Your Right to Cross the Street

By Kenneth Todd

Introduction

Prior to the promulgation of statutory right-of-way rules, the relationship between all road users was governed by common law. The courts ruled that no one had a superior right; all had equal and mutual rights to be exercised so as not to interfere unreasonably with the rights of others. Drivers had to be on the look-out for pedestrians and have their vehicle under such control that they could avoid a collision. Pedestrians were required not to cause unnecessary obstruction and use such care  for their own safety as a reasonable person would under the circumstances. Failure of the pedestrian to look out could, and still can, constitute contributory negligence and may bar recovery of damages in civil liability suits.
Between the turn of the century and the late 1920s, right-of-way rules were adopted throughout the USA to determine who had to give way to whom. It has generally been assumed that accidents will be avoided if the legally mandated rules of the road are strictly enforced and obeyed. Yet these rules had been issued without prior study of their consequences, and they resulted in irreconcilable contradictions between statutory and common law.
Contrary to the perception of the lawmakers, the courts, the police and the public alike, certain rules of the road provoke accidents when they diminish a road user's responsibilities and encourage reliance on the correct behavior of others. We need no statistical analysis to demonstrate that safety is jeopardized when two road users are on a collision course and the law encourages one of them to rely on the other to avoid the accident. Motorists and pedestrians have to compensate for right-of-way rules that give them unsafe directives, and defective laws may lead to unjust decisions in civil liability suits.
Pedestrians who put their faith in the law when crossing a street without looking put themselves at risk. Safety programs, like WALK ALERT, teach pedestrians to look out and avoid the dangers of relying on the law. However, defective laws should not have been adopted in the first place. It is one thing to advise pedestrians to be careful and yield to vehicles, but quite another to have a legal mandate that makes the motorist the innocent party in an accident and the pedestrian prima facie guilty for an error in judgment. Such laws should be repealed or replaced by laws that conform to the principles which originally governed the relationship between road users under common law.

How the Law Provokes Accidents

Traffic laws were made in the early days of the automobile when little was known about the effects the law was to have on traffic safety or efficiency. It was said 75 years ago that irresponsible traffic laws had eroded the pedestrians' rights and put them at the mercy of inattentive and reckless drivers.(1) Early traffic engineers copied railroad practice and designed the traffic system to promote elevated speeds on urban arterial streets.(2) The law favored the motorist, it failed to protect the pedestrian and it abandoned the idea of fair play for all.(3) Better observance of unwise traffic laws and their stricter enforcement are unlikely to lower the accident toll. Pedestrians and motorists have to compensate for unsafe directives they get from the law and from traffic controls conceived so many years ago.

1. Figure 1 shows a major street protected by stop signs. Major streets are designed for vehicles to travel with minimal interruption at relatively high speeds. Side street drivers must wait until it is safe to cross. To pedestrians, the law gives the opposite instruction. Their right-of-way on crosswalks encourages them to do what is forbidden to the side street driver: to get into the way of fast-moving traffic. Pedestrians who rely on their right-of-way get hit by drivers who fail to stop, believing that the major road was meant to let them travel without interference. Moreover, drivers may be reluctant to stop for fear of getting rear-ended.

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