The facts as 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  in which  said plaintiff was  proceeding, and that thereupon the driver of 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 disputed, 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 been 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 Calle  Herran to Calle  Real, which they turned  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  the  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 or  directors of an establishment or enterprise are equally liable for the damages caused by their 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.

While the law relating to negligence in  this jurisdiction may possibly be somewhat 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  five 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 cocheros 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 charge 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 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 quiet, gentle horse  to leave  him unhitched and otherwise unattended on the side of a public  highway  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 quiet and gentle, and that the  driver  was upon the sidewalk loading goods on the wagon, at the 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 a  verdict against the defendant, although the jury was convinced that these facts were proven."

In the case of Southworth vs. Ry. Go. (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; Westeriield  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 of  themselves unreasonable or imprudent.  Indeed the very reason why they have been permitted by society is that they are beneficial 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 is in.   With the presentation of the 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 Coasting 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 agents 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 runaway 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 horses,  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 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, finding 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 customs 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.

Torres, J,,  dissenting: I am of the opinion that the judgment should be affirmed.