Pedestrians/Cyclists
Pedestrians have the same right to use roads as the drivers of motor vehicles. At the same time each is under a duty to exercise that right in a reasonable manner. Each is required to exercise the right in such a manner as to not causing harm to the other. Whereas the rule of the road requires a driver to keep his motor vehicle to the left of the centre of the road, a pedestrian walking on a road without a sidewalk or footpath abutting the road is required to walk as near as is practical to the edge of the road on his right hand side and to face oncoming traffic, thereby reducing the risk of being injured.
Walking along a road
Whenever a sidewalk or footpath abuts on the roadway of a public road a pedestrian shall not walk on such roadway except for the purpose of crossing from one side of such roadway to the other or for some other sufficient reason.
Once a pedestrian is:
”Upon a carriageway, whether crossing it or walking along or standing on it, a pedestrian must, of course, be alert and keep a keen lookout for vehicles on the road or for vehicles which might reasonably be expected to enter upon it.
But a pedestrian merely standing alongside or on the very edge of a carriageway, awaiting an opportune moment to cross it, is not required to anticipate or guard against the remotely possible danger that a vehicle might strike him at that point, unless there are special circumstances showing the need to care.
Crossing a Road
Pedestrian’s Duty
A pedestrian who intends crossing a road should do so at an opportune moment and he must exercise reasonable care. He must use his senses to ascertain whether any motor vehicles are approaching. He should keep a proper lookout; he should acquaint himself with the vicinity and scan the road to ascertain whether any motor vehicle on the road may be an actual or potential risk to his safety, and take appropriate precautions to avoid an accident.
Usually a pedestrian will look left and right before entering the road. Once he reaches the centre of the road he should devote his attention to motor vehicles approaching from his left.
(Mazibuko v SANTAM 1982 (3) SA 125 (A)
If a pedestrian’s clothes are dark and visibility is poor, as a reasonable man, he should bear this in mind when using a street.
(Rodriquez v SA Mutual and General Assurance 1981 (2) SA 125 (A)
A pedestrian walking on a roadway used by vehicles ought to be reminded that the greater the difficulties of the driver, owing to lighting of other conditions the greater the care that must be exercised by pedestrian to protect himself from injury.
When the pedestrian steps onto the street next to some object like a bus which obstructs the view, he must know there is part of the road upon which vehicles may be traveling which he cannot see and his act of stepping onto the street is invisible to the driver of the oncoming vehicle because of the obstruction the greater care the pedestrian must take.
A reasonable prudent pedestrian should not cross a road when he exposes himself to the reasonable risk of collision with passing vehicles.
Driver’s Duty
A driver is required to exercise reasonable care and vigilance not only towards a pedestrian he sees, or ought reasonable to see, on or near the road; he is obliged to exercise the same reasonable care and vigilance towards an unseen pedestrian whose presence he reasonably should foresee or anticipate, for example, in the proximity of a school or of a passenger bus.
(Santam v Nkosi 1978 (2) SA 784 (A)
While keeping a proper lookout a driver is required to drive at a reasonable speed. A driver is also required to give proper warning of his vehicle’s approach. The usual method of doing so is to give and audible warning by sounding a warning device, the most common being a hooter. There is no general rules that the driver is obliged to hoot whenever he sees or becomes aware of a pedestrian near, on, or crossing the road.
(Coetzee v Shield Insurance 1980 (4) SA 621 (C)
Between sunset and sunrise or at any other time when, owing to insufficient light or unfavorable weather conditions, persons and vehicles upon the road are not clearly discernable within a reasonable distance. The lighted headlamps of a motor vehicle serve as a warning of its presence. At the same time a prudent driver will flash the vehicles headlamps to alert the pedestrian of its presence.
A driver is entitled to assume that the pedestrian will not suddenly, without warning, recklessly expose himself and others to danger. A driver who sees a pedestrian exposing himself to being knocked down should take all reasonable steps to avoid colliding with the pedestrian.
(Davies v Crossling 1935 WLD 107)
At all times, and particularly after dark, a driver should regulate the speed of his motor vehicle so as to be able to stop within his range of vision. A collision after dark between a motor vehicle and a pedestrian brings this rule into play. In such a situation not infrequently the driver failed to see the pedestrian and/or the pedestrian failed to see the motor vehicle. The duty of a driver and a pedestrian are code-relative. It is essential for a party alleging negligence on the part of the driver to proof timeous visibility of the pedestrian, as in the case of collision between a vehicle and a pedestrian in daytime.
(Cromhout & Dewing v Green 1942 EDL 238)
Children
A driver has a duty to exercise great vigilance and care when he drives in proximity of young children.
(Jones v Santam 1965 (2) SA 542 (A)
This does not mean that traffic is required to stop or reduce speed to a snail’s pace as soon as young children appear in the vicinity of the road.
The following principals apply in our law:
- Children under the age of 7 is presumed to be under doli incapax. This presumption is irrefutable. It follows that a child under 7 cannot be held liable for his conduct. A defendant in an action for damages cannot plead a child’s contributory negligence nor claim an apportionment of damages.
- There is a rebut table presumption that a child between 7 and 14 is culpea incapax.
- It is accepted that a child above the age of 14 is culpae capax.
The test for negligence is a simple objective test. Simply looking at the objective facts of the case and deciding whether there was any negligence in the particular instance. With regard to the culpable liability of a child, a subjective investigation of the child’s demeanor must be held to ascertain whether he in fact could be held liable. This is very important distinction which you need to make in case under consideration.
The criterium for establishing negligence is, even in the case of a child, the standard of the diligence pather familias. It is a standard which is always objective and varies only in regard to the circumstances of a particular case. Once it is established by application of the standard of the reasonable man that the child has conducted “negligently”, it becomes necessary to determine whether the child is culpea capax. The particular child’s capacity or accountability for his carelessness must be determined on the subject basis.
The factors which are to be particularly taken into account are the child’s intelligence, and his ability, based on knowledge and experience, to restrain irrational impulses in the situation under consideration and experience to restrain irrational impulses in the situation under consideration: “if it is decided in particular case that a child under the puberty is old enough to have and does have the intelligence to appreciate a particular danger to be avoided, that he has knowledge of how to avoid it or of the precautions to be taken against it, and further that he is sufficiently matured or developed so as to be able to control irrational or impulsive acts, then it be proper to hold that a failure to control himself or to tax ordinary precautions against the danger in question is negligent conduct on his part.”
(Jones v Santam 1965 (2) SA 542(A)
The test for negligence is an objective test and the test to ascertain whether a child is negligent is a subjective investigation.
The fact that a child is in the charge or company of an adult may be a material factor in determining the degree of care which a driver should exercise towards that child.
If there is good reason for the motorist to believe that the adult is in a position effectively to prevent the children form exposing themselves to danger, it might will be that duty of care is the same as if the adult were present. On the other hand, if the careful motorist is reasonably entitled to assume that the adult can and will exercise such effective control, it may well be that he is excused from exercising the special degree of care.
If the driver of a motor vehicle observes ahead of him a child in the immediate charge of an adult who is, to the knowledge of the driver, aware of the vehicle approach and who is, to all appearances, is able to effectively restrain the child from conduct dangerous to itself, the driver is entitled to expect that the custodian will take proper steps to ensure the safety of the child.
(Cakata v Provincial Insurance 1963 (2) SA 607 (D). Levy v Rondalia 1971 (2) SA 598 (A)
Pedestrian Crossing
Robot controlled light signals are a major feature of contemporary vehicular and pedestrian control. Where a pedestrian crossing is situated in conjunction with a robot a pedestrian may not enter except in accordance with the indications of the robot a prescribed. The driver of a vehicle at a pedestrian crossing showing a green man, must yield the right of way, slowing down or stopping if needed be so to yield, to a pedestrian crossing the roadway within a pedestrian crossing when the pedestrian is upon the half of the roadway upon which the vehicle is traveling, or when the pedestrian is approaching so closely from the opposite half of the road as to be in danger.
No pedestrian may suddenly enter a pedestrian crossing and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield.
The pedestrian has the duty to exercise reasonable care when crossing a road. The duty of a pedestrian who has a green man light signal in his favour is comparable to the duty of the driver entering a robot controlled intersection with a green light in his favour.