Albert was walking home from his nightshift at 3:30 a.m. The road was very dark, and Albert was wearing a red jacket, blue pants, black shoes, and a green cap. Albert walked along the edge of the road but on the wrong side, such that his back was to oncoming traffic. Albert heard a vehicle approaching behind him but decided not to look or even move. Unfortunately, Albert was hit by the vehicle, a delivery van; the driver was taking newspapers to a local drop-off point so that carriers could then deliver them to homes on their routes. Albert was seriously injured.
Albert has two witnesses. The first is a police officer who arrived on the scene and administered a breathalyzer test to the van driver. The van driver was not impaired. Albert’s second witness is an individual who lives in a house directly across the road from the accident scene. This witness heard the impact of the accident and ran outside to help. This witness’s evidence only related to the position of the plaintiff’s body and the location of the defendant’s delivery van. Will Albert be able to establish negligence as against the driver of the van? Why or why not?