Merritt v. New York, New Haven, & Hartford Railroad , 164 Mass. 440 ( 1895 )

Knowlton, J.

Under Pub. Sts. c. 170, § 42, “ When a jury, after due and thorough deliberation upon a cause, return into court without having agreed on a verdict, the court may state anew the evidence, or any part of it, and explain to them anew the law applicable to the case.” See also Pub. Sts. c. 153, § 5.

The jury asked the judge this question: “Was the testimony of Cushion and Heil that they saw Merritt standing in the aisle of the car when the car started in their cross-exam in atiou ? ” An answer to the question might aid the jury in their deliberations, and it was proper for the judge to bring them into court and give them an answer by stating anew that part of the testimony to which the question referred. See Kullberg v. O’Donnell, 158 Mass. 405. This testimony had been taken stenographically at a former trial, and by agreement of the parties had been presented to the jury at this trial by reading a type-written copy of it. Inasmuch as the evidence to which the question of the jury related was all in writing, the .best way of stating it was to read it. The judge, therefore, directed the official stenographer to read the whole cross-examination of each of the two witnesses, which was done without comment by any one. There was no fairer or better way of giving a .perfect answer to the question than by reading the whole cross-examination of each witness, which was not very long. It was immaterial whether the reading was by the judge or by some one else appointed by him to do it. While the judge might, in his discretion, have adopted some other way of answering the question, or have refused to answer it, the plaintiff has no legal ground of objection to what was done. Considering the nature of the inquiry and of the evidence to which it related, we hardly see how the judge could have acted more discreetly. See Alexander v. Gardiner, 14 R. I. 15. Atchison v. State, 13 Lea, (Tenn.) 275. The reading of stenographic notes in open court by an official stenographer at the request of the judge is expressly authorized by St. 1892, c. 133.

It is not contended that the absence of the counsel in any way affected the right of the judge to answer the question in open court. Kullberg v. O’Donnell, 158 Mass. 405.

Exceptions overruled.