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G.R. No. 145804 February 6, 2003

LIGHT RAIL TRANSIT AUTHORITY RO!OLFO RO"AN,petitioners,vs.

"AR#ORI$ NA%I!A!, He&r' o( )*e La)e NI+ANOR NA%I!A! RU!$NTS$+URITY AG$N+Y, respondents.

D E C I S I O N

%ITUG,J.:

The case before the Court is an appeal from the decision and resolution of the Court of Appeals, promulgated on ! April """ and #" October """, respectivel$, in CA%&.'.C( No. )"! ", entitled *+ar orie Navidad and -eirs of the ate Nicanor Navidad vs.'odolfo 'oman, et. al.,* /hich has modified the decision of ## August #001 of the'egional Trial Court, 2ranch )), 3asig Cit$, e4onerating 3rudent Securit$ Agenc$53rudent6 from liabilit$ and finding ight 'ail Transit Authorit$ 5 'TA6 and 'odolfo'oman liable for damages on account of the death of Nicanor Navidad.

On #7 October #008, about half an hour past seven o9cloc: in the evening, Nicanor Navidad, then drun:, entered the EDSA 'T station after purchasing a *to:en*5representing pa$ment of the fare6. ;hile Navidad /as standing on the platform near the 'T trac:s,

6 Compensator$ damages of 3778, "."">

86 Indemnit$ for the death of Nicanor Navidad in the sum of 3 ","""."">

*b6 +oral damages of 3 ","""."">

*c6 Attorne$9s fees of 3 ",""">

*d6 Costs of suit.

*The complaint against defendants 'TA and 'odolfo 'oman are dismissed for lac: of merit.

*The compulsor$ counterclaim of 'TA and 'oman are li:e/ise dismissed.* #

3rudent appealed to the Court of Appeals. On ! August """, the appellate courtpromulgated its no/ assailed decision e4onerating 3rudent from an$ liabilit$ for thedeath of Nicanor Navidad and, instead, holding the 'TA and 'oman ointl$ andseverall$ liable thusl$?

*;-E'E@O'E, the assailed udgment is hereb$ +ODI@IED, b$ e4onerating theappellants from an$ liabilit$ for the death of Nicanor Navidad,

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In their present recourse, petitioners recite alleged errors on the part of the appellatecourt> vi=?

*I.

T-E -ONO'A2 E COB'T O@ A33EA S &'A(E E''ED 2 DIS'E&A'DIN&T-E @INDIN&S O@ @ACTS 2 T-E T'IA COB'T

*II.

T-E -ONO'A2 E COB'T O@ A33EA S &'A(E E''ED IN @INDIN& T-AT3ETITIONE'S A'E IA2 E @O' T-E DEAT- O@ NICANO' NA(IDAD,

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appl$.# In fine, a liabilit$ for tort ma$ arise even under a contract, /here tort is that/hich breaches the contract. #) Stated differentl$, /hen an act /hich constitutes abreach of contract /ould have itself constituted the source of a uasi%delictual liabilit$had no contract e4isted bet/een the parties, the contract can be said to have beenbreached b$ tort, thereb$ allo/ing the rules on tort to appl$. #!

'egrettabl$ for 'T, as /ell as perhaps the surviving spouse and heirs of the lateNicanor Navidad, this Court is concluded b$ the factual finding of the Court of Appealsthat *there is nothing to lin: 53rudent6 to the death of Nicanor 5Navidad6, for the reasonthat the negligence of its emplo$ee, Escartin, has not been dul$ proven 4 4 4.* Thisfinding of the appellate court is not /ithout substantial ustification in our o/n revie/ of the records of the case.

There being, similarl$, no sho/ing that petitioner 'odolfo 'oman himself is guilt$ of an$culpable act or omission, he must also be absolved from liabilit$. Needless to sa$, thecontractual tie bet/een the 'T and Navidad is not itself a uridical relation bet/een thelatter and 'oman> thus, 'oman can be made liable onl$ for his o/n fault or negligence.

The a/ard of nominal damages in addition to actual damages is untenable. Nominaldamages are ad udicated in order that a right of the plaintiff, /hich has been violated or invaded b$ the defendant, ma$ be vindicated or recogni=ed, and not for the purpose of indemnif$ing the plaintiff for an$ loss suffered b$ him.#1 It is an established rule thatnominal damages cannot co%e4ist /ith compensator$ damages .#0

-H$R$FOR$ , the assailed decision of the appellate court is A@@I'+ED /ith+ODI@ICATION but onl$ in that 5a6 the a/ard of nominal damages is DE ETED and 5b6petitioner 'odolfo 'oman is absolved from liabilit$. No costs.

SO O'DE'ED.

-ILLIA" TIU, o&/ bu'&/e'' u/ er )*e /a e a/ ')y e o( ! Rou * R& er',a/ %IRGILIO T$ LAS I AS petitioners,

vs.$!RO A. ARRI$SGA!O, $N#A"IN +ON!OR, S$RGIO $!RANO a/

HILI IN$ HO$NI7 SUR$TY AN! INSURAN+$, IN+., respondents.

D E C I S I O N

+ALL$#O, SR., J.:

This is a petition for revie/ on certiorari under 'ule 7 of the 'ules of Court from the

Decision#

of the Court of Appeals in CA%&.'. C( No. 78 7 affirming /ith modificationthe Decision of the 'egional Trial Court, !th

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road, and that petitioner aspiFas did not ta:e precautionar$ measures to avoid theaccident. 1 Thus?

). That the accident resulted to the death of the plaintiff9s /ife, @elisa 3epito Arriesgado, as evidenced b$ a Certificate of Death, a 4ero4 cop$ of /hich ishereto attached as integral part hereof and mar:ed as ANNEG H *A*, andph$sical in uries to several of its passengers, including plaintiff himself /hosuffered a *CO ES @'ACTB'E 'I&-T,* per +edical Certificate, a 4ero4cop$ of /hich is hereto attached as integral part hereof and mar:ed as ANNEG H *2* hereof.

!. That due to the rec:less and imprudent driving b$ defendant (irgilio TeaspiFas of the said 'ough 'iders passenger bus, plaintiff and his /ife, @elisa

3epito Arriesgado, failed to safel$ reach their destination /hich /as Cebu Cit$,the pro4imate cause of /hich /as defendant%driver9s failure to observe utmostdiligence re uired of a ver$ cautious person under all circumstances.

1. That defendant ;illiam Tiu, being the o/ner and operator of the said 'ough'iders passenger bus /hich figured in the said accident, /herein plaintiff andhis /ife /ere riding at the time of the accident, is therefore directl$ liable for the breach of contract of carriage for his failure to transport plaintiff and his/ife safel$ to their place of destination /hich /as Cebu Cit$, and /hich failurein his obligation to transport safel$ his passengers /as due to and inconse uence of his failure to e4ercise the diligence of a good father of thefamil$ in the selection and supervision of his emplo$ees, particularl$defendant%driver (irgilio Te aspiFas.0

The respondent pra$ed that udgment be rendered in his favor and that the petitionersbe condemned to pa$ the follo/ing damages?

#6. To pa$ to plaintiff, ointl$ and severall$, the amount of 38","""."" for thedeath and untimel$ demise of plaintiff9s /ife, @elisa 3epito Arriesgado>

6. To pa$ to plaintiff, ointl$ and severall$, the amount of 381,77#. ",representing actual e4penses incurred b$ the plaintiff in connection /ith thedeath burial of plaintiff9s /ife>

86. To pa$ to plaintiff, ointl$ and severall$, the amount of 3#,##8.1",representing medical hospitali=ation e4penses incurred b$ plaintiff for thein uries sustained b$ him>

76. To pa$ to plaintiff, ointl$ and severall$, the amount of 3

","""."" for moraldamages>

6. To pa$ to plaintiff, ointl$ and severall$, the amount of 3 ","""."" b$ /a$ of e4emplar$ damages>

)6. To pa$ to plaintiff, ointl$ and severall$, the amount of 3 ","""."" for attorne$9s fees>

!6. To pa$ to plaintiff, ointl$ and severall$, the amount of 3 ,"""."" for litigation e4penses.

3 AINTI@@ @B'T-E' 3'A S @O' SBC- OT-E' 'E IE@S AND'E+EDIES IN A; AND EJBIT . #"

The petitioners, for their part, filed a Third%3art$ Complaint## on August #, #01! againstthe follo/ing? respondent 3hilippine 3hoeni4 Suret$ and Insurance, Inc. 533SII6,petitioner Tiu9s insurer> respondent 2en amin Condor, the registered o/ner of the cargo

truc:> and respondent Sergio 3edrano, the driver of the truc:. The$ alleged thatpetitioner aspiFas /as negotiating the uphill climb along the national high/a$ of Sitio Aggies, 3oblacion, Compostela, in a moderate and normal speed. It /as further allegedthat the truc: /as par:ed in a slanted manner, its rear portion almost in the middle of the high/a$, and that no earl$ /arning device /as displa$ed. 3etitioner aspiFaspromptl$ applied the bra:es and s/erved to the left to avoid hitting the truc: head%on,but despite his efforts to avoid damage to propert$ and ph$sical in uries on thepassengers, the right side portion of the bus hit the cargo truc:9s left rear. Thepetitioners further alleged, thus?

. That the cargo truc: mentioned in the afore uoted paragraph is o/ned andregistered in the name of the third%part$ defendant 2en amin Condor and /asleft unattended b$ its driver Sergio 3edrano, one of the third%part$ defendants,at the time of the incident>

). That third%part$ defendant Sergio 3edrano, as driver of the cargo truc: /ithmar:ed 5sic6 *Condor -ollo/ 2loc:s K &eneral +erchandise,* /ith 3late No.&23%)! /hich /as rec:lessl$ and imprudentl$ par:ed along the nationalhigh/a$ of Compostela, Cebu during the vehicular accident in uestion, andthird%part$ defendant 2en amin Condor, as the registered o/ner of the cargotruc: /ho failed to e4ercise due diligence in the selection and supervision of third%part$ defendant Sergio 3edrano, are ointl$ and severall$ liable to thethird%part$ plaintiffs for /hatever liabilit$ that ma$ be ad udged against saidthird%part$ plaintiffs or are directl$ liable of 5sic6 the alleged death of plaintiff9s/ife>

!. That in addition to all that are stated above and in the ans/er /hich areintended to sho/ rec:less imprudence on the part of the third%part$defendants, the third%part$ plaintiffs hereb$ declare that during the vehicular accident in uestion, third%part$ defendant /as clearl$ violating Section 87,par. 5g6 of the and Transportation and Traffic CodeL

L

#". That the aforesaid passenger bus, o/ned and operated b$ third%part$plaintiff ;illiam Tiu, is covered b$ a common carrier liabilit$ insurance /ithCertificate of Cover No. " 707" issued b$ 3hilippine 3hoeni4 Suret$ andInsurance, Inc., Cebu Cit$ 2ranch, in favor of third%part$ plaintiff ;illiam Tiu/hich covers the period from

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##. That after the aforesaid alleged incident, third%part$ plaintiff notified third%part$ defendant 3hilippine 3hoeni4 Suret$ and Insurance, Inc., of the allegedincident hereto mentioned, but to no avail>

# . That granting, et arguendo et arguendi, if herein third%part$ plaintiffs /ill beadversel$ ad udged, the$ stand to pa$ damages sought b$ the plaintiff andtherefore could also loo: up to the 3hilippine 3hoeni4 Suret$ and Insurance,Inc., for contribution, indemnification and or reimbursement of an$ liabilit$ or obligation that the$ might Mbe ad udged per insurance coverage dul$ enteredinto b$ and bet/een third%part$ plaintiff ;illiam Tiu and third%part$ defendant3hilippine 3hoeni4 Suret$ and Insurance, Inc.>L #

The respondent 33SII, for its part, admitted that it had an e4isting contract /ithpetitioner Tiu, but averred that it had alread$ attended to and settled the claims of those/ho /ere in ured during the incident. #8 It could not accede to the claim of respondent Arriesgado, as such claim /as /a$ be$ond the scheduled indemnit$ as contained inthe contract of insurance. #7

After the parties presented their respective evidence, the trial court ruled in favor of respondent Arriesgado. The dispositive portion of the decision reads?

;-E'E@O'E, in vie/ of the foregoing, udgment is hereb$ rendered in favor

of plaintiff as against defendant ;illiam Tiu ordering the latter to pa$ theplaintiff the follo/ing amounts?

# % The sum of @I@T T-OBSAND 3ESOS 53

",""".""6 as moraldamages>

% The sum of @I@T T-OBSAND 3ESOS 53 ",""".""6 ase4emplar$ damages>

8 % The sum of T-I'T %EI&-T T-OBSAND @OB' -BND'ED@O'T %ONE 3ESOS 5381,77#.""6 as actual damages>

7 % The sum of T;ENT T-OBSAND 3ESOS 53 ",""".""6 asattorne$9s fees>

% The sum of @I(E T-OBSAND 3ESOS 53 ,""".""6 as costs of suit>

SO O'DE'ED. #

According to the trial court, there /as no dispute that petitioner ;illiam Tiu /asengaged in business as a common carrier, in vie/ of his admission that D9 'ough 'ider passenger bus /hich figured in the accident /as o/ned b$ him> that he had beenengaged in the transportation business for $ears /ith a sole proprietorship> and thathe o/ned 87 buses. The trial court ruled that if petitioner aspiFas had not been drivingat a fast pace, he could have easil$ s/erved to the left to avoid hitting the truc:, thus,

averting the unfortunate incident. It then concluded that petitioner aspiFas /asnegligent.

The trial court also ruled that the absence of an earl$ /arning device near the place/here the truc: /as par:ed /as not sufficient to impute negligence on the part of respondent 3edrano, since the tail lights of the truc: /ere full$ on, and the vicinit$ /as/ell lighted b$ street lamps. #) It also found that the testimon$ of petitioner Tiu, that hebased the selection of his driver aspiFas on efficienc$ and in%service training, and thatthe latter had been so far an efficient and good driver for the past si4 $ears of hisemplo$ment, /as insufficient to prove that he observed the diligence of a good father of a famil$ in the selection and supervision of his emplo$ees.

After the petitioner9s motion for reconsideration of the said decision /as denied, thepetitioners elevated the case to the Court of Appeals on the follo/ing i ssues?

I ;-ET-E' T-I'D 3A'T DE@ENDANT SE'&IO 3ED'ANO ;AS'EC ESS AND I+3'BDENT ;-EN -E 3A' ED T-E CA'&O T'BC IN

AN O2 IJBE +ANNE'>

II ;-ET-E' T-E T-I'D 3A'T DE@ENDANTS A'E

I( ;-ET-E' DE@ENDANT%A33E ANT ;I IA+ TIB -AD EGE'CISEDT-E DBE DI I&ENCE O@ A &OOD @AT-E' O@ A @A+I IN T-ESE ECTION AND SB3E'(ISION O@ -IS D'I(E'S>

( &'ANTIN& @O' T-E SA E O@ A'&B+ENT T-AT DE@ENDANT% A33E ANT ;I IA+ TIB IS IA2 E TO 3 AINTI@@%A33E EE,;-ET-E' T-E'E IS E&A AND @ACTBA 2ASIS IN A;A'DIN&EGCESSI(E +O'A DA+A&ES, EGME +3 A' DA+A&ES, ATTO'NE 9S@EES AND ITI&ATION EG3ENSES TO 3 AINTI@@%A33E EE>

(I ;-ET-E' T-I'D 3A'T DE@ENDANT 3-I I33INE 3-OENIG SB'ET AND INSB'ANCE, INC. IS IA2 E TO DE@ENDANT% A33E ANT ;I IA+TIB.#!

The appellate court rendered udgment affirming the trial court9s decision /ith themodification that the a/ards for moral and e4emplar$ damages /ere reducedto 3 ,""". The dispositive portion reads?

;-E'E@O'E, the appealed Decision dated November ), #00 is hereb$+ODI@IED such that the a/ards for moral and e4emplar$ damages are eachreduced to 3 ,"""."" or a total of 3 ","""."" for both. The udgment is A@@I'+ED in all other respects.

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SO O'DE'ED. #1

According to the appellate court, the action of respondent Arriesgado /as based not onuasi%delict but on breach of contract of carriage. As a common carrier, it /as

incumbent upon petitioner Tiu to prove that e4traordinar$ diligence /as observed inensuring the safet$ of passengers during transportation. Since the latter failed to do so,he should be held liable for respondent Arriesgado9s claim. The CA also ruled that noevidence /as presented against the respondent 33SII, and as such, it could not beheld liable for respondent Arriesgado9s claim, nor for contribution, indemnificationand or reimbursement in case the petitioners /ere ad udged liable.

The petitioners no/ come to this Court and ascribe the follo/ing errors committed b$the appellate court?

I. T-E -ONO'A2 E COB'T O@ A33EA S E''ED IN NOT DEC A'IN&'ES3ONDENTS 2EN

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At the outset, it must be stressed that this Court is not a trier of facts. " @actual findingsof the Court of Appeals are final and ma$ not be revie/ed on appeal b$ this Court,e4cept /hen the lo/er court and the CA arrived at diverse factual findings. # Thepetitioners in this case assail the finding of both the trial and the appellate courts thatpetitioner aspiFas /as driving at a ver$ fast speed before the bus o/ned b$ petitioner Tiu collided /ith respondent Condor9s stalled truc:. This is clearl$ one of fact, notrevie/able b$ the Court in a petition for revie/ under 'ule 7 .

On this ground alone, the petition is destined to fail.

-o/ever, considering that novel uestions of la/ are li:e/ise involved, the Courtresolves to e4amine and rule on the merits of the case.

Petitioner LaspiñasWas negligent in driving The Ill-fated bus

In his testimon$ before the trial court, petitioner aspiFas claimed that he /astraversing the t/o%lane road at Compostela, Cebu at a speed of onl$ fort$ 57"6 to fift$5 "6 :ilometers per hour before the incident occurred. 8 -e also admitted that he sa/the truc: /hich /as par:ed in an *obli ue position* at about meters beforeimpact, 7and tried to avoid hitting it b$ s/erving to the left. -o/ever, even in the

absence of e4pert evidence, the damage sustained b$ the truc: itself supports thefinding of both the trial court and the appellate court, that the D9 'ough 'ider bus drivenb$ petitioner aspiFas /as traveling at a fast pace. Since he sa/ the stalled truc: at adistance of meters, petitioner aspiFas had more than enough time to s/erve to hisleft to avoid hitting it> that is, if the speed of the bus /as onl$ 7" to " :ilometers per hour as he claimed. As found b$ the Court of Appeals, it is easier to believe thatpetitioner aspiFas /as driving at a ver$ fast speed, since at 7?7 a.m., the hour of theaccident, there /ere no oncoming vehicles at the opposite direction. 3etitioner

aspiFas could have s/erved to the left lane /ith proper clearance, and, thus, couldhave avoided the truc:. ) Instinct, at the ver$ least, /ould have prompted him to appl$the brea:s to avert the impending disaster /hich he must have foreseen /hen hecaught sight of the stalled truc:. As /e had occasion to reiterate?

A man must use common sense, and e4ercise due reflection in all his acts> itis his dut$ to be cautious, careful and prudent, if not from instinct, then throughfear of recurring punishment. -e is responsible for such results as an$onemight foresee and for acts /hich no one /ould have performed e4ceptthrough culpable abandon. Other/ise, his o/n person, rights and propert$,and those of his fello/ beings, /ould ever be e4posed to all manner of danger and in ur$.!

;e agree /ith the follo/ing findings of the trial court, /hich /ere affirmed b$ the CA onappeal?

A close stud$ and evaluation of the testimonies and the documentar$ proofssubmitted b$ the parties /hich have direct bearing on the issue of negligence,this Court as sho/n b$ preponderance of evidence that defendant (irgilio TeaspiFas failed to observe e4traordinar$ diligence as a driver of the commoncarrier in this case. It is uite hard to accept his version of the incident that he

did not see at a reasonable distance ahead the cargo truc: that /as par:ed/hen the 'ough 'ider M2us ust came out of the bridge /hich is on an 5sic6Mmore elevated position than the place /here the cargo truc: /as par:ed.;ith its headlights full$ on, defendant driver of the 'ough 'ider /as in avantage position to see the cargo truc: ahead /hich /as par:ed and he could

ust easil$ have avoided hitting and bumping the same b$ maneuvering to theleft /ithout hitting the said cargo truc:. 2esides, it i s 5sic6 sho/n that there /asstill much room or space for the 'ough 'ider to pass at the left lane of thesaid national high/a$ even if the cargo truc: had occupied the entire right lanethereof. It is not true that if the 'ough 'ider /ould proceed to pass through

the left lane it /ould fall into a canal considering that there /as much spacefor it to pass /ithout hitting and bumping the cargo truc: at the left lane of saidnational high/a$. The records, further, sho/ed that there /as no incomingvehicle at the opposite lane of the national high/a$ /hich /ould haveprevented the 'ough 'ider from not s/erving to its left in order to avoid hittingand bumping the par:ed cargo truc:. 2ut the evidence sho/ed that the 'ough'ider instead of s/erving to the still spacious left lane of the national high/a$plo/ed directl$ into the par:ed cargo truc: hitting the latter at its rear portion>and thus, the 5sic6 causing damages not onl$ to herein plaintiff but to the cargotruc: as /ell. 1

Indeed, petitioner aspiFas9 negligence in driving the bus i s apparent in the records. 2$his o/n admission, he had ust passed a bridge and /as traversing the high/a$ of

Compostela, Cebu at a speed of 7" to " :ilometers per hour before the collisionoccurred. The ma4imum speed allo/ed b$ la/ on a bridge is onl$ 8" :ilometers per hour. 0 And, as correctl$ pointed out b$ the trial court, petitioner aspiFas also violatedSection 8 of the and Transportation and Traffic Code, 'epublic Act No. 7#8), asamended?1avvphil.net

Sec. 8 . Restriction as to speed . H 5a6 An$ person driving a motor vehicle on ahigh/a$ 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 /idthof the high/a$, and or an$ other condition then and there e4isting> and noperson shall drive an$ motor vehicle upon a high/a$ at such speed as toendanger the life, limb and propert$ of an$ person, nor at a speed greater than/ill permit him to bring the vehicle to a stop /ithin the assured clear distance

ahead.8"

Bnder Article #1 of the Civil Code, a person driving a vehicle is presumed negligent if at the time of the mishap, he /as violating an$ traffic regulation. 8#

Petitioner Tiu failed toOvercome the presumptionOf negligence against him asOne engaged in the businessOf common carriage

The rules /hich common carriers should observe as to the safet$ of their passengersare set forth in the Civil Code, Articles #!88,8 #! 88 and #! ). 87 In this case,respondent Arriesgado and his deceased /ife contracted /ith petitioner Tiu, as o/ner and operator of D9 'ough 'iders bus service, for transportation from +a$a,

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Daanbanta$an, Cebu, to Cebu Cit$ for the price of 3#1."". 8 It is undisputed that therespondent and his /ife /ere not safel$ transported to the destination agreed upon. Inactions for breach of contract, onl$ the e4istence of such contract, and the fact that theobligor, in this case the common carrier, failed to transport his passenger safel$ to hisdestination are the matters that need to be proved. 8) This is because under the saidcontract of carriage, the petitioners assumed the e4press obligation to transport therespondent and his /ife to their destination safel$ and to observe e4traordinar$diligence /ith due regard for all circumstances. 8! An$ in ur$ suffered b$ the passengersin the course thereof is immediatel$ attributable to the negligence of the carrier. 81Bponthe happening of the accident, the presumption of negligence at once arises, and it

becomes the dut$ of a common carrier to prove that he observed e4traordinar$diligence in the care of his passengers. 80 It must be stressed that in re uiring thehighest possible degree of diligence from common carriers and in creating apresumption of negligence against them, the la/ compels them to curb therec:lessness of their drivers. 7"

;hile evidence ma$ be submitted to overcome such presumption of negligence, it mustbe sho/n that the carrier observed the re uired e4traordinar$ diligence, /hich meansthat the carrier must sho/ the utmost diligence of ver$ cautious persons as far ashuman care and foresight can provide, or that the accident /as caused b$ fortuitousevent.7# As correctl$ found b$ the trial court, petitioner Tiu failed to conclusivel$ rebutsuch presumption. The negligence of petitioner aspiFas as driver of the passenger busis, thus, binding against petitioner Tiu, as the o/ner of the passenger bus engaged as a

common carrier.7

The octrine ofLast !lear !hanceIs Inapplicable in the!ase at "ar

Contrar$ to the petitioner9s contention, the principle of last clear chance is inapplicablein the instant case, as it onl$ applies in a suit bet/een the o/ners and drivers of t/ocolliding vehicles. It does not arise /here a passenger demands responsibilit$ from thecarrier to enforce its contractual obligations, for it /ould be ine uitable to e4empt thenegligent driver and its o/ner on the ground that the other driver /as li:e/ise guilt$ of negligence. 78 The common la/ notion of last clear chance permitted courts to grantrecover$ to a plaintiff /ho has also been negligent provided that the defendant had thelast clear chance to avoid the casualt$ and failed to do so. Accordingl$, it is difficult tosee /hat role, if an$, the common la/ of last clear chance doctrine has to pla$ in a urisdiction /here the common la/ concept of contributor$ negligence as an absolutebar to recover$ b$ the plaintiff, has itself been re ected, as it has been in Article #!0 of the Civil Code.77

Thus, petitioner Tiu cannot escape liabilit$ for the death of respondent Arriesgado9s /ifedue to the negligence of petitioner aspiFas, his emplo$ee, on this score.

#espondents Pedrano and !ondor $ere li%e$ise&egligent

In 3hoeni4 Construction, Inc. v. Intermediate Appellate Court,7 /here thereinrespondent Dionisio sustained in uries /hen his vehicle rammed against a dump truc:par:ed as:e/, the Court ruled that the improper par:ing of a dump truc: /ithout an$/arning lights or reflector devices created an unreasonable ris: for an$one driving/ithin the vicinit$, and for having created such ris:, the truc: driver must be heldresponsible. In ruling against the petitioner therein, the Court elucidated, thus?

L In our vie/, Dionisio9s negligence, although later in point of time than thetruc: driver9s negligence, and therefore closer to the accident, /as not anefficient intervening or independent cause. ;hat the petitioners describe as an*intervening cause* /as no more than a foreseeable conse uence of the ris:created b$ the negligent manner in /hich the truc: driver had par:ed thedump truc:. In other /ords, the petitioner truc: driver o/ed a dut$ to privaterespondent Dionisio and others similarl$ situated not to impose upon them thever$ ris: the truc: driver had created. Dionisio9s negligence /as not that of anindependent and overpo/ering nature as to cut, as it /ere, the chain of causation in fact bet/een the improper par:ing of the dump truc: and theaccident, nor to sever the uris vinculum of liabilit$. L

L

;e hold that private respondent Dionisio9s negligence /as *onl$ contributor$,*that the *immediate and pro4imate cause* of the in ur$ remained the truc:driver9s *lac: of due care.*L7)

In this case, both the trial and the appellate courts failed to consider that respondent3edrano /as also negligent in leaving the truc: par:ed as:e/ /ithout an$ /arninglights or reflector devices to alert oncoming vehicles, and that such failure created thepresumption of negligence on the part of his emplo$er, respondent Condor, insupervising his emplo$ees properl$ and ade uatel$. As /e ruled in 3oblete v. @abros? 7!

It is such a firml$ established principle, as to have virtuall$ formed part of thela/ itself, that the negligence of the emplo$ee gives rise to the presumption of negligence on the part of the emplo$er. This is the presumed negligence in theselection and supervision of emplo$ee. The theor$ of presumed negligence, in

contrast /ith the American doctrine of respondeat superior, /here thenegligence of the emplo$ee is conclusivel$ presumed to be the negligence of the emplo$er, is clearl$ deducible from the last paragraph of Article #1" of theCivil Code /hich provides that the responsibilit$ therein mentioned shall ceaseif the emplo$ers prove that the$ observed all the diligence of a good father of afamil$ to prevent damages. L 71

The petitioners /ere correct in invo:ing respondent 3edrano9s failure to observe ArticleI(, Section 875g6 of the 'ep. Act No. 7#8), /hich provides? 1avvphil.net

5g6Lights when parked or disabled. H Appropriate par:ing lights or flaresvisible one hundred meters a/a$ shall be displa$ed at a corner of the vehicle/henever such vehicle is par:ed on high/a$s or in places that are not /ell%

lighted or is placed in such manner as to endanger passing traffic.

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The manner in /hich the truc: /as par:ed clearl$ endangered oncoming traffic on bothsides, considering that the tire blo/out /hich stalled the truc: in the first place occurredin the /ee hours of the morning. The Court can onl$ no/ surmise that the unfortunateincident could have been averted had respondent Condor, the o/ner of the truc:,e uipped the said vehicle /ith lights, flares, or, at the ver$ least, an earl$ /arningdevice.70 -ence, /e cannot subscribe to respondents Condor and 3edrano9s claim thatthe$ should be absolved from liabilit$ because, as found b$ the trial and appellatecourts, the pro4imate cause of the collision /as the fast speed at /hich petitioner

aspiFas drove the bus. To accept this proposition /ould be to come too close to /ipingout the fundamental principle of la/ that a man must respond for the foreseeable

conse uences of his o/n negligent act or omission. Indeed, our la/ on uasi%delictssee:s to reduce the ris:s and burdens of living in societ$ and to allocate them amongits members. To accept this proposition /ould be to /ea:en the ver$ bonds of societ$. "

The Liabilit' of#espondent PP(IIas Insurer

The trial court in this case did not rule on the liabilit$ of respondent 33SII, /hile theappellate court ruled that, as no evidence /as presented against it, the insurancecompan$ is not liable.

A perusal of the records /ill sho/ that /hen the petitioners filed the Third%3art$Complaint against respondent 33SII, the$ failed to attach a cop$ of the terms of theinsurance contract itself. Onl$ Certificate of Cover No. " 707" # issued in favor of *+r.;illiam Tiu, ahug, Cebu Cit$* signed b$ Cosme -. 2oniel /as appended to the third%part$ complaint. The date of issuance, but the re uirement of an oath does not appl$ /hen theadverse part$ does not appear to be a part$ to the instrument or /hencompliance /ith an order for inspection of the original instrument is refused.

In fact, respondent 33SII did not dispute the e4istence of such contract, and admittedthat it /as liable thereon. It claimed, ho/ever, that it had attended to and settled theclaims of those in ured during the incident, and set up the follo/ing as specialaffirmative defenses?

Third part$ defendant 3hilippine 3hoeni4 Suret$ and Insurance, Inc. hereb$reiterates and incorporates b$ /a$ of reference the preceding paragraphs andfurther states T-AT?%

1. It has attended to the claims of (incent Canales, Asuncion2atiancila and Neptali 3alces /ho sustained in uries during theincident in uestion. In fact, it settled financiall$ their claims per vouchers dul$ signed b$ them and the$ dul$ e4ecuted AffidavitMs of Desistance to that effect, 4ero4 copies of /hich are hereto attachedas Anne4es #, , 8, 7, , and ) respectivel$>

0. ;ith respect to the claim of plaintiff, herein ans/ering third part$defendant through its authori=ed insurance ad uster attended to saidclaim. In fact, there /ere negotiations to that effect. Onl$ that itcannot accede to the demand of said claimant considering that theclaim /as /a$ be$ond the scheduled indemnit$ as per contractentered into /ith third part$ plaintiff ;illiam Tiu and third part$defendant 53hilippine 3hoeni4 Suret$ and Insurance, Inc.6. Thirdpart$ 3laintiff ;illiam Tiu :ne/ all along the limitation as earlier stated, he being an old hand in the transportation business> L

Considering the admissions made b$ respondent 33SII, the e4istence of the insurancecontract and the salient terms thereof cannot be dispatched. It must be noted that after filing its ans/er, respondent 33SII no longer ob ected to the presentation of evidenceb$ respondent Arriesgado and the insured petitioner Tiu. Even in its+emorandum ) before the Court, respondent 33SII admitted the e4istence of thecontract, but averred as follo/s?

3etitioner Tiu is insisting that 33SII is liable to him for contribution,indemnification and or reimbursement. This has no basis under the contract.Bnder the contract, 33SII /ill pa$ all sums necessar$ to discharge liabilit$ of the insured sub ect to the limits of liabilit$ but not to e4ceed the limits of liabilit$as so stated in the contract. Also, it is stated in the contract that in the event of accident involving indemnit$ to more than one person, the limits of liabilit$

shall not e4ceed the aggregate amount so specified b$ la/ to all persons to beindemnified. !

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As can be gleaned from the Certificate of Cover, such insurance contract /as issuedpursuant to the Compulsor$ +otor (ehicle iabilit$ Insurance a/. It /as e4pressl$provided therein that the limit of the insurer9s liabilit$ for each person /as 3# ,""",/hile the limit per accident /as pegged at 3 ",""". An insurer in an indemnit$ contractfor third part$ liabilit$ is directl$ liable to the in ured part$ up to the e4tent specified inthe agreement but it cannot be held solidaril$ liable be$ond that amount. 1 Therespondent 33SII could not then ust den$ petitioner Tiu9s claim> it should havepaid 3# ,""" for the death of @elisa Arriesgado, 0 and respondent Arriesgado9shospitali=ation e4penses of 3#,##8.1", /hich the trial court found to have been dul$supported b$ receipts. The total amount of the claims, even /hen added to that of the

other in ured passengers /hich the respondent 33SII claimed to have settled,)"

/ouldnot e4ceed the 3 ",""" limit under the insurance agreement.

Indeed, the nature of Compulsor$ +otor (ehicle iabilit$ Insurance is such that it isprimaril$ intended to provide compensation for the death or bodil$ in uries suffered b$innocent third parties or passengers as a result of the negligent operation and use of motor vehicles. The victims and or their dependents are assured of immediate financialassistance, regardless of the financial capacit$ of motor vehicle o/ners. )# As the Court,spea:ing through Associate that of the insured carrier or vehicle o/ner is based on tort. L

Obviousl$, the insurer could be held liable onl$ up to the e4tent of /hat /asprovided for b$ the contract of insurance, in accordance /ith the C+( I la/. At the time of the incident, the schedule of indemnities for death and bodil$in uries, professional fees and other charges pa$able under a C+( Icoverage /as provided for under the Insurance +emorandum Circular 5I+C6

No. %!1 /hich /as approved on November #", #0!1. As therein provided, thema4imum indemnit$ for death /as t/elve thousand 53# ,""".""6 pesos per victim. The schedules for medical e4penses /ere also provided b$ said I+C,specificall$ in paragraphs 5C6 to 5&6.)8

amages to be )$arded

The trial court correctl$ a/arded moral damages in the amount of 3 ",""" in favor of respondent Arriesgado. The a/ard of e4emplar$ damages b$ /a$ of e4ample or correction of the public good,)7 is li:e/ise in order. As the Court ratiocinated in

apalaran 2us ine v. Coronado? )

L;hile the immediate beneficiaries of the standard of e4traordinar$ diligenceare, of course, the passengers and o/ners of cargo carried b$ a common

carrier, the$ are not the onl$ persons that the la/ see:s to benefit. @or if common carriers carefull$ observed the statutor$ standard of e4traordinar$diligence in respect of their o/n passengers, the$ cannot help butsimultaneousl$ benefit pedestrians and the passengers of other vehicles /hoare e uall$ entitled to the safe and convenient use of our roads and high/a$s.The la/ see:s to stop and prevent the slaughter and maiming of people5/hether passengers or not6 on our high/a$s and buses, the ver$ si=e andpo/er of /hich seem to inflame the minds of their drivers. Article 8# of theCivil Code e4plicitl$ authori=es the imposition of e4emplar$ damages in casesof uasi%delicts *if the defendant acted /ith gross negligence.*L ))

The respondent 3edro A. Arriesgado, as the surviving spouse and heir of @elisa Arriesgado, is entitled to indemnit$ in the amount of 3 ","""."". )!

The petitioners, as /ell as the respondents 2en amin Condor and Sergio 3edrano are ointl$ and severall$ liable for said amount, conformabl$ /ith the follo/ingpronouncement of the Court in @abre,

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G.R. No. L 30309 No:e ber 25, 1983

+L$"$NT$ RI AS, petitioner,vs.

TH$ $O L$ OF TH$ HILI IN$S a/ HONORA L$ +OURT OFA $ALS, respondents.

Mariano R. Abad for petitioner.

The Solicitor General for respondents.

GUTI$RR$;, #R., J .<

This is a petition to revie/ the decision of respondent Court of Appeals, no/Intermediate Appellate Court, affirming the decision of the Court of @irst Instance of Jue=on, Ninth

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A Instantaneous.

J -o/ about the girl, the $oung girl about four $ears old, /hat could have caused the death

A Shoc: too.

J ;hat could have caused the shoc:

A Compound fracture of the s:ull and going out of the brain.

J ;hat could have caused the fracture of the s:ulland the going out of the brain

A That is the impact against a steel ob ect. 5TSN.,pp. 1#%1 , and

II têñ. !h"w#

T-E -ONO'A2 E COB'T O@ A33EA S E''ED IN INC BDIN&T-E 3A +ENT O@ DEAT- INDE+NIT 2 T-E 3ETITIONE'%

A33E ANT, ;IT- SB2SIDIA' I+3'ISON+ENT IN CASE O@INSO (ENC , A@TE' T-E -EI'S O@ T-E DECEASED -A(E

A 'EAD CO++ENCED A SE3A'ATE CI(I ACTION @O'DA+A&ES A&AINST T-E 'AI 'OAD CO+3AN A'ISIN& @'O+T-E SA+E +IS-A3.

;e see no error in the factual findings of the respondent court and in the conclusiondra/n from those findings.

It is undisputed that the victims /ere on board the second coach /here the petitioner%appellant /as assigned as conductor and that /hen the train slac:ened its speed andthe conductor shouted * usacan, usacan*, the$ stood up and proceeded to thenearest e4it. It is also undisputed that the train une4pectedl$ resumed its regular speedand as a result *the old /oman and the child stumbled and the$ /ere seen no more.

In finding petitioner%appellant negligent, respondent Courttêñ. !h"w#

444 444 444

The appellant s announcement /as premature and erroneous, for ittoo: a full three minutes more before the ne4t barrio of usacan /asreached. In ma:ing the erroneous and premature announcement,appellant /as negligent. -e ought to have :no/n that trainpassengers invariabl$ prepare to alight upon notice from theconductor that the destination /as reached and that the train /asabout to stop. Bpon the facts, it /as the appellant s negligent act/hich led the victims to the door. Said acts virtuall$ e4posed thevictims to peril, for had not the appellant mista:enl$ made theannouncement, the victims /ould be safel$ ensconced in their seats/hen the train er:ed /hile pic:ing up speed, Although it might beargued that the negligent act of the appellant /as not the immediatecause of, or the cause nearest in time to, the in ur$, for the train

er:ed before the victims stumbled, $et in legal contemplationappellant s negligent act /as the pro4imate cause of the in ur$. As

this Court held in Tuc:er v. +ilan, CA &.'. No. !" 0%',

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the causes are independent of each other that the nearest is to becharged /ith the disaster. So long as there is a natural, direct andcontinuous se uence bet/een the negligent act the in ur$ 5sic6 that itcan reasonabl$ be said that but for the act the in ur$ could not haveoccurred, such negligent act is the pro4imate cause of the in ur$, and/hoever is responsible therefore is liable for damages resultingtherefrom. One /ho negligentl$ creates a dangerous conditioncannot escape liabilit$ for the natural and probable conse uencesthereof, although the act of a third person, or an act of &od for /hichhe is not responsible intervenes to precipitate the loss.

444 444 444

It is a matter of common :no/ledge and e4perience about common carriers li:e trainsand buses that before reaching a station or flagstop the$ slo/ do/n and the conductor announces the name of the place. It is also a matter of common e4perience that as thetrain or bus slac:ens its speed, some passengers usuall$ stand and proceed to thenearest e4it, read$ to disembar: as the train or bus comes to a full stop. This isespeciall$ true of a train because passengers feel that if the train resumes its runbefore the$ are able to disembar:, there is no /a$ to stop it as a bus ma$ be stopped.

It /as negligence on the conductor s part to announce the ne4t flag stop /hen said stop/as still a full three minutes ahead. As the respondent Court of Appeals correctl$observed, *the appellant s announcement /as premature and erroneous.

That the announcement /as premature and erroneous is sho/n b$ the fact thatimmediatel$ after the train slo/ed do/n, it une4pectedl$ accelerated to full speed.3etitioner%appellant failed to sho/ an$ reason /h$ the train suddenl$ resumed itsregular speed. The announcement /as made /hile the train /as still in 2arrio agalag.

The pro4imate cause of the death of the victims /as the premature and erroneousannouncement of petitioner appelant 2riFas. This announcement prompted the victimsto stand and proceed to the nearest e4it. ;ithout said announcement, the victims /ouldhave been safel$ seated in their respective seats /hen the train er:ed as it pic:ed upspeed. The connection bet/een the premature and erroneous announcement of

petitioner%appellant and the deaths of the victims is direct and natural, unbro:en b$ an$intervening efficient causes.

3etitioner%appellant also argues that it /as negligence per se for +artina 2ool to go tothe door of the coach /hile the train /as still in motion and that it /as this negligencethat /as the pro4imate cause of their deaths.

;e have carefull$ e4amined the records and /e agree /ith the respondent court thatthe negligence of petitioner%appellant in prematurel$ and erroneousl$ announcing thene4t flag stop /as the pro4imate cause of the deaths of +artina 2ool and Emelita&esmundo. An$ negligence of the victims /as at most contributor$ and does note4culpate the accused from criminal liabilit$.

;ith respect to the second assignment of error, the petitioner argues that after the heirsof +artina 2ool and Emelita &esmundo had actuall$ commenced the separate civil

action for damages in the same trial court during the pendenc$ of the criminal action,the said court had no more po/er to include an$ civil liabilit$ in its udgment of conviction.

The source of the obligation sought to be enforced in Civil Case No. 0!1 is culpacontractual, not an act or omission punishable b$ la/. ;e also note from the appellant sarguments and from the title of the civil case that the part$ defendant is the +anila'ailroad Compan$ and not petitioner%appellant 2riFas Culpa contractual and an act or omission punishable b$ la/ are t/o distinct sources of obligation.

The petitioner%appellant argues that since the information did not allege the e4istenceof an$ :ind of damages /hatsoever coupled b$ the fact that no private prosecutorsappeared and the prosecution /itnesses /ere not interrogated on the issue of damages, the trial court erred in a/arding death indemnit$ in its udgment of conviction.

A perusal of the records clearl$ sho/s that the complainants in the criminal action for double homicide thru rec:less imprudence did not onl$ reserve their right to file anindependent civil action but in fact filed a separate civil action against the +anila'ailroad Compan$.

The trial court acted /ithin its urisdiction /hen, despite the filing /ith it of the separatecivil action against the +anila 'ailroad Compan$, it still a/arded death indemnit$ in the

udgment of conviction against the petitioner%appellant.

It is /ell%settled that /hen death occurs as a result of the commission of a crime, thefollo/ing items of damages ma$ be recovered? 5#6 an indemnit$ for the death of thevictim> 5 6 an indemnit$ for loss of earning capacit$ of the deceased> 586 moraldamages> 576 e4emplar$ damages> 5 6 attorne$ s fees and e4penses of litigation, and5)6 interest in proper cases.

The indemnit$ for loss of earning capacit$, moral damages, e4emplar$ damages,attorne$ s fees, and interests are recoverable separatel$ from and in addition to thefi4ed slim of 3# ,"""."" corresponding to the indemnit$ for the sole fact of death. Thisindemnit$ arising from the fact of death due to a crime is fi4ed /hereas the others arestill sub ect to the determination of the court based on the evidence presented. The fact

that the /itnesses /ere not interrogated on the issue of damages is of no momentbecause the death indemnit$ fi4ed for death is separate and distinct from the other forms of indemnit$ for damages.

;-E'E@O'E, the udgment appealed from is modified in that the a/ard for deathindemnit$ is increased to 3# ,"""."" for the death of +artina 2ool instead of 3),""".""and 3# ,"""."" for the death of Emelita &esmundo instead of 38,"""."", but deletingthe subsidiar$ imprisonment in case of insolvenc$ imposed b$ the lo/er court. The udgment is A@@I'+ED in all other respects.

SO O'DE'ED.

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G.R. No. L 22985 #a/uary 24, 1968

ATANGAS TRANS ORTATION +O" ANY, petitioner,vs.

GR$GORIO +AGUI" AL, AN+RA+IO +AGUI" AL, "ARIA "ARANAN !$+AGUI" AL, I AN TRANS ORTATION +O" ANY a/ "AR+IANO

ILAGAN, respondents.

$%aeta& Gibbs and $%aeta and 'o(ingo ). de Lara for petitioner.*ictoriano +. )nda,a for respondents.

+ON+$ +ION, !.J.:

Appeal b$ certiorari from a decision of the Court of Appeals.

The main facts are set forth in said decision from /hich /e uote?

There is no dispute at all that the deceased 3edro Caguimbal, 2arrioieutenant of 2arrio Calansa$an, San that at the same timethe 2iFan bus /as about #"" meters a/a$ li:e/ise going north/ard andfollo/ing the direction of the calesa > that upon seeing the 2iFan bus the driver of the 2TCO bus dimmed his light as established b$ +agno Ila/, the ver$conductor of the 2iFan bus at the time of the accident> that as the calesa andthe 2TCO bus /ere passing each other from the opposite directions, the2iFan bus follo/ing the calesa s/erved to its left in an attempt to passbet/een the 2TCO bus and the calesa > that /ithout diminishing its speed of about sevent$ 5!"6 :ilometers an hour, the 2iFan bus passed through thespace bet/een the 2TCO bus and the calesa hitting first the left side of the2TCO bus /ith the left front corner of its bod$ and then bumped and struc:the calesa /hich /as completel$ /rec:ed> that the driver /as seriousl$ in uredand the horse /as :illed> that the second and all other posts supporting thetop of the left side of the 2TCO bus /ere completel$ smashed and half of the

bac: /all to the left /as ripped open. 5E4hibits # and 6. The 2TCO bussuffered damages for the repair of i ts damaged portion.

As a conse uence of this occurrence, t/o 5 6 passengers of 2TCO died, namel$, 3edroCaguimbal and &uillermo Tolentino, apart from others /ho /ere in ured. The /ido/and children of Caguimbal instituted the present action, /hich /as tried ointl$ /ith asimilar action of the Tolentinos, to recover damages from the 2atangas TransportationCompan$, hereinafter referred to as 2TCO. The latter, in turn, filed a third%part$complaint against the 2iFan Transportation Compan$ hereinafter referred to as2iFan and its driver, +arciano Ilagan. Subse uentl$, the Caguimbals amended their complaint, to include therein, as defendants, said 2iFan and Ilagan.

After appropriate proceedings, the Court of @irst Instance of 2atangas rendered adecision dismissing the complaint insofar as the 2TCO is concerned, /ithout pre udiceto plaintiff s right to sue 2iFan /hich had stopped participating in the proceedingsherein, o/ing apparentl$, to a case in the Court of @irst Instance of aguna for theinsolvenc$ of said enterprise and Ilagan, and /ithout pronouncement as to costs.

On appeal ta:en b$ the Caguimbals, the Court of Appeals reversed said decision andrendered udgment for them, sentencing the 2TCO, 2iFan and Ilagan to, ointl$ andseverall$, pa$ to the plaintiffs the aggregate sum of 3#", ""."" # and the costs in bothinstances. -ence, this appeal b$ 2TCO, upon the ground that the Court of Appealserred? #6 in finding said appellant liable for damages> and 6 in a/arding attorne$ s fees.

In connection /ith the first assignment of error, /e note that the rec:lessness of defendant /as, manifestl$, a ma or factor in the occurrence of the accident /hichresulted, inter alia , in the death of 3edro Caguimbal. Indeed, as driver of the 2iFan bus,he overtoo: 2enito +a:ahi$a s horse%driven rig or calesa and passed bet/een thesame and the 2TCO bus despite the fact that the space available /as not big enoughtherefor, in vie/ of /hich the 2iFan bus hit the left side of the 2TCO bus and thenthe calesa . This not/ithstanding, the Court of Appeals rendered udgment against the2TCO upon the ground that its driver, Tomas 3ere=, had failed to e4ercise the*e4traordinar$ diligence,* re uired in Article #!88 of the ne/ Civil Code, *in thevigilance for the safet$* of his passengers.

The record sho/s that, in order to permit one of them to disembar:, 3ere= drove his2TCO bus partl$ to the right shoulder of the road and partl$ on the asphalted portionthereof. et, he could have and should have seen to it had he e4ercised*e4traordinar$ diligence* that his bus /as completel$ outside the asphalted portion of the road, and full$ /ithin the shoulder thereof, the /idth of /hich being more thansufficient to accommodate the bus. -e could have and should have done this, because,/hen the aforementioned passenger e4pressed his /ish to alight from the bus, Ilaganhad seen the aforementioned *calesa*, driven b$ +a:ahi$a, a fe/ meters a/a$, comingfrom the opposite direction, /ith the 2 iFan bus about #"" meters behind the rig cruisingat a good speed. 8 ;hen 3ere= slo/ed do/n his 2TCO bus to permit said passenger todisembar:, he must have :no/n, therefore, that the 2iFan bus /ould overta:e thecalesa at about the time /hen the latter and 2TCO bus /ould probabl$ be on the sameline, on opposite sides of the asphalted portions of the road, and that the spacebet/een the 2TCO bus and the *calesa* /ould not be enough to allo/ the 2iFan bus togo through. It is true that the driver of the 2iFan bus should have slo/ed do/n or stopped, and, hence, /as rec:less in not doing so> but, he had no especial obligations

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to/ard the passengers of the 2TCO unli:e 3ere= /hose dut$ /as to e4ercise *utmost*or *e4traordinar$* diligence for their safet$. 3ere= /as thus under obligation to avoid asituation /hich /ould be ha=ardous for his passengers, and, ma:e their safet$dependent upon the diligence of the 2iFan driver. Such obligation becomes morepatent /hen /e considered the fact of /hich the Court ma$ ta:e udicial cogni=ance

that our motor vehicle drivers, particularl$ those of public service utilities, have notdistinguished themselves for their concern over the safet$, the comfort or theconvenience of others. 2esides, as correctl$ stated in the s$llabus to rito S, vs.Malate Ta/icab 0 Garage& nc. , 7

In an action based on a contract of carriage, the court need not ma:e ane4press finding of fault or negligence on the part of the carrier in order to holdit responsible to pa$ the damages sought for b$ the passenger. 2$ thecontract of carriage, the carrier assumes the e4press obligation to transportthe passenger to his destination safel$ and to observe e4traordinar$ diligence/ith a due regard for all the circumstances, and an$ in ur$ that might besuffered b$ the passenger is right a/a$ attributable to the fault or negligenceof the carrier 5Article #! ), ne/ Civil Code6. This is an e4ception to thegeneral rule that negligence must be proved, and it is therefore inc-(bent -pon the carrier to prove that it has e/ercised e/traordinar, diligence asprescribed in Articles #!88 and #! of the ne/ Civil Code.

In the case at bar, 2TCO has not proven the e4ercise of e4traordinar$ diligence on its

part. @or this reason, the case of saac vs. A. L. A((en Trans. 2o.& nc.

relied upon b$2TCO, is not in point, for, in said case, the public utilit$ driver had done ever$thing hecould to avoid the accident, and could not have possibl$ avoided it, for he *s/erved thebus to the ver$ e/tre(e right of the road,* /hich the driver, in the present case, hadfailed to do.

As regards the second assignment of error, appellant argues that the a/ard of attorne$ s fees is not authori=ed b$ la/, because, of the eleven 5##6 cases specified in Article # "1 of the ne/ Civil Code, onl$ the fi fth and the last are relevant to the oneunder consideration> but the fifth case re uires bad faith, /hich does not e4ist in thecase at bar. As regards the last case, /hich permits the a/ard, */here the court deemsit ust and e uitable that attorne$ s fees . . . should be recovered,* it is urged that theevidence on record does not sho/ the e4istence of such ust and e uitable grounds.

;e, ho/ever, believe other/ise, for? 5#6 the accident in uestion too: place on April ,#0 7, and the Caguimbals have been constrained to litigate for over thirteen 5#86 $earsto vindicate their rights> and 5 6 it is high time to impress effectivel$ upon public utilit$operators the nature and e4tent of their responsibilit$ in respect of the safet$ of their passengers and their dut$ to e4ercise greater care in the selection of drivers andconductor and in supervising the performance of their duties, in accordance, not onl$/ith Article #!88 of the Civil Code of the 3hilippines, but, also, /ith Articles #! and#! ) thereof ) and the spirit of these provisions, as disclosed b$ the letter thereof, andelucidated b$ the Commission that drafted the same. !

;-E'E@O'E, the decision appealed from, should be, as it is hereb$, affirmed, /ith thecosts of this instance against appellant 2atangas Transportation Compan$.

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G.R. No. 166640 #u y 31, 2009

H$R"INIO "ARIANO, #R., 3etitioner,vs.IL!$FONSO +. +ALL$#AS a/ $!GAR !$ OR#A, 'espondents.

D E C I S I O N

UNO, !.J.:

On appeal are the Decision # and 'esolution of the Court of Appeals in CA%&.'. C( No.))10#, dated +a$ #, ""7 and

. The sum of 37","""."" as actual and compensator$ damages>

8. The sum of 3#,1 0, ""."" as foregone income>

7. The sum of 38","""."" as moral damages>

. The sum of 3 ","""."" as e4emplar$ damages>

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). The costs of suit.

SO O'DE'ED. !

'espondents Calle as and De 2or a appealed to the Court of Appeals, contending thatthe trial court erred in holding them guilt$ of breach of contract of carriage.

On +a$ #, ""7, the Court of Appeals reversed the decision of the trial court. Itreasoned?

. . . the presumption of fault or negligence against the carrier is onl$ a disputablepresumption. It gives in /here contrar$ facts are established proving either that thecarrier had e4ercised the degree of diligence re uired b$ la/ or the in ur$ suffered b$the passenger /as due to a fortuitous event. ;here, as in the instant case, the in ur$sustained b$ the petitioner /as in no /a$ due to an$ defect in the means of transport or in the method of transporting or to the negligent or /ilful acts of private respondent semplo$ees, and therefore involving no issue of negligence in its dut$ to provide safeand suitable cars as /ell as competent emplo$ees, /ith the in ur$ arising /holl$ fromcauses created b$ strangers over /hich the carrier had no control or even :no/ledgeor could not have prevented, the presumption is rebutted and the carrier is not andought not to be held liable. To rule other/ise /ould ma:e the common carrier theinsurer of the absolute safet$ of its passengers /hich is not the intention of the

la/ma:ers .1

The dispositive portion of the Decision reads?

;-E'E@O'E, the decision appealed from, insofar as it found defendants%appellantsIldefonso Calle as and Edgar de 2or a liable for damages to plaintiff%appellee -erminioE. +ariano,

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@irst, /e advert to the s:etch prepared b$ 3O8 +agno S. de (illa, /ho investigated theaccident. The s:etch #8sho/s the passenger bus facing the direction of Taga$ta$ Cit$and l$ing on its right side on the shoulder of the road, about five meters a/a$ from thepoint of impact. On the other hand, the trailer truc: /as on the opposite direction, about

"" meters a/a$ from the point of impact. 3O8 De (illa stated that he intervie/ed De2or a, respondent driver of the passenger bus, /ho said that he /as about to unloadsome passengers /hen his bus /as bumped b$ the driver of the trailer truc: that lostits bra:es. 3O8 De (illa chec:ed out the trailer truc: and found that its bra:es reall$failed. -e testified before the trial court, as follo/s?

ATT . ESTE DIQ?

ou pointed to the Isu=u truc: be$ond the point of impact. Did $ouinvestigate /h$ did 5sic6 the Isu=u truc: is be$ond the point of impact

a 2ecause the truc: has no bra:es.

COB'T?

;hat is the distance bet/een that circle /hich is mar:ed as E4h. #%c to theplace /here $ou found the same

a +ore or less "" meters.

;h$ did $ou sa$ that the truc: has no bra:es

a I tested it.

And $ou found no bra:es

a es, sir.

4 4 4

;hen $ou /ent to the scene of accident, /hat /as the position of Cel$rosabus

a It /as l$ing on its side.

COB'T?

'ight side or left side

a 'ight side.

ATT . ESTE DIQ?

On /hat part of the road /as it l$ing

a On the shoulder of the road.

COB'T?

-o/ man$ meters from the point of impact

a Near, about meters. #7

-is police report bolsters his testimon$ and states?

Said vehicle # Mpassenger bus /as running from +anila to/ard south direction /hen,in the course of its travel, it /as hit and bumped b$ vehicle Mtruc: /ith trailer thenrunning fast from opposite direction, causing said vehicle # to fall on its side on the roadshoulder, causing the death of one and in uries of some passengers thereof, and itsdamage, after collission 4sic5, vehicle continiousl$4sic5 ran and stopped atappro4imatel$ "" meters a/a$ from the piont 4sic5 of impact.#

In fine, the evidence sho/s that before the colli sion, the passenger bus /as cruising onits rightful lane along the Aguinaldo -igh/a$ /hen the trailer truc: coming from the

opposite direction, on full speed, suddenl$ s/erved and encroached on its lane, andbumped the passenger bus on its left middle portion. 'espondent driver De 2or a hadever$ right to e4pect that the trailer truc: coming from the opposite direction /ould sta$on its proper lane. -e /as not e4pected to :no/ that the trailer truc: had lost itsbra:es. The s/erving of the trailer truc: /as abrupt and it /as running on a fast speedas it /as found "" meters a/a$ from the point of collision. Secondl$, an$ doubt as tothe culpabilit$ of the driver of the trailer truc: ought to vanish /hen he pleaded guilt$ tothe charge of rec:less imprudence resulting to multiple slight ph$sical in uries anddamage to propert$ in Criminal Case No. 8%0 , involving the same incident.1avvph3 1

IN (IE; ;-E'EO@, the petition is !$NI$! . The Decision dated +a$ #, ""7 and the'esolution dated

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G.R. No. 122039 "ay 31, 2000

%I+$NT$ +ALALAS, petitioner,vs.+OURT OF A $ALS, $LI;A #U#$UR+H$ SUNGA a/ FRAN+IS+OSAL%A, respondents.

"$N!O;A, J .<

This is a petition for revie/ on certiorari of the decision # of the Court of Appeals, dated+arch 8#, #00#, reversing the contrar$ decision of the 'egional Trial Court, 2ranch 8),Dumaguete Cit$, and a/arding damages instead to private respondent Eli=a

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(erena and o/ned b$ @rancisco Salva bumped the left rear portion of the eepne$. As aresult, Sunga /as in ured. She sustained a fracture of the *distal third of the left tibia%fibula /ith severe necrosis of the underl$ing s:in.* Closed reduction of the fracture, longleg circular casting, and case /edging /ere done under sedation. -er confinement inthe hospital lasted from August 8 to September !, #010. -er attending ph$sician, Dr.Danilo (. Oligario, an orthopedic surgeon, certified she /ould remain on a cast for aperiod of three months and /ould have to ambulate in crutches during said period.

On October 0, #010, Sunga filed a complaint for damages against Calalas, allegingviolation of the contract of carriage b$ the former in failing to e4ercise the diligence

re uired of him as a common carrier. Calalas, on the other hand, filed a third%part$complaint against @rancisco Salva, the o/ner of the Isu=u truc:.

The lo/er court rendered udgment against Salva as third%part$ defendant andabsolved Calalas of liabilit$, holding that it /as the driver of the Isu=u truc: /ho /asresponsible for the accident. It too: cogni=ance of another case 5Civil Case No. 870"6,filed b$ Calalas against Salva and (erena, for uasi%delict, in /hich 2ranch 8! of thesame court held Salva and his driver (erena ointl$ liable to Calalas for the damage tohis eepne$.

On appeal to the Court of Appeals, the ruling of the lo/er court /as reversed on theground that Sunga s cause of action /as based on a contract of carriage, not uasi%delict, and that the common carrier failed to e4ercise the diligence re uired under theCivil Code. The appellate court dismissed the third%part$ complaint against Salva andad udged Calalas liable for damages to Sunga. The dispositive portion of its decisionreads?

;-E'E@O'E, the decision appealed from is hereb$ 'E(E'SEDand SET ASIDE, and another one is entered ordering defendant%appellee (icente Calalas to pa$ plaintiff%appellant?

5#6 3 ","""."" as actual and compensator$ damages>

5 6 3 ","""."" as moral damages>

586 3#","""."" as attorne$ s fees> and

576 3#,"""."" as e4penses of litigation> and

5 6 to pa$ the costs.

SO O'DE'ED.

-ence, this petition. 3etitioner contends that the ruling in Civil Case No. 870" that thenegligence of (erena /as the pro4imate cause of the accident negates his liabilit$ andthat to rule other/ise /ould be to ma:e the common carrier an insurer of the safet$ of its passengers. -e contends that the bumping of the eepne$ b$ the truc: o/ned b$Salva /as a caso fort-ito . 3etitioner further assails the a/ard of moral damages toSunga on the ground that i t is not supported b$ evidence.

The petition has no merit.

The argument that Sunga is bound b$ the ruling in Civil Case No. 870" finding thedriver and the o/ner of the truc: liable for uasi%delict ignores the fact that she /asnever a part$ to that case and, therefore, the principle of res 6-dicata does not appl$.

Nor are the issues in Civil Case No. 870" and in the present case the same. The issuein Civil Case No. 870" /as /hether Salva and his driver (erena /ere liable for uasi%delict for the damage caused to petitioner s eepne$. On the other hand, the issue inthis case is /hether petitioner is l iable on his contract of carriage. The first , uasi%delict,also :no/n as c-lpa a"-iliana or c-lpa e/tra contract-al , has as its source thenegligence of the tortfeasor. The second , breach of contract or c-lpa contract-al , ispremised upon the negligence in the performance of a contractual obligation.

Conse uentl$, in uasi%delict, the negligence or fault should be clearl$ establishedbecause it is the basis of the action, /hereas in breach of contract, the action can beprosecuted merel$ b$ proving the e4istence of the contract and the fact that the obligor,in this case the common carrier, failed to transport his passenger safel$ to hisdestination. In case of death or in uries to passengers, Art. #! ) of the Civil Codeprovides that common carriers are presumed to have been at fault or to have actednegligentl$ unless the$ prove that the$ observed e4traordinar$ diligence as defined in Arts. #!88 and #! of the Code. This provision necessaril$ shifts to the commoncarrier the burden of proof.

There is, thus, no basis for the contention that the ruling in Civil Case No. 870", findingSalva and his driver (erena liable for the damage to petitioner s eepne$, should bebinding on Sunga. It is immaterial that the pro4imate cause of the collision bet/een the eepne$ and the truc: /as the negligence of the truc: driver. The doctrine of pro4imatecause is applicable onl$ in actions for uasi%delict, not in actions involving breach of contract. The doctrine is a device for imputing liabilit$ to a person /here there is norelation bet/een him and another part$. In such a case, the obligation is created b$ la/itself. 2ut, /here there is a pre%e4isting contractual relation bet/een the parties, it is theparties themselves /ho create the obligation, and the function of the la/ is merel$ toregulate the relation thus created. Insofar as contracts of carriage are concerned, someaspects regulated b$ the Civil Code are those respecting the diligence re uired of common carriers /ith regard to the safet$ of passengers as /ell as the presumption of negligence in cases of death or in ur$ to passengers. It provides?

Art. #!88. Common carriers, from the nature of their business and for reasons of public polic$, are bound to observe e4traordinar$ diligencein the vigilance over the goods and for the safet$ of the passengerstransported b$ them, according to all the circumstances of each case.

Such e4traordinar$ diligence in the vigilance over the goods is further e4pressed in articles #!87, #!8 , and #!7), Nos. , ), and !, /hilethe e4traordinar$ diligence for the safet$ of the passengers is further set forth in articles #! and #! ).

Art. #! . A common carrier is bound to carr$ the passengers safel$as far as human care and foresight can provide, using the utmost

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diligence of ver$ cautious persons, /ith due regard for all thecircumstances.

Art. #! ). In case of death of or in uries to passengers, commoncarriers are presumed to have been at fault or to have actednegligentl$, unless the$ prove that the$ observed e4traordinar$diligence as prescribed b$ articles #!88 and #! .

In the case at bar, upon the happening of the accident, the presumption of negligenceat once arose, and it became the dut$ of petitioner to prove that he had to observee4traordinar$ diligence in the care of his passengers.

No/, did the driver of eepne$ carr$ Sunga *safel$ as far as human care and foresightcould provide, using the utmost diligence of ver$ cautious persons, /ith due regard for all the circumstances* as re uired b$ Art. #! ;e do not thin: so. Several factorsmilitate against petitioner s contention.

7irst , as found b$ the Court of Appeals, the eepne$ /as not properl$ par:ed, its rear portion being e4posed about t/o meters from the broad shoulders of the high/a$, andfacing the middle of the high/a$ in a diagonal angle. This is a violation of the '.A. No.7#8), as amended, or the and Transportation and Traffic Code, /hich provides?

Sec. 7. $bstr-ction of Traffic . No person shall drive his motor vehicle in such a manner as to obstruct or impede the passage of an$ vehicle, nor, /hile discharging or ta:ing on passengers or loading or unloading freight, obstruct the free passage of other vehicles on the high/a$.

Second , it is undisputed that petitioner s driver too: in more passengers than theallo/ed seating capacit$ of the eepne$, a violation of U8 5a6 of the same la/. Itprovides?

)/ceeding registered capacit, . No person operating an$ motor vehicle shall allo/ more passengers or more freight or cargo in hisvehicle than its registered capacit$.

The fact that Sunga /as seated in an *e4tension seat* placed her in a peril greater thanthat to /hich the other passengers /ere e4posed. Therefore, not onl$ /as petitioner unable to overcome the presumption of negligence imposed on him for the in ur$sustained b$ Sunga, but also, the evidence sho/s he /as actuall$ negligent intransporting passengers.

;e find it hard to give serious thought to petitioner s contention that Sunga s ta:ing an*e4tension seat* amounted to an implied assumption of ris:. It is a:in to arguing that thein uries to the man$ victims of the tragedies in our seas should not be compensatedmerel$ because those passengers assumed a greater ris: of dro/ning b$ boarding anoverloaded ferr$. This is also true of petitioner s contention that the eepne$ beingbumped /hile it /as improperl$ par:ed constitutes caso fort-ito . A caso fort-ito is anevent /hich could not be foreseen, or /hich, though foreseen, /as inevitable. 8 Thisre uires that the follo/ing re uirements be present? 5a6 the cause of the breach is

independent of the debtor s /ill> 5b6 the event is unforeseeable or unavoidable> 5c6 theevent is such as to render it impossible for the debtor to fulfill his obligation in a normalmanner, and 5d6 the debtor did not ta:e part in causing the in ur$ to thecreditor .7 3etitioner should have foreseen the danger of par:ing his eepne$ /ith itsbod$ protruding t/o meters into the high/a$.

@inall$, petitioner challenges the a/ard of moral damages alleging that it is e4cessiveand /ithout basis in la/. ;e find this contention /ell ta:en.

In a/arding moral damages, the Court of Appeals stated?

3laintiff%appellant at the time of the accident /as a first%$ear collegestudent in that school $ear #010%#00" at the Silliman Bniversit$,ma oring in 3h$sical Education. 2ecause of the in ur$, she /as notable to enroll in the second semester of that school $ear. Shetestified that she had no more intention of continuing /ith her schooling, because she could not /al: and decided not to pursue her degree, ma or in 3h$sical Education *because of m$ leg /hich has adefect alread$.*

3laintiff%appellant li:e/ise testified that even /hile she /as under confinement, she cried in pain because of her in ured left foot. As a

result of her in ur$, the Orthopedic Surgeon also certified that she has*residual bo/ing of the fracture side.* She li:e/ise decided not tofurther pursue 3h$sical Education as her ma or sub ect, because *m$left leg . . . has a defect alread$.*

Those are her ph$sical pains and moral sufferings, the inevitablebedfello/s of the in uries that she suffered. Bnder Article #0 of theCivil Code, she is entitled to recover moral damages in the sum of 3 ","""."", /hich is fair, ust and reasonable.

As a general rule, moral damages are not recoverable in actions for damagespredicated on a breach of contract for it is not one of the items enumerated under Art.

#0 of the Civil Code. As an e4ception, such damages are recoverable? 5#6 in cases

in /hich the mishap results in the death of a passenger, as provided in Art. #!)7, inrelation to Art. ")586 of the Civil Code> and 5 6 in the cases in /hich the carrier isguilt$ of fraud or bad faith, as provided in Art. ".)

In this case, there is no legal basis for a/arding moral damages since there /as nofactual finding b$ the appellate court that petitioner acted in bad faith in theperformance of the contract of carriage. Sunga s contention that petitioner s admissionin open court that the driver of the eepne$ failed to assist her in going to a nearb$hospital cannot be construed as an admission of bad faith. The fact that it /as thedriver of the Isu=u truc: /ho too: her to the hospital does not impl$ that petitioner /asutterl$ indifferent to the plight of his in ured passenger. If at all, it is merel$ impliedrecognition b$ (erena that he /as the one at fault for the accident.

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;-E'E@O'E, the decision of the Court of Appeals, dated +arch 8#, #00 , and itsresolution, dated September ##, #00 , are A@@I'+ED, /ith the +ODI@ICATION thatthe a/ard of moral damages is DE ETED.

SO O'DE'ED.