¶1dissenting.
¶2Finding myself in disagreement with the other members of the court, I would like to record my respectful dissent. I agree with the majority’s holding that points of error one, three, four and six should be overruled; therefore, I will discuss only points of error two and five.
¶3Points of error two and five concern the court’s denial of requested special issues. In point of error two, appellant asserts that the trial court erred in refusing to submit a special issue on Adele Goldstein’s failure to keep a proper look out. Point of error five claims that the trial court erred in failing to submit appellant’s requested special issue on comparative negligence. I agree with these contentions.
¶4The evidence related to whether Adele Goldstein failed to keep a proper look out was conflicting. Miss Goldstein testified that when she first noticed appellant’s car in the lane to her immediate right it had only cleared about two-thirds (2/3) of her car and the left blinker was on. She said that at that time he was trying to move into her lane. To avoid a collision, she simultaneously applied her brakes and went into the emergency lane, hitting the guardrail. Her car never came into contact with appellant’s car.
¶5She once said that he would have hit her if she had not moved into the emergency lane.
[Miss Goldstein] he was just about to come into my lane and in order to avoid him coming into my lane, had I not, he would have definitely hit me ...”
[Miss Goldstein’s attorney] “Do you remember whether or not he came into your lane and you went over and hit the guardrail, did you notice whether or not he got into the lefthand lane?”
[Miss Goldstein] “It would be hard to be sure. It seems like he tried to get in and I guess after realizing what was happening, he went back in the lane he was in originally.”
¶6Later, she said that she did not know if appellant’s car actually came into her lane.
[Defense Counsel] “Did he get into your lane?”
[Miss Goldstein] “Like I said before I don’t know if he actually did. He must have gone or swerved immediately back to the lane he was in. I mean we were on the emergency lane and hit the guardrail. So I don’t know exactly what happened.”
¶7Robert Goldstein, who was seated in the front seat on the passenger side of the car driven by Adele Goldstein, testified that when he first saw appellant’s car to his right, it almost immediately came into the lane in which the Goldsteins were travel-ling. He said that about one-half of appellant’s car was in their lane before his sister took evasive action. Robert’s testimony was that he did not see appellant’s left blinker flashing.
¶8Appellant testified that the car he was driving had been stolen from him and he had gone to pick it up that afternoon. He had no problems with the car until he got *544on Loop 610. Once he got on the Loop, however, his car’s electrical system failed; the motor stopped; and the signals would not work. Appellant said he saw the Gold-stein car through his rear view mirror and it was approaching the rear of his car in the lane to his left. He said he was wiggling his arm out the window and pointing to indicate that he needed to get to the emergency lane, but that Miss Goldstein would not let him pull into her lane. Adele and Robert Goldstein, however, testified that they did not see appellant waving his arm out the window.
¶9Appellant testified that he never entered appellee’s lane, and that she passed him, hit a divider in the emergency lane, lost control of her car and collided with the guardrail. Appellant drove one-fourth mile further, negotiated his way through the lanes of traffic to the right shoulder, and abandoned his car. Because the evidence was conflicting on the issue of look out, the jury should have received appellant’s requested special issue on whether Adele Goldstein failed to keep a proper lookout. See Fitzgerald v. Russ Mitchell Constructors, Inc., 423 S.W.2d 189, 192 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ ref’d n.r.e.). Ordinarily, proper lookout is a question for the jury. Texas & Pacific R.R. Co. v. Day, 145 Tex. 277, 197 S.W.2d 332 (1946); Berlanga v. Elizondo, 463 S.W.2d 757 (Tex.Civ.App.—San Antonio 1971, writ ref'd n.r.e.).
¶10In its opinion, the majority states:
The majority would be content to dispose of appellant’s point on the basis that under the facts of this case Adele did not owe a duty to appellant to let him enter her lane of traffic. Negligence is constituted only through failure to discharge a duty. If she owed no duty to appellant, we fail to see how, on the facts of this case she could be negligent in failure to see his hand signal, [citation omitted]
¶11I disagree. The issue in this case is not whether Adele saw appellant’s hand signals. That is only one factor in many which constitutes a conflict in the evidence on the issue of her lookout. The majority would have us believe that if a driver stays in his own lane, he has no duty to be aware of the cars in adjoining lanes. “Although a motorist is not required to anticipate negligent or unlawful conduct on the part of others, 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.” Berlanga, 463 S.W.2d at 759. “Summed up broadly, public policy imposes a duty upon a motorist when operating a vehicle on a public street to be alert and on watch for all that affects safe operation and is normally visible to him in the exercise of due care.” Hatcher v. Mewbourn, 457 S.W.2d 151, 153 (Tex.Civ.App.—Texarkana 1970, writ ref’d n.r.e.).
¶12In Hatcher, two vehicles were travelling in the same direction in adjoining lanes. Just prior to the collision, Mewbourn was overtaking Hatcher. Mewbourn had noticed Hatcher’s truck for some time prior to drawing abreast of it. He said that he had drawn up nearly even with the truck and that his front bumper was within four to six feet of being even with the truck’s front bumper. Hatcher denied that he saw Mewbourn’s vehicle at any time. Both claimed that their attention was so directed at the time of and just prior to the collision that neither actually saw the other’s vehicle or was aware of its position on the street. The jury found that each failed to maintain a proper lookout.
¶13In fact, one has a duty to keep a proper lookout even in a situation in which he has the right-of-way at an intersection. Berlanga, 463 S.W.2d at 760; Strawder v. Pantoja, 372 S.W.2d 246 (Tex.Civ.App.—Houston 1963, writ ref’d n.r.e.).
¶14In our case, the jury could have reasonably drawn the inference that Adele Gold-stein failed to keep a proper lookout. The record does not show that as a matter of law Miss Goldstein owed no duty to appellant. I would sustain point of error two.
¶15Point of error five asserts the trial court erred in refusing to submit appellant’s requested special issue on comparative negli*545gence to the jury. I agree. If, as appellant contends, he never entered Adele Gold-stein’s lane, the collision might have been due to Miss Goldstein’s negligence. Further, each party’s negligence could have been partially responsible for the accident. When the evidence raises the possibility that both parties could have been negligent, the jury is to determine what percentage of the incident was due to each party’s negligence. Tex.R.Civ.P. 277. I would sustain point of error five.
¶16Accordingly, I would reverse the judgment of the trial court and remand this cause for proceedings consistent with this opinion.