Gay v. Roanoke R. & Lumber Co

• Decision Date: 23 September 1908
• Citation: 62 S.E. 436,148 N.C. 336
• Court: North Carolina Supreme Court
• Parties: GAY. v. ROANOKE R. & LUMBER CO. et al.

62 S.E. 436

148 N.C. 336

GAY.

v.ROANOKE R. & LUMBER CO. et al.

Supreme Court of North Carolina.

Sept. 23, 1908.

1. Witnesses—Impeachment.

Where, in an action for injury to land, defendant in open court admitted that plaintiff was the owner and in possession of the land, and plaintiff in his direct examination claimed damages resulting from the burning of the timber on the land, it was competent by way of direct impeachment of him to ask him if some one else did not own the timber.

2. Contracts—Construction—Question for Court.

Where the language of a contract is free from ambiguity, its construction is for the court.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 767-770.]

3. Master and Servant—Liability for Injury to Third Persons—"Independent Contractor."

One contracting to cut for another his timber into saw logs, and deliver the logs over tram roads built at his own expense, to load a specified number of feet per day for each working day, to cut the timber in workmanlike manner, to pay for any delays, resulting from a failure to securely load the logs, etc., for a specified sum per M feet, for merchantable logs, cut, hauled, and delivered, is an independent contractor within the definition that an independent contractor is one who undertakes to produce a given result, but so that, in the actual execution of the work, he is not under the order or control of persons for whom he does it, and he uses his own discretion in things not specified.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1242, 1243.

For other definitions, see Words and Phrases, vol. 4, pp. 3542-3543; vol. 8, p. 7686.]

4. Same.

Where a contract is for something that may be lawfully done, and it is proper in its terms, and there has been no negligence in selecting a suitable person in respect to it, and no general control is reserved in respect to the manner of doing it, and the person for whom the work is to be done is interested only in the ultimate result, and not in the several steps as it progresses, he is not liable to third persons for the negligence of the contractor.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 1245-1253.]

Appeal from Superior Court, Greene County; Lyon, Judge.

Action by B. R. Gay against the Roanoke Railroad & Lumber Company and others. From a judgment for plaintiff, defendants appeal. Reversed, and new trial awarded.

The following is the contract between the Roanoke Railroad & Lumber Company and Jackson Bros., referred to in the opinion:

"This agreement made this 1st day of February, 1905, by and between W. R. Jackson and Milton H. Jackson, trading as Jackson Brothers, of Lugwell, Pitt county, North Carolina, and the Roanoke R. R. and Lumber Company, of Norfolk, Virginia, a corporation duly organized under the laws of North Carolina, witnesseth:

"That whereas the said Roanoke R. R. and Lumber Company own certain tracts of timber in Greene and Pitt counties, North Carolina, on the East Carolina Railroad, which timber up to this time has been logged by Surry Parker, of Pine Town, North Carolina. The said Parker owning certain logging equipment, which he has this day sold to the said Jackson Brothers, and the said Jackson Brothers being desirous to enter into a contract with the said Roanoke R. R. and Lumber Company for logging said timber: Now, therefore, this agreement witnesseth:

"(1) That the said Jackson Brothers agree to cut all of the timber the said Roanoke Railroad and Lumber Company now own or may hereafter purchase during the existence of this contract in Pitt and Greene counties adjacent to the territory which they now own into saw logs, 16 feet 4 inches, 14 feet 4 inches, and 12 feet 4 inches long and deliver said logs over tram roads, built at their own expense to side tracks along the line of said East Carolina Railroad, and to load same on flat cars furnished for the purpose.

"(2) The said Jackson Brothers agree to load twenty thousand (20, 000) feet per day for each working day until this contract is completed and to load not less than thirty-five hundred (3, 500 ft.) of logs measured by Doyles' rule on each and every car furnished them, and they are not required to load more than seven cars on any one day.

"(3) That said Jackson Brothers agree to cut the timber in proper and workmanlike manner and as close as the said Roanoke Railroad and Lumber Company may direct and to cut all and every suitable tree into logs before leaving any one location.

"(4) The said Jackson Brothers furtheragree to load said cars in proper manner, logs being secured to stand transportation by the railroad and the said loading to be done according to directions as given by the Atlantic Coast Line Railroad Company.

"(5) They further agree that they will pay for any delays or damage that may occur to the Atlantic Coast Line Railroad should they fail to load the logs as agreed upon as per contract between the East Carolina Railroad Company and the Atlantic Coast Line Railroad and the said Roanoke Railroad and Lumber Company, dated the day of and which contract is made a part of this agreement, which is such portions of this agreement as may refer to the penalties for not loading cars when set in on sidings for that purpose.

"(6) The said Jackson Brothers agree to keep up at their own expense in good working order the locomotive and logging cars furnished them by the said Roanoke Railroad and Lumber Company for the purpose of doing said work. To unload all railroad iron furnished them for the purpose of laying tracks at their own expense, and when through with said contract to take up all of said railroad iron, spikes and splices and to load them on cars furnished for moving of same; and also to return said locomotive and cars loaded on cars of the Atlantic Coast Line Railroad when through with them in good order. The Roanoke Railroad and Lumber Company hereby agrees to furnish said Jackson Brothers all the railroad iron and locomotive and logging cars necessary to do this work and to pay to them the sum of three dollars ($3.00) per thousand feet for merchantable logs so cut, hauled and delivered and located on cars of the Atlantic Coast Line Railroad on the side track located for the purpose, and to pay them on the 5th and 20th of each month for the work done. It is further and mutually agreed that all logs loaded on said cars shall be sound and merchantable, and if the said Jackson Bros. shall load any log not sound and merchantable then they shall be responsible for all freight and expenses on all such logs; and it is further mutually agreed that all measurement of logs shall be made by Doyles' rule by a competent log scaler to be employed by the said Roanoke Railroad and Lumber Company who shall measure said logs as soon as ...