Republic of the Philippines
Zarate (Aaron), then a high school student of Don
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 157917 August 29, 2012
SPOUSES TEODORO1 and NANETTE PERENA, Petitioners,
vs.
SPOUSES TERESITA PHILIPPINE NICOLAS and L. ZARATE, NATIONAL
RAILWAYS, and the COURT OF APPEALS Respondents.
DECISION
BERSAMIN, J.:
The operator of a. school bus service is a common carrier in the eyes
of the law. He is bound to observe extraordinary diligence in the
conduct of his business. He is presumed to be negligent when death
occurs to a passenger. His liability may include indemnity for loss of
earning capacity even if the deceased passenger may only be an
unemployed high school student at the time of the accident.
The Case
By petition for review on certiorari, Spouses Teodoro and Nanette
Perefia (Perefias) appeal the adverse decision promulgated on
November 13, 2002, by which the Court of Appeals (CA) affirmed
with modification the decision rendered on December 3, 1999 by
the Regional Trial Court (RTC), Branch 260, in Parañaque City that
had decreed them jointly and severally liable with Philippine
National Railways (PNR), their co-defendant, to Spouses Nicolas and
Teresita Zarate (Zarates) for the death of their 15-year old son,
Aaron John L.
Bosco Technical Institute (Don Bosco).
Antecedents
The Pereñas were engaged in the business of transporting students
from their respective residences in Parañaque City to Don Bosco in
Pasong Tamo, Makati City, and back. In their business, the Pereñas
used a KIA Ceres Van (van) with Plate No. PYA 896, which had the
capacity to transport 14 students at a time, two of whom would be
seated in the front beside the driver, and the others in the rear,
with six students on either side. They employed Clemente Alfaro
(Alfaro) as driver of the van.
In June 1996, the Zarates contracted the Pereñas to transport Aaron
to and from Don Bosco. On August 22, 1996, as on previous school
days, the van picked Aaron up around 6:00 a.m. from the Zarates’
residence. Aaron took his place on the left side of the van near the
rear door. The van, with its air-conditioning unit turned on and the
stereo playing loudly, ultimately carried all the 14 student riders on
their way to Don Bosco. Considering that the students were due at
Don Bosco by 7:15 a.m., and that they were already running late
because of the heavy vehicular traffic on the South Superhighway,
Alfaro took the van to an alternate route at about 6:45 a.m. by
traversing the narrow path underneath the Magallanes Interchange
that was then commonly used by Makati-bound vehicles as a short
cut into Makati. At the time, the narrow path was marked by piles of
construction materials and parked passenger jeepneys, and the
railroad crossing in the narrow path had no railroad warning signs,
or watchmen, or other responsible persons manning the crossing. In
fact, the bamboo barandilla was up, leaving the railroad crossing
open to traversing motorists.
At about the time the van was to traverse the railroad crossing, PNR
Commuter No. 302 (train), operated by Jhonny Alano (Alano), was in
the vicinity of the Magallanes Interchange travelling northbound. As
the train neared the railroad crossing, Alfaro drove the van
eastward across the railroad tracks, closely tailing a large passenger
bus. His view of the oncoming train was blocked because he
overtook the passenger bus on its left side. The train blew its horn
to warn motorists of its approach. When the train was about 50
meters away from the passenger bus and the van, Alano applied the
ordinary brakes of the train. He applied the emergency brakes only
when he saw that a collision was imminent. The passenger bus
successfully crossed the railroad tracks, but the van driven by Alfaro
did not. The train hit the rear end of the van, and the impact threw
nine of the 12 students in the rear, including Aaron, out of the van.
Aaron landed in the path of the train, which dragged his body and
severed his head, instantaneously killing him. Alano fled the scene
on board the train, and did not wait for the police investigator to
arrive.
Devastated by the early and unexpected death of Aaron, the Zarates
commenced this action for damages against Alfaro, the Pereñas,
PNR and Alano. The Pereñas and PNR filed their respective answers,
with cross-claims against each other, but Alfaro could not be served
with summons.
At the pre-trial, the parties stipulated on the facts and issues, viz:
A. FACTS:
(1)) That spouses Zarate were the legitimate parents of Aaron John
L. Zarate;
(2)) Spouses Zarate engaged the services of spouses Pereña for the
adequate and safe transportation carriage of the former spouses'
son from their residence in Parañaque to his school at the Don
Bosco Technical Institute in Makati City;
(3)) During the effectivity of the contract of carriage and in the
implementation thereof, Aaron, the minor son of spouses Zarate
died in connection with a vehicular/train collision which occurred
while Aaron was riding the contracted carrier Kia Ceres van of
spouses Pereña, then driven and operated by the latter's
employee/authorized driver Clemente Alfaro, which van collided
with the train of PNR, at around 6:45 A.M. of August 22, 1996,
within the vicinity of the Magallanes Interchange in Makati City,
Metro Manila, Philippines;
(4)) At the time of the vehicular/train collision, the subject site of
the vehicular/train collision was a railroad crossing used by
motorists for crossing the railroad tracks;
(5)) During the said time of the vehicular/train collision, there were
no appropriate and safety warning signs and railings at the site
commonly used for railroad crossing;
(6)) At the material time, countless number of Makati bound public
utility and private vehicles used on a daily basis the site of the
collision as an alternative route and short-cut to Makati;
(7)) The train driver or operator left the scene of the incident on
board the commuter train involved without waiting for the police
investigator;
(8)) The site commonly used for railroad crossing by motorists was
not in fact intended by the railroad operator for railroad crossing at
the time of the vehicular collision;
(9)) PNR received the demand letter of the spouses Zarate;
(10)) PNR refused to acknowledge any liability for the
vehicular/train collision;
(11)) The eventual closure of the railroad crossing alleged by PNR
was an internal arrangement between the former and its project
contractor; and
(12)) The site of the vehicular/train collision was within the vicinity
or less than 100 meters from the Magallanes station of PNR.
B. ISSUES
(1) Whether or not defendant-driver of the van is, in the
performance of his functions, liable for negligence constituting the
proximate cause of the vehicular collision, which resulted in the
death of plaintiff spouses' son;
(2) Whether or not the defendant spouses Pereña being the
employer of defendant Alfaro are liable for any negligence which
may be attributed to defendant Alfaro;
(3) Whether or not defendant Philippine National Railways being
the operator of the railroad system is liable for negligence in failing
to provide adequate safety warning signs and railings in the area
commonly used by motorists for railroad crossings, constituting the
proximate cause of the vehicular collision which resulted in the
death of the plaintiff spouses' son;
(4) Whether or not defendant spouses Pereña are liable for breach
of the contract of carriage with plaintiff-spouses in failing to provide
adequate and safe transportation for the latter's son;
(5) Whether or not defendants spouses are liable for actual, moral
damages, exemplary damages, and attorney's fees;
(6) Whether or not defendants spouses Teodorico and Nanette
Pereña observed the diligence of employers and school bus
operators;
(7) Whether or not defendant-spouses are civilly liable for the
accidental death of Aaron John Zarate;
(8) Whether or not defendant PNR was grossly negligent in
operating the commuter train involved in the accident, in allowing
or tolerating the motoring public to cross, and its failure to install
safety devices or equipment at the site of the accident for the
protection of the public;
(9) Whether or not defendant PNR should be made to reimburse
defendant spouses for any and whatever amount the latter may be
held answerable or which they may be ordered to pay in favor of
plaintiffs by reason of the action;
(10) Whether or not defendant PNR should pay plaintiffs directly
and fully on the amounts claimed by the latter in their Complaint by
reason of its gross negligence;
(11) Whether or not defendant PNR is liable to defendants spouses
for actual, moral and exemplary damages and attorney's fees.2
The Zarates’ claim against the Pereñas was upon breach of the
contract of carriage for the safe transport of Aaron; but that against
PNR was based on quasi-delict under Article 2176, Civil Code.
In their defense, the Pereñas adduced evidence to show that they
had exercised the diligence of a good father of the family in the
selection and supervision of Alfaro, by making sure that Alfaro had
been issued a driver’s license and had not been involved in any
vehicular accident prior to the collision; that their own son had
taken the van daily; and that Teodoro Pereña had sometimes
accompanied Alfaro in the van’s trips transporting the students to
school.
For its part, PNR tended to show that the proximate cause of the
collision had been the reckless crossing of the van whose driver had
not first stopped, looked and listened; and that the narrow path
traversed by the van had not been intended to be a railroad crossing
for motorists.
Ruling of the RTC
On December 3, 1999, the RTC rendered its decision,3 disposing:
WHEREFORE, premises considered, judgment is hereby rendered in
favor of the plaintiff and against the defendants ordering them to
jointly and severally pay the plaintiffs as follows:
(1) (for) the death of Aaron- Php50,000.00;
(2) Actual damages in the amount of Php100,000.00;
(3) For the loss of earning capacity- Php2,109,071.00;
(4) Moral damages in the amount of Php4,000,000.00;
(5) Exemplary damages in the amount of Php1,000,000.00;
(6) Attorney’s fees in the amount of Php200,000.00; and
(7) Cost of suit.
SO ORDERED.
On June 29, 2000, the RTC denied the Pereñas’ motion for
reconsideration,4 reiterating that the cooperative gross negligence
of the Pereñas and PNR had caused the collision that led to the
death of Aaron; and that the damages awarded to the Zarates were
not excessive, but based on the established circumstances.
The CA’s Ruling
Both the Pereñas and PNR appealed (C.A.-G.R. CV No. 68916).
PNR assigned the following errors, to wit:5
The Court a quo erred in:
1. In finding the defendant-appellant Philippine National Railways
jointly and severally liable together with defendant-appellants
spouses Teodorico and Nanette Pereña and defendant-appellant
Clemente Alfaro to pay plaintiffs-appellees for the death of Aaron
Zarate and damages.
2. In giving full faith and merit to the oral testimonies of plaintiffs-
appellees witnesses despite overwhelming documentary evidence
on record, supporting the case of defendants-appellants Philippine
National Railways.
The Pereñas ascribed the following errors to the RTC, namely:
The trial court erred in finding defendants-appellants jointly and
severally liable for actual, moral and exemplary damages and
attorney’s fees with the other defendants.
The trial court erred in dismissing the cross-claim of the appellants
Pereñas against the Philippine National Railways and in not holding
the latter and its train driver primarily responsible for the incident.
The trial court erred in awarding excessive damages and attorney’s
fees.
The trial court erred in awarding damages in the form of deceased’s
loss of earning capacity in the absence of sufficient basis for such an
award.
On November 13, 2002, the CA promulgated its decision, affirming
the findings of the RTC, but limited the moral damages to ₱
2,500,000.00; and deleted the attorney’s fees because the RTC did
not state the factual and legal bases, to wit:6
WHEREFORE, premises considered, the assailed Decision of the
Regional Trial Court, Branch 260 of Parañaque City is AFFIRMED
with the modification that the award of Actual Damages is reduced
to ₱ 59,502.76; Moral Damages is reduced to ₱ 2,500,000.00; and
the award for Attorney’s Fees is Deleted.
SO ORDERED.
The CA upheld the award for the loss of Aaron’s earning capacity,
taking cognizance of the ruling in Cariaga v. Laguna Tayabas Bus
Company and Manila Railroad Company,7 wherein the Court gave
the heirs of Cariaga a sum representing the loss of the deceased’s
earning capacity despite Cariaga being only a medical student at the
time of the fatal incident. Applying the formula adopted in the
American Expectancy Table of Mortality:–
2/3 x (80 - age at the time of death) = life expectancy
the CA determined the life expectancy of Aaron to be 39.3 years
upon reckoning his life expectancy from age of 21 (the age when he
would have graduated from college and started working for his own
livelihood) instead of 15 years (his age when he died). Considering
that the nature of his work and his salary at the time of Aaron’s
death were unknown, it used the prevailing minimum wage of ₱
280.00/day to compute Aaron’s gross annual salary to be ₱
110,716.65, inclusive of the thirteenth month pay. Multiplying this
annual salary by Aaron’s life expectancy of 39.3 years, his gross
income would aggregate to ₱ 4,351,164.30, from which his
estimated expenses in the sum of ₱ 2,189,664.30 was deducted to
finally arrive at P 2,161,500.00 as net income. Due to Aaron’s
computed net income turning out to be higher than the amount
claimed by the Zarates, only ₱ 2,109,071.00, the amount expressly
prayed for by them, was granted.
On April 4, 2003, the CA denied the Pereñas’ motion for
reconsideration.8
Issues
In this appeal, the Pereñas list the following as the errors committed
by the CA, to wit:
I. The lower court erred when it upheld the trial court’s decision
holding the petitioners jointly and severally liable to pay damages
with Philippine National Railways and dismissing their cross-claim
against the latter.
II. The lower court erred in affirming the trial court’s decision
awarding damages for loss of earning capacity of a minor who was
only a high school student at the time of his death in the absence of
sufficient basis for such an award.
III. The lower court erred in not reducing further the amount of
damages awarded, assuming petitioners are liable at all.
Ruling
The petition has no merit.
1.
Were the Pereñas and PNR jointly
and severally liable for damages?
The Zarates brought this action for recovery of damages against
both the Pereñas and the PNR, basing their claim against the
Pereñas on breach of contract of carriage and against the PNR on
quasi-delict.
The RTC found the Pereñas and the PNR negligent. The CA affirmed
the findings.
We concur with the CA.
To start with, the Pereñas’ defense was that they exercised the
diligence of a good father of the family in the selection and
supervision of Alfaro, the van driver, by seeing to it that Alfaro had a
driver’s license and that he had not been involved in any vehicular
accident prior to the fatal collision with the train; that they even had
their own son travel to and from school on a daily basis; and that
Teodoro Pereña himself sometimes accompanied Alfaro in
transporting the passengers to and from school. The RTC gave scant
consideration to such defense by regarding such defense as
inappropriate in an action for breach of contract of carriage.
We find no adequate cause to differ from the conclusions of the
lower courts that the Pereñas operated as a common carrier; and
that their standard of care was extraordinary diligence, not the
ordinary diligence of a good father of a family.
Although in this jurisdiction the operator of a school bus service has
been usually regarded as a private carrier,9 primarily because he
only caters to some specific or privileged individuals, and his
operation is neither open to the indefinite public nor for public use,
the exact nature of the operation of a school bus service has not
been finally settled. This is the occasion to lay the matter to rest.
A carrier is a person or corporation who undertakes to transport or
convey goods or persons from one place to another, gratuitously or
for hire. The carrier is classified either as a private/special carrier or
as a common/public carrier.10 A private carrier is one who, without
making the activity a vocation, or without holding himself or itself
out to the public as ready to act for all who may desire his or its
services, undertakes, by special agreement in a particular instance
only, to transport goods or persons from one place to another
either gratuitously or for hire.11 The provisions on ordinary contracts
of the Civil Code govern the contract of private carriage.The
diligence required of a private carrier is only ordinary, that is, the
diligence of a good father of the family. In contrast, a common
carrier is a person, corporation, firm or association engaged in the
business of carrying or transporting passengers or goods or both, by
land, water, or air, for compensation, offering such services to the
public.12 Contracts of common carriage are governed by the
provisions on common carriers of the Civil Code, the Public Service
Act,13 and other special laws relating to transportation. A common
carrier is required to observe extraordinary diligence, and is
presumed to be at fault or to have acted negligently in case of the
loss of the effects of passengers, or the death or injuries to
passengers.14
In relation to common carriers, the Court defined public use in the
following terms in United States v. Tan Piaco,15 viz:
"Public use" is the same as "use by the public". The essential feature
of the public use is not confined to privileged individuals, but is
open to the indefinite public. It is this indefinite or unrestricted
quality that gives it its public character. In determining whether a
use is public, we must look not only to the character of the business
to be done, but also to the proposed mode of doing it. If the use is
merely optional with the owners, or the public benefit is merely
incidental, it is not a public use, authorizing the exercise of the
jurisdiction of the public utility commission. There must be, in
general, a right which the law compels the owner to give to the
general public. It is not enough that the general prosperity of the
public is promoted. Public use is not synonymous with public
interest. The true criterion by which to judge the character of the
use is whether the public may enjoy it by right or only by
permission.
In De Guzman v. Court of Appeals,16 the Court noted that Article
1732 of the Civil Code avoided any distinction between a person or
an enterprise offering transportation on a regular or an isolated
basis; and has not distinguished a carrier offering his services to the
general public, that is, the general community or population, from
one offering his services only to a narrow segment of the general
population.
Nonetheless, the concept of a common carrier embodied in Article
1732 of the Civil Code coincides neatly with the notion of public
service under the Public Service Act, which supplements the law on
common carriers found in the Civil Code. Public service, according to
Section 13, paragraph (b) of the Public Service Act, includes:
x x x every person that now or hereafter may own, operate,
manage, or control in the Philippines, for hire or compensation, with
general or limited clientèle, whether permanent or occasional, and
done for the general business purposes, any common carrier,
railroad, street railway, traction railway, subway motor vehicle,
either for freight or passenger, or both, with or without fixed route
and whatever may be its classification, freight or carrier service of
any class, express service, steamboat, or steamship line, pontines,
ferries and water craft, engaged in the transportation of passengers
or freight or both, shipyard, marine repair shop, ice-refrigeration
plant, canal, irrigation system, gas, electric light, heat and power,
water supply and power petroleum, sewerage system, wire or
wireless communications systems, wire or wireless broadcasting
stations and other similar public services. x x x.17
Given the breadth of the aforequoted characterization of a common
carrier, the Court has considered as common carriers pipeline
operators,18 custom brokers and warehousemen,19 and barge
operators20 even if they had limited clientèle.
As all the foregoing indicate, the true test for a common carrier is
not the quantity or extent of the business actually transacted, or the
number and character of the conveyances used in the activity, but
whether the undertaking is a part of the activity engaged in by the
carrier that he has held out to the general public as his business or
occupation. If the undertaking is a single transaction, not a part of
the general business or occupation engaged in, as advertised and
held out to the general public, the individual or the entity rendering
such service is a private, not a common, carrier. The question must
be determined by the character of the business actually carried on
by the carrier, not by any secret intention or mental reservation it
may entertain or assert when charged with the duties and
obligations that the law imposes.21
Applying these considerations to the case before us, there is no
question that the Pereñas as the operators of a school bus service
were: (a) engaged in transporting passengers generally as a
business, not just as a casual occupation; (b) undertaking to carry
passengers over established roads by the method by which the
business was conducted; and (c) transporting students for a fee.
Despite catering to a limited clientèle, the Pereñas operated as a
common carrier because they held themselves out as a ready
transportation indiscriminately to the students of a particular school
living within or near where they operated the service and for a fee.
The common carrier’s standard of care and vigilance as to the safety
of the passengers is defined by law. Given the nature of the
business and for reasons of public policy, the common carrier is
bound "to observe extraordinary diligence in the vigilance over the
goods and for the safety of the passengers transported by them,
according to all the circumstances of each case."22 Article 1755 of
the Civil Code specifies that the common carrier should "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." To successfully fend off liability in
an action upon the death or injury to a passenger, the common
carrier must prove his or its observance of that extraordinary
diligence; otherwise, the legal presumption that he or it was at fault
or acted negligently would stand.23 No device, whether by
stipulation, posting of notices, statements on tickets, or otherwise,
may dispense with or lessen the responsibility of the common
carrier as defined under Article 1755 of the Civil Code. 24
And, secondly, the Pereñas have not presented any compelling
defense or reason by which the Court might now reverse the CA’s
findings on their liability. On the contrary, an examination of the
records shows that the evidence fully supported the findings of the
CA.
As earlier stated, the Pereñas, acting as a common carrier, were
already presumed to be negligent at the time of the accident
because death had occurred to their passenger.25 The presumption
of negligence, being a presumption of law, laid the burden of
evidence on their shoulders to establish that they had not been
negligent.26 It was the law no less that required them to prove their
observance of extraordinary diligence in seeing to the safe and
secure carriage of the passengers to their destination. Until they did
so in a credible manner, they stood to be held legally responsible for
the death of Aaron and thus to be held liable for all the natural
consequences of such death.
There is no question that the Pereñas did not overturn the
presumption of their negligence by credible evidence. Their defense
of having observed the diligence of a good father of a family in the
selection and supervision of their driver was not legally sufficient.
According to Article 1759 of the Civil Code, their liability as a
common carrier did not cease upon proof that they exercised all the
diligence of a good father of a family in the selection and
supervision of their employee. This was the reason why the RTC
treated this defense of the Pereñas as inappropriate in this action
for breach of contract of carriage.
The Pereñas were liable for the death of Aaron despite the fact that
their driver might have acted beyond the scope of his authority or
even in violation of the orders of the common carrier.27 In this
connection, the records showed their driver’s actual negligence.
There was a showing, to begin with, that their driver traversed the
railroad tracks at a point at which the PNR did not permit motorists
going into the Makati area to cross the railroad tracks. Although
that point had been used by motorists as a shortcut into the Makati
area, that fact alone did not excuse their driver into taking that
route. On the other hand, with his familiarity with that shortcut,
their driver was fully aware of the risks to his passengers but he still
disregarded the risks. Compounding his lack of care was that loud
music was playing inside the air-conditioned van at the time of the
accident. The loudness most probably reduced his ability to hear the
warning horns of the oncoming train to allow him to correctly
appreciate the lurking dangers on the railroad tracks. Also, he
sought to overtake a passenger bus on the left side as both vehicles
traversed the railroad tracks. In so doing, he lost his view of the
train that was then coming from the opposite side of the passenger
bus, leading him to miscalculate his chances of beating the bus in
their race, and of getting clear of the train. As a result, the bus
avoided a collision with the train but the van got slammed at its
rear, causing the fatality. Lastly, he did not slow down or go to a full
stop before traversing the railroad tracks despite knowing that his
slackening of speed and going to a full stop were in observance of
the right of way at railroad tracks as defined by the traffic laws and
regulations.28 He thereby violated a specific traffic regulation on
right of way, by virtue of which he was immediately presumed to be
negligent.29
The omissions of care on the part of the van driver constituted
negligence,30 which, according to Layugan v. Intermediate Appellate
Court,31 is "the omission to do something which a reasonable man,
guided by those 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,32 or as Judge
Cooley defines it, ‘(t)he 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.’"33
The test by which to determine the existence of negligence in a
particular case has been aptly stated in the leading case of Picart v.
Smith,34 thuswise:
The test by which to determine the existence of negligence in a
particular case may be stated as follows: 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.
The question as to what would constitute the conduct of a prudent
man in a given situation must of course be always determined in the
light of human experience and in view of the facts involved in the
particular case. Abstract speculation cannot here be of much value
but this much can be profitably said: Reasonable men govern their
conduct by the circumstances which are before them or known to
them. They are not, and are not supposed to be, omniscient of the
future. Hence they can be expected to take care only when there is
something before them to suggest or warn of danger. Could a
prudent man, in the case under consideration, foresee harm as a
result of the course actually pursued? If so, it was the duty of the
actor to take precautions to guard against that harm. Reasonable
foresight of harm, followed by the ignoring of the suggestion born
of this prevision, is always necessary before negligence can be held
to exist. Stated in these terms, the proper criterion for determining
the existence of negligence in a given case is this: Conduct is said to
be negligent when a prudent man in the position of the tortfeasor
would have foreseen that an effect harmful to another was
sufficiently probable to warrant his foregoing the conduct or
guarding against its consequences. (Emphasis supplied)
Pursuant to the Picart v. Smith test of negligence, the Pereñas’
driver was entirely negligent when he traversed the railroad tracks
at a point not allowed for a motorist’s crossing despite being fully
aware of the grave harm to be thereby caused to his passengers;
and when he disregarded the foresight of harm to his passengers by
overtaking the bus on the left side as to leave himself blind to the
approach of the oncoming train that he knew was on the opposite
side of the bus.
Unrelenting, the Pereñas cite Phil. National Railways v. Intermediate
Appellate Court,35 where the Court held the PNR solely liable for the
damages caused to a passenger bus and its passengers when its
train hit the rear end of the bus that was then traversing the
railroad crossing. But the circumstances of that case and this one
share no similarities. In Philippine National Railways v. Intermediate
Appellate Court, no evidence of contributory negligence was
adduced against the owner of the bus. Instead, it was the owner of
the bus who proved the exercise of extraordinary diligence by
preponderant evidence. Also, the records are replete with the
showing of negligence on the part of both the Pereñas and the PNR.
Another distinction is that the passenger bus in Philippine National
Railways v. Intermediate Appellate Court was traversing the
dedicated railroad crossing when it was hit by the train, but the
Pereñas’ school van traversed the railroad tracks at a point not
intended for that purpose.
At any rate, the lower courts correctly held both the Pereñas and
the PNR "jointly and severally" liable for damages arising from the
death of Aaron. They had been impleaded in the same complaint as
defendants against whom the Zarates had the right to relief,
whether jointly, severally, or in the alternative, in respect to or
arising out of the accident, and questions of fact and of law were
common as to the Zarates.36 Although the basis of the right to relief
of the Zarates (i.e., breach of contract of carriage) against the
Pereñas was distinct from the basis of the Zarates’ right to relief
against the PNR (i.e., quasi-delict under Article 2176, Civil Code),
they nonetheless could be held jointly and severally liable by virtue
of their respective negligence combining to cause the death of
Aaron. As to the PNR, the RTC rightly found the PNR also guilty of
negligence despite the school van of the Pereñas traversing the
railroad tracks at a point not dedicated by the PNR as a railroad
crossing for pedestrians and motorists, because the PNR did not
ensure the safety of others through the placing of crossbars, signal
lights, warning signs, and other permanent safety barriers to
prevent vehicles or pedestrians from crossing there. The RTC
observed that the fact that a crossing guard had been assigned to
man that point from 7 a.m. to 5 p.m. was a good indicium that the
PNR was aware of the risks to others as well as the need to control
the vehicular and other traffic there. Verily, the Pereñas and the
PNR were joint tortfeasors.
2.
Was the indemnity for loss of
Aaron’s earning capacity proper?
The RTC awarded indemnity for loss of Aaron’s earning capacity.
Although agreeing with the RTC on the liability, the CA modified the
amount. Both lower courts took into consideration that Aaron,
while only a high school student, had been enrolled in one of the
reputable schools in the Philippines and that he had been a normal
and able-bodied child prior to his death. The basis for the
computation of Aaron’s earning capacity was not what he would
have become or what he would have wanted to be if not for his
untimely death, but the minimum wage in effect at the time of his
death. Moreover, the RTC’s computation of Aaron’s life expectancy
rate was not reckoned from his age of 15 years at the time of his
death, but on 21 years, his age when he would have graduated from
college.
We find the considerations taken into account by the lower courts
to be reasonable and fully warranted.
Yet, the Pereñas submit that the indemnity for loss of earning
capacity was speculative and unfounded.1âwphi1 They cited People
v. Teehankee, Jr.,37 where the Court deleted the indemnity for
victim Jussi Leino’s loss of earning capacity as a pilot for being awarded not for loss of time or earnings but for loss of the
speculative due to his having graduated from high school at the deceased’s power or ability to earn money.39
International School in Manila only two years before the shooting,
This favorable treatment of the Zarates’ claim is not unprecedented.
and was at the time of the shooting only enrolled in the first
In Cariaga v. Laguna Tayabas Bus Company and Manila Railroad
semester at the Manila Aero Club to pursue his ambition to become
Company,40 fourth-year medical student Edgardo Carriaga’s earning
a professional pilot. That meant, according to the Court, that he was
capacity, although he survived the accident but his injuries rendered
for all intents and purposes only a high school graduate.
him permanently incapacitated, was computed to be that of the
We reject the Pereñas’ submission. physician that he dreamed to become. The Court considered his
scholastic record sufficient to justify the assumption that he could
First of all, a careful perusal of the Teehankee, Jr. case shows that
have finished the medical course and would have passed the
the situation there of Jussi Leino was not akin to that of Aaron here.
medical board examinations in due time, and that he could have
The CA and the RTC were not speculating that Aaron would be some
possibly earned a modest income as a medical practitioner. Also, in
highly-paid professional, like a pilot (or, for that matter, an
People v. Sanchez,41 the Court opined that murder and rape victim
engineer, a physician, or a lawyer). Instead, the computation of
Eileen Sarmienta and murder victim Allan Gomez could have easily
Aaron’s earning capacity was premised on him being a lowly
landed good-paying jobs had they graduated in due time, and that
minimum wage earner despite his being then enrolled at a
their jobs would probably pay them high monthly salaries from ₱
prestigious high school like Don Bosco in Makati, a fact that would
10,000.00 to ₱ 15,000.00 upon their graduation. Their earning
have likely ensured his success in his later years in life and at work.
capacities were computed at rates higher than the minimum wage
And, secondly, the fact that Aaron was then without a history of at the time of their deaths due to their being already senior
earnings should not be taken against his parents and in favor of the agriculture students of the University of the Philippines in Los
defendants whose negligence not only cost Aaron his life and his Baños, the country’s leading educational institution in agriculture.
right to work and earn money, but also deprived his parents of their
3.
right to his presence and his services as well. Our law itself states
Were the amounts of damages excessive?
that the loss of the earning capacity of the deceased shall be the
liability of the guilty party in favor of the heirs of the deceased, and The Pereñas plead for the reduction of the moral and exemplary
shall in every case be assessed and awarded by the court "unless damages awarded to the Zarates in the respective amounts of ₱
the deceased on account of permanent physical disability not 2,500,000.00 and ₱ 1,000,000.00 on the ground that such amounts
caused by the defendant, had no earning capacity at the time of his were excessive.
death."38 Accordingly, we emphatically hold in favor of the
The plea is unwarranted.
indemnification for Aaron’s loss of earning capacity despite him
having been unemployed, because compensation of this nature is
The moral damages of ₱ 2,500,000.00 were really just and
reasonable under the established circumstances of this case
because they were intended by the law to assuage the Zarates’
deep mental anguish over their son’s unexpected and violent death,
and their moral shock over the senseless accident. That amount
would not be too much, considering that it would help the Zarates
obtain the means, diversions or amusements that would alleviate
their suffering for the loss of their child. At any rate, reducing the
amount as excessive might prove to be an injustice, given the
passage of a long time from when their mental anguish was inflicted
on them on August 22, 1996.

Anent the ₱ 1,000,000.00 allowed as exemplary damages, we

should not reduce the amount if only to render effective the desired
example for the public good. As a common carrier, the Pereñas
needed to be vigorously reminded to observe their duty to exercise
extraordinary diligence to prevent a similarly senseless accident
from happening again. Only by an award of exemplary damages in
that amount would suffice to instill in them and others similarly
situated like them the ever-present need for greater and constant
vigilance in the conduct of a business imbued with public interest.

WHEREFORE, we DENY the petition for review

on certiorari; AFFIRM the decision promulgated on November 13,
2002; and ORDER the petitioners to pay the costs of suit.

SO ORDERED.
G.R. No. 201822, August 12, 2015
MARINA PORT SERVICES, INC.*, Petitioner, v. AMERICAN HOME
ASSURANCE CORPORATION, Respondent.
DECISION
DEL CASTILLO, J.:
This Petition for Review on Certiorari1 filed pursuant to Rule 45 of
the Rules of Court assails the December 29, 2011 Decision2 and May
8, 2012 Resolution3 of the Court of Appeals (CA) in CA GR. CV No.
88321, which granted the appeal filed therein by respondent
American Home Assurance Corporation (AHAC) and reversed and
set aside the October 17, 2006 Decision4 of the Regional Trial Court
(RTC), Pasig City, Branch 271 dismissing AHAC's Complaint5 for
Damages against petitioner Marina Port Services, Inc. (MPSI).
Factual Antecedents
On September 21, 1989, Countercorp Trading PTE., Ltd. shipped
from Singapore to the Philippines 10 container vans of soft wheat
flour with seals intact on board the vessel M/V Uni Fortune. The
shipment was insured against all risks by AHAC and consigned to
MSC Distributor (MSC).
Upon arrival at the Manila South Harbor on September 25, 1989,
the shipment was discharged in good and complete order condition
and with safety seals in place to the custody of the arrastre
operator, MPSI. After unloading and prior to hauling, agents of the
Bureau of Customs officially broke the seals, opened the container
vans, and examined the shipment for tax evaluation in the presence
of MSC's broker and checker. Thereafter, the customs inspector
closed the container vans and refastened them with safety wire
seals while MSC's broker padlocked the same. MPSI then placed the
said container vans in a back-to-back arrangement at the delivery
area of the harbor's container yard where they were watched over
by the security guards of MPSI and of the Philippine Ports Authority.
On October 10, 1989, MSC's representative, AD's Customs Services
(ACS), took out five container vans for delivery to MSC. At the
compound's exit, MPSI issued to ACS the corresponding gate passes
for the vans indicating its turnover of the subject shipment to MSC.
However, upon receipt of the container vans at its warehouse, MSC
discovered substantial shortages in the number of bags of flour
delivered. Hence, it filed a formal claim for loss with MPSI.
From October 12 to 14, 1989 and pursuant to the gate passes issued
by MPSI, ACS took out the remaining five container vans from the
container yard and delivered them to MSC. Upon receipt, MSC once
more discovered substantial shortages. Thus, MSC filed another
claim with MPSI.
Per MSC, the total number of the missing bags of flour was 1,650
with a value of £257,083.00.
MPSI denied both claims of MSC. As a result, MSC sought insurance
indemnity for the lost cargoes from AHAC. AHAC paid MSC the value
of the missing bags of flour after finding the tetter's claim in order.
In turn, MSC issued a subrogation receipt in favor of AHAC.
Thereafter, AHAC filed a Complaint6 for damages against MPSI
before the RTC.
Ruling of the Regional Trial Court
AHAC averred in its Complaint that the partial loss of the bags of
flour was due to the fault or negligence of MPSI since the loss
happened while the shipment was still in MPSI's custody.
MPSL, on the other hand, disclaimed any liability. It essentally
maintained in its Answer7 that the bags of flour were inside sealed
container vans when it received the same; that it handled the
subject shipment with the diligence required of it; and, mat the
container vans were turned over by it to MSC in the same condition
that they were in at the time of their discharge from the vessel.
MPSI likewise countered that the failure of MSC to request for a bad
order survey belied the latter's claim for loss.
Trial then ensued.
On October 17, 2006, the RTC rendered a Decision8 dismissing
AHAC's Complaint. It held that while there was indeed a shortage of
1,650 sacks of soft wheat flour, AHAC's evidence failed to clearly
show that the loss happened while the subject shipment was still
under MPSI's responsibility. Hence, the dispositive portion of the
RTC Decision:LawlibraryofCRAlaw
WHEREFORE, premises considered, the complaint is hereby
DISMISSED.
SO ORDERED.9
Ruling of the Court of Appeals
Aggrieved, AHAC appealed to the CA.
In its Decision10 dated December 29, 2011, the CA stressed that in a
claim for loss filed by a consignee, the burden of proof to show due
compliance with the obligation to deliver the goods to the
appropriate party devolves upon the arrastre operator. In
consonance with this, a presumption of fault or negligence for the
loss of the goods arises against the arrastre operator pursuant to
Articles 126511 and 198112 of the Civil Code. In this case, the CA
found that MPSI failed to discharge such burden and to rebut the
aforementioned presumption. Thus, it was held liable to AHAC for
the value of the missing bags of flour, viz.:LawlibraryofCRAlaw
We conclude that x x x MPSI was negligent in the handling and
safekeeping of the subject shipment. It did not create and
implement a more defined, concrete and effective measure to
detect, curb and prevent the loss or pilferage of cargoes in its
custody. This is manifested by the fact that [MPSI] never took any
action to address such complaint even after it received the formal
claim of loss in the first five (5) vans. As a consequence, more bags
of flour were eventually lost or pilfered in the remaining container
vans that were still in [MPSI's] custody at that time. Case law tells us
that negligence is that conduct which creates undue risk of harm to
another, the failure to observe that degree of care, precaution and
vigilance which the circumstance[s] justly demand, whereby that
other person suffers injury. Clearly, [MPSI] breached its arrastre
obligations to the consignee for it failed to deliver said bags in good
and complete condition.
In view of MPSI's failure to exercise that degree of diligence,
precaution and care the law [requires] of arrastre operators in the
performance of their duties to the consignee, [MPSI] is legally
bound to reimburse [AHAC] for the value of the missing bags of
flour that it paid to MSC pursuant to the insurance policy.13

In view of the same, the said court disposed of the appeal in this
wise:LawlibraryofCRAlaw
WHEREFORE, premises considered, the appeal is GRANTED. The
Decision of the Regional Trial Court of Pasig City, Branch 271 dated
17 October 2006 is REVERSED and SET ASIDE. Appellee Marina Port
Services, Inc. is ORDERED to pay appellant, American Home
Assurance Corporation, the sum of Two Hundred Fifty Seven
Thousand and Eighty Three Pesos (PhP257,083.00) with interest
thereon at Six percent (6%) [per annum] from the filing of this
complaint on 24 September 1990 until the decision becomes final
and executory, and thereafter, at the rate of twelve (12) percent
[per annum] until fully paid, and additionally, to pay the x x x sum of
Fifty Thousand Pesos (PhP50,000.00) as attorney's fees.
SO ORDERED.14
MPSI moved for reconsideration but the CA denied the same in its
Resolution15 dated May 8, 2012.
Hence, the present recourse.
Issue
The core issue to be resolved in this case is whether MPSI is liable
for the loss of the bags of flour.
Our Ruling
There is merit in the Petition.
Albeit involving factual questions, the
Court shall proceed to resolve this case
since it falls under several exceptions to
the rule that only questions of law are
proper in a petition for review on
certiorari.
At the outset, it is evident that the resolution of the instant case
requires the scrutiny of factual issues which are, however, outside
the scope of the present petition filed pursuant to Rule 45 of the
Rules of Court. However, the Court held in Asian Terminals, Inc. v.
Philam Insurance Co., Inc.16 that:LawlibraryofCRAlaw
But while it is not our duty to review, examine and evaluate or
weigh all over again the probative value of the evidence presented,
the Court may nonetheless resolve questions of fact when the case
falls under any of the following exceptions:LawlibraryofCRAlaw
(1) when the findings are grounded entirely on speculation,
surmises, or conjectures; (2) when the inference made is manifestly
mistaken, absurd, or impossible; (3) when there is grave abuse of
discretion; (4) when the judgment is based on a misapprehension of
facts; (5) when the findings of fact are conflicting; (6) when in
making its findings the Court of Appeals went beyond the issues of
the case, or its findings are contrary to the admissions of both the
appellant and the appellee; (7) when the findings are contrary to
those of the trial court; (8) when the findings are conclusions
without citation of specific evidence on which they are based; (9)
when the facts set forth in the petition as well as in the petitioner's
main and reply briefs are not disputed by the respondent; and (10)
when the findings of fact are premised on the supposed absence of
evidence and contradicted by the evidence on record.17
The Court finds that the instant case falls under the aforementioned
second, fourth, fifth, and seventh exceptions. Hence, it shall
proceed to delve into factual matters essential to the proper
determination of the merits of this case.
Several well-entrenched legal principles
govern the relationship of an arrastre
operator and a consignee.
The relationship between an arrastre operator and a consignee is
similar to that between a warehouseman and a depositor, or to that
between a common carrier and the consignee and/or the owner of
the shipped goods.18 Thus, an arrastre operator should adhere to
the same degree of diligence as that legally expected of a
warehouseman or a common carrier19 as set forth in Section 3[b] of
the Warehouse Receipts [Act]20 and Article 1733 of the Civil
Code.21 As custodian of the shipment discharged from the vessel,
the arrastre operator must take good care of the same and turn it
over to the party entitled to its possession.22redarclaw
In case of claim for loss filed by a consignee or the insurer as
subrogee,23 it is the arrastre operator that carries the burden of
proving compliance with the obligation to deliver the goods to the
appropriate party.24 It must show that the losses were not due to its
negligence or that of its employees.25 It must establish that it
observed the required diligence in handling the
shipment.26 Otherwise, it shall be presumed that the loss was due to
its fault.27 In the same manner, an arrastre operator shall be liable
for damages if the seal and lock of the goods deposited and
delivered to it as closed and sealed, be broken through its
fault.28 Such fault on the part of the arrastre operator is likewise
presumed unless there is proof to the contrary.29redarclaw
MPSI was able to prove delivery of the
shipment to MSC in good and complete
condition and with locks and seals intact.
It is significant to note that MPSI, in order to prove that it properly
delivered the subject shipment consigned to MSC, presented 10
gate passes marked as Exhibits 4 to 13.30 Each of these gate passes
bore the duly identified signature31 of MSC's representative which
serves, among others, as an acknowledgement
that:LawlibraryofCRAlaw
Issuance of [the] Gate Pass constitutes delivery to and receipt by
consignee of the goods as described above in good order and
condition, unless an accompanying B.O. certificate duly issued and
noted on the face of [the] Gate Pass appears.32
As held in International Container Terminal Services, Inc. v.
Prudential Guarantee & Assurance Co., Inc.,33 the signature of the
consignee's representative on the gate pass is evidence of receipt of
the shipment in good order and condition.34redarclaw
Also, that MPSI delivered the subject shipment to MSC's
representative in good and complete condition and with lock and
seals intact is established by the testimonies of MPSFs employees
who were directly involved in the processing of the subject
shipment. Mr. Ponciano De Leon testified that as MPSI's delivery
checker, he personally examined the subject container vans and
issued the corresponding gate passes that were, in turn,
countersigned by the consignee's representative. MPSI's other
witness, Chief Claims Officer Sergio Icasiano (Icasiano), testified that
the broker, as the consignee's representative, neither registered any
complaints nor requested for an inspection, to a [I]here was no indication of any inspection of the container
wit:LawlibraryofCRAlaw van x x x
meaning the container vans were all in good condition, sir.
RE-DIRECT EXAMINATION:
q [Y]ou said a [while] ago that you did not receive any
Atty. Laurente
complaint for broken seals, is it not?
xxxx
a [Y]es, sir.
Q [A]fter receipt by the broker of the container van containing
q [B]ut the complaint that you received indicates that there
the cargo, do you require the broker to issue you a report or
were losses,
certification as to the appearance of the container van?
a [W]e did not receive any complaint from the broker, sir.
A [W]e only rely on the gate pass.
q [I]f the broker will complain they have to file a request for
Q [A]nd you don't place there "the padlock is still intact or the
inspection of the cargo so that they will know if there [are]
wirings still intact"?
shortages x x x.
A [I]t is stated in the gate pass, your Honor.
a [Y]es, sir.
xxxx
[C]ourt
Q [A]nd the findings [are counter-signed] by the representative
q [A]nd if the broker would notice or detect [something]
of the broker also on the same date?
peculiar, the way the door of the container van appears
A [Y]es, your honor.35 whether close[d] or not, they have to request for an
inspection[?]
xxxx
a [Y]es, your honor.
RE-CROSS EXAMINATION
q [O]r in the absence of the padlock or wirings, the broker will
Atty. Laino request for an inspection[?]
q [B]ut did you not say that in the gate pass it is stated there as a [Y]es,your honor[;] they can require for the examination of
to the external appearance of the container van? the cargo.

q [B]ut there was no request at all by the broker?

a [T]here was none, your Honor.36 During [the] period of tum-over of goods from the arrastre to [ACS],
there had been no protest on anything on the part of consignee's
representative x x x. Otherwise, the complaint would have been
Verily, the testimonies of the aforementioned employees of MPSI
shown [on] the gate passes. In fact, each gate pass showed the date
confirm that the container vans, together with their padlocks and
of delivery, the location of delivery, the truck number of the truck
wirings, were in order at the time the gate passes were issued up to
used in the delivery, the actual quantity of goods delivered, the
the time the said container vans were turned over to ACS.
numbers of the safety wires and padlocks of the vans and the
signatures of the receiver. More importantly, the gate passes bared
AHAC justifies the failure of ACS to immediately protest the alleged
the fact that the shipments were turned-over by [MPSI] to [ACS] on
loss or pilferage upon initial pick-up of the first batch of container
the same dates of customs inspections and turnovers.38
vans. According to it, ACS could not have discovered the loss at that
There being no exception as to bad order, the subject shipment,
moment since the stripping of container vans in the pier area is not
therefore, appears to have been accepted by MSC, through ACS, in
allowed. The Court cannot, however, accept such excuse. For one,
good order.39 "It logically follows [then] that the case at bar
AHAC's claim that stripping of the container vans is not allowed in
presents no occasion for the necessity of discussing the diligence
the pier area is a mere allegation without proof. It is settled that
required of an [arrastre operator] or of the theory of [its] prima
"[m]ere allegations do not suffice; they must be substantiated by
facie liability x x x, for from all indications, the shipment did not
clear and convincing proof."37 For another, even assuming that
suffer loss or damage while it was under the care x x x of the
stripping of the container vans is indeed not allowed at the pier
arrastre operator x x x."40redarclaw
area, it is hard to believe that MSC or its representative ACS has no
precautionary measures to protect itself from any eventuality of
Even in the light of Article 1981, no
loss or pilferage. To recall, ACS's representative signed the gate
presumption of fault on the part of MPSI
passes without any qualifications. This is despite the fact that such
arises since it was not sufficiently shown
signature serves as an acknowledgment of ACS's receipt of the
that the container vans were re-opened
goods in good order and condition. If MSC was keen enough in
or that their locks and seals were broken
protecting its interest, it (through ACS) should have at least qualified
for the second time.
the receipt of the goods as subject to inspection, and thereafter
arrange for such an inspection in an area where the same is allowed
Indeed, Article 1981 of the Civil Code also mandates a presumption
to be done. However, no such action or other similar measure was
of fault on the part of the arrastre operator as
shown to have been undertaken by MSC. What is clear is that ACS
follows:LawlibraryofCRAlaw
accepted the container vans on its behalf without any qualification.
As aptly observed by the RTC:LawlibraryofCRAlaw
Article 1981. When the thing deposited is delivered closed and
sealed, the depositary must return it in the same condition, and he
shall be liable for damages should the seal or lock be broken
through his fault.
Fault on the part of the depositary is presumed, unless there is
proof to the contrary.
As regards the value of the thing deposited, the statement of the
depositor shall be accepted, when the forcible opening is imputable
to the depositary, should there be no proof to the contrary.
However, the courts may pass upon the credibility of the depositor
with respect to the value claimed by him.
When the seal or lock is broken, with or without the depositary's
fault, he shall keep the secret of the deposit.
However, no such presumption arises in this case considering that it
was not sufficiently shown that the container vans were re-opened
or that their locks and seals were broken for the second time. As
may be recalled, the container vans were opened by a customs
official for examination of the subject shipment and were thereafter
resealed with safety wires. While this fact is not disputed by both
parties, AHAC alleges that the container vans were re-opened and
this gave way to the alleged pilferage. The Court notes, however,
that AHAC based such allegation solely on the survey report of the
Manila Adjuster & Surveyors Company (MASCO). As observed by the
RTC:
AHAC x x x claim[s] that there were two instances when the seals
were broken. [First], when the customs officer examined the
shipment and had it resealed with safety wires. [Second], when the
surveyor and consignee's broker visually inspected the shipment
and allegedly found the safety wires of the customs officer to have
been detached and missing which they then replaced. This second
instance is only upon their say so as there is no x x x documentary or
testimonial proof on the matter [other] than the [MASCO] survey
report.41
However, the person who prepared the said report was not
presented in court to testify on the same. Thus, the said survey
report has no probative value for being hearsay. "It is a basic rule
that evidence, whether oral or documentary, is hearsay, if its
probative value is not based on the personal knowledge of the
witness but on the knowledge of another person who is not on the
witness stand."42 Moreover, "an unverified and unidentified private
document cannot be accorded probative value. It is precluded
because the party against whom it is presented is deprived of the
right and opportunity to cross-examine the person to whom the
statements or writings are attributed. Its executor or author should
be presented as a witness to provide the other party to the litigation
the opportunity to question its contents. Being mere hearsay
evidence, failure to present the author of the letter renders its
contents suspect and of no probative value."43redarclaw
There being no other competent evidence that the container vans
were reopened or that their locks and seals were broken for the
second time, MPSI cannot be held liable for damages due to the
alleged loss of the bags of flour pursuant to Article 1981 of the Civil
Code.
At any rate, the goods were shipped
under "Shipper's Load and Count"
arrangement. Thus, protection against
pilferage of the subject shipment was
the consignees lookout.
At any rate, MPSI cannot just the same be held liable for the missing
bags of flour since the consigned goods were shipped under
"Shipper's Load and Count" arrangement. "This means that the
shipper was solely responsible for the loading of the container,
while the carrier was oblivious to the contents of the shipment.
Protection against pilferage of the shipment was the consignee's
lookout. The arrastre operator was, like any ordinary depositary,
duty-bound to take good care of the goods received from the vessel
and to turn the same over to the party entitled to their possession,
subject to such qualifications as may have validly been imposed in
the contract between the parties. The arrastre operator was not
required to verify the contents of the container received and to
compare them with those declared by the shipper because, as
earlier stated, the cargo was at the shipper's load and count. The
arrastre operator was expected to deliver to the consignee only the
container received from the carrier."

All told, the Court holds that MPSI is not liable for the loss of the
bags of flour.

WHEREFORE, the Petition is GRANTED. The Decision dated

December 29, 2011 and Resolution dated May 8, 2012 of the Court
of Appeals in CA-GR. CV No. 88321 are REVERSED AND SET
ASIDE. The Decision dated October 17, 2006 of the Regional Trial
Court, Branch 271, Pasig City in Civil Case No. 90-54517
is REINSTATED and the Complaint in the said case is DISMISSED.

SO ORDERED.
G.R. No. L-12191 October 14, 1918
JOSE CANGCO, plaintiff-appellant,
vs.
MANILA RAILROAD CO., defendant-appellee.
Ramon Sotelo for appellant.
Kincaid & Hartigan for appellee.
FISHER, J.:
At the time of the occurrence which gave rise to this litigation the
plaintiff, Jose Cangco, was in the employment of Manila Railroad
Company in the capacity of clerk, with a monthly wage of P25. He
lived in the pueblo of San Mateo, in the province of Rizal, which is
located upon the line of the defendant railroad company; and in
coming daily by train to the company's office in the city of Manila
where he worked, he used a pass, supplied by the company, which
entitled him to ride upon the company's trains free of charge. Upon
the occasion in question, January 20, 1915, the plaintiff arose from
his seat in the second class-car where he was riding and, making, his
exit through the door, took his position upon the steps of the coach,
seizing the upright guardrail with his right hand for support.
On the side of the train where passengers alight at the San Mateo
station there is a cement platform which begins to rise with a
moderate gradient some distance away from the company's office
and extends along in front of said office for a distance sufficient to
cover the length of several coaches. As the train slowed down
another passenger, named Emilio Zuñiga, also an employee of the
railroad company, got off the same car, alighting safely at the point
where the platform begins to rise from the level of the ground.
When the train had proceeded a little farther the plaintiff Jose
Cangco stepped off also, but one or both of his feet came in contact
with a sack of watermelons with the result that his feet slipped from
under him and he fell violently on the platform. His body at once
rolled from the platform and was drawn under the moving car,
where his right arm was badly crushed and lacerated. It appears
that after the plaintiff alighted from the train the car moved
forward possibly six meters before it came to a full stop.
The accident occurred between 7 and 8 o'clock on a dark night, and
as the railroad station was lighted dimly by a single light located
some distance away, objects on the platform where the accident
occurred were difficult to discern especially to a person emerging
from a lighted car.
The explanation of the presence of a sack of melons on the platform
where the plaintiff alighted is found in the fact that it was the
customary season for harvesting these melons and a large lot had
been brought to the station for the shipment to the market. They
were contained in numerous sacks which has been piled on the
platform in a row one upon another. The testimony shows that this
row of sacks was so placed of melons and the edge of platform; and
it is clear that the fall of the plaintiff was due to the fact that his foot
alighted upon one of these melons at the moment he stepped upon
the platform. His statement that he failed to see these objects in the
darkness is readily to be credited.
The plaintiff was drawn from under the car in an unconscious
condition, and it appeared that the injuries which he had received
were very serious. He was therefore brought at once to a certain
hospital in the city of Manila where an examination was made and
his arm was amputated. The result of this operation was
unsatisfactory, and the plaintiff was then carried to another hospital
where a second operation was performed and the member was
again amputated higher up near the shoulder. It appears in
evidence that the plaintiff expended the sum of P790.25 in the form
of medical and surgical fees and for other expenses in connection
with the process of his curation.
Upon August 31, 1915, he instituted this proceeding in the Court of
First Instance of the city of Manila to recover damages of the
defendant company, founding his action upon the negligence of the
servants and employees of the defendant in placing the sacks of
melons upon the platform and leaving them so placed as to be a
menace to the security of passenger alighting from the company's
trains. At the hearing in the Court of First Instance, his Honor, the
trial judge, found the facts substantially as above stated, and drew
therefrom his conclusion to the effect that, although negligence was
attributable to the defendant by reason of the fact that the sacks of
melons were so placed as to obstruct passengers passing to and
from the cars, nevertheless, the plaintiff himself had failed to use
due caution in alighting from the coach and was therefore
precluded form recovering. Judgment was accordingly entered in
favor of the defendant company, and the plaintiff appealed.
It can not be doubted that the employees of the railroad company
were guilty of negligence in piling these sacks on the platform in the
manner above stated; that their presence caused the plaintiff to fall
as he alighted from the train; and that they therefore constituted an
effective legal cause of the injuries sustained by the plaintiff. It
necessarily follows that the defendant company is liable for the
damage thereby occasioned unless recovery is barred by the
plaintiff's own contributory negligence. In resolving this problem it
is necessary that each of these conceptions of liability, to-wit, the
primary responsibility of the defendant company and the
contributory negligence of the plaintiff should be separately
examined.
It is important to note that the foundation of the legal liability of the
defendant is the contract of carriage, and that the obligation to
respond for the damage which plaintiff has suffered arises, if at all,
from the breach of that contract by reason of the failure of
defendant to exercise due care in its performance. That is to say, its
liability is direct and immediate, differing essentially, in legal
viewpoint from that presumptive responsibility for the negligence of
its servants, imposed by article 1903 of the Civil Code, which can be
rebutted by proof of the exercise of due care in their selection and
supervision. Article 1903 of the Civil Code is not applicable to
obligations arising ex contractu, but only to extra-contractual
obligations — or to use the technical form of expression, that article
relates only to culpa aquiliana and not to culpa contractual.
Manresa (vol. 8, p. 67) in his commentaries upon articles 1103 and
1104 of the Civil Code, clearly points out this distinction, which was
also recognized by this Court in its decision in the case of
Rakes vs. Atlantic, Gulf and Pacific Co. (7 Phil. rep., 359). In
commenting upon article 1093 Manresa clearly points out the
difference between "culpa, substantive and independent, which of
itself constitutes the source of an obligation between persons not
formerly connected by any legal tie" and culpa considered as an
accident in the performance of an obligation already existing . . . ."
In the Rakes case (supra) the decision of this court was made to rest
squarely upon the proposition that article 1903 of the Civil Code is
not applicable to acts of negligence which constitute the breach of a
contract.
Upon this point the Court said:
The acts to which these articles [1902 and 1903 of the Civil Code]
are applicable are understood to be those not growing out of pre-
existing duties of the parties to one another. But where relations
already formed give rise to duties, whether springing from contract
or quasi-contract, then breaches of those duties are subject to
article 1101, 1103, and 1104 of the same code. (Rakes vs. Atlantic,
Gulf and Pacific Co., 7 Phil. Rep., 359 at 365.)
This distinction is of the utmost importance. The liability, which,
under the Spanish law, is, in certain cases imposed upon employers
with respect to damages occasioned by the negligence of their
employees to persons to whom they are not bound by contract, is
not based, as in the English Common Law, upon the principle
of respondeat superior — if it were, the master would be liable in
every case and unconditionally — but upon the principle announced
in article 1902 of the Civil Code, which imposes upon all persons
who by their fault or negligence, do injury to another, the obligation
of making good the damage caused. One who places a powerful
automobile in the hands of a servant whom he knows to be ignorant
of the method of managing such a vehicle, is himself guilty of an act
of negligence which makes him liable for all the consequences of his
imprudence. The obligation to make good the damage arises at the
very instant that the unskillful servant, while acting within the scope
of his employment causes the injury. The liability of the master is
personal and direct. But, if the master has not been guilty of any
negligence whatever in the selection and direction of the servant,
he is not liable for the acts of the latter, whatever done within the
scope of his employment or not, if the damage done by the servant
does not amount to a breach of the contract between the master
and the person injured.
It is not accurate to say that proof of diligence and care in the
selection and control of the servant relieves the master from
liability for the latter's acts — on the contrary, that proof shows that
the responsibility has never existed. As Manresa says (vol. 8, p. 68)
the liability arising from extra-contractual culpa is always based
upon a voluntary act or omission which, without willful intent, but
by mere negligence or inattention, has caused damage to another. A
master who exercises all possible care in the selection of his servant,
taking into consideration the qualifications they should possess for
the discharge of the duties which it is his purpose to confide to
them, and directs them with equal diligence, thereby performs his
duty to third persons to whom he is bound by no contractual ties,
and he incurs no liability whatever if, by reason of the negligence of
his servants, even within the scope of their employment, such third
person suffer damage. True it is that under article 1903 of the Civil
Code the law creates a presumption that he has been negligent in
the selection or direction of his servant, but the presumption is
rebuttable and yield to proof of due care and diligence in this
respect.
The supreme court of Porto Rico, in interpreting identical provisions,
as found in the Porto Rico Code, has held that these articles are
applicable to cases of extra-contractual culpa exclusively.
(Carmona vs. Cuesta, 20 Porto Rico Reports, 215.)
This distinction was again made patent by this Court in its decision
in the case of Bahia vs. Litonjua and Leynes, (30 Phil. rep., 624),
which was an action brought upon the theory of the extra-
contractual liability of the defendant to respond for the damage
caused by the carelessness of his employee while acting within the
scope of his employment. The Court, after citing the last paragraph
of article 1903 of the Civil Code, said:
From this article two things are apparent: (1) That when an injury is
caused by the negligence of a servant or employee there instantly
arises a presumption of law that there was negligence on the part of
the master or employer either in selection of the servant or
employee, or in supervision over him after the selection, or both;
and (2) that that presumption is juris tantum and not juris et de jure,
and consequently, may be rebutted. It follows necessarily that if the
employer shows to the satisfaction of the court that in selection and
supervision he has exercised the care and diligence of a good father
of a family, the presumption is overcome and he is relieved from
liability.
This theory bases the responsibility of the master ultimately on
his own negligence and not on that of his servant. This is the notable
peculiarity of the Spanish law of negligence. It is, of course, in
striking contrast to the American doctrine that, in relations with
strangers, the negligence of the servant in conclusively the
negligence of the master.
The opinion there expressed by this Court, to the effect that in case
of extra-contractual culpa based upon negligence, it is necessary
that there shall have been some fault attributable to the defendant
personally, and that the last paragraph of article 1903 merely
establishes a rebuttable presumption, is in complete accord with
the authoritative opinion of Manresa, who says (vol. 12, p. 611) that
the liability created by article 1903 is imposed by reason of the
breach of the duties inherent in the special relations of authority or
superiority existing between the person called upon to repair the
damage and the one who, by his act or omission, was the cause of
it.
On the other hand, the liability of masters and employers for the
negligent acts or omissions of their servants or agents, when such
acts or omissions cause damages which amount to the breach of a
contact, is not based upon a mere presumption of the master's
negligence in their selection or control, and proof of exercise of the
utmost diligence and care in this regard does not relieve the master
of his liability for the breach of his contract.
Every legal obligation must of necessity be extra-contractual or
contractual. Extra-contractual obligation has its source in the breach
or omission of those mutual duties which civilized society imposes
upon it members, or which arise from these relations, other than
contractual, of certain members of society to others, generally
embraced in the concept of status. The legal rights of each member
of society constitute the measure of the corresponding legal duties,
mainly negative in character, which the existence of those rights
imposes upon all other members of society. The breach of these
general duties whether due to willful intent or to mere inattention,
if productive of injury, give rise to an obligation to indemnify the
injured party. The fundamental distinction between obligations of
this character and those which arise from contract, rests upon the
fact that in cases of non-contractual obligation it is the wrongful or
negligent act or omission itself which creates the vinculum juris,
whereas in contractual relations the vinculum exists independently
of the breach of the voluntary duty assumed by the parties when
entering into the contractual relation.
With respect to extra-contractual obligation arising from negligence,
whether of act or omission, it is competent for the legislature to
elect — and our Legislature has so elected — whom such an
obligation is imposed is morally culpable, or, on the contrary, for
reasons of public policy, to extend that liability, without regard to
the lack of moral culpability, so as to include responsibility for the
negligence of those person who acts or mission are imputable, by a
legal fiction, to others who are in a position to exercise an absolute
or limited control over them. The legislature which adopted our Civil
Code has elected to limit extra-contractual liability — with certain
well-defined exceptions — to cases in which moral culpability can
be directly imputed to the persons to be charged. This moral
responsibility may consist in having failed to exercise due care in the
selection and control of one's agents or servants, or in the control of
persons who, by reason of their status, occupy a position of
dependency with respect to the person made liable for their
conduct.
The position of a natural or juridical person who has undertaken by
contract to render service to another, is wholly different from that
to which article 1903 relates. When the sources of the obligation
upon which plaintiff's cause of action depends is a negligent act or
omission, the burden of proof rests upon plaintiff to prove the
negligence — if he does not his action fails. But when the facts
averred show a contractual undertaking by defendant for the
benefit of plaintiff, and it is alleged that plaintiff has failed or
refused to perform the contract, it is not necessary for plaintiff to
specify in his pleadings whether the breach of the contract is due to
willful fault or to negligence on the part of the defendant, or of his
servants or agents. Proof of the contract and of its nonperformance
is sufficient prima facie to warrant a recovery.
As a general rule . . . it is logical that in case of extra-contractual
culpa, a suing creditor should assume the burden of proof of its
existence, as the only fact upon which his action is based; while on
the contrary, in a case of negligence which presupposes the
existence of a contractual obligation, if the creditor shows that it
exists and that it has been broken, it is not necessary for him to
prove negligence. (Manresa, vol. 8, p. 71 [1907 ed., p. 76]).
As it is not necessary for the plaintiff in an action for the breach of a
contract to show that the breach was due to the negligent conduct
of defendant or of his servants, even though such be in fact the
actual cause of the breach, it is obvious that proof on the part of
defendant that the negligence or omission of his servants or agents
caused the breach of the contract would not constitute a defense to
the action. If the negligence of servants or agents could be invoked
as a means of discharging the liability arising from contract, the
anomalous result would be that person acting through the medium
of agents or servants in the performance of their contracts, would
be in a better position than those acting in person. If one delivers a
valuable watch to watchmaker who contract to repair it, and the
bailee, by a personal negligent act causes its destruction, he is
unquestionably liable. Would it be logical to free him from his
liability for the breach of his contract, which involves the duty to
exercise due care in the preservation of the watch, if he shows that
it was his servant whose negligence caused the injury? If such a
theory could be accepted, juridical persons would enjoy practically
complete immunity from damages arising from the breach of their
contracts if caused by negligent acts as such juridical persons can of
necessity only act through agents or servants, and it would no doubt
be true in most instances that reasonable care had been taken in
selection and direction of such servants. If one delivers securities to
a banking corporation as collateral, and they are lost by reason of
the negligence of some clerk employed by the bank, would it be just
and reasonable to permit the bank to relieve itself of liability for the
breach of its contract to return the collateral upon the payment of
the debt by proving that due care had been exercised in the
selection and direction of the clerk?
This distinction between culpa aquiliana, as the source of an
obligation, and culpa contractual as a mere incident to the
performance of a contract has frequently been recognized by the
supreme court of Spain. (Sentencias of June 27, 1894; November 20,
1896; and December 13, 1896.) In the decisions of November 20,
1896, it appeared that plaintiff's action arose ex contractu, but that
defendant sought to avail himself of the provisions of article 1902 of
the Civil Code as a defense. The Spanish Supreme Court rejected
defendant's contention, saying:
These are not cases of injury caused, without any pre-existing
obligation, by fault or negligence, such as those to which article
1902 of the Civil Code relates, but of damages caused by the
defendant's failure to carry out the undertakings imposed by the
contracts . . . .
A brief review of the earlier decision of this court involving the
liability of employers for damage done by the negligent acts of their
servants will show that in no case has the court ever decided that
the negligence of the defendant's servants has been held to
constitute a defense to an action for damages for breach of
contract.
In the case of Johnson vs. David (5 Phil. Rep., 663), the court held
that the owner of a carriage was not liable for the damages caused
by the negligence of his driver. In that case the court commented on
the fact that no evidence had been adduced in the trial court that
the defendant had been negligent in the employment of the driver,
or that he had any knowledge of his lack of skill or carefulness.
In the case of Baer Senior & Co's Successors vs. Compania Maritima
(6 Phil. Rep., 215), the plaintiff sued the defendant for damages
caused by the loss of a barge belonging to plaintiff which was
allowed to get adrift by the negligence of defendant's servants in
the course of the performance of a contract of towage. The court
held, citing Manresa (vol. 8, pp. 29, 69) that if the "obligation of the
defendant grew out of a contract made between it and the plaintiff .
. . we do not think that the provisions of articles 1902 and 1903 are
applicable to the case."
In the case of Chapman vs. Underwood (27 Phil. Rep., 374), plaintiff
sued the defendant to recover damages for the personal injuries
caused by the negligence of defendant's chauffeur while driving
defendant's automobile in which defendant was riding at the time.
The court found that the damages were caused by the negligence of
the driver of the automobile, but held that the master was not
liable, although he was present at the time, saying:
. . . unless the negligent acts of the driver are continued for a length
of time as to give the owner a reasonable opportunity to observe
them and to direct the driver to desist therefrom. . . . The act
complained of must be continued in the presence of the owner for
such length of time that the owner by his acquiescence, makes the
driver's acts his own.
In the case of Yamada vs. Manila Railroad Co. and Bachrach Garage
& Taxicab Co. (33 Phil. Rep., 8), it is true that the court rested its
conclusion as to the liability of the defendant upon article 1903,
although the facts disclosed that the injury complaint of by plaintiff
constituted a breach of the duty to him arising out of the contract of
transportation. The express ground of the decision in this case was
that article 1903, in dealing with the liability of a master for the
negligent acts of his servants "makes the distinction between
private individuals and public enterprise;" that as to the latter the
law creates a rebuttable presumption of negligence in the selection
or direction of servants; and that in the particular case the
presumption of negligence had not been overcome.
It is evident, therefore that in its decision Yamada case, the court
treated plaintiff's action as though founded in tort rather than as
based upon the breach of the contract of carriage, and an
examination of the pleadings and of the briefs shows that the
questions of law were in fact discussed upon this theory. Viewed
from the standpoint of the defendant the practical result must have
been the same in any event. The proof disclosed beyond doubt that
the defendant's servant was grossly negligent and that his
negligence was the proximate cause of plaintiff's injury. It also
affirmatively appeared that defendant had been guilty of negligence
in its failure to exercise proper discretion in the direction of the
servant. Defendant was, therefore, liable for the injury suffered by
plaintiff, whether the breach of the duty were to be regarded as
constituting culpa aquiliana or culpa contractual. As Manresa points
out (vol. 8, pp. 29 and 69) whether negligence occurs an incident in
the course of the performance of a contractual undertaking or its
itself the source of an extra-contractual undertaking obligation, its
essential characteristics are identical. There is always an act or
omission productive of damage due to carelessness or inattention
on the part of the defendant. Consequently, when the court holds
that a defendant is liable in damages for having failed to exercise
due care, either directly, or in failing to exercise proper care in the
selection and direction of his servants, the practical result is
identical in either case. Therefore, it follows that it is not to be
inferred, because the court held in the Yamada case that defendant
was liable for the damages negligently caused by its servants to a
person to whom it was bound by contract, and made reference to
the fact that the defendant was negligent in the selection and
control of its servants, that in such a case the court would have held
that it would have been a good defense to the action, if presented
squarely upon the theory of the breach of the contract, for
defendant to have proved that it did in fact exercise care in the
selection and control of the servant.
The true explanation of such cases is to be found by directing the
attention to the relative spheres of contractual and extra-
contractual obligations. The field of non- contractual obligation is
much more broader than that of contractual obligations,
comprising, as it does, the whole extent of juridical human relations.
These two fields, figuratively speaking, concentric; that is to say, the
mere fact that a person is bound to another by contract does not
relieve him from extra-contractual liability to such person. When
such a contractual relation exists the obligor may break the contract
under such conditions that the same act which constitutes the
source of an extra-contractual obligation had no contract existed
between the parties.
The contract of defendant to transport plaintiff carried with it, by
implication, the duty to carry him in safety and to provide safe
means of entering and leaving its trains (civil code, article 1258).
That duty, being contractual, was direct and immediate, and its non-
performance could not be excused by proof that the fault was
morally imputable to defendant's servants.
The railroad company's defense involves the assumption that even
granting that the negligent conduct of its servants in placing an
obstruction upon the platform was a breach of its contractual
obligation to maintain safe means of approaching and leaving its
trains, the direct and proximate cause of the injury suffered by
plaintiff was his own contributory negligence in failing to wait until
the train had come to a complete stop before alighting. Under the
doctrine of comparative negligence announced in the Rakes case
(supra), if the accident was caused by plaintiff's own negligence, no
liability is imposed upon defendant's negligence and plaintiff's
negligence merely contributed to his injury, the damages should be
apportioned. It is, therefore, important to ascertain if defendant
was in fact guilty of negligence.
It may be admitted that had plaintiff waited until the train had come
to a full stop before alighting, the particular injury suffered by him
could not have occurred. Defendant contends, and cites many
authorities in support of the contention, that it is negligence per
se for a passenger to alight from a moving train. We are not
disposed to subscribe to this doctrine in its absolute form. We are of
the opinion that this proposition is too badly stated and is at
variance with the experience of every-day life. In this particular
instance, that the train was barely moving when plaintiff alighted is
shown conclusively by the fact that it came to stop within six meters
from the place where he stepped from it. Thousands of person
alight from trains under these conditions every day of the year, and
sustain no injury where the company has kept its platform free from
dangerous obstructions. There is no reason to believe that plaintiff
would have suffered any injury whatever in alighting as he did had it
not been for defendant's negligent failure to perform its duty to
provide a safe alighting place.
We are of the opinion that the correct doctrine relating to this
subject is that expressed in Thompson's work on Negligence (vol. 3,
sec. 3010) as follows:
The test by which to determine whether the passenger has been
guilty of negligence in attempting to alight from a moving railway
train, is that of ordinary or reasonable care. It is to be considered
whether an ordinarily prudent person, of the age, sex and condition
of the passenger, would have acted as the passenger acted under
the circumstances disclosed by the evidence. This care has been
defined to be, not the care which may or should be used by the
prudent man generally, but the care which a man of ordinary
prudence would use under similar circumstances, to avoid injury."
(Thompson, Commentaries on Negligence, vol. 3, sec. 3010.)
Or, it we prefer to adopt the mode of exposition used by this court
in Picart vs. Smith (37 Phil. rep., 809), we may say that the test is
this; Was there anything in the circumstances surrounding the
plaintiff at the time he alighted from the train which would have
admonished a person of average prudence that to get off the train
under the conditions then existing was dangerous? If so, the
plaintiff should have desisted from alighting; and his failure so to
desist was contributory negligence.1awph!l.net
As the case now before us presents itself, the only fact from which a
conclusion can be drawn to the effect that plaintiff was guilty of
contributory negligence is that he stepped off the car without being
able to discern clearly the condition of the platform and while the
train was yet slowly moving. In considering the situation thus
presented, it should not be overlooked that the plaintiff was, as we
find, ignorant of the fact that the obstruction which was caused by
the sacks of melons piled on the platform existed; and as the
defendant was bound by reason of its duty as a public carrier to
afford to its passengers facilities for safe egress from its trains, the
plaintiff had a right to assume, in the absence of some circumstance
to warn him to the contrary, that the platform was clear. The place,
as we have already stated, was dark, or dimly lighted, and this also
is proof of a failure upon the part of the defendant in the
performance of a duty owing by it to the plaintiff; for if it were by
any possibility concede that it had right to pile these sacks in the
path of alighting passengers, the placing of them adequately so that
their presence would be revealed.
As pertinent to the question of contributory negligence on the part
of the plaintiff in this case the following circumstances are to be
noted: The company's platform was constructed upon a level higher
than that of the roadbed and the surrounding ground. The distance
from the steps of the car to the spot where the alighting passenger
would place his feet on the platform was thus reduced, thereby
decreasing the risk incident to stepping off. The nature of the
platform, constructed as it was of cement material, also assured to sum of P790.25 for medical attention, hospital services, and other
the passenger a stable and even surface on which to alight. incidental expenditures connected with the treatment of his
Furthermore, the plaintiff was possessed of the vigor and agility of injuries.
young manhood, and it was by no means so risky for him to get off
The decision of lower court is reversed, and judgment is hereby
while the train was yet moving as the same act would have been in
rendered plaintiff for the sum of P3,290.25, and for the costs of
an aged or feeble person. In determining the question of
both instances. So ordered.
contributory negligence in performing such act — that is to say,
whether the passenger acted prudently or recklessly — the age, sex, Arellano, C.J., Torres, Street and Avanceña, JJ., concur.
and physical condition of the passenger are circumstances
necessarily affecting the safety of the passenger, and should be
considered. Women, it has been observed, as a general rule are less
capable than men of alighting with safety under such conditions, as
the nature of their wearing apparel obstructs the free movement of
the limbs. Again, it may be noted that the place was perfectly
familiar to the plaintiff as it was his daily custom to get on and of
the train at this station. There could, therefore, be no uncertainty in
his mind with regard either to the length of the step which he was
required to take or the character of the platform where he was
alighting. Our conclusion is that the conduct of the plaintiff in
undertaking to alight while the train was yet slightly under way was
not characterized by imprudence and that therefore he was not
guilty of contributory negligence.

The evidence shows that the plaintiff, at the time of the accident,
was earning P25 a month as a copyist clerk, and that the injuries he
has suffered have permanently disabled him from continuing that
employment. Defendant has not shown that any other gainful
occupation is open to plaintiff. His expectancy of life, according to
the standard mortality tables, is approximately thirty-three years.
We are of the opinion that a fair compensation for the damage
suffered by him for his permanent disability is the sum of P2,500,
and that he is also entitled to recover of defendant the additional