Facts
On February 11, 1969, a glancing collision occurred in Bern between a tram driven by Haldimann and a tank truck driven by Bernhard Hofer. Haldimann wanted to maneuver the tram to the front of the train for the return journey, for which he had to drive from the siding onto the inbound tram track and cross it diagonally in the opposite direction to reach the outbound track. During the maneuver, a collision occurred between the tram and the trailer of the tank truck.
The President of the Court in Bern convicted Haldimann for inattentive maneuvering of the tram and Hofer for careless driving of the tank truck, imposing fines of CHF 50 each. Haldimann filed a nullity appeal against the judgment.
Considerations
The Federal Court dismissed the appeal. It stated that while the right of way of the tram under Art. 38(1) of the Road Traffic Act (SVG) generally applies, it must not be exercised without regard to the overall traffic situation. The tram driver is also subject to a general duty of care under Art. 26(2) SVG, requiring him to exercise special caution if there are indications that another road user is not behaving properly.
Additionally, the tram driver has an…