Negligent bodily harm: Driver duties when approaching a pedestrian crossing with a central island and the arbitrary assessment of facts

Federal Supreme Court, 02.12.2026, 6B_389/2025

Facts

On December 9, 2021, at approximately 6:45 a.m., A.________ (the appellant) was driving her car and preparing to turn right after a pedestrian crossing. At that location, she struck B.________ (the respondent), a pedestrian who was crossing the road from left to right on said crossing. The victim sustained significant injuries (trimalleolar fracture and rib fractures) and filed a criminal complaint. Convicted of negligent bodily harm (Art. 125 para. 1 SCC) by the Baden District Court, and subsequently by the Aargau Cantonal Court, the driver was sentenced to a suspended fine of 20 daily rates of 40 francs each. She has filed a criminal appeal with the Federal Supreme Court, requesting her acquittal and the dismissal of the proceedings. She primarily alleges a violation of the principle of the indictment and an arbitrary finding of facts by the lower court.

Law

The Federal Supreme Court reiterates the legal principles relevant to resolving the dispute:

1. The principle of the indictment (Art. 9 and 325 CrimPC): Derived from constitutional and conventional guarantees (Art. 29 para. 2 and 32 para. 2 Cst. ; Art. 6 ECHR), this principle serves a dual function. On one hand, it defines the scope of the trial (delimitation function): the court may only judge the facts described in the indictment. On the other hand, it guarantees the rights of the defense (information function): the accused must know precisely what facts they are being charged with in order to prepare their defense effectively. For a negligent offense, the indictment must describe the circumstances that constitute the breach of the duty of care, as well as the foreseeability and avoidability of the result.
2. Negligent bodily harm (Art. 125 para. 1 SCC): A conviction requires that the perpetrator caused bodily harm to a person through a breach of a duty of care. The conditions are:
   1. A breach of a duty of care: The perpetrator failed to exercise the care that the circumstances and their personal situation required.
   2. A causal link (natural and adequate): The reckless behavior is the cause of the damage. Adequate causality is only broken if another cause (e.g., gross negligence by the victim) is so overwhelming that it relegates the perpetrator's behavior to the background.
   3. Foreseeability and avoidability: The perpetrator should have and could have foreseen the harmful result, and it could have been avoided if the perpetrator had acted with care.
3. Driver duties toward pedestrians (Art. 33 Road Traffic Act (RTA) and Art. 6, 47 Ordinance on Road Traffic Rules (ORT)): Drivers must exercise particular caution when approaching a pedestrian crossing and, if necessary, stop to yield to pedestrians who are already on the crossing or are about to step onto it.
4. The specific case of pedestrian crossings with a central island (Art. 47 para. 3 ORT): Each part of the crossing is considered an independent crossing. However, case law (notablyBGE 129 IV 39) clarifies that a driver's duty of care is broader. They must monitor not only their own lane but also the opposite lane and the left sidewalk. They must be alert to signs that a pedestrian might cross the entire road at once without stopping on the island, which is not an unusual behavior. Such signs depend on the circumstances, including the pedestrian's behavior, the width of the road, and the size of the island (the risk being greater on a narrow road with a small island).
5. Arbitrariness in the establishment of facts (Art. 97 para. 1 Federal Supreme Court Act (FSCA)): The Federal Supreme Court only intervenes if the establishment of facts by the cantonal authority is manifestly inaccurate, i.e., arbitrary. Arbitrariness exists when a decision is untenable in its reasoning or result, or is in flagrant contradiction with reality. The mere fact that another assessment of the evidence is possible is not sufficient.

Application to the specific case

The Federal Supreme Court examines and rejects the appellant's grievances point by point:

1. Regarding the violation of the principle of accusation: The Federal Supreme Court considers that the indictment (in this case, the penal order serving as an indictment) sufficiently described the alleged facts. The driver knew she was being charged with a lack of attention that caused a collision with a pedestrian at a crossing. The fact that the indictment did not mention the presence of a central island or the victim's specific behavior did not infringe upon her rights of defense. She always knew what she had to defend herself against.
2. Regarding the arbitrary assessment of facts: The appellant challenges the lower court's evaluation of the evidence, particularly concerning visibility distance and the calculation of stopping distance.
   1. The lower court concluded that the driver could and should have seen the pedestrian from a distance of at least 25 meters. This conclusion, based on the victim's statements and plausibility calculations (the pedestrian's walking speed estimated at 1.5 m/s, or 5.4 km/h, which corresponds to a normal pace), is not arbitrary.
   2. The lower court calculated a total stopping distance of 21.40 meters for a vehicle traveling at 40 km/h on a wet road (taking into account a one-second reaction time and a deceleration rate favorable to the appellant).
   3. The appellant criticizes the court for calculating the stopping distance as a single emergency braking phase, arguing that the presence of an island should have required a two-phase calculation. The Federal Supreme Court rejects this argument. It confirms that, given the circumstances (a secondary street with a small island), there were clear indications that the pedestrian might cross in one go. Faced with these signs, the driver should have been prepared to perform an emergency stop as soon as she could see the pedestrian. The single-phase calculation is therefore not arbitrary.
   4. The appellant's other criticisms (such as the victim's "memory lapses" or her own version of events) are classified as appellate arguments, which fail to demonstrate that the lower court's decision was arbitrary.
3. Regarding the violation of Art. 125 of the Swiss Criminal Code: Based on the facts established without arbitrariness, the conviction is justified.
   1. Violation of the duty of care: The driver lacked attention and failed to fulfill her heightened duty of care when approaching this pedestrian crossing with a small island.
   2. Avoidability: The accident was avoidable. Had the driver been attentive, she would have seen the pedestrian from a distance of at least 25 meters. With a stopping distance of 21.40 meters, she would have had ample opportunity to stop in time to avoid the collision. The pedestrian's behavior was not sufficiently extraordinary to break the chain of adequate causation.

Outcome

The Federal Supreme Court dismisses the appeal to the extent that it is admissible. The driver's conviction for negligent bodily harm is upheld. The court costs, amounting to 3,000 francs, are to be borne by the appellant.

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