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G.R. No. L-12191 October 14, 1918

JOSE CANGCO,plaintiff-appellant, vs.MANILA RAILROAD CO.,defendant-appellee.

FISHER, J.:

At the time of the occurrence which gave rise to this litigation the plaintiff, Jose Cangco,was in the employment of Manila Railroad Company in the capacity of clerk, with a

monthly wage of P25. He lived in the pueblo of San Mateo, in the province of Rizal, whichis located upon the line of the defendant railroad company; and in coming daily by train tothe company's office in the city of Manila where he worked, he used a pass, supplied bythe company, which entitled him to ride upon the company's trains free of charge. Uponthe occasion in question, January 20, 1915, the plaintiff arose from his seat in the secondclass-car where he was riding and, making, his exit through the door, took his positionupon the steps of the coach, seizing the upright guardrail with his right hand for support.

On the side of the train where passengers alight at the San Mateo station there is acement platform which begins to rise with a moderate gradient some distance away fromthe company's office and extends along in front of said office for a distance sufficient tocover the length of several coaches. As the train slowed down another passenger, namedEmilio Zuiga, also an employee of the railroad company, got off the same car, alightingsafely at the point where the platform begins to rise from the level of the ground. When the

train had proceeded a little farther the plaintiff Jose Cangco stepped off also, but one orboth of his feet came in contact with a sack of watermelons with the result that his feetslipped from under him and he fell violently on the platform. His body at once rolled fromthe platform and was drawn under the moving car, where his right arm was badly crushedand lacerated. It appears that after the plaintiff alighted from the train the car movedforward possibly six meters before it came to a full stop.

The accident occurred between 7 and 8 o'clock on a dark night, and as the railroad stationwas lighted dimly by a single light located some distance away, objects on the platformwhere the accident occurred were difficult to discern especially to a person emerging froma lighted car.

The explanation of the presence of a sack of melons on the platform where the plaintiff

alighted is found in the fact that it was the customary season for harvesting these melonsand a large lot had been brought to the station for the shipment to the market. They werecontained in numerous sacks which has been piled on the platform in a row one uponanother. The testimony shows that this row of sacks was so placed of melons and theedge of platform; and it is clear that the fall of the plaintiff was due to the fact that his footalighted upon one of these melons at the moment he stepped upon the platform. Hisstatement that he failed to see these objects in the darkness is readily to be credited.

The plaintiff was drawn from under the car in an unconscious condition, and it appearedthat the injuries which he had received were very serious. He was therefore brought atonce to a certain hospital in the city of Manila where an examination was made and hisarm was amputated. The result of this operation was unsatisfactory, and the plaintiff wasthen carried to another hospital where a second operation was performed and themember was again amputated higher up near the shoulder. It appears in evidence that the

plaintiff expended the sum of P790.25 in the form of medical and surgical fees and forother expenses in connection with the process of his curation.

Upon August 31, 1915, he instituted this proceeding in the Court of First Instance of thecity of Manila to recover damages of the defendant company, founding his action upon thenegligence of the servants and employees of the defendant in placing the sacks of melonsupon the platform and leaving them so placed as to be a menace to the security ofpassenger alighting from the company's trains. At the hearing in the Court of FirstInstance, his Honor, the trial judge, found the facts substantially as above stated, anddrew therefrom his conclusion to the effect that, although negligence was attributable tothe defendant by reason of the fact that the sacks of melons were so placed as to obstructpassengers passing to and from the cars, nevertheless, the plaintiff himself had failed touse due caution in alighting from the coach and was therefore precluded form recovering.

Judgment was accordingly entered in favor of the defendant company, and the plaintiffappealed.

It can not be doubted that the employees of the railroad company were guilty ofnegligence in piling these sacks on the platform in the manner above stated; that theirpresence caused the plaintiff to fall as he alighted from the train; and that they thereforeconstituted an effective legal cause of the injuries sustained by the plaintiff. It necessarilyfollows that the defendant company is liable for the damage thereby occasioned unlessrecovery is barred by the plaintiff's own contributory negligence. In resolving this problemit is necessary that each of these conceptions of liability, to-wit, the primary responsibilityof the defendant company and the contributory negligence of the plaintiff should beseparately examined.

It is important to note that the foundation of the legal liability of the defendant is thecontract of carriage, and that the obligation to respond for the damage which plaintiff hassuffered arises, if at all, from the breach of that contract by reason of the failure ofdefendant to exercise due care in its performance. That is to say, its liability is direct andimmediate, differing essentially, in legal viewpoint from that presumptive responsibility forthe negligence of its servants, imposed by article 1903 of the Civil Code, which can berebutted by proof of the exercise of due care in their selection and supervision. Article1903 of the Civil Code is not applicable to obligations arising ex contractu, but only toextra-contractual obligations or to use the technical form of expression, that articlerelates only to culpaaquiliana and not to culpa contractual.

Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and 1104 of the CivilCode, clearly points out this distinction, which was also recognized by this Court in itsdecision in the case of Rakes vs.Atlantic, Gulf and Pacific Co. (7 Phil. rep., 359). In

commenting upon article 1093 Manresa clearly points out the difference between " culpa,substantive and independent, which of itself constitutes the source of an obligationbetween persons not formerly connected by any legal tie" and culpa considered as anaccident in the performance of an obligation already existing . . . ."

In the Rakes case (supra) the decision of this court was made to rest squarely upon theproposition that article 1903 of the Civil Code is not applicable to acts of negligence whichconstitute the breach of a contract.

Upon this point the Court said:

The acts to which these articles [1902 and 1903 of the Civil Code] are applicableare understood to be those not growing out of pre-existing duties of the parties

to one another. But where relations already formed give rise to duties, whetherspringing from contract or quasi-contract, then breaches of those duties are


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subject to article 1101, 1103, and 1104 of the same code. (Rakes vs.Atlantic,Gulf and Pacific Co., 7 Phil. Rep., 359 at 365.)

This distinction is of the utmost importance. The liability, which, under the Spanish law, is,in certain cases imposed upon employers with respect to damages occasioned by thenegligence of their employees to persons to whom they are not bound by contract, is notbased, as in the English Common Law, upon the principle of respondeat superior if itwere, the master would be liable in every case and unconditionally but upon theprinciple announced in article 1902 of the Civil Code, which imposes upon all persons whoby their fault or negligence, do injury to another, the obligation of making good the

damage caused. One who places a powerful automobile in the hands of a servant whomhe knows to be ignorant of the method of managing such a vehicle, is himself guilty of anact of negligence which makes him liable for all the consequences of his imprudence. Theobligation to make good the damage arises at the very instant that the unskillful servant,while acting within the scope of his employment causes the injury. The liability of themaster is personal and direct. But, if the master has not been guilty of any negligencewhatever in the selection and direction of the servant, he is not liable for the acts of thelatter, whatever done within the scope of his employment or not, if the damage done bythe servant does not amount to a breach of the contract between the master and theperson injured.

It is not accurate to say that proof of diligence and care in the selection and control of theservant relieves the master from liability for the latter's acts on the contrary, that proofshows that the responsibility has never existed. As Manresa says (vol. 8, p. 68) the liabilityarising from extra-contractual culpa is always based upon a voluntary act or omissionwhich, without willful intent, but by mere negligence or inattention, has caused damage toanother. A master who exercises all possible care in the selection of his servant, takinginto consideration the qualifications they should possess for the discharge of the dutieswhich it is his purpose to confide to them, and directs them with equal diligence, therebyperforms his duty to third persons to whom he is bound by no contractual ties, and heincurs no liability whatever if, by reason of the negligence of his servants, even within thescope of their employment, such third person suffer damage. True it is that under article1903 of the Civil Code the law creates apresumptionthat he has been negligent in theselection or direction of his servant, but the presumption is rebuttable and yield to proof ofdue care and diligence in this respect.

The supreme court of Porto Rico, in interpreting identical provisions, as found in the Porto

Rico Code, has held that these articles are applicable to cases of extra-contractual culpa exclusively. (Carmona vs.Cuesta, 20 Porto Rico Reports, 215.)

This distinction was again made patent by this Court in its decision in the case ofBahia vs.Litonjua and Leynes, (30 Phil. rep., 624), which was an action brought upon thetheory of the extra-contractual liability of the defendant to respond for the damage causedby the carelessness of his employee while acting within the scope of his employment. TheCourt, after citing the last paragraph of article 1903 of the Civil Code, said:

From this article two things are apparent: (1) That when an injury is caused bythe negligence of a servant or employee there instantly arises a presumption oflaw that there was negligence on the part of the master or employer either inselection of the servant or employee, or in supervision over him after theselection, or both; and (2) that that presumption is juris tantum and notjuris et dejure, and consequently, may be rebutted. It follows necessarily that if theemployer shows to the satisfaction of the court that in selection and supervision

he has exercised the care and diligence of a good father of a family, thepresumption is overcome and he is relieved from liability.

This theory bases the responsibility of the master ultimately onhis own negligence and not on that of his servant. This is the notable peculiarityof the Spanish law of negligence. It is, of course, in striking contrast to theAmerican doctrine that, in relations with strangers, the negligence of the servantin conclusively the negligence of the master.

The opinion there expressed by this Court, to the effect that in case of extra-contractual culpa based upon negligence, it is necessary that there shall have been somefault attributable to the defendant personally, and that the last paragraph of article 1903merely establishes a rebuttable presumption, is in complete accord with the authoritativeopinion of Manresa, who says (vol. 12, p. 611) that the liability created by article 1903 isimposed by reason of the breach of the duties inherent in the special relations of authorityor superiority existing between the person called upon to repair the damage and the onewho, by his act or omission, was the cause of it.

On the other hand, the liability of masters and employers for the negligent acts oromissions of their servants or agents, when such acts or omissions cause damages whichamount to the breach of a contact, is not based upon a mere presumption of the master'snegligence in their selection or control, and proof of exercise of the utmost diligence andcare in this regard does not relieve the master of his liability for the breach of his contract.

Every legal obligation must of necessity be extra-contractual or contractual. Extra-contractual obligation has its source in the breach or omission of those mutual dutieswhich civilized society imposes upon it members, or which arise from these relations,other than contractual, of certain members of society to others, generally embraced in theconcept of status. The legal rights of each member of society constitute the measure ofthe corresponding legal duties, mainly negative in character, which the existence of thoserights imposes upon all other members of society. The breach of these general dutieswhether due to willful intent or to mere inattention, if productive of injury, give rise to anobligation to indemnify the injured party. The fundamental distinction between obligationsof this character and those which arise from contract, rests upon the fact that in cases ofnon-contractual obligation it is the wrongful or negligent act or omission itself whichcreates the vinculum juris, whereas in contractual relations the vinculumexistsindependently of the breach of the voluntary duty assumed by the parties when entering

into the contractual relation.

With respect to extra-contractual obligation arising from negligence, whether of act oromission, it is competent for the legislature to elect and our Legislature has so elected whom such an obligation is imposed is morally culpable, or, on the contrary, forreasons of public policy, to extend that liability, without regard to the lack of moralculpability, so as to include responsibility for the negligence of those person who acts ormission are imputable, by a legal fiction, to others who are in a position to exercise anabsolute or limited control over them. The legislature which adopted our Civil Code haselected to limit extra-contractual liability with certain well-defined exceptions to casesin which moral culpability can be directly imputed to the persons to be charged. This moralresponsibility may consist in having failed to exercise due care in the selection and controlof one's agents or servants, or in the control of persons who, by reason of their status,occupy a position of dependency with respect to the person made liable for their conduct.


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The position of a natural or juridical person who has undertaken by contract to renderservice to another, is wholly different from that to which article 1903 relates. When thesources of the obligation upon which plaintiff's cause of action depends is a negligent actor omission, the burden of proof rests upon plaintiff to prove the negligence if he doesnot his action fails. But when the facts averred show a contractual undertaking bydefendant for the benefit of plaintiff, and it is alleged that plaintiff has failed or refused toperform the contract, it is not necessary for plaintiff to specify in his pleadings whether thebreach of the contract is due to willful fault or to negligence on the part of the defendant,or of his servants or agents. Proof of the contract and of its nonperformance issufficientprima facie to warrant a recovery.

As a general rule . . . it is logical that in case of extra-contractual culpa, a suingcreditor should assume the burden of proof of its existence, as the only factupon which his action is based; while on the contrary, in a case of negligencewhich presupposes the existence of a contractual obligation, if the creditorshows that it exists and that it has been broken, it is not necessary for him toprove negligence. (Manresa, vol. 8, p. 71 [1907 ed., p. 76]).

As it is not necessary for the plaintiff in an action for the breach of a contrac t to show thatthe breach was due to the negligent conduct of defendant or of his servants, even thoughsuch be in fact the actual cause of the breach, it is obvious that proof on the part ofdefendant that the negligence or omission of his servants or agents caused the breach ofthe contract would not constitute a defense to the action. If the negligence of servants oragents could be invoked as a means of discharging the liability arising from contract, theanomalous result would be that person acting through the medium of agents or servantsin the performance of their contracts, would be in a better position than those acting inperson. If one delivers a valuable watch to watchmaker who contract to repair it, and thebailee, by a personal negligent act causes its destruction, he is unquestionably liable.Would it be logical to free him from his liability for the breach of his contract, whichinvolves the duty to exercise due care in the preservation of the watch, if he shows that itwas his servant whose negligence caused the injury? If such a theory could be accepted,juridical persons would enjoy practically complete immunity from damages arising from thebreach of their contracts if caused by negligent acts as such juridical persons can ofnecessity only act through agents or servants, and it would no doubt be true in mostinstances that reasonable care had been taken in selection and direction of such servants.If one delivers securities to a banking corporation as collateral, and they are lost byreason of the negligence of some clerk employed by the bank, would it be just andreasonable to permit the bank to relieve itself of liability for the breach of its contract to

return the collateral upon the payment of the debt by proving that due care had beenexercised in the selection and direction of the clerk?

This distinction between culpa aquiliana, as the source of an obligation, and culpacontractual as a mere incident to the performance of a contract has frequently beenrecognized by the supreme court of Spain. (Sentencias of June 27, 1894; November 20,1896; and December 13, 1896.) In the decisions of November 20, 1896, it appeared thatplaintiff's action arose ex contractu, but that defendant sought to avail himself of theprovisions of article 1902 of the Civil Code as a defense. The Spanish Supreme Courtrejected defendant's contention, saying:

These are not cases of injury caused, without any pre-existing obligation, byfault or negligence, such as those to which article 1902 of the Civil Code relates,

but of damages caused by the defendant's failure to carry out the undertakingsimposed by the contracts . . . .

A brief review of the earlier decision of this court involving the liability of employers fordamage done by the negligent acts of their servants will show that in no case has thecourt ever decided that the negligence of the defendant's servants has been held toconstitute a defense to an action for damages for breach of contract.

In the case of Johnson vs.David (5 Phil. Rep., 663), the court held that the owner of acarriage was not liable for the damages caused by the negligence of his driver. In thatcase the court commented on the fact that no evidence had been adduced in the trialcourt that the defendant had been negligent in the employment of the driver, or that hehad any knowledge of his lack of skill or carefulness.

In the case of Baer Senior & Co's Successors vs.Compania Maritima (6 Phil. Rep., 215),the plaintiff sued the defendant for damages caused by the loss of a barge belonging toplaintiff which was allowed to get adrift by the negligence of defendant's servants in thecourse of the performance of a contract of towage. The court held, citing Manresa (vol. 8,pp. 29, 69) that if the "obligation of the defendant grew out of a contract made between itand the plaintiff . . . we do not think that the provisions of articles 1902 and 1903 areapplicable to the case."

In the case of Chapman vs.Underwood (27 Phil. Rep., 374), plaintiff sued the defendantto recover damages for the personal injuries caused by the negligence of defendant'schauffeur while driving defendant's automobile in which defendant was riding at the time.The court found that the damages were caused by the negligence of the driver of the

automobile, but held that the master was not liable, although he was present at the time,saying:

. . . unless the negligent acts of the driver are continued for a length of time as togive the owner a reasonable opportunity to observe them and to direct the driverto desist therefrom. . . . The act complained of must be continued in thepresence of the owner for such length of time that the owner by hisacquiescence, makes the driver's acts his own.

In the case of Yamada vs.Manila Railroad Co. and Bachrach Garage & Taxicab Co. (33Phil. Rep., 8), it is true that the court rested its conclusion as to the liability of thedefendant upon article 1903, although the facts disclosed that the injury complaint of byplaintiff constituted a breach of the duty to him arising out of the contract of transportation.The express ground of the decision in this case was that article 1903, in dealing with theliability of a master for the negligent acts of his servants "makes the distinction betweenprivate individuals and public enterprise;" that as to the latter the law creates a rebuttablepresumption of negligence in the selection or direction of servants; and that in theparticular case the presumption of negligence had not been overcome.

It is evident, therefore that in its decision Yamada case, the court treated plaintiff's actionas though founded in tort rather than as based upon the breach of the contract of carriage,and an examination of the pleadings and of the briefs shows that the questions of lawwere in fact discussed upon this theory. Viewed from the standpoint of the defendant thepractical result must have been the same in any event. The proof disclosed beyond doubtthat the defendant's servant was grossly negligent and that his negligence was theproximate cause of plaintiff's injury. It also affirmatively appeared that defendant had beenguilty of negligence in its failure to exercise proper discretion in the direction of the

servant. Defendant was, therefore, liable for the injury suffered by plaintiff, whether thebreach of the duty were to be regarded as constituting culpa aquiliana or culpacontractual. As Manresa points out (vol. 8, pp. 29 and 69) whether negligence occurs an


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CESAR L. ISAAC,plaintiff-appellant, vs. A. L. AMMEN TRANSPORTATION CO.,INC.,defendant-appellee. BAUTISTA ANGELO, J.:G.R. No. L-9671 August 23, 1957

A. L. Ammen Transportation Co., Inc., hereinafter referred to as defendant, is acorporation engaged in the business of transporting passengers by land for compensationin the Bicol provinces and one of the lines it operates is the one connecting Legaspi City,Albay with Naga City, Camarines Sur. One of the buses which defendant was operating isBus No. 31. On May 31, 1951, plaintiff boarded said bus as a passenger paying therequired fare from Ligao, Albay bound for Pili, Camarines Sur, but before reaching his

destination, the bus collided with a motor vehicle of the pick-up type coming from theopposite direction, as a result of which plaintiff's left arm was completely severed and thesevered portion fell inside the bus. Plaintiff was rushed to a hospital in Iriga, CamarinesSur where he was given blood transfusion to save his life. After four days, he wastransferred to another hospital in Tabaco, Albay, where he under went treatment for threemonths. He was moved later to the Orthopedic Hospital where he was operated on andstayed there for another two months. For these services, he incurred expenses amountingto P623.40, excluding medical fees which were paid by defendant.

As an aftermath, plaintiff brought this action against defendants for damages alleging thatthe collision which resulted in the loss of his left arm was mainly due to the grossincompetence and recklessness of the driver of the bus operated by defendant and thatdefendant incurred in culpa contractualarising from its non-compliance with its obligationto transport plaintiff safely to his, destination. Plaintiff prays for judgment againstdefendant as follows: (1) P5,000 as expenses for his medical treatment, and P3,000 asthe cost of an artificial arm, or a total of P8,000; (2) P6,000 representing loss of earning;(3) P75,000 for diminution of his earning capacity; (4) P50,000 as moral damages; and (5)P10,000 as attorneys' fees and costs of suit.

Defendant set up as special defense that the injury suffered by plaintiff was due entirely tothe fault or negligence of the driver of the pick-up car which collided with the bus driven byits driver and to the contributory negligence of plaintiff himself. Defendant further claimsthat the accident which resulted in the injury of plaintiff is one which defendant could notforesee or, though foreseen, was inevitable.

The after trial found that the collision occurred due to the negligence of the driver of thepick-up car and not to that of the driver of the bus it appearing that the latter did everything

he could to avoid the same but that notwithstanding his efforts, he was not able to avoid it.As a consequence, the court dismissed complaint, with costs against plaintiff. This is anappeal from said decision.

It appears that plaintiff boarded a bus of defendant as paying passenger from Ligao,Albay, bound for Pili, Camarines Sur, but before reaching his destination, the bus collidedwith a pick-up car which was coming from the opposite direction and, as a, result, his leftarm was completely severed and fell inside the back part of the bus. Having thisbackground in view, and considering that plaintiff chose to hold defendant liable on itscontractual obligation to carry him safely to his place of destination, it becomes importantto determine the nature and extent of the liability of a common carrier to a passenger inthe light of the law applicable in this jurisdiction.

In this connection, appellant invokes the rule that, "when an action is based on a contractof carriage, as in this case, all that is necessary to sustain recovery is proof of theexistence of the contract of the breach thereof by act or omission", and in support thereof,

he cites several Philippine cases.1With the ruling in mind, appellant seems to imply thatonce the contract of carriage is established and there is proof that the same was brokenby failure of the carrier to transport the passenger safely to his destination, the liability ofthe former attaches. On the other hand, appellee claims that is a wrong presentation ofthe rule. It claims that the decisions of this Court in the cases cited do not warrant theconstruction sought to be placed upon, them by appellant for a mere perusal thereofwould show that the liability of the carrier was predicated not upon mere breach of itscontract of carriage but upon the finding that its negligence was found to be the direct orproximate cause of the injury complained of. Thus, appellee contends that "if there is nonegligence on the part of the common carrier but that the accident resulting in injuries is

due to causes which are inevitable and which could not have been avoided or anticipatednotwithstanding the exercise of that high degree of care and skill which the carrier isbound to exercise for the safety of his passengers", neither the common carrier nor thedriver is liable therefor.

We believe that the law concerning the liability of a common carrier has now suffered asubstantial modification in view of the innovations introduced by the new Civil Code.These innovations are the ones embodied in Articles 1733, 1755 and 1756 in so far as therelation between a common carrier and its passengers is concerned, which, for readyreference, we quote hereunder:

ART. 1733. Common carriers, from the nature of their business and for reasons ofpublic policy, are bound to observe extra ordinary diligence in the vigilance over the goodsand for the safety of the passengers transported by them according to all thecircumstances of each case.

Such extraordinary diligence in the vigilance over the goods is further expressed inarticles 1734, 1735, and 1745, Nos. 5, 6, and 7, while the extraordinary diligence for the

safety of the passengers is further set forth in articles 1755 and 1756.

ART. 1755. A common carrier is bound to carry the passengers safely as far ashuman care and foresight can provide, using the utmost diligence of very cautiouspersons, with a due regard for all the circumstances.

ART. 1756. In case of death of or injuries to passengers, common carriers arepresumed to have been at fault or to have acted negligently, unless they prove that they

observed extraordinary diligence as prescribed in articles 1733 and 1755.

The Code Commission, in justifying this extraordinary diligence required of a commoncarrier, says the following:

A common carrier is bound to carry the passengers safely as far as human care andforesight can provide, using the utmost deligence of very cautions persons, with dueregard for all circumstances. This extraordinary diligence required of commoncarriers is calculated to protect the passengers from the tragic mishaps thatfrequently occur in connection with rapid modern transportation. This high standardof care is imperatively demanded by the precariousness of human life and by theconsideration that every person must in every way be safeguarded against all injury.(Report of the Code Commission, pp. 35-36)" (Padilla, Civil Code of the Philippines,Vol. IV, 1956 ed., p. 197).


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From the above legal provisions, we can make the following restatement of the principlesgoverning the liability of a common carrier: (1) the liability of a carrier is contractual andarises upon breach of its obligation. There is breach if it fails to exert extraordinarydiligence according to all circumstances of each case; (2) a carrier is obliged to carry itspassenger with the utmost diligence of a very cautious person, having due regard for allthe circumstances; (3) a carrier is presumed to be at fault or to have acted negligently incase of death of, or injury to, passengers, it being its duty to prove that it exercisedextraordinary diligence; and (4) the carrier is not an insurer against all risks of travel.

The question that now arises is: Has defendant observed extraordinary diligence or the

utmost diligence of every cautious person, having due regard for all circumstances, inavoiding the collision which resulted in the injury caused to the plaintiff?

After examining the evidence in connection with how the collision occurred, the lowercourt made the following finding:

Hemos examinado muy detenidamente las pruebas presentadas en la vista,principalmente, las declaraciones que hemos acotado arriba, y hernos Ilegado a laconclusion de que el demandado ha hecho, todo cuanto estuviere de su parte para evitarel accidente, pero sin embargo, no ha podido evitarlo.

EI hecho de que el demandado, antes del choque, tuvo que hacer pasar su truck encimade los montones de grava que estaban depositados en la orilla del camino, sin que haya

ido mas alla, por el grave riesgo que corrian las vidas de sus pasajeros, es pruebaconcluyente de lo que tenemos dicho, a saber: que el cuanto esuba de su parte, paraevitar el accidente, sin que haya podidoevitardo, por estar fuera de su control.

The evidence would appear to support the above finding. Thus, it appears that Bus No.31, immediately prior to the collision, was running at a moderate speed because it had juststopped at the school zone of Matacong, Polangui, Albay. The pick-up car was at fullspeed and was running outside of its proper lane. The driver of the bus, upon seeing themanner in which the pick-up was then running, swerved the bus to the very extreme rightof the road until its front and rear wheels have gone over the pile of stones or gravelsituated on the rampart of the road. Said driver could not move the bus farther right andrun over a greater portion of the pile, the peak of which was about 3 feet high, withoutendangering the safety of his passengers. And notwithstanding all these efforts, the rearleft side of the bus was hit by the pick-up car.

Of course, this finding is disputed by appellant who cannot see eye to eye with theevidence for the appellee and insists that the collision took place because the driver of thebus was going at a fast speed. He contends that, having seen that a car was coming fromthe opposite direction at a distance which allows the use of moderate care and prudenceto avoid an accident, and knowing that on the side of the road along which he was goingthere was a pile of gravel, the driver of the bus should have stopped and waited for thevehicle from the opposite direction to pass, and should have proceeded only after theother vehicle had passed. In other words, according to appellant, the act of the driver ofthe bus in squeezing his way through of the bus in squeezing his way through betweenthe oncoming pick-up and the pile of gravel under the circumstances was considerednegligent.

But this matter is one of credibility and evaluation of the evidence. This is evidence. Thisis the function of the trial court. The trial court has already spoken on this matter as we

have pointed out above. This is also a matter of appreciation of the situation on the part ofthe driver. While the position taken by appellant appeals more to the sense of caution thatone should observe in a given situation to avoid an accident or mishap, such however cannot always be expected from one who is placed suddenly in a predicament where he isnot given enough time to take the course of action as he should under ordinarycircumstances. One who is placed in such a predicament cannot exercise such coolnessor accuracy of judgment as is required of him under ordinary circumstances and hecannot therefore be expected to observe the same judgment, care and precaution as inthe latter. For this reason, authorities abound where failure to observe the same degree ofcare that as ordinary prudent man would exercise under ordinary circumstances when

confronted with a sadden emergency was held to be warranted and a justification toexempt the carrier from liability. Thus, it was held that "where a carrier's employee isconfronted with a sudden emergency, the fact that he is obliged to act quickly and withouta chance for deliberation must be taken into account, and he is held to the some degreeof care that he would otherwise be required to exercise in the absence of such emergencybut must exercise only such care as any ordinary prudent person would exercise underlike circumstances and conditions, and the failure on his part to exercise the bestjudgement the case renders possible does not establish lack of care and skill on his partwhich renders the company, liable. . . . (13 C. J. S., 1412; 10 C. J.,970). Considering allthe circumstances, we are persuaded to conclude that the driver of the bus has done whata prudent man could have done to avoid the collision and in our opinion this relievesappellee from legibility under our law.

A circumstances which miliates against the stand of appellant is the fact borne out by the

evidence that when he boarded the bus in question, he seated himself on the left sidethereof resting his left arm on the window sill but with his left elbow outside the window,this being his position in the bus when the collision took place. It is for this reason that thecollision resulted in the severance of said left arm from the body of appellant thus doinghim a great damage. It is therefore apparent that appellant is guilty of contributorynegligence. Had he not placed his left arm on the window sill with a portion thereofprotruding outside, perhaps the injury would have been avoided as is the case with theother passenger. It is to be noted that appellant was the only victim of the collision.

It is true that such contributory negligence cannot relieve appellee of its liability but willonly entitle it to a reduction of the amount of damage caused (Article 1762, new CivilCode), but this is a circumstance which further militates against the position taken byappellant in this case.

It is the prevailing rule that it is negligence per se for a passenger on a railroad voluntarilyor inadvertently to protrude his arm, hand, elbow, or any other part of his body through thewindow of a moving car beyond the outer edge of the window or outer surface of the car,so as to come in contact with objects or obstacles near the track, and that no recovery canbe had for an injury which but for such negligence would not have been sustained. (10 C.J. 1139)

Plaintiff, (passenger) while riding on an interurban car, to flick the ashes, from his cigar,thrust his hand over the guard rail a sufficient distance beyond the side line of the car tobring it in contact with the trunk of a tree standing beside the track; the force of the blowbreaking his wrist. Held, that he was guilty of contributory negligence as a matter of law.(Malakia vs. Rhode Island Co., 89 A., 337.) Wherefore, thedecision appealed from is affirmed, with cost against appellant. Paras, C.J., Bengzon,

Padilla, Montemayor, Reyes, A., Labrador, Concepcion, Endencia and Felix, JJ., concur.


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G.R. No. L-23733 October 31, 1969

HERMINIO L. NOCUM,plaintiff-appellee, vs.LAGUNA TAYABAS BUS COMPANY,defendant-appellant.

BARREDO, J.:

Appeal of the Laguna Tayabas Bus Co., defendant in the Court below, from a judgment ofthe said court (Court of First Instance of Batangas) in its Civil Case No. 834, wherein

appellee Herminio L. Nocum was plaintiff, sentencing appellant to pay appellee the sum ofP1,351.00 for actual damages and P500.00 as attorney's fees with legal interest from thefiling of the complaint plus costs. Appellee, who was a passenger in appellant's Bus No.120 then making a trip within the barrio of Dita, Municipality of Bay, Laguna, was injuredas a consequence of the explosion of firecrackers, contained in a box, loaded in said busand declared to its conductor as containing clothes and miscellaneous items by a co-passenger. The findings of fact of the trial court are not assailed. The appeal is purely onlegal questions.

Appellee has not filed any brief. All that We have before Us is appellant's brief with thefollowing assignment of errors:

I

BASED ON THE FACTS THE LOWER COURT FOUND AS ESTABLISHED, IT ERREDAS A MATTER OF LAW IN NOT ABSOLVING APPELLANT FROM LIABILITYRESULTING FROM THE EXPLOSION OF FIRECRACKERS CONTAINED IN APACKAGE, THE CONTENTS OF WHICH WERE MISREPRESENTED BY APASSENGER.

II

THE LOWER COURT ERRED, AS A MATTER OF LAW, IN AWARDING DAMAGESWITH LEGAL INTEREST IN FAVOR OF THE APPELLEE.

III

THE LOWER COURT ERRED IN NOT DISMISSING THE COMPLAINT, WITH COSTSAGAINST THE APPELLEE.

Upon consideration of the points raised and discussed by appellant, We find the appeal tobe well taken.

The main basis of the trial court's decision is that appellant did not observe theextraordinary or utmost diligence of a very cautious person required by the followingarticles of the Civil Code:

ART. 1733. Common carriers, from the nature of their business and for reasons of

public policy, are bound to observe extraordinary diligence in the vigilance over thegoods and for the safety of the passengers transported by them, according to all thecircumstances of each case.

Such extraordinary diligence in the vigilance over the goods is further expressed inarticles 1734, 1735, and 1745, Nos. 5, 6, and 7, while the extraordinary diligence forthe 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 ashuman care and foresight can provide, using the utmost diligence of very cautiouspersons, with a due regard for all the circumstances.

ART 1756. In case of death of or injuries to passengers, common carriers arepresumed to have been at fault or to have acted negligently, unless they prove thatthey observed extraordinary diligence as prescribed in articles 1733 and 1755.

Analyzing the evidence presented by the parties, His Honor found:

According to Severino Andaya, a witness for the plaintiff, a man with a box went upthe baggage compartment of the bus where he already was and said box wasplaced under the seat. They left Azcarraga at about 11:30 in the morning and whenthe explosion occurred, he was thrown out. PC investigation report states that thirtyseven (37) passengers were injured (Exhibits "O" and "2").

The bus conductor, Sancho Mendoza, testified that the box belonged to a passengerwhose name he does not know and who told him that it contained miscellaneous

items and clothes. He helped the owner in loading the baggage which weighedabout twelve (12) kilos and because of company regulation, he charged him for ittwenty-five centavos (P0.25). From its appearance there was no indication at all thatthe contents were explosives or firecrackers. Neither did he open the box becausehe just relied on the word of the owner.

Dispatcher Nicolas Cornista of defendant company corroborrated the testimony ofMendoza and he said, among other things, that he was present when the box wasloaded in the truck and the owner agreed to pay its fare. He added that they werenot authorized to open the baggages of passengers because instruction from themanagement was to call the police if there were packages containing articles whichwere against regulations.

xxx xxx xxx

There is no question that Bus No. 120 was road worthy when it left its ManilaTerminal for Lucena that morning of December 5, 1960. The injuries suffered by theplaintiff were not due to mechanical defects but to the explosion of firecrackersinside the bus which was loaded by a co-passenger.

... Turning to the present case, it is quite clear that extraordinary or utmost diligenceof a very cautious person was not observed by the defendant company. The servicemanual, exhibits "3" and "3-A," prohibits the employees to allow explosives, such asdynamite and firecrackers to be transported on its buses. To implement thisparticular rule for 'the safety of passengers, it was therefore incumbent upon theemployees of the company to make the proper inspection of all the baggages whichare carried by the passengers.


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But then, can it not be said that the breach of the contract was due to fortuitousevent? The Supreme Court in the case of Lasam vs. Smith, 45 Phil. 657, quotedEscriche's definition of caso fortuito as "an unexpected event or act of God whichcould neither be foreseen nor resisted, such as floods, torrents, shipwrecks,conflagrations, lightning, compulsions, insurrections, destructions of buildings byunforeseen accidents and other occurrences of a similar nature." In other words, thecause of the unexpected event must be independent of the will of man or somethingwhich cannot be avoided. This cannot be said of the instant case. If proper and rigidinspection were observed by the defendant, the contents of the box could have beendiscovered and the accident avoided. Refusal by the passenger to have the package

opened was no excuse because, as stated by Dispatcher Cornista, employeesshould call the police if there were packages containing articles against companyregulations. Neither was failure by employees of defendant company to detect thecontents of the packages of passengers because like the rationale in the Necesitovs. Paras case (supra), a passenger has neither choice nor control in the exercise oftheir discretion in determining what are inside the package of co-passengers whichmay eventually prove fatal.

We cannot agree. No doubt, the views of His Honor do seem to be in line with the reasonsthat the Code Commission had for incorporating the above-quoted provisions in its draft ofthe Civil Code. Indeed, in approving the said draft, Congress must have concurred withthe Commission that by requiring the highest degree of diligence from common carriers inthe safe transport of their passengers and by creating a presumption of negligenceagainst them, the recklessness of their drivers which is a common sight even in crowded

areas and, particularly, on the highways throughout the country may, somehow, if not in alarge measure, be curbed. We are not convinced, however, that the exacting criterion ofsaid provisions has not been met by appellant in the circumstances of this particular case.

It is undisputed that before the box containing the firecrackers were allowed to be loadedin the bus by the conductor, inquiry was made with the passenger carrying the same as towhat was in it, since its "opening ... was folded and tied with abaca." (Decision p. 16,Record on Appeal.) According to His Honor, "if proper and rigid inspection were observedby the defendant, the contents of the box could have been discovered and the accidentavoided. Refusal by the passenger to have the package opened was no excuse because,as stated by Dispatcher Cornista, employees should call the police if there were packagescontaining articles against company regulations." That may be true, but it is Ourconsidered opinion that the law does not require as much. Article 1733 is not asunbending as His Honor has held, for it reasonably qualifies the extraordinary diligence

required of common carriers for the safety of the passengers transported by them to be"according to all the circumstances of each case." In fact, Article 1755 repeats this samequalification: "A common carrier is bound to carry the passengers safely as far as humancare and foresight can provide, using the utmost diligence of very cautious persons, withdue regard for all the circumstances."

In this particular case before Us, it must be considered that while it is true the passengersof appellant's bus should not be made to suffer for something over which they had nocontrol, as enunciated in the decision of this Court cited by His Honor, 1fairness demandsthat in measuring a common carrier's duty towards its passengers, allowance must begiven to the reliance that should be reposed on the sense of responsibility of all thepassengers in regard to their common safety. It is to be presumed that a passenger willnot take with him anything dangerous to the lives and limbs of his co-passengers, not tospeak of his own. Not to be lightly considered must be the right to privacy to which each

passenger is entitled. He cannot be subjected to any unusual search, when he proteststhe innocuousness of his baggage and nothing appears to indicate the contrary, as in the

case at bar. In other words, inquiry may be verbally made as to the nature of apassenger's baggage when such is not outwardly perceptible, but beyond this,constitutional boundaries are already in danger of being transgressed. Calling apoliceman to his aid, as suggested by the service manual invoked by the trial judge, incompelling the passenger to submit to more rigid inspection, after the passenger hadalready declared that the box contained mere clothes and other miscellaneous, could nothave justified invasion of a constitutionally protected domain. Police officers acting withoutjudicial authority secured in the manner provided by law are not beyond the pale ofconstitutional inhibitions designed to protect individual human rights and liberties. Withal,what must be importantly considered here is not so much the infringement of the

fundamental sacred rights of the particular passenger herein involved, but the constantthreat any contrary ruling would pose on the right of privacy of all passengers of allcommon carriers, considering how easily the duty to inspect can be made an excuse formischief and abuse. Of course, when there are sufficient indications that therepresentations of the passenger regarding the nature of his baggage may not be true, inthe interest of the common safety of all, the assistance of the police authorities may besolicited, not necessarily to force the passenger to open his baggage, but to conduct theneeded investigation consistent with the rules of propriety and, above all, theconstitutional rights of the passenger. It is in this sense that the mentioned service manualissued by appellant to its conductors must be understood.

Decisions in other jurisdictions cited by appellant in its brief, evidently because of thepaucity of local precedents squarely in point, emphasize that there is need, as We holdhere, for evidence of circumstances indicating cause or causes for apprehension that the

passenger's baggage is dangerous and that it is failure of the common carrier's employeeto act in the face of such evidence that constitutes the cornerstone of the commoncarrier's liability in cases similar to the present one.

The principle that must control the servants of the carrier in a case like the onebefore us is correctly stated in the opinion in the case of Clarke v. Louisville & N.R.Co. 20 Ky L. Rep. 839, 49 S.W. 1120. In that case Clarke was a passenger on thedefendant's train. Another passenger took a quantity of gasoline into the samecoach in which Clarke was riding. It ignited and exploded, by reason of which hewas severely injured. The trial court peremptorily instructed the jury to find for thedefendant. In the opinion, affirming the judgment, it is said: "It may be stated briefly,in assuming the liability of a railroad to its passengers for injury done by anotherpassenger, only where the conduct of this passenger had been such before theinjury as to induce a reasonably prudent and vigilant conductor to believe that there

was reasonable ground to apprehend violence and danger to the other passengers,and in that case asserting it to be the duty of the conductor of the railroad train touse all reasonable means to prevent such injury, and if he neglects this reasonableduty, and injury is done, that then the company is responsible; that otherwise therailroad is not responsible."

The opinion quotes with approval from the case of Gulf, C. & S. F. R. Co. vs.Shields, 9 Tex. Civ. App. 652, 29 S. W. 652, in which case the plaintiff was injuredby alcohol which had been carried upon the train by another passenger. In theopinion in that case it is said: "It was but a short period of time after the alcohol wasspilt when it was set on fire and the accident occurred, and it was not shown thatappellant's employees knew that the jug contained alcohol. In fact, it is not shownthat the conductor or any other employee knew that Harris had a jug with him until itfell out of the sack, though the conductor had collected ... (his) fare, and doubtless

knew that he had the sack on the seat with him. ... It cannot be successfully deniedthat Harris had the right as a passenger to carry baggage on the train, and that he


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had a right to carry it in a sack if he chose to do so. We think it is equally clear that,in the absence of some intimation or circumstance indicating that the sack containedsomething dangerous to other passengers, it was not the duty of appellant'sconductor or any other employee to open the sack and examine its contents." Quinnv. Louisville & N. R. Co. 98 Ky. 231, 32 S. W. 742; Wood v. Louisville & N. R. Co.101 Ky. 703, 42 S. W. 349; Louisville & N. R. Co. v. Vincent, 29 Ky. L. Rep. 1049, 96S. W. 898; Louisville & N. R. Co. v. Renfro, 142 Ky. 590, 33 L. R. A. (N. S.) 133, 135S. W. 266.2(Emphasis supplied)

Explosive or Dangerous Contents. A carrier is ordinarily not liable for injuries to

passengers from fires or explosions caused by articles brought into its conveyancesby other passengers, in the absence of any evidence that the carrier, through itsemployees, was aware of the nature of the article or had any reason to anticipatedanger therefrom. (Bogard v. Illinois C. R Co. 144 Ky. 649, 139 S. W. 855, 36 L. R.A.[N. S.] 337; Clarke v. Louisville & N. R. Co. 101 Ky. 34, 39 S. W. 840, 36 L. R. A.123 [explosion of can of gasoline]; East Indian R. Co. v. Mukerjee [1901] A. C. [Eng.]396, 3 B. R. C. 420 P. C. [explosion of fireworks]; Annotation: 37 L. R. A. [N. S.]725.)3

Appellant further invokes Article 1174 of the Civil Code which relieves all obligors,including, of course, common carriers like appellant, from the consequence of fortuitousevents. The court a quo held that "the breach of contract (in this case) was not due tofortuitous event and that, therefore, the defendant is liable in damages." Since We holdthat appellant has succeeded in rebutting the presumption of negligence by showing that it

has exercised extraordinary diligence for the safety of its passengers, "according to thecircumstances of the (each) case", We deem it unnecessary to rule whether or not therewas any fortuitous event in this case.

ACCORDINGLY, the appealed judgment of the t rial court is reversed and the case isdismissed, without costs.


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G.R. No. L-19495 February 2, 1924

HONORIO LASAM, ET AL.,plaintiffs-appellants, vs.FRANK SMITH, JR.,defendant-appellant.

OSTRAND, J.:

The plaintiff are husband and wife and this action is brought to recover damages in thesum of P20,000 for physical injuries sustained by them in an automobile accident. The

trial court rendered a judgment in their favor for the sum of P1,254.10, with legal interestfrom the date of the judgment. Both the plaintiffs and the defendant appeal, the formermaintaining that the damages awarded are insufficient while the latter denies all liability forany damages whatever.

It appears from the evidence that on February 27, 1918, the defendant was the owner of apublic garage in the town of San Fernando, La Union, and engaged in the business ofcarrying passengers for hire from the one point to another in the Province of La Union andthe surrounding provinces. On the date mentioned, he undertook to convey the plaintiffsfrom San Fernando to Currimao, Ilocos Norte, in a Ford automobile. On leaving SanFernando, the automobile was operated by a licensed chauffeur, but after having reachedthe town of San Juan, the chauffeur allowed his assistant, Remigio Bueno, to drive thecar. Bueno held no driver's license, but had some experience in driving, and with theexception of some slight engine trouble while passing through the town of Luna, the car

functioned well until after the crossing of the Abra River in Tagudin, when, according tothe testimony of the witnesses for the plaintiffs, defects developed in the steering gear soas to make accurate steering impossible, and after zigzagging for a distance of about halfa kilometer, the car left the road and went down a steep embankment.

The defendant, in his testimony, maintains that there was no defect in the steering gear,neither before nor after the accident, and expresses the opinion that the swaying orzigzagging of the car must have been due to its having been driven at an excessive rateof speed. This may possibly be true, but it is, from our point of view, immaterial whetherthe accident was caused by negligence on the part of the defendant's employees, orwhether it was due to defects in the automobile; the result would be practically the samein either event.

In going over the bank of the road, the automobile was overturned and the plaintiffspinned down under it. Mr. Lasam escaped with a few contusions and a "dislocated" rib ,but his wife, Joaquina Sanchez, received serious injuries, among which was a compoundfracture of one of the bones in her left wrist. She also appears to have suffered a nervousbreakdown from which she had not fully recovered at the time of the trial.

The complaint in the case was filed about a year and a half after the occurrence aboverelated. It alleges, among other things, that the accident was due to defects in theautomobile as well as to the incompetence and negligence of the chauffeur, and the caseappears to have been tried largely upon the theory that it sounds in tort and that theliability of the defendant is governed by article 1903 of the Civil Code. The trial court held,however, that the cause of action rests on the defendant's breach of the contract ofcarriage and that, consequently, articles 1101-1107 of the Civil Code, and not article1903, are applicable. The court further found that the breach of the contract was not due

to fortuitous events and that, therefore, the defendant was liable in damages.

In our opinion, the conclusions of the court below are entirely correct. That upon the factsstated the defendant's liability, if any, is contractual, is well settled by previous decisions ofthe 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 soably and exhaustively discussed in various other cases, that nothing further need here besaid upon that subject. (See Cangco vs. Manila Railroad Co., 38 Phil., 768; ManilaRailroad Co. vs. Compania Trasatlantica and Atlantic, Gulf & Pacific Co., 38 Phil., 875; DeGuia vs. Manila Electric Railroad & Light Co., 40 Phil., 706.) It is sufficient to reiterate thatthe source of the defendant's legal liability is the contract of carriage; that by entering intothat contract he bound himself to carry the plaintiffs safely and securely to their

destination; and that having failed to do so he is liable in damages unless he shows thatthe failure to fulfill his obligation was due to causes mentioned in article 1105 of the CivilCode, which reads as follows:

No one shall be liable for events which could not be foreseen or which, even ifforeseen, were inevitable, with the exception of the cases in which the lawexpressly provides otherwise and those in which the obligation itself imposessuch liability.

This brings us to the principal question in the case:

What is meant by "events which cannot be foreseen and which, having been foreseen, areinevitable?" 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.; Scvola, CodigoCivil, vol. 19, pp. 526 et seq.)

The antecedent to article 1105 is found in Law 11, Title 33, Partida 7, which defines casofortuito as "occasion que a case por aventura de que non se puede ante ver. E son estos,derrivamientos de casas e fuego que se enciende a so ora, e quebrantamiento de navio,fuerca de ladrones. . . . (An event that takes place by accident and could not have beenforeseen. Examples of this are destruction of houses, unexpected fire, shipwreck, violenceof robbers. . . .)"

Escriche defines caso fortuito as "an unexpected event or act of God which could eitherbe foreseen nor resisted, such as floods, torrents, shipwrecks, conflagrations, lightning,compulsion, insurrections, destructions, destruction of buildings by unforseen accidentsand other occurrences of a similar nature."

In discussing and analyzing the term caso fortuito the Enciclopedia JuridicaEspaola says: "In a legal sense and, consequently, also in relation to contracts, a casofortuito presents the following essential characteristics: (1) The cause of the unforeseenand 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 eventwhich 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 hisobligation in a normal manner. And (4) the obligor (debtor) must be free from anyparticipation in the aggravation of the injury resulting to the creditor." (5 EnciclopediaJuridica Espaola, 309.)

As will be seen, these authorities agree that some ext raordinary circumstanceindependent of the will of the obligor, or of his employees, is an essential element of


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a caso fortuito. Turning to the present case, it is at once apparent that this element islacking. It is not suggested that the accident in question was due to an act of God or toadverse road conditions which could not have been foreseen. As far as the recordsshows, the accident was caused either by defects in the automobile or else through thenegligence of its driver. That is not a caso fortuito.

We agree with counsel that neither under the American nor Spanish law is a carrier ofpassengers an absolute insurer against the risks of travel from which the passenger mayprotect himself by exercising ordinary care and diligence. The case of Alba vs. SociedadAnonima de Tranvias,Jurisprudencia Civil, vol. 102, p. 928, cited by the defendant in

support of his contentions, affords a good illustration of the application of this principle. Inthat case Alba, a passenger on a street car, was standing on the platform of the car whileit was in motion. The car rounded a curve causing Alba to lose his balance and fall off theplatform, sustaining severe injuries. In an action brought by him to recover damages, thesupreme court of Spain held that inasmuch as the car at the time of the accident wastravelling at a moderate rate of speed and there was no infraction of the regulations, andthe plaintiff was exposed to no greater danger than that inherent in that particular mode oftravel, the plaintiff could not recover, especially so since he should have been on hisguard against a contingency as natural as that of losing his balance to a greater or less

extent when the car rounded the curve .

But such is not the present case; here the passengers had no means of avoiding thedanger or escaping the injury.

The plaintiffs maintain that the evidence clearly establishes that they are entitled todamages in the sum of P7,832.80 instead of P1,254.10 as found by the trial court, andtheir assignments of error relate to this point only.

There can be no doubt that the expenses incurred by the plaintiffs as a result of theaccident greatly exceeded the amount of the damages awarded. But bearing in mind thatin determining the extent of the liability for losses or damages resulting from negligence inthe fulfillment of a contractual obligation, the courts have "a discretionary power tomoderate the liability according to the circumstances" (De Guia vs. Manila ElectricRailroad & Light Co., 40 Phil., 706; art. 1103, Civil Code), we do not think that theevidence is such as to justify us in interfering with the discretion of the court below in thisrespect. As pointed out by that court in its well-reasoned and well-considered decision, byfar the greater part of the damages claimed by the plaintiffs resulted from the fracture of a

bone in the left wrist of Joaquina Sanchez and from her objections to having a decayingsplinter of the bone removed by a surgical operation. As a consequence of her refusal tosubmit such an operation, a series of infections ensued and which required constant andexpensive medical treatment for several years. We agree with the court below that thedefendant should not be charged with these expenses.

For the reasons stated, the judgment appealed from is affirmed, without costs in thisinstance. So ordered.

Araullo, C.J., Street, Malcolm, Johns and Romualdez, JJ., concur.


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PRECILLANO NECESITO, ETC.,plaintiff-appellant, vs.NATIVIDAD PARAS, ET AL.,defendants-appellees.

GERMAN NECESITO, ET AL.,plaintiffs-appellants, vs.NATIVIDAD PARAS, ET AL.,defendants-appellees.

REYES, J. B. L., J.: G.R. No. L-10605 June 30, 1958

These cases involve ex contractu against the owners and operators of the common carrier

known as Philippine Rabbit Bus Lines, filed by one passenger, and the heirs of another,who injured as a result of the fall into a river of the vehicle in which they were riding.

In the morning of January 28, 1964, Severina Garces and her one-year old son, PrecillanoNecesito, carrying vegetables, boarded passenger auto truck or bus No. 199 of thePhilippine Rabbit Bus Lines at Agno, Pangasinan. The passenger truck, driven byFrancisco Bandonell, then proceeded on its regular run from Agno to Manila. Afterpassing Mangatarem, Pangasinan truck No. 199 entered a wooden bridge, but the frontwheels swerved to the right; the driver lost control, and after wrecking the bridge's woodenrails, the truck fell on its right side into a creek where water was breast deep. The mother,Severina Garces, was drowned; the son, Precillano Necesito, was injured, sufferingabrasions and fracture of the left femur. He was brought to the Provincial Hospital atDagupan, where the fracture was set but with fragments one centimeter out of line. Themoney, wrist watch and cargo of vegetables were lost.

Two actions for damages and attorney's fees totalling over P85,000 having been filed inthe Court of First Instance of Tarlac (Cases Nos. 908 and 909) against the carrier, thelatter pleaded that the accident was due to "engine or mechanical trouble" independent orbeyond the control of the defendants or of the driver Bandonell.

After joint trial, the Court of F irst Instance found that the bus was proceeding slowly due tothe bad condition of the road; that the accident was caused by the fracture of the rightsteering knuckle, which was defective in that its center or core was not compact but"bubbled and cellulous", a condition that could not be known or ascertained by the carrierdespite the fact that regular thirty-day inspections were made of the steering knuckle,since the steel exterior was smooth and shiny to the depth of 3/16 of an inch all around;that the knuckles are designed and manufactured for heavy duty and may last up to ten

years; that the knuckle of bus No. 199 that broke on January 28, 1954, was last inspectedon January 5, 1954, and was due to be inspected again on February 5th. Hence, the trialcourt, holding that the accident was exclusively due to fortuitous event, dismissed bothactions. Plaintiffs appealed directly to this Court in view of the amount in controversy.

We are inclined to agree with the trial court that it is not likely that bus No. 199 of thePhilippine Rabbit Lines was driven over the deeply rutted road leading to the bridge at aspeed of 50 miles per hour, as testified for the plaintiffs. Such conduct on the part of thedriver would have provoked instant and vehement protest on the part of the passengersbecause of the attendant discomfort, and there is no trace of any such complaint in therecords. We are thus forced to assume that the proximate cause of the accident was thereduced strength of the steering knuckle of the vehicle caused by defects in casting it.While appellants hint that the broken knuckle exhibited in court was not the real fittingattached to the truck at the time of the accident, the records they registered no objection

on that ground at the trial below. The issue is thus reduced to the question whether or notthe carrier is liable for the manufacturing defect of the steering knuckle, and whether the

evidence discloses that in regard thereto the carrier exercised the diligence required bylaw (Art. 1755, new Civil Code).

ART. 1755. A common carrier is bound to carry the passengers safely as far ashuman care and foresight can provide, using the utmost diligence of very cautiouspersons, with a due regard for the all the circumstances.

It is clear that the carrier is not an insurer of the passengers' safety. His liability rests uponnegligence, his failure to exercise the "utmost" degree of diligence that the law requires,and by Art. 1756, in case of a passenger's death or injury the carrier bears the burden ofsatisfying the court that he has duly discharged the duty of prudence required. In theAmerican law, where the carrier is held to the same degree of diligence as under the newCivil Code, the rule on the liability of carriers for defects of equipment is thus expressed:"The preponderance of authority is in favor of the doctrine that a passenger is entitled torecover damages from a carrier for an injury resulting from a defect in an appliancepurchased from a manufacturer, whenever it appears that the defect would have beendiscovered by the carrier if it had exercised the degree of care which under thecircumstances was incumbent upon it, with regard to inspection and application of thenecessary tests. For the purposes of this doctrine, the manufacturer is considered asbeing in law the agent or servant of the carrier, as far as regards the work of constructingthe appliance. According to this theory, the good repute of the manufacturer will notrelieve the carrier from liability" (10 Am. Jur. 205, s, 1324; see also Pennsylvania R. Co.vs. Roy, 102 U. S. 451; 20 L. Ed. 141; Southern R. Co. vs. Hussey, 74 ALR 1172; 42 Fed.2d 70; and Ed Note, 29 ALR 788; Ann. Cas. 1916E 929).

The rationale of the carrier's liability is the fact that the passenger has neither choice norcontrol over the carrier in the selection and use of the equipment and appliances in use bythe carrier. Having no privity whatever with the manufacturer or vendor of the defectiveequipment, the passenger has no remedy against him, while the carrier usually has. It isbut logical, therefore, that the carrier, while not in insurer of the safety of his passengers,should nevertheless be held to answer for the flaws of his equipment if such flaws were atall discoverable. Thus Hannen, J., in Francis vs. Cockrell, LR 5 Q. B. 184, said:

In the ordinary course of things, the passenger does not know whether the carrierhas himself manufactured the means of carriage, or contracted with someone elsefor its manufacture. If the carrier has contracted with someone else the passengerdoes not usually know who that person is, and in no case has he any share in the

selection. The liability of the manufacturer must depend on the terms of the contractbetween him and the carrier, of which the passenger has no knowledge, and overwhich he can have no control, while the carrier can introduce what stipulations andtake what securities he may think proper. For injury resulting to the carrier himself bythe manufacturer's want of care, the carrier has a remedy against the manufacturer;but the passenger has no remedy against the manufacturer for damage arising froma mere breach of contract with the carrier . . . . Unless, therefore, the presumedintention of the parties be that the passenger should, in the event of his being injuredby the breach of the manufacturer's contract, of which he has no knowledge, bewithout remedy, the only way in which effect can be given to a different intention isby supposing that the carrier is to be responsible to the passenger, and to look forhis indemnity to the person whom he selected and whose breach of contract hascaused the mischief. (29 ALR 789)

And in the leading case of Morgan vs. Chesapeake & O. R. Co. 15 LRA (NS) 790, 16 Ann.Cas. 608, the Court, in holding the carrier responsible for damages caused by the fracture


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of a car axle, due to a "sand hole" in the course of moulding the axle, made the followingobservations.

The carrier, in consideration of certain well-known and highly valuable rights grantedto it by the public, undertakes certain duties toward the public, among them being toprovide itself with suitable and safe cars and vehicles in which carry the travelingpublic. There is no such duty on the manufacturer of the cars. There is no reciprocallegal relation between him and the public in this respect. When the carrier elects tohave another build its cars, it ought not to be absolved by that facts from its duty tothe public to furnish safe cars. The carrier cannot lessen its responsibility by shifting

its undertaking to another's shoulders. Its duty to furnish safe cars is side by sidewith its duty to furnish safe track, and to operate them in a safe manner. None of itsduties in these respects can be sublet so as to relieve it from the full measureprimarily exacted of it by law. The carrier selects the manufacturer of its cars, if itdoes not itself construct them, precisely as it does those who grade its road, and layits tracks, and operate its trains. That it does not exercise control over the former isbecause it elects to place that matter in the hands of the manufacturer, instead ofretaining the supervising control itself. The manufacturer should be deemed theagent of the carrier as respects its duty to select the material out of which its carsand locomotive are built, as well as in inspecting each step of their construction. Ifthere be tests known to the crafts of car builders, or iron moulders, by which suchdefects might be discovered before the part was incorporated into the car, then thefailure of the manufacturer to make the test will be deemed a failure by the carrier tomake it. This is not a vicarious responsibility. It extends, as the necessity of this

business demands, the rule of respondeat superior to a situation which falls clearlywithin its scope and spirit. Where an injury is inflicted upon a passenger by thebreaking or wrecking of a part of the train on which he is riding, it is presumably theresult of negligence at some point by the carrier. As stated by Judge Story, in Storyon Bailments, sec. 601a: "When the injury or damage happens to the passenger bythe breaking down or overturning of the coach, or by any other accident occurring onthe ground, the presumption prima facie is that it occurred by the negligence of thecoachmen, and onus probandi is on the proprietors of the coach to establish thatthere has been no negligence whatever, and that the damage or injury has beenoccasioned by inevitable casualty, or by some cause which human care andforesight could not prevent; for the law will, in tenderness to human life and limb,hold the proprietors liable for the slightest negligence, and will compel them to repelby satisfactory proofs every imputation thereof." When the passenger has proved hisinjury as the result of a breakage in the car or the wrecking of the train on which hewas being carried, whether the defect was in the particular car in which he wasriding or not, the burden is then cast upon the carrier to show that it was due to acause or causes which the exercise of the utmost human skill and foresight couldnot prevent. And the carrier in this connection must show, if the accident was due toa latent defect in the material or construction of the car, that not only could it nothave discovered the defect by the exercise of such care, but that the builders couldnot by the exercise of the same care have discovered the defect or foreseen theresult. This rule applies the same whether the defective car belonged to the carrieror not.

In the case now before us, the record is to the effect that the only test applied to thesteering knuckle in question was a purely visual inspection every thirty days, to see if anycracks developed. It nowhere appears that either the manufacturer or the carrier at anytime tested the steering knuckle to ascertain whether its strength was up to standard, or

that it had no hidden flaws would impair that strength. And yet the carrier must have beenaware of the critical importance of the knuckle's resistance; that its failure or breakage

would result in loss of balance and steering control of the bus, with disastrous effectsupon the passengers. No argument is required to establish that a visual inspection couldnot directly determine whether the resistance of this critically important part was notimpaired. Nor has it been shown that the weakening of the knuckle was impossible todetect by any known test; on the contrary, there is testimony that it could be detected. Weare satisfied that the periodical visual inspection of the steering knuckle as practiced bythe carrier's agents did not measure up to the required legal standard of "utmost diligenceof very cautious persons" "as far as human care and foresight can provide", andtherefore that the knuckle's failure can not be considered a fortuitous event that exemptsthe carrier from responsibility (Lasam vs. Smith, 45 Phil. 657; Son vs. Cebu Autobus Co.,

94 Phil., 892.)

It may be impracticable, as appellee argues, to require of carriers to test the strength ofeach and every part of its vehicles before each trip; but we are of the opinion that a dueregard for the carrier's obligations toward the traveling public demands adequateperiodical tests to determine the condition and strength of those vehicle portions thefailure of which may endanger the safe of the passengers.

As to the damages suffered by the plaintiff s, we agree with appellee that no allowancemay be made for moral damages, since under Article 2220 of the new Civil Code, in caseof suits for breach of contract, moral damages are recoverable only where the defendantacted fraudulently or in bad faith, and there is none in the case before us. As to exemplarydamages, the carrier has not acted in a "wanton, fraudulent, reckless, oppressive ormalevolent manner" to warrant their award. Hence, we believe that for the minor

Precillano Necesito (G. R. No. L-10605), an indemnity of P5,000 would be adequate forthe abrasions and fracture of the femur, including medical and hospitalization expenses,there being no evidence that there would be any permanent impairment of his faculties orbodily functions, beyond the lack of anatomical symmetry. As for the death of SeverinaGarces (G. R. No. L-10606) who was 33 years old, with seven minor children when shedied, her heirs are obviously entitled to indemnity not only for the incidental loses ofproperty (cash, wrist watch and merchandise) worth P394 that she carried at the time ofthe accident and for the burial expenses of P490, but also for the loss of her earnings(shown to average P120 a month) and for the deprivation of her protection, guidance andcompany. In our judgment, an award of P15,000 would be adequate (cf Alcantara vs.Surro, 49 Off. Gaz. 2769; 93 Phil., 472).

The low income of the plaintiffs-appellants makes an award for attorney's fees just andequitable (Civil Code, Art. 2208, par. 11). Considering that he two cases filed were triedjointly, a fee of P3,500 would be reasonable.

In view of the foregoing, the decision appealed from is reversed, and the defendants-appellees are sentenced to indemnify the plaintiffs-appellants in the following amounts:P5,000 to Precillano Necesito, and P15,000 to the heirs of the deceased SeverinaGarces, plus P3,500 by way of attorney's fees and litigation expenses. Costs againstdefendants-appellees. So ordered.

Paras, C. J., Bengzon, Reyes, A., Bautista Angelo, Concepcion, and Endencia,

JJ.,concur.

Felix, J.,concurs in the result.


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Neccesito VS Paras R E S O L U T I O N September 11, 1958

REYES, J. B. L., J.:

Defendants-appellees have Submitted a motion asking this Court to reconsider itsdecision of June 30, 1958, and that the same be modified with respect to (1) its holdingthe carrier liable for the breakage of the steering knuckle that caused the autobus No. 199to overturn, whereby the passengers riding in it were injured; (2) the damages awarded,that appellees argue to be excessive; and (3) the award of attorneys' fees.

(1) The rule prevailing in this jurisdiction as established in previous decisions of this Court,cited in our main opinion, is that a carrier is liable to its passengers for damages causedby mechanical defects of the conveyance. As early as 1924, in Lasam vs. Smith, 45 Phil.659 this Court ruled:

As far as the record shows, the accident was caused either by defects in theautomobileor else through the negligence of its driver. That is not caso fortuito.

And in Son vs. Cebu Autobus Company, 94 Phil., 892, this Court held a common carrierliable in damages to passenger for injuries cause by an accident due to the breakage of afaulty drag-link spring.

It can be seen that while the courts of the United States are at variance on the question ofa carrier's liability for latent mechanical defects, the rule in this jurisdiction has beenconsistent in holding the carrier responsible. This Court has quoted from American andEnglish decisions, not because it felt bound to follow the same, but merely in approval ofthe rationale of the rule as expressed therein, since the previous Philippine cases did notenlarge on the ideas underlying the doctrine established thereby.

The new evidence sought to be introduced do not warrant the grant of a new trial, sincethe proposed proof available when the original trial was held. Said evidence is not newlydiscovered.

(2) With regard to the indemnity awarded to the child Precilliano Necesito, the injuriessuffered by him are incapable of accurate pecuniary estimation, particularly because thefull effect of the injury is not ascertainable immediately. This uncertainty, however, doesnot preclude the right to an indemnity, since the injury is patent and not denied (CivilCode, Art. 2224). The reasons behind this award are expounded by the CodeCommission in its report:

There are cases where from the nature of the case, definite proof of pecuniaryloss cannot be offered, although the court is convinced that there has been suchloss. For instance, injury to one's commercial credit or to the goodwill of abusiness firm is often hard to show with certainty in terms of money. Shoulddamages be denied for that reason? The judge should be empowered tocalculate moderate damages in such cases, rather than that the plaintiff shouldsuffer, without redress, from the defendant's wrongful act." (Report of the CodeCommission, p. 75)

In awarding to the heirs of the deceased Severina Garces an indemnity for the loss of her"guidance, protection and company," although it is but moral damage, the Court took into

account that the case of a passenger who dies in the course of an accident, due to thecarrier's negligence constitutes an exception to the general rule. While, as pointed out inthe main decision, under Article 2220 of the new Civil Code there can be no recovery ofmoral damages for a breach of contract in the absence of fraud malice or bad faith, thecase of a violation of the contract of carriage leading to a passenger's death escapes thisgeneral rule, in view of Article 1764 in connection with Article 2206, No. 3 of the new CivilCode.

ART. 1764. Damages in cases comprised in this Sec tion shall be awarded inaccordance with Title XVIII of this Book, concerning Damages. Article 2206 shall

also apply to the death of a passenger caused by the breach of contract by acomman carrier. ART. 2206. . . .

(3) The spouse, legitimate and eligimate descendants and ascendants of thedeceased may demand moral damages for mental anguish by reason of thedeath of the deceased.

Being a special rule limited to cases of fatal injuries, these articles prevail over the generalrule of Art. 2220. Special provisions control general ones (Lichauco & Co. vs. Apostol, 44Phil. 138; Sancio vs. Lizarraga, 55 Phil. 601).

It thus appears that under the new Civil Code, in case of accident due to a carrier'snegligence, the heirs of a deceased passenger may recover moral damages, even though

a passenger who is injured, but manages to survive, is not entitled to them. There is,therefore, no conflict between our main decision in the instant case and that of Cacherovs. Manila Yellow Taxi Cab Co., 101 Phil., 523, where the passenger suffered injuries, butdid not lose his life.

(3) In the Cachero case this Court disallowed attorneys' fees to the injured plaintiffbecause the litigation arose out of his exaggerated and unreasonable deeds for anindemnity that was out of proportion with the compensatory damages to which he wassolely entitled. But in the present case, plaintiffs' original claims can not be deemed apriori wholly unreasonable, since they had a right to indemnity for moral damages besidescompensatory ones, and moral damages are not determined by set and invariablebounds.

Neither does the fact that the contract between the passengers and their counsel was ona contingent basis affect the former's right to counsel fees. As pointed out for appellants,the Court's award is an party and not to counsel. A litigant who improvidently stipulatehigher counsel fees than those to which he is lawfully entitled, does not for that reasonearn the right to a larger indemnity; but, by parity of reasoning, he should not be deprivedof counsel fees if by law he is entitled to recover them.

We find no reason to alter the main decision heretofore rendered. Ultimately, the positiontaken by this Court is that a common carrier's contract is not to be regarded as a game ofchance wherein the passenger stakes his limb and life against the carrier's property andprofits.

Wherefore, the motion for reconsideration is hereby denied. So ordered. Paras, C. J.,Bengzon, Padilla, Montemayor, Reyes, A., Bautista Angelo, Concepcion, Endencia, and

Felix, JJ.,concur.


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G.R. No. L-21486 May 14, 1966

LA MALLORCA and PAMPANGA BUS COMPANY,petitioner, vs.VALENTIN DE JESUS, MANOLO TOLENTINO and COURT OFAPPEALS,respondents.

MAKALINTAL, J.:

La Mallorca and Pampanga Bus Company, Inc., commonly known as La Mallorca-

Pambusco, filed this appeal bycertiorarifrom the decision of the Court of Appeals whichaffirmed that rendered by the Court of First Instance of Bulacan in its civil case No. 2100,entitled "Valentin de Jesus and Manolo Tolentino vs. La Mallorca-Pambusco." The court aquosentenced the defendant, now petitioner, "to pay to plaintiffs the amount of P2,132.50for actual damages; P14,400.00 as compensatory damages; P10,000.00 to each plaintiffby way of moral damages; and P3,000.00 as counsel fees."

Two errors are attributed to the appellate Court: (1) "in sustaining the decision (of thecourt a quo) holding that the petitioners were liable for the accident which was caused bya blow-out of one of the tires of the bus and in not considering the same as caso fortuito,"and (2) in holding petitioners liable for moral damages.

The suit arose by reason of the death of Lolita de Jesus, 20-year old daughter of Valentinde Jesus and wife of Manolo Tolentino, in a head-on collision between petitioner's bus, onwhich she was a passenger, and a freight truck traveling in the opposite direction, in abarrio in Marilao Bulacan, in the morning of October 8, 1959. The immediate cause of thecollision was the fact that the driver of the bus lost control of the wheel when its left fronttire suddenly exploded.

Petitioner maintains that a tire blow-out is a fortuitous event and gives rise to no liability fornegligence, citing the rulings of the Court of Appeals in Rodriguez vs. Red LineTransportation Co., CA-G.R. No. 8136, December 29, 1954, and People vs. Palapad, CA-G.R. No. 18480, June 27, 1958. These rulings, however, not only are not not binding onthis Court but were based on considerations quite different from those that obtain in the atbar. The appellate Court there made no findings of any specified acts of negligence on thepart of the defendants and confined itself to the question of whether or not a tire blow-out,by itself alone and without a showing as to the causative factors, would generate liability.

In the present case, the cause of the blow-out was known. The inner tube of the left fronttire, according to petitioner's own evidence and as found by the Court of Appeals "waspressed between the inner circle of the left wheel and the rim which had slipped out of thewheel." This was, said Court correctly held, a m

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