Police investigation reports showed that respondent

FIRST DIVISION Noe was one of the 11 passengers of the Fiera who
suffered injuries; that when the Fiera stopped to pick up
G.R. No. 144723 February 27, 2006
a passenger, the cargo truck bumped the rear left
LARRY ESTACION, Petitioner, portion of the Fiera; that only one tire mark from the
vs. front right wheel of the cargo truck was seen on the
NOE BERNARDO, thru and his guardian ad road. A sketch of the accident was drawn by
litem ARLIE BERNARDO, CECILIA investigator Mateo Rubia showing the relative positions
BANDOQUILLO and GEMINIANO of the two vehicles, their distances from the shoulder of
QUINQUILLERA, Respondents. the road and the skid marks of the right front wheel of
the truck measuring about 48 feet.
DE CISION
On February 18, 1993, respondent Noe, through his
AUSTRIA-MARTINEZ, J.: guardian ad litem Arlie Bernardo, filed with the RTC of
Dumaguete City a complaint 3 for damages arising
Before us is a petition for review on certiorari filed by from quasi delict against petitioner as the registered
Larry Estacion (petitioner) seeking to annul the owner of the cargo truck and his driver Gerosano. He
Decision dated April 17, 20001 of the Court of Appeals alleged that the proximate cause of his injuries and
(CA) in CA-GR CV No. 41447 which affirmed in suffering was the reckless imprudence of Gerosano and
toto the decision of the Regional Trial Court (RTC) of petitioner’s negligence in the selection of a reckless
Dumaguete City, Branch 41, Negros Oriental, holding driver and for operating a vehicle that was not
petitioner and his driver Bienvenido Gerosano roadworthy. He prayed for actual damages, loss of
(Gerosano) liable for damages for the injury sustained income, moral and exemplary damages, attorney’s fees,
by Noe Bernardo (respondent Noe). Also assailed is the litigation expenses and costs of suit.
appellate court’s Resolution dated August 16,
20002 denying petitioner’s motion for reconsideration. Petitioner and his driver Gerosano filed their
Answer4 denying the material allegations in the
In the afternoon of October 16, 1982, respondent Noe complaint. They, in turn, filed a third party
was going home to Dumaguete from Cebu, via Bato complaint 5 against respondents Bandoquillo and
and Tampi. At Tampi, he boarded a Ford Fiera Quinquillera, as owner and driver respectively of the
passenger jeepney with plate no. NLD 720 driven by Fiera. They alleged that it was the reckless imprudence
respondent Geminiano Quinquillera (Quinquillera), of respondent driver Quinquillera and his clear
owned by respondent Cecilia Bandoquillo violation of the traffic rules and regulations which was
(Bandoquillo), and was seated on the extension seat the proximate cause of the accident and asked for
placed at the center of the Fiera. From San Jose, an old indemnification for whatever damages they would be
woman wanted to ride, so respondent Noe offered his sentenced to pay. Respondents Bandoquillo and
seat. Since the Fiera was already full, respondent Noe Quinquillera filed their Answer to the third party
hung or stood on the left rear carrier of the vehicle. complaint asking for the dismissal of the third party
Somewhere along Barangay Sto. Niño, San Jose, complaint and for payment of attorney’s fees.
Negros Oriental, between kilometers 13 and 14, the
Fiera began to slow down and then stopped by the right Driver Gerosano was charged criminally for reckless
shoulder of the road to pick up passengers. Suddenly, imprudence resulting to multiple physical injuries with
an Isuzu cargo truck, owned by petitioner and driven by damage to property before the Municipal Circuit Trial
Gerosano, which was traveling in the same direction, Court (MCTC) of Pamplona-Amlan and San Jose,
hit the rear end portion of the Fiera where respondent Negros Oriental. On November 16, 1987, the MCTC
Noe was standing. Due to the tremendous force, the rendered its decision6 finding him guilty of the crime
cargo truck smashed respondent Noe against the Fiera charged and was sentenced to four months and one day
crushing his legs and feet which made him fall to the to two years and four months and to pay the costs.
ground. A passing vehicle brought him to the Silliman
University Medical Center where his lower left leg was On February 18, 1993, the RTC rendered its judgment
amputated. in the civil case,7 the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, judgment is which affirmed in toto the decision of the trial court.
hereby rendered, ordering defendants Gerosano and Petitioner’s motion for reconsideration was denied in a
Estacion, to pay plaintiff, jointly or solidarily, the Resolution dated August 16, 2000.
following:
Hence, the herein petition for review.
1. ₱129,584.20 for actual damages in the form
of medical and hospitalization expenses; Petitioner submits the following issues for resolution: 9

2. ₱50,000.00 for moral damages, consisting of WHETHER THE COURT OF APPEALS ERRED IN
mental anguish, moral shock, serious anxiety NOT FINDING THAT PETITIONER LARRY
and wounded feelings; ESTACION EXERCISED THE DUE DILIGENCE OF
A GOOD FATHER OF A FAMILY TO PREVENT
3. ₱10,000.00 for attorney’s fees; and DAMAGE DESPITE ABUNDANCE OF EVIDENCE
TO THAT EFFECT;
4. ₱5,000.00 for litigation expenses.
WHETHER THE COURT OF APPEALS ERRED IN
SO ORDERED.8 NOT HOLDING THAT PETITIONER LARRY
ESTACION EXERCISED DUE DILIGENCE IN THE
The trial court ruled that the negligence of Gerosano,
SELECTION AND SUPERVISION OF HIS
petitioner’s driver, is the direct and proximate cause of
the incident and of the injuries suffered by respondent EMPLOYEE AND IN MAINTAINING HIS CARGO
TRUCK ROADWORTHY AND IN GOOD
Noe; that Gerosano’s gross negligence and reckless
OPERATING CONDITION;
imprudence had been confirmed by the Judgment in
Criminal Case No. 463; that based on the findings of WHETHER THE COURT OF APPEALS ERRED IN
the police investigator, the faulty brakes caused the EXONERATING RESPONDENTS CECILIA
cargo truck to bump the Fiera; that the Traffic Accident BANDOQUILLO AND GEMINIANO
Report showed that the tire mark of the cargo truck QUINQUILLERA.
measuring 48 feet is visibly imprinted on the road
where the incident took place indicating that the said In his Memorandum, petitioner contends that he was
vehicle was speeding fast; that the existence of one tire able to establish that he observed the diligence of a
mark of the cargo truck proved that the said vehicle had good father of a family not only in the selection of his
a faulty brake, otherwise, it would have produced two employees but also in maintaining his truck roadworthy
tire marks on the road; and that the photographs taken and in good operating condition; that the CA erred in
right after the incident also showed who the guilty party exonerating respondents Bandoquillo and Quinquillera,
was. owner and driver, respectively of the Fiera from
liability when their negligence was the proximate cause
The trial court did not give credence to the argument of of respondent Noe’s injuries; that respondent Noe’s act
petitioner and his driver that the truck was properly of standing in the rear carrier of the Fiera is in itself
checked by a mechanic before it was dispatched for a negligence on his part which was aggravated by the fact
trip. It found that petitioner is negligent in maintaining that respondent Quinquillera overtook the cargo truck
his vehicle in good condition to prevent any accident to driven by Gerosano on the curve and suddenly cut into
happen; that petitioner is liable under Article 2180 of the latter’s lane; that due to the overloading of
the Civil Code as employer of driver Gerosano for passengers, Gerosano was not able to see the brake
being negligent in the selection and supervision of his lights of the Fiera when it suddenly stopped to pick up
driver as well as for maintaining and operating a vehicle passengers; that overloading is in violation of the
that was not roadworthy; and that petitioner and his applicable traffic rules and regulations and Article 2185
driver are solidarily liable for all the natural and is explicit when it provides that "unless there is proof to
probable consequences of their negligent acts or the contrary, it is presumed that a person driving a
omissions. The trial court dismissed the third party motor vehicle has been negligent if at the time of the
complaint filed by petitioner and his driver against mishap, he was violating any traffic regulation"; that
respondents Bandoquillo and Quinquillera. since the Fiera driver was negligent, there arises a
presumption that respondent Bandoquillo, as owner of
Dissatisfied, only petitioner appealed to the CA. On
the Fiera, is negligent in the selection and supervision
April 17, 2000, the CA rendered the assailed decision
of her employee; that assuming petitioner Estacion and On the basis of the records of this case, we find that
his driver are not entirely blameless, the negligence of there is cogent reason for us to review the factual
Quinquillera is sufficient basis why the respective findings of the lower courts to conform to the evidence
liabilities should be delineated vis-à-vis their degree of on record and consider this case as an exception to the
negligence consistent with Article 217910 of the Civil general rule.
Code.
The trial court and the appellate court had made a
Respondent Noe filed his Memorandum alleging that finding of fact that the proximate cause of the injury
the first and second issues raised are factual in nature sustained by respondent Noe was the negligent and
which are beyond the ambit of a petition for review; that careless driving of petitioner’s driver, Gerosano, who
petitioner failed to overcome the presumption of was driving at a fast speed with a faulty brake when the
negligence thus he is liable for the negligence of his accident happened. We see no cogent reason to disturb
driver Gerosano; and that the third issue is best the trial court’s finding in giving more credence to the
addressed to respondents Bandoquillo and testimony of respondent Noe than the testimony of
Quinquillera. Gerosano, petitioner’s truck driver.
Respondents Bandoquillo and Quinquillera failed to The correctness of such finding is borne by the records.
file their memorandum despite receipt of our In his testimony, Gerosano said that he was driving the
Resolution requiring them to submit the same. truck at a speed of about 40 kilometers per hour; 13 that
the Fiera was behind him but upon reaching the curve,
We find it apropos to resolve first the third issue i.e.,after passing San Jose going to Dumaguete, the
considering that the extent of the liability of petitioner Fiera overtook him and blocked his way; 14 that he was
and his driver is dependent on whether respondents 10 meters from the Fiera prior to the impact 15 when he
Bandoquillo and Quinquillera are the ones negligent in applied the brakes16 and tried to evade the Fiera but he
the vehicular mishap that happened in the afternoon of still hit it.17
October 16, 1982 where respondent Noe was injured,
resulting in the amputation of his left leg. We agree with the trial court and the appellate court
when they found that the truck was running at a fast
At the outset, the issue raised is factual in nature. speed because if Gerosano was really driving at a speed
Whether a person is negligent or not is a question of fact of 40 kilometers per hour and considering that the
which we cannot pass upon in a petition for review distance between the truck and the Fiera in front was
on certiorari, as our jurisdiction is limited to reviewing about 10 meters, he had more than enough time to
errors of law.11As a rule, factual findings of the trial slacken his speed and apply his break to avoid hitting
court, affirmed by the CA, are final and conclusive and the Fiera. However, from the way the truck reacted to
may not be reviewed on appeal. The established the application of the brakes, it showed that Gerosano
exceptions are: (1) when the inference made is was driving at a fast speed because the brakes skidded
manifestly mistaken, absurd or impossible; (2) when a lengthy 48 feet as shown in the sketch of police
there is grave abuse of discretion; (3) when the findings investigator Rubia of the tire marks visibly printed on
are grounded entirely on speculations, surmises or the road.
conjectures; (4) when the judgment of the CA is based
on misapprehension of facts; (5) when the findings of Moreover, the photographs taken after the incident and
fact are conflicting; (6) when the CA, in making its the testimony of Gerosano as to the extent of damage to
findings, went beyond the issues of the case and the the truck, i.e. the truck’s windshield was broken and its
same is contrary to the admissions of both appellant and hood was damaged after the impact, 18 further support
appellee; (7) when the findings of fact are conclusions the finding of both courts that Gerosano was driving at
without citation of specific evidence on which they are a fast pace.
based; (8) when the CA manifestly overlooked certain
relevant facts not disputed by the parties and which, if The accident was further caused by the faulty brakes of
properly considered, would justify a different the truck. Based on the sketch report, there was only
conclusion; and (9) when the findings of fact of the CA one tire mark of the right tire of the cargo truck during
are premised on the absence of evidence and are the incident which, as testified to by police investigator
contradicted by the evidence on record. 12 Rubia, meant that the brakes of the truck were not
aligned otherwise there would be two tire marks
impressions on the road.19 Although petitioner Respondent Noe’s act of standing on the left rear carrier
contends that there are other factors to explain why only portion of the Fiera showed his lack of ordinary care
one skid mark was found at the place of the incident, and foresight that such act could cause him harm or put
such as the angle and edges of the road as well as the his life in danger. It has been held that "to hold a person
balance of the weight of the cargo laden in the truck, he as having contributed to his injuries, it must be shown
failed to show that indeed those factors were present to that he performed an act that brought about his injuries
prove his defense. Such claim cannot be given credence in disregard of warning or signs of an impending danger
considering that investigator Rubia testified that the to health and body.24 Respondent Noe’s act of hanging
body of the truck was very much on the road, i.e., not on the Fiera is definitely dangerous to his life and limb.
over the shoulder of the road, 20 and the road was
straight.21 Indeed, it is the negligent act of petitioner’s We likewise find merit in petitioner’s contention that
driver of driving the cargo truck at a fast speed coupled respondent Quinquillera, the Fiera driver, was also
with faulty brakes which was the proximate cause of negligent. There is merit to petitioner’s claim that there
respondent Noe’s injury. was overloading which is in violation of traffic rules
and regulations. Respondent Noe himself had testified
Petitioner’s claim that right after overtaking the cargo that he was standing at the rear portion of the Fiera
truck, the Fiera driver suddenly stopped to pick up three because the Fiera was already full. Respondent
passengers from the side of the road; that the Quinquillera should not have taken more passengers
overloading of passengers prevented his truck driver than what the Fiera can accommodate. If the Fiera was
from determining that the Fiera had pulled over to pick not overloaded, respondent Noe would not have been
up passengers as the latter’s brakelights were standing on the rear carrier and sustained such extent of
obstructed by the passengers standing on the rear injury.
portion of the Fiera were not substantiated at all.
Respondent Quinquillera, the driver of the Fiera, Furthermore, we find that respondent Quinquillera was
testified that the distance from the curve of the road negligent in allowing respondent Noe to stand on the
when he stopped and picked up passengers was Fiera’s rear portion. Section 32(c) of Article III of
estimated to be about 80 to 90 feet.22 In fact, from the Republic Act No. 4136, otherwise known as "The Land
sketch drawn by investigator Rubia, it showed a Transportation and Traffic Code" provides:
distance of 145 feet from the curve of the road to the (c) Riding on running boards – No driver shall allow
speed tire mark (which measured about 48 feet) visibly
any person to ride on running board, step board or
printed on the road to the Fiera. This means that the mudguard of his motor vehicle for any purpose while
Fiera driver did not stop immediately after the curve as the vehicle is in motion.
what petitioner claims. Moreover, Gerosano admitted
that his truck was at a distance of 10 meters prior to the Respondent Quinquillera’s act of permitting respondent
impact. The distance between the two vehicles was Noe to hang on the rear portion of the Fiera in such a
such that it would be impossible for Gerosano not to dangerous position creates undue risk of harm to
have seen that the Fiera had pulled over to pick up respondent Noe. Quinquillera failed to observe that
passengers. degree of care, precaution and vigilance that the
circumstances justly demand. Thus, respondent Noe
However, we agree with petitioner that respondent
suffered injury.25 Since respondent Quinquillera is
Noe’s act of standing on the rear carrier of the Fiera
negligent, there arises a presumption of negligence on
exposing himself to bodily injury is in itself negligence
the part of his employer, respondent Bandoquillo, in
on his part. We find that the trial court and the CA erred
supervising her employees properly. Such presumption
when they failed to consider that respondent Noe was
was not rebutted at all by Bandoquillo. Thus, the CA
also guilty of contributory negligence. Contributory
erred in affirming the dismissal of the third party
negligence is conduct on the part of the injured party,
complaint filed by petitioner against respondents
contributing as a legal cause to the harm he has
Quinquillera and Bandoquillo.
suffered, which falls below the standard to which he is
required to conform for his own protection. 23 Petitioner contends that he was able to establish that he
exercised the due diligence of a good father of a family
It has been established by the testimony of respondent in the selection of his employees as well as in the
Noe that he was with four or five other persons standing
maintenance of his cargo truck in good operating
on the rear carrier of the Fiera since it was already full.
condition. He claims that in addition to looking at negligence, there arises the juris tantum presumption
Gerosano’s driver’s license, he accompanied the latter that the employer is negligent, either in the selection of
in his first two trips, during which he ascertained the employee or in the supervision over him after the
Gerosano’s competence as a driver, petitioner being a selection. For the employer to avoid the solidary
driver himself; that the truck driven by Gerosano has liability for a tort committed by his employee, an
never figured in any accident prior to the incident employer must rebut the presumption by presenting
involved; that upon his acquisition of the cargo truck on adequate and convincing proof that in the selection
March 16, 1982, only 7 months prior to the incident, the and supervision of his employee, he or she exercises
same was thoroughly checked up and reconditioned; the care and diligence of a good father of a family. x
and that he had in his employ a mechanic who xx
conducted periodic check-ups of the engine and brake
system of the cargo truck. Petitioner’s claim that she exercised due diligence in
the selection and supervision of her driver, Venturina,
We are not persuaded. deserves but scant consideration. Her allegation that
before she hired Venturina she required him to
Article 2180 of the Civil Code provides: submit his driver’s license and clearances is
worthless, in view of her failure to offer in evidence
Art. 2180. The obligation imposed by Article 2176 is
certified true copies of said license and clearances.
demandable not only for one’s own acts or omissions,
Bare allegations, unsubstantiated by evidence, are not
but also for those of persons for whom one is
responsible. equivalent to proof under the rules of evidence. x x x
In any case, assuming arguendo that Venturina did
xxx
submit his license and clearances when he applied with
Employers shall be liable for the damages caused by petitioner in January 1992, the latter still fails the test
their employees and household helpers acting within of due diligence in the selection of her bus driver. Case
the scope of their assigned tasks, even though the law teaches that for an employer to have exercised
former are not engaged in any business or industry. the diligence of a good father of a family, he should
not be satisfied with the applicant’s mere possession
xxx of a professional driver’s license; he must also
carefully examine the applicant for employment as
The responsibility treated of in this article shall cease to his qualifications, his experience and record of
when the persons herein mentioned prove that they service. Petitioner failed to present convincing proof
observed all the diligence of a good father of a family that she went to this extent of verifying Venturina’s
to prevent damage. qualifications, safety record, and driving history. The
As the employer of Gerosano, petitioner is primarily presumption juris tantum that there was negligence in
and solidarily liable for the quasi-delict committed by the selection of her bus driver, thus, remains
the former. Petitioner is presumed to be negligent in the unrebutted.
selection and supervision of his employee by operation Nor did petitioner show that she exercised due
of law and may be relieved of responsibility for the supervision over Venturina after his selection. For as
negligent acts of his driver, who at the time was acting pointed out by the Court of Appeals, petitioner did not
within the scope of his assigned task, only if he can present any proof that she drafted and implemented
show that he observed all the diligence of a good father training programs and guidelines on road safety for
of a family to prevent damage.26 her employees. In fact, the record is bare of any
In Yambao v. Zuniga,27 we have clarified the meaning showing that petitioner required Venturina to
of the diligence of a good father of a family, thus: attend periodic seminars on road safety and traffic
efficiency. Hence, petitioner cannot claim exemption
The "diligence of a good father" referred to in the last from any liability arising from the recklessness or
paragraph of the aforecited statute means diligence in negligence of Venturina.
the selection and supervision of employees. Thus, when
an employee, while performing his duties, causes In sum, petitioner’s liability to private respondents for
damage to persons or property due to his own the negligent and imprudent acts of her driver,
Venturina, under Article 2180 of the Civil Code is both
manifest and clear. Petitioner, having failed to rebut the recover damages, but the courts shall mitigate the
legal presumption of negligence in the selection and damages to be awarded.
supervision of her driver, is responsible for damages,
the basis of the liability being the relationship of pater The underlying precept of the above article on
familias or on the employer’s own negligence. x x contributory negligence is that a plaintiff who is partly
x28 (Emphasis supplied) responsible for his own injury should not be entitled to
recover damages in full but must bear the consequences
Petitioner failed to show that he examined driver of his own negligence. The defendant must thus be held
Gerosano as to his qualifications, experience and liable only for the damages actually caused by his
service records. In fact, the testimony of driver negligence.32
Gerosano in his cross-examination showed the non-
observance of these requirements. Gerosano testified In Phoenix Construction, Inc., v. Intermediate
that petitioner was his first employer in Dumaguete and Appellate Court,33 where we held that the legal and
that he was accepted by petitioner on the very day he proximate cause of the accident and of Dionisio’s
applied for the job; 29 that his driver’s license was issued injuries was the wrongful and negligent manner in
in Mindanao where he came from 30 and that while which the dump truck was parked but found Dionisio
petitioner asked him about his driving record in guilty of contributory negligence on the night of the
Mindanao, he did not present any document of his accident, we allocated most of the damages on a 20-80
driving record.31 Such admission clearly established ratio. In said case, we required Dionisio to bear 20% of
that petitioner did not exercise due diligence in the the damages awarded by the appellate court, except as
selection of his driver Gerosano. to the award of exemplary damages, attorney’s fees and
costs.
Moreover, the fact that petitioner’s driver Gerosano
was driving in an efficient manner when petitioner was In the present case, taking into account the contributing
with him in his first two trips would not conclusively negligence of respondent Noe, we likewise rule that the
establish that Gerosano was not at all reckless. It could demands of substantial justice are satisfied by
not be considered as due diligence in the supervision of distributing the damages also on a 20-80 ratio excluding
his driver to exempt petitioner from liability. In the attorney’s fees and litigation expenses. 34 Consequently,
supervision of his driver, petitioner must show that he 20% should be deducted from the actual and moral
had formulated training programs and guidelines on damages awarded by the trial court in favor of
road safety for his driver which the records failed to respondent Noe, that is: 20% of ₱129,584.20 for actual
show. We find that petitioner failed to rebut the damages is ₱25,916.84 and 20% of ₱50,000.00 for
presumption of negligence in the selection and moral damages is ₱10,000.00. Thus, after deducting the
supervision of his employees. same, the award for actual damages should be
₱103,667.36 and ₱40,000.00 for moral damages or
Moreover, there was also no proof that he exercised 80% of the damages so awarded.
diligence in maintaining his cargo truck roadworthy
and in good operating condition. While petitioner’s Petitioner and respondents Bandoquillo and
mechanic driver testified that he made a routine check Quinquillera are jointly and severally liable for the 80%
up on October 15, 1982, one day before the mishap of the damages as well as attorney’s fees and litigation
happened, and found the truck operational, there was no expenses conformably with our pronouncement in Tiu
record of such inspection. v. Arriesgado35 where we held:

Turning now to the award of damages, since there was The petitioners, as well as the respondents Benjamin
contributory negligence on the part of respondent Noe, Condor and Sergio Pedrano are jointly and severally
petitioner’s liability should be mitigated in accordance liable for said amount, conformably with the following
with Article 2179 of the Civil Code which provides: pronouncement of the Court in Fabre, Jr. v. Court of
Appeals:
When the plaintiff’s own negligence was the immediate
and proximate cause of his injury, he cannot recover The same rule of liability was applied in situations
damages. But if his negligence was only contributory, where the negligence of the driver of the bus on which
the immediate and proximate cause of the injury being plaintiff was riding concurred with the negligence of a
the defendant’s lack of due care, the plaintiff may third party who was the driver of another vehicle, thus
causing an accident. In Anuran v. Buño, Batangas SO ORDERED.
Laguna Tayabas Bus Co. v. Intermediate Appellate
Court, and Metro Manila Transit Corporation v. Court Republic of the Philippines
of Appeals, the bus company, its driver, the operator of SUPREME COURT
the other vehicle and the driver of the vehicle were Manila
jointly and severally held liable to the injured passenger
or the latter’s heirs. The basis of this allocation of EN BANC
liability was explained in Viluan v. Court of Appeals, G.R. No. L-12191 October 14, 1918
thus:
JOSE CANGCO, plaintiff-appellant,
"Nor should it make difference that the liability of vs.
petitioner [bus owner] springs from contract while that MANILA RAILROAD CO., defendant-appellee.
of respondents [owner and driver of other vehicle]
arises from quasi delict. As early as 1913, we already Ramon Sotelo for appellant.
ruled in Gutierrez v. Gutierrez, 56 Phil. 177, that in Kincaid & Hartigan for appellee.
case of injury to a passenger due to the negligence of
the driver of the bus on which he was riding and of the
driver of another vehicle, the drivers as well as the
owners of the two vehicles are jointly and severally
FISHER, J.:
liable for damages. Some members of the Court,
though, are of the view that under the circumstances At the time of the occurrence which gave rise to this
they are liable on quasi delict."36 litigation the plaintiff, Jose Cangco, was in the
employment of Manila Railroad Company in the
WHEREFORE, the instant petition is PARTIALLY
capacity of clerk, with a monthly wage of P25. He lived
GRANTED. The assailed Decision of the Court of
in the pueblo of San Mateo, in the province of Rizal,
Appeals dated April 17, 2000 as well as its Resolution
which is located upon the line of the defendant railroad
dated August 16, 2000
company; and in coming daily by train to the company's
are AFFIRMED with MODIFICATION to the effect
office in the city of Manila where he worked, he used a
that the dispositive portion of the Decision dated
pass, supplied by the company, which entitled him to
February 18, 1993 of the Regional Trial Court of
ride upon the company's trains free of charge. Upon the
Dumaguete City in Civil Case No. 8122, should read as
occasion in question, January 20, 1915, the plaintiff
follows:
arose from his seat in the second class-car where he was
"WHEREFORE, in view of the foregoing, judgment is riding and, making, his exit through the door, took his
hereby rendered, ordering defendants Gerosano and position upon the steps of the coach, seizing the upright
Estacion, as well as third party defendants Bandoquillo guardrail with his right hand for support.
and Quinquillera, to pay plaintiff, jointly and solidarily,
On the side of the train where passengers alight at the
the following:
San Mateo station there is a cement platform which
1. ₱103,667.36 for actual damages in the form begins to rise with a moderate gradient some distance
of medical and hospitalization expenses; away from the company's office and extends along in
front of said office for a distance sufficient to cover the
2. ₱40,000.00 for moral damages, consisting of length of several coaches. As the train slowed down
mental anguish, moral shock, serious anxiety another passenger, named Emilio Zuñiga, also an
and wounded feelings; employee of the railroad company, got off the same car,
alighting safely at the point where the platform begins
3. ₱10,000.00 for attorney’s fees; and to rise from the level of the ground. When the train had
4. ₱5,000.00 for litigation proceeded a little farther the plaintiff Jose Cangco
[Link] stepped off also, but one or both of his feet came in
contact with a sack of watermelons with the result that
SO ORDERED." his feet slipped from under him and he fell violently on
the platform. His body at once rolled from the platform
No pronouncement as to costs. and was drawn under the moving car, where his right
arm was badly crushed and lacerated. It appears that the plaintiff himself had failed to use due caution in
after the plaintiff alighted from the train the car moved alighting from the coach and was therefore precluded
forward possibly six meters before it came to a full stop. form recovering. Judgment was accordingly entered in
favor of the defendant company, and the plaintiff
The accident occurred between 7 and 8 o'clock on a appealed.
dark night, and as the railroad station was lighted dimly
by a single light located some distance away, objects on It can not be doubted that the employees of the railroad
the platform where the accident occurred were difficult company were guilty of negligence in piling these sacks
to discern especially to a person emerging from a on the platform in the manner above stated; that their
lighted car. presence caused the plaintiff to fall as he alighted from
the train; and that they therefore constituted an effective
The explanation of the presence of a sack of melons on legal cause of the injuries sustained by the plaintiff. It
the platform where the plaintiff alighted is found in the necessarily follows that the defendant company is liable
fact that it was the customary season for harvesting for the damage thereby occasioned unless recovery is
these melons and a large lot had been brought to the barred by the plaintiff's own contributory negligence. In
station for the shipment to the market. They were resolving this problem it is necessary that each of these
contained in numerous sacks which has been piled on conceptions of liability, to-wit, the primary
the platform in a row one upon another. The testimony responsibility of the defendant company and the
shows that this row of sacks was so placed of melons contributory negligence of the plaintiff should be
and the edge of platform; and it is clear that the fall of separately examined.
the plaintiff was due to the fact that his foot alighted
upon one of these melons at the moment he stepped It is important to note that the foundation of the legal
upon the platform. His statement that he failed to see liability of the defendant is the contract of carriage, and
these objects in the darkness is readily to be credited. that the obligation to respond for the damage which
plaintiff has suffered arises, if at all, from the breach of
The plaintiff was drawn from under the car in an that contract by reason of the failure of defendant to
unconscious condition, and it appeared that the injuries exercise due care in its performance. That is to say, its
which he had received were very serious. He was liability is direct and immediate, differing essentially,
therefore brought at once to a certain hospital in the city in legal viewpoint from that presumptive responsibility
of Manila where an examination was made and his arm for the negligence of its servants, imposed by article
was amputated. The result of this operation was 1903 of the Civil Code, which can be rebutted by proof
unsatisfactory, and the plaintiff was then carried to of the exercise of due care in their selection and
another hospital where a second operation was supervision. Article 1903 of the Civil Code is not
performed and the member was again amputated higher applicable to obligations arising ex contractu, but only
up near the shoulder. It appears in evidence that the to extra-contractual obligations — or to use the
plaintiff expended the sum of P790.25 in the form of technical form of expression, that article relates only
medical and surgical fees and for other expenses in to culpa aquiliana and not to culpa contractual.
connection with the process of his curation.
Manresa (vol. 8, p. 67) in his commentaries upon
Upon August 31, 1915, he instituted this proceeding in articles 1103 and 1104 of the Civil Code, clearly points
the Court of First Instance of the city of Manila to out this distinction, which was also recognized by this
recover damages of the defendant company, founding Court in its decision in the case of Rakes vs. Atlantic,
his action upon the negligence of the servants and Gulf and Pacific Co. (7 Phil. rep., 359). In commenting
employees of the defendant in placing the sacks of upon article 1093 Manresa clearly points out the
melons upon the platform and leaving them so placed difference between "culpa, substantive and
as to be a menace to the security of passenger alighting independent, which of itself constitutes the source of an
from the company's trains. At the hearing in the Court obligation between persons not formerly connected by
of First Instance, his Honor, the trial judge, found the any legal tie" and culpa considered as an accident in the
facts substantially as above stated, and drew therefrom performance of an obligation already existing . . . ."
his conclusion to the effect that, although negligence
was attributable to the defendant by reason of the fact In the Rakes case (supra) the decision of this court was
that the sacks of melons were so placed as to obstruct made to rest squarely upon the proposition that article
passengers passing to and from the cars, nevertheless,
1903 of the Civil Code is not applicable to acts of possible care in the selection of his servant, taking into
negligence which constitute the breach of a contract. consideration the qualifications they should possess for
the discharge of the duties which it is his purpose to
Upon this point the Court said: confide to them, and directs them with equal diligence,
The acts to which these articles [1902 and 1903 thereby performs his duty to third persons to whom he
of the Civil Code] are applicable are understood is bound by no contractual ties, and he incurs no
to be those not growing out of pre-existing liability whatever if, by reason of the negligence of his
servants, even within the scope of their employment,
duties of the parties to one another. But where
relations already formed give rise to duties, such third person suffer damage. True it is that under
whether springing from contract or quasi- article 1903 of the Civil Code the law creates
contract, then breaches of those duties are a presumption that he has been negligent in the
subject to article 1101, 1103, and 1104 of the selection or direction of his servant, but the
presumption is rebuttable and yield to proof of due care
same code. (Rakes vs. Atlantic, Gulf and
and diligence in this respect.
Pacific Co., 7 Phil. Rep., 359 at 365.)
The supreme court of Porto Rico, in interpreting
This distinction is of the utmost importance. The
identical provisions, as found in the Porto Rico Code,
liability, which, under the Spanish law, is, in certain
has held that these articles are applicable to cases of
cases imposed upon employers with respect to damages
extra-contractual culpa exclusively.
occasioned by the negligence of their employees to
persons to whom they are not bound by contract, is not (Carmona vs. Cuesta, 20 Porto Rico Reports, 215.)
based, as in the English Common Law, upon the This distinction was again made patent by this Court in
principle of respondeat superior — if it were, the its decision in the case of Bahia vs. Litonjua and
master would be liable in every case and Leynes, (30 Phil. rep., 624), which was an action
unconditionally — but upon the principle announced in brought upon the theory of the extra-contractual
article 1902 of the Civil Code, which imposes upon all liability of the defendant to respond for the damage
persons who by their fault or negligence, do injury to caused by the carelessness of his employee while acting
another, the obligation of making good the damage within the scope of his employment. The Court, after
caused. One who places a powerful automobile in the citing the last paragraph of article 1903 of the Civil
hands of a servant whom he knows to be ignorant of the Code, said:
method of managing such a vehicle, is himself guilty of
an act of negligence which makes him liable for all the From this article two things are apparent: (1)
consequences of his imprudence. The obligation to That when an injury is caused by the negligence
make good the damage arises at the very instant that the of a servant or employee there instantly arises a
unskillful servant, while acting within the scope of his presumption of law that there was negligence on
employment causes the injury. The liability of the the part of the master or employer either in
master is personal and direct. But, if the master has not selection of the servant or employee, or in
been guilty of any negligence whatever in the selection supervision over him after the selection, or both;
and direction of the servant, he is not liable for the acts and (2) that that presumption is juris tantum and
of the latter, whatever done within the scope of his not juris et de jure, and consequently, may be
employment or not, if the damage done by the servant rebutted. It follows necessarily that if the
does not amount to a breach of the contract between the employer shows to the satisfaction of the court
master and the person injured. that in selection and supervision he has
exercised the care and diligence of a good father
It is not accurate to say that proof of diligence and care of a family, the presumption is overcome and he
in the selection and control of the servant relieves the is relieved from liability.
master from liability for the latter's acts — on the
contrary, that proof shows that the responsibility has This theory bases the responsibility of the
never existed. As Manresa says (vol. 8, p. 68) the master ultimately on his own negligence and
liability arising from extra-contractual culpa is always not on that of his servant. This is the notable
based upon a voluntary act or omission which, without peculiarity of the Spanish law of negligence. It
willful intent, but by mere negligence or inattention, has is, of course, in striking contrast to the
caused damage to another. A master who exercises all American doctrine that, in relations with
 strangers, the negligence of the servant in Legislature has so elected — whom such an obligation
conclusively the negligence of the master. is imposed is morally culpable, or, on the contrary, for
reasons of public policy, to extend that liability, without
The opinion there expressed by this Court, to the effect regard to the lack of moral culpability, so as to include
that in case of extra-contractual culpa based upon responsibility for the negligence of those person who
negligence, it is necessary that there shall have been acts or mission are imputable, by a legal fiction, to
some fault attributable to the defendant personally, and others who are in a position to exercise an absolute or
that the last paragraph of article 1903 merely limited control over them. The legislature which
establishes a rebuttable presumption, is in complete adopted our Civil Code has elected to limit extra-
accord with the authoritative opinion of Manresa, who contractual liability — with certain well-defined
says (vol. 12, p. 611) that the liability created by article exceptions — to cases in which moral culpability can
1903 is imposed by reason of the breach of the duties be directly imputed to the persons to be charged. This
inherent in the special relations of authority or moral responsibility may consist in having failed to
superiority existing between the person called upon to exercise due care in the selection and control of one's
repair the damage and the one who, by his act or agents or servants, or in the control of persons who, by
omission, was the cause of it. reason of their status, occupy a position of dependency
with respect to the person made liable for their conduct.
On the other hand, the liability of masters and
employers for the negligent acts or omissions of their The position of a natural or juridical person who has
servants or agents, when such acts or omissions cause undertaken by contract to render service to another, is
damages which amount to the breach of a contact, is not wholly different from that to which article 1903 relates.
based upon a mere presumption of the master's When the sources of the obligation upon which
negligence in their selection or control, and proof of plaintiff's cause of action depends is a negligent act or
exercise of the utmost diligence and care in this regard omission, the burden of proof rests upon plaintiff to
does not relieve the master of his liability for the breachprove the negligence — if he does not his action fails.
of his contract. But when the facts averred show a contractual
Every legal obligation must of necessity be extra- undertaking by defendant for the benefit of plaintiff,
and it is alleged that plaintiff has failed or refused to
contractual or contractual. Extra-contractual obligation
has its source in the breach or omission of those mutual perform the contract, it is not necessary for plaintiff to
specify in his pleadings whether the breach of the
duties which civilized society imposes upon it
members, or which arise from these relations, other contract is due to willful fault or to negligence on the
than contractual, of certain members of society to part of the defendant, or of his servants or agents. Proof
others, generally embraced in the concept of status. The of the contract and of its nonperformance is
legal rights of each member of society constitute the sufficient prima facie to warrant a recovery.
measure of the corresponding legal duties, mainly As a general rule . . . it is logical that in case of
negative in character, which the existence of those extra-contractual culpa, a suing creditor should
rights imposes upon all other members of society. The assume the burden of proof of its existence, as
breach of these general duties whether due to willful the only fact upon which his action is based;
intent or to mere inattention, if productive of injury, while on the contrary, in a case of negligence
give rise to an obligation to indemnify the injured party. which presupposes the existence of a
The fundamental distinction between obligations of this contractual obligation, if the creditor shows that
character and those which arise from contract, rests it exists and that it has been broken, it is not
upon the fact that in cases of non-contractual obligation necessary for him to prove negligence.
it is the wrongful or negligent act or omission itself (Manresa, vol. 8, p. 71 [1907 ed., p. 76]).
which creates the vinculum juris, whereas in
contractual relations the vinculum exists independently As it is not necessary for the plaintiff in an action for
of the breach of the voluntary duty assumed by the the breach of a contract to show that the breach was due
parties when entering into the contractual relation. to the negligent conduct of defendant or of his servants,
even though such be in fact the actual cause of the
With respect to extra-contractual obligation arising breach, it is obvious that proof on the part of defendant
from negligence, whether of act or omission, it is that the negligence or omission of his servants or agents
competent for the legislature to elect — and our caused the breach of the contract would not constitute a
defense to the action. If the negligence of servants or the defendant's servants has been held to constitute a
agents could be invoked as a means of discharging the defense to an action for damages for breach of contract.
liability arising from contract, the anomalous result
would be that person acting through the medium of In the case of Johnson vs. David (5 Phil. Rep., 663), the
agents or servants in the performance of their contracts, court held that the owner of a carriage was not liable for
would be in a better position than those acting in person. the damages caused by the negligence of his driver. In
If one delivers a valuable watch to watchmaker who that case the court commented on the fact that no
contract to repair it, and the bailee, by a personal evidence had been adduced in the trial court that the
negligent act causes its destruction, he is defendant had been negligent in the employment of the
unquestionably liable. Would it be logical to free him driver, or that he had any knowledge of his lack of skill
from his liability for the breach of his contract, which or carefulness.
involves the duty to exercise due care in the In the case of Baer Senior & Co's
preservation of the watch, if he shows that it was his
Successors vs. Compania Maritima (6 Phil. Rep., 215),
servant whose negligence caused the injury? If such a the plaintiff sued the defendant for damages caused by
theory could be accepted, juridical persons would enjoy the loss of a barge belonging to plaintiff which was
practically complete immunity from damages arising allowed to get adrift by the negligence of defendant's
from the breach of their contracts if caused by negligent servants in the course of the performance of a contract
acts as such juridical persons can of necessity only act of towage. The court held, citing Manresa (vol. 8, pp.
through agents or servants, and it would no doubt be
29, 69) that if the "obligation of the defendant grew out
true in most instances that reasonable care had been
of a contract made between it and the plaintiff . . . we
taken in selection and direction of such servants. If one do not think that the provisions of articles 1902 and
delivers securities to a banking corporation as 1903 are applicable to the case."
collateral, and they are lost by reason of the negligence
of some clerk employed by the bank, would it be just In the case of Chapman vs. Underwood (27 Phil. Rep.,
and reasonable to permit the bank to relieve itself of 374), plaintiff sued the defendant to recover damages
liability for the breach of its contract to return the for the personal injuries caused by the negligence of
collateral upon the payment of the debt by proving that defendant's chauffeur while driving defendant's
due care had been exercised in the selection and automobile in which defendant was riding at the time.
direction of the clerk? The court found that the damages were caused by the
negligence of the driver of the automobile, but held that
This distinction between culpa aquiliana, as the master was not liable, although he was present at the
the source of an obligation, and culpa contractual as a time, saying:
mere incident to the performance of a contract has
frequently been recognized by the supreme court of . . . unless the negligent acts of the driver are
Spain. (Sentencias of June 27, 1894; November 20, continued for a length of time as to give the
1896; and December 13, 1896.) In the decisions of owner a reasonable opportunity to observe them
November 20, 1896, it appeared that plaintiff's action and to direct the driver to desist therefrom. . . .
arose ex contractu, but that defendant sought to avail The act complained of must be continued in the
himself of the provisions of article 1902 of the Civil presence of the owner for such length of time
Code as a defense. The Spanish Supreme Court rejected that the owner by his acquiescence, makes the
defendant's contention, saying: driver's acts his own.
These are not cases of injury caused, without In the case of Yamada vs. Manila Railroad Co. and
any pre-existing obligation, by fault or Bachrach Garage & Taxicab Co. (33 Phil. Rep., 8), it is
negligence, such as those to which article 1902 true that the court rested its conclusion as to the liability
of the Civil Code relates, but of damages caused of the defendant upon article 1903, although the facts
by the defendant's failure to carry out the disclosed that the injury complaint of by plaintiff
undertakings imposed by the contracts . . . . constituted a breach of the duty to him arising out of the
contract of transportation. The express ground of the
A brief review of the earlier decision of this court decision in this case was that article 1903, in dealing
involving the liability of employers for damage done by with the liability of a master for the negligent acts of his
the negligent acts of their servants will show that in no
servants "makes the distinction between private
case has the court ever decided that the negligence of
individuals and public enterprise;" that as to the latter does, the whole extent of juridical human relations.
the law creates a rebuttable presumption of negligence These two fields, figuratively speaking, concentric; that
in the selection or direction of servants; and that in the is to say, the mere fact that a person is bound to another
particular case the presumption of negligence had not by contract does not relieve him from extra-contractual
been overcome. liability to such person. When such a contractual
relation exists the obligor may break the contract under
It is evident, therefore that in its decision Yamada case, such conditions that the same act which constitutes the
the court treated plaintiff's action as though founded in source of an extra-contractual obligation had no
tort rather than as based upon the breach of the contract contract existed between the parties.
of carriage, and an examination of the pleadings and of
the briefs shows that the questions of law were in fact The contract of defendant to transport plaintiff carried
discussed upon this theory. Viewed from the standpoint with it, by implication, the duty to carry him in safety
of the defendant the practical result must have been the and to provide safe means of entering and leaving its
same in any event. The proof disclosed beyond doubt trains (civil code, article 1258). That duty, being
that the defendant's servant was grossly negligent and contractual, was direct and immediate, and its non-
that his negligence was the proximate cause of performance could not be excused by proof that the
plaintiff's injury. It also affirmatively appeared that fault was morally imputable to defendant's servants.
defendant had been guilty of negligence in its failure to
exercise proper discretion in the direction of the The railroad company's defense involves the
servant. Defendant was, therefore, liable for the injury assumption that even granting that the negligent
suffered by plaintiff, whether the breach of the duty conduct of its servants in placing an obstruction upon
were to be regarded as constituting culpa the platform was a breach of its contractual obligation
aquiliana or culpa contractual. As Manresa points out to maintain safe means of approaching and leaving its
(vol. 8, pp. 29 and 69) whether negligence occurs an trains, the direct and proximate cause of the injury
incident in the course of the performance of a suffered by plaintiff was his own contributory
contractual undertaking or its itself the source of an negligence in failing to wait until the train had come to
extra-contractual undertaking obligation, its essential a complete stop before alighting. Under the doctrine of
characteristics are identical. There is always an act or comparative negligence announced in the Rakes case
omission productive of damage due to carelessness or (supra), if the accident was caused by plaintiff's own
inattention on the part of the defendant. Consequently, negligence, no liability is imposed upon defendant's
when the court holds that a defendant is liable in negligence and plaintiff's negligence merely
damages for having failed to exercise due care, either contributed to his injury, the damages should be
directly, or in failing to exercise proper care in the apportioned. It is, therefore, important to ascertain if
selection and direction of his servants, the practical defendant was in fact guilty of negligence.
result is identical in either case. Therefore, it follows It may be admitted that had plaintiff waited until the
that it is not to be inferred, because the court held in the train had come to a full stop before alighting, the
Yamada case that defendant was liable for the damages
particular injury suffered by him could not have
negligently caused by its servants to a person to whom occurred. Defendant contends, and cites many
it was bound by contract, and made reference to the fact authorities in support of the contention, that it is
that the defendant was negligent in the selection and negligence per se for a passenger to alight from a
control of its servants, that in such a case the court moving train. We are not disposed to subscribe to this
would have held that it would have been a good defense doctrine in its absolute form. We are of the opinion that
to the action, if presented squarely upon the theory of this proposition is too badly stated and is at variance
the breach of the contract, for defendant to have proved
with the experience of every-day life. In this particular
that it did in fact exercise care in the selection and instance, that the train was barely moving when
control of the servant. plaintiff alighted is shown conclusively by the fact that
The true explanation of such cases is to be found by it came to stop within six meters from the place where
directing the attention to the relative spheres of he stepped from it. Thousands of person alight from
contractual and extra-contractual obligations. The field trains under these conditions every day of the year, and
of non- contractual obligation is much more broader sustain no injury where the company has kept its
than that of contractual obligations, comprising, as it platform free from dangerous obstructions. There is no
reason to believe that plaintiff would have suffered any
injury whatever in alighting as he did had it not been it were by any possibility concede that it had right to
for defendant's negligent failure to perform its duty to pile these sacks in the path of alighting passengers, the
provide a safe alighting place. placing of them adequately so that their presence would
be revealed.
We are of the opinion that the correct doctrine relating
to this subject is that expressed in Thompson's work on As pertinent to the question of contributory negligence
Negligence (vol. 3, sec. 3010) as follows: on the part of the plaintiff in this case the following
circumstances are to be noted: The company's platform
The test by which to determine whether the was constructed upon a level higher than that of the
passenger has been guilty of negligence in roadbed and the surrounding ground. The distance from
attempting to alight from a moving railway the steps of the car to the spot where the alighting
train, is that of ordinary or reasonable care. It is passenger would place his feet on the platform was thus
to be considered whether an ordinarily prudent reduced, thereby decreasing the risk incident to
person, of the age, sex and condition of the stepping off. The nature of the platform, constructed as
passenger, would have acted as the passenger it was of cement material, also assured to the passenger
acted under the circumstances disclosed by the a stable and even surface on which to alight.
evidence. This care has been defined to be, not Furthermore, the plaintiff was possessed of the vigor
the care which may or should be used by the and agility of young manhood, and it was by no means
prudent man generally, but the care which a so risky for him to get off while the train was yet
man of ordinary prudence would use under moving as the same act would have been in an aged or
similar circumstances, to avoid injury." feeble person. In determining the question of
(Thompson, Commentaries on Negligence, vol. contributory negligence in performing such act — that
3, sec. 3010.) is to say, whether the passenger acted prudently or
recklessly — the age, sex, and physical condition of the
Or, it we prefer to adopt the mode of exposition used by
passenger are circumstances necessarily affecting the
this court in Picart vs. Smith (37 Phil. rep., 809), we
safety of the passenger, and should be considered.
may say that the test is this; Was there anything in the
Women, it has been observed, as a general rule are less
circumstances surrounding the plaintiff at the time he
capable than men of alighting with safety under such
alighted from the train which would have admonished
a person of average prudence that to get off the train conditions, as the nature of their wearing apparel
obstructs the free movement of the limbs. Again, it may
under the conditions then existing was dangerous? If so,
be noted that the place was perfectly familiar to the
the plaintiff should have desisted from alighting; and
plaintiff as it was his daily custom to get on and of the
his failure so to desist was contributory
train at this station. There could, therefore, be no
negligence.1awph![Link]
uncertainty in his mind with regard either to the length
As the case now before us presents itself, the only fact of the step which he was required to take or the
from which a conclusion can be drawn to the effect that character of the platform where he was alighting. Our
plaintiff was guilty of contributory negligence is that he conclusion is that the conduct of the plaintiff in
stepped off the car without being able to discern clearly undertaking to alight while the train was yet slightly
the condition of the platform and while the train was yet under way was not characterized by imprudence and
slowly moving. In considering the situation thus that therefore he was not guilty of contributory
presented, it should not be overlooked that the plaintiff negligence.
was, as we find, ignorant of the fact that the obstruction
The evidence shows that the plaintiff, at the time of the
which was caused by the sacks of melons piled on the
accident, was earning P25 a month as a copyist clerk,
platform existed; and as the defendant was bound by
and that the injuries he has suffered have permanently
reason of its duty as a public carrier to afford to its
disabled him from continuing that employment.
passengers facilities for safe egress from its trains, the
Defendant has not shown that any other gainful
plaintiff had a right to assume, in the absence of some
occupation is open to plaintiff. His expectancy of life,
circumstance to warn him to the contrary, that the
according to the standard mortality tables, is
platform was clear. The place, as we have already
approximately thirty-three years. We are of the opinion
stated, was dark, or dimly lighted, and this also is proof
that a fair compensation for the damage suffered by him
of a failure upon the part of the defendant in the
for his permanent disability is the sum of P2,500, and
performance of a duty owing by it to the plaintiff; for if
that he is also entitled to recover of defendant the at the front entrance of the car at the moment when the
additional sum of P790.25 for medical attention, car was passing.
hospital services, and other incidental expenditures
connected with the treatment of his injuries. The testimony of the plaintiff and of Ciriaco Guevara,
one of his witnesses, tends to shows that the plaintiff,
The decision of lower court is reversed, and judgment upon approaching the car, raised his hand as an
is hereby rendered plaintiff for the sum of P3,290.25, indication to the motorman of his desire to board the
and for the costs of both instances. So ordered. car, in response to which the motorman eased up a little,
without stopping. Upon this the plaintiff seized, with
Republic of the Philippines his hand, the front perpendicular handspot, at the same
SUPREME COURT time placing his left foot upon the platform. However,
Manila before the plaintiff's position had become secure, and
even before his raised right foot had reached the
EN BANC flatform, the motorman applied the power, with the
G.R. No. L-29462 March 7, 1929 result that the car gave a slight lurch forward. This
sudden impulse to the car caused the plaintiff's foot to
IGNACIO DEL PRADO, plaintiff-appellee, slip, and his hand was jerked loose from the handpost,
vs. He therefore fell to the ground, and his right foot was
MANILA ELECTRIC CO., defendant-appellant. caught and crushed by the moving car. The next day the
member had to be amputated in the hospital. The
Ross, Lawrence and Selph and Antonio T. Carrascoso, witness, Ciriaco Guevara, also stated that, as the
jr., for appellant. plaintiff started to board the car, he grasped the
Vicente Sotto for appellee. handpost on either side with both right and left hand.
The latter statement may possibly be incorrect as
STREET, J.:
regards the use of his right hand by the plaintiff, but we
This action was instituted in the Court of First Instance are of the opinion that the finding of the trial court to
of Manila by Ignacio del Prado to recover damages in the effect that the motorman slowed up slightly as the
the amount of P50,000 for personal injuries alleged to plaintiff was boarding the car that the plaintiff's fall was
have been caused by the negligence of te defendant, the due in part at lease to a sudden forward movement at
Manila Electric Company, in the operation of one of its the moment when the plaintiff put his foot on the
street cars in the City of Manila. Upon hearing the cause platform is supported by the evidence and ought not to
the trial court awarded to the plaintiff the sum of be disturbed by us.
P10,000, as damages, with costs of suit, and the
The motorman stated at the trial that he did not see the
defendant appealed.
plaintiff attempting to board the car; that he did not
The appellant, the Manila Electric Company, is accelerate the speed of the car as claimed by the
engaged in operating street cars in the City for the plaintiff's witnesses; and that he in fact knew nothing of
conveyance of passengers; and on the morning of the incident until after the plaintiff had been hurt and
November 18, 1925, one Teodorico Florenciano, as some one called to him to stop. We are not convinced
appellant's motorman, was in charge of car No. 74 of the complete candor of this statement, for we are
running from east to west on R. Hidalgo Street, the unable to see how a motorman operating this car could
scene of the accident being at a point near the have failed to see a person boarding the car under the
intersection of said street and Mendoza Street. After the circumstances revealed in this case. It must be
car had stopped at its appointed place for taking on and remembered that the front handpost which, as all
letting off passengers, just east of the intersection, it witness agree, was grasped by the plaintiff in
resumed its course at a moderate speed under the attempting to board the car, was immediately on the left
guidance of the motorman. The car had proceeded only side of the motorman.
a short distance, however, when the plaintiff, Ignacio
With respect to the legal aspects of the case we may
del Prado, ran across the street to catch the car, his
observe at the outset that there is no obligation on the
approach being made from the left. The car was of the
part of a street railway company to stop its cars to let on
kind having entrance and exist at either end, and the
intending passengers at other points than those
movement of the plaintiff was so timed that he arrived
appointed for stoppage. In fact it would be impossible
to operate a system of street cars if a company engage and to establish this contention the company introduced
in this business were required to stop any and testimony showing that due care had been used in
everywhere to take on people who were too indolent, or training and instructing the motorman in charge of this
who imagine themselves to be in too great a hurry, to car in his art. But this proof is irrelevant in view of the
go to the proper places for boarding the cars. fact that the liability involved was derived from a
Nevertheless, although the motorman of this car was breach of obligation under article 1101 of the Civil
not bound to stop to let the plaintiff on, it was his duty Code and related provisions. (Manila Railroad Co. vs.
to do act that would have the effect of increasing the Compana Transatlantica and Atlantic, Gulf & Pacific
plaintiff's peril while he was attempting to board the Co., 38 Phil., 875, 887; De Guia vs. Manila Electric
car. The premature acceleration of the car was, in our Railroad & Light Co., 40 Phil., 706, 710.)
opinion, a breach of this duty.
Another practical difference between liability for
The relation between a carrier of passengers for hire and negligence arising under 1902 of the Civil Code and
its patrons is of a contractual nature; and in failure on liability arising from negligence in the performance of
the part of the carrier to use due care in carrying its a positive duty, under article 1101 and related
passengers safely is a breach of duty (culpa provisions of the Civil Code, is that, in dealing with the
contructual) under articles 1101, 1103 and 1104 of the latter form of negligence, the court is given a discretion
Civil Code. Furthermore, the duty that the carrier of to mitigate liability according to the circumstances of
passengers owes to its patrons extends to persons the case (art 1103). No such general discretion is given
boarding the cars as well as to those alighting by the Code in dealing with liability arising under
therefrom. The case of Cangco vs. Manila Railroad Co. article 1902; although possibly the same end is reached
(38 Phil., 768), supplies an instance of the violation of by courts in dealing with the latter form of liability
this duty with respect to a passenger who was getting because of the latitude of the considerations pertinent to
off of a train. In that case the plaintiff stepped off of a cases arising under this article.
moving train, while it was slowing down in a station,
and at the time when it was too dark for him to see As to the contributory negligence of the plaintiff, we
clearly where he was putting his feet. The employees of are of the opinion that it should be treated, as in Rakes
the company had carelessly left watermelons on the vs. Atlantic, Gulf and Pacific Co. (7 Phil., 359), as a
platform at the place where the plaintiff alighted, with mitigating circumstance under article 1103 of the Civil
the result that his feet slipped and he fell under the car, Code. It is obvious that the plaintiff's negligence in
where his right arm badly injured. This court held that attempting to board the moving car was not the
the railroad company was liable for breach positive proximate cause of the injury. The direct and proximate
duty (culpa contractual), and the plaintiff was awarded cause of the injury was the act of appellant's motorman
damages in the amount of P2,500 for the loss of his arm. in putting on the power prematurely. A person boarding
In the opinion in that case the distinction is clearly a moving car must be taken to assume the risk of injury
drawn between a liability for negligence arising from from boarding the car under the conditions open to his
breach of contructual duty and that arising articles 1902 view, but he cannot fairly be held to assume the risk that
and 1903 of the Civil Code (culpa aquiliana). the motorman, having the situation in view, will
increase his peril by accelerating the speed of the car
The distiction between these two sorts of negligence is before he is planted safely on the platform. Again, the
important in this jurisdiction, for the reason that where situation before us is one where the negligent act of the
liability arises from a mere tort (culpa aquiliana), not company's servant succeeded the negligent act of the
involving a breach of positive obligation, an employer, plaintiff, and the negligence of the company must be
or master, may exculpate himself, under the last considered the proximate cause of the injury. The rule
paragraph of article 1903 of the Civil Code, by here applicable seems to be analogous to, if not
providing that he had exercised due degligence to identical with that which is sometimes referred to as the
prevent the damage; whereas this defense is not doctrine of "the last clear chance." In accordance with
available if the liability of the master arises from a this doctrine, the contributory negligence of the party
breach of contrauctual duty (culpa contractual). In the injured will not defeat the action if it be shown that the
case bfore us the company pleaded as a special defense defendant might, by the exercise of reasonable care and
that it had used all the deligence of a good father of a prudence, have avoided the consequences of the
family to prevent the damage suffered by the plaintiff; negligence of the injured party (20 R. C. L., p. 139; Carr
vs. Interurban Ry. Co., 185 Iowa, 872; 171 N. W., 167). That on or about the 6th day of January, 1957, in the
The negligence of the plaintiff was, however, Municipality of Tiaong, Province of Quezon,
contributory to the accident and must be considered as Philippines, and within the jurisdiction of this Hon.
a mitigating circumstance. Court, the said accused Victor Milan, Clemente Briñas
and Hermogenes Buencamino, being then persons in
With respect to the effect of this injury upon the charge of passenger Train No. 522-6 of the Manila
plaintiff's earning power, we note that, although he lost Railroad Company, then running from Tagkawayan to
his foot, he is able to use an artificial member without San Pablo City, as engine driver, conductor and
great inconvenience and his earning capacity has assistant conductor, respectively, wilfully and
probably not been reduced by more than 30 per centum. unlawfully drove and operated the same in a negligent,
In view of the precedents found in our decisions with careless and imprudent manner, without due regard to
respect to the damages that ought to be awarded for the existing laws, regulations and ordinances, that although
loss of limb, and more particularly Rakes vs. Atlantic, there were passengers on board the passenger coach,
Gulf and Pacific Co. (7 Phil., 359); Cangco vs. Manila they failed to provide lamps or lights therein, and failed
Railroad Co. (38 Phil., 768); and Borromeo vs. Manila to take the necessary precautions for the safety of
Electric Railroad and Light Co. (44 Phil., 165), and in passengers and to prevent accident to persons and
view of all the circumstances connected with the case, damage to property, causing by such negligence,
we are of the opinion that the plaintiff will be carelessness and imprudence, that when said passenger
adequately compensated by an award of P2,500. Train No. 522-6 was passing the railroad tracks in the
Municipality of Tiaong, Quezon, two of its passengers,
It being understood, therefore, that the appealed
Martina Bool, an old woman, and Emelita Gesmundo,
judgment is modified by reducing the recovery to the
a child about three years of age, fell from the passenger
sum of P2,500, the judgment, as thus modified, is
coach of the said train, as a result of which, they were
affirmed. So ordered, with costs against the appellant.
over run, causing their instantaneous death. "
FIRST DIVISION The facts established by the prosecution and accepted
G.R. No. L-30309 November 25, 1983 by the respondent court as basis for the decision are
summarized as follows:
CLEMENTE BRIÑAS, petitioner,
vs. The evidence of the prosecution tends to show that in
THE PEOPLE OF THE PHILIPPINES and the afternoon of January 6, 1957, Juanito Gesmundo
HONORABLE COURT OF bought a train ticket at the railroad station in
APPEALS, respondents. Tagkawayan, Quezon for his 55-year old mother
Martina Bool and his 3-year old daughter Emelita
Mariano R. Abad for petitioner. Gesmundo, who were bound for Barrio Lusacan,
Tiaong, same province. At about 2:00 p.m., Train No.
The Solicitor General for respondents. 522 left Tagkawayan with the old woman and her
granddaughter among the passengers. At Hondagua the
train's complement were relieved, with Victor Millan
GUTIERREZ, JR., J.: taking over as engineman, Clemente Briñas as
conductor, and Hermogenes Buencamino as assistant
This is a petition to review the decision of respondent conductor. Upon approaching Barrio Lagalag in Tiaong
Court of Appeals, now Intermediate Appellate Court, at about 8:00 p.m. of that same night, the train slowed
affirming the decision of the Court of First Instance of down and the conductor shouted 'Lusacan', 'Lusacan'.
Quezon, Ninth Judicial District, Branch 1, which found Thereupon, the old woman walked towards the left
the accused Clemente Briñas guilty of the crime of front door facing the direction of Tiaong, carrying the
DOUBLE HOMICIDE THRU RECKLESS child with one hand and holding her baggage with the
IMPRUDENCE prior the deaths of Martina Bool and other. When Martina and Emelita were near the door,
Emelita Gesmundo. the train suddenly picked up speed. As a result the old
woman and the child stumbled and they were seen no
The information charged the accused-appellant. and more. It took three minutes more before the train
others as follows: stopped at the next barrio, Lusacan, and the victims
were not among the passengers who disembarked Q How about the girl, the young girl about four years
thereat .. old, what could have caused the death?

Next morning, the Tiaong police A Shock too.

received a report that two corpses were
found along the railroad tracks at Barrio Q What could have caused the shock?
Lagalag. Repairing to the scene to A Compound fracture of the skull and going out of the
investigate, they found the lifeless body brain.
of a female child, about 2 feet from the
railroad tracks, sprawled to the ground Q What could have caused the fracture of the skull and
with her belly down, the hand resting on the going out of the brain?
the forehead, and with the back portion
of the head crushed. The investigators A That is the impact against a steel object. (TSN., pp.
also found the corpse of an old woman 81-82, July 1, 1959)
about 2 feet away from the railroad
tracks with the head and both legs The Court of First Instance of Quezon convicted
severed and the left hand missing. The defendant-appellant Clemente Briñas for double
head was located farther west between homicide thru reckless imprudence but acquitted
the rails. An arm was found midway Hermogenes Buencamino and Victor Millan The
from the body of the child to the body of dispositive portion of the decision reads: .
the old woman. Blood, pieces of WHEREFORE, the court finds the defendant
scattered brain and pieces of clothes Clemente Briñas guilty beyond doubt of the
were at the scene. Later, the bodies were crime of double homicide thru reckless
Identified as those of Martina Bool and imprudence, defined and punished under
Emelita Gesmundo. Among the Article 305 in connection with Article 249 of
personal effects found on Martina was a the Revised Penal Code, and sentences him to
train ticket (Exhibits "B"). suffer six (6) months and one (1) day ofprision
On January 7, 1957, the bodies of the deceased were correccional to indemnify the heirs of the
autopsied by Dr. Pastor Huertas, the Municipal Health deceased Martina Bool and Emelita Gesmundo
Officer of Tiaong. Dr. Huertas testified on the cause of in the amounts of P6,000 and P3,000,
death of the victims as follows: . respectively, with subsidiary imprisonment in
case of insolvency not to exceed one-third of the
FISCAL YNGENTE: principal penalty, and to pay the costs.

Q What could have caused the death of those women? For lack of sufficient evidence against the
defendant Hermogenes Buencamino and on the
A Shock. ground of reasonable doubt in the case of
defendant Victor Millan the court hereby
Q What could have caused that shock? acquits them of the crime charged in the
A Traumatic injury. information and their bail bonds declared
cancelled.
Q What could have caused traumatic injury?
As to the responsibility of the Manila Railroad
A The running over by the wheel of the train. Company in this case, this will be the subject of
court determination in another proceeding.
Q With those injuries, has a person a chance to survive?
On appeal, the respondent Court of Appeals affirmed
A No chance to survive. the judgment of the lower court.
Q What would you say death would come? During the pendency of the criminal prosecution in the
Court of First Instance of Quezon, the heirs of the
A Instantaneous.
deceased victims filed with the same court, a separate
civil action for damages against the Manila Railroad
Company entitled "Civil Case No. 5978, Manaleyo erroneous and premature announcement, appellant was
Gesmundo, et al., v. Manila Railroad Company". The negligent. He ought to have known that train passengers
separate civil action was filed for the recovery of invariably prepare to alight upon notice from the
P30,350.00 from the Manila Railroad Company as conductor that the destination was reached and that the
damages resulting from the accident. train was about to stop. Upon the facts, it was the
appellant's negligent act which led the victims to the
The accused-appellant alleges that the Court of Appeals door. Said acts virtually exposed the victims to peril,
made the following errors in its decision: for had not the appellant mistakenly made the
announcement, the victims would be safely ensconced
I.
in their seats when the train jerked while picking up
THE HONORABLE COURT OF speed, Although it might be argued that the negligent
APPEALS ERRED IN CONVICTING act of the appellant was not the immediate cause of, or
PETITIONER-APPELLANT UNDER the cause nearest in time to, the injury, for the train
THE FACTS AS FOUND BY SAID jerked before the victims stumbled, yet in legal
COURT; and contemplation appellant's negligent act was the
proximate cause of the injury. As this Court held in
II . Tucker v. Milan, CA G.R. No. 7059-R, June 3, 1953:
'The proximate cause of the injury is not necessarily the
THE HONORABLE COURT OF immediate cause of, or the cause nearest in time to, the
APPEALS ERRED IN INCLUDING injury. It is only when the causes are independent of
THE PAYMENT OF DEATH each other that the nearest is to be charged with the
INDEMNITY BY THE PETITIONER- disaster. So long as there is a natural, direct and
APPELLANT, WITH SUBSIDIARY continuous sequence between the negligent act the
IMPRISONMENT IN CASE OF injury (sic) that it can reasonably be said that but for the
INSOLVENCY, AFTER THE HEIRS act the injury could not have occurred, such negligent
OF THE DECEASED HAVE act is the proximate cause of the injury, and whoever is
ALREADY COMMENCED A responsible therefore is liable for damages resulting
SEPARATE CIVIL ACTION FOR therefrom. One who negligently creates a dangerous
DAMAGES AGAINST THE condition cannot escape liability for the natural and
RAILROAD COMPANY ARISING probable consequences thereof, although the act of a
FROM THE SAME MISHAP. third person, or an act of God for which he is not
We see no error in the factual findings of the respondent responsible intervenes to precipitate the loss.
court and in the conclusion drawn from those findings. xxx xxx xxx
It is undisputed that the victims were on board the It is a matter of common knowledge and experience
second coach where the petitioner-appellant was about common carriers like trains and buses that before
assigned as conductor and that when the train slackened reaching a station or flagstop they slow down and the
its speed and the conductor shouted "Lusacan, conductor announces the name of the place. It is also a
Lusacan", they stood up and proceeded to the nearest matter of common experience that as the train or bus
exit. It is also undisputed that the train unexpectedly slackens its speed, some passengers usually stand and
resumed its regular speed and as a result "the old proceed to the nearest exit, ready to disembark as the
woman and the child stumbled and they were seen no train or bus comes to a full stop. This is especially true
more. of a train because passengers feel that if the train
In finding petitioner-appellant negligent, respondent resumes its run before they are able to disembark, there
Court . is no way to stop it as a bus may be stopped.

xxx xxx xxx It was negligence on the conductor's part to announce

the next flag stop when said stop was still a full three
The appellant's announcement was premature and minutes ahead. As the respondent Court of Appeals
erroneous, for it took a full three minutes more before correctly observed, "the appellant's announcement was
the next barrio of Lusacan was reached. In making the premature and erroneous.
That the announcement was premature and erroneous is prosecutors appeared and the prosecution witnesses
shown by the fact that immediately after the train were not interrogated on the issue of damages, the trial
slowed down, it unexpectedly accelerated to full speed. court erred in awarding death indemnity in its judgment
Petitioner-appellant failed to show any reason why the of conviction.
train suddenly resumed its regular speed. The
announcement was made while the train was still in A perusal of the records clearly shows that the
Barrio Lagalag. complainants in the criminal action for double
homicide thru reckless imprudence did not only reserve
The proximate cause of the death of the victims was the their right to file an independent civil action but in fact
premature and erroneous announcement of petitioner' filed a separate civil action against the Manila Railroad
appelant Briñas. This announcement prompted the Company.
victims to stand and proceed to the nearest exit. Without
said announcement, the victims would have been safely The trial court acted within its jurisdiction when,
seated in their respective seats when the train jerked as despite the filing with it of the separate civil action
it picked up speed. The connection between the against the Manila Railroad Company, it still awarded
premature and erroneous announcement of petitioner- death indemnity in the judgment of conviction against
appellant and the deaths of the victims is direct and the petitioner-appellant.
natural, unbroken by any intervening efficient causes.
It is well-settled that when death occurs as a result of
Petitioner-appellant also argues that it was negligence the commission of a crime, the following items of
per se for Martina Bool to go to the door of the coach damages may be recovered: (1) an indemnity for the
while the train was still in motion and that it was this death of the victim; (2) an indemnity for loss of earning
negligence that was the proximate cause of their deaths. capacity of the deceased; (3) moral damages; (4)
exemplary damages; (5) attorney's fees and expenses of
We have carefully examined the records and we agree litigation, and (6) interest in proper cases.
with the respondent court that the negligence of
petitioner-appellant in prematurely and erroneously The indemnity for loss of earning capacity, moral
announcing the next flag stop was the proximate cause damages, exemplary damages, attorney's fees, and
of the deaths of Martina Bool and Emelita Gesmundo. interests are recoverable separately from and in
Any negligence of the victims was at most contributory addition to the fixed slim of P12,000.00 corresponding
and does not exculpate the accused from criminal to the indemnity for the sole fact of death. This
liability. indemnity arising from the fact of death due to a crime
is fixed whereas the others are still subject to the
With respect to the second assignment of error, the determination of the court based on the evidence
petitioner argues that after the heirs of Martina Bool presented. The fact that the witnesses were not
and Emelita Gesmundo had actually commenced the interrogated on the issue of damages is of no moment
separate civil action for damages in the same trial court because the death indemnity fixed for death is separate
during the pendency of the criminal action, the said and distinct from the other forms of indemnity for
court had no more power to include any civil liability damages.
in its judgment of conviction.
WHEREFORE, the judgment appealed from is
The source of the obligation sought to be enforced in modified in that the award for death indemnity is
Civil Case No. 5978 is culpa contractual, not an act or increased to P12,000.00 for the death of Martina Bool
omission punishable by law. We also note from the instead of P6,000.00 and P12,000.00 for the death of
appellant's arguments and from the title of the civil case Emelita Gesmundo instead of P3,000.00, but deleting
that the party defendant is the Manila Railroad the subsidiary imprisonment in case of insolvency
Company and not petitioner-appellant Briñas Culpa imposed by the lower court. The judgment is
contractual and an act or omission punishable by law AFFIRMED in all other respects.
are two distinct sources of obligation.
SO ORDERED.1äwphï1.ñët
The petitioner-appellant argues that since the
information did not allege the existence of any kind of SECOND DIVISION
damages whatsoever coupled by the fact that no private
G.R. No. 95582 October 7, 1991
 DANGWA TRANSPORTATION CO., INC. and IN VIEW OF ALL THE FOREGOING, judgment is
THEODORE LARDIZABAL y hereby pronounced that Pedrito Cudiamat was
MALECDAN, petitioners, negligent, which negligence was the proximate cause of
vs. his death. Nonetheless, defendants in equity, are hereby
COURT OF APPEALS, INOCENCIA ordered to pay the heirs of Pedrito Cudiamat the sum of
CUDIAMAT, EMILIA CUDIAMAT BANDOY, P10,000.00 which approximates the amount defendants
FERNANDO CUDLAMAT, MARRIETA initially offered said heirs for the amicable settlement
CUDIAMAT, NORMA CUDIAMAT, DANTE of the case. No costs.
CUDIAMAT, SAMUEL CUDIAMAT and
LIGAYA CUDIAMAT, all Heirs of the late Pedrito SO ORDERED. 2
Cudiamat represented by Inocencia Not satisfied therewith, private respondents appealed to
Cudiamat, respondents. the Court of Appeals which, in a decision 3 in CA-G.R.
Francisco S. Reyes Law Office for petitioners. CV No. 19504 promulgated on August 14, 1990, set
Antonio C. de Guzman for private respondents. aside the decision of the lower court, and ordered
petitioners to pay private respondents:

1. The sum of Thirty Thousand (P30,000.00) Pesos by

way of indemnity for death of the victim Pedrito
REGALADO, J.: Cudiamat;

On May 13, 1985, private respondents filed a 2. The sum of Twenty Thousand (P20,000.00) by way
complaint 1 for damages against petitioners for the of moral damages;
death of Pedrito Cudiamat as a result of a vehicular
accident which occurred on March 25, 1985 at Marivic, 3. The sum of Two Hundred Eighty Eight Thousand
Sapid, Mankayan, Benguet. Among others, it was (P288,000.00) Pesos as actual and compensatory
alleged that on said date, while petitioner Theodore M. damages;
Lardizabal was driving a passenger bus belonging to 4. The costs of this suit. 4
petitioner corporation in a reckless and imprudent
manner and without due regard to traffic rules and Petitioners' motion for reconsideration was denied by
regulations and safety to persons and property, it ran the Court of Appeals in its resolution dated October 4,
over its passenger, Pedrito Cudiamat. However, instead 1990, 5 hence this petition with the central issue herein
of bringing Pedrito immediately to the nearest hospital, being whether respondent court erred in reversing the
the said driver, in utter bad faith and without regard to decision of the trial court and in finding petitioners
the welfare of the victim, first brought his other negligent and liable for the damages claimed.
passengers and cargo to their respective destinations
before banging said victim to the Lepanto Hospital It is an established principle that the factual findings of
where he expired. the Court of Appeals as a rule are final and may not be
reviewed by this Court on appeal. However, this is
On the other hand, petitioners alleged that they had subject to settled exceptions, one of which is when the
observed and continued to observe the extraordinary findings of the appellate court are contrary to those of
diligence required in the operation of the transportation the trial court, in which case a reexamination of the
company and the supervision of the employees, even as facts and evidence may be undertaken. 6
they add that they are not absolute insurers of the safety
of the public at large. Further, it was alleged that it was
the victim's own carelessness and negligence which
gave rise to the subject incident, hence they prayed for In the case at bar, the trial court and the Court of Appeal
the dismissal of the complaint plus an award of have discordant positions as to who between the
damages in their favor by way of a counterclaim. petitioners an the victim is guilty of negligence.
Perforce, we have had to conduct an evaluation of the
On July 29, 1988, the trial court rendered a decision, evidence in this case for the prope calibration of their
effectively in favor of petitioners, with this decretal conflicting factual findings and legal conclusions.
portion:
The lower court, in declaring that the victim was over the goods and for the safety of the passengers
negligent, made the following findings: transported by them according to the circumstances of
each case (Article 1733, New Civil Code). 8
This Court is satisfied that Pedrito Cudiamat was
negligent in trying to board a moving vehicle, After a careful review of the evidence on record, we
especially with one of his hands holding an umbrella. find no reason to disturb the above holding of the Court
And, without having given the driver or the conductor of Appeals. Its aforesaid findings are supported by the
any indication that he wishes to board the bus. But testimony of petitioners' own witnesses. One of them,
defendants can also be found wanting of the necessary Virginia Abalos, testified on cross-examination as
diligence. In this connection, it is safe to assume that follows:
when the deceased Cudiamat attempted to board
defendants' bus, the vehicle's door was open instead of
being closed. This should be so, for it is hard to believe Q It is not a fact Madam witness, that at bunkhouse 54,
that one would even attempt to board a vehicle (i)n that is before the place of the incident, there is a
motion if the door of said vehicle is closed. Here lies crossing?
the defendant's lack of diligence. Under such A The way going to the mines but it is not being
circumstances, equity demands that there must be pass(ed) by the bus.
something given to the heirs of the victim to assuage Q And the incident happened before bunkhouse 56, is
their feelings. This, also considering that initially, that not correct?
defendant common carrier had made overtures to A It happened between 54 and 53 bunkhouses. 9
amicably settle the case. It did offer a certain monetary The bus conductor, Martin Anglog, also declared:
consideration to the victim's heirs. 7
Q When you arrived at Lepanto on March 25, 1985, will
However, respondent court, in arriving at a different you please inform this Honorable Court if there was anv
opinion, declares that: unusual incident that occurred?
A When we delivered a baggage at Marivic because a
From the testimony of appellees'own witness in the person alighted there between Bunkhouse 53 and 54.
person of Vitaliano Safarita, it is evident that the subject Q What happened when you delivered this passenger at
bus was at full stop when the victim Pedrito Cudiamat this particular place in Lepanto?
boarded the same as it was precisely on this instance A When we reached the place, a passenger alighted and
where a certain Miss Abenoja alighted from the bus. I signalled my driver. When we stopped we went out
Moreover, contrary to the assertion of the appellees, the because I saw an umbrella about a split second and I
victim did indicate his intention to board the bus as can signalled again the driver, so the driver stopped and we
be seen from the testimony of the said witness when he went down and we saw Pedrito Cudiamat asking for
declared that Pedrito Cudiamat was no longer walking help because he was lying down.
and made a sign to board the bus when the latter was Q How far away was this certain person, Pedrito
still at a distance from him. It was at the instance when Cudiamat, when you saw him lying down — from the
Pedrito Cudiamat was closing his umbrella at the bus how far was he?
platform of the bus when the latter made a sudden jerk A It is about two to three meters.
movement (as) the driver commenced to accelerate the Q On what direction of the bus was he found about
bus. three meters from the bus, was it at the front or at the
back?

Evidently, the incident took place due to the gross A At the back, sir. 10 (Emphasis supplied.)
negligence of the appellee-driver in prematurely
stepping on the accelerator and in not waiting for the The foregoing testimonies show that the place of the
passenger to first secure his seat especially so when we accident and the place where one of the passengers
take into account that the platform of the bus was at the alighted were both between Bunkhouses 53 and 54,
time slippery and wet because of a drizzle. The hence the finding of the Court of Appeals that the bus
defendants-appellees utterly failed to observe their duty was at full stop when the victim boarded the same is
and obligation as common carrier to the end that they correct. They further confirm the conclusion that the
should observe extra-ordinary diligence in the vigilance victim fell from the platform of the bus when it
suddenly accelerated forward and was run over by the Common carriers, from the nature of their business and
rear right tires of the vehicle, as shown by the physical reasons of public policy, are bound to observe
evidence on where he was thereafter found in relation extraordina diligence for the safety of the passengers
to the bus when it stopped. Under such circumstances, transported by the according to all the circumstances of
it cannot be said that the deceased was guilty of each case. 16 A common carrier is bound to carry the
negligence. passengers safely as far as human care and foresight can
provide, using the utmost diligence very cautious
The contention of petitioners that the driver and the persons, with a due regard for all the circumstances. 17
conductor had no knowledge that the victim would ride It has also been repeatedly held that in an action based
on the bus, since the latter had supposedly not on a contract of carriage, the court need not make an
manifested his intention to board the same, does not express finding of fault or negligence on the part of the
merit consideration. When the bus is not in motion there carrier in order to hold it responsible to pay the damages
is no necessity for a person who wants to ride the same sought by the passenger. By contract of carriage, the
to signal his intention to board. A public utility bus, carrier assumes the express obligation to transport the
once it stops, is in effect making a continuous offer to passenger to his destination safely and observe
bus riders. Hence, it becomes the duty of the driver and extraordinary diligence with a due regard for all the
the conductor, every time the bus stops, to do no act that circumstances, and any injury that might be suffered by
would have the effect of increasing the peril to a the passenger is right away attributable to the fault or
passenger while he was attempting to board the same. negligence of the carrier. This is an exception to the
The premature acceleration of the bus in this case was general rule that negligence must be proved, and it is
a breach of such duty. 11 therefore incumbent upon the carrier to prove that it has
It is the duty of common carriers of passengers, exercised extraordinary diligence as prescribed in
including common carriers by railroad train, streetcar, Articles 1733 and 1755 of the Civil Code. 18
or motorbus, to stop their conveyances a reasonable
length of time in order to afford passengers an Moreover, the circumstances under which the driver
opportunity to board and enter, and they are liable for and the conductor failed to bring the gravely injured
injuries suffered by boarding passengers resulting from victim immediately to the hospital for medical
the sudden starting up or jerking of their conveyances treatment is a patent and incontrovertible proof of their
while they are doing so. 12 negligence. It defies understanding and can even be
Further, even assuming that the bus was moving, the act stigmatized as callous indifference. The evidence
of the victim in boarding the same cannot be considered shows that after the accident the bus could have
negligent under the circumstances. As clearly explained forthwith turned at Bunk 56 and thence to the hospital,
in the testimony of the aforestated witness for but its driver instead opted to first proceed to Bunk 70
petitioners, Virginia Abalos, th bus had "just started" to allow a passenger to alight and to deliver a
and "was still in slow motion" at the point where the refrigerator, despite the serious condition of the victim.
victim had boarded and was on its platform. 13 The vacuous reason given by petitioners that it was the
It is not negligence per se, or as a matter of law, for one wife of the deceased who caused the delay was tersely
attempt to board a train or streetcar which is moving and correctly confuted by respondent court:
slowly. 14 An ordinarily prudent person would have
made the attempt board the moving conveyance under ... The pretension of the appellees that the delay was
the same or similar circumstances. The fact that due to the fact that they had to wait for about twenty
passengers board and alight from slowly moving minutes for Inocencia Cudiamat to get dressed deserves
vehicle is a matter of common experience both the scant consideration. It is rather scandalous and
driver and conductor in this case could not have been deplorable for a wife whose husband is at the verge of
unaware of such an ordinary practice. dying to have the luxury of dressing herself up for about
The victim herein, by stepping and standing on the twenty minutes before attending to help her distressed
platform of the bus, is already considered a passenger and helpless husband. 19
and is entitled all the rights and protection pertaining to Further, it cannot be said that the main intention of
such a contractual relation. Hence, it has been held that petitioner Lardizabal in going to Bunk 70 was to inform
the duty which the carrier passengers owes to its the victim's family of the mishap, since it was not said
patrons extends to persons boarding cars as well as to bus driver nor the conductor but the companion of the
those alighting therefrom. 15 victim who informed his family thereof. 20 In fact, it
was only after the refrigerator was unloaded that one of EN BANC
the passengers thought of sending somebody to the
house of the victim, as shown by the testimony of G.R. No. L-9671 August 23, 1957
Virginia Abalos again, to wit: CESAR L. ISAAC, plaintiff-appellant,
Q Why, what happened to your refrigerator at vs.
that particular time? A. L. AMMEN TRANSPORTATION CO.,
A I asked them to bring it down because that is INC., defendant-appellee.
the nearest place to our house and when I went
down and asked somebody to bring down the Angel S. Gamboa for appellant.
refrigerator, I also asked somebody to call the Manuel O. Chan for appellee.
family of Mr. Cudiamat.
COURT: BAUTISTA ANGELO, J.:
Q Why did you ask somebody to call the family
of Mr. Cudiamat? A. L. Ammen Transportation Co., Inc., hereinafter
A Because Mr. Cudiamat met an accident, so I ask referred to as defendant, is a corporation engaged in the
somebody to call for the family of Mr. Cudiamat. business of transporting passengers by land for
Q But nobody ask(ed) you to call for the family of Mr. compensation in the Bicol provinces and one of the
Cudiamat? lines it operates is the one connecting Legaspi City,
A No sir. 21 Albay with Naga City, Camarines Sur. One of the buses
With respect to the award of damages, an oversight which defendant was operating is Bus No. 31. On May
was, however, committed by respondent Court of 31, 1951, plaintiff boarded said bus as a passenger
Appeals in computing the actual damages based on the paying the required fare from Ligao, Albay bound for
gross income of the victim. The rule is that the amount Pili, Camarines Sur, but before reaching his destination,
recoverable by the heirs of a victim of a tort is not the the bus collided with a motor vehicle of the pick-up
loss of the entire earnings, but rather the loss of that type coming from the opposite direction, as a result of
portion of the earnings which the beneficiary would which plaintiff's left arm was completely severed and
have received. In other words, only net earnings, not the severed portion fell inside the bus. Plaintiff was
gross earnings, are to be considered, that is, the total of rushed to a hospital in Iriga, Camarines Sur where he
the earnings less expenses necessary in the creation of was given blood transfusion to save his life. After four
such earnings or income and minus living and other days, he was transferred to another hospital in Tabaco,
incidental expenses. 22 Albay, where he under went treatment for three months.
We are of the opinion that the deductible living and He was moved later to the Orthopedic Hospital where
other expense of the deceased may fairly and he was operated on and stayed there for another two
reasonably be fixed at P500.00 a month or P6,000.00 a months. For these services, he incurred expenses
year. In adjudicating the actual or compensatory amounting to P623.40, excluding medical fees which
damages, respondent court found that the deceased was were paid by defendant.
48 years old, in good health with a remaining As an aftermath, plaintiff brought this action against
productive life expectancy of 12 years, and then earning defendants for damages alleging that the collision
P24,000.00 a year. Using the gross annual income as which resulted in the loss of his left arm was mainly due
the basis, and multiplying the same by 12 years, it to the gross incompetence and recklessness of the driver
accordingly awarded P288,000. Applying the of the bus operated by defendant and that defendant
aforestated rule on computation based on the net incurred in culpa contractual arising from its non-
earnings, said award must be, as it hereby is, rectified compliance with its obligation to transport plaintiff
and reduced to P216,000.00. However, in accordance safely to his, destination. Plaintiff prays for judgment
with prevailing jurisprudence, the death indemnity is against defendant as follows: (1) P5,000 as expenses for
hereby increased to P50,000.00. 23 his medical treatment, and P3,000 as the cost of an
artificial arm, or a total of P8,000; (2) P6,000
WHEREFORE, subject to the above modifications, the representing loss of earning; (3) P75,000 for diminution
challenged judgment and resolution of respondent of his earning capacity; (4) P50,000 as moral damages;
Court of Appeals are hereby AFFIRMED in all other and (5) P10,000 as attorneys' fees and costs of suit.
respects.
SO ORDERED.
Defendant set up as special defense that the injury resulting in injuries is due to causes which are
suffered by plaintiff was due entirely to the fault or inevitable and which could not have been avoided or
negligence of the driver of the pick-up car which anticipated notwithstanding the exercise of that high
collided with the bus driven by its driver and to the degree of care and skill which the carrier is bound to
contributory negligence of plaintiff himself. Defendant exercise for the safety of his passengers", neither the
further claims that the accident which resulted in the common carrier nor the driver is liable therefor.
injury of plaintiff is one which defendant could not
foresee or, though foreseen, was inevitable. We believe that the law concerning the liability of a
common carrier has now suffered a substantial
The after trial found that the collision occurred due to modification in view of the innovations introduced by
the negligence of the driver of the pick-up car and not the new Civil Code. These innovations are the ones
to that of the driver of the bus it appearing that the latter embodied in Articles 1733, 1755 and 1756 in so far as
did everything he could to avoid the same but that the relation between a common carrier and its
notwithstanding his efforts, he was not able to avoid it. passengers is concerned, which, for ready reference, we
As a consequence, the court dismissed complaint, with quote hereunder:
costs against plaintiff. This is an appeal from said
decision. ART. 1733. Common carriers, from the nature
of their business and for reasons of public
It appears that plaintiff boarded a bus of defendant as policy, are bound to observe extra ordinary
paying passenger from Ligao, Albay, bound for Pili, diligence in the vigilance over the goods and for
Camarines Sur, but before reaching his destination, the the safety of the passengers transported by them
bus collided with a pick-up car which was coming from according to all the circumstances of each case.
the opposite direction and, as a, result, his left arm was
completely severed and fell inside the back part of the Such extraordinary diligence in the vigilance
bus. Having this background in view, and considering over the goods is further expressed in articles
that plaintiff chose to hold defendant liable on its 1734, 1735, and 1745, Nos. 5, 6, and 7, while
contractual obligation to carry him safely to his place the extraordinary diligence for the safety of the
of destination, it becomes important to determine the passengers is further set forth in articles 1755
nature and extent of the liability of a common carrier to and 1756.
a passenger in the light of the law applicable in this
ART. 1755. A common carrier is bound to carry
jurisdiction.
the passengers safely as far as human care and
In this connection, appellant invokes the rule that, foresight can provide, using the utmost
"when an action is based on a contract of carriage, as in diligence of very cautious persons, with a due
this case, all that is necessary to sustain recovery is regard for all the circumstances.
proof of the existence of the contract of the breach ART. 1756. In case of death of or injuries to
thereof by act or omission", and in support thereof, he passengers, common carriers are presumed to
cites several Philippine cases. 1 With the ruling in mind, have been at fault or to have acted negligently,
appellant seems to imply that once the contract of unless they prove that they observed
carriage is established and there is proof that the same
extraordinary diligence as prescribed in articles
was broken by failure of the carrier to transport the 1733 and 1755.
passenger safely to his destination, the liability of the
former attaches. On the other hand, appellee claims that The Code Commission, in justifying this extraordinary
is a wrong presentation of the rule. It claims that the diligence required of a common carrier, says the
decisions of this Court in the cases cited do not warrant following:
the construction sought to be placed upon, them by
appellant for a mere perusal thereof would show that A common carrier is bound to carry the
the liability of the carrier was predicated not upon mere passengers safely as far as human care and
breach of its contract of carriage but upon the finding foresight can provide, using the utmost
that its negligence was found to be the direct or deligence of very cautions persons, with due
proximate cause of the injury complained of. Thus, regard for all circumstances. This extraordinary
appellee contends that "if there is no negligence on the diligence required of common carriers is
part of the common carrier but that the accident calculated to protect the passengers from the
 tragic mishaps that frequently occur in The evidence would appear to support the above
connection with rapid modern transportation. finding. Thus, it appears that Bus No. 31, immediately
This high standard of care is imperatively prior to the collision, was running at a moderate speed
demanded by the precariousness of human life because it had just stopped at the school zone of
and by the consideration that every person must Matacong, Polangui, Albay. The pick-up car was at full
in every way be safeguarded against all injury. speed and was running outside of its proper lane. The
(Report of the Code Commission, pp. 35-36)" driver of the bus, upon seeing the manner in which the
(Padilla, Civil Code of the Philippines, Vol. IV, pick-up was then running, swerved the bus to the very
1956 ed., p. 197). extreme right of the road until its front and rear wheels
have gone over the pile of stones or gravel situated on
From the above legal provisions, we can make the the rampart of the road. Said driver could not move the
following restatement of the principles governing the bus farther right and run over a greater portion of the
liability of a common carrier: (1) the liability of a pile, the peak of which was about 3 feet high, without
carrier is contractual and arises upon breach of its endangering the safety of his passengers. And
obligation. There is breach if it fails to exert notwithstanding all these efforts, the rear left side of the
extraordinary diligence according to all circumstances bus was hit by the pick-up car.
of each case; (2) a carrier is obliged to carry its
passenger with the utmost diligence of a very cautious Of course, this finding is disputed by appellant who
person, having due regard for all the circumstances; (3) cannot see eye to eye with the evidence for the appellee
a carrier is presumed to be at fault or to have acted and insists that the collision took place because the
negligently in case of death of, or injury to, passengers, driver of the bus was going at a fast speed. He contends
it being its duty to prove that it exercised extraordinary that, having seen that a car was coming from the
diligence; and (4) the carrier is not an insurer against all opposite direction at a distance which allows the use of
risks of travel. moderate care and prudence to avoid an accident, and
knowing that on the side of the road along which he was
The question that now arises is: Has defendant observed going there was a pile of gravel, the driver of the bus
extraordinary diligence or the utmost diligence of every should have stopped and waited for the vehicle from the
cautious person, having due regard for all opposite direction to pass, and should have proceeded
circumstances, in avoiding the collision which resulted only after the other vehicle had passed. In other words,
in the injury caused to the plaintiff? according to appellant, the act of the driver of the bus
in squeezing his way through of the bus in squeezing
After examining the evidence in connection with how
his way through between the oncoming pick-up and the
the collision occurred, the lower court made the
pile of gravel under the circumstances was considered
following finding:
negligent.
Hemos examinado muy detenidamente las
But this matter is one of credibility and evaluation of
pruebas presentadas en la vista, principalmente,
the evidence. This is evidence. This is the function of
las declaraciones que hemos acotado arriba, y
the trial court. The trial court has already spoken on this
hernos Ilegado a la conclusion de que el
matter as we have pointed out above. This is also a
demandado ha hecho, todo cuanto estuviere de
matter of appreciation of the situation on the part of the
su parte para evitar el accidente, pero sin
driver. While the position taken by appellant appeals
embargo, no ha podido evitarlo.
more to the sense of caution that one should observe in
EI hecho de que el demandado, antes del a given situation to avoid an accident or mishap, such
choque, tuvo que hacer pasar su truck encima de however can not always be expected from one who is
los montones de grava que estaban depositados placed suddenly in a predicament where he is not given
en la orilla del camino, sin que haya ido mas enough time to take the course of action as he should
alla, por el grave riesgo que corrian las vidas de under ordinary circumstances. One who is placed in
sus pasajeros, es prueba concluyente de lo que such a predicament cannot exercise such coolness or
tenemos dicho, a saber: — que el cuanto esuba accuracy of judgment as is required of him under
de su parte, para evitar el accidente, sin que haya ordinary circumstances and he cannot therefore be
podidoevitardo, por estar fuera de su control. expected to observe the same judgment, care and
precaution as in the latter. For this reason, authorities
abound where failure to observe the same degree of care injury which but for such negligence would not
that as ordinary prudent man would exercise under have been sustained. (10 C. J. 1139)
ordinary circumstances when confronted with a sadden
emergency was held to be warranted and a justification Plaintiff, (passenger) while riding on an
to exempt the carrier from liability. Thus, it was held interurban car, to flick the ashes, from his cigar,
that "where a carrier's employee is confronted with a thrust his hand over the guard rail a sufficient
sudden emergency, the fact that he is obliged to act distance beyond the side line of the car to bring
quickly and without a chance for deliberation must be it in contact with the trunk of a tree standing
taken into account, and he is held to the some degree of beside the track; the force of the blow breaking
care that he would otherwise be required to exercise in his wrist. Held, that he was guilty of
the absence of such emergency but must exercise only contributory negligence as a matter of law.
such care as any ordinary prudent person would (Malakia vs. Rhode Island Co., 89 A., 337.)
exercise under like circumstances and conditions, and
Wherefore, the decision appealed from is affirmed,
the failure on his part to exercise the best judgement the with cost against appellant.
case renders possible does not establish lack of care and
skill on his part which renders the company, liable. . . . EN BANC
(13 C. J. S., 1412; 10 C. J.,970). Considering all the
circumstances, we are persuaded to conclude that the G.R. No. L-19161 April 29, 1966
driver of the bus has done what a prudent man could
have done to avoid the collision and in our opinion this MANILA RAILROAD COMPANY, petitioner,
relieves appellee from legibility under our law. vs.
MACARIA BALLESTEROS, TIMOTEO
A circumstances which miliates against the stand of CAMAYO, JOSE REYES and JULIAN
appellant is the fact borne out by the evidence that when MAIMBAN, JR., respondents.
he boarded the bus in question, he seated himself on the
left side thereof resting his left arm on the window sill Gov't Corp. Counsel S. M. Gopengco and Atty. R. G.
but with his left elbow outside the window, this being Fernando, for petitioner.
his position in the bus when the collision took place. It George G. Arbolario, for respondents.
is for this reason that the collision resulted in the
MAKALINTAL, J.:
severance of said left arm from the body of appellant
thus doing him a great damage. It is therefore apparent In civil case No. 45968 of the Court of First Instance of
that appellant is guilty of contributory negligence. Had Manila (Macaria Ballesteros, Timoteo Camayo, Jose
he not placed his left arm on the window sill with a Reyes and Julian Maimban, Jr. vs. Manila Railroad
portion thereof protruding outside, perhaps the injury Company) the defendant was adjudged to pay damages
would have been avoided as is the case with the other in the following amounts: P2,400 to Macaria
passenger. It is to be noted that appellant was the only Ballesteros; P4,000 to Timoteo Camayo; P3,000 to Jose
victim of the collision. Reyes: and P2,000, plus P1,000 as attorney's fees, to
Julian Maimban, Jr.
It is true that such contributory negligence cannot
relieve appellee of its liability but will only entitle it to The defendant appealed from the judgment, but upon
a reduction of the amount of damage caused (Article motion by the plaintiffs, the trial court, by order dated
1762, new Civil Code), but this is a circumstance which October 14, 1961, dismissed the appeal on the ground
further militates against the position taken by appellant that it was "manifestly and palpably frivolous and
in this case. interposed ostensibly to delay the settlement of the just
and reasonable claims of the herein plaintiffs, which
It is the prevailing rule that it is negligence per
have been pending since 1958." The defendant moved
se for a passenger on a railroad voluntarily or
to reconsider, and upon denial of its motion instituted
inadvertently to protrude his arm, hand, elbow,
in this Court the instant petition for mandamus to set
or any other part of his body through the
aside the order of dismissal and to order respondent
window of a moving car beyond the outer edge
court to give due course to the appeal.
of the window or outer surface of the car, so as
to come in contact with objects or obstacles near
the track, and that no recovery can be had for an
In filing the petition directly with this Court, petitioner took the wheel and told the driver to sit somewhere else.
evidently intended to raise only questions of law in the With Abello driving, the bus proceeded on its way,
appeal contemplated, since under Rule 41, section 15, from time to time stopping to pick up passengers.
"when erroneously a motion to dismiss an appeal is Anastacio tried twice to take the wheel back but Abello
granted or a record on appeal is disallowed by the trial would not relinquish it. Then, in the language of the
court, a proper petition for mandamus may be filed in trial court, "while the bus was negotiating between Km.
the appellate court;" and under section 17(6) of the posts 328 and 329 (in Isabela) a freight truck ... driven
Judiciary Act this Court may review on appeal only by Marcial Nocum ... bound for Manila, was also
questions of law in civil cases decided by inferior courts negotiating the same place; when these two vehicles
unless the value in controversy exceeds were about to meet at the bend of the road Marcial
P200,000.1äwphï1.ñët Nocum, in trying to evade several holes on the right
lane, where his truck was running, swerved his truck
The fact that an appeal is frivolous and interposed only towards the middle part of the road and in so doing, the
for purposes of delay has been recognized as a valid left front fender and left side of the freight truck
ground to deny issuance of the writ of mandamus to smashed the left side of the bus resulting in extensive
compel the trial court to approve and certify the appeal. damages to the body of the bus and injuries to seventeen
In De la Cruz vs. Blanco and Quevedo, 73 Phil. 596, of its passengers, ... including the plaintiffs herein."
We held:
In rejecting petitioner's contention that the negligence
And where as in the instant case, the dismissal of Marcial Nocum could not be imputed to it and
has been ordered by the trial court, it would not relieved it from liability, the trial court found that
be disturbed in the Appellate Court if the latter Dionisio Abello "was likewise reckless when he was
finds the appeal to have been interposed driving the bus at the rate of from 40 to 50 kilometers
ostensibly for delay. It has been held that a per hour on a bumpy road at the moment of the
frivolous appeal is one presenting no justiciable collision."
question or one so readily cognizable as devoid
of merit on the face of the record that there is Another defense put up by petitioner is that since
little, if any, prospect that it can over succeed. Abello was not its employee it should not be held
The instant case is one such instance in which responsible for his acts. This defense was correctly
the appeal is evidently without merit, taken overruled by the trial court, considering the provisions
manifestly for delay. of Article 1763 of the Civil Code and section 48 (b) of
the Motor Vehicle Law, which respectively provide as
And in Paner vs. Yatco, 87 Phil. 271, We denied the follows:
writ prayed for and held that "while strictly and legally
speaking the petition may be granted, we may, before Art. 1763. A common carrier is responsible for
acting thereon, inquire into the facts involved in order injuries suffered by a passenger on account of
to determine whether once the writ is granted and the the wilfull acts or negligence of other
case is brought up here on appeal the appellant has any passengers or of strangers, if the common
chance, even possibility, of having the basic decision of carrier's employees through the exercise of the
the trial court set aside or modified; for if the appellant diligence of a good father of a family could have
has not that prospect or likelihood then the granting of prevented or stopped the act or omission.
the writ and the consequent appeal would be futile and
would mean only a waste of time to the parties and to Sec. 48(b). No professional chauffeur shall
this Court." permit any unlicensed person to drive the motor
vehicle under his control, or permit a person,
The material facts, as found by respondent court in its sitting beside him or in any other part of the car,
decision, are as follows: Private respondents here, to interfere with him in the operation of the
plaintiffs below, were passengers on petitioner's bus, motor vehicle, by allowing said person to take
the driver of which was Jose Anastacio. In Bayombong, hold of the steering wheel, or in any other
Nueva Vizcaya, Anastacio stopped the bus and got off manner take part in the manipulation or control
to replace a defective spark plug. While he was thus of the car.
engaged, one Dionisio Abello, an auditor assigned to
defendant company by the General Auditing Office,
It appears further, and so the trial court found, that there SPOUSES CESAR & SUTHIRA ZALAMEA and
were negotiations between the parties to compromise LIANA ZALAMEA, petitioners,
the case, as a result of which respondents herein, vs.
plaintiffs below, considerably reduced their claims to HONORABLE COURT OF APPEALS and
the amounts subsequently awarded in the judgment; TRANSWORLD AIRLINES, INC., respondents.
that petitioner had in fact settled the claims of the other
passengers who were also injured in the same accident Sycip, Salazar, Hernandez, Gatmaitan for petitioners.
and even the claim for damages filed in another action
Quisumbing, Torres & Evangelista for private-
by the owner of the freight truck; and that the respondent.
Government Corporate Counsel himself, who
represents herein petitioner, rendered two separate
opinions (Op. No. 86, May 19, 1960; and Op. No. 99,
series of 1961) wherein, after analyzing the facts and NOCON, J.:
the law applicable, he reached the conclusion that the
acts of the bus personnel, particularly "in allowing Mr. Disgruntled over TransWorld Airlines, Inc.'s refusal to
Abello to drive despite two occasions when the bus accommodate them in TWA Flight 007 departing from
stopped and the regular driver could have taken over, New York to Los Angeles on June 6, 1984 despite
constitute reckless imprudence and wanton injurious possession of confirmed tickets, petitioners filed an
conduct on the part of the MRR employees." On the action for damages before the Regional Trial Court of
basis of those opinions the Government Corporate Makati, Metro Manila, Branch 145. Advocating
Counsel advised petitioner that the offer of the petitioner's position, the trial court categorically ruled
claimants was reasonable and should be accepted. His that respondent TransWorld Airlines (TWA) breached
advice, however, was not favorably acted upon, its contract of carriage with petitioners and that said
petitioner obviously preferring to litigate. breach was "characterized by bad faith." On appeal,
however, the appellate court found that while there was
The issues proposed to be taken up on appeal, as set a breach of contract on respondent TWA's part, there
forth in the petition, are whether or not Dionisio Abello was neither fraud nor bad faith because under the Code
acted with reckless negligence while driving of Federal Regulations by the Civil Aeronautics Board
petitioner's bus at the time of the accident, and whether of the United States of America it is allowed to
or not petitioner may be held liable on account of such overbook flights.
negligence, considering that he was not its employee.
These are no longer justiciable questions which would The factual backdrop of the case is as follows:
justify our issuing the peremptory writ prayed for. The Petitioners-spouses Cesar C. Zalamea and Suthira
first is a question of fact on which the affirmative Zalamea, and their daughter, Liana Zalamea, purchased
finding of respondent court is not reviewable by Us; three (3) airline tickets from the Manila agent of
and the second is one as to which there can be no respondent TransWorld Airlines, Inc. for a flight to
possible doubt in view of the provisions of the Civil New York to Los Angeles on June 6, 1984. The tickets
Code and of the Motor Vehicle Law hereinbefore cited. of petitioners-spouses were purchased at a discount of
There would be no point in giving the appeal due 75% while that of their daughter was a full fare ticket.
course. All three tickets represented confirmed reservations.
The writ prayed for is denied, with costs against While in New York, on June 4, 1984, petitioners
petitioner. received notice of the reconfirmation of their
reservations for said flight. On the appointed date,
Republic of the Philippines however, petitioners checked in at 10:00 a.m., an hour
SUPREME COURT earlier than the scheduled flight at 11:00 a.m. but were
Manila
placed on the wait-list because the number of
SECOND DIVISION passengers who had checked in before them had already
taken all the seats available on the flight. Liana Zalamea
G.R. No. 104235 November 18, 1993 appeared as the No. 13 on the wait-list while the two
other Zalameas were listed as "No. 34, showing a party
of two." Out of the 42 names on the wait list, the first
22 names were eventually allowed to board the flight to (5) One Hundred Thousand Pesos
Los Angeles, including petitioner Cesar Zalamea. The (P100,000.00), Philippine Currency, as
two others, on the other hand, at No. 34, being ranked and for attorney's fees; and
lower than 22, were not able to fly. As it were, those
holding full-fare tickets were given first priority among (6) The costs of suit.
the wait-listed passengers. Mr. Zalamea, who was 2
SO ORDERED.
holding the full-fare ticket of his daughter, was allowed
to board the plane; while his wife and daughter, who On appeal, the respondent Court of Appeals held that
presented the discounted tickets were denied boarding. moral damages are recoverable in a damage suit
According to Mr. Zalamea, it was only later when he predicated upon a breach of contract of
discovered the he was holding his daughter's full-fare carriage only where there is fraud or bad faith. Since it
ticket. is a matter of record that overbooking of flights is a
common and accepted practice of airlines in the United
Even in the next TWA flight to Los Angeles Mrs. States and is specifically allowed under the Code of
Zalamea and her daughter, could not be accommodated Federal Regulations by the Civil Aeronautics Board, no
because it was also fully booked. Thus, they were fraud nor bad faith could be imputed on respondent
constrained to book in another flight and purchased two TransWorld Airlines.
tickets from American Airlines at a cost of Nine
Hundred Eighteen ($918.00) Dollars. Moreover, while respondent TWA was remiss in not
informing petitioners that the flight was overbooked
Upon their arrival in the Philippines, petitioners filed an
and that even a person with a confirmed reservation
action for damages based on breach of contract of air
may be denied accommodation on an overbooked
carriage before the Regional Trial Court of Makati,
flight, nevertheless it ruled that such omission or
Metro Manila, Branch 145. As aforesaid, the lower
negligence cannot under the circumstances be
court ruled in favor of petitioners in its decision 1 dated
considered to be so gross as to amount to bad faith.
January 9, 1989 the dispositive portion of which states
as follows: Finally, it also held that there was no bad faith in
placing petitioners in the wait-list along with forty-
WHEREFORE, judgment is hereby eight (48) other passengers where full-fare first class
rendered ordering the defendant to pay tickets were given priority over discounted tickets.
plaintiffs the following amounts:
The dispositive portion of the decision of respondent
(1) US $918.00, or its peso equivalent at
Court of Appeals3 dated October 25, 1991 states as
the time of payment representing the follows:
price of the tickets bought by Suthira
and Liana Zalamea from American WHEREFORE, in view of all the
Airlines, to enable them to fly to Los foregoing, the decision under review is
Angeles from New York City; hereby MODIFIED in that the award of
moral and exemplary damages to the
(2) US $159.49, or its peso equivalent at
plaintiffs is eliminated, and the
the time of payment, representing the
defendant-appellant is hereby ordered to
price of Suthira Zalamea's ticket for
pay the plaintiff the following amounts:
TWA Flight 007;
(1) US$159.49, or its peso equivalent at
(3) Eight Thousand Nine Hundred the time of the payment, representing
Thirty-Four Pesos and Fifty Centavos the price of Suthira Zalamea's ticket for
(P8,934.50, Philippine Currency, TWA Flight 007;
representing the price of Liana
Zalamea's ticket for TWA Flight 007, (2) US$159.49, or its peso equivalent at
the time of the payment, representing
(4) Two Hundred Fifty Thousand Pesos the price of Cesar Zalamea's ticket for
(P250,000.00), Philippine Currency, as TWA Flight 007;
moral damages for all the plaintiffs'
 (3) P50,000.00 as and for attorney's fees. allows overbooking. Aside from said statement, no
official publication of said code was presented as
(4) The costs of suit. evidence. Thus, respondent court's finding that
overbooking is specifically allowed by the US Code of
SO ORDERED.4
Federal Regulations has no basis in fact.
Not satisfied with the decision, petitioners raised the
case on petition for review on certiorari and alleged the Even if the claimed U.S. Code of Federal Regulations
following errors committed by the respondent Court of does exist, the same is not applicable to the case at bar
in accordance with the principle of lex loci
Appeals, to wit:
contractus which require that the law of the place
I. where the airline ticket was issued should be applied by
the court where the passengers are residents and
. . . IN HOLDING THAT THERE WAS nationals of the forum and the ticket is issued in such
NO FRAUD OR BAD FAITH ON THE State by the defendant airline. 8 Since the tickets were
PART OF RESPONDENT TWA sold and issued in the Philippines, the applicable law in
BECAUSE IT HAS A RIGHT TO this case would be Philippine law.
OVERBOOK FLIGHTS.
Existing jurisprudence explicitly states that
II. overbooking amounts to bad faith, entitling the
passengers concerned to an award of moral damages.
. . . IN ELIMINATING THE AWARD In Alitalia Airways v. Court of Appeals,9 where
OF EXEMPLARY DAMAGES. passengers with confirmed bookings were refused
III. carriage on the last minute, this Court held that when an
airline issues a ticket to a passenger confirmed on a
. . . IN NOT ORDERING THE particular flight, on a certain date, a contract of carriage
REFUND OF LIANA ZALAMEA'S arises, and the passenger has every right to expect that
TWA TICKET AND PAYMENT FOR he would fly on that flight and on that date. If he does
THE AMERICAN AIRLINES not, then the carrier opens itself to a suit for breach of
TICKETS.5 contract of carriage. Where an airline had deliberately
overbooked, it took the risk of having to deprive some
That there was fraud or bad faith on the part of passengers of their seats in case all of them would show
respondent airline when it did not allow petitioners to up for the check in. For the indignity and inconvenience
board their flight for Los Angeles in spite of confirmed of being refused a confirmed seat on the last minute,
tickets cannot be disputed. The U.S. law or regulation said passenger is entitled to an award of moral damages.
allegedly authorizing overbooking has never been
proved. Foreign laws do not prove themselves nor can Similarly, in Korean Airlines Co., Ltd. v. Court of
the courts take judicial notice of them. Like any other Appeals, 10 where private respondent was not allowed
fact, they must be alleged and proved. 6 Written law to board the plane because her seat had already been
may be evidenced by an official publication thereof or given to another passenger even before the allowable
by a copy attested by the officer having the legal period for passengers to check in had lapsed despite the
custody of the record, or by his deputy, and fact that she had a confirmed ticket and she had arrived
accompanied with a certificate that such officer has on time, this Court held that petitioner airline acted in
custody. The certificate may be made by a secretary of bad faith in violating private respondent's rights under
an embassy or legation, consul general, consul, vice- their contract of carriage and is therefore liable for the
consul, or consular agent or by any officer in the foreign injuries she has sustained as a result.
service of the Philippines stationed in the foreign
country in which the record is kept, and authenticated In fact, existing jurisprudence abounds with rulings
by the seal of his office.7 where the breach of contract of carriage amounts to bad
faith. In Pan American World Airways, Inc. v.
Respondent TWA relied solely on the statement of Ms. Intermediate Appellate Court, 11 where a would-be
Gwendolyn Lather, its customer service agent, in her passenger had the necessary ticket, baggage claim and
deposition dated January 27, 1986 that the Code of clearance from immigration all clearly and
Federal Regulations of the Civil Aeronautics Board unmistakably showing that she was, in fact, included in
the passenger manifest of said flight, and yet was It is respondent TWA's position that the practice of
denied accommodation in said flight, this Court did not overbooking and the airline system of boarding
hesitate to affirm the lower court's finding awarding her priorities are reasonable policies, which when
damages. implemented do not amount to bad faith. But the issue
raised in this case is not the reasonableness of said
A contract to transport passengers is quite different in policies but whether or not said policies were
kind and degree from any other contractual relation. So incorporated or deemed written on petitioners' contracts
ruled this Court in Zulueta v. Pan American World of carriage. Respondent TWA failed to show that there
Airways, Inc. 12 This is so, for a contract of carriage are provisions to that effect. Neither did it present any
generates a relation attended with public duty — a duty argument of substance to show that petitioners were
to provide public service and convenience to its duly apprised of the overbooked condition of the flight
passengers which must be paramount to self-interest or or that there is a hierarchy of boarding priorities in
enrichment. Thus, it was also held that the switch of booking passengers. It is evident that petitioners had the
planes from Lockheed 1011 to a smaller Boeing 707 right to rely upon the assurance of respondent TWA,
because there were only 138 confirmed economy class thru its agent in Manila, then in New York, that their
passengers who could very well be accommodated in tickets represented confirmed seats without any
the smaller planes, thereby sacrificing the comfort of its qualification. The failure of respondent TWA to so
first class passengers for the sake of economy, amounts inform them when it could easily have done so thereby
to bad faith. Such inattention and lack of care for the enabling respondent to hold on to them as passengers
interest of its passengers who are entitled to its utmost up to the last minute amounts to bad faith. Evidently,
consideration entitles the passenger to an award of respondent TWA placed its self-interest over the rights
moral damages. 13 of petitioners under their contracts of carriage. Such
conscious disregard of petitioners' rights makes
Even on the assumption that overbooking is allowed,
respondent TWA liable for moral damages. To deter
respondent TWA is still guilty of bad faith in not
breach of contracts by respondent TWA in similar
informing its passengers beforehand that it could
fashion in the future, we adjudge respondent TWA
breach the contract of carriage even if they have
liable for exemplary damages, as well.
confirmed tickets if there was overbooking.
Respondent TWA should have incorporated Petitioners also assail the respondent court's decision
stipulations on overbooking on the tickets issued or to not to require the refund of Liana Zalamea's ticket
properly inform its passengers about these policies so because the ticket was used by her father. On this score,
that the latter would be prepared for such eventuality or we uphold the respondent court. Petitioners had not
would have the choice to ride with another airline. shown with certainty that the act of respondent TWA in
Respondent TWA contends that Exhibit I, the detached allowing Mr. Zalamea to use the ticket of her daughter
was due to inadvertence or deliberate act. Petitioners
flight coupon upon which were written the name of the
had also failed to establish that they did not accede to
passenger and the points of origin and destination,
said agreement. The logical conclusion, therefore, is
contained such a notice. An examination of Exhibit I
that both petitioners and respondent TWA agreed,
does not bear this out. At any rate, said exhibit was not
albeit impliedly, to the course of action taken.
offered for the purpose of showing the existence of a
notice of overbooking but to show that Exhibit I was The respondent court erred, however, in not ordering
used for flight 007 in first class of June 11, 1984 from the refund of the American Airlines tickets purchased
New York to Los Angeles. and used by petitioners Suthira and Liana. The evidence
shows that petitioners Suthira and Liana were
Moreover, respondent TWA was also guilty of not
constrained to take the American Airlines flight to Los
informing its passengers of its alleged policy of giving
Angeles not because they "opted not to use their TWA
less priority to discounted tickets. While the petitioners
tickets on another TWA flight" but because respondent
had checked in at the same time, and held confirmed
TWA could not accommodate them either on the next
tickets, yet, only one of them was allowed to board the
TWA flight which was also fully booked. 14 The
plane ten minutes before departure time because the
purchase of the American Airlines tickets by petitioners
full-fare ticket he was holding was given priority over
Suthira and Liana was the consequence of respondent
discounted tickets. The other two petitioners were left
TWA's unjustifiable breach of its contracts of carriage
behind.
with petitioners. In accordance with Article 2201, New EN BANC
Civil Code, respondent TWA should, therefore, be
responsible for all damages which may be reasonably G.R. No. L-12191 October 14, 1918
attributed to the non-performance of its obligation. In JOSE CANGCO, plaintiff-appellant,
the previously cited case of Alitalia Airways v. Court of vs.
Appeals, 15 this Court explicitly held that a passenger is MANILA RAILROAD CO., defendant-appellee.
entitled to be reimbursed for the cost of the tickets he
had to buy for a flight to another airline. Thus, instead Ramon Sotelo for appellant.
of simply being refunded for the cost of the unused Kincaid & Hartigan for appellee.
TWA tickets, petitioners should be awarded the actual
cost of their flight from New York to Los Angeles. On
this score, we differ from the trial court's ruling which
ordered not only the reimbursement of the American
Airlines tickets but also the refund of the unused TWA FISHER, J.:
tickets. To require both prestations would have enabled At the time of the occurrence which gave rise to this
petitioners to fly from New York to Los Angeles litigation the plaintiff, Jose Cangco, was in the
without any fare being paid. employment of Manila Railroad Company in the
The award to petitioners of attorney's fees is also capacity of clerk, with a monthly wage of P25. He lived
justified under Article 2208(2) of the Civil Code which in the pueblo of San Mateo, in the province of Rizal,
allows recovery when the defendant's act or omission which is located upon the line of the defendant railroad
has compelled plaintiff to litigate or to incur expenses company; and in coming daily by train to the company's
to protect his interest. However, the award for moral office in the city of Manila where he worked, he used a
damages and exemplary damages by the trial court is pass, supplied by the company, which entitled him to
excessive in the light of the fact that only Suthira and ride upon the company's trains free of charge. Upon the
Liana Zalamea were actually "bumped off." An award occasion in question, January 20, 1915, the plaintiff
of P50,000.00 moral damages and another P50,000.00 arose from his seat in the second class-car where he was
exemplary damages would suffice under the riding and, making, his exit through the door, took his
circumstances obtaining in the instant case. position upon the steps of the coach, seizing the upright
guardrail with his right hand for support.
WHEREFORE, the petition is hereby GRANTED and
the decision of the respondent Court of Appeals is On the side of the train where passengers alight at the
hereby MODIFIED to the extent of adjudging San Mateo station there is a cement platform which
respondent TransWorld Airlines to pay damages to begins to rise with a moderate gradient some distance
petitioners in the following amounts, to wit: away from the company's office and extends along in
front of said office for a distance sufficient to cover the
(1) US$918.00 or its peso equivalent at the time of length of several coaches. As the train slowed down
payment representing the price of the tickets bought by another passenger, named Emilio Zuñiga, also an
Suthira and Liana Zalamea from American Airlines, to employee of the railroad company, got off the same car,
enable them to fly to Los Angeles from New York City; alighting safely at the point where the platform begins
to rise from the level of the ground. When the train had
(2) P50,000.00 as moral damages; proceeded a little farther the plaintiff Jose Cangco
stepped off also, but one or both of his feet came in
(3) P50,000.00 as exemplary damages;
contact with a sack of watermelons with the result that
(4) P50,000.00 as attorney's fees; and his feet slipped from under him and he fell violently on
the platform. His body at once rolled from the platform
(5) Costs of suit. and was drawn under the moving car, where his right
arm was badly crushed and lacerated. It appears that
SO ORDERED. after the plaintiff alighted from the train the car moved
forward 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 station was lighted dimly
by a single light located some distance away, objects on It can not be doubted that the employees of the railroad
the platform where the accident occurred were difficult company were guilty of negligence in piling these sacks
to discern especially to a person emerging from a on the platform in the manner above stated; that their
lighted car. presence caused the plaintiff to fall as he alighted from
the train; and that they therefore constituted an effective
The explanation of the presence of a sack of melons on legal cause of the injuries sustained by the plaintiff. It
the platform where the plaintiff alighted is found in the necessarily follows that the defendant company is liable
fact that it was the customary season for harvesting for the damage thereby occasioned unless recovery is
these melons and a large lot had been brought to the barred by the plaintiff's own contributory negligence. In
station for the shipment to the market. They were resolving this problem it is necessary that each of these
contained in numerous sacks which has been piled on conceptions of liability, to-wit, the primary
the platform in a row one upon another. The testimony responsibility of the defendant company and the
shows that this row of sacks was so placed of melons contributory negligence of the plaintiff should be
and the edge of platform; and it is clear that the fall of separately examined.
the plaintiff was due to the fact that his foot alighted
upon one of these melons at the moment he stepped It is important to note that the foundation of the legal
upon the platform. His statement that he failed to see liability of the defendant is the contract of carriage, and
these objects in the darkness is readily to be credited. that the obligation to respond for the damage which
plaintiff has suffered arises, if at all, from the breach of
The plaintiff was drawn from under the car in an that contract by reason of the failure of defendant to
unconscious condition, and it appeared that the injuries exercise due care in its performance. That is to say, its
which he had received were very serious. He was liability is direct and immediate, differing essentially,
therefore brought at once to a certain hospital in the city in legal viewpoint from that presumptive responsibility
of Manila where an examination was made and his arm for the negligence of its servants, imposed by article
was amputated. The result of this operation was 1903 of the Civil Code, which can be rebutted by proof
unsatisfactory, and the plaintiff was then carried to of the exercise of due care in their selection and
another hospital where a second operation was supervision. Article 1903 of the Civil Code is not
performed and the member was again amputated higher applicable to obligations arising ex contractu, but only
up near the shoulder. It appears in evidence that the to extra-contractual obligations — or to use the
plaintiff expended the sum of P790.25 in the form of technical form of expression, that article relates only
medical and surgical fees and for other expenses in to culpa aquiliana and not to culpa contractual.
connection with the process of his curation.
Manresa (vol. 8, p. 67) in his commentaries upon
Upon August 31, 1915, he instituted this proceeding in articles 1103 and 1104 of the Civil Code, clearly points
the Court of First Instance of the city of Manila to out this distinction, which was also recognized by this
recover damages of the defendant company, founding Court in its decision in the case of Rakes vs. Atlantic,
his action upon the negligence of the servants and Gulf and Pacific Co. (7 Phil. rep., 359). In commenting
employees of the defendant in placing the sacks of upon article 1093 Manresa clearly points out the
melons upon the platform and leaving them so placed difference between "culpa, substantive and
as to be a menace to the security of passenger alighting independent, which of itself constitutes the source of an
from the company's trains. At the hearing in the Court obligation between persons not formerly connected by
of First Instance, his Honor, the trial judge, found the any legal tie" and culpa considered as an accident in the
facts substantially as above stated, and drew therefrom performance of an obligation already existing . . . ."
his conclusion to the effect that, although negligence
was attributable to the defendant by reason of the fact In the Rakes case (supra) the decision of this court was
that the sacks of melons were so placed as to obstruct made to rest squarely upon the proposition that article
passengers passing to and from the cars, nevertheless, 1903 of the Civil Code is not applicable to acts of
the plaintiff himself had failed to use due caution in negligence which constitute the breach of a contract.
alighting from the coach and was therefore precluded
form recovering. Judgment was accordingly entered in Upon this point the Court said:
favor of the defendant company, and the plaintiff The acts to which these articles [1902 and 1903
appealed.
of the Civil Code] are applicable are understood
 to be those not growing out of pre-existing liability whatever if, by reason of the negligence of his
duties of the parties to one another. But where servants, even within the scope of their employment,
relations already formed give rise to duties, such third person suffer damage. True it is that under
whether springing from contract or quasi- article 1903 of the Civil Code the law creates
contract, then breaches of those duties are a presumption that he has been negligent in the
subject to article 1101, 1103, and 1104 of the selection or direction of his servant, but the
same code. (Rakes vs. Atlantic, Gulf and presumption is rebuttable and yield to proof of due care
Pacific Co., 7 Phil. Rep., 359 at 365.) and diligence in this respect.

This distinction is of the utmost importance. The The supreme court of Porto Rico, in interpreting
liability, which, under the Spanish law, is, in certain identical provisions, as found in the Porto Rico Code,
cases imposed upon employers with respect to damages has held that these articles are applicable to cases of
occasioned by the negligence of their employees to extra-contractual culpa exclusively.
persons to whom they are not bound by contract, is not (Carmona vs. Cuesta, 20 Porto Rico Reports, 215.)
based, as in the English Common Law, upon the
principle of respondeat superior — if it were, the This distinction was again made patent by this Court in
master would be liable in every case and its decision in the case of Bahia vs. Litonjua and
unconditionally — but upon the principle announced in Leynes, (30 Phil. rep., 624), which was an action
article 1902 of the Civil Code, which imposes upon all brought upon the theory of the extra-contractual
persons who by their fault or negligence, do injury to liability of the defendant to respond for the damage
another, the obligation of making good the damage caused by the carelessness of his employee while acting
caused. One who places a powerful automobile in the within the scope of his employment. The Court, after
hands of a servant whom he knows to be ignorant of the citing the last paragraph of article 1903 of the Civil
method of managing such a vehicle, is himself guilty of Code, said:
an act of negligence which makes him liable for all the
From this article two things are apparent: (1)
consequences of his imprudence. The obligation to That when an injury is caused by the negligence
make good the damage arises at the very instant that the of a servant or employee there instantly arises a
unskillful servant, while acting within the scope of his
presumption of law that there was negligence on
employment causes the injury. The liability of the the part of the master or employer either in
master is personal and direct. But, if the master has not
selection of the servant or employee, or in
been guilty of any negligence whatever in the selection supervision over him after the selection, or both;
and direction of the servant, he is not liable for the acts and (2) that that presumption is juris tantum and
of the latter, whatever done within the scope of his not juris et de jure, and consequently, may be
employment or not, if the damage done by the servant rebutted. It follows necessarily that if the
does not amount to a breach of the contract between the employer shows to the satisfaction of the court
master and the person injured. that in selection and supervision he has
It is not accurate to say that proof of diligence and care exercised the care and diligence of a good father
in the selection and control of the servant relieves the of a family, the presumption is overcome and he
master from liability for the latter's acts — on the is relieved from liability.
contrary, that proof shows that the responsibility has
This theory bases the responsibility of the
never existed. As Manresa says (vol. 8, p. 68) the
master ultimately on his own negligence and
liability arising from extra-contractual culpa is always
not on that of his servant. This is the notable
based upon a voluntary act or omission which, without
peculiarity of the Spanish law of negligence. It
willful intent, but by mere negligence or inattention, has
is, of course, in striking contrast to the
caused damage to another. A master who exercises all
American doctrine that, in relations with
possible care in the selection of his servant, taking into
strangers, the negligence of the servant in
consideration the qualifications they should possess for
conclusively the negligence of the master.
the discharge of the duties which it is his purpose to
confide to them, and directs them with equal diligence, The opinion there expressed by this Court, to the effect
thereby performs his duty to third persons to whom he that in case of extra-contractual culpa based upon
is bound by no contractual ties, and he incurs no negligence, it is necessary that there shall have been
some fault attributable to the defendant personally, and others who are in a position to exercise an absolute or
that the last paragraph of article 1903 merely limited control over them. The legislature which
establishes a rebuttable presumption, is in complete adopted our Civil Code has elected to limit extra-
accord with the authoritative opinion of Manresa, who contractual liability — with certain well-defined
says (vol. 12, p. 611) that the liability created by article exceptions — to cases in which moral culpability can
1903 is imposed by reason of the breach of the duties be directly imputed to the persons to be charged. This
inherent in the special relations of authority or moral responsibility may consist in having failed to
superiority existing between the person called upon to exercise due care in the selection and control of one's
repair the damage and the one who, by his act or agents or servants, or in the control of persons who, by
omission, was the cause of it. reason of their status, occupy a position of dependency
with respect to the person made liable for their conduct.
On the other hand, the liability of masters and
employers for the negligent acts or omissions of their The position of a natural or juridical person who has
servants or agents, when such acts or omissions cause undertaken by contract to render service to another, is
damages which amount to the breach of a contact, is not wholly different from that to which article 1903 relates.
based upon a mere presumption of the master's When the sources of the obligation upon which
negligence in their selection or control, and proof of plaintiff's cause of action depends is a negligent act or
exercise of the utmost diligence and care in this regard omission, the burden of proof rests upon plaintiff to
does not relieve the master of his liability for the breach prove the negligence — if he does not his action fails.
of his contract. But when the facts averred show a contractual
undertaking by defendant for the benefit of plaintiff,
Every legal obligation must of necessity be extra- and it is alleged that plaintiff has failed or refused to
contractual or contractual. Extra-contractual obligation perform the contract, it is not necessary for plaintiff to
has its source in the breach or omission of those mutual specify in his pleadings whether the breach of the
duties which civilized society imposes upon it contract is due to willful fault or to negligence on the
members, or which arise from these relations, other part of the defendant, or of his servants or agents. Proof
than contractual, of certain members of society to of the contract and of its nonperformance is
others, generally embraced in the concept of status. The sufficient prima facie to warrant a recovery.
legal rights of each member of society constitute the
measure of the corresponding legal duties, mainly As a general rule . . . it is logical that in case of
negative in character, which the existence of those extra-contractual culpa, a suing creditor should
rights imposes upon all other members of society. The assume the burden of proof of its existence, as
breach of these general duties whether due to willful the only fact upon which his action is based;
intent or to mere inattention, if productive of injury, while on the contrary, in a case of negligence
give rise to an obligation to indemnify the injured party. which presupposes the existence of a
The fundamental distinction between obligations of this contractual obligation, if the creditor shows that
character and those which arise from contract, rests it exists and that it has been broken, it is not
upon the fact that in cases of non-contractual obligation necessary for him to prove negligence.
it is the wrongful or negligent act or omission itself (Manresa, vol. 8, p. 71 [1907 ed., p. 76]).
which creates the vinculum juris, whereas in
contractual relations the vinculum exists independently As it is not necessary for the plaintiff in an action for
of the breach of the voluntary duty assumed by the the breach of a contract to show that the breach was due
parties when entering into the contractual relation. to the negligent conduct of defendant or of his servants,
even though such be in fact the actual cause of the
With respect to extra-contractual obligation arising breach, it is obvious that proof on the part of defendant
from negligence, whether of act or omission, it is that the negligence or omission of his servants or agents
competent for the legislature to elect — and our caused the breach of the contract would not constitute a
Legislature has so elected — whom such an obligation defense to the action. If the negligence of servants or
is imposed is morally culpable, or, on the contrary, for agents could be invoked as a means of discharging the
reasons of public policy, to extend that liability, without liability arising from contract, the anomalous result
regard to the lack of moral culpability, so as to include would be that person acting through the medium of
responsibility for the negligence of those person who agents or servants in the performance of their contracts,
acts or mission are imputable, by a legal fiction, to would be in a better position than those acting in person.
If one delivers a valuable watch to watchmaker who that case the court commented on the fact that no
contract to repair it, and the bailee, by a personal evidence had been adduced in the trial court that the
negligent act causes its destruction, he is defendant had been negligent in the employment of the
unquestionably liable. Would it be logical to free him driver, or that he had any knowledge of his lack of skill
from his liability for the breach of his contract, which or carefulness.
involves the duty to exercise due care in the
preservation of the watch, if he shows that it was his In the case of Baer Senior & Co's
servant whose negligence caused the injury? If such a Successors vs. Compania Maritima (6 Phil. Rep., 215),
theory could be accepted, juridical persons would enjoy the plaintiff sued the defendant for damages caused by
practically complete immunity from damages arising the loss of a barge belonging to plaintiff which was
from the breach of their contracts if caused by negligent allowed to get adrift by the negligence of defendant's
acts as such juridical persons can of necessity only act servants in the course of the performance of a contract
through agents or servants, and it would no doubt be of towage. The court held, citing Manresa (vol. 8, pp.
true in most instances that reasonable care had been 29, 69) that if the "obligation of the defendant grew out
taken in selection and direction of such servants. If one of a contract made between it and the plaintiff . . . we
delivers securities to a banking corporation as do not think that the provisions of articles 1902 and
collateral, and they are lost by reason of the negligence 1903 are applicable to the case."
of some clerk employed by the bank, would it be just In the case of Chapman vs. Underwood (27 Phil. Rep.,
and reasonable to permit the bank to relieve itself of
374), plaintiff sued the defendant to recover damages
liability for the breach of its contract to return the
for the personal injuries caused by the negligence of
collateral upon the payment of the debt by proving that defendant's chauffeur while driving defendant's
due care had been exercised in the selection and automobile in which defendant was riding at the time.
direction of the clerk?
The court found that the damages were caused by the
This distinction between culpa aquiliana, as negligence of the driver of the automobile, but held that
the source of an obligation, and culpa contractual as a the master was not liable, although he was present at the
mere incident to the performance of a contract has time, saying:
frequently been recognized by the supreme court of
. . . unless the negligent acts of the driver are
Spain. (Sentencias of June 27, 1894; November 20, continued for a length of time as to give the
1896; and December 13, 1896.) In the decisions of
owner a reasonable opportunity to observe them
November 20, 1896, it appeared that plaintiff's action and to direct the driver to desist therefrom. . . .
arose ex contractu, but that defendant sought to avail The act complained of must be continued in the
himself of the provisions of article 1902 of the Civil presence of the owner for such length of time
Code as a defense. The Spanish Supreme Court rejected that the owner by his acquiescence, makes the
defendant's contention, saying: driver's acts his own.
These are not cases of injury caused, without
In the case of Yamada vs. Manila Railroad Co. and
any pre-existing obligation, by fault or
Bachrach Garage & Taxicab Co. (33 Phil. Rep., 8), it is
negligence, such as those to which article 1902
true that the court rested its conclusion as to the liability
of the Civil Code relates, but of damages caused
of the defendant upon article 1903, although the facts
by the defendant's failure to carry out the
disclosed that the injury complaint of by plaintiff
undertakings imposed by the contracts . . . .
constituted a breach of the duty to him arising out of the
A brief review of the earlier decision of this court contract of transportation. The express ground of the
involving the liability of employers for damage done by decision in this case was that article 1903, in dealing
the negligent acts of their servants will show that in no with the liability of a master for the negligent acts of his
case has the court ever decided that the negligence of servants "makes the distinction between private
the defendant's servants has been held to constitute a individuals and public enterprise;" that as to the latter
defense to an action for damages for breach of contract. the law creates a rebuttable presumption of negligence
in the selection or direction of servants; and that in the
In the case of Johnson vs. David (5 Phil. Rep., 663), the particular case the presumption of negligence had not
court held that the owner of a carriage was not liable for been overcome.
the damages caused by the negligence of his driver. In
It is evident, therefore that in its decision Yamada case, such conditions that the same act which constitutes the
the court treated plaintiff's action as though founded in source of an extra-contractual obligation had no
tort rather than as based upon the breach of the contract contract existed between the parties.
of carriage, and an examination of the pleadings and of
the briefs shows that the questions of law were in fact The contract of defendant to transport plaintiff carried
discussed upon this theory. Viewed from the standpoint with it, by implication, the duty to carry him in safety
of the defendant the practical result must have been the and to provide safe means of entering and leaving its
same in any event. The proof disclosed beyond doubt trains (civil code, article 1258). That duty, being
that the defendant's servant was grossly negligent and contractual, was direct and immediate, and its non-
that his negligence was the proximate cause of performance could not be excused by proof that the
plaintiff's injury. It also affirmatively appeared that fault was morally imputable to defendant's servants.
defendant had been guilty of negligence in its failure to The railroad company's defense involves the
exercise proper discretion in the direction of the
assumption that even granting that the negligent
servant. Defendant was, therefore, liable for the injury conduct of its servants in placing an obstruction upon
suffered by plaintiff, whether the breach of the duty the platform was a breach of its contractual obligation
were to be regarded as constituting culpa to maintain safe means of approaching and leaving its
aquiliana or culpa contractual. As Manresa points out trains, the direct and proximate cause of the injury
(vol. 8, pp. 29 and 69) whether negligence occurs an suffered by plaintiff was his own contributory
incident in the course of the performance of a
negligence in failing to wait until the train had come to
contractual undertaking or its itself the source of an
a complete stop before alighting. Under the doctrine of
extra-contractual undertaking obligation, its essential comparative negligence announced in the Rakes case
characteristics are identical. There is always an act or (supra), if the accident was caused by plaintiff's own
omission productive of damage due to carelessness or
negligence, no liability is imposed upon defendant's
inattention on the part of the defendant. Consequently, negligence and plaintiff's negligence merely
when the court holds that a defendant is liable in
contributed to his injury, the damages should be
damages for having failed to exercise due care, either apportioned. It is, therefore, important to ascertain if
directly, or in failing to exercise proper care in the
defendant was in fact guilty of negligence.
selection and direction of his servants, the practical
result is identical in either case. Therefore, it follows It may be admitted that had plaintiff waited until the
that it is not to be inferred, because the court held in the train had come to a full stop before alighting, the
Yamada case that defendant was liable for the damages particular injury suffered by him could not have
negligently caused by its servants to a person to whom occurred. Defendant contends, and cites many
it was bound by contract, and made reference to the fact authorities in support of the contention, that it is
that the defendant was negligent in the selection and negligence per se for a passenger to alight from a
control of its servants, that in such a case the court moving train. We are not disposed to subscribe to this
would have held that it would have been a good defense doctrine in its absolute form. We are of the opinion that
to the action, if presented squarely upon the theory of this proposition is too badly stated and is at variance
the breach of the contract, for defendant to have proved with the experience of every-day life. In this particular
that it did in fact exercise care in the selection and instance, that the train was barely moving when
control of the servant. plaintiff alighted is shown conclusively by the fact that
it came to stop within six meters from the place where
The true explanation of such cases is to be found by he stepped from it. Thousands of person alight from
directing the attention to the relative spheres of trains under these conditions every day of the year, and
contractual and extra-contractual obligations. The field
sustain no injury where the company has kept its
of non- contractual obligation is much more broader platform free from dangerous obstructions. There is no
than that of contractual obligations, comprising, as it reason to believe that plaintiff would have suffered any
does, the whole extent of juridical human relations. injury whatever in alighting as he did had it not been
These two fields, figuratively speaking, concentric; that for defendant's negligent failure to perform its duty to
is to say, the mere fact that a person is bound to another
provide a safe alighting place.
by contract does not relieve him from extra-contractual
liability to such person. When such a contractual
relation exists the obligor may break the contract under
We are of the opinion that the correct doctrine relating As pertinent to the question of contributory negligence
to this subject is that expressed in Thompson's work on on the part of the plaintiff in this case the following
Negligence (vol. 3, sec. 3010) as follows: circumstances are to be noted: The company's platform
was constructed upon a level higher than that of the
The test by which to determine whether the roadbed and the surrounding ground. The distance from
passenger has been guilty of negligence in the steps of the car to the spot where the alighting
attempting to alight from a moving railway passenger would place his feet on the platform was thus
train, is that of ordinary or reasonable care. It is reduced, thereby decreasing the risk incident to
to be considered whether an ordinarily prudent stepping off. The nature of the platform, constructed as
person, of the age, sex and condition of the it was of cement material, also assured to the passenger
passenger, would have acted as the passenger a stable and even surface on which to alight.
acted under the circumstances disclosed by the Furthermore, the plaintiff was possessed of the vigor
evidence. This care has been defined to be, not and agility of young manhood, and it was by no means
the care which may or should be used by the so risky for him to get off while the train was yet
prudent man generally, but the care which a moving as the same act would have been in an aged or
man of ordinary prudence would use under feeble person. In determining the question of
similar circumstances, to avoid injury." contributory negligence in performing such act — that
(Thompson, Commentaries on Negligence, vol. is to say, whether the passenger acted prudently or
3, sec. 3010.) recklessly — the age, sex, and physical condition of the
passenger are circumstances necessarily affecting the
Or, it we prefer to adopt the mode of exposition used by
this court in Picart vs. Smith (37 Phil. rep., 809), we safety of the passenger, and should be considered.
may say that the test is this; Was there anything in the Women, it has been observed, as a general rule are less
capable than men of alighting with safety under such
circumstances surrounding the plaintiff at the time he
alighted from the train which would have admonished conditions, as the nature of their wearing apparel
obstructs the free movement of the limbs. Again, it may
a person of average prudence that to get off the train
under the conditions then existing was dangerous? If so, be noted that the place was perfectly familiar to the
plaintiff as it was his daily custom to get on and of the
the plaintiff should have desisted from alighting; and
his failure so to desist was contributory train at this station. There could, therefore, be no
uncertainty in his mind with regard either to the length
negligence.1awph![Link]
of the step which he was required to take or the
As the case now before us presents itself, the only fact character of the platform where he was alighting. Our
from which a conclusion can be drawn to the effect that conclusion is that the conduct of the plaintiff in
plaintiff was guilty of contributory negligence is that he undertaking to alight while the train was yet slightly
stepped off the car without being able to discern clearly under way was not characterized by imprudence and
the condition of the platform and while the train was yet that therefore he was not guilty of contributory
slowly moving. In considering the situation thus negligence.
presented, it should not be overlooked that the plaintiff
was, as we find, ignorant of the fact that the obstruction The evidence shows that the plaintiff, at the time of the
which was caused by the sacks of melons piled on the accident, was earning P25 a month as a copyist clerk,
platform existed; and as the defendant was bound by and that the injuries he has suffered have permanently
reason of its duty as a public carrier to afford to its disabled him from continuing that employment.
passengers facilities for safe egress from its trains, the Defendant has not shown that any other gainful
plaintiff had a right to assume, in the absence of some occupation is open to plaintiff. His expectancy of life,
according to the standard mortality tables, is
circumstance to warn him to the contrary, that the
platform was clear. The place, as we have already approximately thirty-three years. We are of the opinion
stated, was dark, or dimly lighted, and this also is proof that a fair compensation for the damage suffered by him
of a failure upon the part of the defendant in the for his permanent disability is the sum of P2,500, and
performance of a duty owing by it to the plaintiff; for if that he is also entitled to recover of defendant the
additional sum of P790.25 for medical attention,
it were by any possibility concede that it had right to
pile these sacks in the path of alighting passengers, the hospital services, and other incidental expenditures
placing of them adequately so that their presence would connected with the treatment of his injuries.
be revealed.
The decision of lower court is reversed, and judgment
is hereby rendered plaintiff for the sum of P3,290.25,
and for the costs of both instances. So ordered.