Roberts v. Atlanta Consolidated St. Ry. Co.

Lewis, J.

1.. In the light of the record before us, the court committed no error in directing the stenographer, at the request of the jury, to read from his notes testimony of the witnesses as to the rate of speed at which the car was running. It is not alleged that this direction was given in the absence of plaintiff’s counsel, or over his objection, nor does it appear that the testimony read by the stenographer was either inaccurate, or did not include all that the witnesses testified to on the subject. If the jury, after retiring to consider a case, should differ as to the testimony on a material point, we see nothing improper in their requesting the court that their recollection be refreshed by having the testimony, if taken down, read to them. On the contrary, it indicates a commendable purpose and desire to ascertain the truth of the case before rendering their verdict. We think it proper, however, in such a case, that counsel for both parties should be present in court when this is done. In the absence of anything to the contrary in the record, we will presume that the trial judge adopted the proper practice in this instance. We do not mean to say, even if counsel were absent when this direction was given to the stenographer by the court, that it would be ground for a new trial; especially if the counsel knew of the fact before the rendition of the verdict. Any objection to such a proceeding should be made as soon as known, and a party can not tak.e the chances of a verdict in his favor, and at the same time reserve the right to object in the event the verdict should be against him. Stix v. Pump, 37 Ga. 332-5; Shropshire v. Johnson, 62 Ga. 359-360.

2. In the light of the entire charge of the court, there was no error of law in giving the charge complained of. The two distinct rules of law on the subject of contributory negligence, and the use of ordinary care to avoid the consequences of defendant’s negligence, were fairly given by the court separately *807 and distinctly, and not in immediate connection one with the other. The evidence in the case was conflicting. That in behalf of the defendant was sufficient to .authorize the jury to conclude that the plaintiff’s injuries were the result of his own carelessness, and could not have been avoided by the exercise of ordinary care and diligence on the part of the defendant. The court did not err in overruling the motion for a new trial.

Judgment affirmed.

All the Justices concurring.