The learned trial judge denied a motion to resettle the case by adding certain words to a requested charge. The stenographer’s minutes did not contain the words; the recollection of trial counsel, of course, differed; and the judge himself had no clear independent recollection. While such a situation would ordinarily lead to a denial, it need not necessarily do so. In determining what occurred, the trial judge is not concluded by the stenographer’s minutes, important as they are, nor by his own lack of memory. Any other means which may satisfy his conscience and enable him to make a truthful return are open to him. Here the pleadings, the respective theories of the parties, the colloquies of court and counsel, the main charge of the court, the other requests to charge — in short, the whole course of the trial — render it most improbable that the requested charge was correctly reported. We think the trial judge, in disregarding, as he somewhat unwillingly did, this convincing circumstantial evidence, misapprehended the extent of the field open to him under the rule.
The matter becomes unimportant, however, in view of our conclusion on the appeal from the judgment. The sole issue litigated and submitted to the jury was whether the one or the other driver turned his car to the left, or failed to keep to the right in passing. If we accept the record of the requested charge as it appears, the palpable error was harmless. The duty of the drivers under the statute and under the • common-law rule of the road is the same. A breach of both was pleaded; the main charge clearly submitted the issue to the jury; there could have been no possible *224misapprehension of the correct rule of law, and the verdict is not against the weight of the evidence.
The judgments and orders denying a new trial should be affirmed, with costs. The appeal from the order denying resettlement should be dismissed, without costs.
All concur, except Taylor, J., who dissents in a memorandum and upon plaintiffs’ appeals votes for affirmance and upon defendant’s appeals votes "for reversal on the law. Present — Sears, P. J., Crouch, Taylor, Thompson and Crosby, JJ.