" Gates v. Southern R. Co., 118 Ga. App. 201, 204 ( 162 S.E.2d 893). In accord, Etheridge Motors, Inc. v. Haynie, 107 Ga. App. 674 (1) ( 131 S.E.2d 212); Hunt v. Pollard, 55 Ga. App. 423, 427 ( 190 S.E. 71). Moreover, such request was not adjusted to the evidence.
the speed of the vehicles and the traffic and conditions upon the highway, in violation of Code Ann. § 68-1641 (a), since, in order to find these or similar violations to be negligence per se a finding of common law negligence must first be made. Grayson v. Yarbrough, 103 Ga. App. 243, 247 (2) ( 119 S.E.2d 41). It is because of this very thing that both this court and the Supreme Court have many times asserted it to be error, requiring a new trial, for a court to charge that certain acts or omissions constitute negligence when they are not made so by statute, or to charge that if these acts or omissions were proven to the satisfaction of the jury they could be found to be negligence. Savannah, F. c. R. Co. v. Evans, 115 Ga. 315 ( 41 S.E. 631, 90 ASR 116); Atlanta c. R. Co. v. Hudson, 123 Ga. 108 ( 51 S.E. 29); Elberton c. R. Co. v. Thornton, 32 Ga. App. 259 (1) ( 122 S.E. 795); Watson v. Riggs, 79 Ga. App. 784 ( 54 S.E.2d 323); Campbell v. Eubanks, 107 Ga. App. 527 ( 130 S.E.2d 832); Etheridge Motors, Inc. v. Haynie, 107 Ga. App. 674 (1) ( 131 S.E.2d 212); Northern Freight Lines v. Southern R. Co., 108 Ga. App. 189 (1, 3) ( 132 S.E.2d 541). Even when the petition is held good as against a general demurrer, "it is error for the judge, in a suit for damages based on the negligence of the defendant, to charge that if the defendant's failure to do its duty `was in accordance with the allegations of the plaintiff's petition, then that would be negligence, as he charges in this case.'"
We do not agree that Code Ann. § 68-1661 makes Justice Bleckley's reasoning in Richmond c. R. Co. v. Howard, 79 Ga. 44, supra, unsound and inapplicable at the present time. It is still the law applicable to this instruction respecting common law negligence. This court has recently applied the same reasoning. Etheridge Motors, Inc. v. Haynie, 107 Ga. App. 674 ( 131 S.E.2d 212). We adhere to Division 3 of the opinion.
v. Haynie, 131 S.E.2d 212 (Ga.Ct.App. 1963); Coote v. Branch Banking, 664 S.E.2d 554 (Ga.Ct.App. 2008).