De Winne v. Allen, 154 Tex. 316, 277 S.W.2d 95; Blunt v. H. G. Berning, Inc., Tex.Civ.App., 211 S.W.2d 773, writ ref.; Brown v. Dallas Ry. & Terminal Co., Tex.Civ.App., 226 S.W.2d 135, writ ref.; Tidy Didy Wash v. Barnett, Tex.Civ.App., 246 S.W.2d 303, writ ref. n. r. e.; Johnson v. East Texas Motor Freight Lines, Tex.Civ.App., 271 S.W.2d 708. In the frequently cited case of Lewis v. Martin, Tex.Civ.App., 120 S.W.2d 910, writ ref., the appellant instituted suit against appellee to recover damages sustained by him when their automobiles were involved in an intersectional collision. In response to special issues the jury found that appellant reached the intersection before appellee; that appellee drove his automobile into appellant's car; that he had insufficient brakes; and that each of such acts constituted negligence and a proximate cause of appellant's damage.
In further support of its position, that there was duty on appellant, appellee quotes from the Beaumont City ordinance which, while giving the pedestrian a right of way, imposes a duty upon him in the following language: "But no pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield." Upon the basis of plaintiff's testimony and the finding of the district judge that plaintiff was contributorily negligent and her negligence was the proximate cause of the injury, appellee, citing many cases, with particular emphasis on the case of Todd v. La Grone, Tex.Civ.App., 234 S.W.2d 99, Lewis v. Martin, Tex.Civ. App., 120 S.W.2d 910, and Edson v. Perry-Foley Funeral Home, Tex.Civ. App., 132 S.W.2d 282, where the trial court rendered judgment for the defendant on a jury finding that the plaintiff was negligent in not keeping a look out and such negligence was the proximate cause of the injuries, urges upon us that the case was a fact case and that the findings and judgment appealed from may not be overturned. Drawing also on the jurisprudence of other states, appellee cites many cases including Gray v. Southern Auto Wreckers, Inc., La.App., 166 So. 154, holding "Even when one has the right of way, he is not relieved from looking into the direction from which others may be expected to approach." Analyzing and discussing the Texas cases relied on by appellant, and pointing out that the decision in each case turned on its particular facts, appellee insists that their holdings are in no wise contrary to the view of the district judge as to the duty of care owed by a pedestrian and that the contributory negligence of
It is not necessary for us to decide whether petitioner or respondent initially had the right-of-way under the provisions of these statutes, because a statutory right-of-way rule is not absolute but relative, and is subject to the qualification that a person entitled to claim such right will exercise it will proper regard for the safety of himself and others. See Lewis v. Martin, Tex.Civ.App., 120 S.W.2d 910 (wr. ref.). If the driver who is under the statutory duty to yield the right-of-way fails to do so, the exercise of ordinary care may require the operator of the other vehicle to yield.
However, "a statutory right-of-way rule is not absolute but relative, and is subject to the qualification that a person entitled to claim such right will exercise it with proper regard for the safety of himself and others." McWilliams v. Muse, 300 S.W.2d 643, 645 (Tex. 1957) (citing Lewis v. Martin, 120 S.W.2d 910, 913 (Tex. Civ. App.—Amarillo 1938, writ ref'd)). "The person having the right-of-way cannot exercise it with impunity."
The court in McWilliams said that, "It is not necessary for us to decide whether petitioner or respondent initially had the right-of-way under the provisions of these statutes, because a statutory right-of-way rule is not absolute but relative, and is subject to the qualification that a person entitled to claim such right will exercise it with proper regard for the safety of himself and others. See Lewis v. Martin, Tex.Civ.App., 120 S.W.2d 910 (wr. ref.). If the driver who is under the statutory duty to yield the right-of-way fails to do so, the exercise of ordinary care may require the operator of the other vehicle to yield."
The Supreme Court has held in Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273 (1958), that even though a Plaintiff is not required to anticipate the commission of an unlawful or negligent act, he is not allowed to simply close his eyes with regard to circumstances around him. In this regard see Lewis v. Martin, 120 S.W.2d 910 (Tex.Civ.App. 1938, writ ref.); Intges v. Dunn, 311 S.W.2d 877 (Tex.Civ.App. 1958, writ ref. n.r.e.). It is also elementary that both negligence as well as contributory negligence may be inferred from the circumstances surrounding an event, so that it is not necessary to prove these elements by positive and direct testimony.
She thought she could cross the highway safely because Appellant was supposed to stop the car she was driving before she entered the intersection of the highway because of the "stop sign." Appellee Judkins was not, however, required to foresee the forthcoming negligence of the Appellant. McWilliams v. Muse, (1957), 157 Tex. 109, 300 S.W.2d 643; Lewis v. Martin, Tex.Civ.App. (1938), 120 S.W.2d 910, writ refused. It was Appellee Judkins" duty to reasonably understand what a prudent person, who knows and understands the rules and laws of right-of-way, must do under the circumstances.
Of course, the fact that the driver of appellee had the right of way did not relieve her from the exercise of such care as an ordinarily prudent person would exercise under the same or similar circumstances. McWilliams v. Muse, 157 Tex. 109, 300 S.W.2d 643; Lynch v. Ricketts, 158 Tex. 487, 314 S.W.2d 273; Lewis v. Martin, Tex.Civ.App., 120 S.W.2d 910, wr. ref. The trial court recognized this rule of law and submitted such issues of contributory negligence as he deemed called for by the evidence
Many Texas cases have held that ordinarily it is for the jury to decide under the circumstances of the case whether the driver kept such a lookout as a person of ordinary prudence in the exercise of ordinary care would have kept under the same or similar circumstances. Lewis v. Martin, Tex.Civ.App., 120 S.W.2d 910, writ ref.; Intges v. Dunn, Tex.Civ.App., 311 S.W.2d 877, writ ref., n.r.e .; Watts v. Dallas Railway Terminal Co., Tex.Civ.App., 279 S.W.2d 400, writ ref., n.r.e.; Edson v. Perry-Foley Funeral Home, Tex.Civ.App., 132 S.W.2d 282, err. dism., judgm. cor.; Tidy Didy Wash, Inc. v. Barnett, Tex.Civ.App., 246 S.W.2d 303, err. ref., n.r.e.; Henderson v. Smith, Tex.Civ.App., 354 S.W.2d 429, n.w.h.; Texas Pacific Ry. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332.
We will not go into detail to what facts were proved. The jury findings on these issues are binding and supported by the great weight and preponderance of the evidence. Benoit v. Wilson, Tex.Sp.Ct. (1951), 150 Tex. 273, 239 S.W.2d 792; Lewis v. Martin, Tex.Civ.App. (1938), 120 S.W.2d 910, wr. r.; Cronk v. J. G. Pegues Motor Co., Ct.Civ.App. (1943), 167 S.W.2d 254, W.R., W.O.M. Since the jury found appellant guilty of actionable negligence, it was not under any duty to find that the appellant had suffered any amount of damages for injuries. That is what appellant complains about as to the jury's answer to Special Issue No. 10. The points are overruled.