JONES v. SMITH

PANNELL, Judge.

1. In an action brought by a complainant passenger injured as a result of an automobile collision where the evidence would authorize a finding that one defendant (the appellant) on his proper side of the roadway had just started a turn to his left to enter a driveway as the other defendant, driving in the opposite direction, crested a hill approximately 100 feet distant driving at an excessive rate of speed and obviously on a collision course with the defendant appellant making his left turn, the question of whether the defendant appellant was negligent in continuing his course in an effort to avoid the collision rather than stopping his automobile involved the doctrine of an emergency choice, and the trial court, upon request, erred in failing to charge thereon. Douglas v. Herringdine, 117 Ga. App. 72, 76 ( 159 S.E.2d 711); Patton v. Smith, 119 Ga. App. 664 ( 168 S.E.2d 627).

While the pre-trial order is generally controlling as to issues upon the trial ( Polk v. Fulton County, 96 Ga. App. 733, 734 ( 101 S.E.2d 736)), yet where the pre-trial order shows that the defendant appellant contended he was not negligent as charged, such contention made an issue as to whether he was negligent or not negligent, and this issue included the question of the proper exercise of the defendant appellant's judgment under an emergency situation as a consideration of this question is necessary to determine whether the defendant was or was not negligent as charged.

2. A new trial having been granted for the above reasons, it is not necessary to determine whether the trial court erred in overruling the appellant's motion for new trial as to the remarks of counsel therein referred to, which were improper, but are not likely to occur on the subsequent trial.

Judgment reversed. Bell, C. J., and Deen, J., concur.