EN BANC

[G.R. No. L-5691. December 27, 1910.]

S. D. MARTINEZ and his wife, CARMEN ONG DE MARTINEZ , plaintiffs-

appellees, vs . WILLIAM VAN BUSKIRK , defendant-appellant.

Lionel D. Hargis for appellant.

Sanz and Oppisso for appellee.

SYLLABUS

1. MASTER AND SERVANT; DRIVERS OF HORSES; CUSTOM AND USAGE;

NEGLIGENCE. — A coachman or driver, who had driven the horses composing his team
for a considerable time, during which the animals has shown no disposition to become
unruly, left his team as usual and was assisting in unloading the wagon when the horses
bolted and running into the plaintiffs' carriage caused personal injuries to the plaintiff
and damage to the vehicle. It was further shown that, to leave teams under like
circumstances and to assist in unloading the wagon, is the custom of drivers in the city
and that the custom is sanctioned by employers. Held: That acts, the performance of
which has not proven destructive or injurious and which have been generally acquiesced
in by society for so long a time as to have ripened into a custom, can not be held to be
unreasonable or imprudent and that, under the circumstances, the driver was not guilty
of negligence in so leaving his team while assisting in unloading his wagon.

DECISION

MORELAND , J : p

The facts found by the trial court are undisputed by either party in this case. They
are —
"That on the 11th day of September, 1908, the plaintiff, Carmen Ong de
Martinez, was riding in a carromata on Calle Real, district of Ermita, city of Manila,
P.I., along the left-hand side of the street as she was going, when a delivery
wagon belonging to the defendant used for the purpose of transportation of
fodder by the defendant, and to which was attached a pair of horses, came along
the street in the opposite direction to that the in which said plaintiff was
proceeding, and that thereupon the driver of the said plaintiff's carromata,
observing that the delivery wagon of the defendant was coming at great speed,
crowded close to the sidewalk on the left-hand side of the street and stopped, in
order to give defendant's delivery wagon an opportunity to pass by, but that
instead of passing by the defendant's wagon and horses ran into the carromata
occupied by said plaintiff with her child and overturned it, severely wounding said
plaintiff by making a serious cut upon her head, and also injuring the carromata
itself and the harness upon the horse which was drawing it.
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 "These facts are not dispute, but the defendant presented evidence to the
effect that the cochero, who was driving his delivery wagon at the time the
accident occurred, was a good servant and was considered a safe and reliable
cochero; that the delivery wagon had sent to deliver some forage at Paco Livery
Stable on Calle Herran, and that for the purpose of delivery thereof the cochero
driving the team as defendant's employee tied the driving lines of the horses to
the front end of the delivery wagon and then went back inside of the wagon for
the purpose of unloading the forage to be delivered; that while unloading the
forage and in the act of carrying some of it out, another vehicle drove by, the
driver of which cracked a whip and made some other noises, which frightened the
horses attached to the delivery wagon and they ran away, and the driver was
thrown from the inside of the wagon out through the rear upon the ground and
was unable to stop the horses; that the horses then ran up and on which street
they came into collision with the carromata in which the plaintiff, Carmen Ong de
Martinez, was riding."
The defendant himself was not with the vehicle on the day in question.
Upon these facts the court below found the defendant guilty of negligence and
gave judgment against him for P442.50, with interest thereon at the rate of 6 per cent
per annum from the 17th day of October, 1908, and for the costs of the action. The
case is before us on an appeal from that judgment.
There is no general law of negligence in the Philippine Islands except that
embodied in the Civil Code. The provisions of that code pertinent to this case are —
"Art. 1902. A person who by an act or omission causes damage to
another when there is fault or negligence shall be obliged to repair the damage so
done.
"Art. 1903. The obligation imposed by preceding article is demandable,
not only for personal acts and omissions, but also for those of the persons for
whom they should be responsible.
"The father, and on his death or incapacity the mother, is liable for the
damages caused by the minors who live with them.
"Guardians are liable for the damages caused by minors or incapacitated
persons who are under their authority and live with them.
"Owners of directors of an establishment or enterprise are equally liable for
the damages caused by the employees in the service of the branches in which the
latter may be employed or on account of their duties.
"The State is liable in this sense when it acts through a special agent, but
not when the damages should have been caused by the official to whom properly
it pertained to do the act performed, in which case the provisions of the preceding
article shall be applicable.
"Finally, masters or directors of arts and trades are liable for the damages
caused by their pupils or apprentices while they are under their custody.
"The liability referred to in this article shall cease when the persons
mentioned therein prove that they employed all the diligence of a good father of a
family to avoid the damage."
Passing the question whether or not an employer who has furnished a gentle and
tractable team and a trusty and capable driver is, under the last paragraph of the above
provisions, liable for the negligence of such driver in handling the team, we are of the
opinion that the judgment must be reversed upon the ground that the evidence does
not disclose that the cochero was negligent.
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 While the law relating to negligence in this jurisdiction may possibly be some
what different from that in Anglo-Saxon countries, a question we do not now discuss,
the rules under which the fact of negligence is determined are, nevertheless, generally
the same. That is to say, while the law designating the person responsible for a
negligent act may not be the same here as in many jurisdictions, the law determining
what is a negligent act is the same here, generally speaking, as elsewhere. (Supreme
court of Spain, 4 December, 1903; 16 May, 1893; 27 June, 1894; 9 April, 1896; 14
March, 1901; 2 March, 1904; 7 February, 1905; 16 June, 1905; 23 June, 1905; 13 April,
1903; 7 March, 1902; 12 June, 1900; 2 March, 1907; 18 March, 1898; 3 June, 1901.)
It appears from the undisputed evidence that the horses which caused the
damage were gentle and tractable; that the cochero was experienced and capable; that
he had driven one of the horses several years and the other ve or six months; that he
had been in the habit, during all that time, of leaving them in the condition in which they
were left on the day of the accident; that they had never run away up to that time and
there had been, therefore, no accident due to such practice; that to leave the horses and
assist in unloading the merchandise in the manner described on the day of the accident
was the custom of all cochero who delivered merchandise of the character of that
which was being delivered by the cochero of the defendant on the day in question,
which custom was sanctioned by their employers.
In our judgment, the cochero of the defendant was not negligent in leaving the
horses in the manner described by the evidence in this case, either under Spanish or
American jurisprudence. (Lynch vs. Nurdin, 1 Q. B., 422; Rumsey vs. Nelson, 58 Vt., 590;
Drake vs. Mount, 33 N. J. L., 442; Hoboken Land and Improvement Co. vs. Lally, 48 N. J.
L., 604; Wasmer vs. D. L. & W. R. R. Co., 80 N. Y., 212.)
In the case of Hayman vs. Hewitt (Peake N. P. Cas., pt. 2, p. 170), Lord Kenyon
said:
"He was performing his duty while removing the goods into the house, and,
if every person who suffered a cart to remain in the street while he took goods out
of it was obliged to employ another to look after the horses, it would be
impossible for the business of the metropolis to go on.
In the case of Griggs vs. Fleckenstein (14 Minn., 81), the court said:
"The degree of care required of the plaintiff, or those in charged of his
horse, at the time of the injury, is that which would be exercised by a person of
ordinary care and prudence under like circumstances. It can not be said that the
fact of leaving the horse unhitched is in itself negligence. Whether it is negligence
to leave a horse unhitched must be depend upon the disposition of the horse;
whether he was under the observation and control of some person all the time,
and many other circumstances; and is a question to be determined by the jury
from the facts of each case."
In the case of Belles vs. Kellner (67 N. J. L., 255), it was held that it was error on
the part of the trial court to refuse to charge that "it is not negligence for the driver of a
quite, gentle horse to leave him unhitched and otherwise unattended on the side of a
public highways while the driver is upon the sidewalk loading goods on the wagon." The
said court closed its opinion with these words:
"There was evidence which could have fully justified the jury in finding that
the horse was quite and gentle, and that the driver was upon the sidewalk loading
goods on the wagon, at time of the alleged injury, and that the horse had been
used for years in that way without accident. The refusal of the trial court to
charge as requested left the jury free to find was verdict against the defendant,
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 although the jury was convinced that these facts were proven.
In the case of Southworth vs. Ry. Co. (105 Mass., 342), it was held:
"That evidence that a servant, whom traders employed to deliver goods,
upon stopping with his horse and wagon to deliver a parcel at a house from fifty
to a hundred rods from a railroad crossing, left the horse unfastened for four or
five minutes while he was in the house, knowing that it was not afraid of cars,
and having used it for three or four months without ever hitching it or knowing it
to start, is not conclusive, as a matter of law, of a want of due care on his part."

The duty, a violation of which is claimed to be negligence in the respect in

question, is to exercise reasonable care and prudence. Where reasonable care is
employed in doing an act not itself illegal or inherently likely to produce damage to
others, there will be no liability, although damage in fact ensues. (Milwaukee Ry. Co. vs.
Arms, 91 U. S., 489; Parrott vs. Wells, 15 Wall., 524; Brown vs. Kendall, 6 Cushing, 292;
Jackson Architectural Iron Works vs. Hurlbut, 158 N. Y., 34 Wester eld vs. Levis, 43 La.
An., 63; Niosi vs. Empire Steam Laundry, 117 Cal., 257.)
The act of defendant's driver in leaving the horses in the manner proved was not
unreasonable or imprudent. Acts the performance of which has not proved destructive
or injurious and which have, therefore, been acquiesced in by society for so long a time
that they have ripened into custom, can not be held to be themselves unreasonable or
imprudent. Indeed the very reason why they have been permitted by society is that they
bene cial rather than prejudicial. Accidents sometimes happen and injuries result from
the most ordinary acts of life. But such are not their natural or customary results. To
hold that, because such an act once resulted in accident or injury, the actor is
necessarily negligent, is to go far. The fact that the doctrine of res ipsa loquitur is
sometimes successfully invoked in such a case, does not in any sense militate against
the reasoning presented. That maxim at most only creates a prima facie case, and that
only in the absence of proof of the circumstances under which the act complained of
was performed. It is something invoked in favor of the plaintiff before defendant's case
showing the conditions and circumstances under which the injury occurred, the creative
reason for the doctrine of res ipsa loquitur disappears. This is demonstrated by the
case of Inland and Seaboard Costing Co. vs. Tolson (139 U.S., 551), where the court
said (p. 554):
". . . The whole effect of the instruction in question, as applied to the case
before the jury, was that if the steamboat, on a calm day and in smooth water,
was thrown with such force against a wharf properly built, as to tear up some of
the planks of the flooring, this would be prima facie evidence of negligence on the
part of the defendant's agent in making the landing, unless upon the whole
evidence in the case this prima facie evidence was rebutted. As such damage to a
wharf is not ordinarily done by a steamboat under control of her officers and
carefully managed by them, evidence that such damage was done in this case
was prima facie, and, if unexplained, sufficient evidence of negligence on their
part, and the jury might properly be so instructed."
There was presented in this case, and by the plaintiffs themselves, not only the
fact of the runway and the accident resulting therefrom, but also the conditions under
which the runaway occurred. Those conditions showing of themselves that the
defendant's cochero was not negligent in the management of the horse, the prima facie
case in plaintiffs' favor, if any, was destroyed as soon as made.
It is a matter of common knowledge as well as proof that it is the universal
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 practice of merchants to deliver merchandise of the kind of that being delivered at the
time of the injury, in the manner in which that was then being delivered; and that it is the
universal practice to leave the horses in the manner in which they were left at the time
of the accident. This is the custom in all cities. It has not been productive of accidents
or injuries. The public, nding itself unprejudiced by such practice, has acquiesced for
years without objection. Ought the public now, through the courts, without prior
objection or notice, to be permitted to reverse the practice of decades and thereby
make culpable and guilty one who had every reason and assurance to believe that he
was acting under the sanction of the strongest of all civil forces, the custom of a
people? We think not.
The judgment is reversed, without special finding as to costs. So ordered.
Arellano, C.J., Mapa, Johnson, Carson and Trent, JJ., concur.

Separate Opinions
TORRES , J., dissenting :

I am of the opinion that the judgment should be affirmed.

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