SECOND DIVISION

[G.R. No. 122039. May 31, 2000]

VICENTE CALALAS, petitioner, vs. COURT OF APPEALS, ELIZA

JUJEURCHE SUNGA and FRANCISCO SALVA, respondents.

D E C I S I ON

MENDOZA, J.:

This is a petition for review on certiorari of the decision of the Court of

[1]

Appeals, dated March 31, 1991, reversing the contrary decision of the
Regional Trial Court, Branch 36, Dumaguete City, and awarding damages
instead to private respondent Eliza Jujeurche Sunga as plaintiff in an action
for breach of contract of carriage.

The facts, as found by the Court of Appeals, are as follows:

At 10 oclock in the morning of August 23, 1989, private respondent Eliza

Jujeurche G. Sunga, then a college freshman majoring in Physical Education
at the Siliman University, took a passenger jeepney owned and operated by
petitioner Vicente Calalas. As the jeepney was filled to capacity of about 24
passengers, Sunga was given by the conductor an "extension seat," a
wooden stool at the back of the door at the rear end of the vehicle. Sclaw

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

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

On October 9, 1989, Sunga filed a complaint for damages against Calalas,

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

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. Rtcspped

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

WHEREFORE, the decision appealed from is hereby REVERSED

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

(1) P50,000.00 as actual and compensatory damages;

(2) P50,000.00 as moral damages;

(3) P10,000.00 as attorneys fees; and

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

(5) to pay the costs.

SO ORDERED.

Hence, this petition. Petitioner contends that the ruling in Civil Case No. 3490
that the negligence of Verena was the proximate cause of the accident
negates his liability and that to rule otherwise would be to make the common
carrier an insurer of the safety of its passengers. He contends that the
bumping of the jeepney by the truck owned by Salva was a caso fortuito.
Petitioner further assails the award of moral damages to Sunga on the ground
that it is not supported by evidence. Sdaadsc

The petition has no merit.

The argument that Sunga is bound by the ruling in Civil Case No. 3490 finding
the driver and the owner of the truck liable for quasi-delict ignores the fact that
she was never a party to that case and, therefore, the principle of res
judicata does not apply. Missdaa

Nor are the issues in Civil Case No. 3490 and in the present case the same.
The issue in Civil Case No. 3490 was whether Salva and his driver Verena
were liable for quasi-delict for the damage caused to petitioners jeepney. On
the other hand, the issue in this case is whether petitioner is liable on his
contract of carriage. The first, quasi-delict, also known as culpa
aquiliana or culpa extra contractual, has as its source the negligence of the
tortfeasor. The second, breach of contract or culpa contractual, is premised
upon the negligence in the performance of a contractual obligation.

Consequently, in quasi-delict, the negligence or fault should be clearly

established because it is the basis of the action, whereas in breach of
contract, the action can be prosecuted merely by proving the existence of the
contract and the fact that the obligor, in this case the common carrier, failed to
transport his passenger safely to his destination. In case of death or injuries
[2]

to passengers, Art. 1756 of the Civil Code provides that common carriers are
presumed to have been at fault or to have acted negligently unless they prove
that they observed extraordinary diligence as defined in Arts. 1733 and 1755
of the Code. This provision necessarily shifts to the common carrier the
burden of proof. Slxmis

There is, thus, no basis for the contention that the ruling in Civil Case No.
3490, finding Salva and his driver Verena liable for the damage to petitioners
jeepney, should be binding on Sunga. It is immaterial that the proximate
cause of the collision between the jeepney and the truck was the negligence
of the truck driver. The doctrine of proximate cause is applicable only in
actions for quasi-delict, not in actions involving breach of contract. The
doctrine is a device for imputing liability to a person where there is no relation
between him and another party. In such a case, the obligation is created by
law itself. But, where there is a pre-existing contractual relation between the
parties, it is the parties themselves who create the obligation, and the function
of the law is merely to regulate the relation thus created. Insofar as contracts
of carriage are concerned, some aspects regulated by the Civil Code are
those respecting the diligence required of common carriers with regard to the
safety of passengers as well as the presumption of negligence in cases of
death or injury to passengers. It provides: Slxsc
 Art. 1733. Common carriers, from the nature of their business and
for reasons of public policy, are bound to observe extraordinary
diligence in the vigilance over the goods and for the safety of the
passengers transported by them, according to all the
circumstances of each case.

Such extraordinary diligence in the vigilance over the goods is

further expressed in articles 1734, 1735, and 1746, Nos. 5,6, and
7, while the extraordinary diligence for the safety of the
passengers is further set forth in articles 1755 and 1756.

Art. 1755. A common carrier is bound to carry the passengers

safely as far as human care and foresight can provide, using the
utmost diligence of very cautious persons, with due regard for all
the circumstances.

Art. 1756. In case of death of or injuries to passengers, common

carriers are presumed to have been at fault or to have acted
negligently, unless they prove that they observed extraordinary
diligence as prescribed by articles 1733 and 1755.

In the case at bar, upon the happening of the accident, the presumption of
negligence at once arose, and it became the duty of petitioner to prove that he
had to observe extraordinary diligence in the care of his passengers. Scslx

Now, did the driver of jeepney carry Sunga "safely as far as human care and
foresight could provide, using the utmost diligence of very cautious persons,
with due regard for all the circumstances" as required by Art. 1755? We do not
think so. Several factors militate against petitioners contention. Slx

First, as found by the Court of Appeals, the jeepney was not properly parked,
its rear portion being exposed about two meters from the broad shoulders of
the highway, and facing the middle of the highway in a diagonal angle. This is
a violation of the R.A. No. 4136, as amended, or the Land Transportation and
Traffic Code, which provides:

Sec. 54. Obstruction of Traffic. - No person shall drive his motor

vehicle in such a manner as to obstruct or impede the passage of
any vehicle, nor, while discharging or taking on passengers or
loading or unloading freight, obstruct the free passage of other
vehicles on the highway.
Second, it is undisputed that petitioners driver took in more passengers than
the allowed seating capacity of the jeepney, a violation of 32(a) of the same
law. It provides: Mesm

Exceeding registered capacity. - No person operating any motor

vehicle shall allow more passengers or more freight or cargo in
his vehicle than its registered capacity.

The fact that Sunga was seated in an "extension seat" placed her in a peril
greater than that to which the other passengers were exposed. Therefore, not
only was petitioner unable to overcome the presumption of negligence
imposed on him for the injury sustained by Sunga, but also, the evidence
shows he was actually negligent in transporting passengers. Calrky

We find it hard to give serious thought to petitioners contention that Sungas

taking an "extension seat" amounted to an implied assumption of risk. It is
akin to arguing that the injuries to the many victims of the tragedies in our
seas should not be compensated merely because those passengers assumed
a greater risk of drowning by boarding an overloaded ferry. This is also true of
petitioners contention that the jeepney being bumped while it was improperly
parked constitutes caso fortuito. A caso fortuito is an event which could not be
foreseen, or which, though foreseen, was inevitable. This requires that the
[3]

following requirements be present: (a) the cause of the breach is independent

of the debtors will; (b) the event is unforeseeable or unavoidable; (c) the event
is such as to render it impossible for the debtor to fulfill his obligation in a
normal manner, and (d) the debtor did not take part in causing the injury to the
creditor. Petitioner should have foreseen the danger of parking his jeepney
[4]

with its body protruding two meters into the highway. Kycalr

Finally, petitioner challenges the award of moral damages alleging that it is

excessive and without basis in law. We find this contention well taken.

In awarding moral damages, the Court of Appeals stated: Kyle

Plaintiff-appellant at the time of the accident was a first-year

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

Those are her physical pains and moral sufferings, the inevitable
bedfellows of the injuries that she suffered. Under Article 2219 of
the Civil Code, she is entitled to recover moral damages in the
sum of P50,000.00, which is fair, just and reasonable.

As a general rule, moral damages are not recoverable in actions for damages
predicated on a breach of contract for it is not one of the items enumerated
under Art. 2219 of the Civil Code. As an exception, such damages are
[5]

recoverable: (1) in cases in which the mishap results in the death of a

passenger, as provided in Art. 1764, in relation to Art. 2206(3) of the Civil
Code; and (2) in the cases in which the carrier is guilty of fraud or bad faith, as
provided in Art. 2220. [6]

In this case, there is no legal basis for awarding moral damages since there
was no factual finding by the appellate court that petitioner acted in bad faith
in the performance of the contract of carriage. Sungas contention that
petitioners admission in open court that the driver of the jeepney failed to
assist her in going to a nearby hospital cannot be construed as an admission
of bad faith. The fact that it was the driver of the Isuzu truck who took her to
the hospital does not imply that petitioner was utterly indifferent to the plight of
his injured passenger. If at all, it is merely implied recognition by Verena that
he was the one at fault for the accident. Exsm

WHEREFORE, the decision of the Court of Appeals, dated March 31, 1995,
and its resolution, dated September 11, 1995, are AFFIRMED, with the
MODIFICATION that the award of moral damages is DELETED.

SO ORDERED.

Bellosillo, (Chairman), and Buena, JJ., concur.

Quisumbing, and De Leon, Jr., JJ., on leave.

THIRD DIVISION
 [G.R. No. 118664. August 7, 1998]

JAPAN AIRLINES, petitioner, vs. THE COURT OF APPEALS ENRIQUE

AGANA, MARIA ANGELA NINA AGANA, ADALIA B. FRANCISCO
and JOSE MIRANDA, respondents.

DECISION
ROMERO, J.:

Before us is an appeal by certiorari filed by petitioner Japan Airlines, Inc. (JAL)

seeking the reversal of the decision of the Court of Appeals, [1] which affirmed with
modification the award of damages made by the trial court in favor of herein private
respondents Enrique Agana, Maria Angela Nina Agana, Adelia Francisco and Jose
Miranda.
On June 13, 1991, private respondent Jose Miranda boarded JAL flight No. JL 001
in San Francisco, California bound for Manila. Likewise, on the same day private
respondents Enrique Agana, Maria Angela Nina Agana and Adelia Francisco left Los
Angeles, California for Manila via JAL flight No. JL 061. As an incentive for travelling on
the said airline, both flights were to make an overnight stopover at Narita, Japan, at the
airlines expense, thereafter proceeding to Manila the following day.
Upon arrival at Narita, Japan on June 14, 1991, private respondents were billeted at
Hotel Nikko Narita for the night. The next day, private respondents, on the final leg of
their journey, went to the airport to take their flight to Manila. However, due to the Mt.
Pinatubo eruption, unrelenting ashfall blanketed Ninoy Aquino International Airport
(NAIA), rendering it inaccessible to airline traffic. Hence, private respondents trip to
Manila was cancelled indefinitely.
To accommodate the needs of its stranded passengers, JAL rebooked all the
Manila-bound passengers on flight No. 741 due to depart on June 16, 1991 and also
paid for the hotel expenses for their unexpected overnight stay. On June 16, 1991,
much to the dismay of the private respondents, their long anticipated flight to Manila
was again cancelled due to NAIAs indefinite closure. At this point, JAL informed the
private respondents that it would no longer defray their hotel and accommodation
expense during their stay in Narita.
Since NAIA was only reopened to airline traffic on June 22, 1991, private
respondents were forced to pay for their accommodations and meal expenses from their
personal funds from June 16 to June 21, 1991. Their unexpected stay in Narita ended
on June 22, 1991 when they arrived in Manila on board JL flight No. 741.
Obviously, still reeling from the experience, private respondents, on July 25, 1991,
commenced an action for damages against JAL before the Regional Trial Court of
Quezon City, Branch 104.[2] To support their claim, private respondents asserted that
JAL failed to live up to its duty to provide care and comfort to its stranded passengers
when it refused to pay for their hotel and accommodation expenses from June 16 to 21,
1991 at Narita, Japan. In other words, they insisted that JAL was obligated to shoulder
their expenses as long as they were still stranded in Narita. On the other hand, JAL
denied this allegation and averred that airline passengers have no vested right to these
amenities in case a flight is cancelled due to force majeure.
On June 18, 1992, the trial court rendered its judgment in favor of private
respondents holding JAL liable for damages, viz.:

WHEREFORE, judgment is rendered in favor of plaintiffs ordering the

defendant Japan Airlines to pay the plaintiffs Enrique Agana, Adalia B.
Francisco and Maria Angela Nina Agana the sum of One million Two Hundred
forty-six Thousand Nine Hundred Thirty-Six Pesos (P1,246,936.00) and Jose
Miranda the sum of Three Hundred Twenty Thousand Six Hundred sixteen
and 31/100 (P320,616.31) as actual, moral and exemplary damages and pay
attorneys fees in the amount of Two Hundred Thousand Pesos
(P200,000.00), and to pay the costs of suit.

Undaunted, JAL appealed the decision before the Court of Appeals, which,
however, with the exception of lowering the damages awarded affirmed the trial courts
finding,[3] thus:

Thus, the award of moral damages should be as it is hereby reduced

to P200,000.00 for each of the plaintiffs, the exemplary damages
to P300,000.00 and the attorneys fees to P100,000.00 plus the costs.

WHEREFORE, with the foregoing Modification, the judgment appealed from is

hereby AFFIRMED in all other respects.

JAL filed a motion for reconsideration which proved futile and unavailing. [4]
Failing in its bid to reconsider the decision, JAL has now filed this instant petition.
The issue to be resolved is whether JAL, as a common carrier has the obligation to
shoulder the hotel and meal expenses of its stranded passengers until they have
reached their final destination, even if the delay were caused by force majeure.
To begin with, there is no dispute that the Mt. Pinatubo eruption prevented JAL from
proceeding to Manila on schedule. Likewise, private respondents concede that such
event can be considered as force majeure since their delayed arrival in Manila was not
imputable to JAL.[5]
However, private respondents contend that while JAL cannot be held responsible
for the delayed arrival in Manila, it was nevertheless liable for their living expenses
during their unexpected stay in Narita since airlines have the obligation to ensure the
comfort and convenience of its passengers. While we sympathize with the private
respondents plight, we are unable to accept this contention.
 We are not unmindful of the fact that in a plethora of cases we have consistently
ruled that a contract to transport passengers is quite different in kind and degree from
any other contractual relation. It is safe to conclude that it is a relationship imbued with
public interest. Failure on the part of the common carrier to live up to the exacting
standards of care and diligence renders it liable for any damages that may be sustained
by its passengers. However, this is not to say that common carriers are absolutely
responsible for all injuries or damages even if the same were caused by a fortuitous
event. To rule otherwise would render the defense of force majeure, as an exception
from any liability, illusory and ineffective.
Accordingly, there is no question that when a party is unable to fulfill his obligation
because of force majeure, the general rule is that he cannot be held liable for damages
for non-performance.[6] Corollarily, when JAL was prevented from resuming its flight to
Manila due to the effects of Mt. Pinatubo eruption, whatever losses or damages in the
form of hotel and meal expenses the stranded passengers incurred, cannot be charged
to JAL. Yet it is undeniable that JAL assumed the hotel expenses of respondents for
their unexpected overnight stay on June 15, 1991.
Admittedly, to be stranded for almost a week in a foreign land was an exasperating
experience for the private respondents. To be sure, they underwent distress and anxiety
during their unanticipated stay in Narita, but their predicament was not due to the fault
or negligence of JAL but the closure of NAIA to international flights. Indeed, to hold JAL,
in the absence of bad faith or negligence, liable for the amenities of its stranded
passengers by reason of a fortuitous event is too much of a burden to assume.
Furthermore, it has been held that airline passengers must take such risks incident
to the mode of travel.[7] In this regard, adverse weather conditions or extreme climatic
changes are some of the perils involved in air travel, the consequences of which the
passenger must assume or expect. After all, common carriers are not the insurer of all
risks.[8]
Paradoxically, the Court of Appeals, despite the presence of force majeure, still
ruled against JAL relying in our decision in PAL v. Court of Appeals,[9] thus:

The position taken by PAL in this case clearly illustrates its failure to grasp the
exacting standard required by law. Undisputably, PALs diversion of its flight
due to inclement weather was a fortuitous event. Nonetheless, such
occurrence did not terminate PALs contract with its passengers. Being in the
business of air carriage and the sole one to operate in the country, PAL is
deemed equipped to deal with situations as in the case at bar. What we said
in one case once again must be stressed, i.e., the relation of carrier and
passenger continues until the latter has been landed at the port of destination
and has left the carriers premises. Hence, PAL necessarily would still have to
exercise extraordinary diligence in safeguarding the comfort, convenience and
safety of its stranded passengers until they have reached their final
destination. On this score, PAL grossly failed considering the then ongoing
battle between government forces and Muslim rebels in Cotabato City and the
fact that the private respondent was a stranger to the place.

The reliance is misplaced. The factual background of the PAL case is different from
the instant petition. In that case there was indeed a fortuitous event resulting in the
diversion of the PAL flight. However, the unforeseen diversion was worsened when
private respondents (passenger) was left at the airport and could not even hitch a ride in
a Ford Fiera loaded with PAL personnel,[10] not to mention the apparent apathy of the
PAL station manager as to the predicament of the stranded passengers. [11] In light of
these circumstances, we held that if the fortuitous event was accompanied by neglect
and malfeasance by the carriers employees, an action for damages against the carrier
is permissible. Unfortunately, for private respondents, none of these conditions are
present in the instant petition.
We are not prepared, however, to completely absolve petitioner JAL from any
liability. It must be noted that private respondents bought tickets from the United States
with Manila as their final destination. While JAL was no longer required to defray private
respondents living expenses during their stay in Narita on account of the fortuitous
event, JAL had the duty to make the necessary arrangements to transport private
respondents on the first available connecting flight to Manila. Petitioner JAL reneged on
its obligation to look after the comfort and convenience of its passengers when it
declassified private respondents from transit passengers to new passengers as a result
of which private respondents were obliged to make the necessary arrangements
themselves for the next flight to Manila. Private respondents were placed on the
waiting list from June 20 to June 24. To assure themselves of a seat on an
available flight, they were compelled to stay in the airport the whole day of June 22,
1991 and it was only at 8:00 p.m. of the aforesaid date that they were advised that they
could be accommodated in said flight which flew at about 9:00 a.m. the next day.
We are not oblivious to the fact that the cancellation of JAL flights to Manila from
June 15 to June 21, 1991 caused considerable disruption in passenger booking and
reservation. In fact, it would be unreasonable to expect, considering NAIAs closure, that
JAL flight operations would be normal on the days affected. Nevertheless, this does not
excuse JAL from its obligation to make the necessary arrangements to transport private
respondents on its first available flight to Manila. After all, it had a contract to transport
private respondents from the United States to Manila as their final destination.
Consequently, the award of nominal damages is in order. Nominal damages are
adjudicated in order that a right of a plaintiff, which has been violated or invaded by the
defendant, may be vindicated or recognized and not for the purpose of indemnifying any
loss suffered by him.[12] The court may award nominal damages in every obligation
arising from any source enumerated in Article 1157, or in every case where any
property right has been invaded.[13]
WHEREFORE, in view of the foregoing, the decision of the Court of Appeals dated
December 22, 1993 is hereby MODIFIED. The award of actual, moral and exemplary
damages is hereby DELETED. Petitioner JAL is ordered to pay each of the private
respondents nominal damages in the sum of P100,000.00 each including attorneys fees
of P50,000.00 plus costs.
SO ORDERED.
Narvasa, C.J. (Chairman), Kapunan and Purisima, JJ. concur.

SECOND DIVISION

G.R. No. 95582 October 7, 1991

DANGWA TRANSPORTATION CO., INC. and THEODORE LARDIZABAL y

MALECDAN, petitioners,
vs.
COURT OF APPEALS, INOCENCIA CUDIAMAT, EMILIA CUDIAMAT BANDOY, FERNANDO
CUDLAMAT, MARRIETA CUDIAMAT, NORMA CUDIAMAT, DANTE CUDIAMAT, SAMUEL
CUDIAMAT and LIGAYA CUDIAMAT, all Heirs of the late Pedrito Cudiamat represented by
Inocencia Cudiamat, respondents.

Francisco S. Reyes Law Office for petitioners.

Antonio C. de Guzman for private respondents.

REGALADO, J.:p

On May 13, 1985, private respondents filed a complaint 1 for damages against petitioners for the death of Pedrito
Cudiamat as a result of a vehicular accident which occurred on March 25, 1985 at Marivic, Sapid, Mankayan, Benguet. Among others, it was
alleged that on said date, while petitioner Theodore M. Lardizabal was driving a passenger bus belonging to petitioner corporation in a
reckless and imprudent manner and without due regard to traffic rules and regulations and safety to persons and property, it ran over its
passenger, Pedrito Cudiamat. However, instead of bringing Pedrito immediately to the nearest hospital, the said driver, in utter bad faith and
without regard to the welfare of the victim, first brought his other passengers and cargo to their respective destinations before banging said
victim to the Lepanto Hospital where he expired.

On the other hand, petitioners alleged that they had observed and continued to observe the
extraordinary diligence required in the operation of the transportation company and the supervision
of the employees, even as they add that they are not absolute insurers of the safety of the public at
large. Further, it was alleged that it was the victim's own carelessness and negligence which gave
rise to the subject incident, hence they prayed for the dismissal of the complaint plus an award of
damages in their favor by way of a counterclaim.

On July 29, 1988, the trial court rendered a decision, effectively in favor of petitioners, with this
decretal portion:

IN VIEW OF ALL THE FOREGOING, judgment is hereby pronounced that Pedrito

Cudiamat was negligent, which negligence was the proximate cause of his death.
Nonetheless, defendants in equity, are hereby ordered to pay the heirs of Pedrito
Cudiamat the sum of P10,000.00 which approximates the amount defendants initially
offered said heirs for the amicable settlement of the case. No costs.

SO ORDERED. 2
Not satisfied therewith, private respondents appealed to the Court of Appeals which, in a decision 3 in
CA-G.R. CV No. 19504 promulgated on August 14, 1990, set aside the decision of the lower court, and ordered petitioners to pay private
respondents:

1. The sum of Thirty Thousand (P30,000.00) Pesos by way of indemnity for death of
the victim Pedrito Cudiamat;

2. The sum of Twenty Thousand (P20,000.00) by way of moral damages;

3. The sum of Two Hundred Eighty Eight Thousand (P288,000.00) Pesos as actual
and compensatory damages;

4. The costs of this suit. 4

Petitioners' motion for reconsideration was denied by the Court of Appeals in its resolution dated
October 4, 1990, 5hence this petition with the central issue herein being whether respondent court erred in reversing the decision of
the trial court and in finding petitioners negligent and liable for the damages claimed.

It is an established principle that the factual findings of the Court of Appeals as a rule are final and
may not be reviewed by this Court on appeal. However, this is subject to settled exceptions, one of
which is when the findings of the appellate court are contrary to those of the trial court, in which case
a reexamination of the facts and evidence may be undertaken. 6

In the case at bar, the trial court and the Court of Appeal have discordant positions as to who
between the petitioners an the victim is guilty of negligence. Perforce, we have had to conduct an
evaluation of the evidence in this case for the prope calibration of their conflicting factual findings
and legal conclusions.

The lower court, in declaring that the victim was negligent, made the following findings:

This Court is satisfied that Pedrito Cudiamat was negligent in trying to board a
moving vehicle, especially with one of his hands holding an umbrella. And, without
having given the driver or the conductor any indication that he wishes to board the
bus. But defendants can also be found wanting of the necessary diligence. In this
connection, it is safe to assume that when the deceased Cudiamat attempted to
board defendants' bus, the vehicle's door was open instead of being closed. This
should be so, for it is hard to believe that one would even attempt to board a vehicle
(i)n motion if the door of said vehicle is closed. Here lies the defendant's lack of
diligence. Under such circumstances, equity demands that there must be something
given to the heirs of the victim to assuage their feelings. This, also considering that
initially, defendant common carrier had made overtures to amicably settle the case. It
did offer a certain monetary consideration to the victim's heirs. 7

However, respondent court, in arriving at a different opinion, declares that:

From the testimony of appellees'own witness in the person of Vitaliano Safarita, it is

evident that the subject bus was at full stop when the victim Pedrito Cudiamat
boarded the same as it was precisely on this instance where a certain Miss Abenoja
alighted from the bus. Moreover, contrary to the assertion of the appellees, the victim
did indicate his intention to board the bus as can be seen from the testimony of the
said witness when he declared that Pedrito Cudiamat was no longer walking and
made a sign to board the bus when the latter was still at a distance from him. It was
 at the instance when Pedrito Cudiamat was closing his umbrella at the platform of
the bus when the latter made a sudden jerk movement (as) the driver commenced to
accelerate the bus.

Evidently, the incident took place due to the gross negligence of the appellee-driver
in prematurely stepping on the accelerator and in not waiting for the passenger to
first secure his seat especially so when we take into account that the platform of the
bus was at the time slippery and wet because of a drizzle. The defendants-appellees
utterly failed to observe their duty and obligation as common carrier to the end that
they should observe extra-ordinary diligence in the vigilance over the goods and for
the safety of the passengers transported by them according to the circumstances of
each case (Article 1733, New Civil Code). 8

After a careful review of the evidence on record, we find no reason to disturb the above holding of
the Court of Appeals. Its aforesaid findings are supported by the testimony of petitioners' own
witnesses. One of them, Virginia Abalos, testified on cross-examination as follows:

Q It is not a fact Madam witness, that at bunkhouse 54, that is before

the place of the incident, there is a crossing?

A The way going to the mines but it is not being pass(ed) by the bus.

Q And the incident happened before bunkhouse 56, is that not

correct?

A It happened between 54 and 53 bunkhouses. 9

The bus conductor, Martin Anglog, also declared:

Q When you arrived at Lepanto on March 25, 1985, will you please
inform this Honorable Court if there was anv unusual incident that
occurred?

A When we delivered a baggage at Marivic because a person

alighted there between Bunkhouse 53 and 54.

Q What happened when you delivered this passenger at this

particular place in Lepanto?

A When we reached the place, a passenger alighted and I signalled

my driver. When we stopped we went out because I saw an umbrella
about a split second and I signalled again the driver, so the driver
stopped and we went down and we saw Pedrito Cudiamat asking for
help because he was lying down.

Q How far away was this certain person, Pedrito Cudiamat, when you
saw him lying down from the bus how far was he?

A It is about two to three meters.

 Q On what direction of the bus was he found about three meters from
the bus, was it at the front or at the back?

A At the back, sir. 10 (Emphasis supplied.)

The foregoing testimonies show that the place of the accident and the place where one of the
passengers alighted were both between Bunkhouses 53 and 54, hence the finding of the Court of
Appeals that the bus was at full stop when the victim boarded the same is correct. They further
confirm the conclusion that the victim fell from the platform of the bus when it suddenly accelerated
forward and was run over by the rear right tires of the vehicle, as shown by the physical evidence on
where he was thereafter found in relation to the bus when it stopped. Under such circumstances, it
cannot be said that the deceased was guilty of negligence.

The contention of petitioners that the driver and the conductor had no knowledge that the victim
would ride on the bus, since the latter had supposedly not manifested his intention to board the
same, does not merit consideration. When the bus is not in motion there is no necessity for a person
who wants to ride the same to signal his intention to board. A public utility bus, once it stops, is in
effect making a continuous offer to bus riders. Hence, it becomes the duty of the driver and the
conductor, every time the bus stops, to do no act that would have the effect of increasing the peril to
a passenger while he was attempting to board the same. The premature acceleration of the bus in
this case was a breach of such duty. 11

It is the duty of common carriers of passengers, including common carriers by railroad train,
streetcar, or motorbus, to stop their conveyances a reasonable length of time in order to afford
passengers an opportunity to board and enter, and they are liable for injuries suffered by boarding
passengers resulting from the sudden starting up or jerking of their conveyances while they are
doing so. 12

Further, even assuming that the bus was moving, the act of the victim in boarding the same cannot
be considered negligent under the circumstances. As clearly explained in the testimony of the
aforestated witness for petitioners, Virginia Abalos, th bus had "just started" and "was still in slow
motion" at the point where the victim had boarded and was on its platform. 13

It is not negligence per se, or as a matter of law, for one attempt to board a train or streetcar which is
moving slowly. 14 An ordinarily prudent person would have made the attempt board the moving conveyance under the same or similar
circumstances. The fact that passengers board and alight from slowly moving vehicle is a matter of common experience both the driver and
conductor in this case could not have been unaware of such an ordinary practice.

The victim herein, by stepping and standing on the platform of the bus, is already considered a
passenger and is entitled all the rights and protection pertaining to such a contractual relation.
Hence, it has been held that the duty which the carrier passengers owes to its patrons extends to
persons boarding cars as well as to those alighting therefrom. 15

Common carriers, from the nature of their business and reasons of public policy, are bound to
observe extraordina diligence for the safety of the passengers transported by the according to all the
circumstances of each case. 16 A common carrier is bound to carry the passengers safely as far as human care and foresight
can provide, using the utmost diligence very cautious persons, with a due regard for all the circumstances. 17

It has also been repeatedly held that in an action based on a contract of carriage, the court need not
make an express finding of fault or negligence on the part of the carrier in order to hold it responsible
to pay the damages sought by the passenger. By contract of carriage, the carrier assumes the
express obligation to transport the passenger to his destination safely and observe extraordinary
diligence with a due regard for all the circumstances, and any injury that might be suffered by the
passenger is right away attributable to the fault or negligence of the carrier. This is an exception to
the general rule that negligence must be proved, and it is therefore incumbent upon the carrier to
prove that it has exercised extraordinary diligence as prescribed in Articles 1733 and 1755 of the
Civil Code. 18

Moreover, the circumstances under which the driver and the conductor failed to bring the gravely
injured victim immediately to the hospital for medical treatment is a patent and incontrovertible proof
of their negligence. It defies understanding and can even be stigmatized as callous indifference. The
evidence shows that after the accident the bus could have forthwith turned at Bunk 56 and thence to
the hospital, but its driver instead opted to first proceed to Bunk 70 to allow a passenger to alight and
to deliver a refrigerator, despite the serious condition of the victim. The vacuous reason given by
petitioners that it was the wife of the deceased who caused the delay was tersely and correctly
confuted by respondent court:

... The pretension of the appellees that the delay was due to the fact that they had to
wait for about twenty minutes for Inocencia Cudiamat to get dressed deserves scant
consideration. It is rather scandalous and deplorable for a wife whose husband is at
the verge of dying to have the luxury of dressing herself up for about twenty minutes
before attending to help her distressed and helpless husband. 19

Further, it cannot be said that the main intention of petitioner Lardizabal in going to Bunk 70 was to
inform the victim's family of the mishap, since it was not said bus driver nor the conductor but the
companion of the victim who informed his family thereof. 20 In fact, it was only after the refrigerator was unloaded that
one of the passengers thought of sending somebody to the house of the victim, as shown by the testimony of Virginia Abalos again, to wit:

Q Why, what happened to your refrigerator at that particular time?

A I asked them to bring it down because that is the nearest place to

our house and when I went down and asked somebody to bring down
the refrigerator, I also asked somebody to call the family of Mr.
Cudiamat.

COURT:

Q Why did you ask somebody to call the family of Mr. Cudiamat?

A Because Mr. Cudiamat met an accident, so I ask somebody to call

for the family of Mr. Cudiamat.

Q But nobody ask(ed) you to call for the family of Mr. Cudiamat?

A No sir. 21

With respect to the award of damages, an oversight was, however, committed by respondent Court
of Appeals in computing the actual damages based on the gross income of the victim. The rule is
that the amount recoverable by the heirs of a victim of a tort is not the loss of the entire earnings, but
rather the loss of that portion of the earnings which the beneficiary would have received. In other
words, only net earnings, not gross earnings, are to be considered, that is, the total of the earnings
less expenses necessary in the creation of such earnings or income and minus living and other
incidental expenses. 22
We are of the opinion that the deductible living and other expense of the deceased may fairly and
reasonably be fixed at P500.00 a month or P6,000.00 a year. In adjudicating the actual or
compensatory damages, respondent court found that the deceased was 48 years old, in good health
with a remaining productive life expectancy of 12 years, and then earning P24,000.00 a year. Using
the gross annual income as the basis, and multiplying the same by 12 years, it accordingly awarded
P288,000. Applying the aforestated rule on computation based on the net earnings, said award must
be, as it hereby is, rectified and reduced to P216,000.00. However, in accordance with prevailing
jurisprudence, the death indemnity is hereby increased to P50,000.00. 23

WHEREFORE, subject to the above modifications, the challenged judgment and resolution of
respondent Court of Appeals are hereby AFFIRMED in all other respects.

SO ORDERED.

Melencio-Herrera (Chairperson), Paras, Padilla and Sarmiento, JJ., concur.

[G.R. No. 113003. October 17, 1997]

ALBERTA YOBIDO and CRESENCIO YOBIDO, petitioners, vs. COURT

OF APPEALS, LENY TUMBOY, ARDEE TUMBOY and JASMIN
TUMBOY, respondents.

DECISION
ROMERO, J.:

In this petition for review on certiorari of the decision of the Court of

Appeals, the issue is whether or not the explosion of a newly installed tire of a
passenger vehicle is a fortuitous event that exempts the carrier from liability
for the death of a passenger.
On April 26, 1988, spouses Tito and Leny Tumboy and their minor children
named Ardee and Jasmin, boarded at Mangagoy, Surigao del Sur, a Yobido
Liner bus bound for Davao City. Along Picop Road in Km. 17, Sta. Maria,
Agusan del Sur, the left front tire of the bus exploded. The bus fell into a
ravine around three (3) feet from the road and struck a tree. The incident
resulted in the death of 28-year-old Tito Tumboy and physical injuries to other
passengers.
On November 21, 1988, a complaint for breach of contract of carriage,
damages and attorneys fees was filed by Leny and her children against
Alberta Yobido, the owner of the bus, and Cresencio Yobido, its driver, before
the Regional Trial Court of Davao City. When the defendants therein filed their
answer to the complaint, they raised the affirmative defense of caso
fortuito. They also filed a third-party complaint against Philippine Phoenix
Surety and Insurance, Inc. This third-party defendant filed an answer with
compulsory counterclaim. At the pre-trial conference, the parties agreed to a
stipulation of facts.
[1]

Upon a finding that the third party defendant was not liable under the
insurance contract, the lower court dismissed the third party complaint. No
amicable settlement having been arrived at by the parties, trial on the merits
ensued.
The plaintiffs asserted that violation of the contract of carriage between
them and the defendants was brought about by the drivers failure to exercise
the diligence required of the carrier in transporting passengers safely to their
place of destination. According to Leny Tumboy, the bus left Mangagoy at
3:00 oclock in the afternoon. The winding road it traversed was not cemented
and was wet due to the rain; it was rough with crushed rocks. The bus which
was full of passengers had cargoes on top. Since it was running fast, she
cautioned the driver to slow down but he merely stared at her through the
mirror. At around 3:30 p.m., in Trento, she heard something explode and
immediately, the bus fell into a ravine.
For their part, the defendants tried to establish that the accident was due
to a fortuitous event. Abundio Salce, who was the bus conductor when the
incident happened, testified that the 42-seater bus was not full as there were
only 32 passengers, such that he himself managed to get a seat. He added
that the bus was running at a speed of 60 to 50 and that it was going slow
because of the zigzag road. He affirmed that the left front tire that exploded
was a brand new tire that he mounted on the bus on April 21, 1988 or only five
(5) days before the incident. The Yobido Liner secretary, Minerva Fernando,
bought the new Goodyear tire from Davao Toyo Parts on April 20, 1988 and
she was present when it was mounted on the bus by Salce. She stated that all
driver applicants in Yobido Liner underwent actual driving tests before they
were employed. Defendant Cresencio Yobido underwent such test and
submitted his professional drivers license and clearances from the barangay,
the fiscal and the police.
On August 29, 1991, the lower court rendered a decision dismissing the
[2]

action for lack of merit. On the issue of whether or not the tire blowout was
a caso fortuito, it found that the falling of the bus to the cliff was a result of no
other outside factor than the tire blow-out. It held that the ruling in the La
Mallorca and Pampanga Bus Co. v. De Jesus that a tire blowout is a
[3]
mechanical defect of the conveyance or a fault in its equipment which was
easily discoverable if the bus had been subjected to a more thorough or rigid
check-up before it took to the road that morning is inapplicable to this case. It
reasoned out that in said case, it was found that the blowout was caused by
the established fact that the inner tube of the left front tire was pressed
between the inner circle of the left wheel and the rim which had slipped out of
the wheel. In this case, however, the cause of the explosion remains a
mystery until at present. As such, the court added, the tire blowout was a caso
fortuito which is completely an extraordinary circumstance independent of the
will of the defendants who should be relieved of whatever liability the plaintiffs
may have suffered by reason of the explosion pursuant to Article 1174 of the [4]

Civil Code.
Dissatisfied, the plaintiffs appealed to the Court of Appeals. They ascribed
to the lower court the following errors: (a) finding that the tire blowout was
a caso fortuito; (b) failing to hold that the defendants did not exercise utmost
and/or extraordinary diligence required of carriers under Article 1755 of the
Civil Code, and (c) deciding the case contrary to the ruling in Juntilla v.
Fontanar, and Necesito v. Paras.
[5] [6]

On August 23, 1993, the Court of Appeals rendered the

Decision reversing that of the lower court. It held that:
[7]

To Our mind, the explosion of the tire is not in itself a fortuitous event. The cause of
the blow-out, if due to a factory defect, improper mounting, excessive tire pressure, is
not an unavoidable event. On the other hand, there may have been adverse conditions
on the road that were unforeseeable and/or inevitable, which could make the blow-out
a caso fortuito. The fact that the cause of the blow-out was not known does not relieve
the carrier of liability. Owing to the statutory presumption of negligence against the
carrier and its obligation to exercise the utmost diligence of very cautious persons to
carry the passenger safely as far as human care and foresight can provide, it is the
burden of the defendants to prove that the cause of the blow-out was a fortuitous
event. It is not incumbent upon the plaintiff to prove that the cause of the blow-out is
not caso-fortuito.

Proving that the tire that exploded is a new Goodyear tire is not sufficient to discharge
defendants burden. As enunciated in Necesito vs. Paras, the passenger has neither
choice nor control over the carrier in the selection and use of its equipment, and the
good repute of the manufacturer will not necessarily relieve the carrier from liability.

Moreover, there is evidence that the bus was moving fast, and the road was wet and
rough. The driver could have explained that the blow-out that precipitated the accident
that caused the death of Toto Tumboy could not have been prevented even if he had
exercised due care to avoid the same, but he was not presented as witness.

The Court of Appeals thus disposed of the appeal as follows:

WHEREFORE, the judgment of the court a quo is set aside and another one entered
ordering defendants to pay plaintiffs the sum of P50,000.00 for the death of Tito
Tumboy, P30,000.00 in moral damages, and P7,000.00 for funeral and burial
expenses.

SO ORDERED.

The defendants filed a motion for reconsideration of said decision which

was denied on November 4, 1993 by the Court of Appeals. Hence, the instant
petition asserting the position that the tire blowout that caused the death of
Tito Tumboy was a caso fortuito. Petitioners claim further that the Court of
Appeals, in ruling contrary to that of the lower court, misapprehended facts
and, therefore, its findings of fact cannot be considered final which shall bind
this Court. Hence, they pray that this Court review the facts of the case.
The Court did re-examine the facts and evidence in this case because of
the inapplicability of the established principle that the factual findings of the
Court of Appeals are final and may not be reviewed on appeal by this
Court. This general principle is subject to exceptions such as the one present
in this case, namely, that the lower court and the Court of Appeals arrived at
diverse factual findings. However, upon such re-examination, we found no
[8]

reason to overturn the findings and conclusions of the Court of Appeals.

As a rule, when a passenger boards a common carrier, he takes the risks
incidental to the mode of travel he has taken. After all, a carrier is not an
insurer of the safety of its passengers and is not bound absolutely and at all
events to carry them safely and without injury. However, when a passenger is
[9]

injured or dies while travelling, the law presumes that the common carrier is
negligent. Thus, the Civil Code provides:

Art. 1756. In case of death 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 1755 provides that (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. Accordingly, in culpa contractual, once a passenger dies or is
injured, the carrier is presumed to have been at fault or to have acted
negligently. This disputable presumption may only be overcome by evidence
that the carrier had observed extraordinary diligence as prescribed by Articles
1733, 1755 and 1756 of the Civil Code or that the death or injury of the
[10]

passenger was due to a fortuitous event. Consequently, the court need not
[11]

make an express finding of fault or negligence on the part of the carrier to hold
it responsible for damages sought by the passenger. [12]

In view of the foregoing, petitioners contention that they should be exempt

from liability because the tire blowout was no more than a fortuitous event that
could not have been foreseen, must fail. A fortuitous event is possessed of the
following characteristics: (a) the cause of the unforeseen and unexpected
occurrence, or the failure of the debtor to comply with his obligations, must be
independent of human will; (b) it must be impossible to foresee the event
which constitutes the caso fortuito, or if it can be foreseen, it must be
impossible to avoid; (c) the occurrence must be such as to render it
impossible for the debtor to fulfill his obligation in a normal manner; and (d)
the obligor must be free from any participation in the aggravation of the injury
resulting to the creditor. As Article 1174 provides, no person shall be
[13]

responsible for a fortuitous event which could not be foreseen, or which,

though foreseen, was inevitable. In other words, there must be an entire
exclusion of human agency from the cause of injury or loss. [14]

Under the circumstances of this case, the explosion of the new tire may
not be considered a fortuitous event. There are human factors involved in the
situation. The fact that the tire was new did not imply that it was entirely free
from manufacturing defects or that it was properly mounted on the
vehicle. Neither may the fact that the tire bought and used in the vehicle is of
a brand name noted for quality, resulting in the conclusion that it could not
explode within five days use. Be that as it may, it is settled that an accident
caused either by defects in the automobile or through the negligence of its
driver is not a caso fortuito that would exempt the carrier from liability for
damages. [15]

Moreover, a common carrier may not be absolved from liability in case

of force majeure or fortuitous event alone. The common carrier must still
prove that it was not negligent in causing the death or injury resulting from an
accident. This Court has had occasion to state:
[16]

While it may be true that the tire that blew-up was still good because the grooves of
the tire were still visible, this fact alone does not make the explosion of the tire a
fortuitous event. No evidence was presented to show that the accident was due to
adverse road conditions or that precautions were taken by the jeepney driver to
compensate for any conditions liable to cause accidents. The sudden blowing-up,
therefore, could have been caused by too much air pressure injected into the tire
coupled by the fact that the jeepney was overloaded and speeding at the time of the
accident.[17]

It is interesting to note that petitioners proved through the bus conductor,

Salce, that the bus was running at 60-50 kilometers per hour only or within the
prescribed lawful speed limit. However, they failed to rebut the testimony of
Leny Tumboy that the bus was running so fast that she cautioned the driver to
slow down. These contradictory facts must, therefore, be resolved in favor of
liability in view of the presumption of negligence of the carrier in the law.
Coupled with this is the established condition of the road rough, winding and
wet due to the rain. It was incumbent upon the defense to establish that it took
precautionary measures considering partially dangerous condition of the
road. As stated above, proof that the tire was new and of good quality is not
sufficient proof that it was not negligent. Petitioners should have shown that it
undertook extraordinary diligence in the care of its carrier, such as conducting
daily routinary check-ups of the vehicles parts. As the late Justice J.B.L.
Reyes said:

It may be impracticable, as appellee argues, to require of carriers to test the strength of

each and every part of its vehicles before each trip; but we are of the opinion that a
due regard for the carriers obligations toward the traveling public demands adequate
periodical tests to determine the condition and strength of those vehicle portions the
failure of which may endanger the safety of the passengers. [18]

Having failed to discharge its duty to overthrow the presumption of

negligence with clear and convincing evidence, petitioners are hereby held
liable for damages. Article 1764 in relation to Article 2206 of the Civil Code
[19] [20]

prescribes the amount of at least three thousand pesos as damages for the
death of a passenger. Under prevailing jurisprudence, the award of damages
under Article 2206 has been increased to fifty thousand pesos (P50,000.00). [21]

Moral damages are generally not recoverable in culpa contractual except

when bad faith had been proven. However, the same damages may be
recovered when breach of contract of carriage results in the death of a
passenger, as in this case. Exemplary damages, awarded by way of
[22]

example or correction for the public good when moral damages are
awarded, may likewise be recovered in contractual obligations if the
[23]

defendant acted in wanton, fraudulent, reckless, oppressive, or malevolent

manner. Because petitioners failed to exercise the extraordinary diligence
[24]

required of a common carrier, which resulted in the death of Tito Tumboy, it is

deemed to have acted recklessly. As such, private respondents shall be
[25]

entitled to exemplary damages.

WHEREFORE, the Decision of the Court of Appeals is
hereby AFFIRMED subject to the modification that petitioners shall, in addition
to the monetary awards therein, be liable for the award of exemplary damages
in the amount of P20,000.00. Costs against petitioners.
SO ORDERED.
Narvasa, C.J., (Chairman), Melo, Francisco, and Panganiban, JJ., concur.