797 Phil. 329
DEL CASTILLO, J.:
During the trial on the merits, plaintiffs[11] presented five witnesses namely Josephine Gadiaza, Miguel Galvan, SPO3 Ernesto Marfori, Fruto Sayson and Lilia Morales.Ruling of the Court of Appeals
x x x x
Plaintiff Fruto Sayson testified that on that fateful day, he was driving the plaintiff passenger bus from Lucena City going to Manila at a speed of more or less 60 kilometers per hour when he met a vehicular accident at Barangay San Agustin, Alaminos, Laguna. He saw from afar an L-300 UV coming from the shoulder going on the opposite direction to Lucena City. Said vehicle was already near his bus when it (UV) managed to return to ifs proper lane, then hit and swerved his vehicle.- "He tried to prevent the collision by swerving to the right but it was too late. As a result, the left front portion of the bus was damaged while the front portion of the L-300 UV was totally wrecked- He and his conductor, one.Mendoza, managed to get but of the bug by forcibly opening the automatic door which was also damaged due to the impact After getting out of the bus, he looked for the driver of the L300 UV but he was informed by a bystander that he was thrown in a canal arid already dead. For fear of possible reprisals from bystanders as experienced by most drivers involved in an accident, he boarded smother bug owned by bis employer. Before he left, he indorsed the matter to hip conductor and line inspector. Thereafter, he reported to their office at San Pedro, Laguna. He executed a statement on the same day x x x and submitted the same to their operations department. He likewise testified that before the incident, he was earning P700.00 to P900,00 a day on commission basis and he drives 25 days in a month. However, after the incident, he was not able to drive for almost two months.
On cross-examination, it was established that the incident happened along the Maharlika Highway along Kilometer 72. There were no structures near the site of the incident, The highway ha§ two lanes which can accommodate the size of the bus about 3 meters wide and a. light vehicle. He was bound for Manila and had about ten passengers. He saw the L-300 UV on the shoulder of the opposite lane about 250 meters away from, his bus while he was driving [at] a speed of 60 kilometers per hour. He did not sense any danger when he saw the vehicle from afar. He cannot drive fast as there were five vehicles ahead of his bus. When the L-300 UV managed to return to it? proper lane coming from the shoulder, it was heading directly towards his direction, at a distance of more or less five, meters away from his bus, He noticed that the L-300 UV was running at full speed as he saw dust clouds. "The point of impact happened on his lane. He tried to swerve his bus to prevent the impact but lie admitted that at his speed, it was difficult for him to maneuver his vehicle
Investigator SPO3 Ernesto Marfori of the Alaminos Police Station testified that at about 7:00 in the morning, he received a report from the Barangay Chairman of a vehicular accident that occurred at Brgy. §an Agustin, Alaminos, Laguna. He proceeded to the site with SPO2 Rolando Alias. Upon arrival at the scene of the accident, he attended to the victim, but found him dead inside the L- 300 UV. He came to know later that he was Renante Bicomong. He immediately called up his office and requested that funeral services for the dead man. be arranged. Thereafter, he photographed the damaged vehicles (Exhibits "F" and sub-markings) and interviewed some witnesses. He made a sketch depicting the damages suffered by both vehicles (Exhibit "D-2"), the L-300 IV at the front portion (Exhibit "D-4") while the bus at the left side of its front portion (Exhibit "D-3"). Based on the sketch he prepared, the impact happened almost at the right lane which was the bus lane (Exhibit "D-6"). He likewise noticed some debris also found at the bus lane. He was able to interview the bus conductor and a fruit store owner in [sic] the names of Apolinar Devilla and Virgilio Adao, He did not see the driver of the bus at the scene of the accident and he was told that he had left the place. Based on, his investigation, the possible cause of the accident was the swerving to the left lane [by] the driver of the L-300 UV which resulted in me encroaching of the bus' lane. He reduced bis findings into writing in a Report dated February 28, 2003 (Exhibits "D" and sub-markings).
On cross-examination, the witness admitted that he was not present when the vehicles collided. The entries he made in the blotter report were mainly based on the accounts of the witnesses he was able to interview who however did not give their written statements. When he arrived at the scene of the accident, the L-300 UV was already on the shoulder of the road and it was totally wrecked. According to reports, the van spun around when it was bit causing the metal scar found on the road.
On the other hand, the defendants[12] presented three witnesses: its employees Alexander Caoleng and John Legaspi and deceased Renante Bicomong's widow, Gloria Bicomgng, These witnesses were presented to prove that deceased Bicomong was acting in his personal capacity when the mishap happened on February 25, 2003 as that day had been declared an official holiday and the L-300 UV he was driving had not been issued to him, among others.
Alexander Caoleng, HR. Manager of defendant NURC, testified that deceased Bicomong worked as the Operations Manager of defendant NURC until his death as evidenced by a Certificate of Employment dated December 9, 2008 (Exhibit "I"), His last assignment was in First Cavite Industrial Estate (FCEB). He died in a vehicular accident in Alaminos, Laguna on February 25, 2003 which was declared a holiday by virtue of Proclamation No. 331 (Exhibit "2"). Despite having been issued his own service vehicle (Exhibits "3", "4" and "5"), he used the L-300 UV which was not officially issued to him but in the name of Florante Soro-Soro, defendant NURC's Logistics Manager at that time (Exhibits "7" and "B"). The said vehicle was used mainly to transport items coming from their office at Pasig to Cavite and vice versa (Exhibit "9").
John Legaspi, Project Manager of defendant NURC, testified that he was first assigned in its Cavite Plant in 1999 with deceased Bicomaog as his immediate supervisor being the Production Manager then. He last saw him in the afternoon of February 24, 2003 at about 6:00 pm when they had a short chat He (Bicomong) was then transferring his things from his executive vehicle which was a Toyota Corolla to the L-300 UY which was a company vehicle. He (Bicomong) shared that he would go home to Quezon Province the following day (February 25) to give money to his daughter. He knew that his trip to Quezon was not work-related as February 25, 2003 was declared a holiday. Besides, there exists no plant owned by defendant NURC in the provinces of Quezon, Laguna or Bicol as attested to by the General Manager of defendant NURC in a Certification to that effect (Exhibit "11").
On cross-examination, he distinguished the use of an executive vehicle assigned to an executive officer for his personal use and the company vehicle which was supposed to be for official use only.
Finally, Gloria Bicomong, widow of deceased Reynante Bicomong testified that she knew that her husband was going home to Calendaria (sic), Quezon on February 25, 2003 because he informed their daughter. He was on his way home when he met a vehicular-accident in Alaminos. Laguna which claimed his life. She was informed about the accident involving her husband by a high school friend who was also traveling to Quezon at that time, She filed a criminal complaint at Alaminos, Laguna but it was dismissed for reasons unknown to her. She likewise filed a civil complaint for damages before the Regional Trial Court of Lucena City docketed as Civil Case No. 2.103-135.
On cross-examination, she narrated that aside from the Toyota Corolla service of her husband, he would use the L-300 UV whenever he had to bring bulky things home. As far as she can recall, he used the L-300 UV about 5 times.
After an evaluation of the foregoing testimonies and documentary evidence of the parties, the court had [sic] arrived at the following findings and conclusions:
Plaintiff has no cause of action and cannot recover from the defendants even assuming that the direct and proximate cause of the accident was the negligence of the defendant's employee Renato Bicomong.
Pursuant to Article 2184 of the New Civil Code, the owner of a motor vehicle is solidarily liable with his driver if at the time of the mishap, the owner was in the vehicle and by the use of due diligence could have presented (sic) the misfortune; if the owner is not in the motor vehicle, the provision of Article 2180 is applicable. The defendants being juridical persons, the first paragraph of Article 2184 is obviously not applicable.
Under Article 2180, "employers shall be liable tor 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. "In other words, for the employer to be liable for the damages caused by his employee, the latter must have caused the damage in the course of doing his assigned tasks or in the-performance of his duties" (Yambao vs. Zuñiga, G.R. No: 146173, December 11, 2003)
In this case, it is beyond cavil that the deceased Renante Bicong [sic] was not in the performance of his duty on that fateful day of February 25, 2003. In the first place that day was a holiday; there was no work and it was not shown that he was working as indeed his work assignment is operations manager of the company's plant m, Cavite while the accident happened while he was in Alaminos, Laguna on his way home to Candelaria, Quezon. Secondly, as an operations manager, he was issued an executive car for. Ms own use, a Toyota Corolla vehicle and he merely preferred to use the L-300 UV when going home to his family in Quezon. Even assuming that the company allowed or tolerated this, by itself, the tolerance did not make, the employer liable in the absence of showing that he was using the vehicle in the performance of a duty or within the scope of his assigned tasks. But as clearly relayed by defendant's witnesses, defendants have no business or plant in Quezen. The L-300 vehicle was for the hauling of items between their Pasig and Cavite offices and was merely borrowed by Bicomong in going to Candelaria, Quezon on that day.
The accident having occurred outside Remnte Bicomong's assigned tasks, defendant employers cannot be held liable to the plaintiffs, even assuming that it is the fault of defendants' employee that was the direct and proximate cause of their damages.
However, the question of whose fault or negligence was the direct and proximate cause of the mishap is material to the resolution of defendants' counterclaim.
The rule is that the burden of proof lies on him who claims a fact (Federico Ledesina vs. NLRC, G.R. No. 175585, October 19,2007). Therefore, to be able to recover in their counterclaim, the defendants must prove by preponderance of evidence that the direct and proximate cause of their losses was the fault of the plaintiff-driver.
Defendants were not able to present any witness as to how the mishap occurred Their witnesses were limited to proving that Renante Bicomong was not in the performance of his assigned task when the incident happened.
A reading of their answer would reveal, that their attribution of fault to the plaintiff-driver is based only on the point of impact of the two vehicles. Thus:'4.3 Based on the damage sustained by the passenger bus, plaintiffs' claim that Renante Bicomong swerved on the left lane and encroached on the path of the said bus moments before the accident could not have been true. Such claim would have resulted to a head-on collision between the vehicle driven by Mr. Bicomong and the bus; the latter would have sustained damage on its front side. However, based on Annexes "B" and "C" of the Complaint, the. said bus sustained damage on its left side. Clearly, it was the passenger bus that swerved on the left lane, which was being traversed by Renante Bicomong, and while returning to the right lane, said bus hit the vehicle being driven by Mr. Bicomong. Thus, explaining the damage sustained by the said bus on its left side just below the driver's seat.'
The foregoing however is a mere interpretation or speculation and not supported by any account, either by an eyewitness [or by] a explanation tracing the relative positions of the two vehicles in relation to the road at the time of impact and the movements of the two vehicles after the impact. For this reason, it will be unfair to make an interpretation of the events based alone on the point of impact [on] the vehicles. The points of impact by themselves cannot explain the positions of the vehicles on the road.
Defendants Memorandum attributed the cause of the mishap to the excessive speed of the bus. In their Memorandum, the defendants content [sic] that if the driver had seen the L-3G0 UV meters away in front of him running along the shoulder and negotiating back to its lane, the bus driver would have watched out and slackened his speed. Considering the damage to both the vehicles and the fact that the L-300,UV span [sic] and w,as thrown 40 feet away from the point of impact and its driver was thrown 14 feet away from his vehicle, defendant argued that the bus could not be running at 60 kilometers only. But assuming the bus indeed was running at high speed that alone does not mean that the negligence of the driver was the direct and proximate cause, If it is true that the L-300 UV ran from the right shoulder, climbed up to the right lane but overshoot [sic] it and occupied the bus' lane, the speed of the bus cannot be considered the proximate and direct cause of the collision; But as stated earlier, this were [sic] merely conjectures and surmises of the defendants and not proven by competent evidence.
All told, defendants were not able to prove by their own evidence that the direct and proximate cause of the collision was the fault of plaintiffs driver. Hence, they cannot hold plaintiffs liable for the logs of their L-300 UV. As both parties failed to prove by their respective evidence where the fault that occasioned their losses lie, they must bear their respective losses.
Anent defendants' counterclaim for attorney's fees and exemplary damages, there is no evidence to show that the filing, of this suit was motivated [by] malice. It cannot be denied that plaintiffs suffered damages. The court mainly, dismissed the complaint for lack of cause of action as Renante Bicomong was not performing his assigned tasks at the time of the incident. Besides, to hold them liable to defendants for attorney's fees and exemplary damages simply because they failed to come up with sufficient evidence will be tantamount to putting a price on one's right to sue.
WHEREFORE, judgment is hereby rendered dismissing the complaint as well as the counterclaim.
No costs.
SO ORDERED.[13]
The present case involving an action for damages based on quasi-delict is governed by Articles 2176 and 2180 of the New Civil Code, pertinent provisions of which read:'ART. 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 pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.Under Article 2180 of the New Civil Code, employers shall be held primarily and solidarily liable for damages caused by their employees acting within the scope of their assigned tasks. To hold the employer liable under this provision, it must be shown that an employer-employee relationship exists, and that the employee was acting within the scope of his assigned task when the act complained of was committed.
ART. 2180. The obligation imposed by Article 2176 is demandable not only for one's own acts or omission also for those of persons for whom one is responsible.xxx xxx xxx
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.'
Records bear that the vehicular collision occurred on February 25, 2003 which was declared by former Executive Secretary Alberto G. Romulo, by order of former President Gloria Macapagal-Arroyo, as a special national holiday, per Proclamation No. 331 dated February 19, 2003. Renante Bicomong had no work on that day and at the time the accident occurred, he was on his way home to Candelaria, Quezon. There was no showing that on that day, Renante Bicomong was given by defendants-appellees[14] an assigned task, much less instructed to go to Quezon. As testified to by Renante Bicomong's widow Gloria Bicomong, Renante Bicomong was on the road that day because he was going home to Candelaria, Quezon. Thus, he was then carrying out a personal purpose and not performing work for defendants-appellees.
Apropos is Castilex Industrial Corp. vs. Vicente Vasquez, Jr.,[15] wherein the Supreme Court held that the mere fact that an employee was using a service vehicle at the time of the injurious incident is not of itself sufficient to charge his employer with liability for the operation of said vehicle unless it appeared that he was operating the vehicle within the course or scope of bis employment. Thus:xxxxAccordingly, in the absence of showing that Renante Bicomong was acting within the scope of his assigned task at the time of the vehicular collision, defendants-appellees had no duty to show that they exercised the diligence of a good father of a family in providing Renante Bicomong with a service vehicle. Thus, the trial court did not err in holding that:
'The court a quo and the Court of Appeals were one in holding that the driving by a messenger of a company-issued vehicle is within the scope of his assigned tasks regardless of the time and circumstances.
We do not agree. The mere fact that ABAD was using a service vehicle at the time of the injurious incident is not of itself sufficient to charge petitioner with liability for the negligent operation of said vehicle unless it appears mat he was operating the vehicle within the course or scope of his employment.
The following are principles in American Jurisprudence on the employer's liability for the injuries inflicted by the negligence of an employee in the use of an employer's motor vehicle.
xxxx
III. Use of Employer's Vehicle Outside Regular Working Hours
An employer who loans his motor vehicle to an employee for the latter's personal use outside of regular working hours is generally not liable for the employees negligent operation of the vehicle during the period of permissive use, even where the employer contemplates that a regularly assigned motor vehicle will be used by the employee for personal as well as business purposes and there is some incidental benefit to the employer. Even where the employee's personal purpose in using the vehicle has been accomplished and he has started the return trip to his house where the vehicle is normally kept, it has been held that he has not resumed his employment, and the employer is not liable for the employees negligent operation of the vehicle during the return trip.
The foregoing principles and jurisprudence are applicable in our jurisdiction albeit based on the doctrine of respondent superior, not on the principle of bonus pater familias as in ours. Whether the fault or negligence of the employee is conclusive on his employer as in American law or jurisprudence, or merely gives rise to the presumption juris tantum of negligence on the part of the employer as in ours, it is indispensable that the employee was acting in his employer's business or within the scope of his assigned task.
In the case at bar, it is undisputed that ABAD did some overtime work at Hie petitioner's office, which was located in Cabangcalan, Mandaue City. Thereafter, he went to Goldie's Restaurant in Fuente Osmefia, Cebu City, which is about seven kilometers away from petitioner's place of business. A witness for the private respondents, a sidewalk vendor, testified that Fuente Osmeña is a lively place even at dawn because Goldie's Restaurant and Back Street were still open and people were drinking thereat Moreover, prostitutes, pimps, and drug addicts littered the place.xxx xxx xxx
To the mind of this Court, ABAD was engaged in affairs of his own or was carrying out a personal purpose not in line with his duties at the time he figured in a vehicular accident. It was then about 2:00 a.m. of 28 August 1988, way beyond the normal working hours. ABAD's working day had ended; his overtime work had already been completed. His being at a place which, as petitioner put it, was known as a haven for prostitutes, pimps, and drug pushers and addicts, had no connection to petitioner's business; neither had it any relation to his duties as a manager. Rather, using his service vehicle even for personal purposes was a form of a fringe benefit or one of the perks attached to his position.
Since there is paucity of evidence that ABAD was acting within the scope of the functions entrusted to him, petitioner CASTILEX had no duty to show that it exercised the diligence of a good father of a family in providing ABAD with a service vehicle. Thus, justice and equity require that petitioner be relieved of vicarious liability for the consequences of the negligence of ABAD in driving its vehicle.'Under Article 2180, '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. 'In other words, for the employer to be liable for the damages caused by his employee, the latter must have caused the damage in the course of doing his assigned tasks or. in the performance of his duties.' (Yambao vs. Zuñiga, G.R. No. 146173, December 11, 2003.)In sum, squarely applicable in this case is the well-entrenched doctrine that the assessment of the trial judge as to the issue of credibility binds the appellate court because he is in a better position to decide the issue, having heard the witnesses and observed their deportment and manner of testifying during the trial, except when the trial court has plainly overlooked certain facts of substance and value, that, if considered, might affect the result of the case, or where the assessment is clearly shown to be arbitrary. Plaintiffs-appellants have not shown this case to fall under the exception.
In this case, it is.beyond cavil that the deceased Renante Bicong [sic] was not in the performance of his duty on that fateful day of February 25, 2003. In the first place that day was a holiday; there was no work and it was not shown that he was working as indeed his work assignment [was as] operations manager of the company's plant in Cavite while the accident happened while he was in Alaminos, Laguna on his way home to Candelaria, Quezon. Secondly, as an operations manager, he was issued an executive car for his own use, a Toyota Corolla vehicle and. he merely preferred to use the L-300 UV when going home to his family in Quezon. Even assuming that the company allowed or tolerated this, by itself, the tolerance did not make the employer liable in the absence of showing that he was using the vehicle in the performance of a duty or within the scope of his assigned tasks. But as clearly relayed by defendant's witnesses, defendants have no business or plant in Quezon. The L-300 vehicle was for the hauling of items between their Pasig and Cavite offices and was merely borrowed by Bicomong in going to Candelaria, Quezon on that day.
The accident having occurred outside Renante Bicomong's assigned tasks, defendant employers cannot be held liable to the plaintiffs, even assuming that it is the fault of defendants' employee that was the direct and proximate cause of their damages.'
WHEREFORE, the trial court's Decision dated April 4, 2011 is affirmed.
SO ORDERED.[16]
I.
THE HONORABLE COURT OF APPEALS ERRED IN ISSUING THE ASSAILED DECISION AND RESOLUTION THAT RESPONDENTS ARE NOT LIABLE TO PETITIONERS FOR THE DAMAGES THEY SUSTAINED CONSIDERING THAT THE ACCIDENT WAS ATTRIBUTED TO THE NEGLIGENCE OF RENANTE BICOMONG.II.
THE HONORABLE COURT OF APPEALS ERRED IN ADMITTING DEFENSES NOT PLEADED IN THE MOTION TO DISMISS OR IN RESPONDENTS' ANSWER.[18]
The resolution of this case must consider two (2) rules. First, Article 2180's specification that '[e]mployers shall be liable for the damages caused by their employees ... acting within the scope of their assigned tasks [.]' Second, the operation of the registered-owner rule that registered owners are liable for death or injuries caused by the operation of their Vehicles.
These rules appear to be in conflict when it comes to cases in which the employer is also the registered owner of a vehicle. Article 2180 requires proof of two things: first, an employment relationship between the driver and the owner; and second, that the driver acted within the scope of his or her assigned tasks. On the other hand, applying the registered-owner rule only requires the plaintiff to prove that the defendant-employer is the registered owner of the vehicle.
The registered-owner rule was articulated as early as 1957 in Erezo, et al. v. Jepte,[25] where this court explained that the registration of motor vehicles, as required by Section 5(a) of Republic Act No. 41365 the and Transportation and Traffic Code, was necessary 'not to make said registration the operative act by which ownership in vehicles is transferred, ... but to permit the use and operation of the vehicle upon any public highway[.]' Its 'main aim ... is to identify the owner so that if any accident happens, or that any damage or injury is caused by the vehicle on the public highways, responsibility therefor can be fixed on a definite individual, the registered owner.'
x x x x
Aguilar, Sr. v. Commercial Savings Bank[26] recognized the seeming conflict between Article 2180 and the registered-owner rule and applied the latter.
x x x x
Preference for the registered-owner rule became more pronounced in Del Carmen, Jr. v. Bacoy:[27]
x x x x
Filcar Transport Services v. Espinas[28] stated that the registered owner of a vehicle can no longer use the defenses found in Article 2180:
x x x x
Mendoza v. Spouses Gomez[29] reiterated this doctrine.
However, Aguilar, Sr., Del Carmen, Filcar, and Mendoza should not be taken to mean that Article 2180 of the Civil Code should be completely discarded in cases where the registered-owner rule finds application.
As acknowledged in Filcar, there is no categorical statutory pronouncement in the Land Transportation and Traffic Code stipulating the liability of a registered owner. The source of a registered owner's liability is not a distinct statutory provision, but remains to be Articles 2176 and 2180 of the Civil Code:While Republic Act No. 4136 or the Land Transportation and Traffic Code does not contain any provision on the liability of registered owners in case of motor vehicle mishaps, Article 2176, in relation with Article 2180, of the Civil Code imposes an obligation upon Filcar, as registered owner, to answer for the damages caused to Espinas' car.Thus, it is imperative to apply the registered-owner rule in a manner that harmonizes it with Articles 2176 and 2180 of the Civil Code. Rules must be construed in a manner that will harmonize them with other rules so as to form a uniform and consistent system of jurisprudence. In light of this, the words used in Del Carmen are particularly notable. There, this court stated that Article 2180 'should defer to' the registered-owner rule. It never stated that Article 2180 should be totally abandoned.
Therefore, the appropriate approach is that in cases where both the registered-owner rule and Article 2180 apply, the plaintiff must first establish that the employer is the registered owner of the vehicle in question. Once the plaintiff successfully proves ownership, there arises a disputable presumption that the requirements of Article 2180 have been proven. As a consequence, the burden of proof shifts to the defendant to show that no liability under Article 2180 has arisen.
This disputable presumption, insofar as the registered owner of the vehicle in relation to the actual driver is concerned, recognizes that between the owner and the victim, it is the former that should carry the costs of moving forward with the evidence. The victim is, in many cases, a hapless pedestrian or motorist with hardly any means to uncover the employment relationship of the owner and the driver, or any act that the owner may have done in relation to that employment.
The registration of the vehicle, on the other hand, is accessible to the public.
Here, respondent presented a copy of the Certificate of Registration of the van that hit Reyes. The Certificate attests to petitioner's ownership of the van. Petitioner itself did not dispute its ownership of the van. Consistent with the rule we have just stated, a presumption that the requirements of Article 2180 have been satisfied arises. It is now up to petitioner to establish that it incurred no liability under Article 2180. This it can do by presenting proof of any of the following: first, that it had no employment relationship with Bautista; second, that Bautista acted outside the scope of his assigned tasks; or third, that it exercised the diligence of a good father of a family in the selection and supervision of Bautista. (Emphasis supplied)
1. That they had no employment relationship with Bicomong; or
2. That Bicomong acted outside the scope of his assigned tasks; or
3. That they exercised the diligence of a good father of a family in the selection and supervision of Bicomong.
The failure of a party to amend a pleading to conform to the evidence adduced during trial does not preclude an adjudication by the court on the basis of such evidence which may embody new issues not raised in the pleadings, or serve as a basis for a higher award of damages. Although the pleading may not have been amended to conform to the evidence submitted during trial, judgment may nonetheless be rendered, not simply on the basis of the issues alleged but also on the basis of issues discussed and the assertions of fact proved in the course of trial. The court may treat the pleading as if it had been amended to conform to the evidence, although it had not been actually so amended, x x x[30]
The law exacts from common carriers (i.e., those 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) the highest degree of diligence (i.e., extraordinary diligence) in ensuring the safety of its passengers. Articles 1733 and 1755 of the Civil Code state: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.In this relation, Article 1756 of the Civil Code provides that '[i]n 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. xxx'[33]
Art. 1755. A common carrier is bound to carry the passengers safely as far as human care arid foresight can provide, using the utmost diligence of very cautious persons, with a due regard for all the circumstances.
x x x The doctrine of last clear chance provides that where both parties are negligent but the negligent act of one is appreciably later in point of time than that of the other, or where it is impossible to determine whose fault or negligence brought about the occurrence of the incident, the one who had the last clear opportunity to avoid the impending harm but failed to do so, is chargeable with the consequences arising therefrom. Stated differently, the rule is that the antecedent negligence of a person does not preclude recovery of damages caused by the supervening negligence of the latter, who had the last fair chance to prevent the impending harm by the exercise of due diligence, x x x[34]