CRAFT v. ALBEMARLE TIMBER CO.

responsible for what Ward & White did, as they were independent contractors.

We think that there was evidence that the burning was caused by the negligence of Ward & White, for which the defendant is liable in damages. The plaintiff testified that he saw the fire but could not tell when nor where it started. The witness Rogers testified that he saw the smoke and went to the place where it was and saw the fire burning in the tree tops and that the engine had just passed. As there was no evidence that the engine was furnished with spark arresters or otherwise properly equipped to prevent the emission of sparks or the dropping of live coals, and as the tree tops, which were very inflammable, were permitted to remain so near the track as to be easily ignited by sparks or coals, we are constrained to hold, upon well settled principles which have frequently been applied by this court, that there was evidence of negligence which the court properly submitted to the jury. Aycock v. Railroad, 89 N. C., 321; Ellis v. Railroad, 24 N. C., 138; Lawton v. Giles, 90 N. C., 374; Piggot v. Railway Co., 54 E. C. L., 228; Insurance Co. v. Railroad, at this term.

It is just as well in this connection to discuss the question raised by the fifth exception to the charge. The court instructed the jury "that if the defendant permitted its right-of way to become foul with trash and tree-tops and the fire originated in the tree tops, the jury should answer the third issue as to negligence "Yes" and assess the damage under the fourth issue. There is no width of right-of-way specified, and in the absence of that specification a right-of-way is such width as is needed for the safe and prudent operation of the road." We are unable to find any error in this instruction. When the plaintiff granted to the defendant the right to construct a line of railway across his land for the purpose of removing the timber to be cut therefrom under the contract, this grant

CRAFT . ALBEMARLE TIMBER CO.

impliedly carried with it, as a necessary incident, the right to have and use a right-of-way of such width as was reasonably sufficient for the construction and safe operation of the road. This must needs be so, for otherwise the grant would be practically useless. In the case of Waters v. Lumber Co., 115 N. C., 654, this court says: "In the light of the meager statement before us, we must hold that the court erred in instructing the jury that the plaintiff (the land owner) was entitled to compensatory damages for the injury done to the land in cutting and removing so much timber, as it was reasonably necessary to remove, in order to construct a way for the passage of lumber trains. Whether a way 21 feet wide was necessary for the purpose, was a question for the jury under proper instructions. Construing the contract as we do, we conclude that, with the right to build a road sufficient for the passage of trains, the plaintiff by necessary implication agreed to surrender his claim to such damage to his land as might be incident to the skillful construction of what he had empowered Simmons to build. The same implication must grow out of the right to build a private railway, as is held to arise in the case of a grant or condemnation for the use of a common carrier." Citing Adams v. Railroad, 110 N. C., 325 and Fleming v. Railroad, 115 N. C., 676.

The instruction given by the court in this case conformed strictly with the principle laid down in the case just cited, and the jury have found upon evidence, sufficient in law for that purpose, that the fire originated on the right-of-way, and was caused by the dropping of coals or sparks from the engine of the defendant, which was at the time being operated by the contractors, the coals or sparks having lodged in the tree tops or combustible matter on the right-of-way and ignited it, and that the fire was thereby carried directly to the plaintiff's timber. Aycock v. Railroad, supra.

It is contended that the liability of an individual or a

CRAFT v. ALBEMARLE TIMBER CO.

private corporation owning a railroad, like the one described in this case, for setting fires is not the same as that of a quasi public corporation having the right to condemn land and to construct a railroad with a right-of-way of certain width, and owing certain well defined duties and obligations to the public. We are unable to perceive any difference in principle between them. The mere fact that the defendant has no chartered rights to build a railroad and to use locomotives and other dangerous machinery and appliances, is surely no good reason for making a distinction, in this respect, in its favor. If anything, it has been said, that fact rather makes against the defendant. "Where a company is not authorized by its charter to use locomotive engines, it uses them at its peril and is liable for fires caused by the emission of sparks, irrespective of negligence, and although it has taken all reasonable precaution to prevent injury." 13 Am. and Eng. Enc., 414; Wharton on Negligence, Sec. 868; Kendrick v. Towles, 60 Mich., 363; 1 Am. St. Rep., 526; Hilliard v. Thurston, 9 Ont. App., 514. It is not necessary though that we should adopt and apply so rigid a rule. It is quite sufficient for the purposes of this appeal to say 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 construed for logging purposes, Kendrick v. Towles, supra; and private steamboat companies, Hilliard v. Thurston, supra. It seems to us that the rule applicable in such cases is the one which governs in the case of the owners of private property, for surely such companies cannot claim greater exemption than private land owners. The rule of the common law is that you must so use your own property as not to injure your neighbors. In Garrett v. Freeman, 50 N. C., 78, it was held to be the duty of an individual, using fire on his own premises, to first remove such combustible matter as he could

CRAFT v. ALBEMARLE TIMBER CO.

reasonably see would conduct it to another's fence, and the defendant was held liable in that case, of course for failing to perform this plain duty to his neighbor. 13 Am. & Eng. Enc. (2 Ed.) 454 and 463; Higgins v. Dewey, 107 Mass. 494; 9 Am. Rep., 63.

It must be true that in respect to the plaintiff, from whom the right to enter upon the land and construct the railroad was acquired, the defendant owed the duty so to exercise the right and use the privilege granted as not unnecessarily to injure his property. We have held that the defendant was entitled to a right-of-way of sufficient width to enable it to build and safely operate the road, but, if there was no rightof-way outside of the strip of land upon which the cross-ties and rails were laid, we incline to the opinion that the defendant would still be liable, if in constructing the road or clearing a way for it, the trees were cut down and the tops left in close proximity to the track, where they would be liable to be ignited by sparks or coals falling from the engine, as the defendant certainly had the implied right to remove this combustible material when the road was complete, and the failure to do so was negligence. But it is not necessary to pass upon this question, and it is left open for decision if it should here after be presented.

In any view of the matter, it seems that the case was correctly submitted to the jury by the court upon the question of negligence.

Our attention has been called to the case of Simpson v. Lumber Co., 131 N. C., 518, which now stands for rehearing in this court, and, having examined and considered it most carefully, we must decline to be governed by it in this case. The conclusion reached in that case is not in accordance with the well settled rules of law, as we understand them, and so far as it is in conflict with the principles herein declared, it is overruled.

CRAFT v. ALBEMARLE TIMBER CO.

It is further insisted that, if there was negligence which proximately caused the burning of the plaintiff's timber, it was not that of the defendant but of Ward & White who were independent contractors, and we will now consider this contention.

Where the contract is for something that may lawfully be done, and is proper in its terms, and there has been no negligence in selecting a suitable person to contract with in respect to it, and no general control is reserved either in respect to the manner of doing the work or the agents to be employed in doing it, and the person for whom the work is to be done is interested only in the ultimate result of the work and not in the several steps as it progresses, the latter is not liable to third persons for the negligence of the contractor as his master. Cooley on Torts (2 Ed.) Sec. 548, p. 646. The principle as thus stated and which we believe to be the correct one, has been approved and applied by this court in Waters v. Lumber Co., 115 N. C., 652. We are of the opinion that there was evidence sufficient to go to the jury to the effect that the defendant did reserve control over Ward & White, with whom the contract for the construction of the road and the cutting of the timber was made. The evidence tended to show that the defendant, through Jenkins, its manager, took an active part in the prosecution of the work and that Jenkins was frequently in the woods looking after the business of cutting the timber and hauling it to the railroad station. The property of the defendant, such as engines, rails, spikes and other things, was used by the Timber company, and the contract provided that the cutting should be done under the direction of the defendant, and it was stated by one of the defendant's witnesses that Jenkins' duty was to look after the logging and to see that Ward & White did the cutting and logging, in accordance with the requirements of the contract. It further appears that the