Prescott v. Ralphs Grocery Co.

THE COURT. Pursuant to rule 12 of Rules on Appeal, respondent makes application for correction of a claimed omission in the reporter’s transcript on appeal.

In the affidavit supporting the application respondent’s counsel avers that he did not check the instructions as reported in the reporter’s transcript “word by word” until appellant in her opening brief claimed error in an instruction as set forth in the reporter’s transcript.

Respondent presents to us a certified copy of B.A.J.I. Instruction No. 149 on file in the records of this cause in the office of the clerk of the superior court, and which reads as follows:

“Conduct which is in violation of Sec. 56-08 (e) Los Angeles Municipal Code just read to you constitutes negligence per se. This means that if the evidence supports a finding, and you do find, that a person did so conduct himself, it requires a presumption that he (or) (she) was negligent. However, [656]such presumption is not conclusive. It may be overcome by other evidence showing that under all the circumstances surrounding the event, the conduct in question was excusable, justifiable and such as might reasonably have been expected from a person of.ordinary prudence. In this connection, you may assume that a person of ordinary prudence will reasonably endeavor to obey the law and will do so unless causes, not of his own intended making, induce him, without moral fault, to do otherwise.”

Respondent asserts that the reporter’s transcript erroneously records said instruction by failing to include the words “he (or) ” immediately preceding the word “she” in the second sentence of the aforesaid instruction, and which words we have italicized. That the aforesaid B.A.J.I. instruction was given by the trial court as above set forth. That because of appellant’s claim of error in the omission of the words “he (or) ” it is important that the reporter’s transcript be corrected to show that the said words were included in the instruction as given.

In the affidavit filed in opposition to the application, one of appellant’s counsel avers that “upon the presentation of the reporter’s transcript affiant carefully went over the instructions in the said transcript because affiant of her own knowledge had remembered or believed that she remembered that certain of the instructions were misread, and accordingly consulted with reporter, Eva S. Jordan, on said subject prior to approving the reporter’s transcript. Affiant specifically noticed in said transcript the fact that the court had misread an instruction given on its own motion which appeared in the reporter’s transcript at page 112, lines 21-26, and page 113, lines 1-9.