G.R. No.

L-23733
October 31, 1969
HERMINIO L. NOCUM, plaintiff-appellee,
vs.
LAGUNA TAYABAS BUS COMPANY, defendant-appellant.
BARREDO, J.:
Appeal of the Laguna Tayabas Bus Co., defendant in the Court below, from a
judgment of the said court (Court of First Instance of Batangas) in its Civil
Case No. 834, wherein appellee Herminio L. Nocum was plaintiff, sentencing
appellant to pay appellee the sum of P1,351.00 for actual damages and
P500.00 as attorney's fees with legal interest from the filing of the complaint
plus costs. Appellee, who was a passenger in appellant's Bus No. 120 then
making a trip within the barrio of Dita, Municipality of Bay, Laguna, was
injured as a consequence of the explosion of firecrackers, contained in a box,
loaded in said bus and declared to its conductor as containing clothes and
miscellaneous items by a co-passenger. The findings of fact of the trial court
are not assailed. The appeal is purely on legal questions.
Appellee has not filed any brief. All that We have before Us is appellant's
brief with the following assignment of errors:
I
BASED ON THE FACTS THE LOWER COURT FOUND AS
ESTABLISHED, IT ERRED AS A MATTER OF LAW IN NOT ABSOLVING
APPELLANT FROM LIABILITY RESULTING FROM THE EXPLOSION OF
FIRECRACKERS CONTAINED IN A PACKAGE, THE CONTENTS OF
WHICH WERE MISREPRESENTED BY A PASSENGER.
II
THE LOWER COURT ERRED, AS A MATTER OF LAW, IN
AWARDING DAMAGES WITH LEGAL INTEREST IN FAVOR OF THE
APPELLEE.
III
THE LOWER COURT ERRED IN NOT DISMISSING THE
COMPLAINT, WITH COSTS AGAINST THE APPELLEE.
Upon consideration of the points raised and discussed by appellant, We find
the appeal to be well taken.
The main basis of the trial court's decision is that appellant did not observe
the extraordinary or utmost diligence of a very cautious person required by
the following articles of the Civil Code:

ART. 1733. 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.
Such extraordinary diligence in the vigilance over the goods is further
expressed in articles 1734, 1735, and 1745, Nos. 5, 6, and 7, while
the extraordinary diligence for the safety of the passengers is further
set forth in articles 1755 and 1756.
ART. 1755. A common carrier is bound to carry the passengers
safely as far as human care and foresight can provide, using the
utmost diligence of very cautious persons, with a due regard for all
the circumstances.
ART 1756. In case of death of or injuries to passengers, common
carriers are presumed to have been at fault or to have acted
negligently, unless they prove that they observed extraordinary
diligence as prescribed in articles 1733 and 1755.
Analyzing the evidence presented by the parties, His Honor found:
According to Severino Andaya, a witness for the plaintiff, a man with
a box went up the baggage compartment of the bus where he
already was and said box was placed under the seat. They left
Azcarraga at about 11:30 in the morning and when the explosion
occurred, he was thrown out. PC investigation report states that thirty
seven (37) passengers were injured (Exhibits "O" and "2").
The bus conductor, Sancho Mendoza, testified that the box belonged
to a passenger whose name he does not know and who told him that
it contained miscellaneous items and clothes. He helped the owner
in loading the baggage which weighed about twelve (12) kilos and
because of company regulation, he charged him for it twenty-five
centavos (P0.25). From its appearance there was no indication at all
that the contents were explosives or firecrackers. Neither did he
open the box because he just relied on the word of the owner.

Dispatcher Nicolas Cornista of defendant company corroborrated the

testimony of Mendoza and he said, among other things, that he was
present when the box was loaded in the truck and the owner agreed
to pay its fare. He added that they were not authorized to open the
baggages of passengers because instruction from the management
was to call the police if there were packages containing articles
which were against regulations.
xxx

xxx

xxx

There is no question that Bus No. 120 was road worthy when it left
its Manila Terminal for Lucena that morning of December 5, 1960.
The injuries suffered by the plaintiff were not due to mechanical
defects but to the explosion of firecrackers inside the bus which was
loaded by a co-passenger.
... Turning to the present case, it is quite clear that extraordinary or
utmost diligence of a very cautious person was not observed by the
defendant company. The service manual, exhibits "3" and "3-A,"
prohibits the employees to allow explosives, such as dynamite and
firecrackers to be transported on its buses. To implement this
particular rule for 'the safety of passengers, it was therefore
incumbent upon the employees of the company to make the proper
inspection of all the baggages which are carried by the passengers.
But then, can it not be said that the breach of the contract was due to
fortuitous event? The Supreme Court in the case of Lasam vs. Smith,
45 Phil. 657, quoted Escriche's definition of caso fortuito as "an
unexpected event or act of God which could neither be foreseen nor
resisted, such as floods, torrents, shipwrecks, conflagrations,
lightning, compulsions, insurrections, destructions of buildings by
unforeseen accidents and other occurrences of a similar nature." In
other words, the cause of the unexpected event must be
independent of the will of man or something which cannot be
avoided. This cannot be said of the instant case. If proper and rigid
inspection were observed by the defendant, the contents of the box
could have been discovered and the accident avoided. Refusal by
the passenger to have the package opened was no excuse because,
as stated by Dispatcher Cornista, employees should call the police if
there were packages containing articles against company

regulations. Neither was failure by employees of defendant company

to detect the contents of the packages of passengers because like
the rationale in the Necesito vs. Paras case (supra), a passenger
has neither choice nor control in the exercise of their discretion in
determining what are inside the package of co-passengers which
may eventually prove fatal.
We cannot agree. No doubt, the views of His Honor do seem to be in line
with the reasons that the Code Commission had for incorporating the abovequoted provisions in its draft of the Civil Code. Indeed, in approving the said
draft, Congress must have concurred with the Commission that by requiring
the highest degree of diligence from common carriers in the safe transport of
their passengers and by creating a presumption of negligence against them,
the recklessness of their drivers which is a common sight even in crowded
areas and, particularly, on the highways throughout the country may,
somehow, if not in a large measure, be curbed. We are not convinced,
however, that the exacting criterion of said provisions has not been met by
appellant in the circumstances of this particular case.
It is undisputed that before the box containing the firecrackers were allowed
to be loaded in the bus by the conductor, inquiry was made with the
passenger carrying the same as to what was in it, since its "opening ... was
folded and tied with abaca." (Decision p. 16, Record on Appeal.) According to
His Honor, "if proper and rigid inspection were observed by the defendant,
the contents of the box could have been discovered and the accident
avoided. Refusal by the passenger to have the package opened was no
excuse because, as stated by Dispatcher Cornista, employees should call
the police if there were packages containing articles against company
regulations." That may be true, but it is Our considered opinion that the law
does not require as much. Article 1733 is not as unbending as His Honor has
held, for it reasonably qualifies the extraordinary diligence required of
common carriers for the safety of the passengers transported by them to be
"according to all the circumstances of each case." In fact, Article 1755
repeats this same qualification: "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."
In this particular case before Us, it must be considered that while it is true the
passengers of appellant's bus should not be made to suffer for something

over which they had no control, as enunciated in the decision of this Court
cited by His Honor,1 fairness demands that in measuring a common carrier's
duty towards its passengers, allowance must be given to the reliance that
should be reposed on the sense of responsibility of all the passengers in
regard to their common safety. It is to be presumed that a passenger will not
take with him anything dangerous to the lives and limbs of his copassengers, not to speak of his own. Not to be lightly considered must be the
right to privacy to which each passenger is entitled. He cannot be subjected
to any unusual search, when he protests the innocuousness of his baggage
and nothing appears to indicate the contrary, as in the case at bar. In other
words, inquiry may be verbally made as to the nature of a passenger's
baggage when such is not outwardly perceptible, but beyond this,
constitutional boundaries are already in danger of being transgressed.
Calling a policeman to his aid, as suggested by the service manual invoked
by the trial judge, in compelling the passenger to submit to more rigid
inspection, after the passenger had already declared that the box contained
mere clothes and other miscellaneous, could not have justified invasion of a
constitutionally protected domain. Police officers acting without judicial
authority secured in the manner provided by law are not beyond the pale of
constitutional inhibitions designed to protect individual human rights and
liberties. Withal, what must be importantly considered here is not so much
the infringement of the fundamental sacred rights of the particular passenger
herein involved, but the constant threat any contrary ruling would pose on the
right of privacy of all passengers of all common carriers, considering how
easily the duty to inspect can be made an excuse for mischief and abuse. Of
course, when there are sufficient indications that the representations of the
passenger regarding the nature of his baggage may not be true, in the
interest of the common safety of all, the assistance of the police authorities
may be solicited, not necessarily to force the passenger to open his
baggage, but to conduct the needed investigation consistent with the rules of
propriety and, above all, the constitutional rights of the passenger. It is in this
sense that the mentioned service manual issued by appellant to its
conductors must be understood.

Decisions in other jurisdictions cited by appellant in its brief, evidently

because of the paucity of local precedents squarely in point, emphasize that
there is need, as We hold here, for evidence of circumstances indicating
cause or causes for apprehension that the passenger's baggage is
dangerous and that it is failure of the common carrier's employee to act in the
face of such evidence that constitutes the cornerstone of the common
carrier's liability in cases similar to the present one.
The principle that must control the servants of the carrier in a case
like the one before us is correctly stated in the opinion in the case of
Clarke v. Louisville & N.R. Co. 20 Ky L. Rep. 839, 49 S.W. 1120. In
that case Clarke was a passenger on the defendant's train. Another
passenger took a quantity of gasoline into the same coach in which
Clarke was riding. It ignited and exploded, by reason of which he
was severely injured. The trial court peremptorily instructed the jury
to find for the defendant. In the opinion, affirming the judgment, it is
said: "It may be stated briefly, in assuming the liability of a railroad to
its passengers for injury done by another passenger, only where the
conduct of this passenger had been such before the injury as to
induce a reasonably prudent and vigilant conductor to believe that
there was reasonable ground to apprehend violence and danger to
the other passengers, and in that case asserting it to be the duty of
the conductor of the railroad train to use all reasonable means to
prevent such injury, and if he neglects this reasonable duty, and
injury is done, that then the company is responsible; that otherwise
the railroad is not responsible."
The opinion quotes with approval from the case of Gulf, C. & S. F. R.
Co. vs. Shields, 9 Tex. Civ. App. 652, 29 S. W. 652, in which case the
plaintiff was injured by alcohol which had been carried upon the train
by another passenger. In the opinion in that case it is said: "It was
but a short period of time after the alcohol was spilt when it was set
on fire and the accident occurred, and it was not shown that
appellant's employees knew that the jug contained alcohol. In fact, it
is not shown that the conductor or any other employee knew that
Harris had a jug with him until it fell out of the sack, though the
conductor had collected ... (his) fare, and doubtless knew that he had
the sack on the seat with him. ... It cannot be successfully denied
that Harris had the right as a passenger to carry baggage on the
train, and that he had a right to carry it in a sack if he chose to do so.

We think it is equally clear that, in the absence of some intimation or

circumstance indicating that the sack contained something
dangerous to other passengers, it was not the duty of appellant's
conductor or any other employee to open the sack and examine its
contents." Quinn v. Louisville & N. R. Co. 98 Ky. 231, 32 S. W. 742;
Wood v. Louisville & N. R. Co. 101 Ky. 703, 42 S. W. 349; Louisville
& N. R. Co. v. Vincent, 29 Ky. L. Rep. 1049, 96 S. W. 898; Louisville
& N. R. Co. v. Renfro, 142 Ky. 590, 33 L. R. A. (N. S.) 133, 135 S. W.
266.2 (Emphasis supplied)

Appellant further invokes Article 1174 of the Civil Code which relieves all
obligors, including, of course, common carriers like appellant, from the
consequence of fortuitous events. The court a quo held that "the breach of
contract (in this case) was not due to fortuitous event and that, therefore, the
defendant is liable in damages." Since We hold that appellant has succeeded
in rebutting the presumption of negligence by showing that it has exercised
extraordinary diligence for the safety of its passengers, "according to the
circumstances of the (each) case", We deem it unnecessary to rule whether
or not there was any fortuitous event in this case.

Explosive or Dangerous Contents. A carrier is ordinarily not liable

for injuries to passengers from fires or explosions caused by articles
brought into its conveyances by other passengers, in the absence of
any evidence that the carrier, through its employees, was aware of
the nature of the article or had any reason to anticipate danger
therefrom. (Bogard v. Illinois C. R Co. 144 Ky. 649, 139 S. W. 855, 36
L. R. A.[N. S.] 337; Clarke v. Louisville & N. R. Co. 101 Ky. 34, 39 S.
W. 840, 36 L. R. A. 123 [explosion of can of gasoline]; East Indian R.
Co. v. Mukerjee [1901] A. C. [Eng.] 396, 3 B. R. C. 420 P. C.
[explosion of fireworks]; Annotation: 37 L. R. A. [N. S.] 725.) 3

ACCORDINGLY, the appealed judgment of the trial court is reversed and the
case is dismissed, without costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Sanchez and
Fernando,
JJ., concur.
Castro,
J., concurs
in
the
result.
Teehankee, J., reserves his vote.