dissent">Banke, Judge,

dissenting.

1. In accordance with the plaintiffs request, the trial court charged former Code Ann. § 68A-801 (OCGA § 40-6-180), which, in pertinent part, reads as follows: “No person shall drive a vehicle '¡at a speed greater than is reasonable and prudent under the conditions and having regard for the actual and potential hazards then existing. Consistent with the foregoing, every person shall drive at a reasonable and prudent speed when approaching and crossing an *80intersection ..The court then charged the jury that, if they found the defendant had acted in violation of this Code section, they could find his conduct negligent as a matter of law.

While there may be evidence in this case that the defendant acted negligently by making his turn too abruptly or failing to give a turn signal, there is no evidence whatsoever that his speed was excessive. Indeed, the plaintiff himself testified that the defendant “wasn’t going the speed limit” but “was going real slow and easy so I went to pass him.” I cannot agree with the majority’s apparent reasoning that driving in a misleading and imprudent manner is equivalent to driving with excessive speed, so as to render specific evidence on the issue unnecessary. Consequently I find no basis for the court’s charge on former Code Ann. § 68A-801.

2. In my opinion, the trial court also erred in instructing the jury to determine from the evidence whether the collision occurred at an intersection, as defined by former Code Ann. § 68A-101 (18) (OCGA § 40-1-1 (18)). Both sides requested jury charges which assumed that an intersection was involved. This assumption was perceived as favorable to the plaintiff in some respects (see Division 1 of this dissent, supra) but was unfavorable to him in that it allowed the jury to conclude that he had acted in violation of OCGA § 40-6-45 (a) (2) (Code Ann. § 68A-306), which prohibits the use of an oncoming traffic lane to pass another vehicle when traversing an intersection. I believe the plaintiff should have been required either to embrace for all purposes the position that the collision occurred at an intersection or to abandon it altogether. He should not have been permitted to have it both ways. “It is fundamental that when the court undertakes to instruct the jury as to the contentions of the parties, it should charge the jury correctly and in a manner not calculated to mislead or confuse them as to what the true contentions of the parties are.” Beavers v. Davis, 110 Ga. App. 248, 250 (138 SE2d 110) (1964).

I am authorized to state that Presiding Judge Quillian joins in this dissent.

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