Ramirez v. Chenier

Per Curiam. 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 car,e 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. plaintiff s’ contentions of prejudicial error based upon the trial court’s instructions concerning duties of care and contributory negligénee to bo 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 ah instruction on the. doctrine of subsequent negligence to be without .mepit. Since from .the record it appears that the. acts -pf negligence were qoncurreni, 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 GrCR 1963, 111.1 or to have it included as an issue of law for'trial in the pre-trial summary. GCR 1963, 301.2, ... ... .. 723 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.