
    RAMIREZ v. CHENIER
    1. Automobiles — Negligence — -Pedestrian —• Subsequent Negligence'— Trial — Instructions to Jury.
    The doctrine of subsequent negligence has no application as a matter of law, and refusal to give the instruction dealing with it is not error, when it appears - from the record that the acts of negligence involved in a ease were concurrent.
    2. Automobiles — NEGLiGBNbE—Trial—Subsequent Negligence.
    Failure of plaintiffs to plead the doctrine of subsequent negligence or to have it included as an issue of law in the pretrial summary bars them from asking the trial court to give an instruction to the jury on it (GCR 1963, 111.1, 301.2).
    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. Cbenier 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. Had-den, of counsel), for plaintiffs.
    
      Rouse, Selby,' Webber, Dickinson & Shaiv '(William H. Morman, of counsel), for defendant.
    References for Points in Headn >tes
    fl] 7 Am Jur 2d, Automobiles and Highway Traffic § 378.
    [2] 53 Am Jur Trials.- §-574. ■
    
      BEFORE: Lesinski, 0. J., and T. M. Burns and J. J. Kelley, JJ.
    
      
       Circuit Judge, sitting on the Court of Appeals by assignment.
    
   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, ... ... .. 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.  