concurring specially.
While I must reluctantly concur in the judgment of the majority, I write separately to point out that my concurrence in Division 2 of the majority opinion is in judgment only, rather than an agreement with the rationale expressed therein. Under my reading of the procedural realities of this case, the merits of plaintiff’s enumeration of error regarding the charge on comparative negligence are not reached in this case only because during the charge conference plaintiff’s counsel expressly agreed that it be given. In fact, the charge now complained of began as a request to charge offered by one of the defendant railroads. The charge as given is the product of certain amendments made at the behest of plaintiff’s counsel and explicitly agreed to by him. The giving of this instruction was, thus, at the very least acquiesced in by counsel. See also Irvin v. Oliver, 223 Ga. 193 (2) (154 SE2d 217) (1967); Brown v. Garcia, 154 Ga. App. 837 (1) (270 SE2d 63) (1980). Because of the foregoing, appellate review is precluded.
Additionally, I find the reference to the opinion in Brooks v. Cellin Mfg. Co., 251 Ga. 395 (306 SE2d 657) (1983), made in obiter dictum of Division 3 is in need of clarification. The evidence of subsequent repairs was held to be admissible only because the door to rebuttal testimony of remedial measures had been opened by defendant’s counsel whose question and its answer if allowed to go unrebutted left the jury with an unfair impression. See also Brooks v. Cellin Mfg. Co., 165 Ga. App. 375, 377 (299 SE2d 888) (1983) (dissenting opinion). The Supreme Court’s opinion in Brooks v. Cellin Mfg. Co., supra, therefore, stands only for the proposition that although the evidence was of subsequent remedial measures, it was admissible because it was submitted for a different purpose; that is, to rebut testimony previously offered by defendant.
I am authorized to state that Presiding Judge Deen joins in this special concurrence.