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247. JUNIO and SOLORIA v.


DRIVER'S NEGLIGENCE. Although the question of whether or not
the negligence of a driver who collides with a train is imputable to
the appellants herein so as to bar them from the right to recover an
indemnity for damages occasioned by the accident, is, perhaps,
raised in this jurisdiction for the first time, it is, nevertheless, a well-
recognized principle of law that said negligence on the part of the
driver who, in turn, is found guilty of contributory negligence,
cannot be imputed to his passengers who had exercised no control
over him in the management of the vehicle, and with whom he
sustains no relation of master and servant. This rule is applied more
strictly when, as in the present case, cars for hire or those dedicated
to public service are involved.

At about 11 o'clock in the evening, the plaintiffs (Junio and
Soloria) herein with some other persons were traveling in a PU-Car
on the road between Calasiao and Santa Barbara. When they
arrived at the intersection of the road and the defendant's railway,
the car tried to cross the track and collided with the engine of the
night express which left Dagupan for Manila at 11 o'clock that same
night and which was then passing over the crossing in question at
great speed. As a result of the collision, the car was thrown some
distance, plaintiff Junio's right leg was amputated and her right arm
fractured, and Soloria received various injuries on her head.

The aforementioned crossing is situated in the town of
Calasiao and the same is presumed to be dangerous due to the fact
that gates were required at that crossing. On the night of the
accident, the gates were not lowered and there was no notice to
the effect that they were not operated at night or that they were
temporarily out of order. However, a notice that it is a railroad
crossing was there.

The evidence also shows that the car driven by the
chauffeur, Pedro Talbo, was an old Ford bearing number plates PU-
3636, which meant that it was a hired car while the appellants were
passengers who took the car in Bayambang and were bound for
Asingan, via Dagupan..

Whether the driver's negligence is imputable to the passengers so
as to bar them from the right to recover damages suffered by them
by reason of the accident?

NO. They are mere passengers who have no control over the acts of
the driver, thus, no contributory negligence can be imputed unto

From the evidence, it is obvious that the defendant as well
as the driver of the car in which the plaintiffs were passengers were
negligent, the former because, by installing the gates at the place or
crossing where the accident occurred, it had voluntarily imposed
upon itself the obligation to operate them even at night and to close
them every time a train passed in order to avoid causing injury to
the public. It has been said that the gates constitute an invitation to
the public to pass without fear of danger, and failure to operate
them conveniently constitutes negligence on the part of the

The driver was, likewise, negligent because he did not
comply with his duty to slacken the speed of the car and to "look
and listen" before crossing the intersection and, above all, because
he did not maintain a reasonable speed so as to permit him to stop
any moment if it were necessary in order to avoid an accident. If, in
the present case, the car had been running at a reasonable speed,
there is no doubt that he could have stopped it \instantly upon
seeing the train from a distance of five meters. (See doctrine)

The general rule is that the negligence of the driver of a
vehicle is not to be imputed to an occupant thereof who is injured
at a crossing through the combined negligence of the driver and the
railroad company when such occupant is without fault and has no
control over the driver.

There is nothing of record to show that the appellants
herein have incurred in any negligence imputable to them and we
do not see any reason whatsoever why they should be made
responsible for the driver's negligence and it should be held that the
appellants herein are entitled to recover from the appellee damages
occasioned by the accident of which they were victims.

Damages; Evidence; The amount representing profits which
damaged party failed to realize must be proved by the best
evidence.- Average actual profits of other trucks of respondent
should have been presented rather than a mere estimate on "if-not-
were-hired" basis Applying the foregoing test to the instant case,
we find the evidence of the respondent insufficient to be
considered within the purview of "best evidence." The bare
assertion of the respondent that he lost about P54,000.00 and the
accompanying documentary evidence presented to prove the
amount lost are inadequate if not speculative. The document itself
merely shows that everytime a truck travels, Mr. Yaptinchay earns
P369.88. This amount is then multiplied by the number of trips
which the truck was allegedly unable to make. The estimates were
prepared by a certain Dionisio M. Macasieb whose identity was not
even revealed by the respondent. Mr. Yaptinchay was in the freight
truck business. He had several freight trucks among them the truck
with the subject Fordson diesel engine, covering the route from
Manila to Baguio. To prove actual damages, it would have been easy
to present the average actual profits realized by the other freight
trucks plying the Manila-Baguio route. With the presentation of
such actual income the court could have arrived with reasonable
certainty at the amount of actual damages suffered by the
respondent. We rule that the award of actual damages in the
amount of P54,000.08 is not warranted by the evidence on record.

Appellant G.A. Machineries, Inc. (GAMI), through its agent, sold
to Appellee Horacio Yaptinchay, owner of the freight hauling
business styled Hi-Way Express a Fordson Diesel Engine at the
price of P7,590.00. This was subject to the representation relied
upon by appellant that the engine was brand new.

Within the week after its delivery, the engine started to have a
series of malfunctions which necessitated successive trips to GAMIs
repair shop. However, the malfunctioning persisted. On inspection,
Yaptinchays mechanic noticed a worn out screw which made
Yaptinchay suspicious about the age of the engine. He then wrote
GAMI a letter protesting that the engine was not brand-new as
After the repeatedly recurring defects and continued failure of
GAMI to put the engine in good operating condition, Yaptinchay
sought the assistance of PC Criminal Investigation Service to check
on the authenticity of the serial number of the engine. Tests
revealed that the original motor number of the engine was
tampered. Further inquiries from the Manila Trading Company
disclosed that, unlike Yaptinchays engine whose body and injection
pump were painted with 2 different colors, brand-new engines are
painted with only 1 color all over.

Yaptinchay made demands for indemnification for damages
and eventually instituted the present suit.
GAMI interposed prescription of the action, denied the
imputation of misrepresentation, and disputed the propriety and
amount of damages claimed.
TC ruled in favor of Yaptinchay, ordering GAMI to pay actual
damages of P54,000.48. CA affirmed.

WON the award of damages was justified considering the evidence
on record?

NO. The award of actual damages is not warranted by the
evidence on record.
The engine delivered was not brand-new. GAMI committed
a breach of contract. The misrepresentation of the quality of the
engine is tantamount to fraud or bad faith. The return of the
purchase price with legal interest from the date of purchase is
The fact that the defendant does not dispute the amount of
this kind of damages does not necessarily imply that the other party
outright is entitled to the award of damages.

Article 2200 of the Civil Code entitles the respondent to
recover as compensatory damages not only the value of the loss
suffered but also prospective profits. Article 2201 entitles the
respondent to recover all damages which may be attributed to the
non-performance of the obligation. However, in order to recover
this kind of damages, plaintiff must prove his case. The injured
party must produce the best evidence of which his case is
susceptible and if that evidence warrants the inference that he has
been damaged by the loss of profits which he might with
reasonable certainty have anticipated but for the defendants
wrongful act, he is entitled to recover.

In this case, the award of actual damages of P54,000.88
covers the probable income which respondent failed to realize
because of the breach of contract. However, the evidence
presented is insufficient to be considered within the purview of
best evidence. The document merely shows that every time a truck
travels, Yaptinchay earns P369.88. This is multiplied by the number
of trips which the truck was unable to make. To prove actual
damages, it would have been easy to present the average actual
profits realized by the other freight trucks plying the Manila-Baguio
route. The award of actual damages is deleted.