Appellants, William F. Locke, Scott W. Locke, and National Equipment Sales, Service & Supplies, Inc., bring this appeal from the judgment of the trial court, entered on a jury verdict, in an action for contribution from the appellees, Michael R. Vonalt and Robert E. Vonalt, by appellants. Appellants 'sought recovery of one-half of the amount paid by their insurer in a tort action against appellants and appellees for the wrongful deaths of Deborah Ann Britt and Chris Patsy.
Britt and Patsy died as a result of an automobile collision which occurred on the evening of June 22, 1983, involving a car driven by Scott Locke which collided with a car driven by Britt. Pаtsy was a passenger in Locke’s automobile. As Michael Vonalt and Bobby Keen started to leave a minature golf course in Vonalt’s red Chevrolet Camaro, Scott Locke and Chris Patsy drove over to them in Locke’s new 280 Datsun ZX. Locke removed the T-tops from his Datsun, and Vonalt and Keene sat in the car for a fеw minutes before leaving, although Vonalt apparently had a 9:30 p.m. home curfew. Both cars left at approximately the same time and proceeded north on Johnson Ferry Road. At a red light, Vonalt was in the right hand lane and Locke pulled up alongside and Patsy, a close friend of Vonalt, spoke to him. Vonalt sаid that Patsy asked him if he wanted to do something the coming weekend and he told Patsy to give him a call. Vonalt denies that racing was mentioned. Vonalt said that he knew that Johnson Ferry merged from four lanes to two lanes just ahead and he accelerated quickly to get into the left lane. He admitted he exceeded the speed limit and drove at approximately 55 to 60 miles per hour, and crossed over the double line dividing the north and southbound lanes to get in front of the cars in front of him. He said he glanced in his rearview mirror at Locke, but “I didn’t really care what he was doing. I was just going home. ... I caught him in the rearview mirror. . . . And, by that point I couldn’t see what hе was *784 doing anymore. It was a blind curve. ... I didn’t see Scott after I rounded that corner. I don’t know if he stayed in traffic or kept [going]. I don’t know what he was doing.”
Testimony of the other witnesses is in conflict. Kenneth Shook was driving the lead car going north when Vonalt and Locke passed him. He saw Vonalt’s Camaro pass him on the left by crossing over the double line and the Camaro was about four lengths ahead of the Datsun. The Camaro stayed on the left (in the southbound lane) for several car lengths after he passed Shook. He estimated the time lapse between the Camaro and the Datsun as “[t]en seconds or less . . .” and that when the Camaro passed him they both were “[f]ifty or a hundred yards” before Johnson Ferry narrowed from four lanes to two lanes. Shook saw only one other car at that time, the one being driven by Joy Rhodes immediately behind him.
Ms. Rhodes was the second car in this group of cars when she saw headlights in her rearview mirror and heard the sound of the red Camaro passing her at a speed she estimated at “seventy to eighty-five miles per hour.” At that spot, where the cars passed her, she said there was only one northbound and one southbound lane. “Shortly after I noticed that the Camaro had just passed me, I caught another light in my sideview mirror.” She saw the Datsun move out of the northbound lane to pass, “[h]e hesitated. He — he would move out into the left lane, move back into the right lane, and his final entrance in the left lane he stayed there. ... He didn’t pass a line of cars and then get in and then start over. He passed all the cars at — at one passing.” She was asked: “. . . [w]hen the Camaro was even with you, the Datsun was five to six cars behind, wasn’t he? A. Yes, sir.” To emphasize the point, counsel asked: “at the time the Camaro pulled back into the right lane, ahead of Mr. Shook, then the Datsun was four to five car lengths behind you? A. Four.” At a later point she testified: “About the point he [the Camaro] went into the right lane, the 280 Z was even with my car.”
Etheridge Lee Smith was prоceeding southbound on Johnson Ferry just prior to this collision. He saw four cars in the northbound lane and two other cars “came up quickly behind them, a red Camaro and a silver-blue Datsun 280 Z type car. As they approached the cars, they pulled into my lane and began passing the four cars.” The Datsun was “[r]ight behind” the Camaro. “They were about a car length apart . . . they both pulled out into the — into my lane of traffic, into the southbound lane together, and then they passed the — the four cars.” Smith drove his truck off the road to get out of the way. The Camaro “had enough room to get back over into his lane with no trouble. ... I was more concerned that the car behind him was gonna hit me . . . the red Camaro came by me, pulled back in his lane and proceeded on up the road. The Datsun right behind him *785 maneuvered fairly hard to get back into his lane. He was beside me at that point. And, as he went by he continued to go just a little bit off the road. And, at that time ... his right wheels went off the road . . . just the right sidе of the car went off the road. And, he pulled it back on pretty hard and he went across the center lane [sic], out of my sight. ... I heard tires squeeling [sic], crunching sounds; sounds of an impact. ...” Locke’s car collided with the southbound car of Deborah Ann Britt and she was killed. Locke’s passenger, Patsy, was ejected through the roof of the Datsun where the T-bars had been removed, and he was killed. The suits for their wrongful deaths were settled out of court by Locke’s insurer and this action is for contribution from Vonalt.
Locke did not testify at this trial. He claims amnesia for the entire period surrounding the collision and his claim is supported by his psychologist that he is amnestic for this event. Vonalt did not stop at the scene of the collision but proceeded on home after taking Keene to his house. Ms. Rhodes confirmed in her deposition testimony that at the time of the collision, the Camaro “had already cleared the hill. Question: Long gone away? Answer: Uh-huh. I really don’t think he knew what was going on. ... I really don’t think he knew possibly that there had been an accident, until later on down the road when he didn’t see his buddy in his rearview mirror.” The jury returned a verdict for Vonalt and the Lockes bring this appeal. Held:
1. Appellants contend the trial court erred in refusing to grant a new trial on the basis that the jury verdict was contrary to the law, the evidеnce, the principles of justice and equity, and against the weight of the evidence. Of course, an appellate court does not weigh the evidence, but determines sufficiency.
Barnebee v. Shasta Beverages,
2. Error is enumerated in the trial court’s denial of appellant’s motion in limine to exclude certain evidence. “The trial court has an absolute right to refuse to decide the admissibility of evidence, allegedly violative of some ordinary rule of evidence, prior to trial.”
State v. Johnston,
3. The appellants called Officer James E. Stephens to testify as to his investigation of this traffic incident. On cross-examination, Vonalt’s counsel asked him, “on all the information that [hе] obtained, it was determined that the driver of the 280 ZX was reckless . . . causing the death of a passenger — his passenger and the death of the driver of the [Britt car]. Is that your conclusion? . . . A. Yes, sir. . . . Q. All right. In the cause though of the death of these two people, is there any mention as to the red Camaro — A. No, there isn’t. . . . Q. Now, Officer, your job — рart of your job is to enforce the criminal laws. A. That’s correct. . . . Q. And, a racing contest is illegal under the laws of this State, is it not? A. That’s correct. Q. And, you are hired to prosecute people who violate laws, especially when two people die as a result of that? A. That’s correct. Q. All right. Did you give any tickets in this сase to Mr. Vonalt?” Objection was made and sustained. The witness did not answer and the jury was instructed to disregard. Counsel’s motion for mistrial was denied.
“The granting or refusing of a motion for mistrial is necessarily a matter largely within the discretion of the trial judge, and unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial, the exercise of the judge’s discretion will not be interfered with.”
Salmon v. Salmon,
4. We find no prejudicial error in the refusal of the trial court to give appellants’ requested instructions 17, 18 and 21. The court directed verdicts as to the acts of Locke and Vonalt constituting negligence, and further directed a verdict that Locke’s negligence was a causal factor in the deaths of Britt and Patsy. She reserved for trial the issue of whether “any acts of Michael Vonalt were causal factors” in the deaths of Britt and Patsy. The requested charges dealt with whether Vonalt’s actions were causal factors. The issues covered in the three requested charges were covered fully by charges similar to those rejected.
Ponder v. Ponder,
Requested chаrge 21 was: “to drive two cars in tandem at excessive speeds and in a reckless manner is as much a tacit ‘unlawful. . . enterprise’ to violate the traffic laws of this State as an agreement to engage in ‘racing.’ ”
Bellamy v. Edwards,
5. The giving of appellees’ requested charge 2 is enumerated as error. In the pre-charge conference, appellants’ counsel stated he had no objection to the giving of appellees’ requested charge number 2. “ ‘[Counsel] cannot complain of a judgment, order, or ruling that his own procedure or conduct procured or aided in causing.’ ”
Dodd v. Dodd,
6. The trial court charged the jury that a “quotient verdict” is an improper manner and method of arriving at a verdict. She defined a “quotient verdict” as one by which the jurors agree in advance to be bound by the result of a vote taken in which each juror places a figure representing the amount of damages on a piece of paper, and the amounts on all 12 pieces of paper are totaled and divided by 12 and that figure will be the verdict. Appellees’ requested charge number 8 addressed the fact that this was an improper method of arriving at a verdict. Appellants contend this was error. We do not agree. The Supreme Court condemned this type verdict in
City of Columbus v. Ogletree,
’ 7. Appellant complains of a portion of an overall charge on “proximate cause” in which the court used the term, “dominant cause.” At issue was whether the acts of Vonаlt on the evening in question which immediately preceded the incident which resulted in the deaths of Britt and Patsy was a causal factor. To state a cause of action grounded in negligence, there must be a causal connection be
*788
tween the defendant’s conduct and the plaintiff’s injury. Thus, before an alleged act of negligence is actionable, it must be proven that such negligence was the proximate cause of the plaintiff’s injuries.
Whitt v. Walker County,
Cases defining “proximate cause” are legion. Their diversity and flexibility áre the subject of continuous but inconclusive discussion. See Prosser, Law of Torts (4th ed.), Causation in Fact; 65 CJS 1131, Neg., § 103; 57 AmJur2d 483, Neg., § 132. “ ‘No inflexible rule of law can be laid down for determining what would be the proximate cause of an injury. The question must be solved by the facts of each particular case. It may be stated generally that the negligence upon which a recovery can be predicated must be the chief preponderating and proximate cause of the injury.’ ”
Griner v. Groover,
Although we do not approve of the use of the term “dominant cause” in defining “proximate cause,” in the context of the facts of this case we find no prejudicial error in view of the full and correct charge on proximate cause and the use of only a casual reference that sometimes proximate cause is called the dominant cause. Brown, Eberhart and McMahen have called “proximate сause” the “dominant cause,” so the trial court’s statement is correct. In other cases we have referred to “proximate cause” as the “preponderating” cause. Griner, supra. Accordingly, we find no reversible error in the charge as a whole.
8. We find no prejudice to appellant from the trial court’s informing the jury that she has directed a verdict as to three issues: (1) that Michael Vonalt was negligent, (2) that Scott Locke was negligent, and (3) that Locke’s negligence “was a causal factor” in the deaths of Britt and Patsy. She further advised them: “Now, whether or not any acts of Michael Vonalt were causal factors in the deaths of [Britt and Patsy] is a question for you, the jury, to decide, and the Court has not directed a verdict in that area.” We discern no prejudice to appellant by the announcement that she has not directed a verdict against Vonalt as to causation, as this was the issue they were to try.
9. Appellants’ last enumerated error was not argued in the brief and is considered abandoned.
Judgment affirmed.