(dissenting).
I do not agree with the opinion of the majority, wherein it is held that there was sufficient evidence to support the findings of the jury that Plata, 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, and that such failure was a proximate cause of the accident. There is no evidence in the record that Plata was not keeping a proper lookout at the time he was struck by Dr. Gohman’s car. No witness gave any testimony that Plata was not keeping a proper lookout at the time he was struck from the rear. The testimony given by Plata concerning this matter is as follows:
“A I remember that I was walking a very little on the edge of the pavement, but I don’t know how long that was before the accident.
*166“Q Do you recall hearing the car come up behind you ?
“A No.
“Q Do you recall a car blowing its horn?
“A No.
“Q Do you recall seeing the lights of a car before you were struck?
“A No.
“Q Did anybody shout or yell at you to look out ?
“A It could have been, but I didn’t hear anything.
“Q Do you remember anybody pushing you out into the road?
“A No.
“Q You say you were walking on the edge of the pavement ?
“A When I remember, I was walking right on the edge of the pavement.
“Q Your body might have been hanging over, but where were your feet with relation to the pavement itself?
“A My feet were at the edge of the pavement like this (witness demonstrating on the courtroom floor), and the other one on the right side.
* * * * * *
“Q All right, you may take your seat now, Carlos. It was in that position, as far as you remember, that you were hit from behind ?
“A That is what I remember.
“Q What do you remember after you got hit — do you remember anything out at the scene of the accident itself ?
“A I don’t remember anything about that.
“Q The next thing you remember, where were you ?
“A In the hospital.”
Thus it is seen that Plata has no recollection as to just what happened before he was struck. He is suffering from retrograde amnesia. There is no evidence that he was not keeping “a proper lookout,” whatever that might be under the law, when he was struck. It was night time. His three companions did not testify to any facts showing a failure to keep a proper lookout. Dr. Gohman did not see Plata at all and only knew he hit something. The driver of the car that was being passed, Manuel Salinas, did not testify to any fact indicating an improper lookout by Plata.
Where there is no evidence of failure to keep a proper lookout, an injured party who is bereft of all recollection as to the details of the accident is presumed to have kept a proper lookout for his own safety. In Koock v. Goodnight, Tex.Civ.App., 71 S.W.2d 927, the Court said:
“But such presumption does not obtain as against direct and positive testimony of an eyewitness as to what actually occurred. Because of appellees’ earnest insistence on this issue, we have again carefully reread the entire testimony of the witness Hector. While he did not recollect with accuracy every detail as to what transpired between the time the bus stopped and the collision occurred, it is clear, we think, that he saw Mrs. Goodnight at all times from the instant she discovered the loss of her purse, until she was struck by Jordan’s car. Though he testified on cross-examination that she did look back towards Kyle before she was struck, she did so only when the car was immediately upon her, and too late to escape injury, and the jury in effect so found. He was a disinterested witness, and his testimony was positive that she did not look out for her own safety as she ran into the highway around the front end of the bus. Under this state of the evidence we think the presumption insisted upon by appellees was overthrown.”
*167Where the doctrine of res ipsa loquitur does not apply, as here, a specific act of contributory negligence must he alleged and proved by the defendant, either by direct or circumstantial evidence, it is never presumed from the mere happening of the accident. Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195; Solana v. Hill, Tex.Civ.App., 348 S.W.2d 481; Dixon v. Burling, Tex.Civ.App., 277 S.W.2d 957; Dewhurst v. South Texas Rendering Co., Tex.Civ.App., 232 S.W.2d 135.
There were no sidewalks along Sharyland Road where Plata was walking at the time he was struck and knocked unconscious. Under the provisions of Sec. 81, Art. 6701d, Vernon’s Ann.Civ.Stats., he was walking where he had a legal right to be, he is presumed to have been keeping a proper lookout for his own safety, and Dr. Gohman has completely failed to produce any evidence to the contrary. The evidence does not, therefore, raise the issue of contributory negligence. In MacDonald v. Skinner, Tex.Civ.App., 347 S.W.2d 950, the Court said:
“Appellant contends that there is neither direct nor circumstantial evidence to support the jury’s finding that the deceased did not keep a proper lookout, other than the fact that the accident did happen. There is no testimony from any witness who says that the deceased was not paying attention to what he was doing, or that he was looking anywhere other than where he should have been looking.
“After a careful examination of the Statement of Facts, we have concluded that there is no direct evidence to support the jury’s finding that the deceased failed to keep a proper lookout. In the absence of direct evidence to support the jury finding, we next looked for circumstances in evidence from which the jury might reasonably have concluded that the deceased failed to keep a proper lookout. Aside from the fact that the accident did happen, we have been unable, after a most careful scrutiny of the entire record, to find any circumstances in evidence from which the jury might properly have inferred that the deceased had failed to keep a proper lookout.”
The majority assumes without proof that Plata was keeping only a lookout to his front and failed to keep a lookout to his rear. Even if this be a correct presumption, nevertheless, it fails to show failure to keep a proper lookout on the part of Plata. The lookout that is required of a pedestrian traveling on the left edge of a highway is to his front, and not to his rear, and he has no duty to keep a constant or periodical or parttime lookout to his rear, unless he knows, or in the exercise of reasonable diligence should have known, that, danger is bearing down on him from that direction. Solana v. Hill, supra.
A pedestrian traveling on his left-hand, edge of the highway is not required to presume that a motorist approaching him from his rear will negligently drive upon the wrong side of the road and strike him, but he has a right to presume that motorists will pass him by driving on the right side of the road as is required by Art. 801(A), Vernon’s Texas Penal Code. Holmes v. Cooley, Tex.Civ.App., 308 S.W.2d 150; Valley Film Service v. Cruz, Tex.Civ.App., 173 S.W.2d 952; 2A Blashfield, Cyclopedia of Automobile Law and Practice, §§ 1411, 1416, and authorities cited.
The evidence shows and the jury found that Dr. Gohman was guilty of negligence in attempting to pass the auto in front of him at the time and place where he struck Plata. The majority seem to place considerable stress upon the fact that the passing by Dr. Gohman was not undertaken in a no-passing zone. Of course, if it had been undertaken in a no-passing zone, Dr. Goh-man would have been guilty of negligence per se, regardless of other circumstances. Surely they do not mean to hold that a motorist may pass another motorist, in a passing zone, regardless of whether the left-hand side of the highway is occupied by *168pedestrians, and if by doing so he would strike the pedestrians. A pedestrian walking on the highway in keeping with the provisions of Sec. 81, Art. 6701d, supra, is not a trespasser.
Even though Dr. Gohman may have sounded his horn before attempting to pass the lead car, which the evidence shows and the jury found he did not do, and even though car lights were shining from Plata’s rear, Plata had a right to presume that traffic from the south would pass him on his right side, and he was not required to change his lookout from his front to his rear. Solana v. Hill, Tex.Civ.App., 348 S.W.2d 481; Barrett v. Posey, Tex.Civ.App., 343 S.W.2d 337; 60 C.J.S. Motor Vehicles § 270, p. 650.
Plata did not suddenly run out onto the highway, he was not attempting to cross the highway; he was not preparing to go to a place of danger. He did not suddenly stop or change his direction. He was steadily walking along the left-hand edge of the highway, where the law gives him a right to walk and requires him to face to his front. It is a difficult matter for a person to keep a constant lookout to both his front and rear at one and the same time. In Manning v. Block, Tex.Civ.App., 322 S.W.2d 651, the Court said:
“Split-second timing is not ordinarily required of operators of motor vehicles. Bass v. Stockton, Tex.Civ.App., 236 S.W.2d 229, 231. This would place an intolerable burden upon the average citizen. None but the most alert could safely venture on the highways. We have concluded that we cannot uphold the finding of the jury, under the circumstances obtaining, that Manning was negligent in having momentarily released his brake pedal preparatory to moving his car forward as the other car began its movement to enter Veatch Avenue. To do so would require a person to have the same ability to see, observe and react as readily to the circumstances of the road behind him as he is required to do ahead. This is physically impossible to do, and the law has rightly placed the burden on the car operator approaching from the rear, in the event of a collision, to explain his action. Renshaw v. Countess, supra (Tex.Civ.App., 289 S.W.2d 621).”
Ordinarily, the best a pedestrian can do is keep a lookout to his front and presume the traffic approaching him from the rear will not disobey the law, travel on the wrong side of the road and run him down. No doubt, Plata, after a hard day’s work picking bell peppers in a field, on his long walk back to his camp, did not feel like whirling as he walked to keep a constant lookout to both his front and rear, and this the law does not require of him.
In my opinion there is no evidence in this record that Plata failed to keep a proper lookout to his rear and that such failure was a proximate cause of the accident.
The trial court should have disregarded the jury’s finding to Special Issues Nos. 24 and 25, and rendered judgment in favor of Carlos Plata against Dr. John C. Goh-man in the amount found by the jury.