Skoglie v. Crumley

Opinion

THE COURT.

This case arises out of a personal injury accident wherein a motorcycle being operated by appellant collided with an automobile driven by respondent. Appellant and respondent were plaintiff and defendant, respectively, in the trial court.

The case was tried before a jury. Appellant submitted BAJI Instruction No. 4.40, concerning the duty of one in imminent peril, and requested that the instruction be given. The trial court declined to do so on the ground that such an instruction was only applicable when the actor involved had the choice of at least one other course of conduct which, in the light of after events, would have been better or safer, but failed to exercise that choice because of his sudden and unexpected confrontation with peril. It was the opinion of the trial court that the evidence showed appellant had no such choice and that any other possible course available to appellant would have resulted in an accident and injury to himself. The jury returned a verdict in favor of respondent and this appeal is from the judgment entered thereon.

In his notice of appeal, the appellant stated that the only point to be raised on appeal was that an instruction on the doctrine of imminent peril should have been given. The oral proceedings requested by appellant

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in his designation of the record was limited to the testimony of Kenneth Charles Wing, and respondent did not designate any additional oral proceedings. Appellant filed an opening brief on appeal, properly limiting his argument to a contention that the trial court committed reversible error in failing to give the requested instruction. Respondent thereafter filed a reply brief in which he argued (1) that the abbreviated record failed to demonstrate any error in the refusal of the trial court to instruct on the doctrine of imminent peril; and (2) that even if it were error, section 13 of article VI of the California Constitution does not permit a reversal unless, after an examination of the entire cause, including

all

of the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice. We note, however, that prior to the filing of his reply brief, respondent successfully moved in this court for a limited augmentation of the record on appeal to include the oral testimony of witnesses Holly Jamison and Harry Humes, on the ground their testimony was relevant to the sole issue on appeal, i.e., the refusal of the trial court to instruct on the doctrine of imminent peril.