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FIRST DIVISION

[G.R. No. 19495. February 2, 1924.] HONRION LASAM ET AL., plaintiffs-appellants, vs. FRANK SMITH, jr., defendantappellant.

Palma & Leuterion for plaintiffs-appellant. Mariano Alisngco for defendant-appellant.


SYLLABUS 1.DAMAGES; CONTRACT OF CARRIAGE OF PASSENGERS; BREACH OF CONTRACT. Defendant, the owner of a public garage, under took to convey the plaintiffs by automobile from San Fernando, La union, to Currimao, Ilocos Norte. While on the way to result of which the plaintiffs were injured. Held: That the action for damages articles 11011107 of the Civil Code, and not article 1903, were applicable. 2.ID.; ID.; FORTUITOUS EVENT. The expression "events which cannot be foreseen and which having been foreseen, are inevitable" is synonymous with the term "fortuitous event" of which some extraordinary circumstance independent of the will of the obligor, or of his employees, is one of the essential elements. 3.ID.; ID.; CARRIER OF PASSENGERS NOT AN INSURER AGAINST ALL RISKS. Neither under American nor Spanish law is a carrier of passengers an absolute insurer against the risks of travel from which the passenger may protect himself by exercising due care and diligence. 4.DAMAGES; CONTRACT, NEGLIGENCE IN FULFILLMENT . In determining the extent of the liability for losses or damages resulting the courts have a discretionary power to moderate the liability according to the circumstance (Civil Code article 1103; De Guia vs. Manila Electric Railroad & Light Co., 40 Phil., 766.) DECISION OSTRAND, J :
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The plaintiffs are husband and wife and this action is brought to recover damages in the sum of P20,000 for physical injuries sustained by them in an automobile accident. The trial court rendered a judgment in their favor for the sum of P1,254.10, with legal interest

from the date of the judgment. Both the plaintiffs and the defendant appeal, the former maintaining that the damages awarded are insufficient while the latter denies all liability for any damages whatever. It appears from the evidence that on February 27, 1918, the defendant was of San Fernando, La Union, and engaged in the business of carrying passengers for hire from one point to another in the Province of La Union and the surrounding provinces. On the date mentioned, he undertook to convey plaintiff from San Fernando to Currimao, Ilocos Norte, in a Ford automobile. On leaving San Fernando, the automobile was operated by a licensed chauffeur, but after having reached the town of San Juan, the chauffeur allowed his assistant, Remigio Bueno, to drive the car. Bueno held to driver's license, but had some experience in driving, and with the exception of some slight engine trouble while passing through the town of Luna, the car functioned well until after the crossing of the Abra River in Tagudin, when, according to the testimony of witnesses for the plaintiffs, defects developed in the steering gear so as to make accurate steering impossible, and after zigzagging for a distance of about half a kilometer, the car left the road and went down a steep embankment. The defendant, in his testimony, maintains that there was no defect in the steering gear, neither before nor after the accident, and expresses the opinion that the swaying or zigzagging of the car must have been due to its having been driven at an excessive rate of speed. This may possibly be true, but it is, from our point of view, immaterial whether the accident was caused by negligence on the part of the defendant's employees, or whether it was due to the same in either event. In going over the bank of the road, the automobile was overturned and the plaintiffs pinned down under it. Mr. Lasam escaped with a few contusions and a "dislocated" rib, but his wife, Joaquina Sanchez, received serious injuries, among which was a compound fracture of one of the bones in her left wrist. She also appears to have suffered a nervous breakdown from which she had not fully recovered at the time of the trial. The complaint in the case was filed about a year and a half after the occurrence above related. It alleges, among other things, that the accident was due to defects in the automobile as well as to the incompetence and negligence of the chauffeur, and the case appears to have been tried largely upon the theory that it sounds in tort and that the liability of the defendant is governed by article 1903 of the Civil Code. The trial court held, however, that the cause of action rests on the defendant's breach of the contract of carriage and that, consequently, articles 1101-1107 of the Civil Code, and not article 1903, are applicable. The court further found that the breach of the contract was not due to fortuitous events and that, therefore, the defendant was liable in damages. In our opinion, the conclusions of the court below are entirely correct. That upon the facts stated the defendant's liability, if any, is contractual, is well settled by previous decisions of the court, beginning with the case of Rakes vs. Atlantic, Gulf & Pacific Co. (7 Phil., 359), and the distinction between extra-contractual liability and contractual liability has been so ably and exhaustively discussed in various other cases, that nothing further need here be said upon that subject. (See Cangco vs. Manila Railroad Co. 38 Phil., 768; Manila Railroad Co. Compania Trasatlantica and Atlantic, Gulf & Pacific Co., 38 Phil., 875; De Guia

vs. Manila Electric Railroad & Light source of the defendant's legal liability is the contract of carriage; the by entering into that contract he bound himself to carry the plaintiffs safely and securely to their destination; and that having failed to do so he is liable in damages unless he shows that the failure to fulfill his obligation was due to causes mentioned in article 1105 of the Civil Code, which reads as follows:
"No one shall be liable for events which could not be foreseen or which, even if foreseen, were inevitable, with the exception of the cases in which the law expressly provides otherwise and those in which the obligation itself imposes such liability."

This brings us to the principal question in the case: What is meant by "events which cannot be foreseen and which having been foreseen, are inevitable?" The Spanish authorities regard the language employed as an effort to define the term caso fortuito and hold that the two expressions are synonymous. (Manresa, Comentarios al Co Civil Espaol, vol. 8, pp. 88 et seq.; Scaevola, Codigo Civil, vol. 19, pp. 526 et seq.) The antecedent to article 1105 is found in Law 11, Title 33, Partida 7, which defines caso fortuito as "ocasion que acaese por aventura deque non se puede ante ver. E son estos, derrivamientos de casas e fuego que se enciende so ora, e quebrantamiento de navio, fuerca de ladrones. . . . ( An event that takes place by accident and could not have been foreseen, Examples of this are destruction of houses, unexpected fire, shipwreck, violence of robbers. . . .)" Escriche defines caso fortuito as "an unexpected event such as floods, torrents, shipwrecks, conflagrations, lightning, compulsion, insurrections, destruction of buildings by unforeseen accidents and other occurrences of a similar nature." In discussing and analyzing the term caso fortuito the Enciclopedia Juridica Espaola says: " In a legal sense and, consequently, also in relation to contracts, a caso fortuito presents the following essential characteristics: (1) The cause of the unforeseen and unexpected occurrence, or of the failure of the debtor to comply with his obligation, must be independent of the human will. (2) It must be impossible to foresee the event which constitutes the caso fortuito, or if it can be foreseen, it must be impossible to avoid. (3) The occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a normal manner. And (4) the obligor (debtor) must be free from any participation in the aggravation of the injury resulting to the creditor." (5 Enciclopedia Juridica Espaola, 309.) As will be seen, these authorities agree that some extraordinary circumstance independent of the will of the obligor, or of his employees, is an essential element of a caso fortuito. Turning to the present case, it is at once apparent that this elements is lacking. It is not suggested that the accident in question was due to an act of God or to adverse road conditions which could not have been foreseen. As far as the record shows, the accident was caused either by defects in the automobile or else through the negligence of its driver. That is not a caso fortuito. We agree with counsel that neither under the American nor Spanish law is a carrier of passengers an absolute insurer against the risks of travel from which the passenger may protect himself by exercising ordinary care and diligence. The case of Alba vs. Sociedad Anonima de Tranvias,Jurisprudencia Civil, vol. 102, p. 928, cited by the defendant in support

of his contentions, affords a good illustration of the application of this principle. In that case Alba, a passenger on a street car, was standing on the platform of the car while it was in motion. The car rounded a curve causing Alba to lose his balance and fall off the platform, sustaining sever injuries. In an action brought by him to recover damages, the supreme court of Spain held that inasmuch as the car at the time of the accident was travelling at a moderate rate of speed and there was no infraction of the regulations, and the plaintiff was exposed to no greater danger than that inherent in that particular mode of travel, the plaintiff could not recover, especially so since he should have been on his guard against a contingency as natural as that of losing his balance to a greater or less extent when the car rounded the curve. But such is not the present case; here the passengers had no means of avoiding the danger or escaping the injury. The plaintiffs maintain that the evidence clearly establishes that they are entitled to damages in the sum of P7,832.80 instead of P1,254.10 as found by the trial court, and their assignments of error relate to this point only. There can be no doubt that the expenses incurred by the plaintiffs as a result of the accident greatly exceeded the amount of the damages awarded. But bearing in mind that in determining the extent of the liability for losses or damages resulting from negligence in the fulfillment of a contractual obligation, the courts have " a discretionary power to moderate the liability according to the circumstances" (De Guia vs. Manila Electric Railroad & light Co., 40 Phil., 706 Phil; art. 1103, Civil Code), we do not think that the evidence is such as to justify us in interfering with the discretion of the court below in this respect. As pointed out by that court in its well-reasoned and well considered decision, by far the greater part of the damages claimed by the plaintiffs resulted from the fracture of a bone in the left wrist of Joaquina Sanchez and from her objections to having a decaying splinter of the bone refusal to submit to such an operation, a series of infections ensued and which required constant and expensive medical treatment for several years. We agree with the these expenses. For the reasons stated, the judgment appealed from is affirmed, without costs in this instance. So ordered.

Araullo, C. J., Street, Malcolm, Johns, and Romualdez, JJ., concur.


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