G.R. No.

145804

February 6, 2003

LIGHT RAIL TRANSIT AUTHORITY & RODOLFO ROMAN, petitioners,

vs.
MARJORIE NAVIDAD, Heirs of the Late NICANOR NAVIDAD &
PRUDENT SECURITY AGENCY, respondents.
DECISION

The LRTA and Roman presented their evidence while Prudent and Escartin,
instead of presenting evidence, filed a demurrer contending that Navidad had
failed to prove that Escartin was negligent in his assigned task. On 11 August
1998, the trial court rendered its decision; it adjudged:
"WHEREFORE, judgment is hereby rendered in favor of the plaintiffs and
against the defendants Prudent Security and Junelito Escartin ordering the
latter to pay jointly and severally the plaintiffs the following:

VITUG, J.:

"a) 1) Actual damages of P44,830.00;

The case before the Court is an appeal from the decision and resolution of
the Court of Appeals, promulgated on 27 April 2000 and 10 October 2000,
respectively, in CA-G.R. CV No. 60720, entitled "Marjorie Navidad and Heirs
of the Late Nicanor Navidad vs. Rodolfo Roman, et. al.," which has modified
the decision of 11 August 1998 of the Regional Trial Court, Branch 266,
Pasig City, exonerating Prudent Security Agency (Prudent) from liability and
finding Light Rail Transit Authority (LRTA) and Rodolfo Roman liable for
damages on account of the death of Nicanor Navidad.

2) Compensatory damages of P443,520.00;

On 14 October 1993, about half an hour past seven oclock in the evening,
Nicanor Navidad, then drunk, entered the EDSA LRT station after purchasing
a "token" (representing payment of the fare). While Navidad was standing on
the platform near the LRT tracks, Junelito Escartin, the security guard
assigned to the area approached Navidad. A misunderstanding or an
altercation between the two apparently ensued that led to a fist fight. No
evidence, however, was adduced to indicate how the fight started or who,
between the two, delivered the first blow or how Navidad later fell on the LRT
tracks. At the exact moment that Navidad fell, an LRT train, operated by
petitioner Rodolfo Roman, was coming in. Navidad was struck by the moving
train, and he was killed instantaneously.
On 08 December 1994, the widow of Nicanor, herein respondent Marjorie
Navidad, along with her children, filed a complaint for damages against
Junelito Escartin, Rodolfo Roman, the LRTA, the Metro Transit Organization,
Inc. (Metro Transit), and Prudent for the death of her husband. LRTA and
Roman filed a counterclaim against Navidad and a cross-claim against
Escartin and Prudent. Prudent, in its answer, denied liability and averred that
it had exercised due diligence in the selection and supervision of its security
guards.

3) Indemnity for the death of Nicanor Navidad in the sum of

P50,000.00;
"b) Moral damages of P50,000.00;
"c) Attorneys fees of P20,000;
"d) Costs of suit.
"The complaint against defendants LRTA and Rodolfo Roman are dismissed
for lack of merit.
"The compulsory counterclaim of LRTA and Roman are likewise dismissed." 1
Prudent appealed to the Court of Appeals. On 27 August 2000, the appellate
court promulgated its now assailed decision exonerating Prudent from any
liability for the death of Nicanor Navidad and, instead, holding the LRTA and
Roman jointly and severally liable thusly:
"WHEREFORE, the assailed judgment is hereby MODIFIED, by exonerating
the appellants from any liability for the death of Nicanor Navidad, Jr. Instead,
appellees Rodolfo Roman and the Light Rail Transit Authority (LRTA) are
held liable for his death and are hereby directed to pay jointly and severally
to the plaintiffs-appellees, the following amounts:
a) P44,830.00 as actual damages;
b) P50,000.00 as nominal damages;

c) P50,000.00 as moral damages;

d) P50,000.00 as indemnity for the death of the deceased;
and
e) P20,000.00 as and for attorneys fees."2
The appellate court ratiocinated that while the deceased might not have then
as yet boarded the train, a contract of carriage theretofore had already
existed when the victim entered the place where passengers were supposed
to be after paying the fare and getting the corresponding token therefor. In
exempting Prudent from liability, the court stressed that there was nothing to
link the security agency to the death of Navidad. It said that Navidad failed to
show that Escartin inflicted fist blows upon the victim and the evidence
merely established the fact of death of Navidad by reason of his having been
hit by the train owned and managed by the LRTA and operated at the time by
Roman. The appellate court faulted petitioners for their failure to present
expert evidence to establish the fact that the application of emergency
brakes could not have stopped the train.
The appellate court denied petitioners motion for reconsideration in its
resolution of 10 October 2000.
In their present recourse, petitioners recite alleged errors on the part of the
appellate court; viz:
"I.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED BY
DISREGARDING THE FINDINGS OF FACTS BY THE TRIAL COURT
"II.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING
THAT PETITIONERS ARE LIABLE FOR THE DEATH OF NICANOR
NAVIDAD, JR.
"III.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING
THAT RODOLFO ROMAN IS AN EMPLOYEE OF LRTA."3

Petitioners would contend that the appellate court ignored the evidence and
the factual findings of the trial court by holding them liable on the basis of a
sweeping conclusion that the presumption of negligence on the part of a
common carrier was not overcome. Petitioners would insist that Escartins
assault upon Navidad, which caused the latter to fall on the tracks, was an
act of a stranger that could not have been foreseen or prevented. The LRTA
would add that the appellate courts conclusion on the existence of an
employer-employee relationship between Roman and LRTA lacked basis
because Roman himself had testified being an employee of Metro Transit
and not of the LRTA.
Respondents, supporting the decision of the appellate court, contended that
a contract of carriage was deemed created from the moment Navidad paid
the fare at the LRT station and entered the premises of the latter, entitling
Navidad to all the rights and protection under a contractual relation, and that
the appellate court had correctly held LRTA and Roman liable for the death of
Navidad in failing to exercise extraordinary diligence imposed upon a
common carrier.
Law and jurisprudence dictate that a common carrier, both from the nature of
its business and for reasons of public policy, is burdened with the duty of
exercising utmost diligence in ensuring the safety of passengers. 4 The Civil
Code, governing the liability of a common carrier for death of or injury to its
passengers, provides:
"Article 1755. A common carrier is bound to carry the passengers safely as
far as human care and foresight can provide, using the utmost diligence of
very cautious persons, with a due regard for all the circumstances.
"Article 1756. In case of death of or injuries to passengers, common carriers
are presumed to have been at fault or to have acted negligently, unless they
prove that they observed extraordinary diligence as prescribed in articles
1733 and 1755."
"Article 1759. Common carriers are liable for the death of or injuries to
passengers through the negligence or willful acts of the formers employees,
although such employees may have acted beyond the scope of their
authority or in violation of the orders of the common carriers.
"This liability of the common carriers does not cease upon proof that they
exercised all the diligence of a good father of a family in the selection and
supervision of their employees."

"Article 1763. A common carrier is responsible for injuries suffered by a

passenger on account of the willful acts or negligence of other passengers or
of strangers, if the common carriers employees through the exercise of the
diligence of a good father of a family could have prevented or stopped the act
or omission."
The law requires common carriers to carry passengers safely using the
utmost diligence of very cautious persons with due regard for all
circumstances.5 Such duty of a common carrier to provide safety to its
passengers so obligates it not only during the course of the trip but for so
long as the passengers are within its premises and where they ought to be in
pursuance to the contract of carriage.6 The statutory provisions render a
common carrier liable for death of or injury to passengers (a) through the
negligence or wilful acts of its employees or b) on account of wilful acts or
negligence of other passengers or of strangers if the common carriers
employees through the exercise of due diligence could have prevented or
stopped the act or omission.7 In case of such death or injury, a carrier is
presumed to have been at fault or been negligent, and 8 by simple proof of
injury, the passenger is relieved of the duty to still establish the fault or
negligence of the carrier or of its employees and the burden shifts upon the
carrier to prove that the injury is due to an unforeseen event or to force
majeure.9 In the absence of satisfactory explanation by the carrier on how the
accident occurred, which petitioners, according to the appellate court, have
failed to show, the presumption would be that it has been at fault, 10 an
exception from the general rule that negligence must be proved. 11
The foundation of LRTAs liability is the contract of carriage and its obligation
to indemnify the victim arises from the breach of that contract by reason of its
failure to exercise the high diligence required of the common carrier. In the
discharge of its commitment to ensure the safety of passengers, a carrier
may choose to hire its own employees or avail itself of the services of an
outsider or an independent firm to undertake the task. In either case, the
common carrier is not relieved of its responsibilities under the contract of
carriage.
Should Prudent be made likewise liable? If at all, that liability could only be
for tort under the provisions of Article 217612 and related provisions, in
conjunction with Article 2180,13 of the Civil Code. The premise, however, for
the employers liability is negligence or fault on the part of the employee.
Once such fault is established, the employer can then be made liable on the
basis of the presumption juris tantum that the employer failed to exercise
diligentissimi patris families in the selection and supervision of its employees.
The liability is primary and can only be negated by showing due diligence in

the selection and supervision of the employee, a factual matter that has not
been shown. Absent such a showing, one might ask further, how then must
the liability of the common carrier, on the one hand, and an independent
contractor, on the other hand, be described? It would be solidary. A
contractual obligation can be breached by tort and when the same act or
omission causes the injury, one resulting in culpa contractual and the other in
culpa aquiliana, Article 219414 of the Civil Code can well apply.15 In fine, a
liability for tort may arise even under a contract, where tort is that which
breaches the contract.16 Stated differently, when an act which constitutes a
breach of contract would have itself constituted the source of a quasidelictual liability had no contract existed between the parties, the contract
can be said to have been breached by tort, thereby allowing the rules on tort
to apply.17
Regrettably for LRT, as well as perhaps the surviving spouse and heirs of the
late Nicanor Navidad, this Court is concluded by the factual finding of the
Court of Appeals that "there is nothing to link (Prudent) to the death of
Nicanor (Navidad), for the reason that the negligence of its employee,
Escartin, has not been duly proven x x x." This finding of the appellate court
is not without substantial justification in our own review of the records of the
case.
There being, similarly, no showing that petitioner Rodolfo Roman himself is
guilty of any culpable act or omission, he must also be absolved from liability.
Needless to say, the contractual tie between the LRT and Navidad is not
itself a juridical relation between the latter and Roman; thus, Roman can be
made liable only for his own fault or negligence.
The award of nominal damages in addition to actual damages is untenable.
Nominal damages are adjudicated in order that a right of the plaintiff, which
has been violated or invaded by the defendant, may be vindicated or
recognized, and not for the purpose of indemnifying the plaintiff for any loss
suffered by him.18 It is an established rule that nominal damages cannot coexist with compensatory damages.19
WHEREFORE, the assailed decision of the appellate court is AFFIRMED
with MODIFICATION but only in that (a) the award of nominal damages is
DELETED and (b) petitioner Rodolfo Roman is absolved from liability. No
costs.
SO ORDERED.

exploded. The driver, Sergio Pedrano, then parked along the right
side of the national highway and removed the damaged tire to have it
vulcanized at a nearby shop, about 700 meters away.3Pedrano left
his helper, Jose Mitante, Jr. to keep watch over the stalled vehicle,
and instructed the latter to place a spare tire six fathoms
away4 behind the stalled truck to serve as a warning for oncoming
vehicles. The trucks tail lights were also left on. It was about 12:00
a.m., March 16, 1987.
At about 4:45 a.m., D Rough Riders passenger bus with plate number PBP724 driven by Virgilio Te Laspias was cruising along the national highway of
Sitio Aggies, Poblacion, Compostela, Cebu. The passenger bus was also
bound for Cebu City, and had come from Maya, Daanbantayan, Cebu.
Among its passengers were the Spouses Pedro A. Arriesgado and Felisa
Pepito Arriesgado, who were seated at the right side of the bus, about three
(3) or four (4) places from the front seat.

WILLIAM TIU, doing business under the name and style of "D Rough
Riders," and VIRGILIO TE LAS PIAS petitioners,
vs.
PEDRO A. ARRIESGADO, BENJAMIN CONDOR, SERGIO PEDRANO and
PHILIPPINE PHOENIX SURETY AND INSURANCE, INC., respondents.
DECISION
CALLEJO, SR., J.:
This is a petition for review on certiorari under Rule 45 of the Rules of Court
from the Decision1 of the Court of Appeals in CA-G.R. CV No. 54354
affirming with modification the Decision2 of the Regional Trial Court, 7th
Judicial Region, Cebu City, Branch 20, in Civil Case No. CEB-5963 for
breach of contract of carriage, damages and attorneys fees, and the
Resolution dated February 26, 1999 denying the motion for reconsideration
thereof.
The following facts are undisputed:
At about 10:00 p.m. of March 15, 1987, the cargo truck marked
"Condor Hollow Blocks and General Merchandise" bearing plate
number GBP-675 was loaded with firewood in Bogo, Cebu and left
for Cebu City. Upon reaching Sitio Aggies, Poblacion, Compostela,
Cebu, just as the truck passed over a bridge, one of its rear tires

As the bus was approaching the bridge, Laspias saw the stalled truck,
which was then about 25 meters away.5He applied the breaks and tried to
swerve to the left to avoid hitting the truck. But it was too late; the bus
rammed into the trucks left rear. The impact damaged the right side of the
bus and left several passengers injured. Pedro Arriesgado lost
consciousness and suffered a fracture in his right colles.6 His wife, Felisa,
was brought to the Danao City Hospital. She was later transferred to the
Southern Island Medical Center where she died shortly thereafter.7
Respondent Pedro A. Arriesgado then filed a complaint for breach of contract
of carriage, damages and attorneys fees before the Regional Trial Court of
Cebu City, Branch 20, against the petitioners, D Rough Riders bus operator
William Tiu and his driver, Virgilio Te Laspias on May 27, 1987. The
respondent alleged that the passenger bus in question was cruising at a fast
and high speed along the national road, and that petitioner Laspias did not
take precautionary measures to avoid the accident. 8 Thus:
6. That the accident resulted to the death of the plaintiffs wife, Felisa
Pepito Arriesgado, as evidenced by a Certificate of Death, a xerox
copy of which is hereto attached as integral part hereof and marked
as ANNEX "A", and physical injuries to several of its passengers,
including plaintiff himself who suffered a "COLLES FRACTURE
RIGHT," per Medical Certificate, a xerox copy of which is hereto
attached as integral part hereof and marked as ANNEX "B" hereof.
7. That due to the reckless and imprudent driving by defendant
Virgilio Te Laspias of the said Rough Riders passenger bus, plaintiff
and his wife, Felisa Pepito Arriesgado, failed to safely reach their

destination which was Cebu City, the proximate cause of which was
defendant-drivers failure to observe utmost diligence required of a
very cautious person under all circumstances.
8. That defendant William Tiu, being the owner and operator of the
said Rough Riders passenger bus which figured in the said accident,
wherein plaintiff and his wife were riding at the time of the accident,
is therefore directly liable for the breach of contract of carriage for his
failure to transport plaintiff and his wife safely to their place of
destination which was Cebu City, and which failure in his obligation
to transport safely his passengers was due to and in consequence of
his failure to exercise the diligence of a good father of the family in
the selection and supervision of his employees, particularly
defendant-driver Virgilio Te Laspias.9
The respondent prayed that judgment be rendered in his favor and that the
petitioners be condemned to pay the following damages:
1). To pay to plaintiff, jointly and severally, the amount of P30,000.00
for the death and untimely demise of plaintiffs wife, Felisa Pepito
Arriesgado;
2). To pay to plaintiff, jointly and severally, the amount of P38,441.50,
representing actual expenses incurred by the plaintiff in connection
with the death/burial of plaintiffs wife;
3). To pay to plaintiff, jointly and severally, the amount of P1,113.80,
representing medical/hospitalization expenses incurred by plaintiff for
the injuries sustained by him;
4). To pay to plaintiff, jointly and severally, the amount of P50,000.00
for moral damages;
5). To pay to plaintiff, jointly and severally, the amount of P50,000.00
by way of exemplary damages;
6). To pay to plaintiff, jointly and severally, the amount of P20,000.00
for attorneys fees;

The petitioners, for their part, filed a Third-Party Complaint 11 on August 21,
1987 against the following: respondent Philippine Phoenix Surety and
Insurance, Inc. (PPSII), petitioner Tius insurer; respondent Benjamin Condor,
the registered owner of the cargo truck; and respondent Sergio Pedrano, the
driver of the truck. They alleged that petitioner Laspias was negotiating the
uphill climb along the national highway of Sitio Aggies, Poblacion,
Compostela, in a moderate and normal speed. It was further alleged that the
truck was parked in a slanted manner, its rear portion almost in the middle of
the highway, and that no early warning device was displayed. Petitioner
Laspias promptly applied the brakes and swerved to the left to avoid hitting
the truck head-on, but despite his efforts to avoid damage to property and
physical injuries on the passengers, the right side portion of the bus hit the
cargo trucks left rear. The petitioners further alleged, thus:
5. That the cargo truck mentioned in the aforequoted paragraph is
owned and registered in the name of the third-party defendant
Benjamin Condor and was left unattended by its driver Sergio
Pedrano, one of the third-party defendants, at the time of the
incident;
6. That third-party defendant Sergio Pedrano, as driver of the cargo
truck with marked (sic) "Condor Hollow Blocks & General
Merchandise," with Plate No. GBP-675 which was recklessly and
imprudently parked along the national highway of Compostela, Cebu
during the vehicular accident in question, and third-party defendant
Benjamin Condor, as the registered owner of the cargo truck who
failed to exercise due diligence in the selection and supervision of
third-party defendant Sergio Pedrano, are jointly and severally liable
to the third-party plaintiffs for whatever liability that may be adjudged
against said third-party plaintiffs or are directly liable of (sic) the
alleged death of plaintiffs wife;
7. That in addition to all that are stated above and in the answer
which are intended to show reckless imprudence on the part of the
third-party defendants, the third-party plaintiffs hereby declare that
during the vehicular accident in question, third-party defendant was
clearly violating Section 34, par. (g) of the Land Transportation and
Traffic Code

7). To pay to plaintiff, jointly and severally, the amount of P5,000.00

for litigation expenses.
PLAINTIFF FURTHER PRAYS FOR SUCH OTHER RELIEFS AND
REMEDIES IN LAW AND EQUITY.10

10. That the aforesaid passenger bus, owned and operated by thirdparty plaintiff William Tiu, is covered by a common carrier liability
insurance with Certificate of Cover No. 054940 issued by Philippine
Phoenix Surety and Insurance, Inc., Cebu City Branch, in favor of

third-party plaintiff William Tiu which covers the period from July 22,
1986 to July 22, 1987 and that the said insurance coverage was
valid, binding and subsisting during the time of the aforementioned
incident (Annex "A" as part hereof);
11. That after the aforesaid alleged incident, third-party plaintiff
notified third-party defendant Philippine Phoenix Surety and
Insurance, Inc., of the alleged incident hereto mentioned, but to no
avail;
12. That granting, et arguendo et arguendi, if herein third-party
plaintiffs will be adversely adjudged, they stand to pay damages
sought by the plaintiff and therefore could also look up to the
Philippine Phoenix Surety and Insurance, Inc., for contribution,
indemnification and/or reimbursement of any liability or obligation
that they might [be] adjudged per insurance coverage duly entered
into by and between third-party plaintiff William Tiu and third-party
defendant Philippine Phoenix Surety and Insurance, Inc.; 12
The respondent PPSII, for its part, admitted that it had an existing contract
with petitioner Tiu, but averred that it had already attended to and settled the
claims of those who were injured during the incident. 13 It could not accede to
the claim of respondent Arriesgado, as such claim was way beyond the
scheduled indemnity as contained in the contract of insurance. 14
After the parties presented their respective evidence, the trial court ruled in
favor of respondent Arriesgado. The dispositive portion of the decision reads:
WHEREFORE, in view of the foregoing, judgment is hereby
rendered in favor of plaintiff as against defendant William Tiu
ordering the latter to pay the plaintiff the following amounts:
1 - The sum of FIFTY THOUSAND PESOS (P50,000.00) as
moral damages;
2 - The sum of FIFTY THOUSAND PESOS (P50,000.00) as
exemplary damages;

5 - The sum of FIVE THOUSAND PESOS (P5,000.00) as

costs of suit;
SO ORDERED.15
According to the trial court, there was no dispute that petitioner William Tiu
was engaged in business as a common carrier, in view of his admission that
D Rough Rider passenger bus which figured in the accident was owned by
him; that he had been engaged in the transportation business for 25 years
with a sole proprietorship; and that he owned 34 buses. The trial court ruled
that if petitioner Laspias had not been driving at a fast pace, he could have
easily swerved to the left to avoid hitting the truck, thus, averting the
unfortunate incident. It then concluded that petitioner Laspias was
negligent.
The trial court also ruled that the absence of an early warning device near
the place where the truck was parked was not sufficient to impute negligence
on the part of respondent Pedrano, since the tail lights of the truck were fully
on, and the vicinity was well lighted by street lamps. 16 It also found that the
testimony of petitioner Tiu, that he based the selection of his driver Laspias
on efficiency and in-service training, and that the latter had been so far an
efficient and good driver for the past six years of his employment, was
insufficient to prove that he observed the diligence of a good father of a
family in the selection and supervision of his employees.
After the petitioners motion for reconsideration of the said decision was
denied, the petitioners elevated the case to the Court of Appeals on the
following issues:
I WHETHER THIRD PARTY DEFENDANT SERGIO PEDRANO
WAS RECKLESS AND IMPRUDENT WHEN HE PARKED THE
CARGO TRUCK IN AN OBLIQUE MANNER;
II WHETHER THE THIRD PARTY DEFENDANTS ARE JOINTLY
AND SEVERALLY LIABLE DIRECTLY TO PLAINTIFF-APPELLEE
OR TO DEFENDANTS-APPELLANTS FOR WHATEVER LIABILITY
THAT MAY BE ADJUDGED TO THE SAID DEFENDANTSAPPELLANTS;

3 - The sum of THIRTY-EIGHT THOUSAND FOUR

HUNDRED FORTY-ONE PESOS (P38,441.00) as actual
damages;

III WHETHER DEFENDANT-APPELLANT VIRGILIO TE LASPIAS

WAS GUILTY OF GROSS NEGLIGENCE;

4 - The sum of TWENTY THOUSAND PESOS (P20,000.00)

as attorneys fees;

IV WHETHER DEFENDANT-APPELLANT WILLIAM TIU HAD

EXERCISED THE DUE DILIGENCE OF A GOOD FATHER OF A

FAMILY IN THE SELECTION AND SUPERVISION OF HIS

DRIVERS;
V GRANTING FOR THE SAKE OF ARGUMENT THAT
DEFENDANT-APPELLANT WILLIAM TIU IS LIABLE TO PLAINTIFFAPPELLEE, WHETHER THERE IS LEGAL AND FACTUAL BASIS
IN AWARDING EXCESSIVE MORAL DAMAGES, EX[E]MPLARY
DAMAGES, ATTORNEYS FEES AND LITIGATION EXPENSES TO
PLAINTIFF-APPELLEE;
VI WHETHER THIRD PARTY DEFENDANT PHILIPPINE PHOENIX
SURETY AND INSURANCE, INC. IS LIABLE TO DEFENDANTAPPELLANT WILLIAM TIU.17
The appellate court rendered judgment affirming the trial courts decision with
the modification that the awards for moral and exemplary damages were
reduced to P25,000. The dispositive portion reads:
WHEREFORE, the appealed Decision dated November 6, 1995 is
hereby MODIFIED such that the awards for moral and exemplary
damages are each reduced to P25,000.00 or a total of P50,000.00
for both. The judgment is AFFIRMED in all other respects.
SO ORDERED.18
According to the appellate court, the action of respondent Arriesgado was
based not on quasi-delict but on breach of contract of carriage. As a common
carrier, it was incumbent upon petitioner Tiu to prove that extraordinary
diligence was observed in ensuring the safety of passengers during
transportation. Since the latter failed to do so, he should be held liable for
respondent Arriesgados claim. The CA also ruled that no evidence was
presented against the respondent PPSII, and as such, it could not be held
liable for respondent Arriesgados claim, nor for contribution, indemnification
and/or reimbursement in case the petitioners were adjudged liable.
The petitioners now come to this Court and ascribe the following errors
committed by the appellate court:
I. THE HONORABLE COURT OF APPEALS ERRED IN NOT
DECLARING RESPONDENTS BENJAMIN CONDOR AND SERGIO
PEDRANO GUILTY OF NEGLIGENCE AND HENCE, LIABLE TO
RESPONDENT PEDRO A. ARRIESGADO OR TO PETITIONERS
FOR WHATEVER LIABILITY THAT MAY BE ADJUDGED AGAINST
THEM.

II. THE HONORABLE COURT OF APPEALS ERRED IN FINDING

PETITIONERS GUILTY OF NEGLIGENCE AND HENCE, LIABLE
TO RESPONDENT PEDRO A. ARRIESGADO.
III. THE HONORABLE COURT OF APPEALS ERRED IN FINDING
PETITIONER WILLIAM TIU LIABLE FOR EXEMPLARY DAMAGES,
ATTORNEYS FEES AND LITIGATION EXPENSES.
IV. THE HONORABLE COURT OF APPEALS ERRED IN NOT
FINDING RESPONDENT PHILIPPINE PHOENIX SURETY AND
INSURANCE, INC. LIABLE TO RESPONDENT PEDRO A.
ARRIESGADO OR TO PETITIONER WILLIAM TIU.19
According to the petitioners, the appellate court erred in failing to appreciate
the absence of an early warning device and/or built-in reflectors at the front
and back of the cargo truck, in clear violation of Section 34, par. (g) of the
Land Transportation and Traffic Code. They aver that such violation is only a
proof of respondent Pedranos negligence, as provided under Article 2185 of
the New Civil Code. They also question the appellate courts failure to take
into account that the truck was parked in an oblique manner, its rear portion
almost at the center of the road. As such, the proximate cause of the incident
was the gross recklessness and imprudence of respondent Pedrano,
creating the presumption of negligence on the part of respondent Condor in
supervising his employees, which presumption was not rebutted. The
petitioners then contend that respondents Condor and Pedrano should be
held jointly and severally liable to respondent Arriesgado for the payment of
the latters claim.
The petitioners, likewise, aver that expert evidence should have been
presented to prove that petitioner Laspias was driving at a very fast speed,
and that the CA could not reach such conclusion by merely considering the
damages on the cargo truck. It was also pointed out that petitioner Tiu
presented evidence that he had exercised the diligence of a good father of a
family in the selection and supervision of his drivers.
The petitioners further allege that there is no legal and factual basis to
require petitioner Tiu to pay exemplary damages as no evidence was
presented to show that the latter acted in a fraudulent, reckless and
oppressive manner, or that he had an active participation in the negligent act
of petitioner Laspias.
Finally, the petitioners contend that respondent PPSII admitted in its answer
that while it had attended to and settled the claims of the other injured
passengers, respondent Arriesgados claim remained unsettled as it was
beyond the scheduled indemnity under the insurance contract. The

petitioners argue that said respondent PPSII should have settled the said
claim in accordance with the scheduled indemnity instead of just denying the
same.
On the other hand, respondent Arriesgado argues that two of the issues
raised by the petitioners involved questions of fact, not reviewable by the
Supreme Court: the finding of negligence on the part of the petitioners and
their liability to him; and the award of exemplary damages, attorneys fees
and litigation expenses in his favor. Invoking the principle of equity and
justice, respondent Arriesgado pointed out that if there was an error to be
reviewed in the CA decision, it should be geared towards the restoration of
the moral and exemplary damages toP50,000 each, or a total of P100,000
which was reduced by the Court of Appeals to P25,000 each, or a total of
only P50,000.
Respondent Arriesgado also alleged that respondents Condor and Pedrano,
and respondent Phoenix Surety, are parties with whom he had no contract of
carriage, and had no cause of action against. It was pointed out that only the
petitioners needed to be sued, as driver and operator of the ill-fated bus, on
account of their failure to bring the Arriesgado Spouses to their place of
destination as agreed upon in the contract of carriage, using the utmost
diligence of very cautious persons with due regard for all circumstances.
Respondents Condor and Pedrano point out that, as correctly ruled by the
Court of Appeals, the proximate cause of the unfortunate incident was the
fast speed at which petitioner Laspias was driving the bus owned by
petitioner Tiu. According to the respondents, the allegation that the truck was
not equipped with an early warning device could not in any way have
prevented the incident from happening. It was also pointed out that
respondent Condor had always exercised the due diligence required in the
selection and supervision of his employees, and that he was not a party to
the contract of carriage between the petitioners and respondent Arriesgado.
Respondent PPSII, for its part, alleges that contrary to the allegation of
petitioner Tiu, it settled all the claims of those injured in accordance with the
insurance contract. It further avers that it did not deny respondent
Arriesgados claim, and emphasizes that its liability should be within the
scheduled limits of indemnity under the said contract. The respondent
concludes that while it is true that insurance contracts are contracts of
indemnity, the measure of the insurers liability is determined by the insureds
compliance with the terms thereof.
The Courts Ruling

At the outset, it must be stressed that this Court is not a trier of

facts.20 Factual findings of the Court of Appeals are final and may not be
reviewed on appeal by this Court, except when the lower court and the CA
arrived at diverse factual findings.21 The petitioners in this case assail the
finding of both the trial and the appellate courts that petitioner Laspias was
driving at a very fast speed before the bus owned by petitioner Tiu collided
with respondent Condors stalled truck. This is clearly one of fact, not
reviewable by the Court in a petition for review under Rule 45. 22
On this ground alone, the petition is destined to fail.
However, considering that novel questions of law are likewise involved, the
Court resolves to examine and rule on the merits of the case.
Petitioner Laspias
Was negligent in driving
The Ill-fated bus
In his testimony before the trial court, petitioner Laspias claimed that he was
traversing the two-lane road at Compostela, Cebu at a speed of only forty
(40) to fifty (50) kilometers per hour before the incident occurred. 23 He also
admitted that he saw the truck which was parked in an "oblique position" at
about 25 meters before impact,24and tried to avoid hitting it by swerving to
the left. However, even in the absence of expert evidence, the damage
sustained by the truck25 itself supports the finding of both the trial court and
the appellate court, that the D Rough Rider bus driven by petitioner Laspias
was traveling at a fast pace. Since he saw the stalled truck at a distance of
25 meters, petitioner Laspias had more than enough time to swerve to his
left to avoid hitting it; that is, if the speed of the bus was only 40 to 50
kilometers per hour as he claimed. As found by the Court of Appeals, it is
easier to believe that petitioner Laspias was driving at a very fast speed,
since at 4:45 a.m., the hour of the accident, there were no oncoming vehicles
at the opposite direction. Petitioner Laspias could have swerved to the left
lane with proper clearance, and, thus, could have avoided the
truck.26 Instinct, at the very least, would have prompted him to apply the
breaks to avert the impending disaster which he must have foreseen when
he caught sight of the stalled truck. As we had occasion to reiterate:
A man must use common sense, and exercise due reflection in all
his acts; it is his duty to be cautious, careful and prudent, if not from
instinct, then through fear of recurring punishment. He is responsible
for such results as anyone might foresee and for acts which no one
would have performed except through culpable abandon. Otherwise,
his own person, rights and property, and those of his fellow beings,
would ever be exposed to all manner of danger and injury.27

We agree with the following findings of the trial court, which were affirmed by
the CA on appeal:
A close study and evaluation of the testimonies and the documentary
proofs submitted by the parties which have direct bearing on the
issue of negligence, this Court as shown by preponderance of
evidence that defendant Virgilio Te Laspias failed to observe
extraordinary diligence as a driver of the common carrier in this case.
It is quite hard to accept his version of the incident that he did not
see at a reasonable distance ahead the cargo truck that was parked
when the Rough Rider [Bus] just came out of the bridge which is on
an (sic) [more] elevated position than the place where the cargo
truck was parked. With its headlights fully on, defendant driver of the
Rough Rider was in a vantage position to see the cargo truck ahead
which was parked and he could just easily have avoided hitting and
bumping the same by maneuvering to the left without hitting the said
cargo truck. Besides, it is (sic) shown that there was still much room
or space for the Rough Rider to pass at the left lane of the said
national highway even if the cargo truck had occupied the entire right
lane thereof. It is not true that if the Rough Rider would proceed to
pass through the left lane it would fall into a canal considering that
there was much space for it to pass without hitting and bumping the
cargo truck at the left lane of said national highway. The records,
further, showed that there was no incoming vehicle at the opposite
lane of the national highway which would have prevented the Rough
Rider from not swerving to its left in order to avoid hitting and
bumping the parked cargo truck. But the evidence showed that the
Rough Rider instead of swerving to the still spacious left lane of the
national highway plowed directly into the parked cargo truck hitting
the latter at its rear portion; and thus, the (sic) causing damages not
only to herein plaintiff but to the cargo truck as well. 28
Indeed, petitioner Laspias negligence in driving the bus is apparent in the
records. By his own admission, he had just passed a bridge and was
traversing the highway of Compostela, Cebu at a speed of 40 to 50
kilometers per hour before the collision occurred. The maximum speed
allowed by law on a bridge is only 30 kilometers per hour.29 And, as correctly
pointed out by the trial court, petitioner Laspias also violated Section 35 of
the Land Transportation and Traffic Code, Republic Act No. 4136, as
amended:1avvphil.net
Sec. 35. Restriction as to speed. (a) Any person driving a motor
vehicle on a highway shall drive the same at a careful and prudent
speed, not greater nor less than is reasonable and proper, having
due regard for the traffic, the width of the highway, and or any other
condition then and there existing; and no person shall drive any

motor vehicle upon a highway at such speed as to endanger the life,

limb and property of any person, nor at a speed greater than will
permit him to bring the vehicle to a stop within the assured clear
distance ahead.30
Under Article 2185 of the Civil Code, a person driving a vehicle is presumed
negligent if at the time of the mishap, he was violating any traffic regulation. 31
Petitioner Tiu failed to
Overcome the presumption
Of negligence against him as
One engaged in the business
Of common carriage
The rules which common carriers should observe as to the safety of their
passengers are set forth in the Civil Code, Articles 1733, 32 175533 and
1756.34 In this case, respondent Arriesgado and his deceased wife
contracted with petitioner Tiu, as owner and operator of D Rough Riders bus
service, for transportation from Maya, Daanbantayan, Cebu, to Cebu City for
the price of P18.00.35 It is undisputed that the respondent and his wife were
not safely transported to the destination agreed upon. In actions for breach of
contract, only the existence of such contract, and the fact that the obligor, in
this case the common carrier, failed to transport his passenger safely to his
destination are the matters that need to be proved. 36 This is because under
the said contract of carriage, the petitioners assumed the express obligation
to transport the respondent and his wife to their destination safely and to
observe extraordinary diligence with due regard for all circumstances. 37 Any
injury suffered by the passengers in the course thereof is immediately
attributable to the negligence of the carrier.38Upon the happening of the
accident, the presumption of negligence at once arises, and it becomes the
duty of a common carrier to prove that he observed extraordinary diligence in
the care of his passengers.39 It must be stressed that in requiring the highest
possible degree of diligence from common carriers and in creating a
presumption of negligence against them, the law compels them to curb the
recklessness of their drivers.40
While evidence may be submitted to overcome such presumption of
negligence, it must be shown that the carrier observed the required
extraordinary diligence, which means that the carrier must show the utmost
diligence of very cautious persons as far as human care and foresight can
provide, or that the accident was caused by fortuitous event. 41 As correctly
found by the trial court, petitioner Tiu failed to conclusively rebut such
presumption. The negligence of petitioner Laspias as driver of the
passenger bus is, thus, binding against petitioner Tiu, as the owner of the
passenger bus engaged as a common carrier.42

The Doctrine of
Last Clear Chance
Is Inapplicable in the
Case at Bar

the chain of causation in fact between the improper parking of the

dump truck and the accident, nor to sever the juris vinculum of
liability.

Contrary to the petitioners contention, the principle of last clear chance is

inapplicable in the instant case, as it only applies in a suit between the
owners and drivers of two colliding vehicles. It does not arise where a
passenger demands responsibility from the carrier to enforce its contractual
obligations, for it would be inequitable to exempt the negligent driver and its
owner on the ground that the other driver was likewise guilty of
negligence.43 The common law notion of last clear chance permitted courts to
grant recovery to a plaintiff who has also been negligent provided that the
defendant had the last clear chance to avoid the casualty and failed to do so.
Accordingly, it is difficult to see what role, if any, the common law of last clear
chance doctrine has to play in a jurisdiction where the common law concept
of contributory negligence as an absolute bar to recovery by the plaintiff, has
itself been rejected, as it has been in Article 2179 of the Civil Code. 44
Thus, petitioner Tiu cannot escape liability for the death of respondent
Arriesgados wife due to the negligence of petitioner Laspias, his employee,
on this score.
Respondents Pedrano and
Condor were likewise
Negligent
In Phoenix Construction, Inc. v. Intermediate Appellate Court, 45 where therein
respondent Dionisio sustained injuries when his vehicle rammed against a
dump truck parked askew, the Court ruled that the improper parking of a
dump truck without any warning lights or reflector devices created an
unreasonable risk for anyone driving within the vicinity, and for having
created such risk, the truck driver must be held responsible. In ruling against
the petitioner therein, the Court elucidated, thus:
In our view, Dionisios negligence, although later in point of time
than the truck drivers negligence, and therefore closer to the
accident, was not an efficient intervening or independent cause.
What the petitioners describe as an "intervening cause" was no more
than a foreseeable consequence of the risk created by the negligent
manner in which the truck driver had parked the dump truck. In other
words, the petitioner truck driver owed a duty to private respondent
Dionisio and others similarly situated not to impose upon them the
very risk the truck driver had created. Dionisios negligence was not
that of an independent and overpowering nature as to cut, as it were,

We hold that private respondent Dionisios negligence was "only

contributory," that the "immediate and proximate cause" of the injury
remained the truck drivers "lack of due care."46
In this case, both the trial and the appellate courts failed to consider that
respondent Pedrano was also negligent in leaving the truck parked askew
without any warning lights or reflector devices to alert oncoming vehicles,
and that such failure created the presumption of negligence on the part of his
employer, respondent Condor, in supervising his employees properly and
adequately. As we ruled in Poblete v. Fabros:47
It is such a firmly established principle, as to have virtually formed
part of the law itself, that the negligence of the employee gives rise
to the presumption of negligence on the part of the employer. This is
the presumed negligence in the selection and supervision of
employee. The theory of presumed negligence, in contrast with the
American doctrine of respondeat superior, where the negligence of
the employee is conclusively presumed to be the negligence of the
employer, is clearly deducible from the last paragraph of Article 2180
of the Civil Code which provides that the responsibility therein
mentioned shall cease if the employers prove that they observed all
the diligence of a good father of a family to prevent damages. 48
The petitioners were correct in invoking respondent Pedranos failure to
observe Article IV, Section 34(g) of the Rep. Act No. 4136, which
provides:1avvphil.net
(g) Lights when parked or disabled. Appropriate parking lights or
flares visible one hundred meters away shall be displayed at a
corner of the vehicle whenever such vehicle is parked on highways
or in places that are not well-lighted or is placed in such manner as
to endanger passing traffic.
The manner in which the truck was parked clearly endangered oncoming
traffic on both sides, considering that the tire blowout which stalled the truck
in the first place occurred in the wee hours of the morning. The Court can
only now surmise that the unfortunate incident could have been averted had
respondent Condor, the owner of the truck, equipped the said vehicle with
lights, flares, or, at the very least, an early warning device. 49 Hence, we

cannot subscribe to respondents Condor and Pedranos claim that they

should be absolved from liability because, as found by the trial and appellate
courts, the proximate cause of the collision was the fast speed at which
petitioner Laspias drove the bus. To accept this proposition would be to
come too close to wiping out the fundamental principle of law that a man
must respond for the foreseeable consequences of his own negligent act or
omission. Indeed, our law on quasi-delicts seeks to reduce the risks and
burdens of living in society and to allocate them among its members. To
accept this proposition would be to weaken the very bonds of society.50
The Liability of
Respondent PPSII
as Insurer
The trial court in this case did not rule on the liability of respondent PPSII,
while the appellate court ruled that, as no evidence was presented against it,
the insurance company is not liable.
A perusal of the records will show that when the petitioners filed the ThirdParty Complaint against respondent PPSII, they failed to attach a copy of the
terms of the insurance contract itself. Only Certificate of Cover No.
05494051 issued in favor of "Mr. William Tiu, Lahug, Cebu City" signed by
Cosme H. Boniel was appended to the third-party complaint. The date of
issuance, July 22, 1986, the period of insurance, from July 22, 1986 to July
22, 1987, as well as the following items, were also indicated therein:
SCHEDULED VEHICLE
MODEL

MAKE
Isuzu Forward

TYPE OF
BODY
Bus

PLATE
SERIAL/CHASS MOTOR
NO.
IS NO.
NO.
PBP-724 SER450677836
1584124
SECTION 1/11
A. THIRD PARTY
LIABILITY
B. PASSENGER LIABILITY

COLOR
blue mixed

BLT FILE
NO.

AUTHORIZE
D CAPACITY
50

UNLADEN
WEIGHT
6 Cyls. Kgs.

*LIMITS OF LIABILITY
P50,000.00

Per
Person
P12,000.0

Per Accident
P50,000

PREMIUMS
PAID
P540.0052

0
In its Answer53 to the Third-Party Complaint, the respondent PPSII admitted
the existence of the contract of insurance, in view of its failure to specifically
deny the same as required under then Section 8(a), Rule 8 of the Rules of
Court,54 which reads:
Sec. 8. How to contest genuineness of such documents. When an
action or defense is founded upon a written instrument copied in or
attached to the corresponding pleading as provided in the preceding
section, the genuineness and due execution of the instrument shall
be deemed admitted unless the adverse party, under oath,
specifically denies them, and sets forth what he claims to be the
facts; but the requirement of an oath does not apply when the
adverse party does not appear to be a party to the instrument or
when compliance with an order for inspection of the original
instrument is refused.
In fact, respondent PPSII did not dispute the existence of such contract, and
admitted that it was liable thereon. It claimed, however, that it had attended
to and settled the claims of those injured during the incident, and set up the
following as special affirmative defenses:
Third party defendant Philippine Phoenix Surety and Insurance, Inc.
hereby reiterates and incorporates by way of reference the preceding
paragraphs and further states THAT:8. It has attended to the claims of Vincent Canales, Asuncion
Batiancila and Neptali Palces who sustained injuries during
the incident in question. In fact, it settled financially their
claims per vouchers duly signed by them and they duly
executed Affidavit[s] of Desistance to that effect, xerox
copies of which are hereto attached as Annexes 1, 2, 3, 4, 5,
and 6 respectively;
9. With respect to the claim of plaintiff, herein answering third
party defendant through its authorized insurance adjuster
attended to said claim. In fact, there were negotiations to
that effect. Only that it cannot accede to the demand of said
claimant considering that the claim was way beyond the
scheduled indemnity as per contract entered into with third
party plaintiff William Tiu and third party defendant
(Philippine Phoenix Surety and Insurance, Inc.). Third party
Plaintiff William Tiu knew all along the limitation as earlier

stated, he being an old hand in the transportation

business;55
Considering the admissions made by respondent PPSII, the existence of the
insurance contract and the salient terms thereof cannot be dispatched. It
must be noted that after filing its answer, respondent PPSII no longer
objected to the presentation of evidence by respondent Arriesgado and the
insured petitioner Tiu. Even in its Memorandum 56 before the Court,
respondent PPSII admitted the existence of the contract, but averred as
follows:
Petitioner Tiu is insisting that PPSII is liable to him for contribution,
indemnification and/or reimbursement. This has no basis under the
contract. Under the contract, PPSII will pay all sums necessary to
discharge liability of the insured subject to the limits of liability but not
to exceed the limits of liability as so stated in the contract. Also, it is
stated in the contract that in the event of accident involving indemnity
to more than one person, the limits of liability shall not exceed the
aggregate amount so specified by law to all persons to be
indemnified.57
As can be gleaned from the Certificate of Cover, such insurance contract was
issued pursuant to the Compulsory Motor Vehicle Liability Insurance Law. It
was expressly provided therein that the limit of the insurers liability for each
person was P12,000, while the limit per accident was pegged at P50,000. An
insurer in an indemnity contract for third party liability is directly liable to the
injured party up to the extent specified in the agreement but it cannot be held
solidarily liable beyond that amount.58 The respondent PPSII could not then
just deny petitioner Tius claim; it should have paid P12,000 for the death of
Felisa Arriesgado,59 and respondent Arriesgados hospitalization expenses
of P1,113.80, which the trial court found to have been duly supported by
receipts. The total amount of the claims, even when added to that of the
other injured passengers which the respondent PPSII claimed to have
settled,60 would not exceed the P50,000 limit under the insurance agreement.
Indeed, the nature of Compulsory Motor Vehicle Liability Insurance is such
that it is primarily intended to provide compensation for the death or bodily
injuries suffered by innocent third parties or passengers as a result of the
negligent operation and use of motor vehicles. The victims and/or their
dependents are assured of immediate financial assistance, regardless of the
financial capacity of motor vehicle owners.61 As the Court, speaking through
Associate Justice Leonardo A. Quisumbing, explained in Government
Service Insurance System v. Court of Appeals:62

However, although the victim may proceed directly against the

insurer for indemnity, the third party liability is only up to the extent of
the insurance policy and those required by law. While it is true that
where the insurance contract provides for indemnity against liability
to third persons, and such persons can directly sue the insurer, the
direct liability of the insurer under indemnity contracts against third
party liability does not mean that the insurer can be held liable in
solidum with the insured and/or the other parties found at fault. For
the liability of the insurer is based on contract; that of the insured
carrier or vehicle owner is based on tort.
Obviously, the insurer could be held liable only up to the extent of
what was provided for by the contract of insurance, in accordance
with the CMVLI law. At the time of the incident, the schedule of
indemnities for death and bodily injuries, professional fees and other
charges payable under a CMVLI coverage was provided for under
the Insurance Memorandum Circular (IMC) No. 5-78 which was
approved on November 10, 1978. As therein provided, the maximum
indemnity for death was twelve thousand (P12,000.00) pesos per
victim. The schedules for medical expenses were also provided by
said IMC, specifically in paragraphs (C) to (G). 63
Damages to be
Awarded
The trial court correctly awarded moral damages in the amount of P50,000 in
favor of respondent Arriesgado. The award of exemplary damages by way of
example or correction of the public good,64 is likewise in order. As the Court
ratiocinated in Kapalaran Bus Line v. Coronado:65
While the immediate beneficiaries of the standard of extraordinary
diligence are, of course, the passengers and owners of cargo carried
by a common carrier, they are not the only persons that the law
seeks to benefit. For if common carriers carefully observed the
statutory standard of extraordinary diligence in respect of their own
passengers, they cannot help but simultaneously benefit pedestrians
and the passengers of other vehicles who are equally entitled to the
safe and convenient use of our roads and highways. The law seeks
to stop and prevent the slaughter and maiming of people (whether
passengers or not) on our highways and buses, the very size and
power of which seem to inflame the minds of their drivers. Article
2231 of the Civil Code explicitly authorizes the imposition of
exemplary damages in cases of quasi-delicts "if the defendant acted
with gross negligence."66

The respondent Pedro A. Arriesgado, as the surviving spouse and heir of

Felisa Arriesgado, is entitled to indemnity in the amount of P50,000.00.67
The petitioners, as well as the respondents Benjamin Condor and Sergio
Pedrano are jointly and severally liable for said amount, conformably with the
following pronouncement of the Court in Fabre, Jr. vs. Court of Appeals: 68
The same rule of liability was applied in situations where the
negligence of the driver of the bus on which plaintiff was riding
concurred with the negligence of a third party who was the driver of
another vehicle, thus causing an accident. In Anuran v. Buo,
Batangas Laguna Tayabas Bus Co. v. Intermediate Appellate Court,
and Metro Manila Transit Corporation v. Court of Appeals, the bus
company, its driver, the operator of the other vehicle and the driver of
the vehicle were jointly and severally held liable to the injured
passenger or the latters heirs. The basis of this allocation of liability
was explained in Viluan v. Court of Appeals, thus:
"Nor should it make difference that the liability of petitioner
[bus owner] springs from contract while that of respondents
[owner and driver of other vehicle] arises from quasi-delict.
As early as 1913, we already ruled in Gutierrez vs.
Gutierrez, 56 Phil. 177, that in case of injury to a passenger
due to the negligence of the driver of the bus on which he
was riding and of the driver of another vehicle, the drivers as
well as the owners of the two vehicles are jointly and
severally liable for damages. Some members of the Court,
though, are of the view that under the circumstances they
are liable on quasi-delict."69
IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY
GRANTED. The Decision of the Court of Appeals
is AFFIRMED with MODIFICATIONS:
(1) Respondent Philippine Phoenix Surety and Insurance, Inc. and
petitioner William Tiu are ORDERED to pay, jointly and severally,
respondent Pedro A. Arriesgado the total amount of P13,113.80;
(2) The petitioners and the respondents Benjamin Condor and
Sergio Pedrano are ORDERED to pay, jointly and severally,
respondent Pedro A. Arriesgado P50,000.00 as
indemnity; P26,441.50 as actual damages; P50,000.00 as moral
damages; P50,000.00 as exemplary damages; and P20,000.00 as
attorneys fees.

SO ORDERED.

the Manila Railroad Company, then running from Tagkawayan to San Pablo
City, as engine driver, conductor and assistant conductor, respectively,
wilfully and unlawfully drove and operated the same in a negligent, careless
and imprudent manner, without due regard to existing laws, regulations and
ordinances, that although there were passengers on board the passenger
coach, they failed to provide lamps or lights therein, and failed to take the
necessary precautions for the safety of passengers and to prevent accident
to persons and damage to property, causing by such negligence,
carelessness and imprudence, that when said passenger Train No. 522-6
was passing the railroad tracks in the Municipality of Tiaong, Quezon, two of
its passengers, Martina Bool, an old woman, and Emelita Gesmundo, a child
about three years of age, fell from the passenger coach of the said train, as a
result of which, they were over run, causing their instantaneous death. "
G.R. No. L-30309 November 25, 1983
CLEMENTE BRIAS, petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES and HONORABLE COURT OF
APPEALS, respondents.
Mariano R. Abad for petitioner.
The Solicitor General for respondents.

GUTIERREZ, JR., J.:

This is a petition to review the decision of respondent Court of Appeals, now
Intermediate Appellate Court, affirming the decision of the Court of First
Instance of Quezon, Ninth Judicial District, Branch 1, which found the
accused Clemente Brias guilty of the crime of DOUBLE HOMICIDE THRU
RECKLESS IMPRUDENCE prior the deaths of Martina Bool and Emelita
Gesmundo.
The information charged the accused-appellant. and others as follows:
That on or about the 6th day of January, 1957, in the Municipality of Tiaong,
Province of Quezon, Philippines, and within the jurisdiction of this Hon.
Court, the said accused Victor Milan, Clemente Brias and Hermogenes
Buencamino, being then persons in charge of passenger Train No. 522-6 of

The facts established by the prosecution and accepted by the respondent

court as basis for the decision are summarized as follows:
The evidence of the prosecution tends to show that in the afternoon of
January 6, 1957, Juanito Gesmundo bought a train ticket at the railroad
station in Tagkawayan, Quezon for his 55-year old mother Martina Bool and
his 3-year old daughter Emelita Gesmundo, who were bound for Barrio
Lusacan, Tiaong, same province. At about 2:00 p.m., Train No. 522 left
Tagkawayan with the old woman and her granddaughter among the
passengers. At Hondagua the train's complement were relieved, with Victor
Millan taking over as engineman, Clemente Brias as conductor, and
Hermogenes Buencamino as assistant conductor. Upon approaching Barrio
Lagalag in Tiaong at about 8:00 p.m. of that same night, the train slowed
down and the conductor shouted 'Lusacan', 'Lusacan'. Thereupon, the old
woman walked towards the left front door facing the direction of Tiaong,
carrying the child with one hand and holding her baggage with the other.
When Martina and Emelita were near the door, the train suddenly picked up
speed. As a result the old woman and the child stumbled and they were seen
no more. It took three minutes more before the train stopped at the next
barrio, Lusacan, and the victims were not among the passengers who
disembarked thereat .
Next morning, the Tiaong police received a report that two
corpses were found along the railroad tracks at Barrio
Lagalag. Repairing to the scene to investigate, they found
the lifeless body of a female child, about 2 feet from the
railroad tracks, sprawled to the ground with her belly down,
the hand resting on the forehead, and with the back portion
of the head crushed. The investigators also found the corpse

of an old woman about 2 feet away from the railroad tracks

with the head and both legs severed and the left hand
missing. The head was located farther west between the
rails. An arm was found midway from the body of the child to
the body of the old woman. Blood, pieces of scattered brain
and pieces of clothes were at the scene. Later, the bodies
were Identified as those of Martina Bool and Emelita
Gesmundo. Among the personal effects found on Martina
was a train ticket (Exhibits "B").
On January 7, 1957, the bodies of the deceased were autopsied by Dr.
Pastor Huertas, the Municipal Health Officer of Tiaong. Dr. Huertas testified
on the cause of death of the victims as follows: t.hqw
FISCAL YNGENTE:
Q What could have caused the death of
those women?
A Shock.
Q What could have caused that shock?
A Traumatic injury.
Q What could have caused traumatic injury?
A The running over by the wheel of the train.
Q With those injuries, has a person a
chance to survive?
A No chance to survive.
Q What would you say death would come?
A Instantaneous.
Q How about the girl, the young girl about
four years old, what could have caused the
death?

A Shock too.
Q What could have caused the shock?
A Compound fracture of the skull and going
out of the brain.
Q What could have caused the fracture of
the skull and the going out of the brain?
A That is the impact against a steel object.
(TSN., pp. 81-82, July 1, 1959)
The Court of First Instance of Quezon convicted defendant-appellant
Clemente Brias for double homicide thru reckless imprudence but acquitted
Hermogenes Buencamino and Victor Millan The dispositive portion of the
decision reads: t.hqw
WHEREFORE, the court finds the defendant Clemente
Brias guilty beyond doubt of the crime of double homicide
thru reckless imprudence, defined and punished under
Article 305 in connection with Article 249 of the Revised
Penal Code, and sentences him to suffer six (6) months and
one (1) day of prision correccional to indemnify the heirs of
the deceased Martina Bool and Emelita Gesmundo in the
amounts of P6,000 and P3,000, respectively, with subsidiary
imprisonment in case of insolvency not to exceed one-third
of the principal penalty, and to pay the costs.
For lack of sufficient evidence against the defendant
Hermogenes Buencamino and on the ground of reasonable
doubt in the case of defendant Victor Millan the court hereby
acquits them of the crime charged in the information and
their bail bonds declared cancelled.
As to the responsibility of the Manila Railroad Company in
this case, this will be the subject of court determination in
another proceeding.
On appeal, the respondent Court of Appeals affirmed the judgment of the
lower court.

During the pendency of the criminal prosecution in the Court of First Instance
of Quezon, the heirs of the deceased victims filed with the same court, a
separate civil action for damages against the Manila Railroad Company
entitled "Civil Case No. 5978, Manaleyo Gesmundo, et al., v. Manila Railroad
Company". The separate civil action was filed for the recovery of P30,350.00
from the Manila Railroad Company as damages resulting from the accident.
The accused-appellant alleges that the Court of Appeals made the following
errors in its decision:
I t.hqw
THE HONORABLE COURT OF APPEALS ERRED IN
CONVICTING PETITIONER-APPELLANT UNDER THE
FACTS AS FOUND BY SAID COURT; and
II t.hqw
THE HONORABLE COURT OF APPEALS ERRED IN
INCLUDING THE PAYMENT OF DEATH INDEMNITY BY
THE PETITIONER- APPELLANT, WITH SUBSIDIARY
IMPRISONMENT IN CASE OF INSOLVENCY, AFTER THE
HEIRS OF THE DECEASED HAVE ALREADY
COMMENCED A SEPARATE CIVIL ACTION FOR
DAMAGES AGAINST THE RAILROAD COMPANY ARISING
FROM THE SAME MISHAP.
We see no error in the factual findings of the respondent court and in the
conclusion drawn from those findings.
It is undisputed that the victims were on board the second coach where the
petitioner-appellant was assigned as conductor and that when the train
slackened its speed and the conductor shouted "Lusacan, Lusacan", they
stood up and proceeded to the nearest exit. It is also undisputed that the
train unexpectedly resumed its regular speed and as a result "the old woman
and the child stumbled and they were seen no more.
In finding petitioner-appellant negligent, respondent Court t.hqw
xxx xxx xxx

The appellant's announcement was premature and

erroneous, for it took a full three minutes more before the
next barrio of Lusacan was reached. In making the
erroneous and premature announcement, appellant was
negligent. He ought to have known that train passengers
invariably prepare to alight upon notice from the conductor
that the destination was reached and that the train was
about to stop. Upon the facts, it was the appellant's negligent
act which led the victims to the door. Said acts virtually
exposed the victims to peril, for had not the appellant
mistakenly made the announcement, the victims would be
safely ensconced in their seats when the train jerked while
picking up speed, Although it might be argued that the
negligent act of the appellant was not the immediate cause
of, or the cause nearest in time to, the injury, for the train
jerked before the victims stumbled, yet in legal
contemplation appellant's negligent act was the proximate
cause of the injury. As this Court held in Tucker v. Milan, CA
G.R. No. 7059-R, June 3, 1953: 'The proximate cause of the
injury is not necessarily the immediate cause of, or the
cause nearest in time to, the injury. It is only when the
causes are independent of each other that the nearest is to
be charged with the disaster. So long as there is a natural,
direct and continuous sequence between the negligent act
the injury (sic) that it can reasonably be said that but for the
act the injury could not have occurred, such negligent act is
the proximate cause of the injury, and whoever is
responsible therefore is liable for damages resulting
therefrom. One who negligently creates a dangerous
condition cannot escape liability for the natural and probable
consequences thereof, although the act of a third person, or
an act of God for which he is not responsible intervenes to
precipitate the loss.
xxx xxx xxx
It is a matter of common knowledge and experience about common carriers
like trains and buses that before reaching a station or flagstop they slow
down and the conductor announces the name of the place. It is also a matter
of common experience that as the train or bus slackens its speed, some
passengers usually stand and proceed to the nearest exit, ready to
disembark as the train or bus comes to a full stop. This is especially true of a

train because passengers feel that if the train resumes its run before they are
able to disembark, there is no way to stop it as a bus may be stopped.
It was negligence on the conductor's part to announce the next flag stop
when said stop was still a full three minutes ahead. As the respondent Court
of Appeals correctly observed, "the appellant's announcement was
premature and erroneous.
That the announcement was premature and erroneous is shown by the fact
that immediately after the train slowed down, it unexpectedly accelerated to
full speed. Petitioner-appellant failed to show any reason why the train
suddenly resumed its regular speed. The announcement was made while the
train was still in Barrio Lagalag.
The proximate cause of the death of the victims was the premature and
erroneous announcement of petitioner' appelant Brias. This announcement
prompted the victims to stand and proceed to the nearest exit. Without said
announcement, the victims would have been safely seated in their respective
seats when the train jerked as it picked up speed. The connection between
the premature and erroneous announcement of petitioner-appellant and the
deaths of the victims is direct and natural, unbroken by any intervening
efficient causes.
Petitioner-appellant also argues that it was negligence per se for Martina
Bool to go to the door of the coach while the train was still in motion and that
it was this negligence that was the proximate cause of their deaths.
We have carefully examined the records and we agree with the respondent
court that the negligence of petitioner-appellant in prematurely and
erroneously announcing the next flag stop was the proximate cause of the
deaths of Martina Bool and Emelita Gesmundo. Any negligence of the victims
was at most contributory and does not exculpate the accused from criminal
liability.
With respect to the second assignment of error, the petitioner argues that
after the heirs of Martina Bool and Emelita Gesmundo had actually
commenced the separate civil action for damages in the same trial court
during the pendency of the criminal action, the said court had no more power
to include any civil liability in its judgment of conviction.
The source of the obligation sought to be enforced in Civil Case No. 5978 is
culpa contractual, not an act or omission punishable by law. We also note

from the appellant's arguments and from the title of the civil case that the
party defendant is the Manila Railroad Company and not petitioner-appellant
Brias Culpa contractual and an act or omission punishable by law are two
distinct sources of obligation.
The petitioner-appellant argues that since the information did not allege the
existence of any kind of damages whatsoever coupled by the fact that no
private prosecutors appeared and the prosecution witnesses were not
interrogated on the issue of damages, the trial court erred in awarding death
indemnity in its judgment of conviction.
A perusal of the records clearly shows that the complainants in the criminal
action for double homicide thru reckless imprudence did not only reserve
their right to file an independent civil action but in fact filed a separate civil
action against the Manila Railroad Company.
The trial court acted within its jurisdiction when, despite the filing with it of the
separate civil action against the Manila Railroad Company, it still awarded
death indemnity in the judgment of conviction against the petitionerappellant.
It is well-settled that when death occurs as a result of the commission of a
crime, the following items of damages may be recovered: (1) an indemnity for
the death of the victim; (2) an indemnity for loss of earning capacity of the
deceased; (3) moral damages; (4) exemplary damages; (5) attorney's fees
and expenses of litigation, and (6) interest in proper cases.
The indemnity for loss of earning capacity, moral damages, exemplary
damages, attorney's fees, and interests are recoverable separately from and
in addition to the fixed slim of P12,000.00 corresponding to the indemnity for
the sole fact of death. This indemnity arising from the fact of death due to a
crime is fixed whereas the others are still subject to the determination of the
court based on the evidence presented. The fact that the witnesses were not
interrogated on the issue of damages is of no moment because the death
indemnity fixed for death is separate and distinct from the other forms of
indemnity for damages.
WHEREFORE, the judgment appealed from is modified in that the award for
death indemnity is increased to P12,000.00 for the death of Martina Bool
instead of P6,000.00 and P12,000.00 for the death of Emelita Gesmundo
instead of P3,000.00, but deleting the subsidiary imprisonment in case of

insolvency imposed by the lower court. The judgment is AFFIRMED in all

other respects.

DE CAGUIMBAL, BIAN TRANSPORTATION COMPANY and MARCIANO

ILAGAN, respondents.

SO ORDERED.

Ozaeta, Gibbs and Ozaeta and Domingo E. de Lara for petitioner.

Victoriano H. Endaya for respondents.
CONCEPCION, C.J.:
Appeal by certiorari from a decision of the Court of Appeals.
The main facts are set forth in said decision from which we quote:

G.R. No. L-22985

January 24, 1968

BATANGAS TRANSPORTATION COMPANY, petitioner,

vs.
GREGORIO CAGUIMBAL, PANCRACIO CAGUIMBAL, MARIA MARANAN

There is no dispute at all that the deceased Pedro Caguimbal, Barrio

Lieutenant of Barrio Calansayan, San Jose, Batangas, was a paying
passenger of BTCO bus, with plate TPU-507, going south on its
regular route from Calamba, Laguna, to Batangas, Batangas, driven
by Tomas Perez, its regular driver, at about 5:30 o'clock on the early
morning of April 25, 1954. The deceased's destination was his
residence at Calansayan, San Jose, Batangas. The bus of the Bian
Transportation Company, bearing plate TPU-820, driven by Marciano
Ilagan, was coming from the opposite direction (north-bound). Along
the national highway at Barrio Daraza, Tanauan, Batangas, on the
date and hour above indicated, a horse-driven rig (calesa) managed
by Benito Makahiya, which was then ahead of the Bian bus, was
also coming from the opposite direction, meaning proceeding
towards the north. As to what transpired thereafter, the lower court
chose to give more credence to defendant Batangas Transportation
Company's version which, in the words of the Court a quo, is as
follows: "As the BTCO bus was nearing a house, a passenger
requested the conductor to stop as he was going to alight, and when
he heard the signal of the conductor, the driver Tomas Perez slowed
down his bus swerving it farther to the right in order to stop; at this
juncture, a calesa, then driven by Benito Makahiya was at a distance
of several meters facing the BTCO bus coming from the opposite
direction; that at the same time the Bian bus was about 100 meters
away likewise going northward and following the direction of
the calesa; that upon seeing the Bian bus the driver of the BTCO
bus dimmed his light as established by Magno Ilaw, the very
conductor of the Bian bus at the time of the accident; that as
the calesa and the BTCO bus were passing each other from the
opposite directions, the Bian bus following the calesa swerved to its
left in an attempt to pass between the BTCO bus and thecalesa; that
without diminishing its speed of about seventy (70) kilometers an
hour, the Bian bus passed through the space between the BTCO
bus and the calesa hitting first the left side of the BTCO bus with the

left front corner of its body and then bumped and struck
the calesa which was completely wrecked; that the driver was
seriously injured and the horse was killed; that the second and all
other posts supporting the top of the left side of the BTCO bus were
completely smashed and half of the back wall to the left was ripped
open. (Exhibits 1 and 2). The BTCO bus suffered damages for the
repair of its damaged portion.
As a consequence of this occurrence, two (2) passengers of BTCO died,
namely, Pedro Caguimbal and Guillermo Tolentino, apart from others who
were injured. The widow and children of Caguimbal instituted the present
action, which was tried jointly with a similar action of the Tolentinos, to
recover damages from the Batangas Transportation Company, hereinafter
referred to as BTCO. The latter, in turn, filed a third-party complaint against
the Bian Transportation Company hereinafter referred to as Bian and
its driver, Marciano Ilagan. Subsequently, the Caguimbals amended their
complaint, to include therein, as defendants, said Bian and Ilagan.
After appropriate proceedings, the Court of First Instance of Batangas
rendered a decision dismissing the complaint insofar as the BTCO is
concerned, without prejudice to plaintiff's right to sue Bian which had
stopped participating in the proceedings herein, owing apparently, to a case
in the Court of First Instance of Laguna for the insolvency of said enterprise
and Ilagan, and without pronouncement as to costs.
On appeal taken by the Caguimbals, the Court of Appeals reversed said
decision and rendered judgment for them, sentencing the BTCO, Bian and
Ilagan to, jointly and severally, pay to the plaintiffs the aggregate sum of
P10,500.00 1 and the costs in both instances. Hence, this appeal by BTCO,
upon the ground that the Court of Appeals erred: 1) in finding said appellant
liable for damages; and 2) in awarding attorney's fees.
In connection with the first assignment of error, we note that the recklessness
of defendant was, manifestly, a major factor in the occurrence of the accident
which resulted, inter alia, in the death of Pedro Caguimbal. Indeed, as driver
of the Bian bus, he overtook Benito Makahiya's horse-driven rig
or calesa and passed between the same and the BTCO bus despite the fact
that the space available was not big enough therefor, in view of which the
Bian bus hit the left side of the BTCO bus and then the calesa. This
notwithstanding, the Court of Appeals rendered judgment against the BTCO
upon the ground that its driver, Tomas Perez, had failed to exercise the
"extraordinary diligence," required in Article 1733 of the new Civil Code, "in
the vigilance for the safety" of his passengers. 2

The record shows that, in order to permit one of them to disembark, Perez
drove his BTCO bus partly to the right shoulder of the road and partly on the
asphalted portion thereof. Yet, he could have and should have seen to it
had he exercised "extraordinary diligence" that his bus was completely
outside the asphalted portion of the road, and fully within the shoulder
thereof, the width of which being more than sufficient to accommodate the
bus. He could have and should have done this, because, when the
aforementioned passenger expressed his wish to alight from the bus, Ilagan
had seen the aforementioned "calesa", driven by Makahiya, a few meters
away, coming from the opposite direction, with the Bian bus about 100
meters behind the rig cruising at a good speed.3 When Perez slowed down
his BTCO bus to permit said passenger to disembark, he must have known,
therefore, that the Bian bus would overtake the calesa at about the time
when the latter and BTCO bus would probably be on the same line, on
opposite sides of the asphalted portions of the road, and that the space
between the BTCO bus and the "calesa" would not be enough to allow the
Bian bus to go through. It is true that the driver of the Bian bus should
have slowed down or stopped, and, hence, was reckless in not doing so; but,
he had no especial obligations toward the passengers of the BTCO unlike
Perez whose duty was to exercise "utmost" or "extraordinary" diligence for
their safety. Perez was thus under obligation to avoid a situation which would
be hazardous for his passengers, and, make their safety dependent upon the
diligence of the Bian driver. Such obligation becomes more patent when we
considered the fact of which the Court may take judicial cognizance
that our motor vehicle drivers, particularly those of public service utilities,
have not distinguished themselves for their concern over the safety, the
comfort or the convenience of others. Besides, as correctly stated in the
syllabus to Brito Sy vs. Malate Taxicab & Garage, Inc., 4
In an action based on a contract of carriage, the court need not make
an express finding of fault or negligence on the part of the carrier in
order to hold it responsible to pay the damages sought for by the
passenger. By the contract of carriage, the carrier assumes the
express obligation to transport the passenger to his destination
safely and to observe extraordinary diligence with a due regard for all
the circumstances, and any injury that might be suffered by the
passenger is right away attributable to the fault or negligence of the
carrier (Article 1756, new Civil Code). This is an exception to the
general rule that negligence must be proved, and it is therefore
incumbent upon the carrier to prove that it has exercised
extraordinary diligence as prescribed in Articles 1733 and 1755 of
the new Civil Code.
In the case at bar, BTCO has not proven the exercise of extraordinary
diligence on its part. For this reason, the case of Isaac vs. A. L. Ammen
Trans. Co., Inc. 5 relied upon by BTCO, is not in point, for, in said case, the

public utility driver had done everything he could to avoid the accident, and
could not have possibly avoided it, for he "swerved the bus to the
very extreme right of the road," which the driver, in the present case, had
failed to do.

P10,000

As regards the second assignment of error, appellant argues that the award
of attorney's fees is not authorized by law, because, of the eleven (11) cases
specified in Article 1208 of the new Civil Code, only the fifth and the last are
relevant to the one under consideration; but the fifth case requires bad faith,
which does not exist in the case at bar. As regards the last case, which
permits the award, "where the court deems it just and equitable that
attorney's fees . . . should be recovered," it is urged that the evidence on
record does not show the existence of such just and equitable grounds.
We, however, believe otherwise, for: (1) the accident in question took place
on April 25, 1954, and the Caguimbals have been constrained to litigate for
over thirteen (13) years to vindicate their rights; and (2) it is high time to
impress effectively upon public utility operators the nature and extent of their
responsibility in respect of the safety of their passengers and their duty to
exercise greater care in the selection of drivers and conductor and in
supervising the performance of their duties, in accordance, not only with
Article 1733 of the Civil Code of the Philippines, but, also, with Articles 1755
and 1756 thereof 6 and the spirit of these provisions, as disclosed by the
letter thereof, and elucidated by the Commission that drafted the same. 7
WHEREFORE, the decision appealed from, should be, as it is hereby,
affirmed, with the costs of this instance against appellant Batangas
Transportation Company.
Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Angeles and
Fernando, JJ., concur.
Bengzon, J.P., J., took no part.

Footnotes
1

For funeral expenses

P1,000

For the death of Pedro Caguimbal

6,000

For moral damages

2,000

For attorney's fees

1,500

HERMINIO MARIANO, JR., Petitioner,

vs.
ILDEFONSO C. CALLEJAS and EDGAR DE BORJA, Respondents.
DECISION
PUNO, C.J.:
On appeal are the Decision1 and Resolution2 of the Court of Appeals in CAG.R. CV No. 66891, dated May 21, 2004 and January 7, 2005 respectively,
which reversed the Decision3 of the Regional Trial Court (RTC) of Quezon
City, dated September 13, 1999, which found respondents jointly and
severally liable to pay petitioner damages for the death of his wife.
First, the facts:
Petitioner Herminio Mariano, Jr. is the surviving spouse of Dr. Frelinda
Mariano who was a passenger of a Celyrosa Express bus bound for
Tagaytay when she met her death. Respondent Ildefonso C. Callejas is the
registered owner of Celyrosa Express, while respondent Edgar de Borja was
the driver of the bus on which the deceased was a passenger.
At around 6:30 p.m. on November 12, 1991, along Aguinaldo Highway, San
Agustin, Dasmarias, Cavite, the Celyrosa Express bus, carrying Dr. Mariano
as its passenger, collided with an Isuzu truck with trailer bearing plate
numbers PJH 906 and TRH 531. The passenger bus was bound for Tagaytay
while the trailer truck came from the opposite direction, bound for Manila.
The trailer truck bumped the passenger bus on its left middle portion. Due to
the impact, the passenger bus fell on its right side on the right shoulder of the
highway and caused the death of Dr. Mariano and physical injuries to four
other passengers. Dr. Mariano was 36 years old at the time of her death. She
left behind three minor children, aged four, three and two years.
Petitioner filed a complaint for breach of contract of carriage and damages
against respondents for their failure to transport his wife and mother of his
three minor children safely to her destination. Respondents denied liability for
the death of Dr. Mariano. They claimed that the proximate cause of the
accident was the recklessness of the driver of the trailer truck which bumped
their bus while allegedly at a halt on the shoulder of the road in its rightful
lane. Thus, respondent Callejas filed a third-party complaint against Liong
Chio Chang, doing business under the name and style of La Perla Sugar
G.R. No. 166640

July 31, 2009

Supply, the owner of the trailer truck, for indemnity in the event that he would
be held liable for damages to petitioner.lavvph!l

On May 21, 2004, the Court of Appeals reversed the decision of the trial
court. It reasoned:

Other cases were filed. Callejas filed a complaint,4 docketed as Civil Case
No. NC-397 before the RTC of Naic, Cavite, against La Perla Sugar Supply
and Arcadio Arcilla, the truck driver, for damages he incurred due to the
vehicular accident. On September 24, 1992, the said court dismissed the
complaint against La Perla Sugar Supply for lack of evidence. It, however,
found Arcilla liable to pay Callejas the cost of the repairs of his passenger
bus, his lost earnings, exemplary damages and attorneys fees. 5

. . . the presumption of fault or negligence against the carrier is only a

disputable presumption. It gives in where contrary facts are established
proving either that the carrier had exercised the degree of diligence required
by law or the injury suffered by the passenger was due to a fortuitous event.
Where, as in the instant case, the injury sustained by the petitioner was in no
way due to any defect in the means of transport or in the method of
transporting or to the negligent or wilful acts of private respondent's
employees, and therefore involving no issue of negligence in its duty to
provide safe and suitable cars as well as competent employees, with the
injury arising wholly from causes created by strangers over which the carrier
had no control or even knowledge or could not have prevented, the
presumption is rebutted and the carrier is not and ought not to be held liable.
To rule otherwise would make the common carrier the insurer of the absolute
safety of its passengers which is not the intention of the lawmakers. 8

A criminal case, Criminal Case No. 2223-92, was also filed against truck
driver Arcilla in the RTC of Imus, Cavite. On May 3, 1994, the said court
convicted truck driver Arcadio Arcilla of the crime of reckless imprudence
resulting to homicide, multiple slight physical injuries and damage to
property.6
In the case at bar, the trial court, in its Decision dated September 13, 1999,
found respondents Ildefonso Callejas and Edgar de Borja, together with
Liong Chio Chang, jointly and severally liable to pay petitioner damages and
costs of suit. The dispositive portion of the Decision reads:
ACCORDINGLY, the defendants are ordered to pay as follows:
1. The sum of P50,000.00 as civil indemnity for the loss of life;
2. The sum of P40,000.00 as actual and compensatory damages;
3. The sum of P1,829,200.00 as foregone income;
4. The sum of P30,000.00 as moral damages;
5. The sum of P20,000.00 as exemplary damages;
6. The costs of suit.
SO ORDERED.7
Respondents Callejas and De Borja appealed to the Court of Appeals,
contending that the trial court erred in holding them guilty of breach of
contract of carriage.

The dispositive portion of the Decision reads:

WHEREFORE, the decision appealed from, insofar as it found defendantsappellants Ildefonso Callejas and Edgar de Borja liable for damages to
plaintiff-appellee Herminio E. Mariano, Jr., is REVERSED and SET ASIDE
and another one entered absolving them from any liability for the death of Dr.
Frelinda Cargo Mariano.9
The appellate court also denied the motion for reconsideration filed by
petitioner.
Hence, this appeal, relying on the following ground:
THE DECISION OF THE HONORABLE COURT OF APPEALS, SPECIAL
FOURTEENTH DIVISION IS NOT IN ACCORD WITH THE FACTUAL BASIS
OF THE CASE.10
The following are the provisions of the Civil Code pertinent to the case at bar:
ART. 1733. Common carriers, from the nature of their business and for
reasons of public policy, are bound to observe extraordinary diligence in the
vigilance over the goods and for the safety of the passengers transported by
them, according to all the circumstances of each case.

ART. 1755. A common carrier is bound to carry the passengers safely as far
as human care and foresight can provide, using the utmost diligence of very
cautious persons, with a due regard for all the circumstances.
ART. 1756. In case of death of or injuries to passengers, common carriers
are presumed to have been at fault or to have acted negligently, unless they
prove that they observed extraordinary diligence as prescribed in articles
1733 and 1755.
In accord with the above provisions, Celyrosa Express, a common carrier,
through its driver, respondent De Borja, and its registered owner, respondent
Callejas, has the express obligation "to carry the passengers safely as far as
human care and foresight can provide, using the utmost diligence of very
cautious persons, with a due regard for all the circumstances," 11 and to
observe extraordinary diligence in the discharge of its duty. The death of the
wife of the petitioner in the course of transporting her to her destination gave
rise to the presumption of negligence of the carrier. To overcome the
presumption, respondents have to show that they observed extraordinary
diligence in the discharge of their duty, or that the accident was caused by a
fortuitous event.
This Court interpreted the above quoted provisions in Pilapil v. Court of
Appeals.12 We elucidated:
While the law requires the highest degree of diligence from common carriers
in the safe transport of their passengers and creates a presumption of
negligence against them, it does not, however, make the carrier an insurer of
the absolute safety of its passengers.
Article 1755 of the Civil Code qualifies the duty of extraordinary care,
vigilance and precaution in the carriage of passengers by common carriers to
only such as human care and foresight can provide. What constitutes
compliance with said duty is adjudged with due regard to all the
circumstances.
Article 1756 of the Civil Code, in creating a presumption of fault or
negligence on the part of the common carrier when its passenger is injured,
merely relieves the latter, for the time being, from introducing evidence to
fasten the negligence on the former, because the presumption stands in the
place of evidence. Being a mere presumption, however, the same is
rebuttable by proof that the common carrier had exercised extraordinary
diligence as required by law in the performance of its contractual obligation,

or that the injury suffered by the passenger was solely due to a fortuitous
event.
In fine, we can only infer from the law the intention of the Code Commission
and Congress to curb the recklessness of drivers and operators of common
carriers in the conduct of their business.
Thus, it is clear that neither the law nor the nature of the business of a
transportation company makes it an insurer of the passenger's safety, but
that its liability for personal injuries sustained by its passenger rests upon its
negligence, its failure to exercise the degree of diligence that the law
requires.
In the case at bar, petitioner cannot succeed in his contention that
respondents failed to overcome the presumption of negligence against them.
The totality of evidence shows that the death of petitioners spouse was
caused by the reckless negligence of the driver of the Isuzu trailer truck
which lost its brakes and bumped the Celyrosa Express bus, owned and
operated by respondents.
First, we advert to the sketch prepared by PO3 Magno S. de Villa, who
investigated the accident. The sketch13shows the passenger bus facing the
direction of Tagaytay City and lying on its right side on the shoulder of the
road, about five meters away from the point of impact. On the other hand, the
trailer truck was on the opposite direction, about 500 meters away from the
point of impact. PO3 De Villa stated that he interviewed De Borja, respondent
driver of the passenger bus, who said that he was about to unload some
passengers when his bus was bumped by the driver of the trailer truck that
lost its brakes. PO3 De Villa checked out the trailer truck and found that its
brakes really failed. He testified before the trial court, as follows:
ATTY. ESTELYDIZ:
q You pointed to the Isuzu truck beyond the point of impact. Did you
investigate why did (sic) the Isuzu truck is beyond the point of
impact?
a Because the truck has no brakes.
COURT:

q What is the distance between that circle which is marked as Exh.

1-c to the place where you found the same?
a More or less 500 meters.
q Why did you say that the truck has no brakes?
a I tested it.
q And you found no brakes?
a Yes, sir.
xxx
q When you went to the scene of accident, what was the position of
Celyrosa bus?
a It was lying on its side.

Said vehicle 1 [passenger bus] was running from Manila toward south
direction when, in the course of its travel, it was hit and bumped by vehicle 2
[truck with trailer] then running fast from opposite direction, causing said
vehicle 1 to fall on its side on the road shoulder, causing the death of one
and injuries of some passengers thereof, and its damage, after
collission (sic), vehicle 2 continiously (sic) ran and stopped at approximately
500 meters away from the piont (sic) of impact.15
In fine, the evidence shows that before the collision, the passenger bus was
cruising on its rightful lane along the Aguinaldo Highway when the trailer
truck coming from the opposite direction, on full speed, suddenly swerved
and encroached on its lane, and bumped the passenger bus on its left middle
portion. Respondent driver De Borja had every right to expect that the trailer
truck coming from the opposite direction would stay on its proper lane. He
was not expected to know that the trailer truck had lost its brakes. The
swerving of the trailer truck was abrupt and it was running on a fast speed as
it was found 500 meters away from the point of collision. Secondly, any doubt
as to the culpability of the driver of the trailer truck ought to vanish when he
pleaded guilty to the charge of reckless imprudence resulting to multiple
slight physical injuries and damage to property in Criminal Case No. 222392, involving the same incident.1avvph!1

COURT:
q Right side or left side?

IN VIEW WHEREOF, the petition is DENIED. The Decision dated May 21,
2004 and the Resolution dated January 7, 2005 of the Court of Appeals in
CA-G.R. CV No. 66891 are AFFIRMED.

a Right side.
SO ORDERED.
ATTY. ESTELYDIZ:
q On what part of the road was it lying?
a On the shoulder of the road.
COURT:
q How many meters from the point of impact?
a Near, about 5 meters.14
His police report bolsters his testimony and states:

G.R. No. 122039 May 31, 2000

VICENTE CALALAS, petitioner,
vs.
COURT OF APPEALS, ELIZA JUJEURCHE SUNGA and FRANCISCO
SALVA, respondents.

MENDOZA, J.:
This is a petition for review on certiorari of the decision1 of the Court of
Appeals, dated March 31, 1991, reversing the contrary decision of the
Regional Trial Court, Branch 36, Dumaguete City, and awarding damages
instead to private respondent Eliza Jujeurche Sunga as plaintiff in an action
for breach of contract of carriage.
The facts, as found by the Court of Appeals, are as follows:
At 10 o'clock in the morning of August 23, 1989, private respondent Eliza
Jujeurche G. Sunga, then a college freshman majoring in Physical Education
at the Siliman University, took a passenger jeepney owned and operated by
petitioner Vicente Calalas. As the jeepney was filled to capacity of about 24

passengers, Sunga was given by the conductor an "extension seat," a

wooden stool at the back of the door at the rear end of the vehicle.

(3) P10,000.00 as attorney's fees; and

(4) P1,000.00 as expenses of litigation; and

On the way to Poblacion Sibulan, Negros Occidental, the jeepney stopped to

let a passenger off. As she was seated at the rear of the vehicle, Sunga gave
way to the outgoing passenger. Just as she was doing so, an Isuzu truck
driven by Iglecerio Verena and owned by Francisco Salva bumped the left
rear portion of the jeepney. As a result, Sunga was injured. She sustained a
fracture of the "distal third of the left tibia-fibula with severe necrosis of the
underlying skin." Closed reduction of the fracture, long leg circular casting,
and case wedging were done under sedation. Her confinement in the
hospital lasted from August 23 to September 7, 1989. Her attending
physician, Dr. Danilo V. Oligario, an orthopedic surgeon, certified she would
remain on a cast for a period of three months and would have to ambulate in
crutches during said period.
On October 9, 1989, Sunga filed a complaint for damages against Calalas,
alleging violation of the contract of carriage by the former in failing to
exercise the diligence required of him as a common carrier. Calalas, on the
other hand, filed a third-party complaint against Francisco Salva, the owner
of the Isuzu truck.
The lower court rendered judgment against Salva as third-party defendant
and absolved Calalas of liability, holding that it was the driver of the Isuzu
truck who was responsible for the accident. It took cognizance of another
case (Civil Case No. 3490), filed by Calalas against Salva and Verena, for
quasi-delict, in which Branch 37 of the same court held Salva and his driver
Verena jointly liable to Calalas for the damage to his jeepney.
On appeal to the Court of Appeals, the ruling of the lower court was reversed
on the ground that Sunga's cause of action was based on a contract of
carriage, not quasi-delict, and that the common carrier failed to exercise the
diligence required under the Civil Code. The appellate court dismissed the
third-party complaint against Salva and adjudged Calalas liable for damages
to Sunga. The dispositive portion of its decision reads:
WHEREFORE, the decision appealed from is hereby
REVERSED and SET ASIDE, and another one is entered
ordering defendant-appellee Vicente Calalas to pay plaintiffappellant:
(1) P50,000.00 as actual and compensatory damages;
(2) P50,000.00 as moral damages;

(5) to pay the costs.

SO ORDERED.
Hence, this petition. Petitioner contends that the ruling in Civil Case No. 3490
that the negligence of Verena was the proximate cause of the accident
negates his liability and that to rule otherwise would be to make the common
carrier an insurer of the safety of its passengers. He contends that the
bumping of the jeepney by the truck owned by Salva was a caso fortuito.
Petitioner further assails the award of moral damages to Sunga on the
ground that it is not supported by evidence.
The petition has no merit.
The argument that Sunga is bound by the ruling in Civil Case No. 3490
finding the driver and the owner of the truck liable for quasi-delict ignores the
fact that she was never a party to that case and, therefore, the principle ofres
judicata does not apply.
Nor are the issues in Civil Case No. 3490 and in the present case the same.
The issue in Civil Case No. 3490 was whether Salva and his driver Verena
were liable for quasi-delict for the damage caused to petitioner's jeepney. On
the other hand, the issue in this case is whether petitioner is liable on his
contract of carriage. The first, quasi-delict, also known as culpa aquiliana or
culpa extra contractual, has as its source the negligence of the tortfeasor.
The second, breach of contract or culpa contractual, is premised upon the
negligence in the performance of a contractual obligation.
Consequently, in quasi-delict, the negligence or fault should be clearly
established because it is the basis of the action, whereas in breach of
contract, the action can be prosecuted merely by proving the existence of the
contract and the fact that the obligor, in this case the common carrier, failed
to transport his passenger safely to his destination. 2 In case of death or
injuries to passengers, Art. 1756 of the Civil Code provides that common
carriers are presumed to have been at fault or to have acted negligently
unless they prove that they observed extraordinary diligence as defined in
Arts. 1733 and 1755 of the Code. This provision necessarily shifts to the
common carrier the burden of proof.
There is, thus, no basis for the contention that the ruling in Civil Case No.
3490, finding Salva and his driver Verena liable for the damage to petitioner's

jeepney, should be binding on Sunga. It is immaterial that the proximate

cause of the collision between the jeepney and the truck was the negligence
of the truck driver. The doctrine of proximate cause is applicable only in
actions for quasi-delict, not in actions involving breach of contract. The
doctrine is a device for imputing liability to a person where there is no relation
between him and another party. In such a case, the obligation is created by
law itself. But, where there is a pre-existing contractual relation between the
parties, it is the parties themselves who create the obligation, and the
function of the law is merely to regulate the relation thus created. Insofar as
contracts of carriage are concerned, some aspects regulated by the Civil
Code are those respecting the diligence required of common carriers with
regard to the safety of passengers as well as the presumption of negligence
in cases of death or injury to passengers. It provides:
Art. 1733. Common carriers, from the nature of their
business and for reasons of public policy, are bound to
observe extraordinary diligence in the vigilance over the
goods and for the safety of the passengers transported by
them, according to all the circumstances of each case.
Such extraordinary diligence in the vigilance over the goods
is further expressed in articles 1734, 1735, and 1746, Nos.
5, 6, and 7, while the extraordinary diligence for the safety of
the passengers is further set forth in articles 1755 and 1756.
Art. 1755. A common carrier is bound to carry the
passengers safely as far as human care and foresight can
provide, using the utmost diligence of very cautious persons,
with due regard for all the circumstances.
Art. 1756. In case of death of or injuries to passengers,
common carriers are presumed to have been at fault or to
have acted negligently, unless they prove that they observed
extraordinary diligence as prescribed by articles 1733 and
1755.
In the case at bar, upon the happening of the accident, the presumption of
negligence at once arose, and it became the duty of petitioner to prove that
he had to observe extraordinary diligence in the care of his passengers.
Now, did the driver of jeepney carry Sunga "safely as far as human care and
foresight could provide, using the utmost diligence of very cautious persons,
with due regard for all the circumstances" as required by Art. 1755? We do
not think so. Several factors militate against petitioner's contention.

First, as found by the Court of Appeals, the jeepney was not properly parked,
its rear portion being exposed about two meters from the broad shoulders of
the highway, and facing the middle of the highway in a diagonal angle. This is
a violation of the R.A. No. 4136, as amended, or the Land Transportation and
Traffic Code, which provides:
Sec. 54. Obstruction of Traffic. No person shall drive his
motor vehicle in such a manner as to obstruct or impede the
passage of any vehicle, nor, while discharging or taking on
passengers or loading or unloading freight, obstruct the free
passage of other vehicles on the highway.
Second, it is undisputed that petitioner's driver took in more passengers than
the allowed seating capacity of the jeepney, a violation of 32(a) of the same
law. It provides:
Exceeding registered capacity. No person operating any
motor vehicle shall allow more passengers or more freight or
cargo in his vehicle than its registered capacity.
The fact that Sunga was seated in an "extension seat" placed her in a peril
greater than that to which the other passengers were exposed. Therefore,
not only was petitioner unable to overcome the presumption of negligence
imposed on him for the injury sustained by Sunga, but also, the evidence
shows he was actually negligent in transporting passengers.
We find it hard to give serious thought to petitioner's contention that Sunga's
taking an "extension seat" amounted to an implied assumption of risk. It is
akin to arguing that the injuries to the many victims of the tragedies in our
seas should not be compensated merely because those passengers
assumed a greater risk of drowning by boarding an overloaded ferry. This is
also true of petitioner's contention that the jeepney being bumped while it
was improperly parked constitutes caso fortuito. A caso fortuito is an event
which could not be foreseen, or which, though foreseen, was inevitable. 3 This
requires that the following requirements be present: (a) the cause of the
breach is independent of the debtor's will; (b) the event is unforeseeable or
unavoidable; (c) the event is such as to render it impossible for the debtor to
fulfill his obligation in a normal manner, and (d) the debtor did not take part in
causing the injury to the
creditor.4 Petitioner should have foreseen the danger of parking his jeepney
with its body protruding two meters into the highway.
Finally, petitioner challenges the award of moral damages alleging that it is
excessive and without basis in law. We find this contention well taken.

In awarding moral damages, the Court of Appeals stated:

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

death of a passenger, as provided in Art. 1764, in relation to Art. 2206(3) of

the Civil Code; and (2) in the cases in which the carrier is guilty of fraud or
bad faith, as provided in Art. 2220.6
In this case, there is no legal basis for awarding moral damages since there
was no factual finding by the appellate court that petitioner acted in bad faith
in the performance of the contract of carriage. Sunga's contention that
petitioner's admission in open court that the driver of the jeepney failed to
assist her in going to a nearby hospital cannot be construed as an admission
of bad faith. The fact that it was the driver of the Isuzu truck who took her to
the hospital does not imply that petitioner was utterly indifferent to the plight
of his injured passenger. If at all, it is merely implied recognition by Verena
that he was the one at fault for the accident.
WHEREFORE, the decision of the Court of Appeals, dated March 31, 1995,
and its resolution, dated September 11, 1995, are AFFIRMED, with the
MODIFICATION that the award of moral damages is DELETED.
SO ORDERED.

Those are her physical pains and moral sufferings, the

inevitable bedfellows of the injuries that she suffered. Under
Article 2219 of the Civil Code, she is entitled to recover
moral damages in the sum of P50,000.00, which is fair, just
and reasonable.
As a general rule, moral damages are not recoverable in actions for
damages predicated on a breach of contract for it is not one of the items
enumerated under Art. 2219 of the Civil Code.5 As an exception, such
damages are recoverable: (1) in cases in which the mishap results in the