69 S.E. 275 | N.C. | 1910
This action was brought to recover damages to plaintiff's land and growing timber by fire, alleged to have been negligently set out by defendant's engine, operated on a lumber road constructed for the purpose of hauling the logs cut from plaintiff's land. The plaintiff had sold certain timber trees growing upon his land to one Hammer, who had conveyed them to the defendant company, and had sold him, Hammer, a right of way one hundred feet wide through his land in fee for the purpose of operating a railroad thereon; this right of way had also been conveyed to the defendant by Hammer. The defendant, denying all allegations of negligence and any liability to the plaintiff, offered the following evidence to show that if the alleged negligent acts were done as charged, they were caused and done by one Ellis, an independent contractor. H. C. McKeel, the general manager of defendant, testified: *287 "J. W. Ellis was operating road. I made contract with Ellis for company to log certain tracts of timber, contracts indefinite or until he wound up these tracts of timber. I employed Ellis to put logs to mill; was to pay so much per thousand; he was a suitable man; had been in the business ten years. Defendant had nothing to do with his teams, road or hands; he controlled them. I had nothing to do with directing hands. Defendant company furnished locomotive, iron and cars. Ellis built roads. . . . Ellis was to cut timber from lands of plaintiff, Sam Thomas and others (naming them). Ellis constructed tramroad; timber was owned by company; he contracted to deliver logs grounded at $3.25 on tram tracks; no specified time; defendant had ten years to get timber off. . . . If Ellis was to leave timber in woods I would tell him to haul it in; I am very seldom in woods." T. B. Hammer also testified: "I am secretary and treasurer of defendant company; Ellis was to deliver logs for $3.25; company to furnish engine and iron; afterwards agreed to pay Ellis 50 cents to deliver logs to mill; defendant had not control over logging business; Ellis had full control. . . . Contract was to cut timber from tracts. Engine, iron and cars owned by defendant." Upon this evidence his (353) Honor, at the request of defendant, charged the jury as follows:
"First. That if the jury shall find from the evidence and by the greater weight thereof that the defendant company employed J. W. Ellis, a competent and suitable person, to do its logging, and by the terms of the contract the defendant company furnished the rails, engine and tram cars, and the said Ellis furnished the logging tools and outfit, mules and wagon, cut the crossties, and constructed the tramroad, and was to employ at his own expense the men and pay them, and that the lumber company did not supervise the cutting and had no general control in respect to the manner of doing the work or the agents employed to do the work, and had no right to issue orders which the contractor was bound to obey, and paid the contractor three dollars and twenty-five cents for the hauling, cutting and delivering the timber to the water, and the defendant was not interested in the steps of the work as it progressed, but only in the ultimate result, then the defendant would not be liable, however much the contractor would if he be negligent."
The plaintiff excepted. The following issues were submitted to the jury: First issue: Did the defendant negligently set fire to and burn the lands and property of the plaintiff, as alleged in the complaint? Second issue: What damage, if any, has plaintiff sustained by reason of said burning? and the jury having answered the first issue, No, there was a judgment upon the verdict for the defendant and plaintiff appealed to this Court. *288
It appears, without contradiction, in the evidence that the engine, at the time it was furnished Ellis by the defendant, was in good condition and properly equipped with a spark-arrester; but as to its condition at the time of the fire — some nine months thereafter — there was serious conflict in the testimony. It does not appear by whom the right of way was located, whether by defendant or Ellis, (354) but it is fully established by the evidence that it was, at its location, covered with highly inflammable matter, and continued in this foul condition up to the time of the fire. There was evidence tending to prove that the fire causing the injury, for which plaintiff seeks in this action to recover damages, originated on the right of way from the engine operated thereon, and was thence communicated to plaintiff's adjacent land. In Craft v. Timber Co.,
In Williams v. R. R.,
The defendant, however, contends that it is not liable to the plaintiff because Ellis, who was operating the engine and train and doing the cutting, logging and hauling, was an independent contractor, as defined by this Court in Craft v. Lumber Co.,
We have thus far considered the case upon the view that the fire causing the damage originated on the foul right of way, from sparks from the engine operated thereon. There are two other views suggested by the evidence: (1) That the fire did not originate on the right (359) of way, but was caused by a spark emitted by a defectively equipped engine; (2) that it was not set out by a spark from the engine. If the jury should find this to be the fact, though the fire may have originated from some act of the employees of the independent contractor, Ellis, such act would be casual or collateral negligence, and the authorities cited are decisive that the defendant would not be liable. The doctrine of respondeat superior would not apply.
We will now consider the view based upon a finding that the fire was caused by a spark emitted by a defectively equipped engine, but not communicated from the right of way. Would the defendant be liable? If the defendant itself had been at the time operating the engine, its liability is governed by the third rule formulated in Williams v. R. R.,
New trial.
Cited: Beal v. Fiber Co.,