¶1concurring specially as to Division 1 of the opinion. Special ground 3 assigns error on the following excerpt from the charge of the court: “The defendant further contends that even if there was negligence on the part of the *508defendant creating some liability of the defendant, that there was some negligence on the part of the plaintiff that requires a reduction in the.amount of plaintiff’s damages.” The sole assignment of error is that the charge implied that the defendant admitted liability for some amount. There is no merit in this assignment of error because under no reasonable construction of the excerpt can it be said that it meant that the defendant admitted liability in some amount, which would mean an admission that the defendant was guilty of more than 50% of the negligence proximately causing the injuries. The charge of the court that the defendant further contends that even if there was negligence on the part of the defendant, etc.—can mean no more than that the defendant contended that there was enough evidence to authorize the jury to find that the defendant was guilty of more than 50% of the total negligence. Such an interpretation is a far cry from telling the jury that the defendant admitted negligence of more than 50% of the total. There was no assignment of error on the excerpt on the real and true meaning of the excerpt or on the error contained in the excerpt, plus the conflict in the charge as to the defendant’s actual contention and the erroneous contention stated in the excerpt. Since the assignment of error is restricted solely to an erroneous construction of the excerpt it is without merit. I concur in the judgment of affirmance.
¶2dissenting in part. I dissent from that portion of Division 1 of the majority opinion which holds that special ground 3 of the amended motion for a new trial does not show harmful or reversible error and from the judgment of affirmance. The portion of the charge excepted to in ground 3 was clearly a misstatement of the defendant’s contentions. In his answer, after denying the material allegations of the plain*509tiff’s petition, the defendant alleged four defensive contentions: first, that the plaintiff’s injuries resulted solely from her own failure to exercise ordinary care; second, that if the plaintiff had exercised ordinary care, she could have avoided the consequences of his negligence, if any; third, that the plaintiff’s negligence was equal to or greater than the negligence of the defendant, if any; and finally, that he was not negligent in any of-the particulars claimed in the plaintiff’s petition. Nowhere did he concede in his pleadings or in his evidence that he was negligent in a degree greater than the plaintiff was, or that the jury would be authorized to find that he was guilty of such negligence as to create Some liability to the plaintiff on his part. It is true that in his pleadings, as set forth above, he did invoke the application of the comparative negligence rule, but the court was not, in the portion of the charge assigned as error in this ground of the motion, charging the law with respect to comparative negligence but was stating the contentions of the defendant. The defendant was entitled to have his contentions correctly stated and to have the case tried upon the defenses which he elected to assert, and he should not, by the charge of the court, have been placed in the attitude of making a contention which he did not make and thus placed in an incorrect and unfavorable position which probably tended to discredit his position as to the' contentions which he did make. Under the rulings in Southern R. Co. v. Thompson, 129 Ga. 367, 368 (1) (58 SE 1044), Smith v. Sherwood, 55 Ga. App. 395, 396 (4) (190 SE 205), Ergle v. Davidson, 69 Ga. App. 102 (24 SE2d 810), and McJenkin Ins. &c. Co. v. Thompson, 79 Ga. App. 473, 475 (54 SE2d 336), this proposition was directly applicable under the facts of this case to .the charge complained of in special ground 3. I do not think that the jury could have understood this portion of the charge as saying to •them anything other than that the defendant had conceded that the evidence authorized them to find against him in some amount, and since he did not make this concession, the charge was necessarily harmful to him. I think that the assignment of error contained in the motion for a new trial sufficiently raises this point, and that the contentions of the plaintiff in error which clearly raise this point ought not to be rejected on purely technical grounds as held in the special concurrence of Chief Judge Felton.
¶3*510I am authorized to say that Presiding Judge Bell and Judges Eberhardt and Pannell concur in this dissent.
¶4dissenting. In addition to the reasons asserted by Judge Frankhm in his dissent, with which I concur, I dissent from so much of Division 2 of the majority opinion holding that special ground 7 of the amended motion for new trial is without merit. In that ground plaintiff in error excepts to the charge that “If she [plaintiff] proves by the evidence that the defendant committed one or more of such allegations of negligence, this would be sufficient insofar as proof of negligence is concerned.” It is the same charge dealt with in Dowis v. McCurdy, ante, and for the reasons set forth in my dissent in that case I dissent here.
¶5I am authorized to say that Presiding Judge Bell concurs in this dissent.