dissenting.
“Where the pleadings and evidence raise a question as to both plaintiff and defendant being negligent accompanied by a request for a charge on comparative negligence, it is proper for the court to charge such principle.” Southern States, Inc. v. Thomason, 128 Ga. App. 667 (2) (197 SE2d 429) (1973). However, it is improper to charge on comparative negligence where there is no evidence authorizing such a charge. Calloway v. Rossman, 150 Ga. App. 381, 385 (257 SE2d 913) (1979). It is my opinion that a charge on comparative negligence was not authorized by the evidence in this case. I therefore respectfully dissent.
I agree with the majority that “the jury was not bound by the opinion testimony of the investigating police officer but was authorized to consider his testimony as to the relevant facts as disclosed by his investigation and make its own interpretation.” However, I find nothing in this or any other testimony which raises a question of negligence on the part of appellant. I conclude that the trial court erred in charging the jury on comparative negligence. Earl v. Edwards, 117 Ga. App. 559 (161 SE2d 438) (1968); Parks v. Fuller, 100 Ga. App. 463, 467-468 (111 SE2d 755) (1959).
I am authorized to state that Presiding Judge Quillian, Judge Banke and Judge Carley join in this dissent.