G.R. No. L-56487 October 21, 1991 REYNALDA GATCHALIAN, petitioner, vs. ARSENIO DELIM and the HON. COURT OF APPEALS, respondents.

Pedro G. Peralta for petitioner. Florentino G. Libatique for private respondent. FELICIANO, J.:p At noon time on 11 July 1973, petitioner Reynalda Gatchalian boarded, as a paying passenger, respondent's "Thames" mini bus at a point in San Eugenio, Aringay, La Union, bound for Bauang, of the same province. On the way, while the bus was running along the highway in Barrio Payocpoc, Bauang, Union, "a snapping sound" was suddenly heard at one part of the bus and, shortly thereafter, the vehicle bumped a cement flower pot on the side of the road, went off the road, turned turtle and fell into a ditch. Several passengers, including petitioner Gatchalian, were injured. They were promptly taken to Bethany Hospital at San Fernando, La Union, for medical treatment. Upon medical examination, petitioner was found to have sustained physical injuries on the leg, arm and forehead, specifically described as follows: lacerated wound, forehead; abrasion, elbow, left; abrasion, knee, left; abrasion, lateral surface, leg, left. 1 On 14 July 1973, while injured. passengers were confined in the hospital, Mrs. Adela Delim, wife of respondent, visited them and later paid for their hospitalization and medical expenses. She also gave petitioner P12.00 with which to pay her transportation expense in going home from the hospital. However, before Mrs. Delim left, she had the injured passengers, including petitioner, sign an already prepared Joint Affidavit which stated, among other things: That we were passengers of Thames with Plate No. 52-222 PUJ Phil. 73 and victims after the said Thames met an accident at Barrio Payocpoc Norte, Bauang, La Union while passing through the National Highway No. 3; That after a thorough investigation the said Thames met the accident due to mechanical defect and went off the road and turned turtle to the east canal of the road into a creek causing physical injuries to us; xxx xxx xxx That we are no longer interested to file a complaint, criminal or civil against the said driver and owner of the said Thames, because it was an accident and the said driver and owner of the said Thames have gone to the extent of helping us to be treated upon our injuries. xxx xxx xxx 2 (Emphasis supplied) Notwithstanding this document, petitioner Gathalian filed with the then Court of First Instance of La Union an action extra contractu to recover compensatory and moral damages. She alleged in the complaint that her injuries sustained from the vehicular mishap had left her with a conspicuous white scar measuring 1 by 1/2 inches on the forehead, generating mental suffering and an inferiority complex on her part; and that as a result, she had to retire in seclusion and stay away from her friends. She also alleged that the scar diminished her facial beauty and deprived her of opportunities for employment. She prayed for an award of: P10,000.00 for loss of employment and other opportunities; P10,000.00 for the cost of plastic surgery for removal of the scar on her forehead; P30,000.00 for moral damages; and P1,000.00 as attorney's fees. In defense, respondent averred that the vehicular mishap was due to force majeure, and that petitioner had already been paid and moreover had waived any right to institute any action against him (private respondent) and his driver, when petitioner Gatchalian signed the Joint Affidavit on 14 July 1973. After trial, the trial court dismissed the complaint upon the ground that when petitioner Gatchalian signed the Joint Affidavit, she relinquished any right of action (whether criminal or civil) that she may have had against respondent and the driver of the mini-bus. On appeal by petitioner, the Court of Appeals reversed the trial court's conclusion that there had been a valid waiver, but affirmed the dismissal of the case by denying petitioner's claim for damages: We are not in accord, therefore, of (sic) the ground of the trial court's dismissal of the complaint, although we conform to the trial court's disposition of the case — its dismissal. IN VIEW OF THE FOREGOING considerations, there being no error committed by the lower court in dismissing the plaintiff-appellant's complaint, the judgment of dismissal is hereby affirmed. Without special pronouncement as to costs. SO ORDERED. 3 In the present Petition for Review filed in forma pauperis, petitioner assails the decision of the Court of Appeals and ask this Court to award her actual or compensatory damages as well as moral damages. We agree with the majority of the Court of Appeals who held that no valid waiver of her cause of action had been made by petitioner. The relevant language of the Joint Affidavit may be quoted again: That we are no longer interested to file a complaint, criminal or civil against the said driver and ownerof the said Thames, because it was an accident and the said driver and owner of the said Thames have gone to the extent of helping us to be treated upon our injuries. (Emphasis supplied) A waiver, to be valid and effective, must in the first place be couched in clear and unequivocal terms which leave no doubt as to the intention of a person to give up a right or benefit which legally pertains to him. 4 A waiver may not casually be attributed to a person when the terms thereof do not explicitly and clearly evidence an intent to abandon a right vested in such person. The degree of explicitness which this Court has required in purported waivers is illustrated in Yepes and Susaya v. Samar Express Transit (supra), where the Court in reading and rejecting a purported waiver said: . . . It appears that before their transfer to the Leyte Provincial Hospital, appellees were asked to sign as, in fact, they signed the document Exhibit I wherein they stated that "in consideration of the expenses which said operator has incurred in properly giving us the proper medical treatment, we hereby manifest our desire to waive any and all claims against the operator of the Samar Express Transit." xxx xxx xxx

A common carrier is bound to carry its passengers safely" as far as human care and foresight can provide. we must construe any such purported waiver most strictly against the common carrier. or of the failure of the debtor to comply with his obligation. Philippine Steam Navigation Company. 7 In case of death or injuries to passengers. and hence gross negligence on the part of respondent and his driver. The obvious continued failure of respondent to look after the roadworthiness and safety of the bus. an old woman. having been in the hospital for only three days. we would have to conclude that the terms of the Joint Affidavit in the instant case cannot be regarded as a waiver cast in "clear and unequivocal" terms. using the utmost diligence of a very cautious person. she experienced dizziness but that.e. during the trial before the court a quo. "What happened?" ("Apay addan samet nadadaelen?"). the carrier must clearly show not only that the efficient cause of the casualty was entirely independent of the human will. cried out. where fortuitous event or force majeure is the immediate and proximate cause of the loss. We have already noted that a duty to exercise extraordinary diligence in protecting the safety of its passengers is imposed upon a common carrier. But allegation is not proof and here again. 11 Thus." 8 In fact. Any participation by the common carrier in the occurrence of the injury will defeat the defense of force majeure. Considering these circumstances there appears substantial doubt whether petitioner understood fully the import of the Joint Affidavit (prepared by or at the instance of private respondent) she signed and whether she actually intended thereby to waive any right of action against private respondent. constituted wanton disregard of the physical safety of the passengers. Upon the other hand. The first item in that claim relates to revenue which petitioner said she failed to realize because of the effects of the vehicular mishap. 6 We believe such a purported waiver is offensive to public policy. The driver replied. it has been held that a court need not even make an express finding of fault or negligence on the part of the common carrier in order to hold it liable. i. it must not be contrary to law. Moreover. coupled with the driver's refusal or neglect to stop the mini-bus after he had heard once again the "snapping sound" and the cry of alarm from one of the passengers. Petitioner maintains that on the day that the mini-bus went off the road. also in relation to contracts. the question which must be addressed is whether or not private respondent has successfully proved that he had exercised extraordinary diligence to prevent the mishap involving his mini-bus. and (4) the obligor must be free from any participation in the aggravation of the injury resulting to the creditor. because of this statutory presumption. One of the passengers. but also that it was impossible to avoid. 9 To overcome this presumption. shipwreck. Moreover. the obligor is exempt from liability non-performance. the record yields affirmative evidence of fault or negligence on the part of respondent common carrier. would be to dilute and weaken the standard of extraordinary diligence exacted by the law from common carriers and hence to render that standard unenforceable. because what is involved here is the liability of a common carrier for injuries sustained by passengers in respect of whose safety a common carrier must exercise extraordinary diligence.. she too signed without bothering to read the Joint Affidavit in its entirety. InServando v. under circumstances like those exhibited in this case. 10 The standard of extraordinary diligence imposed upon common carriers is considerably more demanding than the standard of ordinary diligence. the driver's reply necessarily indicated that the same "snapping sound" had been heard in the bus on previous occasions.Even a cursory examination of the document mentioned above will readily show that appellees did not actually waive their right to claim damages from appellant for the latter's failure to comply with their contract of carriage. petitioner Gatchalian narrated that shortly before the vehicle went off the road and into a ditch. In its dissertation on the phrase "caso fortuito" the Enciclopedia Juridica Española says: 'In legal sense and. We turn to petitioner's claim for damages. The driver did not stop to check if anything had gone wrong with the bus. Finally. it must be impossible to avoid. consequently. the circumstances under which the Joint Affidavit was signed by petitioner Gatchalian need to be considered. she was supposed to confer with the district supervisor of public schools for a substitute teacher's job. having by majority vote held that there was no enforceable waiver of her right of action. respondent did not even attempt. violence of robber. a statutory presumption arises that the common carrier was at fault or had acted negligently "unless it proves that it [had] observed extraordinary diligence as prescribed in Articles 1733 and 1755. defines "caso fortuito" as 'an event that takes place by accident and could not have been foreseen. 1887) — which is not the case of the one relied upon in this appeal. The records before the Court are bereft of any evidence showing that respondent had exercised the extraordinary diligence required by law. All that said document proves is that they expressed a "desire" to make the waiver — which obviously is not the same as making an actual waiver of their right. with due regard to all the circumstances". (Emphasis supplied) If we apply the standard used in Yepes and Susaya. Examples of this are destruction of houses. the common carrier must slow to the court that it had exercised extraordinary diligence to prevent the injuries. 12 the Court summed up the essential characteristics of force majeure by quoting with approval from the Enciclopedia Juridica Española: Thus. Curiously. morals. Respondent did try to exculpate himself from liability by alleging that the mishap was the result of force majeure. to prove that he had indeed exercised the requisite extraordinary diligence. that while reading the same. seeing the other passengers who had also suffered injuries sign the document. A waiver of the kind invoked by appellant must be clear and unequivocal (Decision of the Supreme Court of Spain of July 8. To exempt a common carrier from liability for death or physical injuries to passengers upon the ground of force majeure. a "snapping sound" was suddenly heard at one part of the bus." The Court of . Petitioner testified that she was still reeling from the effects of the vehicular accident. The Partidas. a "caso fortuito" presents the following essential characteristics: (1) the cause of the unforeseen and unexpected occurence. (3) the occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner. This could only mean that the bus had not been checked physically or mechanically to determine what was causing the "snapping sound" which had occurred so frequently that the driver had gotten accustomed to it. Such a sound is obviously alien to a motor vehicle in good operating condition. must be independent of the human will. and even a modicum of concern for life and limb of passengers dictated that the bus be checked and repaired. a job which she had held off and on as a "casual employee. the antecedent of Article 1174 of the Civil Code. unexpected fire. public policy or good customs. respondent utterly failed to substantiate his defense of force majeure. should have awarded her actual or compensatory and moral damages as a matter of course. the diligence of a good paterfamilias established in respect of the ordinary relations between members of society. when the purported waiver in the form of the Joint Affidavit was presented to her for signing. Petitioner Gatchalian also argues that the Court of Appeals. nonchalantly. or if it can be foreseen. "That is only normal" ("Ugali ti makina dayta"). For a waiver to be valid and effective. In her direct examination. 5 To uphold a supposed waiver of any right to claim damages by an injured passenger. (2) it must be impossible to foresee the event which constitutes the "caso fortuito".

the surgical removal of the scar on the face of a young boy who had been injured in a vehicular collision. is a violation of bodily integrity. The damage to the jaw and the existence of the scar in Benjamin Araneta's face are physical facts that can not be reasoned out of existence. 15 this Court awarded actual or compensatory damages for.000. however. A person is entitled to the physical integrity of his or her body. In allowing not more than P1. Petitioner Gatchalian is entitled to be placed as nearly as possible in the condition that she was before the mishap.00. . found that at the time of the accident.000. surgical intervention was needed. she had been laid off.000. contingent upon the availability of vacancies for substitute teachers. or even his negligence. Still.000. .00 as compensation for the "permanent deformity and — something like an inferiority complex" as well as for the "pathological condition on the left side of the jaw" caused to said plaintiff. and 3) P1. the aggregate amount to bear interest at the legal rate of 6% per annum counting from the promulgation of this decision until full payment thereof. a finding entitled to due respect from this Court. however. 2) P30. is never equivalent to the original state. In view of her employment status as such. taking into account the necessity and cost of corrective measures to fully repair the damage. Diño. the operation. we consider that the amount of P15.000.000. If the scar is relatively small and does not grievously disfigure the victim. .Furthermore.00 to P10. and she may not be awarded damages on the basis of speculation or conjecture.00 to P15. et al.00 would be a reasonable award.000. being a casual employee and not a Civil Service eligible. skillfully conducted. the long-established rule is that moral damages may be awarded where gross negligence on the part of the common carrier is shown. Areglado.Appeals. 17 In view of this testimony. a witness presented as an expert by petitioner. Fe Tayao Lasam. the Decision of the Court of Appeals dated 24 October 1980. et al. is another matter. petitioner must be held entitled to such moral damages. Petitioner Gatchalian has not submitted any basis for overturning this finding of fact. That the injury should be treated in order to restore him as far as possible to his original condition is undeniable.the pain suffered by the injured party. 13 Such was the factual finding of the Court of Appeals. as well as the decision of the then Court of First Instance of La Union dated 4 December 1975 are hereby REVERSED and SET ASIDE. through his wife.00. Turning to petitioner's claim for moral damages. we are of the opinion that the indemnity granted by the trial court should be increased to a total of P18. giving raise to a legitimate claim for restoration to her conditio ante. and the fact that a considerable amount of time has lapsed since the mishap in 1973 which may be expected to increase not only the cost but also very probably the difficulty of removing the scar. and recalling the aggressive manuevers of respondent. as well as the voluntary character of the injury inflicted.000. SO ORDERED. 18 Since we have earlier concluded that respondent common carrier and his driver had been grossly negligent in connection with the bus mishap which had injured petitioner and other passengers.00.000. expenses and medicines. the cost of surgery may be expected to be correspondingly modest. Considering the extent of pain and anxiety which petitioner must have suffered as a result of her physical injuries including the permanent scar on her forehead. actual injury is suffered for which actual or compensatory damages are due and assessable.000.00. The father's delay.00 as attorney's fees. 14 Petitioner's claim for the cost of plastic surgery for removal of the scar on her forehead. A scar. xxx xxx xxx The father's failure to submit his son to a plastic operation as soon as possible does not prove that such treatment is not called for. for which the doctor's charges would amount to P3.000. . she was no longer employed in a public school since. and further considering that a repair. resulting from the infliction of injury upon her. according to Dr. testified that the cost would probably be between P5.00 as actual or compensatory damages to cover the cost of plastic surgery for the removal of the scar on petitioner's forehead. Costs against private respondent. 19 WHEREFORE. while removal of the scar on the face obviously demanded plastic surgery.00 to cover the cost of such plastic surgery is not unreasonable.Respondent is hereby ORDERED to pay petitioner Reynalda Gatchalian the following sums: 1) P15. should not be allowed to prejudice the son who has no control over the parent's action nor impair his right to a full indemnity. The Court there held: We agree with the appellants that the damages awarded by the lower court for the injuries suffered by Benjamin Araneta are inadequate. would probably have to be repeated in order to effectuate a complete cure. Dr.000. In Araneta. vs. (Emphasis supplied) Petitioner estimated that the cost of having her scar surgically removed was somewhere between P10. Her employment as a substitute teacher was occasional and episodic. among other things.00 as moral damages. the Court of Appeals held that she could not be said to have in fact lost any employment after and by reason of the accident. if that integrity is violated or diminished. the court below overlooked the clear evidence on record that to arrest the degenerative process taking place in the mandible and restore the injured boy to a nearly normal condition. 16 Upon the other hand. especially one on the face of the woman. we believe that the amount of P30. Petitioner's claim for P1. his feelings of inferiority due to consciousness of his present deformity. to get the victims to waive their right to recover damages even as they were still hospitalized for their injuries. exclusive of hospitalization fees..00 as atttorney's fees is in fact even more modest.000.

an LRT train. The LRTA would add that the appellate court’s conclusion on the existence of an employer-employee relationship between Roman and LRTA lacked basis because Roman himself had testified being an employee of Metro Transit and not of the LRTA.00 as actual damages. On 27 August 2000. LRTA and Roman filed a counterclaim against Navidad and a cross-claim against Escartin and Prudent. the appellate court promulgated its now assailed decision exonerating Prudent from any liability for the death of Nicanor Navidad and.00 as nominal damages. between the two. Instead."1 Prudent appealed to the Court of Appeals. a contract of carriage theretofore had already existed when the victim entered the place where passengers were supposed to be after paying the fare and getting the corresponding token therefor. "The compulsory counterclaim of LRTA and Roman are likewise dismissed. Nicanor Navidad. The appellate court denied petitioners’ motion for reconsideration in its resolution of 10 October 2000. J. the widow of Nicanor.830. the security guard assigned to the area approached Navidad. judgment is hereby rendered in favor of the plaintiffs and against the defendants Prudent Security and Junelito Escartin ordering the latter to pay jointly and severally the plaintiffs the following: "a) 1) Actual damages of P44.000. and Prudent for the death of her husband. "III. then drunk. supporting the decision of the appellate court. d) P50. entered the EDSA LRT station after purchasing a "token" (representing payment of the fare). viz: "I. along with her children. filed a demurrer contending that Navidad had failed to prove that Escartin was negligent in his assigned task. At the exact moment that Navidad fell. instead.R. On 11 August 1998. Junelito Escartin. Rodolfo Roman. "c) Attorney’s fees of P20. "d) Costs of suit. and e) P20. the following amounts: a) P44. Branch 266.000.00 as moral damages.00. 2003 LIGHT RAIL TRANSIT AUTHORITY & RODOLFO ROMAN. Heirs of the Late NICANOR NAVIDAD & PRUDENT SECURITY AGENCY. petitioners. respectively. Rodolfo Roman. the Metro Transit Organization.: The case before the Court is an appeal from the decision and resolution of the Court of Appeals. was an act of a stranger that could not have been foreseen or prevented. While Navidad was standing on the platform near the LRT tracks. DECISION VITUG. Pasig City. No evidence. Respondents. the trial court rendered its decision. In their present recourse. and he was killed instantaneously. JR." which has modified the decision of 11 August 1998 of the Regional Trial Court. Navidad was struck by the moving train. promulgated on 27 April 2000 and 10 October 2000. delivered the first blow or how Navidad later fell on the LRT tracks. denied liability and averred that it had exercised due diligence in the selection and supervision of its security guards. On 14 October 1993. CV No. (Metro Transit). "The complaint against defendants LRTA and Rodolfo Roman are dismissed for lack of merit. exonerating Prudent Security Agency (Prudent) from liability and finding Light Rail Transit Authority (LRTA) and Rodolfo Roman liable for damages on account of the death of Nicanor Navidad.G. holding the LRTA and Roman jointly and severally liable thusly: "WHEREFORE. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT PETITIONERS ARE LIABLE FOR THE DEATH OF NICANOR NAVIDAD. operated by petitioner Rodolfo Roman. the assailed judgment is hereby MODIFIED. the LRTA. contended that a contract of carriage was deemed created from the moment Navidad paid the fare at the LRT station and entered the premises of the latter. about half an hour past seven o’clock in the evening. The appellate court faulted petitioners for their failure to present expert evidence to establish the fact that the application of emergency brakes could not have stopped the train. appellees Rodolfo Roman and the Light Rail Transit Authority (LRTA) are held liable for his death and are hereby directed to pay jointly and severally to the plaintiffs-appellees. entitled "Marjorie Navidad and Heirs of the Late Nicanor Navidad vs.00 as indemnity for the death of the deceased. The LRTA and Roman presented their evidence while Prudent and Escartin. Petitioners would insist that Escartin’s assault upon Navidad." 3 Petitioners would contend that the appellate court ignored the evidence and the factual findings of the trial court by holding them liable on the basis of a sweeping conclusion that the presumption of negligence on the part of a common carrier was not overcome.000. was coming in. No. respondents. Prudent.000. which caused the latter to fall on the tracks. however. filed a complaint for damages against Junelito Escartin. 2) Compensatory damages of P443. "b) Moral damages of P50. in CA-G. Jr. in its answer. b) P50. In exempting Prudent from liability.00."2 The appellate court ratiocinated that while the deceased might not have then as yet boarded the train.00 as and for attorney’s fees. instead of presenting evidence. vs. petitioners recite alleged errors on the part of the appellate court. by exonerating the appellants from any liability for the death of Nicanor Navidad. 3) Indemnity for the death of Nicanor Navidad in the sum of P50. entitling Navidad to all the rights and protection under a ..00. 60720. it adjudged: "WHEREFORE. It said that Navidad failed to show that Escartin inflicted fist blows upon the victim and the evidence merely established the fact of death of Navidad by reason of his having been hit by the train owned and managed by the LRTA and operated at the time by Roman. al.R.000.520. On 08 December 1994.000. was adduced to indicate how the fight started or who. A misunderstanding or an altercation between the two apparently ensued that led to a fist fight.000. herein respondent Marjorie Navidad. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT RODOLFO ROMAN IS AN EMPLOYEE OF LRTA. 145804 February 6. c) P50. THE HONORABLE COURT OF APPEALS GRAVELY ERRED BY DISREGARDING THE FINDINGS OF FACTS BY THE TRIAL COURT "II. the court stressed that there was nothing to link the security agency to the death of Navidad. MARJORIE NAVIDAD.830.00. Inc. et.

4 The Civil Code. be described? It would be solidary. has not been duly proven x x x. the presumption would be that it has been at fault. common carriers are presumed to have been at fault or to have acted negligently.7 In case of such death or injury. the passenger is relieved of the duty to still establish the fault or negligence of the carrier or of its employees and the burden shifts upon the carrier to prove that the injury is due to an unforeseen event or to force majeure. There being.contractual relation.9 In the absence of satisfactory explanation by the carrier on how the accident occurred. In either case. he must also be absolved from liability.11 The foundation of LRTA’s liability is the contract of carriage and its obligation to indemnify the victim arises from the breach of that contract by reason of its failure to exercise the high diligence required of the common carrier. both from the nature of its business and for reasons of public policy. SO ORDERED. have failed to show. In case of death of or injuries to passengers. . Roman can be made liable only for his own fault or negligence.15 In fine. this Court is concluded by the factual finding of the Court of Appeals that "there is nothing to link (Prudent) to the death of Nicanor (Navidad). for the reason that the negligence of its employee. however. as well as perhaps the surviving spouse and heirs of the late Nicanor Navidad. Article 219414 of the Civil Code can well apply. no showing that petitioner Rodolfo Roman himself is guilty of any culpable act or omission. that liability could only be for tort under the provisions of Article 217612 and related provisions. and that the appellate court had correctly held LRTA and Roman liable for the death of Navidad in failing to exercise extraordinary diligence imposed upon a common carrier. thus. "This liability of the common carriers does not cease upon proof that they exercised all the diligence of a good father of a family in the selection and supervision of their employees. The liability is primary and can only be negated by showing due diligence in the selection and supervision of the employee." "Article 1763. A common carrier is bound to carry the passengers safely as far as human care and foresight can provide. and an independent contractor. according to the appellate court.10 an exception from the general rule that negligence must be proved. the contractual tie between the LRT and Navidad is not itself a juridical relation between the latter and Roman.19 WHEREFORE. with a due regard for all the circumstances. a carrier may choose to hire its own employees or avail itself of the services of an outsider or an independent firm to undertake the task.16 Stated differently. No costs. for the employer’s liability is negligence or fault on the part of the employee." "Article 1759. may be vindicated or recognized.17 Regrettably for LRT. if the common carrier’s employees through the exercise of the diligence of a good father of a fam ily could have prevented or stopped the act or omission. unless they prove that they observed extraordinary diligence as prescribed in articles 1733 and 1755.18 It is an established rule that nominal damages cannot co-exist with compensatory damages. The award of nominal damages in addition to actual damages is untenable. a factual matter that has not been shown. and8 by simple proof of injury. when an act which constitutes a breach of contract would have itself constituted the source of a quasi-delictual liability had no contract existed between the parties. a carrier is presumed to have been at fault or been negligent. which has been violated or invaded by the defendant. A contractual obligation can be breached by tort and when the same act or omission causes the injury. Absent such a showing. using the utmost diligence of very cautious persons.5 Such duty of a common carrier to provide safety to its passengers so obligates it not only during the course of the trip but for so long as the passengers are within its premises and where they ought to be in pursuance to the contract of carriage. provides: "Article 1755.6 The statutory provisions render a common carrier liable for death of or injury to passengers (a) through the negligence or wilful acts of its employees or b) on account of wilful acts or negligence of other passengers or of strangers if the common carrier’s employees through the exercise of due diligence could have prevented or stopped the act or omission. "Article 1756. Once such fault is established. a liability for tort may arise even under a contract. Nominal damages are adjudicated in order that a right of the plaintiff. Needless to say. the employer can then be made liable on the basis of the presumption juris tantum that the employer failed to exercise diligentissimi patris families in the selection and supervision of its employees. on the one hand. The premise. Law and jurisprudence dictate that a common carrier. Common carriers are liable for the death of or injuries to passengers through the negligence or willful acts of the former’s employees. which petitioners. and not for the purpose of indemnifying the plaintiff for any loss suffered by him. governing the liability of a common carrier for death of or injury to its passengers. In the discharge of its commitment to ensure the safety of passengers. the common carrier is not relieved of its responsibilities under the contract of carriage." This finding of the appellate court is not without substantial justification in our own review of the records of the case. the contract can be said to have been breached by tort." The law requires common carriers to carry passengers safely using the utmost diligence of very cautious persons with due regard for all circumstances. similarly. in conjunction with Article 2180. one resulting in culpa contractual and the other in culpa aquiliana. where tort is that which breaches the contract. the assailed decision of the appellate court is AFFIRMED with MODIFICATION but only in that (a) the award of nominal damages is DELETED and (b) petitioner Rodolfo Roman is absolved from liability. Escartin. how then must the liability of the common carrier. although such employees may have acted beyond the scope of their authority or in violation of the orders of the common carriers. one might ask further. on the other hand. A common carrier is responsible for injuries suffered by a passenger on account of the willful acts or negligence of other passengers or of strangers. is burdened with the duty of exercising utmost diligence in ensuring the safety of passengers. Should Prudent be made likewise liable? If at all.13 of the Civil Code. thereby allowing the rules on tort to apply.