When a pedestrian is waiting beside a crosswalk, does a driver have to anticipate that the person may step onto the road? What if the pedestrian does not have the right of way, or the crosswalk's flashing lights have not been activated?
These questions were considered by the British Columbia Provincial Court in R. v. Machura, 2026 BCPC 82. The case followed a fatal collision at a pedestrian-activated crosswalk near Enderby on Canada Day 2023. The decision examines the boundaries of a crosswalk, the respective responsibilities of drivers and pedestrians, and the duty of care owed to pedestrians even when they do not have the right of way.
The collision
Shortly before noon on July 1, 2023, Marvyn Machura was driving north on Highway 97A approaching Enderby. Traffic was moderate to heavy, and he was travelling approximately 40 to 50 km/h, below the posted speed limit.
As he approached a pedestrian-activated crosswalk, a man, Mr. Jones, appeared to make two motions toward the activation button. He then waited for several seconds before running onto the highway. Machura did not see him before the collision. His vehicle struck Jones, who died as a result of his injuries.
Machura was charged with driving without due care and attention under section 144(1)(a) of the Motor Vehicle Act.
Where does a crosswalk begin?
One of the important questions in the case was whether Jones was already in the crosswalk while he was waiting beside the activation pole.
The court examined the statutory definition of a crosswalk. In this location, the crosswalk was the portion of the roadway between the lateral lines marking its boundaries. The area where Jones had been waiting was on the boulevard, outside the roadway. A small asphalt area there was part of the sidewalk, not the crosswalk.
This distinction mattered because the pedestrian's rights and obligations under section 179 of the Motor Vehicle Act depend, in part, on whether the pedestrian is crossing the roadway or is approaching it from a place of safety.
Who had the right of way?
Where traffic control signals are not in place or are not operating, section 179(1) requires a driver to yield to a pedestrian who is crossing the roadway in a crosswalk and is on the half of the highway on which the vehicle is travelling, or who is approaching so closely from the other half of the highway as to be in danger.
Section 179(2), however, places an obligation on pedestrians. A pedestrian must not leave a curb or other place of safety and walk or run into the path of a vehicle that is so close that it is impracticable for the driver to yield.
The court concluded that Jones was still in a place of safety while on the boulevard or sidewalk. Under section 179(2), he could not leave that place of safety and enter the path of Machura's vehicle when it was so close that yielding was impracticable. When Jones stepped over the lateral line onto the roadway, Machura had no time to react before the collision.
That finding did not end the matter. The court also considered whether Machura had fulfilled his broader duty to exercise due care to avoid colliding with a pedestrian.
A driver's duty of care
Section 181 of the Motor Vehicle Act requires a driver to exercise due care to avoid colliding with a pedestrian who is on a highway. The court also considered the common-law duty of care that applies to drivers.
The judge explained that having the right of way does not relieve a driver of the responsibility to exercise care for their own safety and the safety of others. A driver should, for example, be alert for a child who might chase a ball onto the road. Similarly, a pedestrian standing on a boulevard beside a crosswalk may be an indication that the person intends to cross.
There is a practical limit to this obligation. A driver cannot reasonably be expected to anticipate a pedestrian entering the roadway before that person is visible, or there is some other indication of a potential hazard. What a driver could reasonably see and anticipate in the circumstances was central to the court's decision.
What about the flashing yellow lights?
The crosswalk was equipped with pedestrian-activated flashing yellow lights. The court considered whether the lights had been activated before the collision.
The evidence did not establish beyond a reasonable doubt that they were flashing. Witness evidence and testing during a re-enactment indicated that the lights would have been visible if they had been activated.
Section 131(4) of the Motor Vehicle Act addresses flashing yellow lights at locations other than intersections. When these lights are flashing, drivers may proceed only with caution and must yield to pedestrians in the roadway or on a crosswalk in the vicinity. Pedestrians may proceed across the roadway with caution.
However, the absence of flashing lights did not remove the driver's general duty of care. The judge recognized that a pedestrian waiting beside a crosswalk could still be a potential hazard, whether or not the lights were operating.
The additional duty toward vulnerable road users
The Crown also argued that section 144.1 of the Motor Vehicle Act, which imposes an additional duty on drivers in relation to vulnerable road users using a highway, required Machura to take additional precautions. This provision came into force on June 3, 2024, almost a year after the collision.
In considering the Crown's argument, the judge concluded that the provision's additional duty applied to pedestrians actually using the highway. It did not extend to a pedestrian who was still waiting on a sidewalk or boulevard and had not yet entered the roadway.
This was a finding about the wording and application of that particular provision. It did not eliminate the driver's separate duty of care toward someone waiting near the road.
Could the driver have seen the pedestrian?
A central issue was whether Jones was visible to Machura in sufficient time for him to avoid the collision.
Jones was wearing black clothing and was standing against a dark background near a bush. Evidence from witnesses travelling northbound indicated that he was not readily visible until it was too late. The court considered stopping-distance calculations suggesting that Machura might have been able to stop if Jones had been visible from a sufficient distance.
However, the judge could not reject the testimony that Jones was not visible until too late. The Crown had to prove beyond a reasonable doubt that Machura could have seen Jones in time to avoid the collision and had failed to drive as a reasonable and prudent driver would have driven.
The judge found that the Crown had not met that burden.
The decision
Machura was acquitted. The judge also considered the alternative question of due diligence and found that Machura had taken all reasonable steps in the circumstances. His familiarity with the highway, his lookout, his reduced speed, the lighting and background conditions, and the surrounding traffic were all considered.
The decision does not establish that a driver is free of responsibility whenever a pedestrian steps onto the road too close for the vehicle to stop. Nor does it mean that a driver must always be able to anticipate that someone waiting beside a crosswalk will suddenly enter the roadway.
It demonstrates instead that the pedestrian's obligation to yield and the driver's duty of care are separate considerations. The circumstances, including what the driver could reasonably see and anticipate, matter.
What can drivers and pedestrians take from this decision?
Drivers: Do not treat the right of way as a substitute for a proper lookout. A person waiting beside a crosswalk may intend to cross, even if the flashing lights have not been activated. Watch for signs of that intention and be prepared to respond to a developing hazard. At the same time, the law does not require a driver to avoid a collision that could not reasonably have been anticipated or prevented.
Pedestrians: Do not assume that a driver has seen you or can stop simply because you are at a crosswalk. At a pedestrian-activated crossing, use the activation button and wait for traffic to stop before entering the roadway. Do not run into the path of a vehicle that is too close to yield.
The central lesson of R. v. Machura is that road users have responsibilities toward one another. Having the right of way does not remove the need for care, and being required to yield does not mean that the other road user can ignore an obvious hazard.
Learn More
- Duty of Care Between Driver and Pedestrian – A related court decision examining the responsibilities of drivers and pedestrians when a pedestrian crosses outside a crosswalk.
- Flashing Yellow Pedestrian Crossing Lights – The rules governing pedestrian-activated flashing yellow lights and the responsibilities of drivers and pedestrians at these crossings.
- How to Use a Crosswalk – Practical advice for pedestrians, including how to make their intention to cross clear to approaching drivers.
- Pedestrian Close Call – A discussion of pedestrian right of way and the importance of making sure it is safe to cross before entering the roadway.
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