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Hicks v. Stafek & Son Trucking Inc.

November 16, 1972

HICKS, RESPONDENT,
v.
STAFEK & SON TRUCKING, INC., ET AL, APPELLANTS



Appeal from Circuit Court, Lane County. Helen J. Frye, Judge.

John C. Sihler, Eugene, argued the cause for appellants. With him on the briefs were Thwing, Atherly & Butler, Eugene.

Arthur C. Johnson, Eugene, argued the cause for respondent. With him on the brief were Johnson, Johnson & Harrang and Charles G. Duncan, Eugene.

In Banc. O'Connell, C.J.

O'connell

This is an action to recover damages for personal injuries suffered by plaintiff resulting from a collision between an automobile in which he was riding and a truck owned by defendant Stafek & Son Trucking, Inc. Defendants appeal from a judgment on a verdict for plaintiff.

It is not necessary to set out in detail the circumstances under which the collision occurred except to note that plaintiff's brother, Michael Hicks, the driver of the automobile in which plaintiff was riding died as a result of injuries suffered in the collision.

Plaintiff sought damages for both physical and emotional injuries resulting from the collision. There was evidence to support the claims for these injuries.

Defendants' first assignment of error is directed at the trial court's refusal to give the following requested instruction:

"Ladies and gentlemen of the jury, you are instructed that the plaintiff cannot recover damages for any emotional distress, pain, suffering, or shock,

if any, arising from the injury or death of the driver of the automobile in which the plaintiff was riding."

Defendants insist that it was error not to give the foregoing instruction because there was testimony on behalf of plaintiff indicating that a part of the emotional disturbance suffered by plaintiff was due to grief over the death of his brother. Assuming, without deciding, that defendants would ordinarily be entitled to a cautionary instruction where, as here, evidence of grief is introduced, nevertheless there was no error in the present case because the court not only ordered the testimony relating to plaintiff's grief stricken, but in doing so instructed the jury to disregard the testimony.*fn1

It is argued that the trial court erred in refusing to strike the answer of Dr. John Boyer, a general physician, on the ground that he was not qualified to answer the question. The question ...


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