dissenting. I must dissent from the ruling in Division 1 of the opinion as well as from the judgment of affirmance.
The first special ground of the defendant’s amended motion for new trial assigns error on the refusal of the trial court to give a requested instruction to the jury. The requested charge was as follows: “When a person is suddenly put in a position of peril by the negligence of another, and where, under the circumstances, the emergency is so great that they have to act without having time to think, then a person confronted with such emergency is not held to as strict accountability as a person who has ample time to consider the circumstances and the situation.” The evidence to support such charge was that the defendant was approaching the point of collision, which collision occurred at about midnight, when suddenly he was confronted with a man standing in the road waving his arms, that the defendant cut his automobile the other way and in so doing struck the decedent and his automobile which, while upon its own side of the road, was parked upon a public road during the nighttime without lights.
The evidence showed that the defendant’s automobile finally came to rest in the ditch on his left side of the road, the side of the road on which the decedent’s automobile had been parked. “A written request to charge which is legal and adjusted to a distinct matter in issue, and which may materially aid the jury, *732should be given in the language requested, although covered by other instructions of the charge in more general and abstract terms. Code Ann. Supp. § 70-207 (Ga. L. 1937, p. 592); Werk v. Big Bunker Hill Mining Corp., 193 Ga. 217 (5) (17 SE2d 825); Summer v. Boyd, 208 Ga. 207, 209 (66 SE2d 51).” Randall v. State, 210 Ga. 435 (1) (80 SE2d 695); Vaughan v. Vaughan, 212 Ga. 485 (93 SE2d 743).
While to authorize a charge on emergency it must appear that the emergency was not the result of the defendant’s own creation (see Simpson v. Brand, 108 Ga. App. 393, 398, 133 SE2d 393); yet the evidence need not demand such a finding in order to authorize such a charge. “ ‘ “To justify a charge on a given subject, it is not necessary there should be direct evidence going to that point; it is enough that there be something from which a legitimate process of reasoning can be carried on in respect to it.’-’ Holland v. Long, 57 Ga. 36, 41 (3); King v. State, 77 Ga. App. 539, 540 (49 SE2d 196). Pope v. Associated Cab Co., 90 Ga. App. 560, 561 (83 SE2d 310).” Carroll v. Hayes, 98 Ga. App. 450, 455 (105 SE2d 755); Brown v. Matthews, 79 Ga. 1 (4 SE 13).
It is argued that the defendant caused the emergency by driving at a time when he had been taking a tranquilizer drug prescribed by a physician but not in accordance with such physician’s instructions.
While the evidence may have demanded a finding that a person should not drive an automobile or operate any machinery while taking such drug there was evidence that the defendant was not so instructed or given any warning of such fact, and while the defendant stated that he was sleepy, nervous and emotionally upset, neither he nor anyone else testified that “he knew” the drug was causing such effect and a question of fact was presented as to whether he voluntarily came under the influence of a drug within the meaning of Code § 26-403 dealing with voluntary drunkenness or whether such condition was caused by the mistake of the physician and the druggist who filled the prescription in failing to warn him of the possible reaction that could be caused by taking the drug for his nerves and of the danger in taking more than the prescribed doses. See 22 CJS 220, Criminal Law, § 69.
*733A physician, a witness for the State, testified on cross examination that a person taking any drug has a right to know the reaction of the drug and how to protect himself, and the only way that he would have of knowing, as to whether it was dangerous or not dangerous or as to the effect it might have at the given moment, would be the advice of his doctor.
Should the jury have determined that the defendant’s condition was not voluntarily created, which it could have done under the evidence, then the “emergency” was not created by the defendant and the requested charge on “emergency” was authorized by the evidence as was recognized in Kelly v. State, 63 Ga. App. 231, 238 (10 SE2d 417), although there was other testimony showing no such emergency.
In Kelly v. State, supra, after recognizing that a charge on emergency would be authorized when applicable in a criminal case, the court held (1) that the request in that case was argumentative and, (2) that it was substantially covered by the general charge.
The request in the case sub judice was not argumentative, assumed no facts and contained only a proposition of law which was authorized by the evidence.
Assuming arguendo, under the decision of the Supreme Court in Griffith v. Newman, 217 Ga. 533 (3) (123 SE2d 723), and the cases of this court following it, that in order to invoke the ruling in Werk v. Big Bunker Hill Mining Cory., 193 Ga. 217, supra, and similar eases (that a proper request to charge must be given in the language requested), the assignment of error must allege that the trial court erred in failing to give the request “in the exact language requested” otherwise where the general charge in substance covers the applicable law requested no error is shown, the charge in the present case covering “accident” and “simple negligence” did not substantially cover “emergency.” So much of the decision in Kelly v. State, 63 Ga. App. 231, supra, which holds to the contrary is in conflict, in principle at least, with the decision of the Supreme Court in Bass v. State, 152 Ga. 415 (7) (110 SE 237), where a charge on accident, was given and it was held that if additional instructions were desired they should have been requested. Here they were requested. While an event occurring as a result of an “emergency” may well be *734an “accident” because under such circumstances, the act done as a result of the “emergency” is not then negligence (culpable neglect) necessary in a criminal prosecution, yet “emergency” is a specific application of the law of “accident” and it cannot be said that a defendant is not entitled to a charge on “emergency” when properly requested merely because the court charged generally on “accident.” In the broadest sense possibly a charge on “accident” in a criminal case covers “emergency” and in the absence of a request it would not be reversible error to fail to charge in a proper case on “emergency,” yet a charge on “accident” is not a charge on “emergency” in substantially the language requested.
In Everett v. Clegg, 213 Ga. 168 (97 SE2d 689), the Supreme Court, speaking through Mr. Justice Almand, set forth proper instructions dealing with “emergency” and held that a charge on “accident” was not authorized where the evidence showed the plaintiff’s injuries were caused solely by the plaintiff’s negligence, solely by the defendant’s negligence, or by the negligence of both. “Accident” denotes a lack of any negligence. See Code Ann. § 102-103, and citations, while “emergency” and the charge requested denote a situation caused by the negligence of someone, other than the defendant, whereby the defendant was placed in the position of making a choice without time for proper deliberation. The charge on “emergency” was authorized by the evidence which authorized a finding that the automobile of the deceased was parked in violation of the Act of 1953 (Ga. L. 1953, Nov. Sess., pp. 556, 606; Code Ann. § 68-1710 (b)). While there was evidence that a street light was overhead there was no evidence that it provided sufficient light to reveal a person or object within five hundred feet so as to exclude the deceased from the requirements of such Code section. This evidence, together with the statement of the defendant that upon seeing the deceased waving his hands he immediately cut to the other side, the side where the automobile was parked, was sufficient to authorize the requested charge.
The requested charge should have been given and so much of the decision in the case of Kelly v. State, 63 Ga. App. 231, supra, as conflicts with the above cited cases of this court and the Supreme Court, should be overruled.
*735I am authorized to say that Frankum and Russell, JJ., concur in this dissent.