This is a wrongful death suit arising out of an auto collision in which defendant gained a verdict and judgment. Plaintiff appeals from the order overruling his motion for new trial.
1. The trial court charged the jury on the law of accident, i.e., an injury which occurred without being caused by the negligence of either party. Exception was made that the evidence did not warrant it. According to the plaintiff's evidence defendant entered a highway from a private driveway into the path of the plaintiff's deceased husband, causing him to swerve and collide with a third vehicle approaching from the opposite direction and in the opposite lane. The defendant's evidence on the other hand was to the effect that he did not drive his vehicle out into the highway; that the deceased had room to pass in his lane of travel; and that the cause of the collision was the high rate of speed of the deceased and his attendant loss of control of the vehicle. This evidence plainly shows that the death of plaintiff's husband was due to his own negligence, to that of the defendant, or to both. Charging the law of accident under these circumstances is cause for reversal. Atlantic C. L. R. Co. v. Jones, 132 Ga. 189
, 196 (63 SE 834
); Everett v. Clegg, 213 Ga. 168 (97 SE2d 689)
; Toles v. Hair, 83 Ga. App. 144 (63 SE2d 3)
; Sheppard v. Sheppard, 114 Ga. App. 451 (151 SE2d 883)
2. The other enumerations of error either have no merit or are not likely to recur when this case is retried.