Add TAGS to your cases to easily locate them or to build your SYLLABUS.
Please SIGN IN to use this feature.
Highlight text as FACTS, ISSUES, RULING, PRINCIPLES to generate case DIGESTS and REVIEWERS.
Please LOGIN use this feature.
Show printable version with highlights

[ GR No. 6666, Oct 24, 1911 ]



20 Phil. 406

[ G. R. No. 6666, October 24, 1911 ]




This is an appeal by the plaintiff from a judgment  of the Court of First Instance of the city of Manila, the Hon. A. S. Crossfield presiding,  dismissing the complaint upon  the merits after trial,  without costs.

The action is one to recover damages for an injury sustained  by  plaintiff's  horse  and calesa resulting from  a collision between it and a street car belonging to the defendant.   It seems that,  at about 11  o'clock on the night in question, the horse and calesa, which are the subject of this suit, were being driven along on the left  side of Calle Concepcion toward  Bagumbayan in  a direction substantially west.  About the  time  the horse and calesa reached the Y. M. C. A. building a street car belonging to the defendant company, the one that had part in the accident,  turned into Concepcion from Bagumbayan and proceeded  east  along Concepcion toward Marcelino.   There are  two street-car tracks on Concepcion,  an east-bound track and a west-bound track.  The street car referred to  was passing along the east-bound track toward Marcelino, while the  calesa was proceeding west toward Bagumbayan between the  west-bound track and the curb of the street.   There  was, therefore, between the calesa and the east-bound track that part of the street  between the curb and the west-bound track, which is reserved for vehicles, and that  part occupied by the west-bound  track itself.  So  that before  a collision would be possible between the calesa and a car upon the east-bound track it would  be necessary  for the calesa  to cross not only that part of the street between the west-bound track and the curb but also the west-bound track itself.

The proofs in the case are conflicting in the extreme.   The cochero driving the  calesa at the  time of  the accident, Mariano Alejo, testified (and I preserve as far as possible not only  the form of  expression but  also the  words of the witness) that at the time of the accident, which occurred at about 11 o'clock at  night,.he was driving the horse and calesa in question along the south side of Calle Concepcion west  toward  Bagumbayan; that  on arriving opposite the Y. M. C. A. building he overtook two refuse carts, traveling in the same direction,  the head one of which was covered with a white tarpaulin; that he turned out and passed one of the carts; that in attempting to pass the other the horse got scared at the  tarpaulin which was flapping in the wind, and reared; that he reared and shied just as the car rounded from  Bagumbayan  into  Concepcion.  In  response  to the question, "How many  times did your horse go backwards and forwards across the street before the street car struck you?" the witness answered,  "He was a long time going backwards and forwards, he did not like to pass the cart at all."  The witness further said that the street car was going fast; that while the horse was misbehaving the witness "was trying my best to get off the rig and get hold of the horse by the reins, but it was impossible to do anything because the horse was afraid and did not want to go ahead, but  went backwards and forwards, and when I attempted to get off my seat the horse tried to turn around;" that as the street car got near to his calesa  he  shouted to the motorman to stop as his horse  was frightened and would  not go ahead and  that he shouted several times to the motorman before the street car struck him;  that the motorman did not stop the car; that the street car struck the calesa on the right-hand side; that when he was struck the horse was facing the left-hand side of the street; that the calesa was struck first on the shaft; that "I was going straight along  Calle Concepcion towards Calle  Bagumbayan and  that bull-cart was  ahead of me and I wanted to pass it,  and then the horse got scared, and I was trying to make him  go to the left-hand side and he was trying to go to the right-hand side, and  when he got  to the left-hand side he  got scared and started to rear;" that the horse was cut on the right-hind leg;  that  the horse had  a bad habit,  especially  at night, when he would get vicious  and scared; that the horse was full of life.

On cross-examination this  witness  testified  that the American, Mr. Strawn, who was the occupant of the calesa, told  him during the evening to go slow with the horse and to be careful with him as he was acting  badly; that the street car was far away from him when he was  trying to pass  the  bull-cart and that  he thought  he  would  have plenty of  time to pass before the street car would reach him; that the first thing the horse did was to dash across the street car track to the right; that the  first thing that struck him was the footboard on the right-hand side  of the car; that the portion of the car which  struck him was the  footboard just at the head of the car in the  center of the car; that it was the right-hand corner of the car which struck one of his shafts; that one of his shafts struck the footboard of the car and for that reason the calesa tumbled down; that at the moment the shaft struck the footboard the  horse passed by.   At this point appear the following questions and answers: 

"Q.  When the horse first got scared the  street  car was a considerable distance away, was it not? - A. When the horse first started to be mean the street car was far away, but  you  must take it into consideration that it  does  not take a very long time to approach, and  it did not give me much time. 

"Q.  The street car was on the opposite side of the street from you, on  the right-hand side? - A.  Yes, sir. 

"Q.  Then why could you not  have turned around and gone in the opposite direction ? - A. As I have stated, I was between  the two carts and had no chance to move, except to go ahead in that direction. 

"Q.  And you were trying to  force  your horse to go ahead? - A. Yes, sir;  to pass the  second cart. 

"Q.  Why did you  not  stay in between the  two carts instead of trying to  pass  the  second cart, let the horse stay in between the two carts instead of trying to pass? -  A. The street car was still far away from me, and the other cart was behind me,  and the driver of  that cart told me to go ahead. 

"Q.  And that is why you went ahead, because  the man behind you told you to go ahead? - A. Yes, sir. 

"Q. If you had stayed where you were, between the two carts, you would have been all  right, would you not? - A. We were both going in the same direction,  one cart ahead of me and the other cart behind me, and  the  street car was coming in front; how could I have stopped in that place, the street car would have come on top of me. 

"Q. Why the carts were not on the  street car track, were they? - . But my rig was on the track. 

"Q. But the track the street car was coming on is the track on the opposite side of the street from the Y. M. C. A. building? - A. The street car was coming on the track on the left-hand side, and I was going on the same track. 

"Q. Were the carts not  on the Y. M.  C. A.  side near the curb? - A. They were on the left-hand side. 

"Q. The side nearest the Y. M. C. A. building? - A. Yes, sir. 

"Q. And the street car was on the opposite side of  the street? - A.  Yes, sir.

"Q. And you were in between the  two carts, had passed one and were behind the other one? - A. I passed one cart and came between the two. 

"Q. How far is it from there to the track on the other side of the street? - A.  It was far yet when I sighted  the street car. 

"Q. Then if you  had stayed in between the two carts, after  having passed  one of  them, you would  have been all right,  would  you  not ? - A. I had passed one of these carts and was trying  to pass the other, and one was going ahead and the one behind  was going also, and the fellow behind told me to go ahead, and for that reason I  had to go, if not he would have  spoiled my rig  on the back, and as I was going ahead my horse reared. 

"Q. And that is why you  turned out, is it? - A.  Yes, sir." This witness denied having stated  to Mr. Lurison in  the presence of Mr. Bradley, after the accident, that his horse shied  at a bull-cart  and that in endeavoring to restrain him he pulled the wrong  rein and  thereby ran into  the street car. 

Cipriano Nocum, a witness for the  plaintiff, testified that on the night  in  question  he was the driver of the cart which  the cochero sought  to pass with his calesa at  the time the accident occurred; that the  two carts were about twenty varas apart; that the cart he was  driving was in the lead; that when he  first observed the horse and calesa the horse was rearing,  and did not want  to go ahead  but wanted to go backwards; that the cochero was crying  out to the motorman to stop the street car; that the  street  car was going very fast; that it was a dark and cloudy night; that the horse did not stand  steady but went backwards and forwards; that in going backwards it crossed the street about three times; that the right-hand front corner of the car struck first; that the car ran about three brazas before it was stopped by the motorman.  On cross-examination this witness testified that the first thing the horse did was to back somewhat and rear up; that as soon as he saw the white  tarpaulin he went  backwards from side to side; that he went  first to the left side; that the  cochero  succeeded in pulling him to the left side of the street; that he was facing  always the left-hand side  of the  street;  that he did not cross the street.  These questions were  put to him: 

"Q. Did you not say in direct examination that he went across  the street  three  times? - A.  Backwards and  forwards, I mean to say that the cochero could not keep the horse in the same  place, as he would not stay quiet. 

"Q. How far did the horse  move from one track to the other? - A. I should say that the horse would go backwards about four brazas and then rear up again. 

"Q. He was not  moving very much from  one side to the other, just moving backwards  and forwards? - A. The cochero was  holding on to the reins, trying to bring  the horse on the left-hand side so as to pass, and then  the horse started to rear up, but always on the left-hand side. 

"Q. And he  moved very little in that direction? - A.  The cochero could  not  stop the horse in the condition he  was in, frightened  and  going backwards and forwards, but he kept on the same line; of course, there was some change but the tendency was to the left-hand side. 

"Q. Always? - A. Yes, sir. 

"Q. If he  went to the left and went backwards and forwards, he v/as clear of the track was he not? - A. Just on the track. 

"Q. That was the track  nearest the  Y. M.  C. A. building? - A. Yes,  sir.

"Q.  And when the street car came along the horse turned from there to the left? - A. He went backwards. 

"Q.  Back into the  street car, so as to throw the calesa into the street car? - A. No, sir; it was at the same time, the going  backwards of the calesa and the coming of the street car.

"Q.  What part of the calesa struck the street car first? - A. The right-hand side.

"Q.  But what part; the wheel  or  the shaft? - A. The footboard of the street car struck the wheel of the calesa.

"Q.  What part of  the wheel; back  or front? = A. The front part  of the wheel.

"Q.  Then if the calesa had  not backed into the street car, it  must have been going ahead ? - A. Yes, sir.

"Q.  The calesa approached the street car from the left- hand side  of the car, did it? - A.  The horse was rearing and backing, and backed into  the front of the street car, and the calesa struck the right-hand corner of the street car, and the car struck the calesa on the right-hand side.

"Q.  Did  you  hear the driver  of the  cart which was behind shout to the driver of the calesa to go ahead? - A. No, sir: I did not hear that."

The  witness  further testified on cross-examination that the horse started to rear about five minutes before the calesa collided with the street car; that the horse reared and went backwards and forwards for five minutes before the collision occurred; that the car was going very fast down the street; that it was not going so fast but that the motorman could stop it in a distance of three brazas after the collision occurred.

Francisco David, a witness for the plaintiff, testified that he was the driver  of a  cart which was  proceeding  along the street  on the night of the  accident in the rear of the calesa  in question which was following the cart driven by the previous  witness; that the cart in front of him was about nine brazas distant; that the street  car was going very fast and that  the cochero of the calesa was shouting to the motorman to stop; that the motorman did not stop the car; that at the time he shouted he was on the  street car track on which the street car was coming.   On cross- examination this witness testified that the horse was very much frightened and ran upon the track on which the street car was coming and stood there and  collided with the street car; that he told the cochero to  go ahead because he was backing into his cart.

These are the only witnesses for the plaintiff who testified concerning the accident.   Their statements are so confused and jumbled that it is impossible to discover just how the accident really occurred.  The testimony of the witness David is  entirely  different from that  of Nocum and the testimony of Nocum is in many  essential particulars different from that of the cochero Alejo.   It is only by referring to the testimony of  the witnesses for the defense that we are able to get anything like a  clear idea of how the accident actually happened.

Leander W.  Strawn, an American, was, aside from the cochero, the  sole occupant of the calesa at the time the accident occurred.  Although  subpoenaed as a witness for the plaintiff, he was not called by him but was presented by the defense as one of its  witnesses. He testified that he was chief of the property division of the Bureau of Internal Revenue; that he was in  the calesa at the time the accident occurred; that on coming down the left-hand side of Calle Concepcion the horse evidently shied, causing him to awake from a doze into which he had fallen, and then"the first thing I knew  the horse commenced to rear, and when he reared he hit the street car,  hitting it probably  about two seats down,  and then there was  a  rebound and  he came  back again, and then the calesa  and the horse were thrown over.   The calesa also hit  the street car, but I don't know what part of it hit the car;" that the street was wide enough so that the cart could go right up against the curb. "We were passing between the cart  and the street car, or trying to, when the horse begun to rear."

Then follow these questions and answers: 

"Q.  What happened then ? - A. Then the horse struck the street car.

"Q.  How long a time was it from the  time the horse commenced to  rear until it  struck the street car? - A. I could not say.

"Q.  Approximately; was there any perceptible time,  or was it instantly, or what?  - A. It might have been ten  or twenty seconds, I could not say, I did not pay any attention to the street car at that time, I was watching the horse to see whether we would hit the car, and it looked to me  as if we would miss it, consequently I  did not jump; if I had thought we were going to hit the street car I would have jumped."

On cross-examination the following appears:

"Q.  Do you know when the horse first shied at the white tarpaulin  on the bull cart? - A. When? I could not say exactly as to when the horse first shied, and I would not say that it shied at the white tarpaulin for I was not watching, I was half  asleep when the horse shied and went across the street car track, that was what woke me up.

"Q. And  almost instantly the street car struck the calesa?  - A. The  calesa went back  far  enough  to miss the street car  apparently, and  had room  to pass  between the street  car  and the bull cart; that is,  it  went back far enough so that it did not appear to me that the street car was going to hit us."

Further, on redirect examination, appears:

"Q. Then there would have been  the whole space from the right-hand  side of the street car track and the curb in which to pass? - A. Yes,  sir; and the  horse  was far enough past the street car  so that when he reared he hit his feet about the second or third  seat down the street car.

"Q. In other words he had cleared street car when he reared? - A. Yes, sir; but what had been the action of the horse before that I  would not say.

"Q. What first attracted your  attention? - A. The fact of the horse rearing, and  when he reared  the street  car was right onto us, but had the horse not reared we could have gotten through probably.

"Q. Did you hear the cochero say  anything before  the collision? - A.  No, sir.

"Q. Did you not hear him shout to the motorman to stop? - A. No, sir.

"Q. You  were  not  asleep? =A. I was half  asleep, and did not pay any attention to what was happening until by the jolting of the rig I became sufficiently awake to notice what was going on, because I was thinking of something entirely different, and I  did not pay any attention to what the cochero was doing.

"Q.  Then  you did not hear  the cochero shout to  the motorman to stop ? - A. No, sir; I did not hear that."

H. E. Schiffbauer, called as a witness for the  defense, testified:

"That he was the house surgeon at  St. Paul's Hospital; that at the time of the collision in question he was on the north  side of Concepcion about opposite the Y. M.  C.  A. building; that he noticed the street  car just  as it was rounding into  Concepcion from Bagumbayan."

In answer to the question, "State to the court what you saw," the witness said:

"I was walking on Calle  Concepcion towards Calle Bagumbayan, and I noticed the car coming just as it rounded the corner of Calle Bagumbayan, and  at the time the car was coming I was watching to get a car going the  other way so  that I could ride into  the  Walled  City.   I was walking  along  watching the car when I  noticed a calesa coming in the opposite direction to the car, and I noticed that the front  end of the calesa passed the front end  of the street car, and a few seconds  afterwards I heard a crash,  and the next  thing  was that the  street car was stopped and  the  calesa upturned, and  the horse was injured I think on  the  right hind leg, and the occupant  of the calesa was standing by looking at the smash-up of the calesa.   This happened just opposite the Y. M. C. A. building, I think a  little towards the Calle San Marcelino side. When I first noticed the horse and  the calesa they were ahead of the car going in the opposite direction.  When I first noticed the calesa it was about  two street car lengths ahead of the car. At that time the horse was going along peaceably and  seemingly  the cochero had  the horse under perfect control.  I should say the car was going at the rate of  the  five points, say eight to ten  miles an hour. Apparently the motorman had the street car under perfect control, and it seems the front end of the  calesa went by the street  car  and then crashed in, and the next thing I could hear the  wheels grinding, and the street car went a length or a length and a half and then stopped.   The calesa had passed the front end of the street car before the collision occurred, I did not notice how far  the calesa was from the curb on the Y. M. C. A.  side  of the street, but  it seemed to  me that there  was plenty  of room in which to get around, everything was going along nicely, there was plenty of room for everybody, but  I did  not notice the exact distance  of the space between the calesa and the curb."

Modesto Medina,  the motorman, testified that he was motorman on the car at the time the collision occurred; that he had been working for the company about one year prior to the accident; that the car was coming from the Rotonda and going to Santa Ana.  He said:

"As I have stated I was coming from the Rotonda and going in the direction of Santa Ana, and upon  turning into Calle Concepcion from Calle Bagumbayan, near the City Hall, I saw a carretela coming, and rang the bell, and continued ringing  it until I  had a speed of five points, and when I was near the Y. M. C. A. building I saw a calesa coming.  The calesa was  following a bull  cart.  The bull cart was on Calle Concepcion in front of the Division Hospital and the Y. M.  C. A. building.  The bull  cart was on my right, near the side walk.   The  calesa was following the bull cart and was also near the sidewalk immediately behind the bull cart.  My car was I believe about 2 brazas from the bull cart when  I first observed the  calesa behind it  The calesa was about 30 feet away when  I first saw it. I rang the bell when I first saw it.   When the calesa was about to come into the same line as  the bull cart the horse turned to the right and of course  collided with my car. What I mean by coming into  line  with the bull cart is when  the  car and the bull  cart  were opposite each other, at that moment the horse turned to the right and collided with the street car;  it  was something over two  seconds from the moment the horse turned  out until  it struck  the street car.  Up to the time the  horse  turned out towards the street car he had not  been rearing at  all.  He was running, just following the bull cart.  The calesa had already cleared the front of my car when he struck me.  The calesa struck the car at the second hand grab.   The wheel of the calesa went between the footboard of the street car and the body of the car.   And the brass work was  broken there. Three hand grabs  were broken off.  When the calesa struck me I stopped and  reversed.  After I reversed I ran about half the length of  the car before stopping."

A photograph having been shown the witness,  he testified: "That shows that the calesa went over to the right-hand side,  and for that reason the collision took place."

On cross-examination the witness  said:

"He [meaning the driver of the calesa] is  the one who collided with me;  that is  the truth, he is the  one who collided with me. *    *  *  I was going five points.  Very fast is nine points but that night I was going five points. The reason why I  remember that we were going only five points when the street car struck the calesa is because that was the instruction given  by the  superintendent that after 8.30 o'clock at night the speed should be only five points. If I ran more than five points after  half past 8 o'clock it would be in violation of the rules."

The cochero driving the calesa in  question testified that after the  collision  he went to the  hospital and  did  not return to the scene of the accident again that night.  In this he is contradicted by the witnesses Bradley and Lurison. Both of these witnesses testified  that  after they had taken the  cochero to the hospital and returned to the scene of the accident for the purpose of clearing up the wreck, the cochero returned there and  that they had a conversation with him at that time.  The witness Lurison testified as follows:

"Then about that time I saw the cochero who had been hurt coming up the street, and I asked him what he was doing back there, and why he was not at the hospital, and he said that he felt pretty good and came back to get things together.   Then I  asked him for  a  statement regarding the accident, and he said that he was driving along behind a bull cart, and that his horse shied, and when the horse shied he did not know exactly what happened, but that one rein got  caught under the shaft and  when he  wanted to pull he pulled  the  wrong rein, and pulled the  horse into the car."

The witnesses Bradley and Lurison also testified that the front of the calesa had struck the street car on the side; that three of the grab handles were knocked off; that the first grab handle on the side of the car was not touched, but, beginning with  the second one,  two or three  were broken loose  from the car; that the second grab handle is about four feet from the front of the car.

As  is seen from the testimony presented by  these witnesses there is almost perfect agreement between the declarations of the motorman of the car, of Mr. Strawn and of Doctor Schiffbauer.  From their evidence it  is clear to us that everything relating to the accident, from the beginning to the end, happened almost instantly.   These witnesses make  it clear that the collision occurred  thus: The cochero sought to pass the garbage cart just about the time the street car reached a point opposite the cart; that there was plenty of room, there being between  the garbage cart and the street  car that portion of the street between the garbage cart and the west-bound track and the west-bound track  itself; that as the cochero urged the horse around the  end of the garbage cart it  became frightened at the white  tarpaulin, and rearing leaped sideways away from the  cart and toward the street car; that  before anything could  be done  to restrain him he had  dashed across the west-bound track and leaped head foremost into the side of the car.  The allegation  of the plaintiff that  the car struck the calesa head-on or nearly so  is entirely unsupported except by the jumbled testimony of the  cochero and the  drivers of  the garbage carts.  Their evidence  is  completely nullified by the clear and  forceful testimony of disinterested witnesses and by the condition of the street car after the accident.  Mr.  Strawn and Doctor  Schiffbauer, reputable men and entirely disinterested so far as appears, are  in perfect  accord in  saying  that nothing  occurred to attract attention prior to the attempt  of the cochero  to turn out and pass the garbage cart, at which time the street car  was nearly opposite the cart; that up  to that moment the  horse was  going along quietly,  under  perfect control, exhibiting no symptoms of fright or unsteadiness; that it was  only when  passing the cart that he became unmanage- able, and that was at the very moment that the street car was  about to reach a point alongside the garbage cart.  It may have been,  and it is quite  possible,  that in  coming alongside the cart the horse  not  only reared but hesitated about  going forward, or even backed slightly; but it  is certain that the unusual activities of the horse were very limited prior to  the collision.  All the subsequent events sprang from the attempt of  the  driver to  force the horse past  the garbage  cart.  The  animal,  becoming  greatly frightened at the tarpaulin, dashed head foremost into the side  of the car, preferring that alternative to  the greater danger which, to him, lay in the bull cart and white  tarpaulin.   Mr. Strawn says:

"What first attracted my attention  was  the  fact of the horse rearing, and when he reared the street car was right onto  us, and had the horse not reared we could  have gotten through probably.  And  the  horse  was  far  enough past the street car so that when he reared he hit his feet about the second or third seat down the street car."

That the horse ran  backwards and forwards across the street  in front of the  street car for five  minutes as testified  one of the witnesses for the plaintiff, or several times as testified two others, is incredible under all of the  evidence in this case.  It is unbelievable that Mr. Strawn, the occupant of the calesa, who  said that he  was awakened from his doze  or revery  by the rearing  of the horse the instant before the collision, would have remained dozing up to that moment if the horse had been rearing and plunging backwards and forwards across the  street and the cochero had  been shouting to the  motorman  to stop the car.  It is very improbable that this  could have occurred and not been seen and heard by Doctor Schiffbauer, who at the time was at the very point where the accident  occurred and who saw every act and perceived every condition up to the very time of the collision.  The condition of the car after the event is also a complete refutation of the testimony  of the plaintiff's witnesses who assert that the car  ran into the calesa rather than that the calesa ran into the car.  The testimony of Doctor Schiffbauer, of Mr. Strawn  and of the motorman  is to the effect that the  front end of the car had  passed the horse  and  calesa before  the  collision occurred.   The condition of the car after the accident completely  and in every  detail corroborates this testimony. An examination of the car disclosed that the horse or calesa had  struck the side of the car at least four feet from the front righthand corner; that from  that  point on toward the rear of the car several grab handles, that is, the handles which are seized by passengers in entering and leaving the car,  were  broken  off  by  the force  of the collision.  No damage was done to the  end  of the car or to the corner. The  first grab  handle  was  intact.  The only  marks upon the  car and the only injuries observable  were those upon the  side, several feet from the front  and corner.   From the testimony of Mr. Strawn it is clear that the horse rather than the calesa struck the car first.  He asserts that the horse reared and when  he reared he leaped against the car, striking it with his feet about two or three seats down; that then there was a rebound, the horse having probably been thrown away from the car by the force of the impact, thus turning the rear end of the calesa toward the car and bringing it into contact with it.

That  the cochero called to the motorman to stop the car we believe is equally  incredible.  Two witnesses for the plaintiff testified  that the cochero called to the  motorman to stop.  One of them is  the cochero himself and the other the  driver of one of the  bull carts.  The driver  of the other bull  cart testified that he did not hear the cochero call  to the motorman.  Mr. Strawn, who was within  two feet of  the cochero at the time, testified that he did not hear any  such  outcry, and Doctor Schiffbauer,  who stood upon the sidewalk at the place where the accident occurred, stated that no such thing happened.  This is also the testimony  of the  motorman,  who asserted  that  he saw  and heard nothing out of the ordinary until  the very moment when he came  opposite the garbage cart, when the horse which was just turning out from behind  the same reared and  leaped into the side of his car.   On cross-examination he insisted on the proposition that it was the calesa that struck the car and not the car that struck the calesa.

The  theory of  negligence presented by the arguments of plaintiff's  counsel is that the motorman having for  a distance of 25 rods or more seen an unmanageable horse running backwards and  forwards across the track upon which the  street  car was running ought  to have stopped his car before reaching  the danger point, and that  not having done so but having continued on his course at full speed regardless of the probability of a collision, he was guilty of negligence  and  the company was responsible for the results thereof.  As we have already said, this theory is untenable as the facts presented to support it are disproved by the clear weight of the evidence.

We are of the opinion that the judgment of the  court below is supported by the clear weight of the evidence and should be and is hereby affirmed, without special finding as to costs.

So ordered.

Arellano, C, J., Torres, Carson, and Trent, JJ., concur.