(dissenting).
I do not concur in the opinion of the majority and here state my reasons for dissent.
The undisputed, disinterested evidence in this case shows that Scott, Jr., was driving his car at a slow rate of speed straight down the right traffic lane of Interstate Highway 35, within the City Limits of New Braunfels, when he was struck from the rear by a car being driven by McElroy, Jr. This highway is divided and the east half, forty feet wide, is reserved for traffic going north. Thus it will be seen that there were some twenty-two feet of open, unobstructed, level and unoccupied paved highway to Scott’s left where McElroy was required to pass. Sec. 54(a), Art. 6701d, Vernon’s Tex. Civ.Stats. The right front light of McEl-roy’s car struck the rear left light of Scott’s car and it appears that if McElroy had turned his car only one or two feet to the left there would have been no collision. The only explanation given by McElroy for striking Scott’s car was that he did not see it. The jury, of course, found McElroy guilty of negligence which was a proximate cause of the collision. Which finding was fully supported by the evidence.
The jury found in answer to Questions Nos. 7 and 8, that Scott failed to keep a proper lookout, which was a proximate cause of the collision. This appeal turns upon the question of whether there was evidence to support these two findings.
The evidence shows, and the jury found in answer to Question No. 13, that Scott did not stop his automobile on the paved portion of the highway. And in answer to Question No. 11, they found that Scott did not decrease the speed of the automobile he was driving more suddenly than a person of ordinary prudence in the exercise of ordinary care would have done under the same or similar circumstances.
It is difficult to see how Scott’s failure to keep a proper lookout could be a proximate cause of the collision when he did not stop or turn, and did not slow down his speed except in a careful manner, and gave due warning by flashing his rear lights, and especially in view of the fact that there were some twenty-two feet of pavement on his left, which McElroy was required by statute to use in passing the Scott car. Sec. 54, supra.
Scott did not violate Art. 6701d, § 68(a), because he did not turn his vehicle, nor did he violate § 68(c), because he did not stop or suddenly decrease the speed of his vehicle. This the evidence shows, and the jury so found. Scott did not, under the statute, owe the duty to give any signal, but he did give ample signals by flashing the rear lights.
McElroy’s explanation for striking Scott’s car, that he did not see him, only emphasizes the fact that Scott was not negligent. Scott was not found guilty of any act of negligence other than not keeping a proper lookout, which was of course a lookout to his rear. This collision happened at night. No one, other than Scott, knows whether or not he looked to his rear Scott swore that he twice looked to his rear *436before he began to slow down. He saw the lights of Schoenfield’s car which was directly behind him. It is not surprising that he did not see the car behind Schoenfield’s car, as the .road was level and straight, but it is immaterial how many cars Scott saw to his rear, he at least saw one and thus knew that there was traffic behind him, and therefore he should be careful about reducing his speed. If he had seen McElroy’s car it would have given him no further useful information than he already had. Knowing there was traffic behind him, he flashed his rear lights and reduced his speed just as gradually as he could. The warning he gave was sufficient for Schoenfield, who reduced his speed and pulled out on the shoulder of the highway. Scott again looked back and saw McElroy’s car coming some 100 or 150 feet to his rear, but he had a .right to assume McElroy would obey the law, Art. 6701d, § 54(a), and pass on his left. When Scott heard McElroy’s brakes screeching immediately behind him, he realized there was going to be a collision, but it was then too late for him to do anything to avoid it.
The majority seem to rely on the fact that the jury was not required to believe Scott’s evidence on lookout because he was an interested party. If this be true, the disbelief of the positive testimony of Scott that he did keep a proper lookout to his rear will not support a finding that he did not do so.
As was said by Justice Norvell, speaking for this Court in Dewhurst v. South Texas Rendering Co., Tex.Civ.App., 232 S.W.2d 135:
“After a careful examination of the statement of facts, we have come to the conclusion that there is no evidence supporting the jury’s findings that Dew-hurst was travelling at an excessive speed at the time of the collision or that he failed to keep a proper lookout. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059. Appellants’ motion for judgment should have been sustained.
“While the testimony of Munoz was not necessarily binding upon the jury, disbelief in his statement that the station wagon was moving slowly into the intersection is not evidence that the driver of the station wagon was travel-ling at an excessive rate of speed without maintaining a proper lookout. Testimony of a witness that an automobile was travelling at the rate of ten miles per hour at a certain time can not in itself be considered as testimony that the vehicle was travelling at the rate of sixty miles per hour. There must be something more than mere disbelief in the ten-mile per hour testimony to support a sixty-mile per hour finding. We do not agree with appellee’s argument that the jury ‘could have disregarded that portion of Munoz’s testimony relating to the deceased slowing his automobile down as he was nearing the intersection and could have believed his testimony with reference to the rate of speed of forty or fifty miles an hour and used that as a factor in arriving at their verdict.’ This argument involves a presumption of negligence.”
The burden of proof was upon McElroy to show by a preponderance of the evidence that Scott was guilty of contributory negligence in that he did not keep a proper lookout to his rear. Dewhurst v. South Texas Rendering Co., supra; Rankin v. Nash-Texas Co., 129 Tex. 396, 105 S.W.2d 195; Hardage v. Rouly, Tex.Civ.App., 349 S.W.2d 616; Texas & P. Ry. Co. v. Midkiff, Tex.Civ.App., 275 S.W.2d 841; Schneider v. Delavan, Tex.Civ.App., 118 S.W.2d 823; Texas Rules of Civil Procedure, Rule 94.
Scott is presumed to have been taking due care for his own safety unless it is shown by a preponderance of the evidence that he failed to keep a proper lookout to his rear. Rule 94, T.R.C.P.; Wood v. American Sec. Life Ins. Co., Tex.Civ.App., 304 S.W.2d 559; Burba v. Lary, Tex.Civ.App., 296 S.W.2d 797; Gieb v. Goebel Brewing Co., Tex.Civ.App., 176 S.W.2d 975; Garza v. De Leon, Tex.Civ.App., 193 S.W.2d *437844; 9C Blashfield, Cyclopedia of Automobile 'Law and Practice, § 6101, p. 38. The rule of res ipsa loquitur does not apply here because McElroy specifically alleged that Scott failed to keep a proper lookout, the burden was upon him to establish such fact by the evidence. In my opinion, the testimony of Scott to the effect that he kept a careful lookout to his rear, looking not only once but twice, can not be converted into evidence that he did not keep a proper lookout by the simple process of saying Scott was an interested witness and could be disbelieved by the jury.
In my opinion, the finding of the jury that Scott did not keep a proper lookout should have been disregarded by the trial court because it had no support in the evidence.
Even if there was some evidence to support the finding that Scott failed to keep a proper lookout to his rear, such failure in any event was not a proximate cause of the collision, because the undisputed evidence of the disinterested witness is to the effect that Scott was aware of the traffic approaching from his rear and flashed his stop light; that he did not stop, and did not suddenly decrease the speed of his vehicle; he did not turn to the right or to the left, but was struck from the rear by a motorist who did not see him. Under such circumstances, whether or not Scott looked to the rear is immaterial, and could not be a proximate cause of the collision. Furthermore, under all of the facts of this case, Scott did not owe any duty to keep a lookout to his rear, and owing no duty he was not guilty of negligence in not doing so.
In Solana v. Hill, Tex.Civ.App., 348 S.W.2d 481, the Court said:
“Appellant says the court erred in disregarding the answers to issues five and six and in rendering judgment for Hill. As shown, the jury found that Hill did not stop on the highway and that he did not rapidly decrease his speed on the highway, as plaintiff alleged. The only finding of negligence was that Hill failed to keep a proper lookout to the rear. The jury also found that such failure was a proximate cause of the collision of the cars behind Hill, driven by Earl Weber and Jordan. The court disregarded said findings upon the theory that, under the circumstances shown, as a matter of law, Hill had no duty to keep a lookout for cars travelling behind him. We think this was correct. * * * Appellant is contending, in effect, that because Hill was driving 30 to 40 miles per hour, instead of at the maximum speed permitted by law, he owed appellant the duty to keep a lookout to the rear. Hill, of course, had no duty to drive at the maximum rate. Hill had the right to drive in his right hand lane at the speed he was travelling and to assume that cars approaching from the rear would obey the law and use proper care to avoid injuring themselves. * * * In the absence of evidence of some fact that should have attracted Hill’s attention to a situation that required a lookout to the rear, he had no duty to keep one. * * * Since there was no duty, there was no negligence in failing to keep a lookout to the rear. Furthermore, we think Hill’s failure to keep such a lookout was, clearly, not a proximate cause of the collision of Earl Weber’s and Jordan’s cars. Le Sage v. Smith, Tex.Civ.App., 145 S.W.2d 308, 312, (Writ Dis., C.J.); Freeman v. Harkrider, Tex.Civ.App., 320 S.W.2d 238; Valley Film Service v. Cruz, Tex.Civ.App., 173 S.W.2d 952, (Ref. W.M.), and Mueller v. Bobbitt, Tex.Civ.App., 41 S.W.2d 466.”
The cases of Le Sage v. Smith, Tex.Civ.App., 145 S.W.2d 308; Kuykendall v. Doose, Tex.Civ.App., 260 S.W.2d 435, and Bass v. Stockton, Tex.Civ.App., 236 S.W.2d 229, are not subject to the limitations attempted to be placed upon them by the majority.
The majority cite the cases of Beasley v. Baker, Tex.Civ.App., 333 S.W.2d 212; Manning v. Block, Tex.Civ.App., 322 S.W.*4382d 651, and Womacks v. Horne, Tex.Civ.App., 300 S.W.2d 765.
The Womacks case was a collision at a street intersection, where the plaintiff was making a left-hand turn while the defendant was passing him. There are no similar facts here.
The most significant statement in Manning v. Block, supra, in my opinion, is the following:
“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 event of a collision, to explain his action.”
In Beasley v. Baker, supra, the Court held that plaintiff was required to keep a lookout to her rear when making a left-hand turn and changing from one traffic lane to another. Such is required by Sec. 68(a), Art. 6701d, Vernon’s Tex. Civ. Stats. This is undoubtedly the law, but "here there was no making of a left-hand turn, and no changing of traffic lanes. I think this case really supports the contention that here no lookout to the rear was required.
The majority seem to indicate that Scott, Jr., did not have a right to gradually slow down and ultimately pull onto the shoulder, even though his car was not functioning properly, because he was driving on a freeway. Undoubtedly Scott, Jr., had this right. Art. 6701d, § 68(c), reads as follows:
“No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear when there is opportunity to give such signal.”
Sec. 93(a) and (b), in effect, authorizes, motor vehicles to reduce their speed and pull off the paved portion of a highway. I know of no different rule for vehicles being driven on a freeway.
Vol. 2A, Blashfield, Cyclopedia of Automobile Law, and Practice, § 1191, p. 2, reads as follows:
“Stopping or Parking in Street — In General
While motion is the general law of the road, this law is subject to limitations imposed by reason and necessity. In the absence of any governmental prohibition or restriction, the temporary stopping of an automobile on the proper side of the highway for a necessary purpose is not negligence; the right to stop when the occasion demands being an incident to the right to travel. However, there may be a want of care in parking a motor vehicle as well as in operating it. The test of liability is the reasonableness of the conduct under the circumstances. Weight should be given to the extent of interference with the free use of the road by others with equal rights.
“Due to the mechanical imperfections of the automobile, it is often necessary to stop at least partly on the traveled portion of the highway, if for no other purpose than that of making repairs. Because of this fact, it cannot be said as a matter of law that a driver who has been forced to stop in the traveled portion of the highway is negligent.”
*439"Blashfield cites many cases in support of this text.
The important lookout for a motorist on a highway is to his front and sides and not to his rear. Only on rare occasions is he required to. keep a lookout to his rear. None of these rare occasions were shown to exist in this case. The driver of a motor vehicle is not required to follow the example set by the extinct dodo bird which is said to have habitually flown backward because he wanted to see where he had been but did not give a hoot as to where he was going.
In my opinion, there is no evidence more than a surmise or guess, to show that Scott, Jr., did not keep a proper lookout to his rear, and that such failure was a proximate cause of the collision. Therefore, the judgment of the trial court should be reversed and judgment here rendered in favor of Scott in the sum of $12,000.00, the amount of damages found by the jury.