Styles v. Dennard, 97 Ga. App. 635 ( 104 S.E.2d 258). On the second appearance this court affirmed the trial court's grant of a new trial on the general grounds following a jury verdict for defendant, on the basis of substantially the same evidence as that introduced on the former trial. Dennard v. Styles, 101 Ga. App. 459 ( 114 S.E.2d 317). Thereafter, plaintiff filed a motion for summary judgment, filing an affidavit setting forth how the collision occurred and tendering in evidence the briefs of the evidence from the two previous trials. The defendant did not file affidavits or produce any additional evidence.
Moreover, even where the trial court grants a new trial both on the general and one or more of the special grounds, and the reviewing court affirms on the general grounds, it is nevertheless necessary for the appellate court to review the rulings made by the trial court in granting a new trial on the special grounds. Dennard v. Styles, 101 Ga. App. 459 (2) ( 114 S.E.2d 317); Blanchard v. Westview Cemetery, 133 Ga. App. 262, 264 (2), supra. It is obvious, then, that if there is to be any meaningful review of the order granting judgment n.o.v. and in the alternative a new trial, the trial court must specify the grounds for granting the new trial as required by CPA § 50 (c) (1).
2. "Since the enactment of the Act of 1957, approving the amendment to the Rules of Practice Procedure (Ga. L. 1957, p. 224 et seq.), and particularly Sec. 2 thereof [amending former Code § 6-701], the rule applied in Hayes v. Dicks, 95 Ga. App. 11 ( 96 S.E.2d 627), is no longer applicable in cases of this kind, and it, therefore, becomes necessary to consider the rulings made by the trial judge in granting a new trial on the special grounds if it appears that such questions may recur on another trial." Dennard v. Styles, 101 Ga. App. 459 (2) ( 114 S.E.2d 317). The provisions of Code Ann. § 6-701 (b) (Ga. L. 1965, p. 18; 1968, pp. 1072, 1073) are materially identical to the corresponding provisions of former Code § 6-701, which it superseded, the changes made being principally in nomenclature, to conform with the terminology of the Appellate Practice Act of 1965.
"[A]n issue must be made by both the pleading and the evidence, Hardwick v. Georgia Power Co., 100 Ga. App. 38 (5) ( 110 S.E.2d 24), and it is error to charge on an issue made by the pleadings where there is no evidence in support thereof. Western c. R. Co. v. Branan, 123 Ga. 692 (3) ( 51 S.E. 650); Donald v. Fulton County, 101 Ga. App. 198 (2) ( 112 S.E.2d 829); Dennard v. Styles, 101 Ga. App. 459 (4) ( 114 S.E.2d 317). Specifically, it is error to charge on contributory or comparative negligence when there is no evidence of such negligence. Brooke v. Bowers, 91 Ga. App. 543 (1) ( 86 S.E.2d 341); Parks v. Fuller, 100 Ga. App. 463, 467 (2) ( 111 S.E.2d 755); Bentley v. Buice, 102 Ga. App. 101, 105 (2) ( 115 S.E.2d 706); Sellers v. White, 104 Ga. App. 148 (1) ( 121 S.E.2d 385) and citations.
However, an issue must be made by both the pleading and the evidence ( Hardwick v. Georgia Power Co., 100 Ga. App. 38 (5), 110 S.E.2d 24), and it is error to charge on an issue made by the pleadings where there is no evidence in support thereof. Western c. R. Co. v. Branan, 123 Ga. 692 (3) ( 51 S.E. 650); Donald v. Fulton County, 101 Ga. App. 198 (2) ( 112 S.E.2d 829); Dennard v. Styles, 101 Ga. App. 459 (4) ( 114 S.E.2d 317). Specifically, it is error to charge on contributory or comparative negligence when there is no evidence of such negligence. Brooke v. Bowers, 91 Ga. App. 543 (1) ( 86 S.E.2d 341); Parks v. Fuller, 100 Ga. App. 463, 467 (2) ( 11 S.E.2d 755); Bentley v. Buice, 102 Ga. App. 101, 105 (2) ( 115 S.E.2d 706); Sellers v. White, 104 Ga. App. 148 (1) ( 121 S.E.2d 385) and citations. Furthermore, when the defendants pled contributory negligence as an affirmative defense in the case sub judice, they had the burden of proving it and to do so they must come forward with some evidence.
On the contrary, the defendant testified that the plaintiff did agree to the specific fee. Suffice it to say, the evidence did not demand a finding for the plaintiff or for the defendant. Under the ruling of Dennard v. Styles, 101 Ga. App. 459 ( 114 S.E.2d 317) (and cases cited therein), the trial judge has now exercised his discretion to grant a new trial, and we cannot find that he has abused such discretion. Judgment affirmed. Gardner, P. J., Townsend and Carlisle, JJ., concur.