
    39073.
    RICE et al. v. MATTHEWS, Administratrix.
    Decided October 6, 1961.
    
      
      Powell, Goldstein, Frazer & Murphy, 'Edward E. Dorsey, C. B. Rogers, for plaintiffs in error.
    
      Augustine Sams, Emory Kinard, contra.
   Ebbrhardt; Judge.

Since the new trial here was granted on special grounds of the amended motion, and not on discretionary grounds, it does not fall within the rule that the first grant of a new trial shall not be disturbed. Code § 6-1608, as amended by the act of 1959 (Ga. L. 1959, pp. 353, 354).

There must be no expression of opinion on the facts by the court in its charge to the jury, and if such there be, a new trial must be granted. Code § 81-1104.

We are persuaded that the trial judge felt that there was some expression of opinion by him, in view of the conflict in the testimony, that Matthews did test a peril that he had observed. If the jury believed that Matthews was walking along the street near to and parallel with the curb, then this portion of the charge would have no application; it would come into play only if they should conclude that he was walking across the street and that he, after observing Mrs. Rice coming only a few feet away, determined that he would get across in front of her. This was not explained to the jury, and we are constrained to agree that they may have concluded that the judge was expressing an opinion that it was this situation, rather than that contended by plaintiff, with which Matthews was faced and with which he dealt. The trial judge; having delivered the charge, and having come to the conclusion that he committed error in the expression of an opinion, his grant of a new trial ought to be affirmed unless the record clearly, unmistakably and unequivocally demonstrates that no opinion was expressed.

Judgment affirmed.

Carlisle, P. J., and Nichols, J., concur.  