Thomas v. Baxter

507 S.E.2d 766, 234 Ga. App. 663, 98 Fulton County D. Rep. 3484, 1998 Ga. App. LEXIS 1260
CourtCourt of Appeals of Georgia
DecidedSeptember 16, 1998
DocketA98A1825
StatusPublished
Cited by7 cases

This text of 507 S.E.2d 766 (Thomas v. Baxter) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thomas v. Baxter, 507 S.E.2d 766, 234 Ga. App. 663, 98 Fulton County D. Rep. 3484, 1998 Ga. App. LEXIS 1260 (Ga. Ct. App. 1998).

Opinions

Eldridge, Judge.

This appeal arises out of an incident which occurred when the “T-top” came off of the vehicle Angela Baxter, defendant/appellee, was driving and struck the windshield of the vehicle in which Debra Thomas, plaintiff/appellant, was a passenger, causing injuries to Thomas. The case was tried before a jury in the Superior Court of Dodge County. At the close of Thomas’ case, Baxter moved the trial court for a directed verdict. After hearing arguments, the trial court granted Baxter’s motion and subsequently entered judgment in her favor. Thomas appeals.

On the evening of May 27, 1995, Baxter was driving a Monte Carlo owned by her boyfriend Vincent Horne.1 Horne was a passenger in the Monte Carlo and was sitting in the back seat. This was not [664]*664the car Baxter normally drove. However, Baxter had her own set of keys to the Monte Carlo, and she had driven it frequently during the past month when her car was not running. Sometimes, Baxter would drive Horne to work at approximately 1:00 p.m. and pick him up between 9:00 or 9:30 p.m., so that she would have the use of the vehicle.

Baxter testified that, as she was driving along Antioch Church Road, a car drove up from behind her with only one headlight. She stated that the vehicle was very close to her rear bumper. Baxter testified that initially she started to pull over, but then decided to speed up. As she increased her speed, she hit a place in the road where there were several dips or irregularities in the pavement. Baxter then testified that she had previously driven over these dips on Antioch Church Road and was aware that they were there. Baxter further testified that, in her opinion, the dips were not deep enough to do any damage and that a regular car could drive right over them. Baxter stated that when she hit the dips the night of the incident, it was “just like a normal dip. You fall down in a dip. It’s not like your car is bouncing all over the street.” She went on to testify that the bouncing action caused by the dip was not a hard bounce. Baxter testified that she did not know when the T-top came off the Monte Carlo, but she thought it probably came off when she hit one of the dips.

Vincent Horne testified that a vehicle came up behind them with bright lights and that he told Baxter to speed up. Horne stated that Baxter was going about 40 mph when the car came up behind them and increased her speed to no more than 50 or 55 mph; there was no testimony as to the posted speed limit. Horne testified that, when the Monte Carlo hit the dips in the pavement of the road, the car bounced hard and jerked up and down, but that the jerking motion was not enough to make his head hit the top of the car. Horne stated that he and Baxter had driven on that portion of Antioch Church Road previously and, even though they usually tried to avoid the dips, sometimes they could not.

Horne further testified that the T-top is secured to the Monte Carlo with a latch and had previously never come off when they were driving. Horne stated that he had previously driven the Monte Carlo from the opposite direction over these dips at the same speed without any problem with the T-top. Horne went on to testify that he had not noticed that the T-top was loose; that he had not heard the T-top rattling or had any indication that the latch was loose; and that he had no reason to think the T-top would come off as they were driving. Horne testified that he usually did not take the T-top off in May, that it had been a week since it had been removed, and that he was the last person to remove and replace the T-top.

Horne testified that Baxter did not perform any maintenance on [665]*665the Monte Carlo, nor was she responsible for having such maintenance performed, that he did all of the maintenance on the car, and that he had not performed any maintenance on the T-top. Horne further testified that, when he had the T-top replaced by a mechanic, the Monte Carlo did not have to be repaired to make the T-top fit.

Horne did not know when the T-top came off the Monte Carlo. He testified that he knew the T-top was in place prior to the car going over the dips in the pavement. After they had gone over the dips and had proceeded up the road, Horne felt wind, looked up, and the T-top was gone. At his deposition, Horne testified that he did not know when the T-top came off, but presumed it came off when they drove over the dips.

Thomas testified to the following: On the night of the incident, her family was driving down Antioch Church Road at approximately 10:50 p.m. She was a passenger in a car driven by her husband, and they were a reasonable distance behind the car in front of them. Thomas saw a flash, and something hit the windshield, breaking it. Thomas’ husband stopped the car, instructed her to put pressure on her face, and drove her to the hospital. The muscles in her right arm were severed, she had multiple cuts and abrasions on her body and face, and had to have stitches in her chin, the corner of her mouth, and her tongue. Thomas was hospitalized for four days.’

Thomas further testified that Horne and Baxter had been visiting her brother-in-law, who lived next door to her, on the day of the incident. When the Thomas family left their home, she observed Horne’s Monte Carlo leave her brother-in-law’s house, traveling in the same direction they were traveling. When they stopped at the intersection of Zion Hill Church Road and Antioch Church Road, there was a security light, and Thomas was able to see Horne’s Monte Carlo turning onto Antioch Church Road in the same direction that her family’s car was turning.

Trooper Glenn Renew of the Georgia State Patrol investigated the incident. He spoke with Mr. and Ms. Thomas at the hospital and with Baxter and Horne at the National Guard Armory where they were attending a dance. Trooper Renew could not recall either Baxter or Horne mentioning a dip in the road or that a vehicle came up behind the Monte Carlo at a high rate of speed with bright lights. Trooper Renew testified that he thought Horne gave him an explanation of why the T-top came off, but he could not remember what the explanation was. Trooper Renew went on to testify that he thought Horne might have said the T-top was not properly fastened.

1. In her first enumeration of error, plaintiff/appellant alleges the trial court erred when it allowed defendant/appellee to cross-examine witness Vincent Horne and ask questions outside the subject matter of plaintiff/appellant’s examination when plaintiff/appel[666]*666lant had called the witness during her case for cross-examination under OCGA § 24-9-81.

Where a witness has been called for cross-examination under OCGA § 24-9-81, it is within the discretion of the trial court to allow such witness to be questioned by the attorney for the opposite party at the conclusion of the calling party’s examination. CSX Transp. v. Levant, 200 Ga. App. 856 (410 SE2d 299) (1991), rev’d on other grounds, 262 Ga. 313 (417 SE2d 320) (1992); Southeastern Metal Products v. DeVaughn, 99 Ga. App. 569 (109 SE2d 305) (1959). The general rule is that, if an “adverse party or agent as specified in OCGA § 24-9-81 ...

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Bluebook (online)
507 S.E.2d 766, 234 Ga. App. 663, 98 Fulton County D. Rep. 3484, 1998 Ga. App. LEXIS 1260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thomas-v-baxter-gactapp-1998.