concurring specially.
As to enumeration of error number six (discussed in Division 5), it is urged by appellant that the trial judge erred in charging the jury that if they decided the defendant, Miss Shannon, violated the law of Georgia, this could constitute negligence per se. Defendant promptly objected because this charge was not made to apply to the drivers of the other two automobiles involved. At first blush, this objection would appear meritorious, as being argumentative, under Code § 81-1104.
It is true that defendant contended that McFail, driver of the Oldsmobile car in which plaintiff was seated, and Files, driver, of a Buick automobile, committed negligence which caused the collision and that defendant Shannon was not at fault; and she filed a third party action against these two parties. But she dismissed her third party action as to McFail, and Files failed to answer and said third party action, as to him, was in default.
Therefore, defendant’s objection to the charge upon the ground that the judge should have made the principle of negligence per se apply to these two third party defendants (one of whom appellant had voluntarily dismissed, and the other being in default) was not well taken, and there is no merit in this enumeration.