CHAPTER 2 (PART 2)

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ROADWORTHINESS

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Common carrier that offer transportation by land are similarly required to make sure that the vehicles that they are using are in good order and condition. Thus, the carrier will not be excused from liability on the ground that the tire blowout was due to fortuitous event when it was shown that the passengers were injured because the floor of the bus gave way. Even assuming for the sake of argument that a tire blowout its fortuitous, the carrier would still be liable for not keeping the floor safe. In the above-cited case, while the bus was running, a rear tire exploded, blasting a hole in the very place where a child was standing with her mother. As a result, the child fell through the hole, and died that the same morning from injuries sustained in the fall.

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Driving without the license or driving alone with only a student’s license. A motorcycle driver was not wearing a protective headgear at the time of the accident. Overtaking in a “no-overtaking zone” particularly the place where there are two continuous yellow lines at the center of the highway which is part of internationally recognized pavement regulation known as the “double yellow center lines” regulation. Violating of the Metro Manila Development Authority Ordinance prohibiting a vehicle coming from a particular street from crossing another specified street or avenue.

DILIGENC E IN THE SELECTION AND SUPERVISION TRAFFIC RULES The carrier fails to exercise extraordinary diligence if it will not comply with basic traffic rules. It should be recalled that Article 2185 of the Civil Code even provides for a presumption of negligence in case the accident occurs while the operator of the motor vehicle is violating traffic rules. •

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Nevertheless, in cases involving breach of contract of carriage, proof of violation of traffic rules confirms that the carrier failed to exercise extraordinary diligence. The carrier will be usually made liable and will not overcome the presumption of negligence if there is violation of traffic rules because extraordinary diligence on the part of the common carrier requires compliance with traffic rules and regulation. The basic traffic rules that must be complied with include those provided for under the Land Transportation and Traffic Code. The following cases are instances when the Court found traffic rules and regulations were violated: o Violation of Section 37 thereof requiring motorist to drive on the right side of the road and providing rules on overtaking. o Speeding in violation of law providing for restriction on speed. o Speeding in an intersection o A vehicle’s failure to signal while making the U-Turn. o The driver escaped and abandoned the victims of his truck

In quasi-delict cases under Article 2176 in relation to Article 2180 of the New Civil Code, the employer can invoke the defense of due diligence in the selection and supervision of the employee in order to escape liability. Such defense is not available if the case against the carrier is based on contract – culpa contractual. Article 1759 of the New Civil Code, which applies to all types of common carriers, provides: Article 1759. Common carriers are liable for the death of or injuries to passengers through the negligence or wilful acts of the former's employees, although such employees may have acted beyond the scope of their authority or in violation of the orders of the common carriers. This liability of the common carriers does not cease upon proof that they exercised all the diligence of a good father of a family in the selection and supervision of their employees. Article 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no preexisting contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. (1902a) Article 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant.(n) Article 2178. The provisions of articles 1172 to 1174 are also applicable to a quasi-delict. (n) Article 2179. When the plaintiff's own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory,

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the immediate and proximate cause of the injury being the defendant's lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded. (n) Article 2180. The obligation imposed by article 2176 is demandable not only for one's own acts or omissions, but also for those of persons for whom one is responsible. The father and, in case of his death or incapacity, the mother, are responsible for the damages caused by the minor children who live in their company. Guardians are liable for damages caused by the minors or incapacitated persons who are under their authority and live in their company. The owners and managers of an establishment or enterprise are likewise responsible for damages caused by their employees in the service of the branches in which the latter are employed or on the occasion of their functions. Employers shall be liable for the damages caused by their employees and household helpers acting within the scope of their assigned tasks, even though the former are not engaged in any business or industry. The State is responsible in like manner when it acts through a special agent; but not when the damage has been caused by the official to whom the task done properly pertains, in which case what is provided in article 2176 shall be applicable.

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In no case shall the PUV operator employ any person who has been convicted by a competent court of homicide and/or serious physical injuries, theft, estafa, robbery, and crimes against chastity, unless with prior written approval by the LTFRB. 3) PUV operators are prohibited from employing drivers who do not have a valid professional driver’s license and appropriate restriction code. 4) The PUV operator and their drivers shall attend trainings/seminars on transport management, road safety, and good driving habits to be conducted/accredited by the LTFRB. 5) Before accepting or hiring drivers and conductors, the PUV operator shall subject them to orientation and rigid examinations pursuant to existing laws, policies, rules, and regulations. Common carriers are also now required under RA 10586 otherwise known as the “Anti-Drunk and Drugged Driving Act of 2013” to make sure that their drivers will no drive under the influence of alcohol or of dangerous drugs and other similar substances.

DUTY TO INSPECT Lastly, teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in their custody.

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Nevertheless, the duty of the common carrier to exercise extraordinary diligence includes due diligence in the selection and supervision of the employee. It was likewise observed that in the discharge of the common carrier’s commitment to ensure safety passengers, a carrier my choose to hire its own employees or to avail itself of the services of an outsider or an independent firm to undertake the task. In either case, the common carrier is not relieved of its responsibility under the contract of carriage. In this connection it is well to note that the conditions for the issuance of a Certificate of Public Convenience for Public Utility Vehicle imposed by the LTFRB include the following: 1) The PUV operator shall employ drivers, conductors, inspectors, and other personnel who are courteous and of good moral character.

There is no unbending duty to inspect each and every package or baggage that is being brought inside the bus or jeepney. The duty of the carrier to conduct an inspection depends on the circumstances. INSURANCE The Insurance Code as amended requires all motor vehicles to be covered by compulsory motor vehicle liability insurance that compensates, among others, passengers who died or who suffered bodily injuries as a result of the operation of the motor vehicle. CARRIAGE BY TRAIN COMPETENT EMPLOYEES The carrier must hire competent engineers and employees. These employees must be properly trained in the operation of the trains including in the manufacturer’s operations instructions and other safety rules. The hiring of competent and well-trained personnel necessarily includes the hiring of competent security personnel (or security agency) not only for the trains but for the facilities as well.

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THE PLATFORM MUST BE SAFE

PASSENGERS WHO FELL FROM THE TRAIN

As explained earlier, the duty is present even at the time the passenger as at the platform. In Light Rail Transit Authority (LRTA) vs Marjorie Navidad, the train operator (LRTA) was made liable although the death of the victim was sustained while the victim was still waiting for a coach on the platform of the LRT station. The liability was imposed although the inebriated victim’s death resulted because he fought with a security guard.

The civil case allowed to prosper against the respondent PNR in Malong vs Philippine National Railways although the respondent is a government instrumentality. The Malong spouses initiated the case because their son, Jaime Aquino, a paying passenger, was killed when he from a PNR train while it was between Tarlac and Capas. The tragedy occurred because Jaime had to sit near the door of a coach. The train was overloaded with passengers and baggage in view of the proximity of All Saints Day. Although the case was not yet decided on the merits by the Court, it is believed that negligence on the part of the carrier is presumed.

In another case, Cangco vs Manila Railroad Company the employees of the railroad company were guilty of negligence in piling sacks of melon in the platform. The sacks of melons were so placed as to obstruct passengers passing to and from the cars. The presence of the sacks of melons cause 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. MAINTENANCE OF TRAIN AND TRACKS No matter what mode of transportation is the common carrier operating, the common carrier has the duty to make sure that the vehicle or the mans of transportation is in good and safe working condition. Thus, the train operator is liable if the injuries were sustained because of the defects in the breaks or because of any mechanical defect in the trains. •

The train operator must likewise exercise extraordinary diligence in the maintenance of its tracks. Thus, the operator is liable if the train was derailed because of the defective railroad tracks causing injury to its passengers. The maintenance of the rails is the responsibility of the operator and prudent steps must be taken to prevent accidents “instead of waiting until a life was finally lost because of its negligence”

EMBARKING AND DISEMBARKING PASSENGERS Due care must be exercised when train passengers ware embarking or disembarking. The exercise of extraordinary diligence is required in the transportation of passengers while in the rain, and also in giving intended passengers reasonable opportunity to enter or disembark from it. NEGLIGENCE IN THE OPERATION OF THE TRAIN Extraordinary diligence should be exercised in the operation of the train. Thus, the railroad company may be held liable if the accident occurred because the train was running at an excessive speed.

PERSONS AND PROPERTIES RAN OVER BY TRAINS It is not the duty of the engineer to stop the train every time that he sees a person on or near the tracks. The United States vs Bonifacio But there is no obligation on an engine driver to stop, or even to slow down his engine, when he sees an adult pedestrian standing or walking on or near the track, unless there is something in the appearance or conduct of the person on foot which would cause a prudent man to anticipate the possibility that such person could not, or would not avoid the possibility of danger by stepping aside. Ordinarily, all that may properly be required of an engine driver under such circumstances is that he give warning of his approach, by blowing his whistle or ringing his bell until he is assured that the attention of the pedestrian has been attracted to the oncoming train. Of course it is the duty of an engine driver to adopt every measure in his power to avoid the infliction of injury upon any person who may happen to be on the track in front of his engine, and to slow down, or stop altogether if that be necessary, should he have reason to believe that only by doing so can an accident be averted. But an engine driver may fairly assume that all persons walking or standing on or near the railroad track, except children of tender years, are aware of the danger to which they are exposed; and that they will take reasonable precautions to avoid accident, by looking and listening for the approach of trains, and stepping out of the way of danger when their attention is directed to an oncoming train. Any other rule would render it impracticable to operate railroads so as to secure the expeditious transportation of passengers and freight which the public interest demands. If engine drivers were required to slow down or stop their trains every time they see a pedestrian on or near the track of the railroad it might well become impossible for them to maintain a reasonable rate of speed. As a result the general traveling public would be exposed to great inconvenience and delay which may be, and is readily avoided by requiring all persons approaching a railroad track, to take reasonable precautions against danger from trains running at high speed.

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Indeed, a person who is walking on the tracks must exercise due care in avoiding his own death or injury. The United States vs Azajar We believe that it is a rule well established that any person walking or being upon a railroad track is bound to be diligent and to keep a lookout for approaching trains. This rule, it would seem, is especially applicable to employees of a railroad company, who are working on the track. The engineer managing the train has a right to assume that adult persons who are upon the track and especially the workmen regularly employed thereon, will exercise reasonable care and will be on the lookout for approaching trains, that they will take due notice of signals properly given, and will leave the track in ample time to avoid injury.

In Jahara vs The Mindanao Lumber Company an employee who was about to go to the place where he was engaged in cutting timber, through the train operating in the place, was run over by the last car of the train as it was moving backwards. The employee died instantly. It was explained however that the proximate cause of the death of a worker was his own negligence because evidence shows that the deceased tried to board the rear platform if the car as it was moving backwards; that he succeeded in getting a foothold but failing to obtain a gold of the car, he fell to the ground and was run over by the train. DAMAGES TO PROPERTIES AND PERSONS NEAR RAILROAD TRACKS The railroad company must exercise due care in preventing damage to the properties near the tracks. The railroad company may be liable if, for instance, its negligence cause the destruction of neighboring properties through fire. RAILROAD CROSSING Due diligence on the part of the train operator includes due diligence in traversing railroad crossing and in maintaining the same. There are substantial number of cases decided by the Supreme Court involving collision between a train and a motor vehicle. The cases decided by the SC involving accidents in railroad crossings include quasi-delict cases and cases against the operator or owner of the vehicle that collided with the trains as well as the duty of the train companies to the public. However, the same may also be the reason why the Court may rule that there is culpa contractual; the same negligent act or omission may give rise to liability to passengers who may be injured as a consequence. •

In some of the cases, the motor vehicles that collided with the trains were being operated as common carriers. Negligence of these operators

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was presumed and the operators of these common carriers were made liable to their passengers or the latter’s heirs when they failed to exercise due diligence in crossing the railway. It may broadly be stated that railroad companies owe to the public a duty of exercising a reasonable degree of care to avoid injury to persons and property at railroad crossings, which duties pertain both in the operation of trains and in the maintenance of the crossings. Moreover, every corporation constructing or operating a railway shall make and construct at all points where such railway crosses any public road, good, sufficient, and safe crossings and erect at such points, at a sufficient elevation from such road as to admit a free passage of vehicles of every kind, a sign with large and distinct letters placed thereon, to give notice of the proximity of the railway, and warn persons of the necessity of looking out for trains.

ABSENCE OF SAFETY DEVICES AND SIGNS The train operator may be held liable if it did not ensure safety of others through placing of crossbars, signal lights, warning signs and other permanent safety barriers to prevent vehicles or pedestrians from crossing there. SPEEDING Running the train at an excessive speed can be proof of negligence. In Philippine National Railways Corporation and Borja vs Court of Appeals the train that collided with a car was running at fast speed because notwithstanding the application of the ordinary and emergency brakes, the train still dragged the car some distance away from the point of impact. •

The engineer must also take into consideration the prevailing condition in fixing the speed of the train. In Philippine National Railways vs Intermediate Appellate Court there was an intermittent rain at the time of the collision; the condition of the weather was such that even if for this reason alone, the train engineer should have foreseen that danger of collision lurked because of poor visibility of slippery road; he should have taken extra precaution by considerably slackening its speed.

OBLIGATIONS OF THIRDS PERSONS APPROACHING CROSSINGS The general rule is that “the rights and obligations between the public and a railroad company at a public crossing are mutual and reciprocal. Both are under mutual

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obligation to exercise due care to avoid causing or receiving injury. Each is in duty bound to exercise reasonable or ordinary care commensurate with the risk and danger involved. •

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A railroad track is in itself a notice of waring of danger, and that it is the duty of all persons approaching a railroad track or a railroad crossing to look and listen and to take every precaution before venturing upon it. A person crossing a railroad track, either at a regular crossing or elsewhere, should do so cautiously and carefully. He should look and listen, and do everything that a reasonable prudent man would do, before he attempts to crass the track. If he fails to use his sense he is negligent and others who have acted legally should not be punished.

NO IMPUTED CONTRIBUTORY NEGLIGENCE The negligence of driver of a car that collided with a train as well as the negligence of the engineer of the train cannot be imputed to the passengers of each vehicle. The passenger of the car can still recover from the railroad company despite the negligence of the driver of the car, whose liability is solidary as joint-tortfeasor. PASSENGER’S BAGGAGES Article 1754. The provisions of articles 1733 to 1753 shall apply to the passenger's baggage which is not in his personal custody or in that of his employee. As to other baggage, the rules in articles 1998 and 2000 to 2003 concerning the responsibility of hotel-keepers shall be applicable.

BAGGAGE DEFINED The term baggage has been defined to include whatever articles a passenger usually takes with him for his own personal use, comfort, and convenience according to the habits or wants of the particular class to which he belongs, either with reference to his immediate necessities or to the ultimate purpose of his journey. •

LTFRB RULES. In land transportation, the conditions for the issuance of a Certificate of Public Convenience for PUV imposed by the LTFRB include the following rules 1) Every passenger is entitled to a free carriage of 10 kilograms of baggage and shall pay the corresponding freightage for excess weight. 2) When the PUV operator’s unit/carry both passengers and freight, the freight shall be placed in a separate

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compartment, except packages or bundles the size of which will allow placement under the seats without causing inconvenience to, and compromising the safety of, the other passengers. In case freight is carried on top of Public Utility Buses, it shall not exceed 20 kilos per square meter of roof area, distributed so that it shall not endanger the lives of passengers or stability of the bus unit. The PUV operator shall not load animals of any kind, except fowls. In the carriage of such fowls and other animals, the convenience, comfort and safety of the passengers shall not in any way be sacrificed. Any cargo that emit foul odor shall be covered with canvass or any other suitable material so that it will not be offensive to passengers.

CHECKED-IN BAGGAGE The rules that are applicable to goods that are being shipped are applicable to baggage delivered to the custody of the carrier as in incident of a contract of carriage of passenger. HAND CARRIED LUGGAGE Article 1998. The deposit of effects made by travelers in hotels or inns shall also be regarded as necessary. The keepers of hotels or inns shall be responsible for them as depositaries, provided that notice was given to them, or to their employees, of the effects brought by the guests and that, on the part of the latter, they take the precautions which said hotel-keepers or their substitutes advised relative to the care and vigilance of their effects. (1783) Article 2000. The responsibility referred to in the two preceding articles shall include the loss of, or injury to the personal property of the guests caused by the servants or employees of the keepers of hotels or inns as well as strangers; but not that which may proceed from any force majeure. The fact that travellers are constrained to rely on the vigilance of the keeper of the hotels or inns shall be considered in determining the degree of care required of him. (1784a) Article 2001. The act of a thief or robber, who has entered the hotel is not deemed force majeure, unless it is done with the use of arms or through an irresistible force. (n) Article 2002. The hotel-keeper is not liable for compensation if the loss is due to the acts of the guest, his family, servants or

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visitors, or if the loss arises from the character of the things brought into the hotel. (n) Article 2003. The hotel-keeper cannot free himself from responsibility by posting notices to the effect that he is not liable for the articles brought by the guest. Any stipulation between the hotel-keeper and the guest whereby the responsibility of the former as set forth in articles 1998 to 2001 is suppressed or diminished shall be void. (n)

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