1. The jury found from the evidence that the plaintiff was ordered by Adams to couple the air hose, and that he was acting, at the time he was injured, in obedience to *32such order. It is admitted that plaintiff did not warn or notify the motorman or conductor of the train of his presence between the cars. The single question, therefore, on the motion for nonsuit, is whether he was guilty of contributory negligence in executing the order of Adams without warning the motorman or conductor of his action. By obeying such order and attempting to make the coupling, he assumed all the risks ordinarily incident to such service; but it was not, in our opinion-, incumbent upon him to advise the immediate operators of the train of the dangerous position in which he had been put by the orders of his superior. He had a right to act upon the assumption that Adams would perforin the duties and responsibilities resting upon the master, and not needlessly or carelessly expose him to danger from injury by the sudden moving of the cars. He was obeying an order which required prom.pt and immediate execution, and had a right to assume that Adams would use due care not to expose him to unnecessary danger. It is claimed that Adams had no control over the movements of the cars, hut that they were under the exclusive management of the motorman and conductor, and that plaintiff was aware of that fact. The evidence is, however, that all the employees, both those engaged in the operation of the train and in other work, were under the immediate charge and supervision of Adams, and took their orders from him. It may be that he did not'direct the motorman .and conductor as-to the details of their work, or give signals, or assume the immediate charge of the train; but he evidently had a right to exercise the authority to direct what should be done and by whom. He ordered the plaintiff to go in between the cars and couple up the air, and some of the other employees to go aboard the cars and'release the brakes, and so it does appear that he in fact exercised some authority or control over the making up of the train. *33For the purpose of directing and controlling the conduct and services of the various employees of the defendant under his charge and supervision he stood iu the place of the master, and for his negligence the master is responsible : Laws, 1903, p. 20.
2. It was undoubtedly the plaintiff’s duty to obey the orders of Adams, unless obedience would have involved a risk obviously dangerous, and he was not, we think, guilty of contributory negligence in not notifying the motorman or conductor of his position : 2 Current Law, 840 ; Terre Haute & I. R. Co. v. Rittenhouse, 28 Ind. App. 633 (62 N. E. 295); Malcolm v. Fuller, 152 Mass. 160 (25 N. E. 83). This is not a case, like those cited by the defendant, where a car repairer or a locomotive engineer went under a car or locomotive for the purpose of making repairs without putting out a flag or signal, and was injured by another car being backed down against the one he was engaged in repairing. In such case it was negligence for the injured party to voluntarily assume a position of manifest danger without guarding against injury. But here the plaintiff was ordered by his immediate superior to do the particular act in which he was engaged at the time of his injury, and he had a right to assume that he would not be exposed, in so doing, to the extraordinary and'unusual hazard of having cars suddenly pushed down against the ones between which he was working and without notice or warning to him.
3. The damages awarded by the jury were, in the opinion of the trial court, excessive, but it overruled a motion to set aside the verdict, as it had a right to do (Adcock v. Oregon R. Co., 45 Or. 173, 77 Pac. 78), on condition that plaintiff would remit all in excess of $9,450, which was done accordingly.
*344. It has been decided that the refusal of a trial court to set aside a verdict on account of excessive damages cannot be reviewed on appeal (Nelson v. Oregon R. & Nav. Co., 13 Or. 141, 9 Pac. 321; McQuaid v. Portland & Van. R. Co., 19 Or. 535, 25 Pac. 26; Coos Bay Nav. Co. v. Endicott, 34 Or. 573, 57 Pac. 61), and this, it seems, is the general rule on the subject (see cases cited 2 Century Digest, § 1826), unless, perhaps, it is manifest that the verdict was the result of passion or prejudice.
5. We cannot, therefore, disturb the verdict as reduced by the trial court. It has been approved by that court, and is not so excessive as to show plainly that it was the result of bias or prejudice.
6. The court was in error, however, in allowing interest on the verdict from its date to the rendition of judgment. In the absence of a contract to pay interest, the right to exact it must be found in the statute (Rensselaer Glass Factory v. Reid, 5 Cow. 608), and the statute makes no provision for interest on unliquidated damages arising out of a tort until made certain by judgment: B. & C. Comp. § 4595 ; Hawley v. Dawson, 16 Or. 344 (18 Pac. 592); Hawley v. Barker, 5 Colo. 118; Kelsey v. Murphy, 30 Pa. 340.
7. During the trial one of the jurors interrogated a witness in such a manner as, in the opinion of counsel for defendant, indicated a prejudiced attitude toward the defendant, and he thereupon moved the court to discharge the jury from the further consideration of the case. The motion was overruled, the court holding that the conduct of the juror, was not, in its opinion, such as indicated bias or prejudice. It needs no argument or citation of authority to show that a trial court should release a jury from the consideration of a case when it is made to appear that by reason of facts existing at the time the jury was impaneled, but unknown to the Court, or facts occurring afterwards, members of the jury are subject to such bias or prejudice *35as not to stand impartially between the parties. Neither party to a cause has a right to a corrupt or prejudiced jury, and the court should immediately discharge a jury when the cause of justice would otherwise be defeated. But in this case the trial judge, who observed the attitude of the juror and his manner of asking questions, decided that his conduct did not indicate bias or prejudice, and, while it was somewhat unusual, there is not enough in the record to justify us in disturbing the findings.
8. The judgment will be modified by eliminating the item of interest, and otherwise affirmed.
Modified and Affirmed.
AI-generated responses must be verified and are not legal advice.
