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REPUBLIC OF THE PHILIPPINES REGIONAL TRIAL COURT NATIONAL CAPITAL JUDICIAL REGION BRANCH 1, MANILA

WORD FOR THE WORLD CHRISTIAN FELLOWSHIP, its injured members namely MARK SALES, JOANNA AMBON, FREDERICO QUINTO, ROBERT CUA, JOHN WILSON, CURTIS RAMBIS, RONALD HOLDINGS, RICO HELL, PATRICK SANTOS, JEFFREY WEBB, Plaintiffs,

-versus-

CIVIL CASE NO. 143556

SPOUSES ENGRACIO FABRE, JR. AND MRS. FRANCES A. FABRE, and PORFERION CABIL, Defendants,

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MEMORANDUM

Plaintiff, WORD FOR THE WORLD CHRISTIAN FELLOWSHIP, et.al., by counsel, respectfully states: PREFATORY STATEMENT

As a cardinal rule of evidence in civil law is that the degree of proof required or needed in a civil case is merely preponderance of evidence. Preponderance of evidence means that, as a whole, the evidence adduced by one side outweighs that of the adverse party (Sarmiento vs. Court of Appeals, GR. No. 96740, March 25, 1999). Hence, if there is preponderance of evidence in a civil case, the defendants must be held liable.

In the case at bar, an action for damages was filed by the plaintiffs against the defendant for the injuries sustained by them while in the course of the travel from Manila to

La Union. The plaintiffs proof outweighs the evidence presented by the defendants, hence, the latter should be made liable for the injuries sustained by the plaintiffs.

In the course of the trial, the defendants presented the testimony of the driver of the bus, Porferion Cabil to prove that he exercised utmost diligence in the conduct of his duties as the driver of the minibus. However, based on the testimony of the defendant driver himself, such conclusion is far from reality. The driver stated in his testimony that it is the first time for him to drive for an out of town trip. And taking such to consideration, he also stated that he drove the bus at a speed of 50 kph. The driver clearly was not exercising utmost diligence given the circumstances because he could have driven the minibus at a lesser speed given that he is unfamiliar of the road and the place where he is driving and also given that he is driving at nighttime. If the defendant-driver did this, the accident which injured the plaintiffs, is very unlikely to occur since the driver would have seen the sharp curve on the highway and could have passed the said curve slowly and safely preventing the accident. Under Article 1756 of the Civil Code of the Philippines, it is provided that 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. As provided under the said provision, in case of injuries to passengers of a common carrier, there is a presumption that the common carriers are at fault or have acted negligently. It is incumbent upon the common carrier to overcome the said presumption by strong evidence that they observed extraordinary diligence. The plaintiff needs only to prove that the defendant is a common carrier for the presumption to apply. It is up to the common carrier to rebut the presumption.

In the present case, the presumption provided for in Article 1756 of the Civil Code has not been overcome by the defendants. As common carriers, it should have presented more comprehensive evidence which includes the testimony of its passengers, evidence that will show that its minibus is fit for travel, that it has safety devices to prevent an accident during its travel, and that it exercised extraordinary diligence in taking care of the injured passengers even after the accident.

Without a doubt, the defendants are liable for damages for the injuries sustained by the plaintiffs based on the evidence presented. As was shown during the trial, the defendants failed to prove that they exercised extraordinary diligence in transporting their passengers. Hence, these defendants should be held liable for damages to the plaintiff.

STATEMENT OF THE FACTS AND CASE

The facts of the case are simple and undisputed.

Engracio Fabre, Jr. and his wife Frances A. Fabre are the owners of a Mazda minibus. They engage in the business of transporting students to and from a specific destination for a fee using the Mazda minibus. When in business, the Mazda minibus is driven by their driver Porfirion Cabil.

On October 23, 1984, Word for the World Christian Fellowship Inc. called Engracio Fabre, Jr. for the transportation of 33 members of its Young Adults Ministry from Manila to La Union and back for the amount of P3000.00. The service was scheduled to be done on November 2, 1984.

The parties agreed that the group will leave Tropical Hut at the corner of Ortigas Avenue and EDSA on November 2, 1984, at 5:00 pm. However, as several members of the party were late they were only able to depart Tropical Hut at 8:00 pm.

The minibus was supposed to go specifically to Caba, La Union. The usual route towards said place is through Carmen, Pangasinan. However, upon reaching Carmen, Pangasinan, the driver decided to take a detour through the town of Ba-ay in Lingayen, Pangasinan, since the bridge at Carmen was under repair.

At 11:30 pm that night, while the bus was in Ba-ay, Pangasinan, they came upon a siete, a sharp curve on the highway, running on a south to east direction. The road was slippery because it was raining, causing the bus, which was running at a speed of 50 kilometers per hour, to skid to the left road shoulder. The bus hit the left traffic steel brace and sign along the road and rammed the fence, then turned over and landed on its left side, coming to a full stop only after a series of impacts.

The accident caused numerous injuries, which required medical treatment, to the plaintiffs as enumerated below.

1. Mark Sales- fractured orbital bone, fractured knee, bruised thighs and hips

2. Joanna Ambon- fractured legs, open wounds and contusions around the body

3. Frederico Quinto- fractured ribs, fractured skull, broken jaw, broken hips, bruised legs and thighs 4. Robert Cua- broken jaw, fractured arms, fractured spinal column 5. John Wilson- bruises in the body, fractured arms and legs 6. Curtis Rambis- fractured skull 7. Ronald Holdings- bruised body, fractured ribs 8. Rico Hell- broken hips 9. Patrick Santos- broken arms and legs 10. Jeffrey Webb- broken jaw, bruises in the body, broken ribs

On December 1, 1984, Plaintiffs filed the Complaint for damages against Defendant Spouses Engracio Fabre, Jr. and Mrs. Frances A. Fabre, and, Porferion Cabil, driver of the minibus.

On December 10, 1984, Defendants filed their Answer. Thereafter, the parties submitted their respective Pre-Trial Briefs and trial forthwith ensued.

Plaintiffs presented the following witnesses: (1) Plaintiff Mark Sales himself; (2) Plaintiff Joanna Ambon herself; (3) Plaintiff Frederico Quinto himself; (4) Plaintiff Robert Cua himself; (5) Plaintiff John Wilson himself; (6) Plaintiff Curtis Rambis himself; (7) Plaintiff Ronald Holdings himself; (8) Plaintiff Rico Hell himself; (9) Plaintiff Patrick Santos himself; (10) Plaintiff Jeffrey Webb himself; (11) Dr. Miles Guevarra, resident doctor specializing in bodily injuries. On February 7, 1985, Plaintiff filed its Formal Offer of Documentary Evidence.

On the other hand, Defendants presented the following witnesses: (1) Defendant Porferior Cabil himself; (2) Defendant Engracio Fabre, Jr. himself; (3) Defendant Frances A. Fabre herself. On February 20, 1985, Defendants filed their Formal Offer of Documentary Evidence.

On September 1, 1985, this Honorable Court issued the Order directing the parties to simultaneously file their respective memoranda.

Hence, this MEMORANDUM for the plaintiffs.

ISSUES

I WHETHER OR NOT DEFENDANT IS A COMMON CARRIER.

II WHETHER OR NOT THE DEFENDANTS HAVE OVERCOME THE PRESUMPTION THAT COMMON CARRIERS ARE AT FAULT OR HAVE ACTED NEGLIGENTLY IN CASE OF DEATH OF OR INJURIES TO PASSENGERS.

III WHETHER OR NOT THE PLAINTIFFS WERE ABLE TO ESTABLISH PROOF BY PREPONDERANCE OF EVIDENCE NEEDED TO MAKE THE DEFENDANT LIABLE IN THE PRESENT CIVIL CASE.

ARGUMENTS AND DISCUSSIONS

DEFENDANT IS A COMMON CARRIER ______________________________________

Under Article 1732 of the Civil Code of the Philippines provides as follows:

ARTICLE 1732. Common carriers are persons, corporations, firms or associations engaged in the business of carrying or transporting passengers or goods or both, by land, water, or air for compensation, offering their services to the public.

In the case at bar, the defendant spouses are considered as a common carrier since they are persons engaged in the business of carrying or transporting passengers by land for compensation and they offer their services to the public. This can be shown by the testimony of Porferior Cabil, driver of the minibus, to wit:.

ATTY. GUZMAN: Q: What is your relationship with Mr. Engracio Fabre? MR. PORFERIOR CABIL: A: He is my friend and business partner. ATTY. GUZMAN: Q: What sort of business are you engaged in?

MR. PORFERIOR CABIL: A: We offer school bus services for children.

ATTY. GUZMAN: Q: To whom do you offer these services? MR. PORFERIOR CABIL: A: We offer our services to various students of St. Scholastica Manila. We also offer our services to other groups on special occasions.

As shown by the statement of Porferior Cabil, they offer their services for a fee to the regular public in exchange of transporting the public from one place to another. The services they offer are not confined to a specific group only since they offer their services also to groups other than children on special occasions. Hence, the defendant is considered as a common carrier.

DEFENDANTS HAVE NOT OVERCOME THE PRESUMPTION THAT COMMON CARRIERS ARE AT FAULT OR HAVE ACTED NEGLIGENTLY IN CASE OF DEATH OF OR INJURIES TO PASSENGERS _____________________________________________________ Article 1756 of the Civil Code of the Philippines provides as follows:

ARTICLE 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
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and 1755.

Under said provision, when there is death or injuries caused to the passengers, the common carrier is automatically presumed to have been at fault or to have acted negligently. There is no need to have an express finding of fault or negligence to hold the common carrier liable for damages (BLTB vs. IAC, 167 SCRA 379).

The burden of proof is shifted to the common carrier to prove its strong and convincing defenses, if any, in order to overcome the presumption. To avoid liability, it must succeed in proving that (1) it has observed extraordinary diligence in the performance of its contractual obligation, or (2) that the death or injuries suffered by the passenger/s is due to a fortuitous event (Batangas Trans. Co. vs. Cagumbal, 130 Phil 166).

In the case at bar, it is very clear that the defendants failed to observe extraordinary diligence required of them. This can be shown by the testimony of the defendant Porferior Cabil, driver of the minibus. The defendant stated that he was running the minibus at the speed of 50 kph and upon seeing the sharp curve on the highway, he slowed the minibus down to 30 kph. This shows that the driver was running the minibus at a fast pace, which paved the way for the accident to occur, given that he is not aware of the place and that the road was slippery due to the rain, to wit:

ATTY. GUZMAN: Q: What happened then? MR. PORFERIOR CABIL: A: At 11:30 that night, we came upon siete, a sharp curve on the highway, running on a south to east direction, The road was slippery because it was raining, causing the bus, which was running at the speed of 50 kilometers per hour, to skid to the left road shoulder. The bus hit the left traffic steel brace and sign along the road and rammed the fence, then turned over and landed on its left side, coming to a full stop only after a series of impacts

ATTY. GUZMAN: Q: To your knowledge, why did the incident occur?

MR. PORFERIOR CABIL: A: I did not see the curve as it was very dark and it was my first time to travel and drive to La Union. I saw the curve when I was already within 15 to 30 meters of it. I slowed down to 30 kilometers per hour, but it was too late.
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When it was said by defendant Porferior Cabil that he ran the minibus at a speed of 50 kph and then when he saw the curve he slowed down the minibus to 30 kph, this clearly shows that there was a need to lessen the speed given the circumstances that it was dark and that the road was slippery. He was running at a fast pace and that he was not thinking about the possibility that a curve might be present and would cause an accident if he would continue to run at such pace. There is a failure on his part to give due regard to for all the circumstances to protect the passengers from the accident, obviously, he did not perform extraordinary diligence in the performance of his duty.

Even if there is no presumption of negligence provided under Article 1756 of The Civil Code of the Philippines, the defendants will still be liable for damages for their negligence which caused the accident. In the case of Jarco Marketing Corporation vs. Court of Appeals, GR. No. 129792, December 21, 1999, 321 SCRA 375, the Supreme Court defined what would constitute negligence. Thus:

An accident pertains to an unforeseen event which no fault or negligence attaches to the defendant. On the other hand, negligence 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.

In the case at bar, there is negligence on the part of the driver of the minibus because he did something which a prudent and reasonable man would not do. The act being referred to here is his act of driving the minibus at a fast pace given that it was dark and that the road was slippery because of the rain. If only he drove the minibus slower, the accident could have been avoided. He could have easily seen the sharp curve, hence, he could have acted accordingly.

The doctrine of res ipsa loquitor also applies in this case. The doctrine of res ipsa loquitur was discussed by the Supreme Court in the case of Child Learning Center, Inc. v. Tagorio, GR. No. 150920, November 25, 2005, 476 SCRA 236. It means that the thing or transaction speaks for itself, thus: The doctrine of res ipsa loquitor applies where (1) the accident was of such
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character as to warrant an inference that it would not have happened except for the defendants negligence; (2) the accident must have been caused by an agency or instrumentality within the exclusive management or control of the person charged with the negligence complained of; and (3) the accident must not have been due to any voluntary action or contribution on the part of the person injured.

In the case at bar, the doctrine of res ipsa loquitor applies because:

(1) The accident was of such character as to warrant an inference that it would not have happened except for the defendants negligence. In the present case, there is no other inference other than the fact that the accident happened because of the negligence of the driver of the minibus. No other intervening cause is present, nor is there any other reason for the occurrence of such other than the defendants negligence. (2) The accident must have been caused by an agency or instrumentality within the exclusive management or control of the person charged with the negligence complained of. In the present case, the accident occurred within the exclusive management of the defendant driver since he was the one in charge of the driving and is the one who can prevent the accident from occurring. If the driver was not negligent in his duty, the accident would not have occured. It is in the drivers hands whether or not the accident will occur or not. (3) The accident must not have been due to any voluntary action or contribution on the part of the person injured. In the present case, the 33 members of the Young Adults Ministry had no hand in the occurrence of the accident. They did not cause distraction to the driver, nor did they act by any manner that would have contributed to the occurrence of the accident.

Hence, as shown above, there is compliance with the requisites of the doctrine of res ipsa loquitor. The thing speaks for itself. The defendants must be held liable.

THE PLAINTIFFS WERE ABLE TO ESTABLISH PROOF BY PREPONDERANCE OF EVIDENCE NEEDED TO MAKE THE DEFENDANT LIABLE IN THE PRESENT CIVIL CASE. ___________________________________

Preponderance of evidence means that, as a whole, the evidence adduced by one side outweighs that of the adverse party (Sarmiento vs. Court of Appeals, GR. No. 96740, March 25, 1999). In other words, preponderance of evidence means greater weight of the evidence; that it outweighs the evidence of the adverse party.

In the case at bar, the plaintiffs have established superiority of evidence as compared to the defendants. The plaintiffs presented their own testimony to prove their claims of injuries, as well as to prove by strong evidence, that indeed the driver acted negligently in the conduct of his duties that led to the accident. All the testimonies of the plaintiffs prove that the driver was driving very fast and that he undermined the safety of the passengers by not driving carefully given that it was raining and the road was very dark. Moreover, there is the testimony of Dr. Guevara, which points out that upon examination of the injured members, he came to a conclusion that the injuries sustained by said members came from a vehicular accident. Evidently, the proof by preponderance of evidence was reached by plaintiffs. The defendants must be held liable for damages. Last few words. The law is clear. 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. When there is death or injuries sustained by the passengers of a common carrier, it is incumbent upon the common carrier to prove that they observed extraordinary diligence in the conduct of their affairs. When such is not proved, there is no choice but to make the common carrier liable.

PRAYER

WHEREFORE, it is respectfully prayed of this Honorable Court that defendant Spouses Engracio Fabre, Jr. and Mrs. Frances A. Fabre, and Porferion Cabil be declared jointly and severally liable to pay for the following:

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a. At least Seventy-Five Thousand Pesos (P75,000.00) as moral damages to each of the Plaintiffs;

b. Ninety-Two Thousand Six Hundred Pesos (P92,600.00) as actual damages pertaining to loss of income and hospital expenses to each of the Plaintiffs;

c. At least Seventy-Five Thousand Pesos (P75,000.00) as exemplary damages to each of the Plaintiffs;

d. At least Two Hundred Thousand Pesos (P200,000.00) plus Five Thousand Pesos (P5,000.00) for every appearance in court as attorneys fees; and

e. Cost of this suit.

Other reliefs just and equitable are likewise prayed for.

Makati City for Manila; 10 September 1985.

SARINO AND SARINO LAW OFFICES Counsel for Plaintiffs WORD FOR THE WORLD CHRISTIAN FELLOWSHIP INC. et al. 29th Floor Ayala Building Ayala Avenue corner Rufino Avenue, Makati City (632) 557-4139; (632) 554-3821 knowledge@sarinolaw.com

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For the Firm:

GERARD P. SARINO IBP Lifetime Member No. 02564 PTR No. 09955221/04 January 1982/Makati City Roll of Attorneys No. 364224 MCLE Exemption No. II-009922

COPY FURNISHED

ATTY. JUAN RODRIGO Counsel for Defendants Rooms 4-20 ABC Building No.45 Timog Avenue, Quezon City

EXPLANATION FOR MANNER OF SERVICE

Defendants were served two (2) copies each of the for the foregoing Memorandum by registered mail due to distance and lack of messengers to effect personal service thereof.

GERARD P. SARINO

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