Pedestrian Failing to Yield

Published by DriveSmartBC –
Case Law
Pedestrians

image of pedestrian crossing signShan Khan was a pedestrian trying to cross 152nd Street at 81st Avenue in Surrey. She crossed to the median barrier dividing the four lanes of traffic and waited for the approaching vehicles to stop. When the vehicle using the lane nearest to her did stop, she began to cross. Unfortunately the driver behind that vehicle did not stop, changed lanes to pass it and struck Ms. Khan.

Following an investigation police Ms. Khan was issued a traffic ticket for jaywalking or not being in a crosswalk, failing to yield to traffic.

Crossing at other than crosswalk

180 When a pedestrian is crossing a highway at a point not in a crosswalk, the pedestrian must yield the right of way to a vehicle.

Judicial Justice Mayner examined the circumstances and suggested that three questions needed to be examined:

Intersection With Unmarked Crosswalk

The justice reviewed the definitions of intersection and crosswalk and the case of Neufeld v McCrae and decided that this was an intersection with an unmarked crosswalk present.

Was the Pedestrian in the Unmarked Crosswalk

This was more difficult for the justice to resolve due to conflicting evidence given by police and witnesses. He ultimately decided that Ms. Khan was using the unmarked crosswalk.

Did the Pedestrian Fail to Yield

[61]        I find Ms. Khan did not jaywalk or run across 152nd Street with complete disregard for the traffic travelling northbound.  She was taking all reasonable steps to avoid being hit while crossing in an unmarked crosswalk at 81st Avenue and 152nd Street.  She had already crossed the southbound lanes of 152nd Street in the rain and darkness and was waiting patiently on the median for traffic to stop or clear so she could continue her crossing of northbound traffic.  When she saw Ms. Kim’s vehicle stop for her and wait, she then made the correct assumption that all other drivers approaching from behind Ms. Kim’s vehicle would see her also and stop for her to cross.  Unfortunately Mr. Bottomley did not and instead changed lanes behind Ms. Kim’s stopped vehicle without determining why she was stopped and continued part way through the intersection and collided with Ms. Khan in the curb lane.

[62]        I find Ms. Khan did what any reasonable pedestrian would have done and I find her not guilty of Sec. 180 of the Motor Vehicle Act and dismiss this case.

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Comments

Published by Frances.P (not verified) – 2017/09/24 - 11:23 | Permalink

I read most of the judgment. Bizarre that people did not think a T-intersection was an intersection. The lawyer must have felt great after slapping down the Crown's case with multiple witnesses like that.

Greater power requires greater responsibility. Someone stuck on the median at an intersection, of course you stop to let the pass. Stuck on a median in the middle of nowhere - rather not stop in the middle of the highway. The person will have to wait til it's clear. And of course you don't pass on the right at high speed. I guess it's wrong to sneak around the right in all cases, but I have done it. Slowly and cautiously in case there is a pedestrian or even some vehicle passing through.

Published by my5cents – 2017/09/24 - 11:25 | Permalink

Actually many think that a crosswalk must me marked to be a crosswalk, when actually an unmarked crosswalk requires the driver of a vehicle to yield the right of way to a pedestrian exactly the same as a marked crosswalk does.  Be the intersection a "T" intersection of the intersection of two through streets.

Frances.P, has interpreted passing on the right, incorrectly, as many do. "And of course you don't pass on the right at high speed. I guess it's wrong to sneak around the right in all cases"

At the intersection in question the highway (street) was a "laned roadway" and thus there is no restriction placed on a vehicle passing on the right.  The vehicle that struck the pedestrian passed a vehicle that was "slowing down or stopped at a crosswalk or at an intersection to permit a pedestrian to cross".

"Passing on the Right" is regulated in Section 158 of the Motor Vehicle Act, and it basically restricts passing on the right on a street that does not have two or more lanes in the direction the vehicles are travelling.

If one is travelling on a "laned roadway" (one that has more than one marked lane in the direction being travelled), there is absolutely no restriction on passing a vehicle by travelling in the available lane on the right of the passed vehicle.

In the case at hand, the driver of the vehicle that struck the pedestrian should have been issued the ticket, not the pedestrian.

The pedestrian was victimized twice, getting hit and getting ticketed wrongly.

Thanks for clarification on passing on the right. In my case, it would be on a road with two lanes on my side. At the same time, if someone stops suddenly, I'm not going to fly around them because I am going to be careful.

Published by The Wise Driver – 2017/09/24 - 11:27 | Permalink

Two weeks ago I witnessed a crash between a car and a motorcycle which came about in part because a pedestrian crossed a T intersection in an unmarked crosswalk at Smith Avenue and Price Street in Burnaby.

When I gave the attending RCMP officer my statement of what I had observed he announced to me that the pedestrian shouldn't have been jaywalking. I told him it was an unmarked crosswalk and he looked at me straight in the face and said there is no such thing.

Being a long time driving instructor and all, I felt the need to educate him on the realities of the Motor Vehicle Act here in BC. I hope ICBC phones and asks what I saw.

By the way the motoryclist pulled out and passed on the left to get around the driver who had stopped for the pedestrian ahead of him on the oher side of the intersection and a new driver coming out of her driveway thought it was the perfect opportunity to make a left tuen. OY!!!

.... how little ICBC considers the opinion of the police in determining liability.  So even if the police think the pedestrian is in the wrong, ICBC will get the liability correct.

I suspect the reason some RCMP don't seem to have the knowledge you would think they should have regarding the BC MVA is the fact they are trained for the entire country and don't get much specialized training for the various provincial statutes for the province they are ultimately sent to.

Interesting scenario as to the liability between the vehicle that passed the vehicle stopped for the pedestrian and the motorcycle.

... these thoughts.

Various knowledgeable people have made remarks about the existence of unmarked crosswalks - as a Driving Instructor, I'm pretty sure that I've made it clear to every one of my students (of all ages and backgrounds) that the majority of intersections in this province are in fact unmarked, but as real as real can be. Usually, this is an eye opener.

But let's consider where this ignorance of the facts comes from, and recognize that the vast majority of the driving public wouldn't actually know what the Motor Vehicle Act was if it stood up and waved at them.

Commence with the fundamental guide published by ICBC, 'Learn to Drive Smart' - Chapter 6 (Sharing the Road) seems to be the relevant section. Anybody see anything there (or elsewhere in the guide) that explains this - whether the reader be a potential pedestrian, or a potential driver? And keep in mind that many drivers here obtained their original license, quite possibly in a different jurisdiction - and that includes a different country with quite different rules (something I was reminded of this week, driving for the first time in Ireland and also in England where I've driven on and off for years).

And even if drivers take an actual Road Test in BC (could be for any class of license), what are the chances that they will be in a situation where a potential conflict exists at an unmarked crosswalk with a live pedestrian eagerly waiting to cross? Minimal, I would say; the Examiner can't orchestrate the behaviour of everyone else.

Thus, we have abundant ignorance. Which can be exacerbated by police officers, who seem to automatically assume that they know what they're talking about, being as they're in a position of authority. Some of them have a real attitude problem, too.