dissenting.
I am unable to agree with the holding of the majority that the evidence authorized jury instructions on comparative negligence or avoidance of consequences. My review of the trial transcript discloses no evidence of negligence on the part of the appellant, although there was evidence of the appellee’s negligent act in failing to stop at the stop sign at the intersection. The testimony of the eyewitness, who *631was the driver of a vehicle stopped at the intersection, was that he could see both appellant’s motorcycle and appellee’s car approaching the intersection; that he stopped because he saw appellee’s car was not going to stop, and said to his wife, who was a passenger in his truck, “Look out, there’s fixing to be a wreck”; and that appellee’s car did not stop at the stop sign and did not slow down. Appellant testified that he was familiar with that stretch of the road and the intersection; that he knew there was a rise at the intersection so he would always take the precaution to “coast” through it; and that if a car were stopped at the intersection his view of it would not be obstructed, but if it were further back he could not have seen it because of the hill and overgrowth. The appellee testified that he did stop at the intersection and looked north but did not see appellant. While appellee alleged that appellant was speeding, and failed to keep a proper lookout and to have his vehicle under control, the testimony did not substantiate those conclusions, nor did appellee produce any other evidence to do so. The eyewitness stated that it appeared to him that the driver of the motorcycle swerved to avoid the collision. The evidence also indicated that while the collision occurred too rapidly for appellant to successfully take any evasive maneuvers, there was nothing to show any loss of control or excessive speed on his part.
“ ‘A driver having the right of way . . . has the right to assume that others will obey the rule of the road [Cit.] and he has a right to proceed at a reasonable speed even though he sees another vehicle approaching. What he cannot do is to test a known and obvious peril, and after it is or should be clearly apprehended that a collision is threatened or imminent, he cannot blindly and recklessly proceed without regard to conditions and consequences. [Cits.]’ (Emphasis omitted.) . . . ‘[W]here there is no evidence to show that one party could in fact have discovered and avoided the negligence of the other, [an] instruction [on the plaintiff’s duty to avoid the negligence of the defendant] is inappropriate and should not be given. [Cits.]’ . . . There is no ‘absolute duty on any driver to avoid a collision’ [cit.], and the burden was on [appellee] to prove that his negligence could have been discovered and avoided by [appellant]. [Cit.] This burden was not met.” Moore v. Price, 158 Ga. App. 566, 569 (281 SE2d 269) (1981).
“Response by mere conclusory statements is insufficient to set forth specific facts showing a genuine issue for trial. [Cit.] . . . We are aware of no precedent which would impose a standard of care on one person which requires him to presume the negligence or sudden emergency of another. This proposition is simply untenable.” Tallman Pools of Ga. v. James, 181 Ga. App. 341, 343 (352 SE2d 179) (1986). Where the record contains no evidence of any negligence on the part of the plaintiff, “it is presumed, in the absence of evidence to the *632contrary, that plaintiff exercised due care. [Cit.]” Nelson & Budd v. Brunson, 173 Ga. App. 856, 857 (3) (328 SE2d 746) (1985). “Since it is error to charge on the doctrine of comparative negligence when there is no evidence of such negligence even though the issue . . . may have been raised in the defendant’s pleadings [cits.], the instruction complained of here was erroneous; and since the verdict rendered by the jury was for an amount less than sued for, such error was presumptively harmful to the plaintiff and requires the grant of a new trial. [Cit.]” Massey v. Stephens, 113 Ga. App. 10, 11 (147 SE2d 53) (1966). Accord Battle v. Strother, 171 Ga. App. 418 (5) (319 SE2d 887) (1984); Elsberry v. Lewis, 140 Ga. App. 324 (5) (231 SE2d 789) (1976). Compare Hester v. Baker, 180 Ga. App. 627 (2) (349 SE2d 834) (1986).
Decided June 16, 1987 Rehearing dismissed July 13, 1987. Martin M. Kendall, for appellant. James R. Fortune, Jr., for appellee.The transcript is devoid of any evidence even suggesting that appellant drove “blindly or recklessly” through a “blind intersection,” or otherwise failed to exercise ordinary care in approaching it under the facts and circumstances of this situation. Nor was it shown that he failed to remain alert in observing the vehicles approaching the crossing so that with ordinary diligence he could have avoided the collision. Compare Kirkland v. Moore, 128 Ga. App. 34 (195 SE2d 667) (1973). Accordingly, I respectfully dissent from Divisions 1 and 2 of the majority opinion and the judgment.
I am authorized to state that Judge Carley and Judge Pope join in this dissent.