dissenting. 1. The trial court did not err in charging upon the doctrine of “last clear chance.” When the case of Carr v. John J. Woodside Storage Co., 103 Ga. App. 858, supra, was before this court it was held, with reference to the requested charge on the doctrine of “last clear chance,” “Since the undisputed evidence in this case disclosed that the defendant’s driver did not have knowledge of the perilous situation of the plaintiff’s decedent until his vehicle was within six feet of the decedent’s vehicle, and at which instant the collision occurred, the doctrine of last clear chance, as applied in Georgia was not applicable to the facts of this case and the trial court did not err in refusing to give the requested charge.” When that decision was considered by the Supreme Court, after the grant of the writ of certiorari (217 Ga. 438, supra) , it was held: “The evidence shows that no car was so closely following the truck which Smith was driving that it would have been dangerous for him to have avoided the collision by suddenly stopping. At the place of the collision Smith could have prevented the collision by a slight turn to his left.” The driver of the defendant’s truck testified in the present case that he was looking forward as he drove toward the intersection where the collision occurred and other witnesses testified that the truck was visible to them, they were parked on the road being traveled by the automobile in which the plaintiff was riding, for a distance of two hundred yards or more.
In order for the doctrine of “last clear chance” to apply it is not necessary that the defendant admit that he had the “last clear chance”, “but it is sufficient if the facts proven authorize *606such inference.” While in order to authorize the jury’ to apply the doctrine it is necessary that the defendant have actual knowledge of the plaintiff’s perilous situation (see Bennett Drug Stores, Inc. v. Mosely, 67 Ga. App. 347, 20 SE2d 208), yet under the evidence in the present case the jury would have been authorized to find that the defendant’s driver had actual knowledge although he denied it.
While the case of Carr v. John J. Woodside Storage Co., 103 Ga. App. 858, supra, arose out of the same transaction, the decision by this court in that case is not the law of the case, and under the construction placed on the evidence in that case by the Supreme Court as to wilful and wanton negligence the charge on the doctrine of “last clear chance” was applicable and the trial court did not err in charging thereon.
2. The defendants contend in Special ground 11 that the trial court erred in overruling their motion for mistrial after the plaintiff’s attorney had in his argument, made a remark that would, in the opinion of the defendants, have raised a question as to the financial ability of the defendants to pay damages. However, since the trial court instructed the jury not to consider the financial ability of one side against the other and there is no contention that such instruction did not correct the alleged improper argument, the failure to grant the defendants’ motion for mistrial does not show any reversible error.
3. Special ground 12 is also based on the failure of the trial court to grant a mistrial because of alleged improper argument of counsel for the plaintiff. The purported argument in such ground was based upon evidence in the record and was not improper.
For the foregoing reasons I must dissent from the divisions of the opinion herein dealt with and from the judgment of reversal.
I am authorized to say that Judge Bell concurs in this dissent.