F in hearing a motion for summary judgment the judge

f. In hearing a Motion for Summary Judgment, the judge is
asked not to try the issue but to determine whether the
issue is meritorious. Summary Judgment should not be
granted if there is a triable issue. The court is not called to
pass upon the evidence, and conduct a full-blown trial on
the merits.
g. The test, therefore, of a motion for summary judgment is
whether the pleadings, affidavits and exhibits in support of
the motions are sufficient to overcome the opposing
papers and to justify a finding as a matter of law that there
is no defense to the action or the claim is clearly
meritorious.
h. In Motions for Summary Judgment, the plaintiff must
prove that there is a cause of action, and that the defense
is interposed merely to delay the proceedings. Once this
burden is discharged, it is up to the defendant to show
facts entitling him to a defense on the merits.
i. In this case:
i. When injury arises during the course of being
transported under a Contract of Carriage, there is a
presumption of fault on the part of the common
carrier, which can only be overcome if the Common

Carrier proves that it exercised extraordinary
diligence or if is able to show that the injury was
caused by a fortuitous event.
ii. In order to constitute a fortuitous event that would
exempt a person from responsibility, it is necessary
that
1. the event must be independent of the human
will;
2. the occurrence must render it impossible for
the obligor to fulfill his obligation in a normal
manner; and
3. the obligor must be free of a concurrent or
contributory fault or negligence.
iii. Here, the defendants were able to show through the
supporting documents attached to its Motion for
Summary Judgment, that the injury was caused by a
fortuitous event, namely the collision of the two
pickup trucks which caused one of the trucks to hit
the jeep.
iv. It was thus incumbent on Estrada, the plaintiff, to
rebut the proof presented by the defendants in order
to sustain his claim. Estrada failed to controvert the
evidence which shows that incident was caused by
factors outside the defendants’ control and that they
were free of contributory negligence.
j. The present petition is premature, since the order of the
Judge was interlocutory (as it set a date for hearing with
regard to damages due), the remedy available to plaintiff
is to move for the setting aside of the order by the
presentation of opposing affidavits showing that, other
than the issue as to the amount or extent of damages,
there is a genuine issue of fact on the carrier's liability.
DISPOSITIVE PORTION
ACCORDINGLY, the petition for certiorari with prohibition is dismissed,
without special pronouncement as to costs.
SEPARATE OPINION
Barredo, J., concurring
1. This decision does not mean that the Court is upholding the
questioned order as the summary. The said order must be

construed as nothing but an interlocutory one holding that
respondents have sufficiently established the bases for a summary
judgment, which will be rendered after the court has received and