Opinion
Docket No. 4,259.
Decided April 21, 1969.
Appeal from Wayne, Edward S. Piggins, J. Submitted Division 1 February 6, 1969, at Detroit. (Docket No. 4,259.) Decided April 21, 1969.
Complaint by Peter Ramirez and Mary Ramirez against Janette C. Chenier for damages resulting from Peter Ramirez being struck by defendant's automobile. Verdict and judgment for defendant. Plaintiffs appeal. Affirmed.
Ripple, Chambers DeWitt ( Donnelly W. Hadden, of counsel), for plaintiffs.
Rouse, Selby, Webber, Dickinson Shaw ( William H. Morman, of counsel), for defendant.
Plaintiff Peter Ramirez, a pedestrian, was struck by an automobile driven by the defendant Janette Chenier while attempting to cross the street at the intersection of Bagley and Twenty-Third in the city of Detroit. Plaintiffs contend that the trial court erred in refusing to give instructions to the jury to the effect that Detroit city ordinances § 38-12-1 and § 38-12-3 relieve a pedestrian of the duty to exercise ordinary care in the crossing of a street at an intersection if he was not negligent in starting across and that a motor vehicle operator has an absolute duty to avoid such a pedestrian. We find the plaintiffs' contentions of prejudicial error based upon the trial court's instructions concerning duties of care and contributory negligence to be without merit. Ortisi v. Oderfer (1958), 354 Mich. 389; Knickerbocker v. Samson (1961), 364 Mich. 439; and Ortega v. Lenderink (1968), 10 Mich. App. 190.
We also find the plaintiffs' contention that the trial court erred in refusing to give an instruction on the doctrine of subsequent negligence to be without merit. Since from the record it appears that the acts of negligence were concurrent, the doctrine of subsequent negligence has no application as a matter of law and the refusal to give the instruction dealing with it was not error. Greenberg v. Greenberg (1953), 337 Mich. 390; Howell v. Hakes (1930), 251 Mich. 372. See, also, Davidson v. City of Detroit (1943), 307 Mich. 420. Further, the plaintiffs failed to plead the doctrine of subsequent negligence as required by GCR 1963, 111.1 or to have it included as an issue of law for trial in the pre-trial summary. GCR 1963, 301.2.
Plaintiffs' reliance on the case of St. John v. Nichols (1951), 331 Mich. 148, to support their contention that subsequent negligence need not be specifically pleaded is unfounded for in that case both lack of contributory negligence and subsequent negligence were pleaded.
Affirmed. Costs to appellee.