dissenting. This is a case which is extremely close on its facts. In the first place, the defendant’s driver changed his previous testimony that he was proceeding 50 miles per hour (the maximum speed limit for his van truck) to 45 miles per hour, although other eyewitnesses, strongly corrob*864orated by photographs and other physical evidence as to the velocity and force of the truck after the point of impact, placed it at from 60 to 70. In the second place, the driver admitted that he saw the sign warning him to reduce speed because of an intersecting road and that he failed to reduce speed, which is in itself negligence per se. Code Ann. § 68-1626 (3c).
Secondly, while this witness stated that he did not see the automobile emerging from the side road in a wooded area until he was 6 feet away from it, the evidence demands a finding that he should have seen it at a distance of 60 to 80 feet away. The evidence is uncontradicted that the edge of the right of way had been cleared of obstructions 30 to 40 feet back, that the plaintiff’s automobile was moving no more than 20 to 25 miles per hour, and that from a distance of 100 yards down the road plaintiff’s driver had an unobstructed view of the cleared portion of the right of way. Since under the defendant’s own testimony the truck was traveling twice as fast as the automobile, the truck was at least 60 to 80 feet away from the intersection when plaintiff’s automobile came into the line of vision, and this was after defendant’s driver had already seen the sign instructing him to decrease speed because of the intersection.
I recognize that error is not assigned on the charge relating to accident on the ground that it was improper in the face of this testimony relating to negligence. It is, however, assigned as error in the precise language of Holloway v. Mayor &c. of Milledgeville, 35 Ga. App. 87 (6) (132 S. E. 106) as being argumentative and calculated to prejudice the plaintiff’s case. The language held reversible error in that case was: “Calamities and casualties are common to all, but because they occur it by no means follows that such as may be so unfortunate are entitled to recover compensation in damages . . . unless the person causing the damage fails to exercise ordinary care and diligence.” Here the language is: “The mere fact that Mr. William Pierce Carr was killed in this collision does not authorize a verdict in favor of the plaintiff because there are casualties which occur for which no one is responsible. Such a casualty in the eyes of the law is an accident for which no one can recover.” I think the one charge as argumentative as the other, and equal cause for reversal.
*8652. Division 6 of the majority opinion calls attention to the inaccuracy of the court’s charge on the pleadings. While I agree that this error is not by itself sufficient to demand a reversal,' it is nevertheless error and presumed harmful, and, when considered in connection with the reversible error pointed out above, affords an additional reason for sending this case back for another trial.