The circumstances of this case are more consistent with those in Claydon v. Insurance Corp. of British Columbia, 2009 BCSC 1077, [2009] B.C.J. No. 1594 [Claydon], where the court found the plaintiff pedestrian 25% contributorily negligent. In Claydon, it was also dark and the plaintiff wore dark clothing, although there was good lighting in all directions. The court found the defendant driver negligent for driving at an excessive speed, failing to signal her intention to turn right, failing to anticipate pedestrians crossing the street (despite that they were crossing outside of the unmarked crosswalk), and “failing to yield to pedestrians on the street when they were there to be seen.” (at para. 25). The plaintiff, however, was found 25% contributorily negligent for crossing outside of the crosswalk where the effect was to make herself less visible to right-turning vehicles and for not keeping a better lookout for traffic.
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