¶1 dissenting. I do not think that the statement of the father of the plaintiff below, who was driving the car in which his son was riding, while he was in the hospital, the substance of which is set out in division 2 of the majority opinion, was a statement against interest. It was, therefore, not admissible in evidence and should have been excluded.
¶2 I think that the court erred in refusing the requests to charge, which had the effect of charging the jury that-it could not base a verdict on particular acts of negligence alleged in the petition which were not supported by any evidence sufficient to authorize it. One request dealt with the alleged failure of the father of the plaintiff to operate the automobile on the right-hand side of'the highway. There was no evidence of such negligence, and it was error not to withdraw this act of negligence from the consideration of the jury when requested in writing to do so. The court erred also in not withdrawing from the consideration of the jury whether the father was grossly negligent in driving without glasses. There was no evidence as to how well he could see without glasses. If the jury found that he was for this reason grossly negligent, it was a pure guess. It is not gross negligence for every person who habitually wears glasses to drive an automobile without them. The same is true as to the alleged negligence in driving without the windshield wiper working. There was no evidence in this case that the windshield wiper was not working. In Ransone v. Christian, 56 Ga. 351 (supra), the court ruled: “The-court erred, we think, in declining to charge that the jury could not give special damages on the count for libel, that count having alleged none and none having been proven.” It seems more reasonable to me *540 that, if the court erred in refusing to give a requested charge to-the jury withdrawing from them an issue which is not even alleged or proven, and therefore not even in the case or likely to confuse the jury, then where, as in this case, there are allegations of negligence unsupported by proof, and these allegations will be' before the jury, surely it would be proper for counsel to request that the jury be instructed to eliminate these issues, and it would be erroneous for the court to fail to give the requested charge. In this connection, see also Henson v. Taylor, 108 Ga. 567 (supra). The court also erred in charging the jury “that in some torts the entire injury is to- the peace, happiness, or feelings of the plaintiff, and, in such cases, no measure of damages can be prescribed, except the enlightened conscience of impartial jurors.” The action was not for such injuries, and the charge had no application to the ease and tended to confuse the jury on the question of the amount of damages.