Pedestrians, Crosswalks and the Duty To Yield The Right of Way

While Pedestrians are allowed to cross streets in a crosswalk the right is not absolute.  One limitation in section 179 of the BC Motor Vehicle Act addresses pedestrians walking in front of a moving vehicle “that is so close it is impracticable for the driver to yield the right of way“.  In these circumstances a Pedestrian could be faulted for a resulting collision even if they would otherwise have the right of way.  Reasons for judgement were released yesterday by the BC Supreme Court, Nelson Registry, considering this obligation in a personal injury lawsuit.
In yesterday’s case (Cairney v. Miller) the Plaintiff was injured in a 2009 collision.  The Plaintiff was crossing in a marked cross-walk in Nelson, BC, when he was struck by the Defendant.  As the Defendant was driving she “slowed down to look for a parking spot when she suddenly felt a bump on the left side of her car.”  The Defendant failed to see the Plaintiff and the Court ultimately found the Defendant at fault.
The Defendant went on to argue that the Plaintiff should be held partially at fault because he should have realized she was not yielding the right of way.  Mr. Justice McEwan rejected this argument and provided the following reasons:
[25] Given Mr. Thompson’s evidence, which I accept, the plaintiff was visible in the crosswalk when the defendant’s vehicle crested the hill and entered the intersection. I cannot accept that poor lighting or dark clothing had anything to do with what happened and must infer that the defendant was not paying sufficient attention in the circumstances. The plaintiff did nothing sudden or unusual to cause the collision. He was simply established in the crosswalk while the defendant’s car was approaching.

[26] Mr. Thompson’s evidence differs from that of both the plaintiff and the defendant with respect to speed. Witnesses often differ on the characterization of such matters, and both the plaintiff and the defendant agree that she was proceeding slowly, a factor in the plaintiff’s calculation that he believed the defendant was going to stop.

[27] This is difficult to reconcile with Mr. Thompson’s immediate reaction that there was going to be a collision between the plaintiff and the defendant’s vehicle. The effect of Mr. Thompson’s evidence is that, to him, the defendant’s vehicle appeared to be an immediate and obvious hazard to the plaintiff, because it was going too fast.

[28] I have carefully considered whether the plaintiff’s failure to apprehend that the defendant was not going to yield to him, engaged an obligation to avoid injury to himself that modified his right to the right of way (See Feng v. Graham (1988), 25 B.C.L.R. (2d) 116 (C.A.), cited in Dionne at para. 23 above).

[29] The evidence, taken as a whole, however, suggests that the plaintiff assumed that the defendant would stop in circumstances when it was reasonable to expect she would see him. It is often possible to say in retrospect that had a party paid more attention, he or she might have avoided the collision. In the circumstances here, I think this would impose a standard of more than usual diligence and watchfulness on the plaintiff at odds with his right to be in the crosswalk and the presumption that the plaintiff would abide by the rules of the road.

[30] Accordingly, I find the defendant fully liable for the collision.