The trial court's charge was in irreconcilable conflict and was never properly corrected, and by no reasoning are we able to say that this conflict was harmless. See Johnson v. State, 148 Ga. App. 702, 704(2) ( 252 S.E.2d 205) (1979); State Hwy. Dept. v. Hilliard, 112 Ga. App. 498, 499(1) ( 145 S.E.2d 824) (1965); Baxter v. State Hwy. Dept., 108 Ga. App. 324 ( 132 S.E.2d 863) (1963). The dissent opines that each criticism of the nursing staff's actions was an assertion of professional negligence and that the allegations of ordinary negligence relate only to the purported failure of the hospital to train the nurses, which could not have proximately caused the child's death apart from some failure of the nurses to meet the professional standard of care. Whether the negligence alleged by a plaintiff is ordinary negligence or professional malpractice is a question of law.
No curative charge was given, and we are unable to say that this conflict was harmless in the circumstances of this case. See Johnson v. State, 148 Ga. App. 702, 704 (2) ( 252 SE2d 205) (1979); State Hwy. Dept. v. Hilliard, 112 Ga. App. 498, 499 (1) ( 145 SE2d 824) (1965); Baxter v. State Hwy. Dept., 108 Ga. App. 324 ( 132 SE2d 863) (1963). That the jury charge was in conflict and confusion as to liability upon the advice of counsel, the grant of a new trial is required.
Where a charge containing two distinct propositions, conflicting one with the other, is calculated to leave the jury in such a confused condition of mind that the jury cannot render an intelligible verdict, the result cannot be held harmless and requires the grant of a new trial. See State Hwy. Dept. v. Hilliard, 112 Ga. App. 498, 499 (2) ( 145 S.E.2d 824) (1965); Srochi v. Kamensky, 121 Ga. App. 518, 525 (4d) ( 174 S.E.2d 263) (1970). For this reason the judgment must be reversed.
[Cits.]" State Hwy. Dept. v. Hillard, 112 Ga. App. 498 (1) ( 145 S.E.2d 824) (1965). "Correct instructions as to the law become erroneous when they are not applicable to the evidence in the case on trial.
[Cits.]" State Highway Dept. v. Hilliard, 112 Ga. App. 498, 499 ( 145 S.E.2d 824). 2.
While it is conceivable that the jury reconciled the conflicting portions of the charge, appellees' contention that "the jury could only have understood that consequential damages and consequential benefits, including the prospective effect of the MARTA project, must be determined as of the date of the taking" is clearly wishful thinking. "The jury should not be left to decide between conflicts in the charge ..." Savannah Elec. Co. v. McClelland, 128 Ga. 87 (2) ( 57 S.E. 91) (1907); State Hwy. Dept. v. Hilliard, 112 Ga. App. 498, 499 ( 145 S.E.2d 824) (1965). 2.