On Appellant’s Motion for Rehearing.
We agree with appellant’s abstraction “that a holding to the effect that affirmative conduct by a pedestrian which is not negligence can at one and the same time be considered negligent conduct is without support in logic or law.”
By “affirmative conduct by a pedestrian which is not negligence”, appellant is referring to the jury’s finding that her act in looking over her left shoulder, “immediately before the collision”, was not negligent. We did not hold in our original opinion that it was negligent. We held that not even an apparent conflict with Special Issue No. 19 was posed by Special Issue No. 23, with reference to Mrs. Thompson’s acts before she was looking over her left shoulder, “immediately before the collision.”
To us it is quite evident from the record in the case that the jury, in finding that Mrs. Thompson was not negligent in looking over her shoulder, believed that such act was done in obedience to the instinct of self-preservation. Naturally they found that an act done in response to so powerful an instinct was not negligent. Even so, such act was not effective to preserve her from the consequences of her negligent failure to keep a proper lookout, which had placed her in a position of peril. In other words, the jury in effect found that her conduct, looking to escape her peril, was not negligent, but they found that the proximate cause of her injuries was her failure to keep a proper lookout. Expressed otherwise, the jury found that her negligent failure to keep a proper lookout continued to operate, despite her unsuccessful but proper attempt looking to extricate herself, until it resulted in her injuries.
Motion for rehearing refused.