a thorough investigation the
said Thames met the accident due to
mechanical defect and went off the
road and turned turtle to the east

canal of the road into a creek causing


physical injuries to us;
xxx xxx xxx
That we are no longer interested to
file a complaint, criminal or civil
against the said driver and owner of
the said Thames, because it was an
accident and the said driver and
owner of the said Thames have gone
to the extent of helping us to be
treated upon our injuries.
xxx xxx xxx 2
(Emphasis supplied)
Notwithstanding
this
document,
petitioner
Gathalian filed with the then Court of First
Instance of La Union an action extra contractu to
recover compensatory and moral damages. She
alleged in the complaint that her injuries
sustained from the vehicular mishap had left her
with a conspicuous white scar measuring 1 by 1/2
inches on the forehead, generating mental
suffering and an inferiority complex on her part;
and that as a result, she had to retire in seclusion
and stay away from her friends. She also alleged

that the scar diminished her facial beauty and


deprived her of opportunities for employment. She
prayed for an award of: P10,000.00 for loss of
employment and other opportunities; P10,000.00
for the cost of plastic surgery for removal of the
scar on her forehead; P30,000.00 for moral
damages; and P1,000.00 as attorney's fees.
In defense, respondent averred that the vehicular
mishap was due to force majeure, and that
petitioner had already been paid and moreover
had waived any right to institute any action
against him (private respondent) and his driver,
when petitioner Gatchalian signed the Joint
Affidavit on 14 July 1973.
After trial, the trial court dismissed the complaint
upon the ground that when petitioner Gatchalian
signed the Joint Affidavit, she relinquished any
right of action (whether criminal or civil) that she
may have had against respondent and the driver
of the mini-bus.
On appeal by petitioner, the Court of Appeals
reversed the trial court's conclusion that there had
been a valid waiver, but affirmed the dismissal of
the case by denying petitioner's claim for
damages:

We are not in accord, therefore, of


(sic) the ground of the trial court's
dismissal of the complaint, although
we conform to the trial court's
disposition of the case its dismissal.
IN
VIEW
OF
THE
FOREGOING
considerations, there being no error
committed by the lower court in
dismissing the plaintiff-appellant's
complaint, the judgment of dismissal
is hereby affirmed.
Without special pronouncement as to
costs.
SO ORDERED. 3
In the present Petition for Review filed in forma
pauperis, petitioner assails the decision of the
Court of Appeals and ask this Court to award her
actual or compensatory damages as well as moral
damages.
We agree with the majority of the Court of Appeals
who held that no valid waiver of her cause of
action had been made by petitioner. The relevant
language of the Joint Affidavit may be quoted
again:

That we are no longer interested to


file a complaint, criminal or civil
against the said driver and ownerof
the said Thames, because it was an
accident and the said driver and
owner of the said Thames have gone
to the extent of helping us to be
treated upon our injuries. (Emphasis
supplied)
A waiver, to be valid and effective, must in
the first place be couched in clear and
unequivocal terms which leave no doubt as
to the intention of a person to give up a
right or benefit which legally pertains to
him. 4 A waiver may not casually be
attributed to a person when the terms
thereof do not explicitly and clearly
evidence an intent to abandon a right
vested in such person.
The degree of explicitness which this Court has
required in purported waivers is illustrated
in Yepes and Susaya v. Samar Express Transit
(supra), where the Court in reading and rejecting
a purported waiver said:
. . . It appears that before their
transfer to the Leyte Provincial

Hospital, appellees were asked to sign


as, in fact, they signed the document
Exhibit I wherein they stated that "in
consideration of the expenses which
said operator has incurred in properly
giving
us
the
proper
medical
treatment, we hereby manifest our
desire to waive any and all claims
against the operator of the Samar
Express Transit."
xxx xxx xxx
Even a cursory examination of the
document mentioned above will
readily show that appellees did not
actually waive their right to claim
damages from
appellant
for
the
latter's failure to comply with their
contract of carriage. All that said
document
proves
is
that they
expressed a "desire" to make the
waiver which obviously is not the
same as making an actual waiver of
their right. A waiver of the kind
invoked by appellant must be clear
and unequivocal (Decision of the
Supreme Court of Spain of July 8,
1887) which is not the case of the

one relied upon in


(Emphasis supplied)

this

appeal.

If we apply the standard used in Yepes and


Susaya, we would have to conclude that the
terms of the Joint Affidavit in the instant
case cannot be regarded as a waiver cast in
"clear and unequivocal" terms. Moreover,
the circumstances under which the Joint
Affidavit was signed by petitioner Gatchalian
need to be considered. Petitioner testified
that she was still reeling from the effects of
the vehicular accident, having been in the
hospital for only three days, when the
purported waiver in the form of the Joint
Affidavit was presented to her for signing;
that
while
reading
the
same,
she
experienced dizziness but that, seeing the
other passengers who had also suffered
injuries sign the document, she too signed
without bothering to read the Joint Affidavit
in
its
entirety.
Considering
these
circumstances there appears substantial
doubt whether petitioner understood fully
the import of the Joint Affidavit (prepared by
or at the instance of private respondent) she
signed and whether she actually intended
thereby to waive any right of action against
private respondent.

Finally, because what is involved here is the


liability of a common carrier for injuries sustained
by passengers in respect of whose safety a
common
carrier
must
exercise extraordinary diligence,
we
must
construe any such purported waiver most strictly
against the common carrier. For a waiver to be
valid and effective, it must not be contrary to law,
morals,
public
policy
or
good
customs. 5 To uphold a supposed waiver of any
right to claim damages by an injured passenger,
under circumstances like those exhibited in this
case, would be to dilute and weaken the standard
of extraordinary diligence exacted by the law from
common carriers and hence to render that
standard unenforceable. 6 We believe such a
purported waiver is offensive to public policy.
Petitioner Gatchalian also argues that the Court of
Appeals, having by majority vote held that there
was no enforceable waiver of her right of action,
should have awarded her actual or compensatory
and moral damages as a matter of course.
We have already noted that a duty to exercise
extraordinary diligence in protecting the safety of
its passengers is imposed upon a common
carrier. 7 In case of death or injuries to
passengers, a statutory presumption arises that

the common carrier was at fault or had acted


negligently "unless it proves that it [had]
observed extraordinary diligence as prescribed in
Articles 1733 and 1755." 8 In fact, because of this
statutory presumption, it has been held that a
court need not even make an express finding of
fault or negligence on the part of the common
carrier in order to hold it liable. 9 To overcome this
presumption, the common carrier must slow to
the court that it had exercised extraordinary
diligence to prevent the injuries. 10 The standard
of extraordinary diligence imposed upon common
carriers is considerably more demanding than the
standard of ordinary diligence,i.e., the diligence of
a good paterfamilias established in respect of the
ordinary relations between members of society. A
common carrier is bound to carry its passengers
safely" as far as human care and foresight can
provide, using the utmost diligence of a very
cautious person, with due regard to all the
circumstances". 11
Thus, the question which must be addressed is
whether
or
not
private
respondent
has
successfully proved that he had exercised
extraordinary diligence to prevent the mishap
involving his mini-bus. The records before the
Court are bereft of any evidence showing that
respondent had exercised the extraordinary

diligence required by law. Curiously, respondent


did not even attempt, during the trial before the
court a quo, to prove that he had indeed exercised
the requisite extraordinary diligence. Respondent
did try to exculpate himself from liability by
alleging that the mishap was the result of force
majeure. But allegation is not proof and here
again, respondent utterly failed to substantiate his
defense of force majeure. To exempt a common
carrier from liability for death or physical injuries
to passengers upon the ground of force
majeure, the carrier must clearly show not only
that the efficient cause of the casualty was
entirely independent of the human will, but also
that it was impossible to avoid. Any participation
by the common carrier in the occurrence of the
injury
will
defeat
the
defense
of force
majeure. InServando
v.
Philippine
Steam
Navigation Company, 12 the Court summed up
the essential characteristics of force majeure by
quoting with approval from the Enciclopedia
Juridica Espaola:
Thus, where fortuitous event or force
majeure is
the
immediate
and
proximate cause of the loss, the
obligor is exempt from liability nonperformance.
The
Partidas,
the
antecedent of Article 1174 of the Civil

Code, defines "caso fortuito" as 'an


event that takes place by accident
and could not have been foreseen.
Examples of this are destruction of
houses, unexpected fire, shipwreck,
violence of robber.
In its dissertation on the phrase "caso
fortuito" the Enciclopedia Juridica
Espaola says: 'In legal sense and,
consequently, also in relation to
contracts, a "caso fortuito" presents
the following essential characteristics:
(1) the cause of the unforeseen and
unexpected occurence, or of the
failure of the debtor to comply with his
obligation, must be independent of
the human will; (2) it must be
impossible to foresee the event which
constitutes the "caso fortuito", or if it
can be foreseen, it must be impossible
to avoid; (3) the occurrence must be
such as to render it impossible for the
debtor to fulfill his obligation in a
normal manner; and (4) the obligor
must be free from any participation in
the aggravation of the injury resulting
to the creditor.

Upon the other hand, the record yields affirmative


evidence of fault or negligence on the part of
respondent common carrier. In her direct
examination, petitioner Gatchalian narrated that
shortly before the vehicle went off the road and
into a ditch, a "snapping sound" was suddenly
heard at one part of the bus. One of the
passengers, an old woman, cried out, "What
happened?" ("Apay
addan
samet
nadadaelen?"). The driver replied, nonchalantly,
"That
is
only
normal" ("Ugali
ti
makina
dayta"). The driver did not stop to check if
anything had gone wrong with the bus. Moreover,
the driver's reply necessarily indicated that the
same "snapping sound" had been heard in the bus
on previous occasions. This could only mean that
the bus had not been checked physically or
mechanically to determine what was causing the
"snapping sound" which had occurred so
frequently that the driver had gotten accustomed
to it. Such a sound is obviously alien to a motor
vehicle in good operating condition, and even a
modicum of concern for life and limb of
passengers dictated that the bus be checked and
repaired. The obvious continued failure of
respondent to look after the roadworthiness and
safety of the bus, coupled with the driver's refusal
or neglect to stop the mini-bus after he had heard
once again the "snapping sound" and the cry of

alarm from one of the passengers, constituted


wanton disregard of the physical safety of the
passengers, and hence gross negligence on the
part of respondent and his driver.
We turn to petitioner's claim for damages. The
first item in that claim relates to revenue which
petitioner said she failed to realize because of the
effects of the vehicular mishap. Petitioner
maintains that on the day that the mini-bus went
off the road, she was supposed to confer with the
district supervisor of public schools for a
substitute teacher's job, a job which she had held
off and on as a "casual employee." The Court of
Appeals, however, found that at the time of the
accident, she was no longer employed in a public
school since, being a casual employee and not a
Civil Service eligible, she had been laid off. Her
employment as a substitute teacher was
occasional and episodic, contingent upon the
availability of vacancies for substitute teachers. In
view of her employment status as such, the Court
of Appeals held that she could not be said to have
in fact lost any employment after and by reason of
the accident. 13 Such was the factual finding of
the Court of Appeals, a finding entitled to due
respect from this Court. Petitioner Gatchalian has
not submitted any basis for overturning this
finding of fact, and she may not be awarded

damages on
conjecture.14

the

basis

of

speculation

or

Petitioner's claim for the cost of plastic surgery for


removal of the scar on her forehead, is another
matter. A person is entitled to the physical
integrity of his or her body; if that integrity is
violated or diminished, actual injury is suffered for
which actual or compensatory damages are due
and assessable. Petitioner Gatchalian is entitled to
be placed as nearly as possible in the condition
that she was before the mishap. A scar, especially
one on the face of the woman, resulting from the
infliction of injury upon her, is a violation of bodily
integrity, giving raise to a legitimate claim for
restoration to her conditio ante. If the scar is
relatively small and does not grievously disfigure
the victim, the cost of surgery may be expected to
be correspondingly modest. In Araneta, et al. vs.
Areglado, et al., 15 this Court awarded actual or
compensatory damages for, among other things,
the surgical removal of the scar on the face of a
young boy who had been injured in a vehicular
collision. The Court there held:
We agree with the appellants that the
damages awarded by the lower court
for the injuries suffered by Benjamin
Araneta are inadequate. In allowing

not
more
than
P1,000.00
as
compensation for the "permanent
deformity and something like an
inferiority complex" as well as for the
"pathological condition on the left side
of the jaw" caused to said plaintiff, the
court below overlooked the clear
evidence on record that to arrest the
degenerative process taking place in
the mandible and restore the injured
boy to a nearly normal condition,
surgical intervention was needed, for
which the doctor's charges would
amount to P3,000.00, exclusive of
hospitalization fees, expenses and
medicines.Furthermore, the operation,
according to Dr. Dio, would probably
have to be repeated in order to
effectuate a complete cure, while
removal of the scar on the face
obviously demanded plastic surgery.
xxx xxx xxx
The father's failure to submit his son
to a plastic operation as soon as
possible does not prove that such
treatment is not called for. The
damage to the jaw and the existence

of the scar in Benjamin Araneta's


face are physical facts that can not be
reasoned out of existence. That the
injury should be treated in order to
restore him as far as possible to his
original condition is undeniable. The
father's delay, or even his negligence,
should not be allowed to prejudice the
son who has no control over the
parent's action nor impair his right to
a full indemnity.
. . . Still, taking into account the
necessity and cost of corrective
measures
to
fully
repair
the
damage;the pain suffered by the
injured party; his feelings of inferiority
due to consciousness of his present
deformity, as well as the voluntary
character of the injury inflicted; and
further considering that a repair,
however, skillfully conducted, is never
equivalent to the original state, we are
of the opinion that the indemnity
granted by the trial court should be
increased to a total of P18,000.00.
(Emphasis supplied)

Petitioner estimated that the cost of having her


scar surgically removed was somewhere between
P10,000.00 to P15,000.00. 16 Upon the other
hand, Dr. Fe Tayao Lasam, a witness presented as
an expert by petitioner, testified that the cost
would probably be between P5,000.00 to
P10,000.00. 17 In view of this testimony, and the
fact that a considerable amount of time has
lapsed since the mishap in 1973 which may be
expected to increase not only the cost but also
very probably the difficulty of removing the scar,
we consider that the amount of P15,000.00 to
cover the cost of such plastic surgery is not
unreasonable.
Turning to petitioner's claim for moral damages,
the long-established rule is that moral damages
may be awarded where gross negligence on the
part of the common carrier is shown. 18 Since we
have earlier concluded that respondent common
carrier and his driver had been grossly negligent
in connection with the bus mishap which had
injured petitioner and other passengers, and
recalling the aggressive manuevers of respondent,
through his wife, to get the victims to waive their
right to recover damages even as they were still
hospitalized for their injuries, petitioner must be
held entitled to such moral damages. Considering
the extent of pain and anxiety which petitioner

must have suffered as a result of her physical


injuries including the permanent scar on her
forehead, we believe that the amount of
P30,000.00 would be a reasonable award.
Petitioner's claim for P1,000.00 as atttorney's fees
is in fact even more modest. 19
WHEREFORE, the Decision of the Court of Appeals
dated 24 October 1980, as well as the decision of
the then Court of First Instance of La Union dated
4 December 1975 are hereby REVERSED and SET
ASIDE.Respondent is hereby ORDERED to pay
petitioner Reynalda Gatchalian the following
sums: 1) P15,000.00 as actual or compensatory
damages to cover the cost of plastic surgery for
the removal of the scar on petitioner's forehead;
2) P30,000.00 as moral damages; and 3)
P1,000.00 as attorney's fees, the aggregate
amount to bear interest at the legal rate of 6% per
annum counting from the promulgation of this
decision until full payment thereof. Costs against
private respondent.
SO ORDERED.
[G.R. No. 122039. May 31, 2000]

VICENTE CALALAS, petitioner, vs. COURT OF


APPEALS, ELIZA JUJEURCHE SUNGA and
FRANCISCO SALVA,respondents.
D E C I S I ON
MENDOZA, J.:
This is a petition for review on certiorari of the
decision[1] of the Court of Appeals, dated March
31, 1991, reversing the contrary decision of the
Regional Trial Court, Branch 36, Dumaguete City,
and awarding damages instead to private
respondent Eliza Jujeurche Sunga as plaintiff in an
action for breach of contract of carriage.
The facts, as found by the Court of Appeals, are as
follows:
At 10 oclock in the morning of August 23, 1989,
private respondent Eliza Jujeurche G. Sunga, then
a college freshman majoring in Physical Education
at the Siliman University, took a passenger
jeepney owned and operated by petitioner Vicente
Calalas. As the jeepney was filled to capacity of
about 24 passengers, Sunga was given by the
conductor an "extension seat," a wooden stool at
the back of the door at the rear end of the
vehicle. Sclaw

On the way to Poblacion Sibulan, Negros


Occidental, the jeepney stopped to let a
passenger off. As she was seated at the rear of
the vehicle, Sunga gave way to the outgoing
passenger. Just as she was doing so, an Isuzu
truck driven by Iglecerio Verena and owned by
Francisco Salva bumped the left rear portion of
the jeepney. As a result, Sunga was injured. She
sustained a fracture of the "distal third of the left
tibia-fibula with severe necrosis of the underlying
skin." Closed reduction of the fracture, long leg
circular casting, and case wedging were done
under sedation. Her confinement in the hospital
lasted from August 23 to September 7, 1989. Her
attending physician, Dr. Danilo V. Oligario, an
orthopedic surgeon, certified she would remain on
a cast for a period of three months and would
have to ambulate in crutches during said period.

liability, holding that it was the driver of the Isuzu


truck who was responsible for the accident. It took
cognizance of another case (Civil Case No. 3490),
filed by Calalas against Salva and Verena, for
quasi-delict, in which Branch 37 of the same court
held Salva and his driver Verena jointly liable to
Calalas for the damage to his jeepney. Rtcspped

On October 9, 1989, Sunga filed a complaint for


damages against Calalas, alleging violation of the
contract of carriage by the former in failing to
exercise the diligence required of him as a
common carrier. Calalas, on the other hand, filed a
third-party complaint against Francisco Salva, the
owner of the Isuzu truck. Korte

WHEREFORE, the decision appealed


from is hereby REVERSED and SET
ASIDE, and another one is entered
ordering defendant-appellee Vicente
Calalas to pay plaintiff-appellant:

The lower court rendered judgment against Salva


as third-party defendant and absolved Calalas of

On appeal to the Court of Appeals, the ruling of


the lower court was reversed on the ground that
Sungas cause of action was based on a contract of
carriage, not quasi-delict, and that the common
carrier failed to exercise the diligence required
under the Civil Code. The appellate court
dismissed the third-party complaint against Salva
and adjudged Calalas liable for damages to
Sunga. The dispositive portion of its decision
reads:

(1)
P50,000.00
as
actual
compensatory damages;
(2) P50,000.00 as moral damages;

and

(3) P10,000.00 as attorneys fees; and


(4)
P1,000.00
litigation; and

as

expenses

of

(5) to pay the costs.


SO ORDERED.
Hence, this petition. Petitioner contends that the
ruling in Civil Case No. 3490 that the negligence
of Verena was the proximate cause of the accident
negates his liability and that to rule otherwise
would be to make the common carrier an insurer
of the safety of its passengers. He contends that
the bumping of the jeepney by the truck owned by
Salva was a caso fortuito. Petitioner further assails
the award of moral damages to Sunga on the
ground
that
it
is
not
supported
by
evidence. Sdaadsc
The petition has no merit.
The argument that Sunga is bound by the ruling in
Civil Case No. 3490 finding the driver and the
owner of the truck liable for quasi-delict ignores
the fact that she was never a party to that case
and, therefore, the principle of res judicata does
not apply. Missdaa

Nor are the issues in Civil Case No. 3490 and in


the present case the same. The issue in Civil Case
No. 3490 was whether Salva and his driver Verena
were liable for quasi-delict for the damage caused
to petitioners jeepney. On the other hand, the
issue in this case is whether petitioner is liable on
his contract of carriage. The first, quasi-delict, also
known
as culpa
aquiliana or culpa
extra
contractual, has as its source the negligence of
the tortfeasor. The second, breach of contract
or culpa contractual, is premised upon the
negligence in the performance of a contractual
obligation.
Consequently, in quasi-delict, the negligence or
fault should be clearly established because it is
the basis of the action, whereas in breach of
contract, the action can be prosecuted merely by
proving the existence of the contract and the fact
that the obligor, in this case the common carrier,
failed to transport his passenger safely to his
destination.[2] In case of death or injuries to
passengers, Art. 1756 of the Civil Code provides
that common carriers are presumed to have been
at fault or to have acted negligently unless they
prove that they observed extraordinary diligence
as defined in Arts. 1733 and 1755 of the Code.
This provision necessarily shifts to the common
carrier the burden of proof. Slxmis

There is, thus, no basis for the contention that the


ruling in Civil Case No. 3490, finding Salva and his
driver Verena liable for the damage to petitioners
jeepney, should be binding on Sunga. It is
immaterial that the proximate cause of the
collision between the jeepney and the truck was
the negligence of the truck driver. The doctrine of
proximate cause is applicable only in actions for
quasi-delict, not in actions involving breach of
contract. The doctrine is a device for imputing
liability to a person where there is no relation
between him and another party. In such a case,
the obligation is created by law itself. But, where
there is a pre-existing contractual relation
between the parties, it is the parties themselves
who create the obligation, and the function of the
law is merely to regulate the relation thus created.
Insofar as contracts of carriage are concerned,
some aspects regulated by the Civil Code are
those respecting the diligence required of
common carriers with regard to the safety of
passengers as well as the presumption of
negligence in cases of death or injury to
passengers. It provides: Slxsc
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
1746, Nos. 5,6, and 7, while the
extraordinary diligence for the safety
of the passengers is further set forth
in articles 1755 and 1756.
Art. 1755. A common carrier is bound
to carry the passengers safely as far
as human care and foresight can
provide, using the utmost diligence of
very cautious persons, with 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
by articles 1733 and 1755.

In the case at bar, upon the happening of the


accident, the presumption of negligence at once
arose, and it became the duty of petitioner to
prove that he had to observe extraordinary
diligence in the care of his passengers. Scslx
Now, did the driver of jeepney carry Sunga "safely
as far as human care and foresight could provide,
using the utmost diligence of very cautious
persons,
with
due
regard
for
all
the
circumstances" as required by Art. 1755? We do
not think so. Several factors militate against
petitioners contention. Slx
First, as found by the Court of Appeals, the
jeepney was not properly parked, its rear portion
being exposed about two meters from the broad
shoulders of the highway, and facing the middle of
the highway in a diagonal angle. This is a violation
of the R.A. No. 4136, as amended, or the Land
Transportation and Traffic Code, which provides:

Sec. 54. Obstruction of Traffic. - No


person shall drive his motor vehicle in
such a manner as to obstruct or
impede the passage of any vehicle,
nor, while discharging or taking on
passengers or loading or unloading
freight, obstruct the free passage of
other vehicles on the highway.
Second, it is undisputed that petitioners driver
took in more passengers than the allowed seating
capacity of the jeepney, a violation of 32(a) of the
same law. It provides: Mesm
Exceeding registered capacity. - No
person operating any motor vehicle
shall allow more passengers or more
freight or cargo in his vehicle than its
registered capacity.
The fact that Sunga was seated in an "extension
seat" placed her in a peril greater than that to
which the other passengers were exposed.
Therefore, not only was petitioner unable to
overcome the presumption of negligence imposed
on him for the injury sustained by Sunga, but also,
the evidence shows he was actually negligent in
transporting passengers. Calrky

We find it hard to give serious thought to


petitioners contention that Sungas taking an
"extension seat" amounted to an implied
assumption of risk. It is akin to arguing that the
injuries to the many victims of the tragedies in our
seas should not be compensated merely because
those passengers assumed a greater risk of
drowning by boarding an overloaded ferry. This is
also true of petitioners contention that the
jeepney being bumped while it was improperly
parked constitutes caso fortuito. A caso fortuito is
an event which could not be foreseen, or which,
though foreseen, was inevitable.[3] This requires
that the following requirements be present: (a)
the cause of the breach is independent of the
debtors will; (b) the event is unforeseeable or
unavoidable; (c) the event is such as to render it
impossible for the debtor to fulfill his obligation in
a normal manner, and (d) the debtor did not take
part in causing the injury to the creditor.
[4]
Petitioner should have foreseen the danger of
parking his jeepney with its body protruding two
meters into the highway. Kycalr
Finally, petitioner challenges the award of moral
damages alleging that it is excessive and without
basis in law. We find this contention well taken.

In awarding moral damages, the Court of Appeals


stated: Kyle
Plaintiff-appellant at the time of the
accident was a first-year college
student in that school year 1989-1990
at the Silliman University, majoring in
Physical Education. Because of the
injury, she was not able to enroll in
the second semester of that school
year. She testified that she had no
more intention of continuing with her
schooling, because she could not walk
and decided not to pursue her degree,
major in Physical Education "because
of my leg which has a defect already."
Plaintiff-appellant likewise testified
that even while she was under
confinement, she cried in pain
because of her injured left foot. As a
result of her injury, the Orthopedic
Surgeon also certified that she has
"residual bowing of the fracture side."
She likewise decided not to further
pursue Physical Education as her
major subject, because "my left leg x
x x has a defect already."

Those are her physical pains and


moral
sufferings,
the
inevitable
bedfellows of the injuries that she
suffered. Under Article 2219 of the
Civil Code, she is entitled to recover
moral damages in the sum of
P50,000.00, which is fair, just and
reasonable.
As a general rule, moral damages are not
recoverable in actions for damages predicated on
a breach of contract for it is not one of the items
enumerated under Art. 2219 of the Civil Code.
[5]
As
an
exception,
such
damages
are
recoverable: (1) in cases in which the mishap
results in the death of a passenger, as provided in
Art. 1764, in relation to Art. 2206(3) of the Civil
Code; and (2) in the cases in which the carrier is
guilty of fraud or bad faith, as provided in Art.
2220.[6]
In this case, there is no legal basis for awarding
moral damages since there was no factual finding
by the appellate court that petitioner acted in bad
faith in the performance of the contract of
carriage. Sungas contention that petitioners
admission in open court that the driver of the
jeepney failed to assist her in going to a nearby
hospital cannot be construed as an admission of

bad faith. The fact that it was the driver of the


Isuzu truck who took her to the hospital does not
imply that petitioner was utterly indifferent to the
plight of his injured passenger. If at all, it is merely
implied recognition by Verena that he was the one
at fault for the accident. Exsm
WHEREFORE, the decision of the Court of
Appeals, dated March 31, 1995, and its resolution,
dated September 11, 1995, are AFFIRMED, with
the MODIFICATION that the award of moral
damages is DELETED.
SO ORDERED.
G.R. No. L-22459

October 31, 1967

ANTONIO
V.
ROQUE, petitioner,
vs.
BIENVENIDO P. BUAN, ET AL., respondents.
Francisco R. Sotto and Associates for petitioner.
Angel A. Sison for respondents.
ANGELES, J.:
An appeal by certiorari from a decision of the
Court of Appeals, reversing in toto the decision of
the Court of First Instance of Pampanga which
sentenced the defendants "to pay the plaintiff

(Antonio V. Roque) the sums of P515.70 (hospital


bill) and P840.00 (six months salary), or a total of
P1,355.70, with legal interest from February 12,
1955, plus the sum of P500.00 as attorney's fees
and an equivalent amount of P500.00 as moral
damages, and the costs."
Upon the record, it appears that on 7 June 1955,
Antonio V. Roque filed this suit for damages
against Bienvenido P. Buan and Natividad Paras,
co-administrators of the Estate of the deceased
spouses Florencio P. Buan and Rizalina Paras, in
the Court of First Instance of Pampanga, for
alleged breach of contract of carriage, resulting
from a traffic accident which occurred at Sulipan
Bridge in Apalit, Pampanga.
The circumstances surrounding the occurrence of
the unfortunate accident has been narrated in
court during the trial by the plaintiff himself,
whose testimony was corroborated by a
passenger of the bus. The defense did not
summon any other passenger of the bus to testify.
Neither was the conductor of the bus presented in
court. It relied solely on the testimony of the
driver Celestino Soliman.
The evidence of the plaintiff, substantiated by his
testimony and that of a passenger in the bus,

demonstrate that Florencio P. Buan, in his lifetime


was an operator of land transportation for
passengers, under the name of "Philippine Rabbit
Bus Lines", with a certificate of Public
Convenience issued by the Public Service
Commission. The defendants co-administrators,
sued herein in their legal capacity as such, have
been duly authorize by the court to continue the
operation
of
the
bus
transportation
for
passengers.
On February 12, 1955, at about 2:00 o'clock in the
afternoon, the plaintiff Antonio V. Roque, was a
paying passenger in bus No. 397, operated by the
defendants. The bus left Manila for Angeles City,
Pampanga, driven by Celestino Soliman, an
employee of the operator. All along the way, the
speed of the bus was about 60 kms. per hour.
When the bus was over the Sulipan bridge at
Apalit, Pampanga, it met a cargo truck coming
from the opposite direction. To avoid colliding with
the truck, the driver swerved the bus to the right,
which, however, sideswiped the railing of the
bridge. So violent was the impact that the two iron
grills of a window of the bus were detached,
dangling thereat, and the rear right portion of the
bus was dented inward. The plaintiff was seated
by the side of the window where the iron grills
were detached with his right arm resting on the

sill of the frame of the window. The injuries


suffered by him as a result of the impact are: "1.
Abrasion multiple, upper extreme right; 2. fracture
simple complete; 3. Wound lacerated, exposing
elbow point right." (Exhibit A.)
For the defendants, the driver of the bus declared
that the rate of speed of his bus all the way from
Manila, was between 40 to 50 kms. per hour. As
the bus was approaching the Sulipan bridge, he
reduced the speed to 10 kms. per hour, which he
maintained while passing over the bridge. When
the bus was over the bridge, a freight truck came
along from the opposite direction, and to avoid
colliding with the truck, he swerved the bus to the
right, and as he did so, he suddenly heard the
conductor of the bus shout "para" (stop). Asking
why, the conductor replied: "This arm which was
protruding hit the bridge." Addressing the
passenger indicated by the conductor, who
happened to be the plaintiff, the driver asked:
"Why did you put out your arm?" The passenger
replied: "I fell asleep."
In avoidance of liability, the thesis of the defense
is that plaintiff's arm was injured because he
extended it outside the window, and struck it
against the railing of the bridge. To sustain the
contention, four witnesses were summoned to the

witness-stand who declared in substance that the


bus suffered no damage at all. However, the trial
court's finding shows that the bus suffered
substantial damage. Thus:
To establish that the bus was not damaged,
not even a scratch, the defendants
introduced the mechanic, the carpenter and
the administrative officer, all of the Rabbit,
and the police lieutenant of Apalit, who said,
he saw the bus parked in front of the San
Fernando municipal building. All of these
witnesses declared that they found no dent
nor a single scratch on the right rear side of
the bus and that the grills of the window, by
which the plaintiff was seated, were in their
places.
On the other hand, the plaintiff testified that
before reaching the bridge, the bus was
running at about 60 kilometers per hour and
that it did not slacken until it hit the railing
of the bridge after it had passed the cargo
truck (Exhibit C-1), thereby causing the
injuries to his elbow and arm.
As to the bus, he declared that the rear right
portion was dented, the top of the window

was damaged, and the grills were detached


and dangling from the window.
xxx

xxx

xxx

From the evidence of the plaintiff and that of


his witness, a co-passenger whom he met
for the first time on that fatal occasion, we
have valid grounds to believe and to hold
that the driver, upon seeing the oncoming
truck which he said was big and which was
occupying all the space up to the center of
the line, and motivated undoubtedly by the
fear that it might collide with the left side of
his bus, maneuvered his vehicle to the right,
but because he could not see the cargo
truck as the windows were closed, he went
very near too close so that his bus hit the
railing of the bridge after it had passed the
freight truck. In arriving at this finding and
conclusion,
we
have
taken
into
consideration the fact, as admitted by
Celestino Soliman that he had driven the
bus for only two weeks before the accident,
and notwithstanding the testimony of the
administrative officers regarding seminars
and the like, we believe that the driver had
not yet sufficiently familiarized himself with
the behavior of his bus so as to put it

completely at all times under his control. In


this, we believe there was a lack of diligence
in his selection to drive the Rabbit bus No.
397.
In regard to the injuries, we are inclined to
believe the plaintiff that he rested his arms
on the sill, but within the frame of the
window, and that, as denied in rebuttal, he
was not asleep. This fact is borne out by the
circumstances that he was able to
determine the rate of speed of the bus. If,
indeed, it were true that he extended out
his arm, the injuries would have certainly
been more serious and fatal. That no other
passenger was harmed, this can be
attributed to the fact that the impact was
concentrated at the point precisely where
the victim was unfortunately seated. The
contact was localized.
Upon the foregoing facts, we are firmly
convinced that the plaintiff was not at fault
and that the operator, through its driver and
employee,
failed
to
exercise
that
extraordinary diligence which would have
exempted it from civil liability.
On the same matter, the Court of Appeals said:

Inasmuch as plaintiff was injured, and as no


scratch was found on the rear right side of
the bus, and as the only damage to the bus
as found by the trial court, consisted of the
following: "The rear right portion was
dented, the grills were detached and
dangling from the window, and the top of
the window was damaged", the only
conclusion we can think of as to why
plaintiff was injured is that he must have
extended his right elbow beyond or outside
the grills of the window of the bus, as some
passengers are wont to do unconsciously,
and when the bus moved towards the right
of the bridge as it passed the big freight
truck going in the opposite direction, the
railing of the bridge must have caught
plaintiff's elbow, and the impact was so
violent that the two grills of the window of
the bus were thereby "detached and
dangling from the window" which must have
been the cause of the dent on the right
portion of the bus." (Emphasis Ours.)
Analyzing the findings made by the trial court, on
whether or not the bus suffered damage, We
observe that the court's findings in the affirmative
are factually based on the testimony of the
plaintiff and of the corroborating witness, whose

demeanor while testifying, was within the


observation of the trial court which, after
appreciating their testimonies, found no reason
not to accord them credit. The decision of the
Court of Appeals on the same point, does not
disagree with the findings of the trial court. It
upheld the finding of the trial court that the
damage to the bus were "The rear right portion
was dented, the grills were detached and dangling
from the window, and the top of the window was
damaged, . . . the impact was so violent that the
two grills of the window which must have been
the cause of the dent on the right portion of the
bus." Upon these established facts, the Court of
Appeals concluded, however, that the plaintiff's
arm was injured because "he must have
extended his right elbow beyond or outside the
grills of the window of the bus."
If the decision of the Court of Appeals on the
controversial matter suffers, as it does, from some
ambiguity, the doubt should be resolved to
sustain the trial court in the light of the familiar
and accepted rule that "the judge who tries a case
in the court below, has vastly superior advantage
for the ascertainment of truth and the detection of
falsehood over an appellate court sitting as a
court of review. The appellate court can merely
follow with the eye, the cold words of the witness

as transcribed upon the record, knowing at the


same time, from actual experience, that more or
less, of what the witness actually did say, is
always lost in the process of transcribing. But the
main difficulty does not lie here. There is an
inherent impossibility of determining with any
degree of accuracy what credit is justly due to a
witness from merely reading the words spoken by
him, even if there was no doubt as to the identity
of the words." (Moran, Comments on the Rules of
Court.)

detached from the frame of the window where


they were imbedded, is to tax one's credulity. The
physical fact that the bus suffered damage to the
extent as shown by plaintiff's evidence, is
demonstrative proof that that portion of the bus
came into violent contact with some protruding
hard object on the railing capable of producing
such damage. We are persuaded to believe, as
found by the trial court, that the violent contact of
the bus with the railing was what caused the
damage to the bus.

We are not prepared to agree with the Court of


Appeals' conclusion as to the reason why the
plaintiff's arm was injured - that "he must have
extended his right elbow beyond or outside the
grills of the window of the bus." The conclusion is:
firstly, contrary to the established act; secondly, it
is an inference based on mere assumption; thirdly,
it is contrary to the res ipsa loquitur rule; and
fourthly, it is not in conformity with the physical
law of nature. With the undisputed fact on record
that the bus was damaged to the extent
hereinabove described, and taking account of the
fact that the human hand is tender and fragile, to
say that the violent contact of the hand with the
railing, the bus running at a high rate of speed,
without the vehicle colliding with the railing,
caused the iron grills to be destroyed and

Contrary to the testimony of the driver that the


speed of the bus was only 10 kms. per hour when
it crossed the bridge, we are inclined to accord
more credence to the evidence of the plaintiff,
that the bus was running at an unreasonable
speed when it approached and crossed the bridge.
Judicial notice can be taken of the fact that Apalit
bridge is part of the main thorough fare for all
kinds of vehicles, including big trucks and buses,
cruising along that national highway, wide enough
to permit the simultaneous passage through the
bridge of two trucks or buses. If it is true that the
speed of the bus was only 10 kms. per hour when
it was crossing the bridge, side-swiping the railing
of the bridge at such a low speed, would not have
produced the extent of damage that the bus

suffered. At most, the physical contact would not


have resulted in more than a scratch on the bus.
The testimony of the driver, regarding the
exchange of questions and answers between him
and his conductor, and between him and plaintiff,
is self-impeached by his statement given before
the Chief of Police of Apalit. We quote from the
decision of the Court of Appeals:
However, in his (driver's) "declaration"
taken in the office of the Chief of Police of
Apalit, Pampanga, on February 13, 1955, in
the Pampango dialect, subscribed and sworn
to by him before the Municipal Mayor, the
said bus driver declared pertinently:
". . . upon reaching the bridge of
Sulipan here in Apalit, Pampanga, I
slowed down because there was a
cargo truck coming from the opposite
direction. At the same time, there was
a jeep following me. The speed of my
truck was more or less 10 kms. per
hour because the bridge was narrow
and there was a truck coming from
the opposite direction. After meeting
the said truck on the bridge, my
passengers said that there was a

passenger on board my truck who


was injured. In view of the advice of
the other passengers to bring the
injured passenger to the nearest drug
store, what I did in order to have him
treated was to bring him to Ocampo
Clinic in San Fernando. . . ."
The sworn statement of the driver belie his
testimony in court; firstly, that it was the
conductor who called his attention about the
injured passenger; and secondly, that Roque
admitted that he had put his arm out of the
window and told him that he (Roque) was
"asleep", for if, Roque really gave these replies,
the driver would have so stated in his sworn
statement to the Chief of Police. Such a significant
fact, still fresh in the mind of the driver when he
gave his statement to the police, could not have
been forgotten by him.
Negligence on the part of the common carrier is
presumed where, as in the present case, the
passenger suffers injuries.
In case of death or injuries to passengers,
common carriers are presumed to have
been at fault or to have acted negligently,
unless they proved that they observed

extraordinary diligence as prescribed in


Articles 1733 and 1755. (Art. 1756, New
Civil Code.)
When the action is based on a contract of
carriage and not of tort, 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 any damages
sought for by the plaintiff. For the carrier by
accepting the passenger assumes express
obligation to transport him to his destination
safely, and to observe extraordinary
diligence with due regard for all the
circumstances, and any injury that may be
suffered: by the passenger is right away
attributable to the fault or negligence of the
carrier. (Art. 1776, New Civil Code) This is an
exception to the general rule that
negligence must be proved and it is
incumbent upon the carrier to prove that it
exercised
extraordinary
diligence
as
prescribed in Arts. 1733 and 1755 of the
Civil Code. (Dy Sy vs. Malate Taxicab etc., L8937, November 29, 1957.)
The negligence of the defendants in the case at
bar, rests on something more solid than a legal
presumption. We are persuaded, that the accident

occurred because of want of care and prudence


on the part of bus driver. As the defendants failed
to prove their observance of extraordinary
diligence in discharging their obligation unto
plaintiff, their liability as public utility operator is
beyond question. Hence, the decision of the Court
of Appeals should be reversed. In arriving at this
conclusion, we have not lost sight of the rule that
generally, the findings of fact by the Court of
Appeals are deemed accepted as the basis for
review of the appellate's decision; but, the rule is
not without exception. It is settled that the
findings of fact made by the Court of Appeals may
be set aside: 1) when the conclusion is a finding
grounded entirely on speculation, surmises or
conjectures;1 2) When the inference made is
manifestly mistaken, absurd or impossible; 2 3)
where there is a grave abuse of discretion; 3 4)
when
the
judgment
is
based
on
a
4
misapprehension of facts; and 5) when the Court
of Appeals, in making its findings, went beyond
the issues of the case and the same is contrary to
the admission of both appellant and appellee.5
But, while we must sustain the trial court's award
of actual or compensatory damages, and
attorney's fees, the grant of moral damages
cannot be upheld. The action herein is based on a
breach of contract of carriage. Unless it be proved

that the common carrier, in violating his contract


to carry the passenger safely to his destination,
acted fraudulently or in bad faith, which proof is
wanting, no moral damages can be awarded
where the breach did not result in death, but in
mere physical injuries. (Art. 2220 in relation to
Arts. 1764 and 2206 of the Civil Code.)
WHEREFORE, the decision of the Court of Appeals
is hereby set aside. With the modification that the
award of moral damages is discarded, the
decision of the trial court is hereby affirmed with
costs against the defendants-respondents.
G.R. No. 52159 December 22, 1989
JOSE
vs.
HON. COURT OF
TRANSPORTATION
INC., respondents.

PILAPIL, petitioner,
APPEALS

and ALATCO
COMPANY,

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,
entered:

judgment

is

hereby

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

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.

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