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“The pedestrian had no idea which direction to go, so I ran him over.” This excuse, often cited as one of the worst a driver has listed on an insurance claim form, raises a serious question: What are the duties of a driver to a pedestrian in a situation where the driver has the legal right of way?
Consider, for example, a case in which a pedestrian is run over by a car while trying to cross a street at a location where there is no crosswalk, even though a crosswalk was available just 50 yards down the road. Massachusetts regulations are clear that the driver has the right of way at that location, stating:
Whenever there is … a marked crosswalk within 300 feet of a pedestrian, no such pedestrian shall cross a … roadway except within … a marked crosswalk…
and
Every pedestrian crossing a roadway in an urban area at any point other than within a marked crosswalk shall yield the right of way to all vehicles upon the roadway.
However, the mere fact that a vehicle has the right of way does not give its driver the right to abandon due care and run down a pedestrian in the road. Regulations concerning the operation of vehicles provide that the foregoing right of way rules,
shall in no way abrogate the provisions of M.G.L. c. 90, §§14 and 14A …. Furthermore, notwithstanding the provisions of 720 CMR 9.00 every operator of a vehicle shall exercise due care to avoid colliding with any pedestrian upon the roadway … and shall exercise proper precautions which may become necessary for safe operation.
Among the provisions of c. 90 §14 are the requirements that,
upon approaching a pedestrian who is upon the traveled part of any way and not upon the sidewalk, every person operating a motor vehicle shall slow down. The person operating a motor vehicle on any … curve or a corner in said way where his view is obstructed shall slow down ….
Thus, even where the pedestrian lacks the right of way, the driver still has a general duty of due care and a specific duty to slow down for pedestrians and when taking a corner.
Massachusetts case law confirms that even a driver with the right of way has a duty to act reasonably and with due care, and can be held liable for negligence if he fails to do so. According to the Supreme Judicial Court, “even if the driver was entitled to the right of way under the statute, this right is not absolute and cannot absolve an operator of the duty to use due care. Possession of the right of way is therefore only one factor for the jury to take into account in determining whether an operator performed his duty of due care or was negligent.” That court has also held that even driver obeying orders of traffic officer still has duty to exercise due care for safety of pedestrians.
Thus, regardless of the who has the right of way, a driver must always act reasonably and exercise due care, taking into account the possibility that a pedestrian may appear anywhere in the road at any time.
