dissenting opinions, but the dissents were not as to the principle, but to the application of it to the facts and circumstances of the cases.

Up to the time of the decision of the recent case of Patton v. Western North Carolina R. Co.1 there was little, if anything, in the few decisions of this court on the fellow-servant question which could be construed as supporting the superior servant limitation. By this decision, however, the Supreme Court of North Carolina adopts the limitation without reserve, and places itself on a line

with the courts of Ohio, Kentucky, and the United States Supreme Court. In this case it appeared that a sectionmaster in defendant's employ ordered the plaintiff, a new section-hand, to jump from a swiftly-moving train, whereby he was severely injured. In an action against the company to recover for the injury, the complaint alleged that the section-master was agent and servant, and had full power and authority of defendant to hire and discharge hands and servants, and who was the superior of the plaintiff, and whose orders the plaintiff was bound to obey. Evidence was introduced to prove this allegation, and the jury found by their verdict that it was true. The Court held that the section-master was not the fellow-servant of the plaintiff, and the company was accordingly held liable. The Court made no inquiry whatever to discover whether the act of the section-master, out of which the injury arose, was one which the duties of the master to his servants requires him to perform. It seemed to content itself with the fact that the section-master occupied a superior position, having power to command, and to hire and discharge hands.1 Merriman, J., said: "There seems to be no wellsettled rule that classifies the agents and servants of a common employer, whether natural or artificial, first, into such as have authority to represent, act for and in the place of, the employer in respect to the persons, business matters, and things wherewith they are charged; and, secondly, such as have no such authority, but are merely fellow-servants. But without regard to such rule, there is no reason why such authority may not be specially conferred upon any such agent or servant. In this case the burden of proving

1. In view of the fact that the power of the section-master to hire and discharge hands was considered as such an important element in this case, it is curious to note that very soon after, in deciding the case of

Webb v. Richmond & D. R. Co., 97 N. Car. 387, it was decided that the fact that a co-employe has authority from the common master to discharge his fellow-servants does not constitute him a vice principal.

the authority, its extent and compass, by competent evidence, would rest upon the party alleging it, unless the nature of the agency or employment implied its existence. and extent. Thus an employer might confer upon a particular laborer charged to do a particular sort of service, but who simply, by the nature of his employment, would have no authority to represent or bind his principal in any respect, power to employ other like laborers with himself to do the service to be done, to direct and command them when, where, and how to work, to control and superintend them, and to discharge them from employment in his discretion, although he should labor with and as one of them. And there can be no question that the employer would be answerable for the misfeasance or non-feasance of such agent in the course of his employment, and in the exercise of the power thus conferred upon him. This is so because the agent in such case would be expressly authorized to represent, act for and in the place of, his employer in the business designated, and within the compass of power conferred. And so, in the case before us, although the section-master or foreman might not have had authority, arising from the nature of his employment, to bind the defendant for his acts towards, and his commands to, his fellow-servants, yet, if the defendant conferred upon him power and authority to employ laborers,-fellow laborers with himself,-to work on the section of the railroad wherewith he was charged, and authority to superintend them, to give them orders and commands in the line of the work to be done, which they were bound to obey, and to discharge them from such employment in his discretion, as alleged in the complaint, and as the evidence introduced on the trial tended to prove, the defendant would be liable for his misfeasances and non-feasances in the course of the exercise of his authority thus conferred by it. This is so upon the plainest principles of law applica

ble to and governing the relations of principal and agent towards each other and third persons.

"This case is not like the ordinary one of injury done by one fellow-servant, acting as foreman or leader of several or many laborers, to one of his fellow-servants. The complaint expressly alleges that the section-master named was agent and servant, and had full power and authority of the said defendant to hire and discharge hands and servants in that behalf on said section, and who was then and there the superior of the said plaintiff in that behalf, whose orders and commands, in the line of said service, as the agent, foreman, and boss of the said defendant, the said plaintiff was lawfully bound to obey;' and these and other similar allegations to the same effect. Evidence was introduced on the trial to prove this material allegation, and the jury found by their verdict that it was true. So it appeared that the section-master in this case was not simply a fellow-servant of the plaintiff, but as well the agent of the defendant, charged with authority to employ, control, and command the plaintiff as to the labor he should do on the railroad of the defendant while he was so in its service, and to discharge him from such service, just as its president or other leading executive officer might have done; and the defendant must therefore be held liable for his misfeasance in the course of his agency, just as if the same had been done by its chief executive officer."

$60. Pennsylvania.

In one of the most recent cases1 decided by the Supreme Court of this State, on the subject of fellow-servants, the correct test as to who are fellow-servants is plainly applied. In this decision it is adjudged that a train dispatcher, wielding the power and authority of a railroad company in the moving of trains, in the changing of schedules or the making of new ones as exigencies require

1. Lewis v. Seifert. 116 Pa. St. 628.

is not a fellow-servant with a train employe; and for his negligence, which is the proximate cause of an injury to such employe, the company is liable. Mr. Justice Paxson, in delivering the opinion of the Court, said: "It is very plain that it was the duty of the defendant company, as between said company and its employes, to provide a reasonably good and safe road, and reasonably good and safe cars, locomotives, and machinery for operating its road. It is equally clear that it was its duty to frame and promulgate such rules and schedules for the moving of its trains as would afford reasonable safety to the operatives who were engaged in moving them. This is a direct, positive duty which the company owed its employes, and for the failure to perform which it would be responsible to any person injured as a consequence thereof, whether such person be a passenger or an employe. It would be a monstrous doctrine to hold that a railroad company could frame such schedules as would inevitably or even probably result in collisions and loss of life. This is a personal positive duty; and, while a corporation is compelled to act through agents, yet agents in performing duties of this character, stand in the place of and represent the principal. In other words, they are vice principals." Other Pennsylvania cases, both those holding that the offending servant represented the master, and those deciding that he did not, but occupied merely the position of a fellow-servant, seem to have been decided upon this issue, viz.: What was the master's duty to the servant? Thus, the negligence of an agent of a steamship company in supplying an insufficient rope, has been held to be the negligence of the master;1 and the superintendent of a railway company who had been notified by a conductor of a defective switch, but neglected to repair the same. And where an engineer and fireman

1. Mullan v. Philadelphia & S. M. S. S. Co., 78 Pa. St. 25; s. c., 21 Am, Rep. 2.

2. Patterson v. Pittsburg & C. R. Co., 76 Pa. St. 389; s. c.. 18 Am. Rep. 412.