concurring specially.
I concur in the judgment affirming the lower court; and in all that is said in the opinion except that part of Division 3, which discusses enumeration of error number three, and holds that the charge was not argumentative. I believe the charge of the trial judge was argumentative and that if proper objection had been made thereto, as is required under Code Ann. § 70-207 (Ga. L. 1965, pp. 18, 31; 1966, pp. 493, 498; 1968, pp. 1072, 1078), a new trial *526should have resulted.
Pertinent portions of the charge to which exceptions are taken are as follows: "In this connection, I charge you that if you believe from the evidence in this case that Leslie Gordon or David L. Carter was confronted with a sudden emergency when the vehicle in front of him stopped or began stopping and when, confronted with such an emergency, he elected to maintain his vehicle on the highway and apply his brakes to avoid striking the vehicle in front of him and if you should conclude from the evidence that such action on his part was the act of an ordinarily prudent person, then he would not be liable for taking such action provided the so-called emergency was not created or did not arise from the fault of the party so acting.” (Emphasis supplied.)
None of the conduct above called into play the rule of negligence per se, that is, violation of a statute. Our courts have held time and again that it is error to charge as to what acts constitute negligence, unless the conduct amounts to negligence per se, and as to what acts will authorize one of the parties in the case to prevail.
In Savannah Electric Co. v. Joseph, 25 Ga. App. 518 (2) (103 SE 723), it is held that: "It is not the duty of the trial judge to instruct the jury as to what facts constitute negligence. In Savannah Electric Co. v. Johnson, 25 Ga. App. 517 (1) (103 SE 798), it was held that: ". . . where a certain state of facts proved by the evidence did not demand the inference that the plaintiffs injury was caused by the defendant’s negligence, it was error to instruct the jury that, should they believe such facts to be true, they would be authorized to find for the plaintiff.” In Augusta-Aiken R. & Elec. Corp. v. Andrews, 20 Ga. App. 789 (2) (93 SE 543), it is held that: "An instruction to the jury, that if they should find from the evidence that at the time the injury was received a given state of facts existed, the defendant would be liable, is error, when the facts enumerated are not such as would constitute negligence per se . . .”
In Watson v. Riggs, 79 Ga. App. 784, 785 (54 SE2d 323), it is held: "A trial judge may not tell a jury what acts would or would not constitute negligence unless the acts have been declared by statute to be negligent. Savannah, *527Florida &c. R. Co. v. Evans, 115 Ga. 315 (41 SE 631, 90 Am. St. R. 116); Atlanta &W.P.R. Co. v. Hudson, 123 Ga. 108 (51 SE 29).” And in Atlantic C. L. R. Co. v. McDonald, 135 Ga. 635, 636 (6) (70 SE 249), it is held: "Except where a particular act is declared to be negligence, either by statute or valid municipal ordinance, the judge should not instruct the jury what ordinary care requires should be done in a particular case ... (citing cases)... The error in the charge complained of was sufficient to require the grant of a new trial.”
But in the case sub judice, the plaintiff did not give the trial judge proper notice of what objection he was interposing to this language in the charge, whereby a correction might be made. He made a very lengthy objection to this excerpt, mainly on the ground that emergency was not involved in the case, and then said: "We say that this is argumentative in that it was applied to a specific fact situation.” Of course, the charge applied to a "specific fact situation,” as is true of much of the language in every charge. If plaintiff had objected upon the ground that the charge was argumentative in that it instructed the jury that certain conduct on the part of a defendant would render him not liable for taking such action, and that it therefore invaded the province of the jury in such respect, then his objection would have met the test laid down in Code Ann. § 70-207 and in the decisions based thereon, including the case of Black v. Aultman, 120 Ga. App. 826 (1) (172 SE2d 336), citing Ga. Power Co. v. Maddox, 113 Ga. App. 642 (1) (149 SE2d 393), which has been partially disapproved as being too broad in requiring a correct instruction in place of that objected to in A-1 Bonding Service v. Hunter, 125 Ga. App. 173, 179 (4 b), (186 SE2d 566).