This is a personal injury case brought by Carlos Plata, a pedestrian, against Dr. John C. Gohman, the driver of a vehicle which struck Plata from the rear. Judgment was for the defendant because the jury found that Plata at the time and on the occasion of the accident failed to keep a proper lookout, and that this was a proximate cause of the accident. Plata contends that the findings of his contributory negligence (1) have no support in the evidence, and (2) are against the great weight of the evidence. We affirm the judgment.
Plata and three companions were walking south along the left side of a paved country road at night. The pavement was eighteen feet wide. Plata was about one foot inside the paved part of the road. A companion was walking on his left side just off the pavement, and two other companions were following them, two abreast, also off the pavement. It was dark and Plata was wearing dark clothing. Plata was facing oncoming traffic, which was proper. Art. 6701d, § 81, Vernon’s Ann.Tex.Stats. Defendant, Gohman, was driving his car in a southerly direction and overtook a car in front of him. Both cars had their lights shining. As defendant was even with the car which he was passing and on the left side of the road, he struck Plata. No one else was hit. Defendant did not see Plata until after he struck him. The jury found that Gohman was negligent in failing to keep a proper lookout, in attempting to pass another vehicle when it could not be done with safety under all the facts and circumstances, and in failing to sound his horn. These were proximate causes of the accident.
We shall first consider Plata’s law point of “no evidence.” Plata’s argument is that he did not keep a lookout because as a matter of law he was under no duty to keep a lookout, since he was situated at a place the law permitted him to be when struck. He concludes that the issues should not have been submitted at all, and though answered against him, they should have been disregarded.
The jury was asked: “Do you find * * * that the Plaintiff, at the time and on the occasion of the accident in question, failed to keep a proper lookout for vehicles traveling south on Sharyland Road ?” They also were asked if such failure was a proximate cause of the accident. To hold that there was no duty on the part of the pedestrian, the evidence must be so conclusive that reasonable minds cannot differ in the conclusion. In J. Weingarten, Inc. v. Brockman, 134 Tex. 451, 453, 135 S.W.2d 698, 699, the test is stated: “The issue of whether or not given acts constitute negligence is essentially a jury question. The facts of each case must be given independent consideration, and seldom are the facts of any two cases so identical as that the decision in one could be held to be authority for a like decision in the other.” See Green, Proximate Cause in Texas Negligence Law, 28 Tex.Law Rev. 761-764; cf. 2 Harper and James, § 18.8.
Looking at the evidence as of the time the trial court submitted the charge to the jury, not afterwards, we conclude that the court would have been in error in ruling on the lookout issues as a matter of law. The negligence issue inquired about matters as they existed “at the time and on the occasion.” This was proper, for the facts and circumstances are important. The evidence raised disputes about those facts and circumstances. Plata was walking where the statute said he ought to be walking. Sec. 81, Art. 6701d. Gohman, on the other hand, was passing a vehicle in a proper passing zone. Secs. 52, 57, Art. 6701d. In other words, both the pedestrian and the driver had rights to be at the same place on the road. The road was straight and there were no cars approaching or lights visible from the south. There were no obstructions which hindered Plata’s moving onto the shoulder if he observed overtaking traffic. His clothing was dark and obscured his presence upon the unlighted road. *165There is evidence that Plata had some notice of impending danger. There were lights overtaking him from behind. Goh-man testified that before he started to pass the car ahead of him, “I honked at the car I was going around * * * I know that.” He said he was watching the car in front of him, was going about forty-five miles an hour, and that he switched the dim lights to bright. He said he was watching the road so he could clear the car he was overtaking and stay on the pavement. These are some of the facts and circumstances which the trial judge had before him at the time he submitted the charge to the jury. While the jury could believe or disbelieve them, the judge had to submit the issues to the jury. Intersection cases are not precisely in point, but they suggest similar rules and results with respect to the facts and circumstances which must be considered. The principle is the same. Even one who has the right of way is not excused from exercising ordinary care for his own safety. Even though one is not required to anticipate negligent conduct, he is not entitled to close his eyes to that which is plainly visible and which would have been observed by a person of ordinary prudence similarly situated. Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273; De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95; Intges v. Dunn, Tex.Civ.App., 311 S.W.2d 877; Lofland v. Jackson, Tex.Civ.App., 237 S.W.2d 785; Norris Bros. v. Mattinson, Tex.Civ.App., 145 S.W.2d 204; Lewis v. Martin, Tex.Civ.App., 120 S.W.2d 910.
The principle is well stated in 2A Blashfield, Cyclopedia of Automobile Law and Practice, § 1415:
“A pedestrian on the highway at night on whichever side he walks must exercise ordinary care, in the situation in which he puts himself and under the circumstances surrounding him. * * So one who uses the roadway without taking any precautions for his own safety, though he can see the lights of an automobile which strikes him long before it reaches him, is guilty of contributory negligence * *
The findings were not against the great weight of the evidence. We reach this conclusion by applying the test stated by In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660. Plata relies upon Barrett v. Posey, Tex.Civ.App., 343 S.W.2d 337, wherein the jury found a pedestrian negligent in failing to keep a lookout to the rear, and the appellate court remanded the case on the facts. The distinctions between the surrounding facts of that case and this one are significant. In the Barrett case the pedestrian was seven years old. Plata was twenty-eight years old. In Barrett, the accident occurred in open daylight; this accident occurred at night. In Barrett, only one car was proceeding down an unobstructed highway, twenty-one feet wide; in this case, one car was passing another on a road eighteen feet wide. In the Barrett case, the pedestrian was probably on the shoulder of the highway; in this case there is evidence that Plata was on the road.
The judgment on the verdict is affirmed.