In the instant case, if there had been no special request, the general charge would have covered substantially the general issue of negligence, or no negligence, arising under the pleading or the evidence, and there would be no reversible error. But where there is a special request which was more specific in its application than was the charge given, I think that such instruction should have been given as requested, and that it was reversible error not to do so. Brown v. State, 195 Ga. 430 (1) (24 S.E.2d 312). Where, as here, the judge in charging the jury stated that the defendant relied on certain acts of negligence for a recovery, and then enumerated each of such acts of negligence alleged in the petition, and where one of the acts of negligence enumerated had no evidence to support it, and the defendant by timely written request asked the judge to charge the jury that there was no evidence to support this specific ground of negligence, stating the ground, and that the jury could not return a verdict in favor of the plaintiff based on such alleged negligence, I think that it was reversible error for the judge to refuse to charge such request. Such ground of negligence did not, at the time the request was made, belong in this case. After it became obvious that the matter *Page 538 was improper and should be eliminated, it seems to me that the first opportunity the defendant had to eliminate such matter was at the time of the request, and the judge should have so removed it from the consideration of the jury by charging as requested.
If the jury should decide a case on an alleged act of negligence which had no evidence to support it, and there was other evidence as to other acts of negligence which the jury did not credit, but if believed would authorize the verdict, then the defendant would have no way of correcting such error in the trial court or this court under the majority opinion, which holds, in effect, that the proposition that error cannot be successfully assigned on the refusal to direct a verdict is applicable here.
I do not think the proposition that error can not be successfully assigned on a refusal to direct a verdict is applicable here. If there was no evidence to support the verdict for the plaintiff at the close of the evidence, and the defendant moves to direct a verdict, which motion is overruled, and the jury finds a verdict for the plaintiff, the law gives the defendant a remedy for the correction of such error by an available exception in the motion for a new trial, and both the trial court and this Court may pass upon such alleged error. But, under the majority opinion, there is no exception available for the correction of the error here complained of.
"It is one thing to state what a party contends, and another and a very different thing to state the law applicable to such contention." Atlanta c. Ry. Co. v. Gardner, 122 Ga. 82, 93 (49 S.E. 818). I think that the appellate courts in our State have not gone further than to state that, in the absence of anyrequest, "it is not reversible error to merely state correctly the contentions made by the allegations of the pleadings, even though some of them might not have been supported by the evidence." Jones v. Hogans, 197 Ga. 404, 412 (29 S.E.2d 568). (Italics mine.)
"Where several distinct matters involving diligence are presented to the jury, while it is proper to charge a general principle applicable to them all, yet if a specific charge, which is legal, apt, and precisely adjusted to one of them, be requested, it is proper to give the latter also, if it would materially aid the jury in applying the general principle to this one of the several matters for *Page 539 their consideration." Thompson v. Thompson, 77 Ga. 692 (2) (3 S.E. 261).
I think that the specific charge requested is legal, apt, and precisely adjusted to the distinct matter of one act of negligence alleged in the petition, and that it would have materially aided the jury in applying the general principle to this one of the several matters alleged in the petition by eliminating it entirely from their consideration.
Under the majority opinion, there is no way at any time during the trial, or any other time, to assign such error so that it might be corrected in the trial court or this court.