One who is rightfully using the highway or street has a right to the use thereof superior to that of one violating the traffic regulations, and in the absence of knowledge is not required to anticipate that some other unlawful use will be made thereof in violation of the rule of the road and thus create a dangerous situation. Eubanks v. Mullis, 51 Ga. App. 728, 731 (181 SE 601)." English v. Georgia Power Co. 66 Ga. App. 363, 366 (17 SE2d 891).

2. Although vehicles traveling along through highways or streets generally have the "right of way" over vehicles entering or crossing such highways or streets from intersecting streets, yet such "right of way" is not absolute under all circumstances and is determinable by their relative positions, speed and other circumstances. See Brown v. Sanders, 44 Ga. App. 114 (1) (160 SE 542), and citations.

3. "Where a driver who is proceeding in the favored direction so acts as to indication intention to yield to the driver who is proceeding in the disfavored direction, the latter may properly proceed." 60 CJS 897, Motor Vehicles, 363; 42 CJ 988, Motor Vehicles, 767, and citations.

4. Where a driver on a favored roadway signals an intention to make a right turn, a driver on the disfavored roadway, and to the first driver's right, may proceed to cross the favored roadway, the favored driver having indicated an intention to yield the "right of way" to cross in front of the disfavored driver.

6. The charge did not authorize the jury to find that the plaintiff had yielded her superior right of way merely by the giving of the turn signal, for the charge included the requirement that the jury must find that the plaintiff approached the intersection with the "right turn signal on; that is operating, and indicated to the defendant that she was going to make a right turn." Such charge requires an additional element, e.g. slowing speed, extreme right hand side of the road, etc. Had the plaintiff desired or felt that additional instructions defining how the plaintiff might have "indicated" to the defendant her intention to yield the right of way the assignment of error should be on such ground and not on the correct charge given. See Hardwick v. Georgia Power Co., 100 Ga. App. 38 (4) (110 SE2d 24); Atkinson v. Harvey, 109 Ga. App. 541 (1) (136 SE2d 543), and citations.

7. The charge complained of in the plaintiff's motion for new trial was not error for any reason assigned, and the trial court did not err in overruling the plaintiff's motion for new trial.

The present action arose out of an intersection collision which occurred when Patricia Chastain, while driving in a northerly direction, pulled from a side street into the path of an automobile driven in an easterly direction by Sophronia Greenlee on a through street. It was alleged, and evidence was adduced without contradiction, that the street on which the Greenlee automobile was traveling had two lanes for east bound traffic, that the Greenlee automobile was in the southernmost or right-hand lane of the lanes for eastbound traffic, and that she was traveling at not more than 15 to 20 miles per hour. She alleged and testified that she was driving 15 miles per hour while her husband, a passenger in her vehicle, placed her speed at between 15 and 20 miles per hour. Witnesses for the Chastains testified that the Greenlee automobile was approaching the intersection with the right-turn signal light flashing, while the Greenlees testified that such signal was not flashing. After verdict the Greenlees' motions for new trial were overruled and it is to such judgments that they now except.

PANNELL, Judge, dissenting. I cannot concur in the ruling that the giving of a right-turn signal by one driving an automobile on a favored highway approaching an intersection with an unfavored highway, even at a slow speed, constitutes an indication of intention to yield the right of way to an automobile upon the unfavored highway stopped at a stop sign at such intersection and to the right of the favored vehicle. All it could possibly indicate is an intention to make a right turn. The authority for the majority holding is a quotation from 60 CJS 897 in the third headnote. The case cited in 60 CJS 897 as authority for the statement (Widman v. Ashcraft, 117 Colo. 373, 188 P2d 889) was a case wherein the favored vehicle stopped and the driver motioned the unfavored vehicle across the intersection relieving the unfavored vehicle only of negligence per se arising out of a charge of violating the right of way rule. The cases cited in 42 CJ to sustain the same quotation are of similar import. In DeMarey v. Brugas, 103 Conn. 667, 669 (131 A 392), where a bus, having the right of way, slackened its speed at an intersection to let a passenger alight, and when this happened the driver of the automobile proceeded into the intersection and the driver of the bus, instead of stopping merely slowed to permit the passenger to alight and struck the automobile on its rear right-hand wheel, it was held: "Under such circumstances the jury could reasonably have found that the automobile had the right of way into the intersection, since under the apparent situation, the driver of the automobile acting with reasonable care, could reasonably have believed that he could proceed across the intersection without risk of collision." (Emphasis ours). In Hammond v. Emery-Bird-Thayer Dry Goods Co. (Mo.) 246 SW 170, it was stated in discussing the question of right of way and negligence of the parties that starting to stop by the favored vehicle involves a suggestion to the other to go ahead, increase his speed and pass in front of the favored vehicle. This case involved a left turn in front of the favored vehicle. In Clark v. Wilson, 108 Wash. 127 (183 P 103), the favored vehicle slowed down, the other driver changed course and proceeded. It was held that the favored driver, after slowing down and after seeing the other driver change course and proceed, was negligent in proceeding in front of the other driver. None of these cases is authority for the ruling in the present case. In my opinion, the provisions of 74 of Art. IX of the Uniform Act Regulating Traffic on Highways (Ga. L. 1953, Nov. Sess., pp. 556, 596; Code Ann. 68-1652), which provide that the unfavored driver at a stop intersection shall yield to vehicles "within the intersection or approaching so closely as to constitute an immediate hazard," control the case before this court.

There can be no doubt that the favored vehicle in the present case was so close as to constitute an immediate hazard. Under these circumstances, there was a duty upon the driver of the unfavored vehicle to wait until the favored vehicle, either in crossing the intersection or in making the right turn, had progressed to the point that it did not constitute a hazard. For the reasons above stated, I cannot concur in Divisions 4, 5 and 6 of the majority opinion.

I am authorized to state that Felton, C. J., Frankum and Eberhardt, JJ., concur in this dissent.