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ANNOTATION EXTRAORDINARY DILIGENCE OF COMMON CARRIERS IN THE TRANSPORT OF PASSENGERS

By Atty. SEVERIANO S. TABIOS

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1. Introduction, p. 414 2. Standards of Care, p. 416

A. Utmost Diligence of Very Cautious Persons, p. 416 B. Diligence of a Good Father of a Family, p. 418

3. Basis of Responsibility, p. 419

A. Failure to Maintain Standards of Care, p. 419 B. Willful Acts or Negligence of Other Passengers or Strangers, p. 421

4. Defenses Against Liability, p. 422

A. Exercise of Extraordinary Diligence, p. 422 B. Fortuitous Events, p. 424

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1. Introduction

According to the New Civil Code, common carriers are persons, corporations, firms or associations engaged in the business of carrying or transporting passengers or goods or

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both, by land, water, or air, for compensation, offering their services to the public.1 From the nature of their business and for reasons of public policy, common carriers are bound to observe extraordinary diligence in the vigilance over the goods and for the safety of passengers transported by them, according to all the circumstances of each case.2 Thus, in the case of Philippine Air Lines, Inc. vs. Court of Appeals, et al.,3 which is the subject of this annotation, the Supreme Court reiterated that the duty to exercise the utmost diligence on the part of common carriers is for the safety of passengers as well as for the members of the crew or the complement operating the carrier, the airplane in the case at bar, as any omission, lapse or neglect thereof will certainly result to the damage, prejudice, nay injuries and even death to all aboard the plane, passengers and crew members alike.

It should be remembered that the foregoing concept on the responsibility of common carriers toward their passengers has been introduced into our legal system from Anglo-American sources. Under that legal system, common carriers are required to act with the utmost care for the safety of passengers. Appropriately, the extraordinary diligence imposed on common carriers as adopted by the New Civil

Code is but a just application of the ancient principle that the well-being of the people is the supreme law.4

Moreover, the requirement of extraordinary diligence is not only based on ancient principles of law. It has also taken into account of the fact that with modern development of science and invention, transportation has become more complicated and hazardous, so that the public is forced to trust all the more in the utmost diligence and foresight of common carriers, whether by land, sea or air. Thus, the requirement of extraordinary diligence which is imperatively demanded by the preciousness of human life is calculated to protect the

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1 Article 1732, New Civil Code.

2 Article 1733, New Civil Code.

3 L-46558, July 31, 1981.

4 Report of the Code Commission, pp. 65-67.

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passengers from the tragic mishaps that frequently occur in connection with rapid modern transportation. Indeed, every person must in every way be safeguarded against all injury.5 2. Standards of Care A. Utmost Diligence of Very Cautious Persons

Under the New Civil Code, 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.6 Thus, with the obligation of the common carrier to transport its passengers safely with utmost diligence, it would be presumed to have been at fault or to have acted negligently in the event of death of or injuries to passengers, unless it proves that it observed extraordinary diligence.7 Appropriately, where the driver of a jeepney parked his vehicle in such a way that onehalf of its width was on the asphalted pavement of the road and the other half on the right shoulder of said road, it must follow that the driver and the owner of said jeepney must answer for injuries to its passengers as a result of its having been bumped by a speeding water truck.8 Moreover, in an action based on a contract of carriage, the court need not make an express finding of fault or negligence on the part of the carrier in order to hold it responsible to pay the damages sought for by the passenger because by the contract of carriage, the carrier assumes the express obligation to transport the passenger to his destination safely and to observe extraordinary diligence with a due regard for all the circumstances, and any injury that might be suffered by the passenger is right away attributable to the fault or negligence of the carrier.9

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5 Report of the Code Commission, pp. 35-36.

6 Article 1755, New Civil Code.

7 Article 1756, New Civil Code.

8 Anuran, et. al. vs. Buo, et. al., L-21354, May 20, 1966, 17 SCRA 224, 225-227.

9 Batangas Trans. Co. vs. Caguimbal, et. al., L-22985, Jan. 24, 1968, 22 SCRA 171, 176.

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The presumption of negligence against the common carrier for the death or injury to passenger can be overcome by proof that the common carrier has exercised extraordinary diligence for the safety of the passengers transported by them according to all the circumstances of each case.10 Thus, in the case of Nocum vs. Laguna Tayabas Bus Company,11 where a passenger was injured by an explosion of firecrackers being carried by a co-passenger who upon inspection had declared that the box he was carrying contained clothes, the Supreme Court in conceding that the common carrier had rebutted the presumption of negligence declared that while it is true the passengers of appellant's bus should not be made to suffer for something over which they had no control as enunciated in a previous decision of the court,12 fairness demands that in measuring a common carrier's duty toward its passengers, allowance must be given to the reliance that should be reposed on the sense of responsibility of all the passengers in regard to their common safety.13 While it may be true according to the court that refusal by a passenger to have his package opened was no excuse because employees of the common carrier should call the police if there were packages containing articles against company regulations, it was however the considered opinion of the Supreme Court that the law does not require as much, for it reasonably qualifies the extraordinary diligence required of common carriers for the safety of the passengers transported by them to be "according to all the circumstances of each case."14

It was moreover observed that Congress in concurring with the Code Commission in requiring the highest degree of

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10 Article 1756 in relation to Article 1733 and 1755, New Civil Code.

11 L-23733, Oct. 31, 1969, 30 SCRA 69.

12 Necesito vs. Paras, 104 Phil. 75.

13 Nocum vs. Laguna Tayabas Bus Co., L-23733, Oct. 31, 1969, 30 SCRA 69, 74.

14 Nocum vs. Laguna Tayabas Bus Co., L-23733, Oct. 31, 1969, 30 SCRA 69, 74.

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diligence from common carriers in the safe transport of their passengers and creating the presumption of negligence against them intended to curb the recklessness of their drivers which is a common sight even in crowded areas and on the highways throughout the country.15 B. Diligence of a Good Father of a Family

The law presumes negligence on the part of the employer when damage or injury is inflicted on a third person by the fault or negligence of an employee in the discharge of his duties. This presumption may, however, be dissipated by proof that the employer exercised the care and diligence of a good father of a family, not only in the selection of the employee, but also in direction, supervision and vigilance with respect to his conduct.16 Moreover, distinction should be made on the type of negligence from which damages are sought for the reason that where liability arises from a mere tort, not involving a breach of positive obligation, an employer may exculpate himself by proving that he had exercised due diligence to prevent the damage,17 whereas if the liability of the master arises from a breach of a contractual duty, it would be irrelevant to prove that the master or employer had used all the diligence of a good father of a family to prevent the damage.18 In this regard, the New Civil Code provides that the liability of common carriers does not cease upon proof that they exercised all the diligence of a good f ather of a family in the selection and supervision of their employees,19 although such proof makes the common carrier a debtor in good faith for which damages would be mitigated.20

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15 Ibid.

16 Castro vs. Acro Taxicab Co., 82 Phil. 359; Walter A. Smith & Co. vs. Cadwallader Gibson Lumber Co., 55 Phil. 517.

17 Under Article 2180 of the New Civil Code the responsibility of an employer shall cease upon proof that he has observed all the diligence of a good father of the prevent damage.

18 Del Prado vs. Manila Electric Co., 52 Phil. 900.

19 Article 1759, New Civil Code.

20 Manila Railroad vs. Compania Transatlantica, 38 Phil. 875;

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Carelessness by the owner of a common carrier in the operation and maintenance of vehicles has invariably resulted to liability on its part. For this purpose, a failure to repair defective parts in the vehicle21 or allowing a worn-out condition of the vehicle to persist22 or the failure of a carrier to provide any cover at the right side of the bus to safeguard passengers sitting thereat from falling therefrom,23 or failure to furnish a competent and tested driver, to whom the owner or operator must issue, when essential, proper instructions for safe maneuvering on the highway24 were examples of such carelessness. In this regard, all that the passenger must prove is the existence of the contract of carriage and the fact that there was a breach because he did not arrive at his destination unhurt.25

In the case of a common carrier, the duty of the employer is not merely to furnish a safe car or bus and driver with long and satisfactory record but also to instruct and supervise its employees, promulgate proper rules and regulations and formulate and publish proper instructions for their guidance when necessary in order to avoid culpable negligence.26

3. Basis of Responsibility A. Failure to Maintain Standards of Care

In resolving issues involving violation of a contract of carriage and the corresponding liability of the common carriage Cangco vs. Manila Railroad Co., 38 Phil. 769; De Guia vs. Manila Electric Co., 40 Phil. 760.

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21 San Jose vs. Cebu Autobus Co., L-6155, April 30, 1954; Lasam vs. Smith, 45 Phil. 657.

22 Davao Gulf Lumber Corp. vs. Baens del Rosario, L-15978, December 29,1960.

23 Laguna Tayabas Bus Co. vs. Cornista, et. al:, L-22193, May 29,1964,11 SCRA 181, 182.

24 Carf vs. Medel, 33 Phil. 37.

25 Cangco vs. Manila Railroad Co., 38 Phil. 769.

26 Yamada vs. Manila Railroad Co., 33 Phil. 8; Cerf vs. Medel, 33 Phil. 37.

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therefrom, the Supreme Court has recognized that the provisions of the Civil Code on this substantive question of liability are clear and explicit. In this regard, Article 1733 binds common carriers, "from the nature of their business and by reason of public policy, . . . to observe extraordinary diligence in the vigilance . . . for the safety of the passengers transported by them according to all the circumstances of each case". On the other hand, Article 1755 establishes the standard of care required of a common carrier, which is, "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". Furthermore, Article 1756 fixes the burden of proof by providing that "in case of death of or injuries to passengers, common carriers are presumed to have been at fault or to have acted negligently, unless they prove that they observed extraordinary diligence as prescribed in Articles 1733 and 1755". Finally, Article 1757 states that "the responsibility of a common carrier for the safety of passengers . . . cannot be dispensed with or lessened by stipulation, by the posting of notices, by statements on tickets, or otherwise".27

In the case of Davila, et. al. vs. Philippine Air Lines,28 whereby a presumption of negligence against the common carrier was upheld for its failure to satisfactorily explain how and why the accident occurred, the Supreme Court in declaring that the accident could be directly attributable to a violation of air-traffic rules cited the undisputed circumstance that the pilot did not follow the route prescribed for his flight by failing to intersect "airway "Ambler I" over Romblon and to maintain track within its designated airway lane for reasons unknown.29 Appropriately, common carriers are liable for the death of or injuries to passengers through the negligence or

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27 Davila, et. al. vs. Philippine Air Lines, L-28512, Feb. 28, 1973, 49 SCRA 497, 501.

28 L-28512, Feb. 28, 1973, 49 SCRA 497.

29 Davila, et. al. vs. Philippine Air Lines, L-28512, Feb. 28, 1973 49 SCRA 497, 503.

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wilful acts of the former's employees, although such employees may have acted beyond the scope of their authority or in violation of the orders of the common carriers.30

While the general rule is that negligence must be proved, however, 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 the contract of carriage, the carrier assumes the express obligation to transport the passenger to his destination safely and to observe extraordinary diligence with a due regard for all the circumstances, and any injury that might be suffered by the passenger is right away attributable to the fault or negligence of the carrier.31 Moreover, to overcome the presumption of fault or negligence, it must be shown that the carrier had observed the required extraordinary diligence,32 which means that the carrier must show the "utmost diligence of very cautious persons . . . as far as human care and foresight can provide"33 or that the accident was caused by a fortuitous event.34 B. Wilful Acts or Negligence of Other Passengers or Strangers

According to the New Civil Code, a common carrier is responsible for injuries suffered by a passenger on account of the wilful acts or negligence of other passengers or of strangers, if the common carrier's employees through the exercise of the diligence of a good father of a family could have prevented or stopped the act or omission.35 Thus, where a com-

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30 Article 1759, New Civil Code.

31 Batangas Transportation Co. vs. Caguimbal, et al, L-22985, Jan. 24, 1968, 22 SCRA 171, 176; Sy vs. Malate Taxicab & Garage, Inc., 102 Phil. 482.

32 Sy vs. Malate Taxicab & Garage, Inc., 102 Phil. 482.

33 Necesito, et. al. vs. Paras, 104 Phil. 75.

34 Estrada vs. Consolacion, et al, L-40948, June 29, 1976, 71 SCRA 523, 530; Lasam vs. Smith, 45 Phil. 657; Austria vs. Court of Appeals, 39 SCRA 527.

35 Article 1763, New Civil Code.

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mon carrier interposed the defense that an accident which caused injuries to passengers was caused by a non-employee who took the wheel of the vehicle from its authorized driver, the Supreme Court in overruling the defense cited in addition to the above-mentioned provisions of the New Civil Code a pertinent provision of the Motor Vehicles Law to the effect that no professional chauffeur shall permit any unlicensed person to drive the motor vehicle under his control, or permit a person, sitting beside him or in any other part of the car, to interf ere with him in the operation of the motor vehicle, by allowing said person to take hold of the steering wheel, or in any other manner take part in the manipulation or control of the car.36 4. Defenses Against Liability A. Exercise of Ex traordinary Diligence

When a passenger dies or is injured, the presumption is that the common carrier is at fault or that it acted negligently. This presumption is only rebutted by proof on the carrier's part that it observed the "extraordinary diligence" required in Article 1733 and the utmost diligence of very cautious persons" required in Article 1755.37 Thus, in a case where a lower court considered the presumption rebutted on the strength of defendant-appellant's evidence that only the day before the accident the cross-joint in question was duly inspected and found to be in order, the Supreme Court in reversing the lower court's conclusion considered that the carrier did not give due regard to all the circumstances in connection with the said inspection when it failed to consider that the entire bus, including its mechanical parts, would naturally be taxed more heavily than it would be under ordinary circumstances because of the moun-

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36 Manila Railroad Co. vs. Ballesteros, et. al., L-19161, April 29, 1966, 16 SCRA 641,644 citing Sec. 48 (h) of the Motor Vehicles Law.'

37 Landingin, et. al. vs. Pangasinan Transportation Co., et al L-28014-15, May 29, 1970, 33 SCRA 284, 289.

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tainous, circuitous and ascending roads that it would be traversing when heavily laden with passengers. Appropriately, the Supreme Court stressed that the mere fact that the bus was inspected only recently and f ound to be in order would not exempt the carrier from liability unless it is shown that the particular circumstances under which the bus would travel were also considered.38 Neither is the presumption of negligence against the carrier rebutted by a proof that the driver of the other vehicle involved in a collision was of greater negligence under the doctrine of last clear chance as the Supreme Court has ruled that the doctrine of last clear chance does not apply where a passenger demands responsibility from the carrier to enforce its contractual obligation for it would be inequitable to exempt the negligent driver and owner of the common carrier on the ground that the other driver was likewise guilty of negligence.39

The exercise of extraordinary diligence for the safety of passengers of a common carrier has been considered qualified by the phrase "according to all the circumstances of each case". Thus, in a claim for injury caused by a firecracker explosion from a package brought in the common carrier by another passenger, the requirement for the exercise of extraordinary diligence has been considered complied with by the fact that before the box containing the firecrackers were allowed to be loaded in the bus by the conductor, inquiry was made with the passenger carrying the same as to what was in it, as fairness demands that in measuring a common carrier's duty towards its passengers, allowance must be

given to the reliance that should be reposed on the sense of responsibility of all the passengers in regard to their common safety. In this regard, the Supreme Court declared that it is to be presumed that a passenger will not take with him anything dangerous to the lives and limbs of his co-passengers, not to speak of his own, so

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38 Landingin, et. al. vs. Pangasinan Trans. Co., et. al., L-2801415, May 29, 1970, 33 SCRA 284, 289-290.

39 Anuran, et. al. vs. Buo, et. al, L-21353 & 21354, May 20, 1966, 17 SCRA 224, 227.

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that inquiry may be verbally made as to the nature of a passenger's baggage, since he cannot be subject to any unusual search when he protests the innocuousness of his baggage and nothing appears to indicate the contrary.40 B. Fortuitous Events

The Supreme Court has recognized that if an accident that caused the death or injury to a passenger was caused by a fortuitous event the presumption of

negligence against the common carrier has been overcome.41 In this regard, in order to constitute a case fortuito that would exempt a person from responsibility, it is necessary that the event must be independent of the human will, the occurrence must render it impossible for the obligor to fulfill his obligation in a normal manner, and the obligor must be free of a concurrent or contributory fault or negligence.42 Thus, where a common carrier submitted proof to show that the proximate and only cause of the accident that resulted in the death of a passenger was the negligence of a third person whose vehicle collided with the common carrier and over whom the common carrier's owner had no supervision and control, the Supreme Court has recognized that the presumption of negligence against the common carrier has been overcome. On the other hand, it is incumbent upon the complainant to rebut the common carrier's prima facie evidence of fortuitous event and failure of complainant to do so would result in the acceptance of the common carrier's defense that the proximate cause of the accident was a fortuitous event to which its driver has no concurrent or con-

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40 Nocum vs. Laguna Tayabas Bus Co., L-23733, Oct. 31, 1969, 30 SCRA 69, 74.

41 Estrada vs. Consolacion, et. al., L-40948, June 29, 1976, 71 SCRA 523, 530; Austrial vs. Court of Appeals, 39 SCRA 527; Lasam vs. Smith, 45 Phil. 657.

42 Austrial vs. Court of Appeals, 39 SCRA 527; Sy vs. Malate Taxicab & Garage, Inc., 102 Phil. 482; Lasam vs. Smith, 45 Phil. 657; Tan Chiong vs. Inchausti, 22 Phil. 152.

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tributory negligence or fault.43 It must be remembered that except in cases expressly specified by the law, or when it is otherwise declared by stipulation or when the nature of the obligation requires the assumption of risk, no person shall be responsible for those events which could not be foreseen, or which, though foreseen, were inevitable.44

o0o

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43 Estrada vs. Consolacion, et. al., L-40948, June 29, 1976, 71 SCRA 523, 530.

44 Article 1174, New Civil Code. [Extraordinary Diligence of Common Carriers in the Transport of Passengers, 106 SCRA 414(1981)]

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