The verdict should have been directed in favor of defendant in both cases. Plaintiff Carre Morrison was guilty of *Page 97 contributory negligence as a matter of law. She deliberately walked into the path of an oncoming car. She testified that she had her eye on the car at all times. The car was not going at an illegal rate of speed. It is conceded by plaintiff that the car did not travel at a speed of more than 25 miles per hour. The only positive testimony we find is that of defendant who testified that she was going 24 miles an hour. However, assuming that the testimony be construed as showing 25 miles per hour, defendant was going at the rate of 36.66 feet a second. Mrs. Morrison testified that she first saw the car when it was one-third down the block. Assuming that then it was 200 feet from the crossing, although the map produced in evidence indicates that the block was less than 300 feet long, it would have taken defendant less than 5 1/2 seconds to reach the crossing. Mrs. Morrison testified that she proceeded rapidly but did not run. It would have taken her over 4 seconds to traverse the 19 feet to the point where she was struck. When she left the car track she could plainly see that an accident was likely to occur. She admitted that she hesitated. She decided to take a chance. She lost. When she proceeded across the lane next to the streetcar tracks and reached the second lane, she could plainly see that defendant's car had advanced to a point so near that if she proceeded any farther at the same rate of speed she would be struck. Had she stopped for a second or two, or had she run, instead of walking rapidly, as she testified, she would have cleared the distance. It must be borne in mind that a pedestrian can stop instantly. Defendant claims that as she approached the crossing her attention was diverted for a moment by a noise that sounded like a policeman's whistle and that when she again looked ahead Mrs. Morrison suddenly stepped out into the middle of the road beyond the streetcar tracks and *Page 98 ran into the path of defendant's oncoming car. The only disinterested testimony is that of a driver who was driving his truck back of defendant's car, and, although he was looking straight ahead, he did not see Mrs. Morrison at all until she was right in the path of the defendant's oncoming car. This tends to support defendant's claim that Mrs. Morrison rapidly ran out from a place of safety into the path of the car. However, assuming that defendant was guilty of negligence, plaintiff also was guilty of contributory negligence. The driver of a car has a right to believe that a pedestrian will show at least "horse sense" and stop when she sees a car coming rapidly toward her and which will strike her if she proceeds into another lane of traffic. Could pedestrians walk into the path of an oncoming car without exercising ordinary care and rely entirely upon an ordinance which they claim gives them the right of way, it would result in confusion, accidents and litigation. The ordinance also demands proper conduct upon the part of the pedestrian. She cannot walk rapidly into the path of a car that is but a short distance away, claim the benefit of the ordinance, and at the same time disclaim her contributory negligence. She knew the danger she was running when she hesitated.
The trial judge correctly charged the jury that if it found Mrs. Morrison failed to look, or found that she did look and walked directly into the path of an approaching automobile, so that an accident could not be avoided, it must be found that she was guilty of contributory negligence. However, the jury found for plaintiff. Plaintiff emphasizes the importance of the ordinance set forth in Mr. Justice REID'S opinion and the case ofMoore v. Noorthoek, 280 Mich. 431, where a somewhat similar ordinance was considered. However, in the latter case, the accident *Page 99 happened at nighttime, the street plaintiff attempted to cross was narrow, and plaintiff had barely crossed the car tracks when she was struck. In that case, defendant's car was traveling in excess of the speed limit in the business section of Grand Rapids, which provides a maximum speed of 15 miles per hour. In the instant case, it was broad daylight, and defendant was observing the speed limit. It is generally known that a pedestrian has difficulty in correctly judging the rate of speed of a car approaching in the nighttime. In Moore v. Noorthoek,supra, we held in regard to contributory negligence that it did become a jury question as to whether an ordinarily prudent man would not have a right to assume that a driver of a car would observe the laws in regard to speed in a business district and particularly under the other circumstances presented. Even though in the instant case we assume that the defendant was negligent, that does not excuse Mrs. Morrison from her own negligence. We realize that the facts in cases differ but we have adhered firmly to one principle which is set forth in a long line of cases.
In Haley v. Grosse Ile Rapid Transit Co., 290 Mich. 373, we said:
"The witness testified that as the bus approached Haley, the driver made no effort to slacken his speed or to swerve to the left to avoid striking him. The brakes were not applied until after the impact. The record leaves no doubt that the defendant was guilty of negligence in operating its bus in this irresponsible manner and in excess of the legal rate of speed. The sole question is whether the issue of Haley's contributory negligence should have been submitted to a jury for determination.
"Although the testimony is viewed in a light most favorable to plaintiff, the decision of the trial court must be sustained. According to the witness, Haley *Page 100 came out into the street when the bus was 150 feet away from him, traveling 35 to 40 miles per hour. There was nothing to prevent observation of the approaching vehicle by the pedestrian; the man's view of the driver, the witness testified, was as good as the driver's view of the man. As he stepped out onto West Jefferson avenue, decedent was seen to look in the direction of the approaching bus, but he continued on toward the center of the street despite his observation. `He kept on walking while he was looking until he got hit,' the witness said. * * *
"`Vigilance is an essential and available safeguard of life and limb in this automobile age and reasonable care requires constant exercise of the faculty of sight while crossing a city street.'Halzle v. Hargreaves, 233 Mich. 234. * * *
"As a reasonable man, decedent would not have walked into the path of the bus, which struck him between the radiator and the fender about a foot from the extreme right corner of the bus, if he has seen it approaching him. He must not then have `seen' it although it was in plain view. In that event he was guilty of contributory negligence as a matter of law. Halzle v.Hargreaves, supra; Molda v. Clark, 236 Mich. 277; Brodie v.City of Detroit, 275 Mich. 626."
In Dokey v. Carpenter, 300 Mich. 648, we said:
"Defendant calls attention to numerous cases involving accidents occurring either in the day or nighttime, and in which we have held plaintiff ordinarily may not recover if he steps into the path of an oncoming car coming in a straight direction. Under ordinary conditions, it is the rule that the pedestrian must look and keep on looking, see what it is plain to see, and thus avoid being struck by a car coming in a straight line towards him. Haley v. Grosse Ile Rapid Transit Co., 290 Mich. 373; Sloan v. Ambrose, 300 Mich. 188. No general rule can be *Page 101 stated, however, that will govern all factual situations."
In Knight v. Merignac, 281 Mich. 684, we said:
"The rule as to one who drives into an intersection without looking and is hit by another car over which he has the right of way was stated in Kerr v. Hayes, 250 Mich. 19, as follows:
"`These cases, however, also point out that the statutory right of way is not an assurance of safety, nor an absolute right in all conditions, but that both drivers must use due care. A driver cannot continue to assume that the one on the left will accord him right of way when the circumstances would indicate the contrary to a reasonable person.'"
In Koehler v. Thom, 285 Mich. 593, we said in regard to a failure to observe a statute:
"It is the claim of plaintiffs that the driver of plaintiffs' car had the right of way (1 Comp. Laws 1929, § 4712 [Stat. Ann. § 9.1580]) and had a right to assume that defendant would accord him the right of way. It is elementary that if plaintiffs are to recover they must show that the driver of their car was free from contributory negligence, none of plaintiffs being minors. * * *
"The principles of law applicable to the factual situation presented in this cause are found in Kerr v. Hayes, 250 Mich. 19, where Mr. Justice FEAD speaking for the court said:
"`The statutory right of way is not an assurance of safety, nor an absolute right in all conditions, but * * * both drivers must use due care. A driver cannot continue to assume that the one on the left will accord him right of way when the circumstances would indicate the contrary to a reasonable person.
"`The rules announced in these cases presuppose that a driver has made suitable observation of approaching cars, and, from the conditions as they appeared *Page 102 to him, has formed a reasonable belief that he could cross in safety. As plaintiff did not look to the left he could not have formed any belief from the conditions. He is chargeable with having seen what he should have seen, that defendant's car was about twice the distance from the crossing as his own, approaching at about twice his own speed, without, at any time, giving any indication of according plaintiff the right of way, and that a collision was inevitable unless he took measures to avoid it.'
"In Block v. Peterson, 284 Mich. 88, we said:
"`The statutory right of way is not an assurance of safety, nor of absolute right under all conditions. Both parties must use due care. A driver cannot continue to assume the one on the left will accord him the right of way when the circumstances would indicate the contrary to a reasonable person. Kerr v. Hayes, 250 Mich. 19. It was incumbent upon both plaintiff and defendant in approaching the intersection to use care commensurate with the obvious circumstances regardless of which had the favored road.Benson v. Tucker, 252 Mich. 385. Though plaintiff may have had the right of way at the intersection, the duty was incumbent upon him to exercise reasonable care for his own safety. One must exercise due care when attempting to cross streets and intersections whether on foot or driving an automobile. One is not free from contributory negligence who observes an automobile coming on the intersecting street and then proceeds to cross without giving further heed to the oncoming vehicle until the instant before or at the time of collision. Ude v. Fuller,187 Mich. 483; Geeck v. Luckenbill, 215 Mich. 288; Smith v.Ormiston, 242 Mich. 600.'
"Under the facts as shown in this cause, plaintiffs' driver with the use of ordinary care could have prevented the accident. His failure to use such care makes him guilty of contributory negligence and precludes his recovery. *Page 103
"The judgment of the lower court is reversed, without a new trial."
In Afman v. Kraker, 305 Mich. 504, we said:
"Plaintiff says he figured that the defendant would give him the right of way. Apparently he figured wrong. Insisting on one's right of way may be temporarily satisfactory but ultimately expensive. The fact that plaintiff approached the intersection on defendant's right was not an assurance of safety, plaintiff was still under the necessity of using due care, and did not do so.Kerr v. Hayes, 250 Mich. 19; Koehler v. Thom, 285 Mich. 593.
"See, also, Ayers v. Andary, 301 Mich. 418; Francis v.Rumsey, 303 Mich. 526."
In Pearce v. Rodell, 283 Mich. 19, defendant appealed a judgment for the plaintiff on the grounds of error, among other things, that the charge to the jury was erroneous. No directed verdict was requested. The charge to the jury in question and this court's comments thereon are as follows:
"`Pedestrians upon the public highway have a right to assume in the first instance the driver of an automobile will use ordinary care and caution for the protection of pedestrians, nevertheless the pedestrian must not rest content on such assumption, if there comes a time where he knows, or ought to know by the exercise of reasonable care, he is being placed in danger. He must take such care for his own safety as a reasonable, careful, prudent person would do under similar circumstances.'
"The court very fully charged the jury in relation to the contributory negligence of the plaintiff, and we find no error in the charge."
In Moldenhauer v. Smith, 311 Mich. 265, we said:
"Accompanied by her husband, plaintiff, crossing East Genesee avenue in a northerly direction on the *Page 104 west crosswalk, paused in the center of the street to await the passing of two motor vehicles proceeding in a westerly direction. She then observed defendant Andrew Smith's automobile coming from the east about 75 feet from where she was standing. Believing that she could continue in safety she rapidly crossed the remainder of the avenue. As she was about to reach the northerly curb she observed the Smith car bearing down on her, attempted to run and jump out of the way, but was struck."
It was argued that it was prejudicial to charge the jury:
"`If you find that she was guilty of any negligence at all, no matter how slight, which contributed to this accident, she cannot recover, even though you might find that Olson Smith, the driver, was also guilty of negligence.'
"According to appellant, another portion, in which plaintiff's pedestrian right of way was discussed, attempted to belittle the city ordinance providing for such right of way. It is also urged that it was error to charge plaintiff with contributory negligence if she attempted to cross the intersection when defendant's automobile was so near the crosswalk, and it was error to charge the general rule to be that a pedestrian `must look and keep on looking, see what is plain to see, and thus avoid being struck by a car coming in a straight line toward her.' Other criticisms are made of the court's charge, the most strenuous of which is with respect to defendant's request No. 13, which was given in full as follows:
"`If you find that plaintiff took a chance in crossing in front of defendant's vehicle and was injured because of it, the plaintiff would be guilty of contributory negligence and your verdict should be of no cause of action in favor of the defendant.'
"It is claimed that this portion of the charge made it impossible for plaintiff to recover under any circumstances, in that: *Page 105
"`People take chances every day in practically everything they do and the crossing of a street in a downtown business district having heavy traffic is always taking a chance in the common usage of that word.' * * *
"In Moore v. Noorthoek, 280 Mich. 431, where the injured pedestrian, having 21 feet to go to reach the nearest curb, noticed the rapidly-approaching car and ran to escape, it was held that plaintiff's contributory negligence was a question for the jury.
"As was said in Block v. Peterson, 284 Mich. 88, 94, quoting from Kerns v. Lewis, 246 Mich. 423:
"`"While the law accords the right of way, it requires as well, the exercise of at least `horse sense.' The statute does not authorize one, in approaching a highway crossing, to assume that in all events he may proceed without looking, or, if unable to see, without exercising precaution commensurate with reasonable prudence."' * * *
"In the instant case the conclusion is inescapable that plaintiff was guilty of contributory negligence, as a matter of law, in leaving a place of safety and proceeding into a zone of danger in the path of a rapidly approaching automobile. Since the trial judge would have been fully justified in directing a verdict for defendant as a matter of law, the claimed errors in the charge become inconsequential."
Also, see Young v. Martinich, 279 Mich. 267, and Davidson v. City of Detroit, 307 Mich. 420. We conclude that plaintiff Carre W. Morrison was guilty of contributory negligence as a matter of law.
Colin D. Morrison, plaintiff, in his suit tried together with the wife's suit, cannot recover for medical expenses and loss of services of his wife. This result does not follow because of the principle announced in Bricker v. Green, 313 Mich. 218; but his right of recovery has been settled in many cases in other States where the doctrine of imputed negligence was not adopted. There appears to be some confusion in the terminology. Instead of using the *Page 106 term "imputed negligence," at times it has been called "derivative contributory negligence," "consequential damages," "dependent cause of action," or such as arise by equitable or legal assignment or by operation of law, or through agency, or other means. Irrespective of the terminology used, the courts in the majority of cases have denied recovery by the husband for consequential damages to him arising out of death or injury to his wife under circumstances where she would be barred from recovery of damages in what we may term the main case. Bricker v. Green, supra, did not change the rule as stated in Dewey v. Perkins, 295 Mich. 611, where we held (syllabus):
"Recovery by husband for loss of his wife's services is contingent upon recovery by her for injuries and medical and nursing services where their respective actions were consolidated."
In Arritt v. Fisher, 286 Mich. 419, we quoted approvingly from Shiels v. Audette, 119 Conn. 75 (174 A. 323,94 A.L.R. 1206), which case relied, among others cited therein, onCallies v. Reliance Laundry Co., 188 Wis. 376 (206 N.W. 198). This case arose in Wisconsin after the doctrine of imputed negligence had been abandoned. The case is also published in 42 A.L.R. 712, where the copious annotations show that the husband cannot recover for services and medical expenses if the wife herself cannot recover for her injuries.
It should be noted that in the situation here before us the two actions brought separately by the husband and wife were consolidated for trial, on the same issues of fact. Necessarily the result on the issues of negligence and contributory negligence must be reached as to both cases. In so holding, we adhere to the rule that the husband and wife each *Page 107 have separate independent causes of action. Laskowski v.People's Ice Co., 203 Mich. 186 (2 A.L.R. 586); Gumienny v.Hess, 285 Mich. 411. But where the two actions are consolidated and tried as one case, recovery by the husband or parent in his action depends on whether there is a recovery in the other case.
For the above reasons both judgments should be reversed without a new trial, with costs to defendant which may be taxed only as one case, there being one record and one set of briefs.
BOYLES and NORTH, JJ., concurred with BUTZEL, C.J. The late Justice WIEST took no part in the decision of this case.