Republic of the Philippines

13th Judicial Region

REGIONAL TRIAL COURT
Branch ___, Surigao City

SARAH E. LEDINO,
Plaintiff,

- versus - CIVIL CASE No. _______

BACHELORETTE TRANSIT
CO. and JACKSON A.
GUTIERREZ.
Defendants.
x-----------------x

ANSWER WITH SPECIAL AFFIRMATIVE DEFENSES

AND ALLEGATIONS, WITH MOTION FOR
PRELIMINARY HEARING ON AFFIRMATIVE DEFENSES

COME NOW DEFENDANTS BACHELORETTE TRANSIT

CO. and JACKSON A. GUTIERREZ [hereinafter, “Jack”],
[jointly, “Defendants”], through the undersigned counsel, for
their Answer and Special Affirmative Defenses to the
Complaint, 1 which was received on 15 December 2016, and for
their Motion for Preliminary Hearing on Affirmative Defenses,
hereby admit, deny, move and allege as follows:

1. Defendants ADMIT the allegations set forth in

paragraphs 1, 2, 3, 4, 5, 6 and 7 of the complaint insofar as
they relate to the personal circumstances, legal capacity and
addresses of the parties;

2. Defendants SPECIFICALLY DENY paragraphs 8 and

9 of the complaint the truth being that set forth in SPECIAL
AFFIRMATIVE DEFENSES AND ALLEGATIONS;

3. Defendants ADMIT IN PART paragraph 10 of the

complaint insofar as it relates to the fact that the bus swerved
to the right which caused the bus to hit a big tree, SUBJECT
TO THE QUALIFICATIONS set forth in the SPECIAL
AFFIRMATIVE DEFENSES AND ALLEGATIONS. As to the
1

On 4 November 2013, Defendant Spouses respectfully moved that this

Honorable Court grant them additional fifteen (15) days from 8 November 2013, or
until 23 November 2013 , within which to adequately consult with and engage an
attorney, and thusfile their answer.
Page 1 of 10
remainder of the allegations stated in this paragraph,
Defendants SPECIFICALLY DENY the same the truth being
that set forth in SPECIAL AFFIRMATIVE DEFENSES AND
ALLEGATIONS;

4. Defendants ADMIT IN PART paragraph 11 of the

complaint insofar as it relates to the fact that the Plaintiff,
together with her husband and other passengers were rushed
to the nearest hospital, SUBJECT TO THE QUALIFICATIONS
set forth in the SPECIAL AFFIRMATIVE DEFENSES AND
ALLEGATIONS. As to the remainder of the allegations stated
in this paragraph, Defendants SPECIFICALLY DENY the same
the truth being that set forth in SPECIAL AFFIRMATIVE
DEFENSES AND ALLEGATIONS;

5. Defendants lack knowledge or information sufficient

to form a belief as to the truth of paragraph 12 of the
complaint to enable them to answer;

6. Defendants SPECIFICALLY DENY paragraphs 13,

14 and 15 of the complaint the truth being that set forth in
SPECIAL AFFIRMATIVE DEFENSES AND ALLEGATIONS;

SPECIAL AFFIRMATIVE DEFENSES

AND ALLEGATIONS

7. Defendants set forth the following affirmative

defenses to the complaint. In asserting these affirmative
defenses, Defendants do not assume the burden to establish
any fact or proposition where that burden is properly imposed
on Plaintiff. Likewise, Defendants incorporate by reference all
the foregoing allegations in so far as they are material and
relevant;

I. Plaintiff boarded the bus

gratuitously and without
charge;
__________________________

8. That while the bus was still at the station dispatching

for passengers, herein petitioner sarah ledino together with the
said late Frederick Ledino approached the dispatcher of the bus
and asked that they be allowed to ride the bus heading to
Butuan for free. The said late Frederick Ledino …..

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 9. That per records in our dispatcher, Bus No. 16 with
plate number ABC 123 departed the bus garage at 8:00 AM, copy
of the Dispatch Record Book is attached as “Annex 1”;

10. Article 1758 of the New Civil Code provides as

follows:

“When a passenger is carried gratuitously, a

stipulation limiting the common carrier’s liability for
negligence is valid, but not for willful acts or gross
negligence.”

11. Here, the Plaintiff and her deceased husband validly

made an agreement with the dispatcher and Jack to entirely
eliminate the carrier’s liability for any negligence and boarded
the bus without charge.

12. In view thereof, it is clear that Defendants have no

liability as to the circumstances of the Plaintiff and her
deceased husband.

II. Plaintiff’s deceased husband

was negligent;
__________________________

13. That the collector and driver duly and timely

reminded all the passengers to wear their respective seatbelts
before the bus left the station. Notices of safety precautionary
measures were also posted legibly on the dashboard and
behind every seat for every passenger to follow. However,
while on transit, said late Frederick Ledino willfully removed his
seatbelt as attested by a co-passenger, Pedro Manigo
[hereinafter, “Pedro”];

14. That Pedro and Lita Luna [hereinafter, “Lita”],

another passenger who was seated adjacent to the wife of the
deceased, who were seated immediately next to each other,
attested that they were wide awake when the accident happened
and that they did not notice or smell anything such as of a burnt
rubber inside the bus, copy of the affidavits of the witnesses are
attached as “Annex 2 and Annex 3”, respectively;

15. Article 1758 of the New Civil Code provides as

follows:

“The passenger must observe the diligence of a

good father of a family to avoid injury to himself.”

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 16. In Landicho v. BTCo.,

“the Court held that the passenger is

responsible for finding a safe seat, as the duty of the
carrier does not encompass all risks attended to a
passenger in transit. It is enough that the carrier's
employees see to it that passengers seats himself
safely inside the vehicle, it is operated carefully and
the mechanisms of the vehicle are in good shape to
prevent mishaps.

III. Defendants observed due

diligence required of a
common carrier;
__________________________

17. That when they reached Sison, a cargo truck on the

opposite lane deviates from its usual lane and run towards the
lane traversed by the bus driven by the defendant driver and
despite exerting all effort to avoid the collision to avoid greater
damage or death, defendant driver swerved to the right thus
hitting a tree, a copy of the police report is attached as “ Annex
4”.

18. That had the driver was not diligent enough to avoid
the cargo truck, who is running in full speed towards the bus,
more damage to life and property may have been suffered by
the bus;

19. Article 1733 of the New Civil Code provides as

follows:

“Common carriers, from the nature of their

business and for reasons of public policy, are 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. ...”

20. Article 1755 of the New Civil Code provides as follows:

“A common carrier is bound to carry the

passengers safely as far as human care and foresight
can provide, using the utmost diligence of every
cautious persons, with a due regard for all the
circumstances.”

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 21. That the driver observed the due extraordinary
diligence required of a common carrier and the utmost
diligence of every cautious person such as driving carefully,
periodical testing to determine the condition and mechanisms
of the vehicle are in good shape and complying with the
required speed limit to meet the approximate travel time.

22. That the defendant-owner observed the diligence of a

good father of a family in the selection and supervision of his
employees. The following procedures were observed before an
applicant employee, more particularly for the position of driver, is
hired by the bus company:

a) In the selection of employee/drivers, they were

examined as to their qualification, experience, past
employment and track record, police clearance,
driver’s license and NBI clearance. In addition they
were required to undergo tests of actual driving
skills, concentration, reflexes and vision. They are
also required to complete the attendance on
training programs of traffic rules, vehicles
maintenance, and standard operating procedure in
times of emergencies, a copy of the company rules
is attached as “Annex 5”;
b) On the Supervision, the defendant employer
formulated and implemented standard operating
procedure for all drivers to observe and follow to
ensure observance of due diligence and avoid
accident and impose penalties for breach thereof,
thus the company imposes speed limit to all its bus
units, mandatory daily check-up and maintenance
of bus units before and after their respective trips,
a copy of company rules and an affidavit of Juan
Maturan, Bachelorette Transit Co, General Manager
for Operation, is attached as “Annex 6 and Annex
7”, respectively;

IV. The accident was not the

proximate cause of
Frederick’s death;
__________________________

23. That the deceased was rushed to the hospital, but the
attending physician’s findings manifests that his death was not
due to the injuries he incurred during the accident, it was found
out that the cause of his death was Cardiopulmonary Arrest, a
copy of the medical report is attached as “Annex 8”;

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 24. That the incident was not the proximate cause of the
death of Frederick. The medical report showed that the death of
Frederick was caused by the sudden stop in effective blood flow
due to the failure of his heart to contract effectively and the
minor cuts, scrapes and abrasions were of no link.

25. Proximate cause is:

“that cause, which, in a natural and continuous

sequence, unbroken by any efficient intervening
cause, produces the injury without which the result
would not have occurred.”

26. That the defendants during the accident has no

liability moral or exemplary and whatsoever damages that the
plaintiff has prayed for, because from the facts and evidence of
the case, the defendant driver is not negligent on his duty as a
driver, and the bus owner has clearly observed the diligence of
a good father of a family in the selection and supervision of his
employees;

27. As held in the case of SYKI vs SALAVADOR

BEGASA, GR No. 149149 dated October 23, 2003, a
testimonial evidence on the defense of the observance of the
diligence of a good father of a family must be coupled with
documentary evidence. In the case at hand, defendant owner
can very well prove via testimonial and documentary evidence
that he had observed such duty.

28. For the reasons stated above, Plaintiff’s claim is

moot and academic, less so, untrue.

MOTION FOR PRELIMINARY HEARING ON

AFFIRMATIVE DEFENSES

29. Defendants incorporate by reference all the

foregoing allegations in so far as they are material and
relevant;

30. Defendants alleged a couple of affirmative defenses,

as follows:

a) Plaintiff boarded the bus gratuitously and

without charge;

b) Plaintiff’s deceased husband was negligent;

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 c) Defendants observed due diligence required of
a common carrier;

d) The accident was not the proximate cause of

Frederick’s death;

31. In view thereof, Defendants respectfully request that

a preliminary hearing be set on the affirmative defenses raised.

PRAYER

For the foregoing reasons, Defendants pray for an order

and/or judgment as follows:

1. Setting the preliminary hearing on the affirmative

defenses set forth;

2. Dismissal of Plaintiff’s complaint for lack of merit; and

3. Payment by Plaintiff for Attorney’s fees and costs of suit

incurred by Defendants in the amount not less than Fifty
Thousand Pesos (P50,000.00).

All other relief just and equitable under the premises is

likewise prayed for.

City of Surigao,16 December 2016.

SHERALYNE DAZ PEQUINA

Counsel for Defendant

Suite 204 Cattleya Condominium

235 Salcedo Street, Legaspi Village, Surigao City
Mobile No. (63) 998 976 6906
Email Address: atty.sdpequina@gmail.com

Roll No. 57043

IBP No. 856002 - 12-12-2012; Surigao City
PTR No. 3674489 - 01-07-2013; Surigao City
MCLE Compliance No. IV-0014545; 04-15-2013

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 VERIFICATION

We, JACKSON A . GUTIERREZ and MICHAEL B.

GARCIA, Filipinos, of legal age, and residents of 123 Purok
Perlas, Nueva St., Surigao City and 234 Rizal St., Surigao City,
respectively, after having been duly sworn to in accordance
with law, hereby depose and state:

We have caused the preparation of the foregoing

ANSWER WITH SPECIAL AFFIRMATIVE DEFENSES AND
ALLEGATIONS, WITH MOTION FOR PRELIMINARY
HEARING ON AFFIRMATIVE DEFENSES; We have read the
contents thereof, the contents of which are true and correct
based on our personal knowledge and authentic documents and
records;

IN WITNESS WHEREOF, we have hereunto affixed our

signature this ___ day of December 2016, in Surigao City,
Philippines.

JACKSON A . GUTIERREZ MICHAEL B. GARCIA

Affiant Affiant

SUBSCRIBED AND SWORN to before me this ___ day of

December 2016 in Surigao City, Philippines, affiants exhibited
to me

Jackson A. Gutierrez TIN 209-382-789 SS No. 33-6630205-4

Michael B. Garcia TIN 116-281-004 SS No. 33-0030644-3

as competent evidence of their identity.

Doc. No. _____;

Page No. _____;
Book No. _____;
Series of 2013.

COPY FURNISHED & NOTIFICATION

ATTY. RIDEN AARON E. ELAGO

Branch Clerk of Court
Regional Trial Court
Branch ___, Surigao City

FLORES GARDE MALAZA LAW OFFICES

Page 8 of 10
1703 M. Ortiz St.
Brgy. Washington
Surigao City

Greetings:

Please take notice that the foregoing ANSWER WITH

SPECIAL AFFIRMATIVE DEFENSES AND ALLEGATIONS,
WITH MOTION FOR PRELIMINARY HEARING ON
AFFIRMATIVE DEFENSES will be submitted to this Honorable
Court for its consideration and approval on December __, 2016
at ______ o’clock in the morning or as soon as counsels and
matters may be heard.

SHERALYNE DAZ PEQUINA

Counsel for Defendants

EXPLANATION
(Pursuant to Section 11, Rule 13 of the 1997 Rules of
Procedure)

The foregoing ANSWER WITH SPECIAL AFFIRMATIVE

DEFENSES AND ALLEGATIONS, WITH MOTION FOR
PRELIMINARY HEARING ON AFFIRMATIVE DEFENSES and
served upon Plaintiff’s counsel via registered mail owing to the
distance between the office of the undersigned counsel and the
counsel for Plaintiff, and for lack of messengerial services.

SHERALYNE DAZ PEQUINA

Counsel for Defendants

Copy furnished:

FLORES GARDE MALAZA LAW OFFICES

1703 M. Ortiz St.
Brgy. Washington
Surigao City

REGISTRY RECEIPT

Postal/Package No. ______

Posted on ______________

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Posted at ______________

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