JOSE PILAPIL, PETITIONER, VS. HON. COURT OF APPEALS AND ALATCO TRANSPORTATION COMPANY, INC., RESPONDENTS.

This is a petition to review on certiorari the decision*
rendered by the Court of Appeals dated 19 October 1979 in CA-G.R. No. 57354-R
entitled “Jose Pilapil, plaintiff-appellee versus Alatco
Transportation Co., Inc., defendant-appellant,” which reversed and set
aside the judgment of the Court of First Instance of Camarines
Sur in Civil Case No. 7230 ordering respondent
transportation company to pay to petitioner damages in the total sum of sixteen
thousand three hundred pesos (P16,300.00).

The record discloses the following facts:

Petitioner-plaintiff Jose Pilapil, a
paying passenger, boarded respondent-defendant’s bus bearing No. 409 at San
Nicolas, Iriga
City on 16 September 1971 at about 6:00 P.M.  While
said bus No. 409 was in due course negotiating the distance between Iriga City and Naga City, upon
reaching the vicinity of the cemetery of the Municipality of Baao, Camarines Sur, on the way to Naga City, an
unidentified man, a bystander along said national highway, hurled a stone at
the left side of the bus, which hit petitioner above his left eye.  Private respondent’s personnel lost no time
in bringing the petitioner to the provincial hospital in Naga City
where he was confined and treated.

Considering that the sight of his left eye was impaired,
petitioner was taken to Dr. Malabanan of Iriga City
where he was treated for another week. 
Since there was no improvement in his left eye’s vision, petitioner went
to V. Luna Hospital, Quezon City
where he was treated by Dr. Capulong.  Despite the treatment accorded to him by Dr. Capulong, petitioner lost partially his left eye’s vision
and sustained a permanent scar above the left eye.

Thereupon, petitioner instituted before the Court of First
Instance of Camarines Sur,
Branch I an action for recovery of damages sustained as a result of the
stone-throwing incident.  After trial,
the court a quo rendered judgment with the following dispositive part:

“Wherefore, judgment is hereby entered:

1.       Ordering defendant
transportation company to pay plaintiff Jose Pilapil
the sum of P10,000.00, Philippine Currency, representing actual and material
damages for causing a permanent scar on the face and injuring the eye-sight of
the plaintiff;

2.       Ordering further
defendant transportation company to pay the sum of P5,000.00, Philippine
Currency, to the plaintiff as moral and exemplary damages;

3.       Ordering furthermore,
defendant trans­portation company to reimburse plaintiff the sum of P300.00 for
his medical expenses and attorney’s fees in the sum of P1,000.00, Philippine
Currency; and

4.       To pay the costs.

SO ORDERED.”1

From the judgment, private respondent appealed to the Court of
Appeals where the appeal was docketed as CA-G.R. No. 57354-R.  On 19
October 1979, the Court of Appeals, in a Special Division of Five,
rendered judgment reversing and setting aside the judgment of the court a
quo.

Hence the present petition.

In seeking a reversal of the decision of the Court of Appeals,
petitioner contends that said court has decided the issue not in accord with
law.  Specifically, petitioner argues
that the nature of the business of a transportation company requires the
assumption of certain risks, and the stoning of the bus by a stranger resulting
in injury to petitioner-passenger is one such risk from which the common
carrier may not exempt itself from liability.

We do not agree.

In consideration of the right granted to it by the public to
engage in the business of transporting passengers and goods, a common carrier
does not give its consent to become an insurer of any and all risks to
passengers and goods.  It merely undertakes
to perform certain duties to the public as the law imposes, and holds itself
liable for any breach thereof.

Under Article 1733 of the Civil Code, common carriers are
required to observe extraordinary diligence for the safety of the passengers
transported by them, according to all the circumstances of each case.  The requirement of extraordinary diligence
imposed upon common carriers is restated in Article 1755:  “A common carrier is bound to carry the
passengers safely as far as human care and foresight, can provide, using the
utmost diligence of very cautious persons, with due regard for all the
circumstances.” Further, in case of death of or injuries to passengers,
the law presumes said common carriers to be at fault or to have acted
negligently.2

While the law requires the highest degree of diligence from
common carriers in the safe transport of their passengers and creates a
presumption of negligence against them, it does not, however, make the carrier
an insurer of the absolute safety of its passengers.3

Article 1755 of the Civil Code qualifies the duty of
extraordinary care, vigilance and precaution in the carriage of passengers by
common carriers to only such as human care and foresight can provide.  What constitutes compliance with said duty is
adjudged with due regard to all the circumstances.

Article 1756 of the Civil Code, in creating a presumption of
fault or negligence on the part of the common carrier when its passenger is
injured, merely relieves the latter, for the time being, from introducing
evidence to fasten the negligence on the former, because the presumption stands
in the place of evidence.  Being a mere
presumption, however, the same is rebuttable by proof
that the common carrier had exercised extraordinary diligence as require by law
in the performance of its contractual obligation, or that the injury suffered
by the passenger was solely due to a fortuitous event.4

In fine, we can only infer from the law the intention of the Code
Commission and Congress to curb the recklessness of drivers and operators of
common carriers in the conduct of their business.

Thus, it is clear that neither the law nor the nature of the
business of a transportation company makes it an insurer of the passenger’s
safety, but that its liability for personal injuries sustained by its passenger
rests upon its negligence, its failure to exercise the degree of diligence that
the law requires.5

Petitioner contends that respondent common carrier failed to
rebut the presumption of negligence against it by proof on its part that it
exercised extraordinary diligence for the safety of its passengers.

We do not agree.

First, as stated earlier, the presumption of fault or negligence
against the carrier is only a disputable pre­sumption.  It gives in where contrary facts are established
proving either that the carrier had exercised the degree of diligence required
by law or the injury suffered by the passenger was due to a fortuitous
event.  Where, as in the instant case,
the injury sustained by the petitioner was in no way due to any defect in the
means of transport or in the method of transporting or to the negligent or wilful acts of private respondent’s employees, and
therefore involving no issue of negligence in its duty to provide safe and
suitable cars as well as competent employees, with the injury arising wholly
from causes created by strangers over which the carrier had no control or even
knowledge or could not have prevented, the presumption is rebutted and the
carrier is not and ought not to be held liable. 
To rule otherwise would make the common carrier the insurer of the
absolute safety of its passengers which is not the intention of the lawmakers.

Second, while as a general rule, common carriers are bound to
exercise extraordinary diligence in the safe trans­port of their passengers, it
would seem that this is not the standard by which its liability is to be
determined when intervening acts of strangers directly cause the injury, while
the contract of carriage exists.  Article
1763 governs:

“Article 1763.  A common
carrier is respon­sible for injuries suffered by a passenger on account of the wilful acts or negligence of other passengers or of
strangers, if the common carrier’s employees through the exercise of the
diligence of a good father of a family could have prevented or stopped the act
or omission.”

Clearly under the above provision, a tort committed by a stranger
which causes injury to a passenger does not accord the latter a cause of action
against the carrier.  The negligence for
which a common carrier is held respon­sible is the negligent omission by the
carrier’s employees to prevent the tort from being committed when the same
could have been foreseen and prevented by them. 
Further, under the same provision, it is to be noted that when the vio­lation
of the contract is due to the wilful acts of
strangers, as in the instant case, the degree of care essential to be exercised
by the common carrier for the protection of its passenger is only that of a
good father of a family.

Petitioner has charged respondent carrier of negli­gence on the
ground that the injury complained of could have been prevented by the common
carrier if something like mesh­work grills had covered the windows of its bus.

We do not agree.

Although the suggested precaution could have prevented the injury
complained of, the rule of ordinary care and prudence is not so exacting as to
require one charged with its exercise to take doubtful or unreasonable
precautions to guard against unlawful acts of strangers.  The carrier is not charged with the duty of
providing or maintaining vehicles as to absolutely prevent any and all injuries
to passengers.  Where the carrier uses
cars of the most approved type, in general use by others engaged in the same
occupation, and exercises a high degree of care in main­taining them in
suitable condition, the carrier cannot be charged with negligence in this
respect.7

Finally, petitioner contends that it is to the greater interest
of the State if a carrier were made liable for such stone-throwing incidents
rather than have the bus riding public lose confidence in the transportation
system.

Sad to say, we are not in a position to so hold; such a policy
would be better left to the consideration of Congress which is empowered to
enact laws to protect the public from the increasing risks and dangers of
lawlessness in society.

WHEREFORE, the
judgment appealed from is hereby AFFIRMED.

SO ORDERED.

Melencio-Herrera, (Chairman), Sarmiento, and Ragalado, JJ., concur.

Paras, J., no part.  Concurred in CA
decisions.

*
Penned by Justice Hugo E. Gutierrez, Jr., with Justices Edgardo
L. Paras, Milagros A. German, Jorge R. Coquia, concurring. 
Justice Ramon G. Gaviola, Jr. dissented.

1
Record on Appeal, Annex “B”, Rollo,
p. 31

2
Article 1756, New Civil Code

3
Strong v. Iloilo-Negros Air Express Co., 40 OG
Supp. 12 p. 274; Alfaro v. Ayson, 54 OG Dec. 1, 1958, p. 7920

4
Art. 1174, Civil Code; Lasam v. Smith, 45
Phil. 657

5
Art. 1170, 1173, Civil Code; Alfaro v. Ayson, Supra,
Necesito, et al. vs. Paras,
et al., 104 Phil. 75

7
Irwin v. Louisville & N.R. Co., 50 Southern Reporter 62