39 Ga. App. 570 | Ga. Ct. App. | 1929
Ward was charged with violating the following part of the motor-vehicle law (Ga. L. 1927, sec. 12(d), p. 237; Park’s Code Supp. 1927, § 828 (uu-31, subsection d)) : “An operator of a vehicle overtaking another vehicle going in the same direction, and desiring to pass the same, shall pass to the left of the vehicle overtaken, provided that the way ahead is clear of approaching traffic, but if the way is not clear he shall not pass unless the width of the road
The following rule of law has been held applicable in a civil case: “Although instructions of the court to the jury may state the law correctly, in the abstract, yet if they are not authorized by the evidence in the case, they are erroneous, and, if it is not apparent that the jury could not have been misled by them, are cause for a new trial.” Culberson v. Alabama Construction Co., 137 Ga. 599 (56 S. E. 765, 9 L. R. A. (N. S.) 411, 9 Ann. Cas. 507). In King v. State, 37 Ga. App. 334 (3) (140 S. E. 513), it was said: “There being no allegation in the indictment that the defendant had failed to register with the ordinary as required by law, and there being no evidence of such fact, the same was not an issue to be determined by the jury, and the court's charge on this subject, being calculated to mislead the jury into believing that the defendant had violated this law, was harmful.” See also Yopp v. State, 131 Ga. 593 (63 S. E. 1036).
It is perfectly apparent that the excerpt complained of had no application to the issues raised by the information; and an examination of the brief of evidence discloses that it was not warranted by the evidence. Under these circumstances, and in view of sharp conflicts in the evidence, this court can not say that the jury could not have been misled by the charge.
The judgment in this case is reversed solely because of the error
tJudgment reversed.