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Driver not guilty in death of pedestrian

By Craig Campbell, Dundas Star News

 

 

The driver who struck 87-year-old Kitty MacLeod as she tried to cross Governor’s Road a cold, wet December morning just over a year ago said he never saw the woman until after the collision.

“I didn’t see her. She blended right into the road,” 45-year-old Paulo Mateus testified last Friday during his one day trial for Careless Driving. “As far as I know I was aware of my surroundings. I’ve gone over it a thousand times in my head the past year.”

Justice of the Peace Paul Welsh found Mateus not guilty of Careless Driving in a decision released Tuesday afternoon.

Mateus was driving westbound on Governor’s Road from his girlfriend’s apartment at 50 Governor’s Rd. He was on his way to work at his parent’s farm on Highway 5. It was shortly after 9 a.m. on December 2, 2012.

He said it was “misty” and “dewey” when he left the underground parking garage, and turned his windshield wipers on the lowest of three settings on his red Honda Civic.

Mateus turned left onto Governor’s Road, travelling towards the intersection with Overfield Street – where MacLeod was apparently starting to cross the road, moving north from St. Joseph’s Villa towards Governor’s Green apartment building.

Mateus said he was travelling between 40 and 50 Kilometers per hour in the 50 zone – accelerating towards the speed limit as he travelled the 174 metres police calculated it took to reach the point he hit MacLeod.

“I was looking straight ahead. I was paying attention to what was going on,” Mateus said. “It started to rain. I had to increase the speed of the wipers to slow.”

He testified he heard a bang a split second after switching his wipers to the second setting, thought someone had struck the site of his car and then noticed MacLeod outside his window.

“I got out so fast I swear I saw her falling,” Mateus said.

His lawyer, Steve Kim, argued Mateus is not guilty of Careless Driving because there is no evidence of “a lack of due care and attention. It’s my submission he did adjust his driving to the weather conditions. He made sure he had his wipers on mist setting, and increased it. That’s what a prudent driver would do under the circumstances.”

Kim suggested MacLeod’s dark clothing exacerbated the already dreary, foggy conditions that affected Mateus’ visibility.

He said the test of guilt is what a prudent driver should do under particular circumstances. Kim argued “we don’t drive under the assumption a jaywalker might come out.”

Crown attorney Lidia Narozniak argued the intersection of Governor’s and Overfield between the Villa and apartment is known as a fairly busy pedestrian area – one Mateus would have been familiar with having attended Highland Secondary School and driving the road on a regular, almost daily basis since.

“The position of the crown is indeed that he should have seen her. It’s an area where pedestrians can be expected,” Narozniak said. “The claim ‘I didn’t see her’ is proof of a lack of due care and attention and reason for conviction. The pedestrian should have been seen. He wasn’t paying attention.”

She noted in cross-examination court had heard MacLeod crossed at the same spot every morning to go visit her brother at the Villa.

“In fact, you might have encountered her before,” Narozniak told Mateus.

“Maybe,” he said.

“You’ve complained about fog, you’ve complained about rain – but none of these factors adjusted your driving.,..isn’t it possible you were focused elsewhere?”

Mateus insisted he was paying attention and was not distracted.

“There was nothing I could have done. I just did not see her.”

Detective-Constable Walter Niblock, a certified accident reconstruction investigator, testified Mateus “had at least six seconds he can slam on the brakes and he should be able to stop and avoid hitting her. He’d be able to stop.”

He suggested it wasn’t like a small object darting suddenly out onto the road in front of car – but a larger object, with a walker, some distance in front of the vehicle.

Niblock explained a series of measurements and calculations he made to determine Mateus had approximately 83 metres, driving at approximately 40 kilometres per hour, to notice MacLeod as she crossed the road with her walker.

“If anytime over the 174 metres he perceived her, he needed less than 14 metres to stop,” Niblock said. “Six seconds into her crossing, putting her at the middle of the road, he still had time to avoid her.”

He said there was no evidence of Mateus attempting to stop, or take other evasive action. It’s believed the car struck the woman’s walker first, leading to a fall and the head injury that caused her death.

Kim questioned some of the assumptions made in calculating the time it took for MacLeod to walk to point of impact, noting it assumes a constant walking speed.

 

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