Dowd v. Superior Court

KNIGHT, J.

Petition for a writ of

certiorari

to review and annul an order made on June 2, 1924, by the superior court of the city and county of San Francisco, department 13, granting a motion to correct a transcript on appeal, which had theretofore been certified to as correct by the trial court. The following are the facts:

The petitioners herein, on May 8, 1919, filed separate actions in said superior court against the Atlas Taxicab & Auto Service Co. et al. to recover damages for personal injuries sustained by them through the alleged negligent acts of the defendants. By stipulation said actions were tried together, and verdicts were rendered in favor of the defendants. Upon appeal both judgments were reversed, upon the ground principally that the jury had been erroneously instructed on the question of contributory negligence.

(Dowd

v.

Atlas Taxicab & Auto Service Co. et al.,

187 Cal. 523 [202 Pac. 870].) Upon the second trial verdicts were again rendered in favor of the defendants. Plaintiffs again appealed and filed the usual notice pursuant to the provisions of section 953a of the Code of Civil Procedure requesting a transcript “of the testimony offered or taken, evidence offered or received, and all rulings, instructions, acts, or statements of the court, also all objections and exceptions of counsel and all matters to which the same relate,” etc. In due course the record on appeal was prepared, which contained the reporter’s and the clerk’s transcripts; after notice the reporter’s transcript was duly certified to by the trial judge.

One of the main points made by appellants upon the second appeal is that the trial court, in violation of the law stated

[6]

in the decision rendered on the first appeal, had again erroneously instructed the jury upon the question of contributory negligence. In reply respondents contend that the point raised by appellants is not available to them for the reason that they themselves had proposed instructions similar to those given by the court and of which they are now complaining. The statement of respondents that appellants had offered similar instructions is denied by appellants in their closing brief. When the matter of said appeal upon the merits came on for argument before this court on the thirteenth day of May, 1924, it was pointed out that the only instructions set forth in the transcript were those actually given to the jury, and that said transcript did not contain any of the instructions offered by the respective parties and by the court refused, nor did the record show whether the instructions actually given were proposed by appellants or by respondents or were given by the court of its own motion. The cause was then continued upon the calendar until June 9, 1924, for the purpose of allowing the parties to ascertain the state of the record in the trial court relative to said instructions. Thereafter, on May 17, 1924, respondent served notice of motion, in the trial court, that it would on May 23, 1924, “move- said court for an order correcting the transcript on appeal herein by inserting following the charge of the court to the jury contained in said transcript on appeal as follows, to wit: