B. OBLIGATIONS OF THE COMMON CARRIERS
Renato Arroyo], a public attorney,
324 Phil. 513
THIRD DIVISION
[ G.R. No. 118126, March 04, 1996 ]
TRANS-ASIA SHIPPING LINES, INC., PETITIONER, VS. COURT
OF APPEALS AND ATTY. RENATO T. ARROYO, RESPONDENTS.  After an hour of slow voyage, the vessel stopped near Kawit Island and
DECISION
DAVIDE, JR., J.:  City.
As formulated by the petitioner, the issue in this petition for review on
certiorari under Rule 45 of the Rules of Court is as follows:
In case of interruption of a vessel’s voyage and the consequent delay in that
vessel’s arrival at its port of destination, is the right of a passenger affected
thereby to be determined and governed by the vague Civil Code provision on
common carriers, or shall it be, in the absence of a specific provision
thereon, governed by Art. 698 of the Code of Commerce?[1]
The petitioner considers it a "novel question of law."
Upon a closer evaluation, however, of the challenged decision of the Court of
Appeals of 23 November 1994,[2] vis-a-vis, the decision of 29 June 1992 in
Civil Case No. 91-491 of the Regional Trial Court (RTC) of Cagayan de Oro
City, Branch 24,[3] as well as the allegations and arguments adduced by the
parties, we find the petitioner’s formulation of the issue imprecise. As this
Court sees it, what stands for resolution is a common carrier’s liability for
damages to a passenger who disembarked from the vessel upon its return to
the port of origin, after it suffered engine trouble and had to stop at sea,
having commenced the contracted voyage on one engine.
The antecedents are summarized by the Court of Appeals as follows:
Plaintiff [herein private respondent Atty.
bought a ticket [from] defendant [herein petitioner], a corporation engaged in
x x x inter-island shipping, for the voyage of M/V Asia Thailand vessel to
Cagayan de Oro City from Cebu City on November 12, 1991.
At around 5:30 in the evening of November 12, 1991, plaintiff boarded the
M/V Asia Thailand vessel. At that instance, plaintiff noticed that some repair
works [sic] were being undertaken on the engine of the vessel. The vessel
departed at around 11:00 in the evening with only one (1) engine running.
dropped its anchor thereat. After half an hour of stillness, some passengers
demanded that they should be allowed to return to Cebu City for they were
no longer willing to continue their voyage to Cagayan de Oro City. The
captain acceded [sic] to their request and thus the vessel headed back to Cebu
At Cebu City, plaintiff together with the other passengers who requested to
be brought back to Cebu City, were allowed to disembark. Thereafter, the
vessel proceeded to Cagayan de Oro City. Plaintiff, the next day, boarded the
M/V Asia Japan for its voyage to Cagayan de Oro City, likewise a vessel of
defendant.
On account of this failure of defendant to transport him to the place of
destination on November 12, 1991, plaintiff filed before the trial court a
complaint for damages against defendant.[4]
In his complaint, docketed as Civil Case No. 91-491, plaintiff (hereinafter
private respondent) alleged that the engines of the M/V Asia Thailand
conked out in the open sea, and for more than an hour it was stalled and at
the mercy of the waves, thus causing fear in the passengers. It sailed back to
Cebu City after it regained power, but for unexplained reasons, the
passengers, including the private respondent, were arrogantly told to
‘disembark without the necessary precautions against possible injury to them.
They were thus unceremoniously dumped, which only exacerbated the
private respondent’s mental distress. He further alleged that by reason of the
petitioner’s wanton, reckless, and willful acts, he was unnecessarily exposed
to danger and, having been stranded in Cebu City for a day, incurred
additional expenses and loss of income. He then prayed that he be awarded
P1,100.00, P50,000.00, and P25,000.00 as compensatory, moral, and
exemplary damages, respectively.[5]

In his pre-trial brief, the private respondent asserted that his complaint was
"an action for damage&arising from bad faith, breach of contract and from
tort," with the former arising from the petitioner’s "failure to carry [him] to
his place of destination as contracted," while the latter from the "conduct of
the [petitioner] resulting [in] the infliction of emotional distress" to the
private respondent.[6]
After due trial, the trial court rendered its decision [7] and ruled that the action
was only for breach of contract, with Articles 1170, 1172, and 1173 of the
Civil Code as applicable law - not Article 2180 of the same Code. It was of
the opinion that Article 1170 made a person liable for damages if, in the
performance of his obligation, he was guilty of fraud, negligence, or delay, or
in any manner contravened the tenor thereof; moreover, pursuant to Article
2201 of the same Code, to be entitled to damages, the non-performance of
the obligation must have been tainted not only by fraud, negligence, or delay,
but also bad faith, malice, and wanton attitude. It then disposed of the case as
follows:
WHEREFORE, it not appearing from the evidence that plaintiff was left in
the Port of Cebu because of the fault, negligence, malice or wanton attitude
of defendant’s employees, the complaint is DISMISSED. Defendant’s
counterclaim is likewise dismissed it not appearing also that filing of the case
by plaintiff was motivated by malice or bad faith. [8]
The trial court made the following findings to support its disposition:
In the light of the evidence adduced by the parties and of the above
provisions of the New Civil Code, the issue to be resolved, in the resolution
of this case is whether or not, defendant thru its employee in [sic] the night of
November 12, 1991, committed fraud, negligence, bad faith or malice when
it left plaintiff in the Port of Cebu when it sailed back to Cagayan de Oro
City after it has [sic] returned from Kawit Island.
Evaluation of the evidence of the parties tended to show nothing that
defendant committed fraud. As early as 3:00 p.m. of November 12, 1991,
defendant did not hide the fact that the cylinder head cracked. Plaintiff even
saw during its repair. If he had doubts as to the vessel’s capacity to sail, he
had time yet to take another boat. The ticket could be returned to defendant
and corresponding cash [would] be returned to him.
Neither could negligence, bad faith or malice on the part of defendant be
inferred from the evidence of the parties. When the boat arrived at [the] Port
of Cebu after it returned from Kawit Island, there was an announcement that
passengers who would like to disembark were given ten (10) minutes only to
do so. By this announcement, it could be inferred that the boat will [sic]
proceed to Cagayan de Oro City. If plaintiff entertained doubts, he should
have asked a member of the crew of the boat or better still, the captain of the
boat. But as admitted by him, he was of the impression only that the boat will
not proceed to Cagayan de Oro that evening so he disembarked. He was
instead, the ones [sic] negligent. Had he been prudent, with the
announcement that those who will disembark were given ten minutes only,
he should have lingered a little by staying in his cot and inquired whether the
boat will proceed to Cagayan de Oro City or not. Defendant cannot be
expected to be telling [sic] the reasons to each passenger. Announcement by
microphone was enough.
The court is inclined to believe that the story of defendant that the boat
returned to the Port of Cebu because of the request of the passengers in view
of the waves. That it did not return because of the defective engines as shown
by the fact that fifteen (15) minutes after the boat docked [at] the Port of
Cebu and those who wanted to proceed to Cagayan de Oro disembarked, it
left for Cagayan de Oro City.
The defendant got nothing when the boat returned to Cebu to let those who
did not want to proceed to Cagayan de Oro City including plaintiff
disembarked. On the contrary, this would mean its loss instead because it will
have to refund their tickets or they will use it the next trip without paying
anymore. It is hard therefore, to imagine how defendant by leaving plaintiff
in Cebu could have acted in bad faith, negligently, want only and with
malice.
If plaintiff, therefore, was not able to [m]ake the trip that night of November
12, 1991, it was not because defendant maliciously did it to exclude him
[from] the trip. If he was left, it was because of his fault or negligence. [9]
Unsatisfied, the private respondent appealed to the Court of Appeals (CA-
G.R. CV No. 39901) and submitted for its determination the following
assignment of errors: (1) the trial court erred in not finding that the
defendant-appellee was guilty of fraud, delay, negligence, and bad faith; and
(2) the trial court erred in not awarding moral and exemplary damages. [10]
In its decision of 23 November 1994,[11] the Court of Appeals reversed the
trial court’s decision by applying Article 1755 in relation to Articles 2201,
2208, 2217, and 2232 of the Civil Code and, accordingly, awarded
compensatory, moral, and exemplary damages as follows:
WHEREFORE, premises considered, the appealed decision is hereby
REVERSED and SET ASIDE and another one is rendered ordering
defendant-appellee to pay plaintiff-appellant:
1. P20,000.00 as moral damages;
2. P10,000.00 as exemplary damages;
3. P5,000.00 as attorney’s fees;
4. Cost of suit.
SO ORDERED.[12]
It did not, however, allow the grant of damages for the delay in the
performance of the petitioner’s obligation as the requirement of demand set
forth in Article 1169 of the Civil Code had not been met by the private
respondent. Besides, it found that the private respondent offered no evidence
to prove that his contract of carriage with the petitioner provided for liability
in case of delay in departure, nor that a designation of the time of departure
was the controlling motive for the establishment of the contract. On the latter,
the court a quo observed that the private respondent even admitted he was
unaware of the vessel’s departure time, and it was only when he boarded the
vessel that he became aware of such. Finally, the respondent Court found no
reasonable basis for the private respondent’s belief that demand was useless
because the petitioner had rendered it beyond its power to perform its
obligation; on the contrary, he even admitted that the petitioner had been
assuring the passengers that the vessel would leave on time, and that it could
still perform its obligation to transport them as scheduled.
To justify its award of damages, the Court of Appeals ratiocinated as follows:
It is an established and admitted fact that the vessel before the voyage had
undergone some repair work on the cylinder head of the engine. It is likewise
admitted by defendant-appellee that it left the port of Cebu City with only
one engine running. Defendant-appellee averred:
x x x The dropping of the vessel’s
anchor after running slowlyon only one engine when it departed earlier must
have alarmed some nervous passengers x x x
The entries in the logbook which defendant-appellee itself offered as
evidence categorically stated therein that the vessel stopped at Kawit Island
because of engine trouble. It reads:
2330 HRS STBD ENGINE EMERGENCY STOP
2350 HRS DROP ANCHOR DUE TO. ENGINE TROUBLE,2 ENGINE
STOP.
The stoppage was not to start and synchronized [sic] the engines of the vessel
as claimed by defendant-appellee. It was because one of the engines of the
vessel broke down; it was because of the disability of the vessel which from
the very beginning of the voyage was known to defendant-appellee.
Defendant-appellee from the very start of the voyage knew for a fact that the
vessel was not yet in its sailing condition because the second engine was still
being repaired. Inspite of this knowledge, defendant-appellee still proceeded
to sail with only one engine running.
Defendant-appellee at that instant failed to exercise the diligence which all
common carriers should exercise in transporting or carrying passengers. The
law does not merely require extraordinary diligence in the performance of the
obligation. The law mandates that common carrier[s] should exercise utmost
diligence in the transport of passengers.
Article 1755 of the New Civil Code provides:
ART. 1755. 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.
Utmost diligence of a VERY CAUTIOUS person dictates that defendant-
appellee should have pursued the voyage only when its vessel was already fit
to sail. Defendant-appellee should have made certain that the vessel [could]
complete the voyage before starting [to] sail. Anything less than this, the
vessel [could not] sail x x x with so many passengers on board it.
However, defendant-appellant [sic] in complete disregard of the safety of the
passengers, chose to proceed with its voyage even if only one engine was
running as the second engine was still being repaired during the voyage.
Defendant-appellee disregarded the not very remote possibility that because
of the disability of the vessel, other problems might occur which would
endanger the lives of the passengers sailing with a disabled vessel.
As expected, x x x engine trouble occurred. Fortunate[ly] for defendant-
appellee, such trouble only necessitated the stoppage of the vessel and did
not cause the vessel to capsize. No wonder why some passengers requested
to be brought back to Cebu City. Common carriers which are mandated to
exercise utmost diligence should not be taking these risks.
On this premise, plaintiff-appellant should not be faulted why he chose to
disembark from the vessel with the other passengers when it returned back to
Cebu City. Defendant-appellee may call him a very "panicky passenger" or a
"nervous person," but this will not relieve defendant-appellee from the
liability it incurred for its failure to exercise utmost diligence. [13]
xxx      xxx     xxx
As to the second assigned error, we find that plaintiff-appellant is entitled to
the award of moral and exemplary damages for the breach committed by
defendant-appellee.
As discussed, defendant-appellee in sailing to Cagayan de Oro City with only
one engine and with full knowledge of the true condition of the vessel, acted
in bad faith with malice, in complete disregard for the safety of the
passengers and only for its own personal advancement/interest.
The Civil Code provides:
Art 2201.
xxx     xxx     xxx
In case of fraud, bad faith, malice or wanton attitude, the obligor shall be
responsible for all damages which may be reasonably attributed to the non-
performance of the obligation.
Plaintiff-appellant is entitled to moral damages for the mental anguish, fright
and serious anxiety he suffered during the voyage when the vessel’s engine
broke down and when he disembarked from the vessel during the wee hours
of the morning at Cebu City when it returned.[14]
Moral damages are recoverable in a damage suit predicated upon a breach of
contract of carriage where it is proved that the carrier was guilty of fraud or
bad faith even if death does not result.[15]
Fraud and bad faith by defendant-appellee having been established, the
award of moral damages is in order.[16]
To serve as a deterrent to the commission of similar acts in the future,
exemplary damages should be imposed upon defendant-appellee.
[17]
Exemplary damages are designed by our civil law to permit the courts to
reshape behavior that is socially deleterious in its consequence by creating x
x x negative incentives or deterrents against such behavior. [18]
Moral damages having been awarded, exemplary damages maybe properly
awarded. When entitlement to moral damages has been established, the
award of exemplary damages is proper.[19]
The petitioner then instituted this petition and submitted the question of law
earlier adverted to.
Undoubtedly, there was, between the petitioner and the private respondent, a
contract of common carriage. The laws of primary application then are the
provisions on common carriers under Section 4, Chapter 3, Title VIII, Book
IV of the Civil Code, while for all other matters not regulated thereby, the
Code of Commerce and special laws.[20]
Under Article 1733 of the Civil Code, the petitioner was bound to observe
extraordinary diligence in ensuring the safety of the private respondent. That
meant that the petitioner was, pursuant to Article 1755 of the said Code,
bound to carry the private respondent safely as far as human care and
foresight could provide, using the utmost diligence of very cautious persons,
with due regard for all the circumstances. In this case, we are in full accord
with the Court of Appeals that the petitioner failed to discharge this
obligation.
Before commencing the contracted voyage, the petitioner undertook some
repairs on the cylinder head of one of the vessel’s engines. But even before it
could finish these repairs, it allowed the vessel to leave the port of origin on
only one functioning engine, instead of two. Moreover, even the lone
functioning engine was not in perfect condition as sometime after it had run
its course, it conked out. This caused the vessel to stop and remain adrift at
sea, thus in order to prevent the ship from capsizing, it had to drop anchor.
Plainly, the vessel was unseaworthy even before the voyage began. For a
vessel to be seaworthy, it must be adequately equipped for the voyage and
manned with a sufficient number of competent officers and crew. [21] The
failure of a common carrier to maintain in seaworthy condition its vessel
involved in a contract of carriage is a clear breach of is duty prescribed in
Article 1755 of the Civil Code.
As to its liability for damages to the private respondent, Article 1764 of the
Civil Code expressly provides:
ART. 1764. Damages in cases comprised in this Section shall be awarded in
accordance with Title XVIII of this Book, concerning Damages. Article 2206
shall also apply to the death of a passenger caused by the breach of contract
by common carrier.
The damages comprised in Title XVIII of the Civil Code are actual or
compensatory, moral, nominal, temperate or moderate, liquidated, and
exemplary.
In his complaint, the private respondent claims actual or compensatory,
moral, and exemplary damages.
Actual or compensatory damages represent the adequate compensation for
pecuniary loss suffered and for profits the obligee failed to obtain. [22]
In contracts or quasi-contracts, the obligor is liable for all the damages which
may be reasonably attributed to the non-performance of the obligation if he is
guilty of fraud, bad faith, malice, or wanton attitude. [23]
Moral damages include moral suffering, mental anguish, fright, serious
anxiety, besmirched reputation, wounded feelings, moral shock, social
humiliation, or similar injury. They may be recovered in the cases
enumerated in Article 2219 of the Civil Code, likewise, if they are the
proximate result of, as in this case, the petitioner’s breach of the contract of
carriage.[24] Anent a breach of a contract of common carriage, moral damages
may be awarded if the common carrier, like the petitioner, acted fraudulently
or in bad faith.[25]
Exemplary damages are imposed by way of example or correction for the
public good, in addition to moral, temperate, liquidated or compensatory
damages.[26] In contracts and quasi-contracts, exemplary damages may be
awarded if the defendant acted in a wanton fraudulent, reckless, oppressive
or malevolent manner.[27] It cannot, however, be considered as a matter of
right; the court having to decide whether or not they should be adjudicated.
[28]
 Before the court may consider an award for exemplary damages, the
plaintiff must first show that he is entitled to moral, temperate or
compensatory damages; but it is not necessary that he prove the monetary
value thereof.[29]
The Court of Appeals did not grant the private respondent actual or
compensatory damages, reasoning that no delay was incurred since there was
no demand, as required by Article 1169 of the Civil Code. This article,
however, finds no application in this case because, as found by the
respondent Court, there was in fact no delay in the commencement of the
contracted voyage. If any delay was incurred, it was after the commencement
of such voyage, more specifically, when the voyage was subsequently
interrupted when the vessel had to stop near Kawit Island after the only
functioning engine conked out.
As to the rights and duties of the parties strictly arising out of such delay, the
Civil Code is silent. However, as correctly pointed out by the petitioner,
Article 698 of the Code of Commerce specifically provides for such a
situation. It reads:
In case a voyage already begun should be interrupted, the passengers shall be
obliged to pay the fare in proportion to the distance covered, without right to
recover for losses and damages if the interruption is due to fortuitous event or
force majeure, but with a right to indemnity if the interruption should have
been caused by the captain exclusively. If the interruption should be caused
by the disability of the vessel and a passenger should agree to await the
repairs, he may not be required to pay any increased price of passage, but his
living expenses during the stay shall be for his own account.

This article applies suppletorily pursuant to Article 1766 of the Civil Code.
Of course, this does not suffice for a resolution of the case at bench for, as
earlier stated, the cause of the delay or interruption was the petitioner’s
failure to observe extraordinary diligence. Article 698 must then be read
together with Articles 2199, 2200, 2201, and 2208 in relation to Article 21 of
the Civil Code. So read, it means that the petitioner is liable for any
pecuniary loss or loss of profits which the private respondent may have
suffered by reason thereof. For the private respondent, such would be the loss
of income if unable to report to his office on the day he was supposed to
arrive were it not for the delay. This, however, assumes that he stayed on the
vessel and was with it when it thereafter resumed its voyage; but he did not.
As he and some passengers resolved not to complete the voyage, the vessel
had to return to its port of origin and allow them to disembark. The private
respondent then took the petitioner’s other vessel the following day, using the
ticket he had purchased for the previous day’s voyage.
Any further delay then in the private respondent’s arrival at the port of
destination was caused by his decision to disembark. Had he remained on the
first vessel, he would have reached his destination at noon of 13 November
1991, thus been able to report to his office in the afternoon. He, therefore,
would have lost only the salary for half of a day. But actual or compensatory
damages must be proved,[30] which the private respondent failed to do. There
is no convincing evidence that he did not receive his salary for 13 November
1991 nor that his absence was not excused.
We likewise fully agree with the Court of Appeals that the petitioner is liable
for moral and exemplary damages. In allowing its unseaworthy M/V Asia
Thailand to leave the port of origin and undertake the contracted voyage,
with full awareness that it was exposed to perils of the sea, it deliberately
disregarded its solemn duty to exercise extraordinary diligence and obviously
acted with bad faith and in a wanton and reckless manner. On this score,
however, the petitioner asserts that the safety of the vessel and passengers
was never at stake because the sea was "calm" in the vicinity where it
stopped as faithfully recorded in the vessel’s log book (Exhibit "4"). Hence,
the petitioner concludes, the private respondent was merely ‘over-reacting"
to the situation obtaining then.[31]
We hold that the petitioner’s defense cannot exculpate it nor mitigate its
liability. On the contrary, such a claim demonstrates beyond cavil the
petitioner’s lack of genuine concern for the safety of its passengers. It was,
perhaps, only providential that the sea happened to be calm. Even so, the
petitioner should not expect its passengers to act in the manner it desired. The
passengers were not stoics; becoming alarmed, anxious, or frightened at the
stoppage of a vessel at sea in an unfamiliar zone at nighttime is not the sole
prerogative of the faint-hearted. More so in the light of the many tragedies at
sea resulting in the loss of lives of hopeless passengers and damage to
property simply because common carriers failed in their duty to exercise
extraordinary diligence in the performance of their obligations.
We cannot, however, give our affirmance to the award of attorney’s fees.
Under Article 2208 of the Civil Code, these are recoverable only in the
concept of actual damages,[32] not as moral damages[33] nor judicial costs.
[34]
 Hence, to merit such an award, it is settled that the amount thereof must
be proven.[35] Moreover, such must be specifically prayed for - as was not
done in this case - and may not be deemed incorporated within a general
prayer for "such other relief and remedy as this court may deem just and
equitable."[36] Finally, it must be noted that aside from the following, the
body of the respondent Court’s decision was devoid of any statement
regarding attorney’s fees:
Plaintiff-appellant was forced to litigate in order that he can claim moral and
exemplary damages for the suffering he encurred [sic]. He is entitled to
attorney’s fees pursuant to Article 2208 of the Civil Code. It states:
Article 2208. In the absence of stipulation, attorney’ s fees and expenses of
litigation, other than judicial costs cannot be recovered except:
1.  When exemplary damages are awarded;
2.  When the defendant’s act or omission has compelled the plaintiff to
litigate with third persons or to incur expenses to protect his interest.
This Court holds that the above does not satisfy the benchmark of "factual,
legal and equitable justification" needed as basis for an award of attorney’s
fees.[37] In sum, for lack of factual and legal basis, the award of attorney’s
fees must be deleted.
WHEREFORE, the instant petition is DENIED and the challenged
decision of the Court of Appeals in CA-G.R. CV No.
39901 is AFFIRMED subject to the modification as to
the award for attorney’s fees which is hereby SET ASIDE.

Costs against the petitioner.

SO ORDERED.

Narvasa, C.J. (Chairman), Melo, Francisco, and Panganiban, JJ., concur.

530 Phil. 332 bow mooring of the vessel was intentionally cut or stolen by unknown
persons. Because there was nothing holding it, the vessel drifted westward,
SECOND DIVISION dragged and stretched the flexible rubber hose attached to the riser, broke the
elbow into pieces, severed completely the rubber hose connected to the
[ G.R. NO. 149019, August 15, 2006 ] tanker from the main delivery line at sea bed level and ultimately caused the
diesel oil to spill into the sea. To avoid further spillage, the vessel's crew
DELSAN TRANSPORT LINES, INC., PETITIONER, VS. AMERICAN tried water flushing to clear the line of the diesel oil but to no avail. In the
HOME ASSURANCE CORPORATION, RESPONDENT. meantime, the shore tender, who was waiting for the completion of the water
flushing, was surprised when the tanker signaled a "red light" which meant
DECISION stop pumping. Unaware of what happened, the shore tender, thinking that the
vessel would, at any time, resume pumping, did not shut the storage tank gate
valve. As all the gate valves remained open, the diesel oil that was earlier
GARCIA, J.:  discharged from the vessel into the shore tank backflowed. Due to non-
availability of a pump boat, the vessel could not send somebody ashore to
inform the people at the depot about what happened. After almost an hour, a
By this petition for review on certiorari under Rule 45 of the Rules of Court,
gauger and an assistant surveyor from the Caltex's Bulk Depot Office
petitioner Delsan Transport Lines, Inc. (Delsan hereafter) assails and seeks to
boarded the vessel. It was only then that they found out what had happened.
set aside the Decision,[1] dated July 16, 2001, of the Court of Appeals (CA) in
Thereafter, the duo immediately went ashore to see to it that the shore tank
CA-G.R. CV No. 40951 affirming an earlier decision of the Regional Trial
gate valve was closed. The loss of diesel oil due to spillage was placed at
Court (RTC) of Manila, Branch IX, in two separate complaints for damages
113.788 k/l while some 435,081 k/l thereof backflowed from the shore tank.
docketed as Civil Case No. 85-29357 and Civil Case No. 85-30559.
As a result of spillage and backflow of diesel oil, Caltex sought recovery of
The facts:
the loss from Delsan, but the latter refused to pay. As insurer, AHAC paid
Caltex the sum of P479,262.57 for spillage, pursuant to Marine Risk Note
Delsan is a domestic corporation which owns and operates the vessel MT
No. 34-5093-6, and P1,939,575.37 for backflow of the diesel oil pursuant to
Larusan. On the other hand, respondent American Home Assurance
Inland Floater Policy No. AH-1F64-1011549P.
Corporation (AHAC for brevity) is a foreign insurance company duly
licensed to do business in the Philippines through its agent, the American-
On February 19, 1985, AHAC, as Caltex's subrogee, instituted Civil Case
International Underwriters, Inc. (Phils.). It is engaged, among others, in
No. 85-29357 against Delsan before the Manila RTC, Branch 9, for loss
insuring cargoes for transportation within the Philippines. 
caused by the spillage. It likewise prayed that it be indemnified for damages
suffered in the amount of P652,432.57 plus legal interest thereon.
On August 5, 1984, Delsan received on board MT Larusan a shipment
consisting of 1,986.627 k/l Automotive Diesel Oil (diesel oil) at the Bataan
Also, on May 5, 1985, in the Manila RTC, Branch 31, AHAC instituted Civil
Refinery Corporation for transportation and delivery to the bulk depot in
Case No. 85-30559 against Delsan for the loss caused by the backflow. It
Bacolod City of Caltex Phils., Inc. (Caltex), pursuant to a Contract of
likewise prayed that it be awarded the amount of P1,939,575.37 for damages
Afreightment. The shipment was insured by respondent AHAC against all
and reasonable attorney's fees. As counterclaim in both cases, AHAC prayed
risks under Inland Floater Policy No. AH-IF64-1011549P and Marine Risk
for attorney's fees in the amount of P200,000.00 and P500.00 for every court
Note No. 34-5093-6.
appearance. 
On August 7, 1984, the shipment arrived in Bacolod City. Immediately
Since the cause of action in both cases arose out of the same incident and
thereafter, unloading operations commenced. The discharging of the diesel
involved the same issues, the two were consolidated and assigned to Branch
oil started at about 1:30 PM of the same day. However, at about 10:30 PM,
9 of the court.
the discharging had to be stopped on account of the discovery that the port

On August 31, 1989, the trial court rendered its decision[2] in favor of AHAC
holding Delsan liable for the loss of the cargo for its negligence in its duty as
a common carrier. Dispositively, the decision reads:
WHEREFORE, judgment is hereby rendered:
A). In Civil Case No. 85-30559:
(1) Ordering the defendant (petitioner Delsan) to pay plaintiff (respondent
AHAC) the sum of P1,939,575.37 with interest thereon at the legal rate from
November 21, 1984 until fully paid and satisfied; and
(2) Ordering defendant to pay plaintiff the sum of P10,000.00 as and for
attorney's fees.
For lack of merit, the counterclaim is hereby dismissed.
B). In Civil Case No. 85-29357:
(1) Ordering defendant to pay plaintiff the sum of P479,262.57 with interest
thereon at the legal rate from February 6, 1985 until fully paid and satisfied;
(2) Ordering defendant to pay plaintiff the sum of P5,000.00 as and for
attorney's fees.
For lack of merit, the counterclaim is hereby dismissed.
Costs against the defendant.
SO ORDERED.
In time, Delsan appealed to the CA whereat its recourse was docketed as CA-
G.R. CV No. 40951.
In the herein challenged decision,[3] the CA affirmed the findings of the trial
court. In so ruling, the CA declared that Delsan failed to exercise the
extraordinary diligence of a good father of a family in the handling of its
cargo. Applying Article 1736[4] of the Civil Code, the CA ruled that since the
discharging of the diesel oil into Caltex bulk depot had not been completed at
the time the losses occurred, there was no reason to imply that there was
actual delivery of the cargo to Caltex, the consignee. We quote the fallo of
the CA decision:
WHEREFORE, premises considered, the appealed Decision of the Regional
Trial Court of Manila, Branch 09 in Civil Case Nos. 85-29357 and 85-30559
is hereby AFFIRMED with a modification that attorney's fees awarded in
Civil Case Nos. 85-29357 and 85-30559 are hereby DELETED.
SO ORDERED.
Delsan is now before the Court raising substantially the same issues
proffered before the CA.
Principally, Delsan insists that the CA committed reversible error in ruling
that Article 1734 of the Civil Code cannot exculpate it from liability for the
loss of the subject cargo and in not applying the rule on contributory
negligence against Caltex, the shipper-owner of the cargo, and in not taking
into consideration the fact that the loss due to backflow occurred when the
diesel oil was already completely delivered to Caltex.
We are not persuaded.
In resolving this appeal, the Court reiterates the oft-stated doctrine that
factual findings of the CA, affirmatory of those of the trial court, are binding
on the Court unless there is a clear showing that such findings are tainted
with arbitrariness, capriciousness or palpable error. [5]
Delsan would have the Court absolve it from liability for the loss of its cargo
on two grounds. First, the loss through spillage was partly due to the
contributory negligence of Caltex; and Second, the loss through backflow
should not be borne by Delsan because it was already delivered to Caltex's
shore tank.
Common carriers are bound to observe extraordinary diligence in the
vigilance over the goods transported by them. They are presumed to have
been at fault or to have acted negligently if the goods are lost, destroyed or
deteriorated.[6] To overcome the presumption of negligence in case of loss,
destruction or deterioration of the goods, the common carrier must prove that
it exercised extraordinary diligence. There are, however, exceptions to this
rule. Article 1734 of the Civil Code enumerates the instances when the
presumption of negligence does not attach:
Art. 1734. Common carriers are responsible for the loss, destruction, or
deterioration of the goods, unless the same is due to any of the following
causes only:
1) Flood storm, earthquake, lightning, or other natural disaster or calamity;

2) Act of the public enemy in war, whether international or civil;
3) Act or omission of the shipper or owner of the goods;
4) The character of the goods or defects in the packing or in the containers;
5) Order or act of competent public authority.
Both the trial court and the CA uniformly ruled that Delsan failed to prove its
claim that there was a contributory negligence on the part of the owner of the
goods – Caltex. We see no reason to depart therefrom. As aptly pointed out
by the CA, it had been established that the proximate cause of the spillage
and backflow of the diesel oil was due to the severance of the port bow
mooring line of the vessel and the failure of the shore tender to close the
storage tank gate valve even as a check on the drain cock showed that there
was still a product on the pipeline. To the two courts below, the actuation of
the gauger and the escort surveyor, both personnel from the Caltex Bulk
Depot, negates the allegation that Caltex was remiss in its duties. As we see
it, the crew of the vessel should have promptly informed the shore tender that
the port mooring line was cut off. However, Delsan did not do so on the lame
excuse that there was no available banca. As it is, Delsan's personnel
signaled a "red light" which was not a sufficient warning because such signal
only meant that the pumping of diesel oil had been finished. Neither did the
blowing of whistle suffice considering the distance of more than 2 kilometers
between the vessel and the Caltex Bulk Depot, aside from the fact that it was
not the agreed signal. Had the gauger and the escort surveyor from Caltex
Bulk Depot not gone aboard the vessel to make inquiries, the shore tender
would have not known what really happened. The crew of the vessel should
have exerted utmost effort to immediately inform the shore tender that the
port bow mooring line was severed.
To be sure, Delsan, as the owner of the vessel, was obliged to prove that the
loss was caused by one of the excepted causes if it were to seek exemption
from responsibility.[7] Unfortunately, it miserably failed to discharge this
burden by the required quantum of proof.
Delsan's argument that it should not be held liable for the loss of diesel oil
due to backflow because the same had already been actually and legally
delivered to Caltex at the time it entered the shore tank holds no water. It had
been settled that the subject cargo was still in the custody of Delsan because
the discharging thereof has not yet been finished when the backflow
occurred. Since the discharging of the cargo into the depot has not yet been
completed at the time of the spillage when the backflow occurred, there is no
reason to imply that there was actual delivery of the cargo to the consignee.
Delsan is straining the issue by insisting that when the diesel oil entered into
the tank of Caltex on shore, there was legally, at that moment, a complete
delivery thereof to Caltex. To be sure, the extraordinary responsibility of
common carrier lasts from the time the goods are unconditionally placed in
the possession of, and received by, the carrier for transportation until the
same are delivered, actually or constructively, by the carrier to the consignee,
or to a person who has the right to receive them. [8] The discharging of oil
products to Caltex Bulk Depot has not yet been finished, Delsan still has the
duty to guard and to preserve the cargo. The carrier still has in it the
responsibility to guard and preserve the goods, a duty incident to its having
the goods transported.
To recapitulate, common carriers, from the nature of their business and for
reasons of public policy, are bound to observe extraordinary diligence in
vigilance over the goods and for the safety of the passengers transported by
them, according to all the circumstances of each case. [9] The mere proof of
delivery of goods in good order to the carrier, and their arrival in the place of
destination in bad order, make out a prima facie case against the carrier, so
that if no explanation is given as to how the injury occurred, the carrier must
be held responsible. It is incumbent upon the carrier to prove that the loss
was due to accident or some other circumstances inconsistent with its
liability.[10]
All told, Delsan, being a common carrier, should have exercised
extraordinary diligence in the performance of its duties. Consequently, it is
obliged to prove that the damage to its cargo was caused by one of the
excepted causes if it were to seek exemption from responsibility. [11] Having
failed to do so, Delsan must bear the consequences.
WHEREFORE, petition is DENIED and the assailed decision of the CA
is AFFIRMED in toto.
Cost against petitioner.
SO ORDERED.
Puno, (Chairperson), Sandoval-Gutierrez, Corona and Azcuna, JJ., concur.
124 Phil. 145
[ G.R. No. L-20761, July 27, 1966 ]
LA MALLORCA, PETITIONER, VS. HONORABLE COURT OF
APPEALS, MARIANO BELTRAN, ET AL., RESPONDENTS.
BARRERA, J.:  place where he left his wife and children. At that precise time, he saw people
La Mallorca seeks the review of the decision of the Court of Appeals in CA-
G. R. No. 23267-R, holding it liable for quasi-delict and ordering it to pay to
respondents Mariano Beltran, et al. P6,000.00 for the death of his minor
daughter Raquel Beltran, plus P400.00 as actual damages.
The facts of the case, as found by the Court of Appeals, briefly are:
"On December 20, 1953, at about noontime, plaintiffs, husband and wife,
together with their minor daughters, namely Milagros, 13 years old, Raquel,
about 4-1/2 years old, and Fe, over 2 years old, boarded the Pambusco Bus
No. 352, bearing plate TPU No. 757 (1953 Pampanga), owned and operated
by the defendant, at San Fernando, Pampanga, bound for Anao, Mexico,
Pampanga.  At the time, they were carrying with them four pieces of
baggages containing their personal belongings. The conductor of the bus who
happened to be a half-brother of plaintiff Mariano Beltran, issued three
tickets (Exhs. A, B, & C) covering the full fares of the plaintiff and their
eldest child, Milagros. No fare was charged on Raquel and Fe, since both
were below the height at which fare is charged in accordance with the
appellant's rules and regulations.
"After about an hour's trip, the bus reached Anao, whereat it stopped to allow
the passengers bound therefor, among whom were the plaintiffs and their
children to get off. With respect to the group of the plaintiffs, Mariano
Beltran, then carrying some of their baggages, was the first to get down the
bus, followed by his wife and his children. Mariano led his companions to a
shaded spot on the left pedestrians side of the road about four or five meters
away from the vehicle. Afterwards, he returned to the bus in controversy to
get his other bayong, which he had left behind, but in so doing, his daughter
Raquel followed him unnoticed by her father. While said Mariano Beltran
was on the running board of the bus waiting for the conductor to hand him
his bayong which he left under one of its seats near the door, the bus, whose
motor was not shut off while unloading, suddenly started moving forward,
evidently to resume its trip, notwithstanding the fact that the conductor has
not given the driver the customary signal to start, since said conductor was
still attending to the baggage left behind by Mariano Beltran. Incidentally,
when the bus was again placed into a complete stop, it had travelled about
ten meters from the point where the plaintiffs had gotten off.
"Sensing that the bus was again in motion, Mariano Beltran immediately
jumped from the running board without getting his bayong from the
conductor. He landed on the side of the road almost in front of the shaded
beginning to gather around the body of a child lying prostrate on the ground,
her skull, crushed, and without life. The child was none other than his
daughter Raquel, who was run over by the bus in which she rode earlier
together with her parents.
"For the death of their said child, the plaintiffs commenced the present suit
against the defendant seeking to recover from the latter an aggregate amount
of P6,000 to cover moral damages and actual damages sustained as a result
thereof and attorney's fees. After trial on the merits the court below rendered
the judgment in question."
On the basis of these facts, the trial court found defendant liable for breach of
contract of carriage and sentenced it to pay P3,000.00 for the death of the
child and P400.00 as compensatory damages representing burial expenses
and costs.
On appeal to the Court of Appeals, La Mallorca claimed that there could not
be a breach of contract in the case, for the reason that when the child met her
death, she was no longer a passenger of the bus involved in the incident and,
therefore, the contract of carriage had already terminated. Although the Court
of Appeals sustained this theory, it nevertheless found the defendant-
appellant guilty of quasi-delict and held the latter liable for damages, for the
negligence of its driver, in accordance with Article 2180 of the Civil Code:
And, the Court of Appeals did not only find the petitioner liable, but
increased the damages awarded the plaintiffs-appellees to P6,000.00, instead
of P3,000.00 granted by the trial court.
In its brief now before us, La Mallorca contends that the Court of Appeals
erred (1) in holding it liable for quasi-delict, considering that respondents'
complaint was one for breach of contract, and (2) in raising the award of
damages from P3,000.00 to P6,000.00 although respondents did not appeal
from the decision of the lower court.
Under the facts as found by the Court of Appeals we have to sustain the
judgment holding petitioner liable for damages for the death of the child,
Raquel Beltran. It may be pointed out that although it is true that respondent
Mariano Beltran, his wife, and their children (including the deceased child)
had alighted from the bus at a place designated for disembarking or
unloading of passengers, it was also established that the father had to return
to the vehicle (which was still at a stop) to get one of his bags or bayong that
was left under one of the seats of the bus.  There can be no controversy that
as far as the father is concerned, when he returned to the bus for his bayong
which was not unloaded, the relation of passenger and carrier between him
and the petitioner remained subsisting. For, the relation of carrier and
passenger does not necessarily cease where the latter, after alighting from the
car, aids the carrier's servant or employee in removing his baggage from the
car.[1] The issue to be determined here is whether as to the child, who was
already led by the father to a place about 5 meters away from the bus, the
liability of the carrier for her safety under the contract of carriage also
persisted.
It has been recognized as a rule that the relation of carrier and passenger does
not cease at the moment the passenger alights from the carrier's vehicle at a
place selected by the carrier at the point of destination, but continues until the
passenger has had a reasonable time or a reasonable opportunity to leave the
carrier's premises. And, what is a reasonable time or a reasonable delay
within this rule is to be determined from all the circumstances. Thus, a
person who, after alighting from a train, walks along the station platform is
considered still a passenger.[2] So also, where a passenger has alighted at his
destination and is proceeding by the usual way to leave the company's
premises, but before actually doing so is halted by the report that his brother,
a fellow passenger, has been shot, and he in good faith and without intent of
engaging in the difficulty, returns to relieve his brother, he is deemed
reasonably and necessarily delayed and thus continues to be a passenger
entitled as such to the protection of the railroad and company and its agents. [3]
In the present case, the father returned to the bus to get one of his baggages
which was not unloaded when they alighted from the bus.  Raquel, the child
that she was, must have followed the father. However, although the father
was still on the running board of the bus awaiting for the conductor to hand
him the bag or bayong, the bus started to run, so that even he (the father) had
to jump down from the moving vehicle. It was at this instance that the child,
who must be near the bus, was run over and killed. In the circumstances, it
cannot be claimed that the carrier's agent had exercised the "utmost
diligence" of a "very cautious person" required by Article 1755 of the Civil
Code to be observed by a common carrier in the discharge of its obligation to
transport safely its passengers. In the first place, the driver, although stopping
the bus, nevertheless did not put off the engine. Secondly, he started to run
the bus even before the bus conductor gave him the signal to go and while
the latter was still unloading part of the baggages of the passengers Mariano
Beltran and family. The presence of said passengers near the bus was not
unreasonable and they are, therefore, to be considered still as passengers of
the carrier, entitled to the protection under their contract of carriage.
But even assuming arguendo that the contract of carriage has already
terminated, herein petitioner can be held liable for the negligence of its
driver, as ruled by the Court of Appeals, pursuant to Article 2180 of the Civil
Code.  Paragraph 7 of the complaint, which reads—
"That aside from the aforesaid breach of contract, the death of Raquel
Beltran, plaintiff's daughter, was caused by the negligence and want of
exercise of the utmost diligence of a very cautious person on the part of the
defendants and their agent, necessary to transport plaintiffs and their
daughter safely as far as human and care and foresight can provide in the
operation of their vehicle."
is clearly an allegation for quási-delict.  The inclusion of averment for quasi-
delict,while incompatible with the other claim under the contract of carriage,
is permissible under Section 2 of Rule 8 of the New Rules of Court, which
allows a plaintiff to allege causes of action in the alternative, be they
compatible with each other or not, to the end that the real matter in
controversy may be resolved and determined. [4]
The plaintiffs sufficiently pleaded the culpa or negligence upon which the
claim was predicated when it was alleged in the complaint that "the death of
Raquel Beltran, plaintiffs' daughter, was caused by the negligence and want
of exercise of the utmost diligence of a very cautious person on the part of
the defendants and their agent." This allegation was also proved when it was
established during the trial that the driver, even before receiving the proper
signal from the conductor, and while there were still persons on the running
board of the bus and near it, started to run off the vehicle. The presentation of
proof of the negligence of its employee gave rise to the presumption that the
defendant employer did not exercise the diligence of a good father of the
family in the selection and supervision of its employees. And this
presumption, as the Court of Appeals found, petitioner had failed to
overcome. Consequently, petitioner must be adjudged pecuniarily liable for
the death of the child Raquel Beltran.
The increase of the award of damages from P3,000.00 to P6,000.00 by the
Court of Appeals, however, cannot be sustained. Generally, the appellate
court can only pass upon and consider questions or issues raised and argued
in appellant's brief. Plaintiffs did not appeal from that portion of the
judgment of the trial court awarding them only P3,000.00 damages for the
death of their daughter. Neither does it appear that, as appellees in the Court
of Appeals, plaintiffs have pointed out in their brief the inadequacy of the
award, or that the inclusion of the figure P3,000.00 was merely a, clerical
error, in order that the matter may be treated as an exception to the general
rule.[5] Herein petitioner's contention, therefore, that the Court of Appeals
committed error in raising the amount of the award for damages is, evidently,
meritorious.

Wherefore, the decision of the Court of Appeals is hereby modified by

sentencing the petitioner to pay to the respondents Mariano Beltran, et al., the
sum of P3,000.00 for the death of the child, Raquel Beltran, and the amount
of P400.00 as actual damages.  No costs in this instance.

So ordered.

Concepción, C. J., Reyes, J. B. L., Dizon, Regala, Bengzon, J. P., Zaldivar,

Sanchezand Ruiz Castro, JJ., concur.

Makalintal, J., concurs in the result.

Decision modified.
257 Phil. 797
THIRD DIVISION
[ G.R. No. 85331, August 25, 1989 ]
KAPALARAN BUS LINE, PETITIONER, VS. ANGEL CORONADO,
LOPE GRAJERA, DIONISIO SHINYO, AND THE COURT OF
APPEALS, RESPONDENTS.  intersection when the jeepney reached the same.  As testified to by
DECISION
FELICIANO, J.:  another car.  A Laguna Transit bus had just entered the town of Pila ahead of
Petitioner Kapalaran Bus Line ("Kapalaran") seeks the reversal or
modification of the Court of Appeals’ decision in C.A.-G.R. CV No. 12476
and the absolution of petitioner from all liability arising from the collision
between one of petitioner's buses and a jeepney owned by respondent
Coronado, driven by respondent Grajeraand in
which jeepney respondent Shinyo was a passenger.
The facts of this case as found by the trial court and adopted by the Court of
Appeals, are summarized in the trial court's decision and quoted in the Court
of Appeals’ own judgment in the following terms:
"The accident happened on the National Highway at 10:30 A.M. on August
2, 1982.  The jeepney driven by Lope Grajera was then coming from Pila,
Laguna on its way towards the direction of Sta. Cruz, traversing the old
highway.  As it reached the intersection where there is a traffic sign 'yield', it
stopped and cautiously treated the intersection as a 'Thru Stop' street, which it
is not.  The KBL bus was on its way from Sta. Cruz, Laguna, driven by its
regular driver Virgilio Llamoso, on its way towards Manila.  The regular
itinerary of the KBL bus is through the town proper of Pila, Laguna, but at
times it avoids this if a bus is already fully loaded with passengers and can no
longer accommodate additional passengers.  As the KBL bus neared the
intersection, Virgilio Llamosoinquired from his conductor if they could still
accommodate passengers and learning that they were already full, he decided
to bypass Pila and instead, to proceed along the national
highway.  Virgilio Llamosoadmitted that there was another motor vehicle
ahead of him.
The general rule is that the vehicle on the national highway has the right-of-
way as against a feeder road.  Another general rule is that the vehicle coming
from the right has the right-of-way over the vehicle coming from the
left.  The general rules on right-of-way may be invoked only if both vehicles
approach the intersection at almost the same time.  In the case at bar, both
roads are national roads.  Also, the KBL bus was still far from the
Atty. Conrado L. Manicad who was driving a Mustang car coming from the
direction of Sta. Cruz and proceeding towards the direction of Manila, he
stopped at the intersection to give way to the jeepney driven
by Grajera.  Behind Manicad were two vehicles, a car of his client and
Atty. Manicad.
The sketch marked Exhibit 'E' indicates very clearly that the jeepney had
already traversed the intersection when it met the KBL bus head-on.  It is
also obvious that the point of impact was on the right lane of the highway
which is the lane properly belonging to the jeepney.  As testified to by
Lope Grajera, the KBL bus ignored the stopped vehicles of
Atty. Manicadand the other vehicles behind Atty. Manicad and overtook both
vehicles at the intersection, therefore, causing the accident.
Judging from the testimony of Atty. Conrado L. Manicad and the sketch
(Exhibit 'E'), the sequence of events shows that the first vehicle to arrive at
the intersection was the jeepney.  Seeing that the road was clear,
the jeepney which had stopped at the intersection began to move forward,
and for his part, Atty. Manicad stopped his car at the intersection to give way
to the jeepney.  At about this time, the KBL bus was approaching the
intersection and its driver was engaged in determining from his conductor if
they would still pass through the town proper of Pila.  Upon learning that
they were already full, he turned his attention to the road and found the
stopped vehicles at the intersection with the jeepney trying to cross the
intersection.  The KBL bus had no more room within which to stop without
slamming into the rear of the vehicle behind the car of Atty. Manicad.  The
KBL driver chose to gamble on proceeding on its way, unfortunately,
the jeepney driven by Grajera, which had the right-of-way, was about to
cross the center of the highway and was directly on the path of the KBL
bus.  The gamble made by Llamoso did not pay off.  The impact indicates
that the KBL bus was travelling at a fast rate of speed because, after the
collision, it did not stop; it travelled for another 50 meters and stopped only
when it hit an electric post (pp. 3-4, Decision; pp. 166-167, Record)."[1]
On 14 September 1982, Kapalaran, apparently believing that the best defense
was offense, filed a complaint for damage to property and physical injuries
through reckless imprudence against respondents Angel Coronado and
Lope Grajera in the Regional Trial Court, Branch 27, Sta.
Cruz, Laguna.  Respondents answered with their own claims (counter-
claims) for damages.  A third-party complaint and/or a complaint for
intervention was also filed in the same case
against Kapalaran by jeepney passenger Dionisio Shinyo.
On 15 October 1986, after trial, the trial court rendered a judgment in favor
of private respondents and ordering Kapalaran
"(a)    to pay Angel Coronado the sum of P40,000.00 as compensation for the
totally wrecked jeepney, plus the sum of P5,000.00 as attorney's fees and
litigation expenses, and
(b)     to Dionisio Shinyo the sum of P35,000.00 representing the expenses
incurred by said intervenor for his treatment including his car–hire, the
further sum of P30,000.00 representing the expenses said defendant will
incur for his second operation to remove the intramedularynail from his
femur, the additional sum of P50,000.00 to serve as moral damages for the
pain and suffering inflicted on said defendant, plus the sum of P10,000.00 in
the concept of exemplary damages to serve as a deterrent to others who, like
the plaintiff, may be minded to induce accident victims to perjure themselves
in a sworn statement, and the sum of P15,000.00 as attorney's fees and
litigation expenses."
From the above judgment, Kapalaran appealed to the Court of Appeals
assailing the trial court's findings on the issue of fault and the award of
damages.  The Court of Appeals, on 28 June 1988, affirmed the decision of
the trial court but modified the award of damages by setting aside the grant of
exemplary damages as well as the award of attorney's fee and litigation
expenses made to Dionisio Shinyo.[2]
This decision of the Court of Appeals is now before us on a Petition for
Review, a motion for reconsideration by Kapalaran having been denied by
that court on 13 October 1988.
Kapalaran assails the findings of fact of the Regional Trial Court and of the
Court of Appeals, and insists before this Court that respondent Grajera,
driver of the jeepney, was at fault and not the driver of Kapalaran's bus.  It
must be remembered that it is not the function of this Court to analyze and
weigh evidence presented by the parties all over again and that our
jurisdiction is in principle limited to reviewing errors of law that might have
been committed by the Court of Appeals.  Kapalaran has made no
compelling showing of any misapprehension of facts on the part of the Court
of Appeals that would require us to review and overturn the factual findings
of that court.  On the contrary, examination of the record shows that not only
are the conclusions of fact of the Court of Appeals and the trial court on who
-- the bus driver or the jeepney driver -- had acted negligently and was at
fault in the collision of their vehicles, amply supported by the evidence of
record, but also that Kapalaran's bus driver was grossly negligent and had
acted wantonly and in obvious disregard of the applicable rules on safety on
the highway.
Kapalaran's driver had become aware that some vehicles ahead of the bus
and travelling in the same direction had already stopped at the intersection
obviously to give way either to pedestrians or to another vehicle about to
enter the intersection.  The bus driver, who was driving at a speed too high to
be safe and proper at or near an intersection on the highway, and in any case
too high to be able to slow down and stop behind the cars which had
preceded it and which had stopped at the intersection, chose to swerve to the
left lane and overtake such preceding vehicles, entered the intersection and
directly smashed into the jeepney within the intersection.  Immediately
before the collision, the bus driver was actually violating the following traffic
rules and regulations, among others, in the Land Transportation and Traffic
Code, Republic Act No. 4136, as amended:
"Sec. 35.  Restriction as to speed.  -- (a) Any person driving a motor vehicle
on a highway 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
width of the highway, and or any other condition then and there existing;
and no person shall drive any motor vehicle upon a highway at such a speed
as to endanger the life, limb and property of any person, nor at a speed
greater than will permit him to bring the vehicle to a stop within the assured
clear distance ahead.
x x x              x x x                 x x x
Sec. 41.  Restrictions on overtaking and passing. -- (a) The driver of a vehicle
shall not drive to the left side of the center line of a highway in overtaking or
passing another vehicle, proceeding in the same direction, unless such left
side is clearly visible, and is free of oncoming traffic for a sufficient distance
ahead to permit such overtaking or passing to be made in safety.
x x x              x x x                 x x x
(c) The driver of a vehicle shall not overtake or pass any other vehicle
proceeding in the same direction, at any railway grade crossing, or at any
intersection of highways, unless such intersection or crossing is controlled by
traffic signal, or unless permitted to do so by a watchman or a peace officer,
except on a highway having two or more lanes for movement of traffic in one
direction where the driver of a vehicle may overtake or pass another vehicle
on the right.  Nothing in this section shall be construed to prohibit a driver
overtaking or passing, upon the right, another vehicle which is making or
about to make a left turn.
x x x              x x x                 x x x."
(Underscoring supplied)
Thus, a legal presumption arose that the bus driver was negligent, [3] a
presumption Kapalaran was unable to overthrow.
Petitioner's contention that the jeepney should have stopped before entering
the "Y-intersection" because of the possibility that another vehicle
behind the cars which had stopped might not similarly stop and might swerve
to the left to proceed to the highway en route to Manila, is more ingenious
than substantial.  It also offers illustration of the familiar litigation tactic of
shifting blame from one's own shoulders to those of the other party.  But
the jeepney driver, seeing the cars closest to the intersection on
the opposite side of the highway come to a stop to give way to him, had the
right to assume that other vehicles further away and behind the stopped cars
would similarly come to a stop and not seek illegally to overtake the stopped
vehicles and come careening into the intersection at an unsafe speed.
[4]
 Petitioner's bus was still relatively far away from the intersection when
the jeepney entered the same; the bus collided head-on into
the jeepney because the bus had been going at an excessively high velocity
immediately before and at the time of overtaking the stopped cars, and so
caught the jeepney within the intersection.  It was also the responsibility of
the bus driver to see to it, when it overtook the two (2) cars ahead which had
stopped at the intersection, that the left lane of the road within the
intersection and beyond was clear.  The point of impact was on the left side
of the intersection (the right lane so far as concerns the jeepney coming from
the opposite side), which was precisely the lane or side on which
the jeepney had a right to be.
Petitioner Kapalaran also assails the award of moral damages against itself,
upon the ground that its own bus driver, third-party defendant, was
apparently not held liable by the trial court.[5] Hence, Kapalaran argues that
there was no justification for holding it, the employer, liable for damages,
considering that such liability was premised upon the bus driver's negligence,
and that petitioner "as mere employer" was not guilty of such negligence or
imprudence.[6] This contention is thoroughly unpersuasive.  The patent and
gross negligence on the part of petitioner Kapalaran'sdriver raised the legal
presumption that Kapalaran as employer was guilty of negligence either in
the selection or in the supervision of its bus drivers. [7] Where the employer is
held liable for damages, it has of course a right of recourse against its own
negligent employee.  If petitioner Kapalaran was interested in maintaining its
right of recourse against or reimbursement from its own driver, [8] it should
have appealed from that portion of the trial court's decision which had failed
to hold the bus driver responsible for any damage.  Contrary
to Kapalaran's pretense, its liability for the acts and negligence of its bus
driver is not "merely subsidiary", and is not limited to cases where the
employee "cannot pay his liability", nor are private respondents compelled
first to proceed against the bus driver.  The liability of the employer under
Article 2180 of the Civil Code is direct and immediate:  it is not conditioned
upon prior recourse against the negligent employee and a prior showing of
the insolvency of such employee.[9] So far as the record shows,
petitioner Kapalaran was unable to rebut the presumption of negligence on its
own part.  The award of moral damages against petitioner Kapalaran is not
only entirely in order:  it is also quite modest
considering Dionisio Shinyo's death during the pendency of this petition, a
death hastened by, if not directly due to, the grievous injuries sustained by
him in the violent collision.
The Court of Appeals deleted the award of exemplary damages which the
trial court had granted in order "to serve as a deterrent to others who, like the
plaintiff [Kapalaran], may be minded to induce accident victims to perjure
themselves in a sworn statement." The Court of Appeals held that there was
no basis for this award of exemplary damages, stating that it was not "such a
reprehensible act to try to gather witnesses for one's cause" and that there was
no evidence of use of "pressure or influence" to induce the accident victims
to perjure themselves.  While that might have been so, both the trial court and
the Court of Appeals overlooked another and far more compelling basis for
the award of exemplary damages against petitioner Kapalaran in this
case.  There is no question that petitioner's bus driver was grossly and very
probably criminally negligent in his reckless disregard of the rights of other
vehicles and their passengers and of pedestrians as well.  The Court is
entitled to take judicial notice of the gross negligence and the appalling
disregard of the physical safety and property of others so commonly
exhibited today by the drivers of passenger buses and similar vehicles on our
highways.  The law requires petitioner as common carrier to exercise restored and increased from P10,000.00 to P25,000.00, and (2) that the grant
extraordinary diligence in carrying and transporting their passengers of attorney's fees and litigation expenses in the sum of P15,000.00
safely "as far as human care and foresight can provide, using the utmost to Dionisio Shinyo shall similarly be restored.  Costs against petitioner.
diligence of very cautious persons, with due regard for all the
circumstances."[10] In requiring the highest possible degree of diligence from SO ORDERED.
common carriers and creating a presumption of negligence against them, the
law compels them to curb the recklessness of their drivers. [11] While the Fernan, C.J., (Chairman), Gutierrez, Jr., Bidin, and Cortes, JJ., concur.
immediate beneficiaries of the standard of extraordinary diligence are, of
course, the passengers and owners of cargo carried by a common carrier, they
are not the only persons that the law seeks to benefit.  For if common carriers
carefully observed the statutory standard of extraordinary diligence in respect
of their own passengers, they cannot help but simultaneously benefit
pedestrians and the owners and passengers of other vehicles who are equally
entitled to the safe and convenient use of our roads and highways.
[12]
 The law seeks to stop and prevent the slaughter and maiming of people
(whether passengers or not) and the destruction of property (whether freight
or not) on our highways by buses, the very size and power of which seem
often to inflame the minds of their drivers.  Article 2231 of the Civil Code
explicitly authorizes the imposition of exemplary damages in cases of quasi-
delicts "if the defendant acted with gross negligence".  Thus we believe that
the award of exemplary damages by the trial court was quite proper, although
granted for the wrong reason, and should not only be restored but augmented
in the present case.  The Court is aware that respondent Shinyo did not file a
separate petition for review to set aside that portion of the Court of Appeals’
decision which deleted the grant by the trial court of exemplary damages.  It
is settled, however, that issues which must be resolved if substantial justice is
to be rendered to the parties, may and should be considered and decided by
this Court even if those issues had not been explicitly raised by the party
affected.[13] In the instant case, it is not only the demands of substantial
justice but also the compelling considerations of public policy noted above,
which impel us to the conclusion that the trial court's award of exemplary
damages was erroneously deleted and must be restored and brought more
nearly to the level which public policy and substantial justice require.

In much the same vein, we believe that the award by the trial court of
P15,000.00 as attorney's fees and litigation expenses, deleted by the Court of
Appeals, should similarly be restored, being both authorized by law [14] and
demanded by substantial justice in the instant case.

WHEREFORE, the Petition for Review on Certiorari is DENIED for lack

of merit and the Decision of the Court of Appeals is hereby AFFIRMED,
except (1) that the award of exemplary damages to Dionisio Shinyo shall be
104 Phil. 65 other means of transportation, to which defendant agreed, and in that same
morning the pick-up left Parang bound for Davao taking along six
[ G. R. No. L-9907, June 30, 1958 ] passengers, including Lara. 

LOURDES J. LARA, ET AL., PLAINTIFFS AND APPELLANTS, VS. The pick-up has a front seat where the driver and two passengers can be
BRIGIDO R. VALENCIA, DEFENDANT AND APPELLANT. accommodated and the back has a steel flooring enclosed with a steel walling
of 16 to 17 inches tall on the sides and with a 19 inches tall walling at the
DECISION back. Before leaving Parang, the sitting arrangement was as follows:
defendant was at the wheel and seated with him in the front seat were Mrs.
Valencia and Nicanor Quinain; on the back of the pick-up were two
BAUTISTA ANGELO, J.:  improvised benches placed on each side, and seated on the right bench were
Ricardo Alojipan and Antonio Lagahit, and on the left one Bernardo and
This is an action for damages brought by plaintiffs against defendant in the Pastor Geronimo. A person by the name of Leoning was seated on a box
Court of First Instance of Davao for the death of one Demetrio Lara, Sr. located on the left side while in the middle Lara sat on a bag. Before leaving
allegedly caused by the negligent act of defendant. Defendant denied the Parang, defendant invited Lara to sit with him on the front seat but Lara
charge of negligence and set up certain affirmative defenses and a declined. It was their understanding that upon reaching barrio Samoay,
counterclaim.  Cotabato, the passengers were to alight and take a bus bound for Davao, but
when they arrived at that place, only Bernardo alighted and the other
The court after hearing rendered judgment ordering defendant to pay the passengers requested defendant to allow them to ride with him up to Davao
plaintiffs the following amount: (a) P10,000 as moral damages; (b) P3,000 as because there was then no available bus that they could take in going to that
exemplary damages; and (c) P1,000 as attorney's fees, in addition to the costs place. Defendant again accommodated the passengers. 
of action. Both parties appealed to this Court because the damages claimed in
the complaint exceed the sum of P50,000.  When they continued their trip, the sitting arrangement of the passengers
remained the same, Lara being seated on a bag in the middle with his arms on
In their appeal, plaintiffs claim that the court a quo erred in disregarding their a suitcase and his head covered by a jacket. Upon reaching Km. 96, barrio
claim of P41,400 as actual or compensatory damages and in awarding as Catidtuan, Lara accidentally fell from the pick-up and as a result he suffered
attorneys' fees only the sum of P1,000 instead of P3,000 as agreed upon serious injuries. Valencia stopped the pick-up to see what happened to Lara.
between plaintiffs and their counsel. Defendant, on the other hand, disputes He sought the help of the residents of that place and applied water to Lara but
the finding of the court a quo that the death of Demetrio Lara, Sr. was due to to no avail. They brought Lara to the nearest place where they could find a
the negligence of defendant and the portion of the judgment which orders doctor and not having found any they took him to St. Joseph's Clinic of
defendant to pay to plaintiffs moral and exemplary damages as well as Kidapawan. But when Lara arrived he was already dead. From there they
attorneys' fees, said defendant contending that the court should have declared proceeded to Davao City and immediately notified the local authorities. An
that the death of Lara was due to unavoidable accident.  investigation was made regarding the circumstances surrounding the death of
Lara but no criminal action was taken against defendant. 
The deceased was an inspector of the Bureau of Forestry stationed in Davao
with an annual salary of P1,800. The defendant is engaged in the business of It should be noted that the deceased went to the lumber concession of
exporting logs from his lumber concession in Cotabato. Lara went to said defendant in Parang, Cotabato upon instructions of his chief in order to
concession upon instructions of his chief to classify the logs of defendant classify the logs of defendant which were then ready to be exported and to be
which were about to be loaded on a ship anchored in the port of Parang. The loaded on a ship anchored in the port of Parang. It took Lara six days to do
work of Lara lasted for six days during which he contracted malaria fever. In his work during which he contracted malaria fever and for that reason he
the morning of January 9, 1954, Lara who then in a hurry to return to Davao evinced a desire to return immediately to Davao. At that time, there was no
asked defendant if he could take him in his pick-up as there was then no available bus that could take him back to Davao and so he requested the
defendant if he could take him in his own pick-up. Defendant agreed and,
together with Lara, other passengers tagged along, most of them were
employees of the Government. Defendant merely accommodated them and
did not charge them any fee for the service. It was also their understanding
that upon reaching barrio Samoay, the passengers would alight and transfer
to a bus that regularly makes the trip to Davao but unfortunately there was
none available at the time and so the same passengers, including Lara, again
requested the defendant to drive them to Davao. Defendant again
accommodated them and upon reaching Km. 96, Lara accidentally fell
suffering fatal injuries.  vehiculo no estable en su marcha. Lara estaba enfermo de cierta gravedad,
It therefore appears that the deceased, as well as his companions who rode in
the pick-up of defendant, were merely accommodation passengers who paid
nothing for the service and so they can be considered as invited guests within
the meaning of the law. As accommodation passengers or invited guests,
defendant as owner and driver of the pick-up owes to them merely the duty to
exercise reasonable care so that they may be transported safely to their
destination. Thus, "The rule is established by the weight of authority that the
owner or operator of an automobile owes the duty to aninvited guest to
exercise reasonable care in its operation, and not unreasonably to expose him
to danger and injury by increasing the hazard of travel. This rule, as
frequently stated by the courts, is that an owner of an automobile owes a
guest the duty to exercise ordinary or reasonable care to avoid injuring him.
Since one riding in an automobile is no less a guest because he asked for the
privilege of doing so, the same obligation of care is imposed upon the driver
as in the case of one expressly invited to ride" (5 Am. Jur., 626-627).
Defendant, therefore, is only required to observe ordinary care, and is not in
duty bound to exercise extraordinary diligence as required of a common
carrier by our law (Articles 1755 and 1756, new Civil Code).  negligence or without taking the precaution that an ordinary prudent man
The question that now arises is: Is there enough evidence to show that
defendant failed to observe ordinary care or diligence in transporting the
deceased from Parang to Davao on the date in question?  contracted the malaria fever in the course of the performance of that duty. It
The trial court answered the question in the affirmative but in so doing it took
into account only the following facts:
"No debe perderse de vista el hecho, que los negocios de ex-portacion de
trozos del demandado tiene un volumen de P1,200. Lara era empleado de la
Oficina de Montes, asalariado por el gobierno, no pagado por el demandado
para classificar los trozos exportados; debido a los trabajos de classificacion
que duro 6 dias, en su ultimo dia Lara no durmio toda la noche, al dia
siguiente, Lara fue atacado de malaria, tenia inflamada la cara y cuerpo,
sufria dolores de cabeza con erupciones en la cara y cuerpo; que en la
mañana del dia 2 de enero de 1954, fecha en que Lara salio de Davao para
Parang, en aeroplano para clasificar los trozos del demandado, el automobil
de este condujo a aquel al aerodromo de Davao. 
******* 
"El viaje de Cotabato a Davao no es menos de 8 horas, su carretera esta en
malas condiciones, desnivelada, con piedras salientes y baches, que hacen del
tenia el cuerpo y cara inflamados, atacado de malaria, con dolores de cabeza
y con erupciones en la cara y cuerpo.
"A la vista de estos hechos, el demandado debia de saber que era sumamente
peligroso llevar 5 pasajeros en la parte trasera del pick-up; particularmente,
para la salud de Lara; el permitirlo, el demandado no ha tornado las debidas
precausiones, para evitar un posible accidente fatal. La negativa de Lara de
ocupar el asiento delantero del pickup no constitute a juicio del Juzgado una
defensa, pues el demandado conociendo el estado delicado de salud de Lara,
no debio de haber permitido que aquel regrese a Davao en su pickup; si
querria prestar a aquel un favor, debio de haber provisto a Lara de un
automobil para su regrese a Davao, ya que el demandado es un millionario; si
no podia prestar a aquel este favor, debio de haber dejado a Lara en Samuay
para coger aquel un camion de pasajero de Cotabato a Davao."
Even if we admit as true the facts found by the trial court, still we find that
the same are not sufficient to show that defendant has failed to take the
precaution necessary to conduct his passengers safely to their place of
destination for there is nothing there to indicate that defendant has acted with
would have taken under similar circumstances. It should be noted that Lara
went to the lumber concession of defendant in answer to a call of duty which
he was bound to perform because of the requirement of his office and he
should also be noted that defendant was not in duty bound to take the
deceased in his own pick-up to Davao because from Parang to Cotabato there
was a line of transportation that regularly makes trips for the public, and if
defendant agreed to take the deceased in his own car, it was only to
accommodate him considering his feverish condition and his request that he
be so accommodated. It should also be noted that the passengers who rode in
the pick-up of defendant took their respective seats therein at their own
choice and not upon indication of defendant with the particularity that
defendant invited the deceased to sit with him in the front seat but which
invitation the deceased declined. The reason for this can only be attributed to
his desire to be at the back so that he could sit on a bag and travel in a,
reclining position because such was more convenient for him due to his
feverish condition. All the circumstances therefor clearly indicate that
defendant had done what a reasonable prudent man would have done under
the circumstances. 

There is every reason to believe that the unfortunate happening was only due
to an unforeseen accident caused by the fact that at the time the deceased was
half asleep and must have fallen from the pick-up when it ran into some
stones causing it to jerk considering that the road was then bumpy, rough and
full of stones. 

The finding of the trial court that the pick-up was running at more than 40
kilometers per hour is not supported by the evidence. This is a mere surmise
made by the trial court considering the time the pick-up left barrio Samoay
and the time the accident occured in relation to the distance covered by the
pick-up. And even if this is correct, still we say that such speed is not
unreasonable considering that they were traveling on a national road and the
traffic then was not heavy. We may rather attribute the incident to lack of
care on the part of the deceased considering that the pick-up was open and he
was then in a crouching position. Indeed, the law provides that "A passenger
must observe the diligence of a good father of a family to avoid injury to
himself" (Article 1761, new Civil Code), which means that if the injury to the
passenger has been proximately caused by his own negligence, the carrier
cannot be held liable. 

All things considered, we are persuaded to conclude that the accident

occurred not due to the negligence of defendant but to circumstances beyond
his control and so he should be exempt from liability. 

Wherefore, the decision appealed from is reversed, without pronouncement

as to costs. 

Paras, C. J., Bengzon, Reyes, A., Concepcion, Reyes, J. B. L.,

Endencia and Felix, JJ., concur. 
211 Phil. 37
FIRST DIVISION
[ G.R. No. L-30309, November 25, 1983 ]
CLEMENTE BRIÑAS, PETITIONER, VS. THE PEOPLE OF THE
PHILIPPINES AND HONORABLE COURT OF APPEALS,
RESPONDENTS.  station in Tagkawayan, Quezon for his 55-year old mother Martina Bool and
DECISION
GUTIERREZ, JR., J.:  Millan taking over as engineman, Clemente Brinas as conductor, and
This is a petition to review the decision of respondent Court of Appeals, now
Intermediate Appellate Court, affirming the decision of the Court of First
Instance of Quezon, Ninth Judicial District, Branch I, which found the
accused Clemente Briñas guilty of the crime of DOUBLE HOMICIDE
THRU RECKLESS IMPRUDENCE for the deaths of Martina Bool and
Emelita Gesmundo.
The information charged the accused-appellant and others as follows:
"That on or about the 6th day of January, 1957, in the Municipality of
Tiaong, Province of Quezon, Philippines, and within the jurisdiction of this
Hon. Court, the said accused Victor Milan, Clemente Briñas and
Hemogenes Buencamino, being then persons in charge of passenger Train
No. 522-6 of the Manila Railroad Company, then running from Tagkawayan
to San Pablo City, as engine driver, conductor and assistant conductor,
respectively, wilfully and unlawfully drove and operated the same
in a negligent, careless and imprudent manner, without due regard to existing
laws, regulations and ordinances, that although there were
passengers on board the passenger coach, they failed to provide lamps or
lights therein, and failed to take the necessary precautions for the safety of
passengers and to prevent accident to persons and damage to property,
causing by such negligence, carelessness and imprudence, that when said
passenger Train No. 522-6 was passing the railroad tracks in the Municipality
of Tiaong, Quezon, two of its passengers, Martina Bool, an old woman, and
Emelita Gesmundo, a child about three years of age, fell from the passenger
coach of the said train, as a result of which, they were over run, causing their
instantaneous death."
The facts established by the prosecution and accepted by the respondent
court as basis for the decision are summarized as follows:
"The evidence of the prosecution tends to show that in the afternoon of
January 6, 1957, Juanita Gesmundo bought a train ticket at the railroad
his 3-year old daughter Emelita Gesmundo, who were bound for Barrio
Lusacan, Tiaong, same province. At about 2:00 p.m., Train No. 522 left
Tagkawayan with the old woman and her granddaughter among the
passengers. At Hondagua the train's complement were relieved, with Victor
Hermogenes Buencamino as assistant conductor. Upon approaching Barrio
Lagalag in Tiaong at about 8:00 p.m. of that same night, the train slowed
down and the conductor shouted 'Lusacan', Lusacan'. Thereupon, the old
woman walked towards the left front door facing the direction of Tiaong,
carrying the child with one hand and holding her baggage with the other.
When Martina and Emelita were near the door, the train suddenly picked up
speed. As a result the old woman and the child stumbled and they were seen
no more. It took three minutes more before the train stopped at the
next barrio, Lusacan, and the victims were not among the passengers who
disembarked thereat.
"Next morning, the Tiaong police received a report that two corpses were
found along the railroad tracks at Barrio Lagalag. Repairing to the scene to
investigate, they found the lifeless body of a female child, about 2 feet from
the railroad tracks, sprawled to the ground with her belly down, the hand
resting on the forehead, and with the back portion of the head crushed. The
investigators also found the corpse of an old woman about 2 feet away from
the railroad tracks with the head and both legs severed and the left hand
missing. The head was located farther west between the rails. An arm was
found midway from the body of the child to the body of the old woman.
Blood, pieces of scattered brain and pieces of clothes were at the scene.
Later, the bodies were identified as those of Martina Bool and Emelita
Gesmundo. Among the personal effects found on Martina was a train ticket
(Exhibit "B").
On January 7, 1957, the bodies of the deceased were autopsied by Dr. Pastor
Huertas, the Municipal Health Officer of Tiaong. Dr. Huertas testified on the
cause of death of the victims as follows:
"FISCAL YNGENTE: "For lack of sufficient evidence against the defendant Hermogenes
"Q   What could have caused the death of those women? Buencamino and on the ground of reasonable doubt in the case of defendant
Victor Millan, the court hereby acquits them of the crime charged in
"A    Shock. the information and their bail bonds declared cancelled.
"Q   What could have caused that shock? "As to the responsibility of the Manila Railroad Company in this case, this
"A    Traumatic injury. will be the subject of court determination in another proceeding."
"Q   What could have caused traumatic injury?
On appeal, the respondent Court of Appeals affirmed the judgment of the
"A    The running over by the wheel of the train. lower court.
"Q   With those injuries, has a person a chance to survive?
During the pendency of the criminal prosecution in the Court of First
"A    No chance to survive.
Instance of Quezon, the heirs of the deceased victims filed with the same
"Q   What would you say death would come? court a separate civil action for damages against the Manila
"A    Instantaneous. Railroad Company entitled "Civil Case No. 5978, Manaleyo Gesmundo, et
al., v. Manila Railroad Company". The separate civil action was filed for the
"Q   How about the girl, the young girl about four years old, what could have recovery of P30,350.00 from the Manila Railroad Company as damages
caused the death? resulting from the accident.
"A    Shock too.
"Q   What could have caused the shock? The accused-appellant alleges that the Court of Appeals made the following
errors in its decision:
"A    Compound fracture of the skull and going out of the brain.
"Q   What could have caused the fracture of the skull and the going out of the I
brain?
"A    That is the impact against a steel object." THE HONORABLE COURT OF APPEALS ERRED IN CONVICTING
PETITIONER-APPELLANT UNDER THE FACTS AS FOUND BY SAID
(TSN., pp. 81-82, July 1, 1959) COURT; and

The Court of First Instance of Quezon convicted defendant-appellant

II
Clemente Briñas for double homicide thru reckless imprudence but acquitted
Hermogenes Buencamino and Victor Millan. The dispositive portion of the
decision reads: THE HONORABLE COURT OF APPEALS ERRED IN INCLUDING THE
PAYMENT OF DEATH INDEMNITY BY THE PETITIONER?
APPELLANT, WITH SUBSIDIARY IMPRISONMENT IN CASE OF
"WHEREFORE, the court finds the defendant Clemente Briñas guilty
INSOLVENCY, AFTER THE HEIRS OF THE DECEASED HAVE
beyond doubt of the crime of double homicide thru reckless imprudence,
ALREADY COMMENCED A SEPARATE CIVIL ACTION FOR
defined and punished under Article 305 in connection with Article 249 of the
DAMAGES AGAINST THE RAILROAD COMPANY ARISING FROM
Revised Penal Code, and sentences him to suffer six (6) months and one (1)
THE SAME MISHAP.
day of prision correccional, to indemnify the heirs of the deceased Martina
Bool and Emelita Gesmundo in the amounts of P6,000 and P3,000,
respectively, with subsidiary imprisonment in case of insolvency not to We see no error in the factual findings of the respondent court and in the
exceed one-third of the principal penalty, and to pay the costs. conclusion drawn from those findings.
It is undisputed that the victims were on board the second coach where
the petitioner-appellant was assigned as conductor and that when the train
slackened its speed and the conductor shouted "Lusacan, Lusacan", they
stood up and proceeded to the nearest exit. It is also undisputed that the train
unexpectedly resumed its regular speed and as a result "the old woman and
the child stumbled and they were seen no more."
In finding petitioner-appellant negligent, respondent Court of Appeals ruled
that:
xxx                            xxx                               xxx
"The appellant's announcement was premature and erroneous, for it took a
full three minutes more before the next barrio of Lusacan was reached. In
making the erroneous and premature announcement, appellant was negligent.
He ought to have known that train passengers invariably prepare to alight
upon notice from the conductor that the destination was reached and that the
train was about to stop. Upon the facts, it was the appellant's negligent act
which led the victims to the door. Said acts virtually exposed the victims to
peril, for had not the appellant mistakenly made the announcement, the
victims would be safely ensconced in their seats when the train jerked while
picking up speed. Although it might be argued that the negligent act of the
appellant was not the immediate cause of, or the cause nearest in time to, the
injury, for the train jerked before the victims stumbled, yet in legal
contemplation appellant's negligent act was the proximate cause of the
injury. As this Court held in Tucker v. Milan, CA-G.R. No. 7059-R, June 3,
1953: 'The proximate cause of the injury is not necessarily the immediate
cause of, or the cause nearest in time to, the injury. It is only when the causes
are independent of each other that the nearest is to be charged with the
disaster. So long as there is a natural, direct and continuous sequence
between the negligent act the injury (sic) that it can reasonably be said that
but for the act the injury could not have occurred, such negligent act is the
proximate cause of the injury, and whoever is responsible therefore is liable
for damages resulting therefrom. One who negligently creates a dangerous
condition cannot escape liability for the natural and probable consequences
thereof, although the act of a third person, or an act of God for which he is
not responsible intervenes to precipitate the loss."
xxx                            xxx                               xxx
It is a matter of common knowledge and experience about common carriers
like trains and buses that before reaching a station or flagstop they slow
down and the conductor announces the name of the place. It is also a matter
of common experience that as the train or bus slackens its speed, some
passengers usually stand and proceed to the nearest exit, ready to disembark
as the train or bus comes to a full stop. This is especially true of a train
because passengers feel that if the train resumes its run before they are able
to disembark, there is no way to stop it as a bus may be stopped.
It was negligence on the conductor's part to announce the next flag stop when
said stop was still a full three minutes ahead. As the respondent Court of
Appeals correctly observed, "the appellant's announcement was premature
and erroneous."
That the announcement was premature and erroneous is shown by the fact
that immediately after the train slowed down, it unexpectedly accelerated to
full speed. Petitioner-appellant failed to show any reason why the train
suddenly resumed its regular speed. The announcement was made while the
train was still at Barrio Lagalag.
The proximate cause of the death of the victims was the premature and
erroneous announcement of petitioner-appellant Briñas. This announcement
prompted the two victims to stand and proceed to the nearest exit. Without
said announcement, the victims would have been safely seated in their
respective seats when the train jerked as it picked up speed. The connection
between the premature and erroneous announcement of petitioner-appellant
and the deaths of the victims is direct and natural, unbroken by any
intervening efficient causes.
Petitioner-appellant also argues that it was negligence per se for Martina
Bool to go to the door of the coach while the train was still in motion and that
it was this negligence that was the proximate cause of their deaths.
We have carefully examined the records and we agree with the respondent
court that the negligence of petitioner-appellant in prematurely and erron-
eously announcing the next flag stop was the proximate cause of the deaths
of Martina Bool and Emelita Gesmundo. Any negligence of the victims was
at most contributory and does not exculpate the accused from criminal
liability.
With respect to the second assignment of error, the petitioner argues that
after the heirs of Martina Bool and Emelita Gesmundo had actually
commenced the separate civil action for damages in the same trial court
during the pendency of the criminal action, the said court had no more power
to include any civil liability in its judgment of conviction.
The source of the obligation sought to be enforced in Civil Case No. 5978 is
culpa contractual, not an act or omission punishable by law. We also note
from the appellant's arguments and from the title of the civil case that the
party defendant is the Manila Railroad Company and not petitioner-appellant
Briñas. Culpa contractual and an act or omission punishable by law are two
distinct sources of obligation.
instead of P6,000.00 and P12,000.00 for the death of Emelita Gesmundo
instead of P3,000.00, but deleting the subsidiary imprisonment in case of
insolvency imposed by the lower court. The judgment is AFFIRMED in all
other respects.
SO ORDERED.

The petitioner-appellant argues that since the information did not allege Teehankee, (Chairman), Melencio-Herrera, Plana, and Relova, JJ., concur.
the existence of any kind of damages whatsoever coupled by the fact that no
private prosecutors appeared and the prosecution witnesses were not
interrogated on the issue of damages, the trial court erred in awarding death
indemnity in its judgment of conviction.

A perusal of the records clearly shows that the complainants in the criminal

action for double homicide thru reckless imprudence did not only reserve
their right to file an independent civil action but in fact filed a separate civil
action against the Manila Railroad Company.

The trial court acted within its jurisdiction when, despite the filing with it of
the separate civil action against the Manila Railroad Company, it still
awarded death indemnity in the judgment of conviction against the
petitioner-appellant.

It is well-settled that when death occurs as a result of the commission

of a crime, the following items of damages may be recovered:
(1) an indemnity for the death of the victim; (2) an indemnity for loss of
earning capacity of the deceased; (3) moral damages; (4) exemplary
damages; (5) attorney's fees and expenses of litigation, and (6) interest in
proper cases.

The indemnity for loss of earning capacity, moral damages, exemplary

damages, attorney's fees, and interests are recoverable separately from and in
addition to the fixed sum of P12,000.00 corresponding to the indemnity for
the sole fact of death. This indemnity arising from the fact of death due to a
crime is fixed whereas the others are still subject to the determination of the
court based on the evidence presented. The fact that the witnesses were not
interrogated on the issue of damages is of no moment because the death
indemnity fixed for death is separate and distinct from the other forms of
indemnity for damages.

WHEREFORE, the judgment appealed from is modified in that the award

for death indemnity is increased to P12,000.00 for the death of Martina Bool
682 Phil. 343
SECOND DIVISION
[ G.R. No. 190022, February 15, 2012 ]
PHILIPPINE NATIONAL RAILWAYS CORPORATION, JAPHET
ESTRANAS AND BEN SAGA, PETITIONERS, VS. PURIFICACION
VIZCARA, MARIVIC VIZCARA, CRESENCIA A. NATIVIDAD,
HECTOR VIZCARA, JOEL VIZCARA AND DOMINADOR
ANTONIO, RESPONDENTS.
DECISION
REYES, J.:  of the approaching train.  They concluded their complaint with a prayer for
Nature of the Petition
Before this Court is a petition for review on certiorari under Rule 45 of the
1997 Rules of Civil Procedure, seeking to annul and set aside the
Decision[1] dated July 21, 2009 of the Court of Appeals (CA) in CA-G.R. CV
No. 90021, which affirmed with modification the Decision[2] dated March 20,
2007 of the Regional Trial Court (RTC), Branch 40, Palayan City, and
Resolution[3] dated October 26, 2009, which denied the petitioners’ motion
for reconsideration.
The Antecedent Facts
On May 14, 2004, at about three o’clock in the morning, Reynaldo Vizcara
(Reynaldo) was driving a passenger jeepney headed towards Bicol to deliver
onion crops, with his companions, namely, Cresencio Vizcara (Cresencio),
Crispin Natividad (Crispin), Samuel Natividad (Samuel), Dominador
Antonio (Dominador) and Joel Vizcara (Joel). While crossing the railroad
track in Tiaong, Quezon, a Philippine National Railways (PNR) train, then
being operated by respondent Japhet Estranas (Estranas), suddenly turned up
and rammed the passenger jeepney. The collision resulted to the
instantaneous death of Reynaldo, Cresencio, Crispin, and Samuel. On the
other hand, Dominador and Joel, sustained serious physical injuries. [4]
At the time of the accident, there was no level crossing installed at the
railroad crossing. Additionally, the “Stop, Look and Listen” signage was
poorly maintained. The “Stop” signage was already faded while the “Listen”
signage was partly blocked by another signboard. [5]
On September 15, 2004, the survivors of the mishap, Joel and Dominador,
together with the heirs of the deceased victims, namely, Purificacion Vizcara,
Marivic Vizcara, Cresencia Natividad and Hector Vizcara, filed an action for
damages against PNR, Estranas and Ben Saga, the alternate driver of the
train, before the RTC of Palayan City. The case was raffled to Branch 40 and
was docketed as Civil Case No. 0365-P. In their complaint, the respondents
alleged that the proximate cause of the fatalities and serious physical injuries
sustained by the victims of the accident was the petitioners’ gross negligence
in not providing adequate safety measures to prevent injury to persons and
properties. They pointed out that in the railroad track of Tiaong, Quezon
where the accident happened, there was no level crossing bar, lighting
equipment or bell installed to warn motorists of the existence of the track and
actual, moral and compensatory damages, as well as attorney’s fees. [6]
For their part, the petitioners claimed that they exercised due diligence in
operating the train and monitoring its roadworthiness. They asseverate that
right before the collision, Estranas was driving the train at a moderate speed.
Four hundred (400) meters away from the railroad crossing, he started
blowing his horn to warn motorists of the approaching train. When the train
was only fifty (50) meters away from the intersection, respondent Estranas
noticed that all vehicles on both sides of the track were already at a full stop. 
Thus, he carefully proceeded at a speed of twenty-five (25) kilometers per
hour, still blowing the train’s horn. However, when the train was already ten
(10) meters away from the intersection, the passenger jeepney being driven
by Reynaldo suddenly crossed the tracks. Estranas immediately stepped on
the brakes to avoid hitting the jeepney but due to the sheer weight of the
train, it did not instantly come to a complete stop until the jeepney was
dragged 20 to 30 meters away from the point of collision. [7]
The Ruling of the Trial Court
After trial on the merits, the RTC rendered its Decision [8] dated March 20,
2007, ruling in favor of the respondents, the dispositive portion of which
reads:
WHEREFORE, premises considered, judgment is hereby rendered ordering
defendants Philippine National Railways Corporation (PNR), Japhet Estranas
and Ben Saga to, jointly and severally pay the following amounts to:
 1) P63,427.00 as reimbursement for his actual expenses;
1.  a)  PURIFICACION VIZCARA: 2) P50,000.00 as moral damages;
3) P25,000.00 as exemplary damages; and
1) P50,000.00, as indemnity for the death of Reynaldo Vizcara; 4) P10,000.00 for Attorney’s fees.
2) P35,000.00, for funeral expenses;
3) P5,000.00 for re-embalming expenses; and
4) P40,000.00 for wake/interment expenses;
5) P300,000.00 as reimbursement for the value of the jeepney with license 2.  Costs of suit.
plate no. DTW-387;
6) P200,000.00 as moral damages; SO ORDERED.[9]
7) P100,000.00 as exemplary damages; and
8) P20,000.00 for Attorney’s fees. The Ruling of the CA
b)  MARIVIC VIZCARA: Unyielding, the petitioners appealed the RTC decision to the CA. 
Subsequently, on July 21, 2009, the CA rendered the assailed decision,
1) P50,000.00, as indemnity for the death of Cresencio Vizcara; affirming the RTC decision with modification with respect to the amount of
2) P200,000.00 as moral damages; damages awarded to the respondents. The CA disposed, thus:
3) P100,000.00 as exemplary damages; and
4)  P20,000.00 for Attorney’s fees. WHEREFORE, instant appeal is PARTIALLY GRANTED.  The assailed
Decision is AFFIRMED WITH MODIFICATION, as follows:
c)  HECTOR VIZCARA:
(1) The award of P5,000.00 for re-embalming expenses and P40,000.00 for
1) P50,000.00 as indemnity for the death of Samuel Vizcara; wake/interment expenses to PURIFICACION VIZCARA is deleted. In lieu
2) P200,000.00 as moral damages; thereof, P25,000.00 as temperate damages is awarded;
3) P100,000.00 as exemplary damages; and
4) P20,000.00 for Attorney’s fees. (2) The award of moral damages to PURIFICACION VIZCARA,
MARIVIC VIZCARA, HECTOR VIZCARA and CRESENCIA
d)  CRESENCIA NATIVIDAD: NATIVIDAD is hereby reduced from P200,000.00 to P100,000.00 each
while moral damages awarded to JOEL VIZCARA and DOMINADOR
1) P50,000.00 as indemnity  for the death of Crispin Natividad; ANTONIO are likewise reduced from P50,000.00 to P25,000.00;
2) P200,000.00 as moral damages;
3) P100,000.00 as exemplary damages; and (3) The award of exemplary damages to PURIFICACION VIZCARA,
4) P20,000.00 for Attorney’s fees. MARIVIC VIZCARA, HECTOR VIZCARA and CRESENCIA
NATIVIDAD is hereby reduced from P100,000.00 to P50,000.00 each while
e)      JOEL VIZCARA exemplary damages awarded to JOEL VIZCARA and DOMINADOR
ANTONIO are likewise reduced from P25,000.00 to P12,500.00; and
1)  P9,870.00 as reimbursement for his actual expenses;
2)  P50,000.00 as moral damages; (4) The award for attorney’s fees in favor of the Appellees as well as the
3)  P25,000.00 as exemplary damages; and award of P300,000.00 to Appellee PURIFICACION as  reimbursement  for
4)  P10,000.00 for Attorney’s fees. the value of the jeepney is DELETED.
f)  DOMINADOR ANTONIO SO ORDERED.[10]

In the assailed decision, the CA affirmed the RTC’s finding of negligence on
the part of the petitioners. It concurred with the trial court's conclusion that
petitioner PNR's failure to install sufficient safety devices in the area, such as
flagbars or safety railroad bars and signage, was the proximate cause of the
accident. Nonetheless, in order to conform with established jurisprudence, it
modified the monetary awards to the victims and the heirs of those who
perished due to the collision.
The petitioners filed a Motion for Reconsideration[11] of the decision of the
CA. However, in a Resolution[12] dated October 26, 2009, the CA denied the
same.
Aggrieved, the petitioners filed the present petition for review on certiorari,
raising the following grounds:
I
THE CA ERRED IN FINDING THAT THE PROXIMATE CAUSE OF
THE ACCIDENT WAS THE NEGLIGENCE OF THE PETITIONERS;
II
THE CA ERRED IN HOLDING THAT THE DOCTRINE OF LAST
CLEAR CHANCE FINDS NO APPLICATION IN THE INSTANT
CASE;
III
THE CA ERRED IN FINDING NEGLIGENCE ON THE PART OF
THE PETITIONERS OR ERRED IN NOT FINDING AT THE LEAST,
CONTRIBUTORY NEGLIGENCE ON THE PART OF THE
RESPONDENTS.[13]
The petitioners maintain that the proximate cause of the collision was the
negligence and recklessness of the driver of the jeepney. They argue that as a
professional driver, Reynaldo is presumed to be familiar with traffic rules
and regulations, including the right of way accorded to trains at railroad
crossing and the precautionary measures to observe in traversing the same.
However, in utter disregard of the right of way enjoyed by PNR trains, he
failed to bring his jeepney to a full stop before crossing the railroad track and
thoughtlessly followed the ten-wheeler truck ahead of them.  His failure to
maintain a safe distance between the jeepney he was driving and the truck
ahead of the same prevented him from seeing the PNR signage displayed
along the crossing.[14]
In their Comment,[15] the respondents reiterate the findings of the RTC and
the CA that the petitioners' negligence in maintaining adequate and necessary
public safety devices in the area of the accident was the proximate cause of
the mishap. They asseverate that if there was only a level crossing bar,
warning light or sound, or flagman in the intersection, the accident would not
have happened. Thus, there is no other party to blame but the petitioners for
their failure to ensure that adequate warning devices are installed along the
railroad crossing.[16]
This Court’s Ruling
The petition lacks merit.
The petitioners’ negligence was the 
proximate cause of the accident.  
Article 2176 of the New Civil Code prescribes a civil liability for damages
caused by a person's act or omission constituting fault or negligence. It states:
Article 2176. Whoever by act or omission causes damage to another, there
being fault or negligence, is obliged to pay for the damage done.  Such fault
or negligence, if there was no pre-existing contractual relation between the
parties, is called quasi-delict and is governed by the provisions of this
chapter.
In Layugan v. Intermediate Appellate Court,[17] negligence was defined as the
omission to do something which a reasonable man, guided by considerations
which ordinarily regulate the conduct of human affairs, would do, or the
doing of something which a prudent and reasonable man would not do. It is
the failure to observe for the protection of the interests of another person, that
degree of care, precaution, and vigilance which the circumstances justly
demand, whereby such other person suffers injury. [18] To determine the
existence of negligence, the time-honored test was: Did the defendant in
doing the alleged negligent act use that reasonable care and caution which an
ordinarily prudent person would have used in the same situation? If not, then
he is guilty of negligence. The law here in effect adopts the standard
supposed to be supplied by the imaginary conduct of the
discreet paterfamilias of the Roman law. The existence of negligence in a
given case is not determined by reference to the personal judgment of the
actor in the situation before him. The law considers what would be reckless,
blameworthy, or negligent in the man of ordinary intelligence and prudence
and determines liability by that.[19]
In the instant petition, this Court is called upon to determine whose
negligence occasioned the ill-fated incident. The records however reveal that
this issue had been rigorously discussed by both the RTC and the CA. To
emphasize, the RTC ruled that it was the petitioners’ failure to install
adequate safety devices at the railroad crossing which proximately caused the
collision. This finding was affirmed by the CA in its July 21, 2009 Decision.
It is a well-established rule that factual findings by the CA are conclusive on
the parties and are not reviewable by this Court. They are entitled to great
weight and respect, even finality, especially when, as in this case, the CA
affirmed the factual findings arrived at by the trial court. [20]
Furthermore, in petitions for review on certiorari, only questions of law may
be put into issue. Questions of fact cannot be entertained. [21] To distinguish
one from the other, a question of law exists when the doubt or difference
centers on what the law is on a certain state of facts. A question of fact, on
the other hand, exists if the doubt centers on the truth or falsity of the alleged
facts.[22] Certainly, the finding of negligence by the RTC, which was affirmed
by the CA, is a question of fact which this Court cannot pass upon as this
would entail going into the factual matters on which the negligence was
based.[23] Moreover, it was not shown that the present case falls under any of
the recognized exceptions[24] to the oft repeated principle according great
weight and respect to the factual findings of the trial court and the CA.
At any rate, the records bear out that the factual circumstances of the case
were meticulously scrutinized by both the RTC and the CA before arriving at
the same finding of negligence on the part of the petitioners, and we found no
compelling reason to disturb the same. Both courts ruled that the petitioners
fell short of the diligence expected of it, taking into consideration the nature
of its business, to forestall any untoward incident. In particular, the
petitioners failed to install safety railroad bars to prevent motorists from
crossing the tracks in order to give way to an approaching train. Aside from
the absence of a crossing bar, the “Stop, Look and Listen” signage installed
in the area was poorly maintained, hence, inadequate to alert the public of the
impending danger. A reliable signaling device in good condition, not just a
dilapidated “Stop, Look and Listen” signage, is needed to give notice to the
public. It is the responsibility of the railroad company to use reasonable care
to keep the signal devices in working order. Failure to do so would be an
indication of negligence.[25] Having established the fact of negligence on the
part of the petitioners, they were rightfully held liable for damages.
There was no contributory negligence
on the part of the respondents.  
As to whether there was contributory negligence on the part of the
respondents, this court rule in the negative. Contributory negligence is
conduct on the part of the injured party, contributing as a legal cause to the
harm he has suffered, which falls below the standard which he is required to
conform for his own protection. It is an act or omission amounting to want of
ordinary care on the part of the person injured which, concurring with the
defendant’s negligence, is the proximate cause of the injury. [26] Here, we
cannot see how the respondents could have contributed to their injury when
they were not even aware of the forthcoming danger. It was established
during the trial that the jeepney carrying the respondents was following a ten-
wheeler truck which was only about three to five meters ahead. When the
truck proceeded to traverse the railroad track, Reynaldo, the driver of the
jeepney, simply followed through. He did so under the impression that it was
safe to proceed. It bears noting that the prevailing circumstances immediately
before the collision did not manifest even the slightest indication of an
imminent harm. To begin with, the truck they were trailing was able to safely
cross the track. Likewise, there was no crossing bar to prevent them from
proceeding or, at least, a stoplight or signage to forewarn them of the
approaching peril. Thus, relying on his faculties of sight and hearing,
Reynaldo had no reason to anticipate the impending danger. [27] He proceeded
to cross the track and, all of a sudden, his jeepney was rammed by the train
being operated by the petitioners. Even then, the circumstances before the
collision negate the imputation of contributory negligence on the part of the
respondents. What clearly appears is that the accident would not have
happened had the petitioners installed reliable and adequate safety devices
along the crossing to ensure the safety of all those who may utilize the same.
At this age of modern transportation, it behooves the PNR to exert serious
efforts to catch up with the trend, including the contemporary standards in
railroad safety. As an institution established to alleviate public transportation,
it is the duty of the PNR to promote the safety and security of the general
riding public and provide for their convenience, which to a considerable
degree may be accomplished by the installation of precautionary warning
devices. Every railroad crossing must be installed with barriers on each side
of the track to block the full width of the road until after the train runs past
the crossing. To even draw closer attention, the railroad crossing may be
equipped with a device which rings a bell or turns on a signal light to signify
the danger or risk of crossing. It is similarly beneficial to mount advance
warning signs at the railroad crossing, such as a reflectorized crossbuck sign
to inform motorists of the existence of the track, and a stop, look and listen
signage to prompt the public to take caution. These warning signs must be
erected in a place where they will have ample lighting and unobstructed
visibility both day and night. If only these safety devices were installed at the
Tiaong railroad crossing and the accident nevertheless occurred, we could
have reached a different disposition in the extent of the petitioner’s liability.
The exacting nature of the responsibility of railroad companies to secure
public safety by the installation of warning devices was emphasized
in Philippine National Railways v. Court of Appeals,[28] thus:
[I]t may broadly be stated that railroad companies owe to the public a duty of
exercising a reasonable degree of care to avoid injury to persons and property
at railroad crossings, which duties pertain both to the operation of trains and
to the maintenance of the crossings. Moreover, every corporation
constructing or operating a railway shall make and construct at all points
where such railway crosses any public road, good, sufficient, and safe
crossings, and erect at such points, at sufficient elevation from such road as
to admit a free passage of vehicles of every kind, a sign with large and
distinct letters placed thereon, to give notice of the proximity of the railway,
and warn persons of the necessity of looking out for trains. The failure of the
PNR to put a cross bar, or signal light, flagman or switchman, or semaphore
is evidence of negligence and disregard of the safety of the public, even if
there is no law or ordinance requiring it, because public safety demands that
said device or equipment be installed.[29]
The responsibility of the PNR to secure public safety does not end with the
installation of safety equipment and signages but, with equal measure of
accountability, with the upkeep and repair of the same. Thus, in Cusi v.
Philippine National Railways,[30] we held:
Jurisprudence recognizes that if warning devices are installed in railroad
crossings, the travelling public has the right to rely on such warning devices
to put them on their guard and take the necessary precautions before crossing
the tracks. A need, therefore, exists for the railroad company to use
reasonable care to keep such devices in good condition and in working order,
or to give notice that they are not operating, since if such a signal is
misunderstood it is a menace. Thus, it has been held that if a railroad
company maintains a signalling device at a crossing to give warning of the
approach of a train, the failure of the device to operate is generally held to be
evidence of negligence, which maybe considered with all the circumstances
of the case in determining whether the railroad company was negligent as a
matter of fact. [31]
The maintenance of safety equipment and warning signals at railroad
crossings is equally important as their installation since poorly maintained
safety warning devices court as much danger as when none was installed at
all. The presence of safety warning signals at railroad crossing carries with it
the presumption that they are in good working condition and that the public
may depend on them for assistance. If they happen to be neglected and
inoperative, the public may be misled into relying on the impression of safety
they normally convey and eventually bring injury to themselves in doing so.
The doctrine of last clear 
chance is not applicable.
Finally, the CA correctly ruled that the doctrine of last clear chance is not
applicable in the instant case. The doctrine of last clear chance provides that
where both parties are negligent but the negligent act of one is appreciably
later in point of time than that of the other, or where it is impossible to
determine whose fault or negligence brought about the occurrence of the
incident, the one who had the last clear opportunity to avoid the impending
harm but failed to do so, is chargeable with the consequences arising
therefrom. Stated differently, the rule is that the antecedent negligence of a
person does not preclude recovery of damages caused by the supervening
negligence of the latter, who had the last fair chance to prevent the
impending harm by the exercise of due diligence. [32] To reiterate, the
proximate cause of the collision was the petitioners’ negligence in ensuring
that motorists and pedestrians alike may safely cross the railroad track. The
unsuspecting driver and passengers of the jeepney did not have any
participation in the occurrence of the unfortunate incident which befell them.
Likewise, they did not exhibit any overt act manifesting disregard for their
own safety. Thus, absent preceding negligence on the part of the respondents,
the doctrine of last clear chance cannot be applied.
WHEREFORE, premises considered, the petition is DENIED. The
Decision of the Court of Appeals dated July 21, 2009 in CA-G.R. CV No.
90021 is hereby AFFIRMED.
SO ORDERED.
Carpio, (Chairperson), Villarama, Jr.,* Perez, and Sereno, JJ., concur.