Thomas v. Hammer Lumber Co.

• Citation: 69 S.E. 275,153 N.C. 351
• Parties: THOMAS v. HAMMER LUMBER CO.
• Decision Date: 10 November 1910
• Court: United States State Supreme Court of North Carolina

69 S.E. 275

153 N.C. 351

THOMAS v. HAMMER LUMBER CO.

Supreme Court of North Carolina

November 10, 1910

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

Action by J. C. Thomas against the Hammer Lumber Company. Judgment for defendant. Plaintiff appeals. Reversed, and new trial directed.

An action will lie for negligence in keeping combustibles on a right of way, though the engine from which the fire escapes was properly equipped and handled.

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 100 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: "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 men. Had been in the business 10 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 tramtracts. No specified time; defendant had 10 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 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 tramcars, and the said Ellis furnished the logging tools and outfit, mules and wagon, cut the cross-ties, 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 $3.25 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.

Cranmer & Davis, for appellant.

J. D Bellamy & Son and Herbert McClammy, for appellee.

MANNING J.

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, 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., 132 N.C. 151, 43 S.E. 597, it was held that the rule "applicable to railroad corporations, which makes them liable for fires negligently caused by igniting combustible material on the right of way, has been applied to private railroads constructed for logging purposes." Simpson v. Lumber Co., 133 N.C. 95, 45 S.E. 469; Hemphill v. Lumber Co., 141 N.C. 487, 54 S.E. 420; Knott v. Railroad, 142 N.C. 238, 55 S.E. 150. In Williams v. Railroad, 140 N.C. 623, 53 S.E. 448, this court formulated the rules of liability applicable to railroad corporations for negligently causing fires, and the second of these rules is as follows: "(2) If fire escapes from an engine in proper condition, with a proper spark arrester, and operated in a careful way by a skillful and competent engineer, but the fire catches on the right of way, which is in a foul and negligent condition, and thence spreads to the plaintiff's premises, the defendant is liable. Moore v. Railroad, 124 N.C. 341 ; Phillips v. Railroad, 138 N.C. 12 ." In Knott v. Railroad, 142 N.C. 238, 55 S.E. 150, Mr. Associate Justice Walker, speaking for the court, said: "It is true he (the plaintiff) alleges that the spark arrester was defective, but in the seventh section of the complaint he states generally that the fire was caused by a spark emitted from the engine, which ignited the combustible material on the right of way, and thence spread to his standing timber, which was destroyed. But can it make any difference, in the legal aspect of the case, whether the spark or live coal came from the smokestack or the firebox, even assuming them to have been in the best condition, if eventually it fell upon the foul right of way and produced the conflagration? We think not, because the permitting its right of way to remain in a dangerous condition was an act of negligence, sufficient of itself to cause the damage and necessarily proximate to it, if the fire immediately and without any intervening, efficient and independent cause spread to the plaintiff's woods. Aycock v. Railroad, 89 N.C. 321; Phillips v. Railroad, 138 N.C. 12 ; Railroad v. Kellogg, 94 U.S. 469 ."

We consider it to be established by these authorities that it is negligence in a timber company, as well as a railroad corporation, to permit its right of way to become and remain in a foul condition; that such a condition is so dangerous that it may reasonably be anticipated that injury will occur to adjacent landowners from fires originating thereon from engines being operated on it, though such engines be in the best condition and have the best equipment. 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., 132 N.C. 151, 43 S.E. 597; Young v. Lumber Co., 147 N.C. 26, 60 S.E. 654; Davis v. Summerfield, 133 N.C. 325, 45 S.E. 654, 63 L. R. A. 492; Gay v. Railroad, 148 N.C. 336, 62 S.E. 436; Midgette v. Mfg. Co., 150 N.C. 333, 64 S.E. 5; Hunter v. Railroad, 152 N.C. 682, 68 S.E. 237. Defining the "independent contractor" as contained in these cases, his honor instructed the jury that, if they found as a fact that Ellis was an independent contractor and was working under the contract creating him such at the time the injury was caused to the plaintiff, then the defendant would not be liable. We think this instruction erroneous, not because of an inaccurate definition of "independent contractor," but because, conceding Ellis to have been an independent contractor, we do not think the defendant, as his employer, is relieved of responsibility to the plaintiff for the injury of which he complains, upon the view of the evidence we are now considering. In our opinion this case falls under one of the recognized exceptions to the rule of nonliability of employer for the acts of the independent contractor. This exception is thus stated by this court in Davis v. Summerfield, supra: "And there is still another class of cases to be excepted from the exemption, and that is where the contract requires an act to be performed on the premises, which will probably be injurious to third persons if reasonable care is omitted in the course of its performance. The liability of the employer in such case rests upon the view that he cannot be the author of plans and actions dangerous to the property of others without exercising due care to anticipate and prevent injurious consequences." In Bower v. Peate, 1 Q. B. Div. 321 (1875-76), Chief Justice Cockburn thus states the principle upon which this exception rests: "The answer to the defendant's contention may,...