I am not in accord with the opinion of the majority in reversing the judgment of the trial court and remanding this cause for a new trial. Appellee's damages for personal injuries were the result of appellant's negligence, as found by the jury, in a rearend collision with appellee's automobile, to which appellee in no way contributed.
The evidence conclusively shows that appellee and his companion, the driver of his automobile, while going down a public highway, in a slow, lawful manner, at a rate of speed not in excess of 15 miles per hour, on the right-hand side of the road, with the tail-lights visible for a distance of 500 feet, neither turning, stopping, or changing their course, nor intending to do so, appellant's truck, operated by a Mr. Burt, without warning of its approach, ran into the rear end of appellee's automobile, inflicting serious injuries to appellee. There is not a single word or line of probative evidence in this voluminous record of more than 500 pages that appellee had stopped, or slackened his speed, or was changing his course of travel, as to give rise for visible or audible signals, or to crane his neck, or look out for approaching vehicles to the rear. The law does not require a foolish thing.
The statute, Sec. K, Art. 801, Penal Code, makes it the duty of a person in charge of any vehicle upon a public highway, before turning,stopping or changing his course, to keep a lookout. No other contingency is prescribed in connection with the Law of the Road. When a statute undertakes to set out the duties owing by a traveler of the road, such statutory requirments fulfill the full measure of duty; the exclusive test for determining what the duty is. Valley Film Service v. Cruz,173 S.W.2d 952, error refused; Larson v. Halliburton Oil Well Cementing Co., Tex. Civ. App. 105 S.W.2d 368. The statute, supra, lays down the rule for one to keep a lookout for the movement or operation of other vehicles and to give plainly visible or audible signals, only before he turns, stops, or changes his course of travel, or as when evidencing his intention so to turn, stop or change his course. There is no duty in law or in equity for one traveling down a public highway, sitting to the right of and beside the operator of his automobile, out of all focalized mirror vision to the rear, to crane his neck from his automobile door, when there is no movement or operation of his automobile or of any one following him that he should reasonably anticipate that an automobile from the rear would collide with him. It is more reasonable to assume that one so situated as appellant was would expect, as the law directs (Sec. B, Art. 801, Penal Code), that the operator of the oncoming automobile, proceeding in the same direction, when overtaking and about to pass to the left, would give suitable and audible signals (which was not done in this case) of his intention to pass, thus enabling the operator of the front car to give way to the right in favor of the overtaking automobile. He could well assume, without being guilty of negligence, that the operator of the oncoming automobile would obey the Law of the Road. It is an elemental rule that, in the absence of duty, there can be no negligence in failure to do that which would not reasonably be expected or required to be done.
In this case, the trial court having submitted all controlling issues on contributory negligence that could have been found under the evidence to be a proximate cause of the collision, there was no error in refusing to submit defendant's requested Issue Two, quoted fully in the majority opinion. Appellee and the soldier driver were each acquitted of all acts of contributory negligence by the jury findings; that the soldier driver kept a proper lookout for vehicles on the highway; that the automobile was not stopped just prior to the collision; that the automobile tail-lights exhibited a red light plainly visible for a distance of 500 feet to the rear; that just prior to the *Page 993 collision the soldier driver was operating the car at a rate of speed about 15 miles per hour and that appellee's car was not parked on the highway. It will be observed that there was no issue submitted and none requested, and no evidence that at the time of the collision the operator of appellee's automobile was turning, stopping or changing his course, as would justify lookout, either by the operator or appellee, for approaching vehicles from the rear. It seems that the trial court was more liberal to appellant in submitting the issue of the soldier driver's failure to keep a proper lookout for vehicles on the highway, than the facts justify. Where did appellee's or the soldier's duty lie in keeping lookout for vehicles on the highway at and immediately before the collision, with an approaching automobile with bright lights facing them? If it was to the rear, the burden then was upon the defendant to show the necessity, and submit issues of such failure. It will be seen that the issue with reference to the soldier's lookout was directed generally to "vehicles on the highway," and not as affects those coming to the rear; and the issue refused by the trial court is of like import, limited generally to "failure to keep a proper lookout for his own safety." In the light of this record, it may well be assumed that appellee and the soldier driver were keeping a lookout to the front; and if any negligence was attributable to them for failure to keep a lookout to the rear, in the absence of submitted issues in reference thereto, such were waived, hence the judgment of the court on that issue must be sustained. However, the jury settled the question, finding that the driver did not fail to keep a proper lookout, that the automobile was moving about 15 miles per hour and was not stopped on the highway. Then, in due justice to this record, how could it be said that appellee, who was sitting beside the driver, out of line of rear vision, was duty bound to keep a lookout; or that he should have turned around in his seat and craned his head out the window? The uncontroverted evidence, and the findings of the jury, answer the question. Appellant's oil truck was being operated with lights that were rather dim; the driver attributing the collision to the fact that, coming up over the top of a grade, after being temporarily blinded by the bright lights of an approaching car, he was confronted with plaintiffs automobile, which had either stopped or was going at about one or two miles an hour on the right-hand side of the highway, evidencing that the accident happened a few seconds after the truck topped the grade or on level stretch of the road a short distance beyond the crest of a long upgrade. The defendant's driver, Burt, further testified:
"Q. How far could you see an object with those lights on your truck? A. Well, if there had been no interference —
"Q. Under ordinary conditions, how far could you see? A. I would say between 150 and 200 feet, * * *
"Q. Mr. Burt, when did you first notice the lights of this approaching car that you say blinded you? A. Just a glare in the sky. Coming up that hill, I could see the glare of the lights as it moved on the pavement.
"Q. How far was that before you got to where they actually came in your face? A. Well, we met right on the eve of the hill just as we came up on the hill, we met * * *
"Q. Did the accident occur as you were going up the hill or after you got across? A. Just as I got to the top of the hill, a high level road, it occurred * * *
"Q. About how far were you when you first saw the vehicle you afterward came in contact with? A. 30 or 40 or 50 feet."
Appellant's driver further testified: "I made my lefthand turn to miss it and if it had been moving at a rate of speed as much as five (5) miles per hour, I would have missed it."
Under the above related facts it is highly probable that had appellee been looking to the rear, he could have seen the dim lights of the truck as it was coming up the hill, but certainly such would not have suggested to any reasonable person danger of its collision. If appellee's car was either stopped or being driven at one or two miles per hour, without a burning tail-light, as contended by the appellant, not found by the jury, still the collision coming on so sudden and unexpected, in so short a space of time, *Page 994 appellee's failure to keep a proper lookout, if supported by evidence, would not in the least have been a contributing cause of the collision. The trial court having submitted these questions to the jury, the answers were decisive of all question of blame or proximate cause in so far as appellee and his driver were concerned. Northeast Texas Motor Lines v. Hodges, 138 Tex. 280, 158 S.W.2d 487; Blaugrund v. Gish, Tex. Civ. App.179 S.W.2d 257, Id., 142 Tex. 379, 179 S.W.2d 266.
In Le Sage v. Smith, Tex. Civ. App. 145 S.W.2d 308, the court laid down the correct rule of law directory to duty of an occupant of a leading vehicle to those traveling in the same direction. I quote:
"We have said, in our opinion, that we know of no rule of law that would require either Mr. Smith or Mrs. Smith to keep a proper lookout for vehicles approaching from the rear. Our idea of a proper lookout incumbent upon the operators of motor vehicles upon highways, is one that concerns vehicles in front of the party to be held to such rule, and not those approaching from behind, unless there appears some particular fact that calls the attention of the driver of the front car to the car that follows, which would impose some duty upon the driver of the front car to maintain such a lookout, or unless the driver of such car either slows down his vehicle or intends to stop the same, under which circumstances, or either of them, it would be the driver's duty to keep a proper lookout for vehicles following such car and to then give a proper signal to apprise the driver of the car in the rear of such intention."
The same rule is stated in 5 American Jurisprudence, Section 280, page 656, as follows:
"The driver of the front car owes no duty to the rear or trailing car except to use the road in the usual way, in keeping with the laws of the road, and until he has been made aware of it, by signal or otherwise, he has a right to assume either that there is no other automobile in close proximity to his rear or that, being there, it is under such control as not to interfere with his free use of the road in front of and to the side of him in any lawful manner."
In Valley Film Service v. Cruz, 173 S.W.2d 952, 953, Error refused, the Court of Civil Appeals applied the rule as follows:
"The trial court likewise did not err in refusing to submit to the jury the issues of whether or not the plaintiff failed to keep a proper lookout for motor vehicles approaching him from the rear. Appellee had a legal right to drive his wagon in the right-hand lane of the highway, as the undisputed evidence shows he was doing, and to assume that cars approaching from his rear would obey the law and use proper care to avoid injuring him. It is only in the event that he wishes to stop or change his course that he is required to signal to those approaching from the rear and to see to it that such stopping or changing of course may be done in safety."
Applying the foregoing rule to the facts of the present case, the duty of appellee to keep a lookout to the rear, could arise only in the event that he was in the act of stopping or that he was proceeding along the highway without a tail-light, as required by the Law of the Road, supra. These two conditions should appear before there could be any duty on appellee to abandon his lookout to the front for the approaching automobile, and look to the rear for the oncoming automobile. Manifestly, appellee should not have abandoned his duty to the one approaching, for that to the rear.
The facts and circumstances in this case do not justify a reversal of the judgment. A fair trial was accorded to all parties, and if, perchance, error was made in refusing the special issue of appellee's lookout, same was harmless. Appellee's motion for rehearing should be granted, and judgment of the trial court affirmed. *Page 995