upon the service of another takes on himself all the ordinary risks of the employment in which he engages, and that the negligent acts of his fellow-workmen in the general course of his employment are within the ordinary risks: Lehigh Valley Coal Co. v. Jones, 86 Pa. St. 432. To constitute fellow-servants, the employees need not be at the same time engaged in the same particular work. It is sufficient if they are in the employment of the same master, engaged in the same common work, and performing duties and services for the same general purpose. The rule is the same, although the one injured may be inferior in grade, and is subject to the direction and control of the superior whose act caused the injury, provided they are both co-operating to effect the same common object: Keystone Bridge Co. v. Newberry, 96 Id. 246; 42 Am. Rep. 543. Thus we have repeatedly held that a "mining boss," under the act of March 3, 1870, is a fellow-workman with the miners, and that the mine-owners are not responsible for his negligence: Delaware and Hudson Canal Co. v. Carroll, 89 Pa. St. 374. This, however, is in part owing to the fact that the duty of appointing a mining boss is imposed upon the mine-owners by the act of assembly; hence the responsibility of the latter would seem to cease when they had exercised due care in the selection of that person. Be that as it may, it is well settled that mere difference in rank or grade does not change the rule.

But there are some duties which the master owes to the servant, and from which he cannot relieve himself except by performance. Thus the master owes to every employee the duty of providing a reasonably safe place in which to work, and reasonably safe instruments, tools, and machinery with which to work. This is a direct, personal, and absolute obligation; and while the master may delegate these duties to an agent, such agent stands in the place of his principal, and the latter is responsible for the acts of such agent. And where the master or superior places the entire charge of his business, or a distinct branch of it, in the hands of an agent or subordinate, exercising no discretion or oversight of his own, the master is held liable for the negligence of such agent or subordinate: Mullan v. Steamship Co., 78 Pa. St. 25; 21 Am. Rep. 2; New York etc. R'y Co. v. Bell, 112 Pa. St. 400.

It is very plain that it was the duty of the defendant company, as between said company and its employees, to provide a reasonably good and safe road, and reasonably safe and good 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 employees, 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 employee. 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 the agents in performing duties of this character stand in the place of and represent the principal. In other words, they are vice-principals.

If it be the duty to provide schedules for the moving of its trains, which shall be reasonably safe, it follows logically that when the schedules are departed from, when trains are sent out without a schedule, such orders should be issued by the company as will afford reasonable protection to the employees engaged in the running of such trains. I am not speaking now of collisions caused by a disobedience of orders on the part of conductors and engineers, but of collisions or other accidents the result of obeying such orders.

At the time of the collision referred to, Wellington Bertolette was the general dispatcher of the defendant company, and from his office in Philadelphia had the general power and authority of moving the trains. In this he was not interfered with by the company or any one else. For the purpose of sending out the trains, he wielded all the power of the company. He could send a train out on schedule time, or he could hold it back. He could change the schedule time, or make new schedules, as the exigency of the case required. He could send a train out without schedule, and direct its movements from his office in Philadelphia. When he issued an order, the train was bound to move as he directed. The engineer and conductor had but one duty, and that was obediIn Slater v. Jewett, 84 N. Y. 61, 29 Am. Rep. 627, the late Chief Justice Folger thus clearly stated the duties of railways in this particular: "It is urged, and with reason, that clearly arranging and promulgating the general time-table of a great railway is the duty and the act of the master of it; and that when there is a variation from the general time-table for a special occasion and purpose, it is as much the duty and

ence.

act of the master, and he is as much required to perform it; that it is the duty and act of the master to see and know that his general time-table is brought to the knowledge of his servants who are to square their actions to it; that the same is his duty and act as to a variation from it, which is but a special time-table; and therefore whoever he uses to bring those time-tables to the notice of his servants, he puts that person to do an act in his stead, inasmuch as the responsibility is upon him to see and know that it is done, and done effectually, and that if, instead of doing it in person, he chooses to do it through an agent, that agent pro hac vice is the master, and he, the master, is responsible for a negligent act therein of that agent, whereby a fellow-servant of him is harmed. This rule has been laid down in repeated cases in this court."

It is true, the order in this case was sent by John J. Sellers. But Sellers was the assistant of Bertolette, and in his absence was clothed with all his powers. For the purposes of this case, Sellers was Bertolette, and Bertolette was the company.

The distinction between a general dispatcher-one who has the absolute control of all the trains upon the road and the conductor or engineer of a train is manifest. The latter have the duty of obedience. Their business is to run their trains under orders from the dispatcher; and if an employee is injured as the result of their negligence, the company is not liable. They are in the same common employment, and are laboring together to the same end, under orders from superior authority. The argument for the plaintiff in error, if carried to its logical conclusion, would wholly obliterate all distinction between railroad employees from the president down, as they may all be said to be in one sense in the same common employment, and paid by the same corporation.

While the cases are not uniform upon this subject, the weight of authority is with the foregoing views. In addition to the authorities cited, we may refer to Flike v. Railroad Co., 53 N. Y. 549; Pittsburgh etc. R. R. Co. v. Henderson, 5 Am. & Eng. R. R. Cases, 529; 37 Ohio St. 549; McKune v. C. S. R. R. Co., 21 Am. & Eng. R. R. Cases, 539; 66 Cal. 302; Phillips v. Chicago etc. R. R. Co., 23 Am. & Eng. R. R. Cases, 453; Phillips v. Railroad Co., 64 Wis. 475; and Washburn v. Railroad Co., 3 Head, 638; 75 Am. Dec. 784. Against these authorities we have only Robertson v. T. H. & I. R. R. Co., 78 Ind. 77; 8 Am. & Eng. R. R. Cases, 175; 41 Am. Rep. 552; and Bles

sing v. St. Louis etc. R. R. Co., 77 Mo. 410, and 15 Am. & Eng. R. R. Cases, 298. These cases, however, do not sustain the broad principle contended for here, and if they did, we would not be disposed to adopt them in the face of so much respectable authority the other way. Aside from authority, I am of opinion that the doctrine we have announced is founded upon the better reason, and is a rule both valuable and necessary for the preservation of the lives, not only of railroad employees, but of the traveling public as well.

This disposes of all that is important in the case.

The sixth, seventh, and eighth assignments refer to the questions asked of the expert witnesses. We think they were competent under Laros v. Commonwealth, 84 Pa. St. 200, and Yardley v. Cuthbertson, 108 Id. 461; 56 Am. Rep. 218. Judgment affirmed.

SERVANT ASSUMES ORDINARY RISKS OF EMPLOYMENT, including risk of injury from neglect of fellow-servants: Fisk v. Cent. Pac. R. R. Co., 1 Am. St. Rep. 22; Columbia etc. R. R. Co. v. Troesch, 18 Am. Rep. 578; Brown v. Winona etc. R. R. Co., 38 Id. 285; Bryant v. Burlington etc. R. R. Co., 55 Id. 275; Columbus etc. R. R. Co. v. Arnold, 99 Am. Dec. 615.

MASTER IS BOUND TO FURNISH REASONABLY SAFE MACHINERY AND APPLIANCES IN CARRYING ON HIS BUSINESS, and a reasonably safe place in which the work may be performed: Mormell v. Maine Cent. R. R. Co., 1 Am. St. Rep. 321; Smith v. Peninsular Car Works, 1 Id. 542; Bushby v. New York etc. R. R. Co., 1 Id. 843; Gibson v. Pac. R. R. Co., 2 Am. Rep. 497; Cone v. Delaware etc. R. R. Co., 37 Id. 491; Pennsylvania etc. R. R. Co. v. Mason, 58 Id. 722; Columbus etc. R. R. Co. v. Arnold, 99 Am. Dec. 615, and note 626. COMMON EMPLOYMENT WHO ARE CO-SERVANTS: Laning v. New York etc. R. R. Co., 10 Am. Rep. 417; Conolly v. Davidson, 2 Id. 154; Lawler v. Androscoggin R. R. Co., 16 Id. 492, and note 495; Ryan v. Chicago etc. R. R. Co., 14 Id. 32; Mathews v. Case, 50 Id. 151; O'Brien v. Boston etc. R. R. Co., 52 Id. 279; Abend v. Terre Haute etc. R. R. Co., 53 Id. 616; Rankin v. Merchants' etc. Transp. Co., 54 Id. 874; Chicago etc. R. R. Co. v. Harney, 92 Am. Dec. 286; Fox v. Sandford, 67 Id. 588-597, note; who are not co-servants: Coleman v. Wilmington etc. R. R. Co., 60 Am. Rep. 516; Louisville etc. R. R. Co. v. Conroy, 56 Id. 835; Tierney v. Minneapolis etc. R. R. Co., 53 Id. 35; Darrigan v. New York etc. R. R. Co., 52 Id. 590; Smith v. Wabash etc. R. R. Co., 1 Am. St. Rep. 729, and note.

RAILROAD COMPANY IS BOUND TO ADOPT AND PROMULGATE RULES for the protection of its employees against one another's negligence: Abel v. President etc. of Del. & Hudson Canal Co., 57 Am. Rep. 773.

THE PRINCIPAL CASE IS CITED to the point that the master is required to provide materials and implements for the use of his servant, such as are ordinarily used by persons in the same business; but he is not required to secure the best known materials, or to subject such as he does provide to a chemical analysis, in order to settle by experiment what remote and possible hazard may be incurred by their use, in Allison Mfg. Co. v. McCormick, 118 Pa. St. 528.

LYNN V. FREemansburg BUILDING AND LOAN ASS'N. [117 PENNSYLVANIA STATE, 1.1

PENNSYLVANIA GENERAL LAW, ACT OF 1859, confers no special power upon building association, incorporated thereunder, to impose fines; and the general authority of such association in this respect is limited to such fines as are imposed under by-laws which are reasonable and lawful. BY-LAW OF BUILDING ASSOCIATION, INCORPORATED UNDER PENNSYLVANIA ACT OF 1859, is oppressive, extortionate, and unreasonable, and is therefore void, in so far as it provides that every stockholder delinquent in the payment of his monthly dues and interest "shall forfeit and pay the additional sum of ten cents monthly on each and every dollar due by him."

POLICY OF LAW IN PENNSYLVANIA IS, THAT BUILDING ASSOCIATIONS shall not exact oppressive and extortionate fines from their defaulting members; and in the absence of statutory authority to exact any specified fine, the imposition of fines in excess of two per cent per month is to be deemed oppressive and unreasonable by policy of law. RUILDING ASSOCIATION— MEMBER OF NOT ESTOPPED BY PAYING ILLEGAL FINE. A member of a building association became indebted to it for a loan, to secure the payment of which, with interest, he gave his mortgage, and also deposited his stock as collateral. Becoming delinquent in the payment of his monthly dues and interest, he was charged, under a by-law of the association, with a fine of ten cents monthly on each dollar of his indebtedness at the time the fines were imposed. Under a threat that his mortgage would be foreclosed, and his stock forfeited under the by-laws, he paid the association a sum sufficient to cancel his entire indebtedness for fines, dues, and interest, which payments were made voluntarily for the purpose of squaring his accounts with the association; and they were so applied. He subsequently became delinquent in the payment of his monthly dues and fines, when the association declared his stock forfeited, and proceeded by scire facias on the mortgage. Held, that the fines having been imposed under an invalid by-law, the defendant was not concluded by his payment of them, and that credit therefor should be given on the amount legally due under the mortgage.

SCIRE FACIAS SUR mortgage by the Freemansburg Building and Loan Association against Josephus Lynn. By agreement of parties, the case was submitted to the decision of the court without a jury. The facts, so far as material to the points decided, appear in the head-note and opinion. Upon the findings of fact and conclusions of law, the court made a calculation and decree as to the amount for which judgment should be entered against the defendant. Exceptions to the decision were filed by both parties, when the court entered a modified judgment in favor of the plaintiff, whereupon the defendant took this writ.

Edward J. Fox and Edward J. Fox, Jr., for the plaintiff in

error.