Bryant v. Sampson Lumber Co.

Hoke, J. It was urged for error that the plaintiff should bave been nonsuited as to the Sampson Lumber Company, because, if there was any negligence shown, it was on the part of B. Yandegrift or bis employees, and while be was operating the railroad of the codefendant, as an independent contractor. If it be conceded that the contract introduced in evidence, of itself and standing alone, would establish tbe relationship contended for by tbe company, tlie evidence tended to show tbat tbe fire originated by sparks from the engine falling on a foul right of' way belonging to tbe lumber company, and under the -principles recognized in Thomas v. Lumber Co., 153 N. C., 351, tbe defense suggested could not be maintained, a decision approved in Strickland v. R. R., 171 N. C., 755, and Dunlap v. R. R., 167 N. C., 669, and many other cases. See, also, Knott v. R. R., 142 N. C., 238. On the record, however, the position is not open to defendant, as the jury, under the charge of the court, bave necessarily found tbat the parties were not at the time operating under the contract relied on by defendants, but under a subsequent agreement, which constituted Yandegrift the managing agent and vice-principal of the company. Apart from this, there are facts in evidence tending to show tbat, while this was primarily a lumber road, used for hauling out logs, etc., it was a standardbuilt railroad, operated under a quasi public franchise, hauling freight for third persons, for hire, and except by express legislative sanction, it was not within the power of the owner, the lumber company, to contract or lease its road to its codefendant or other, so as to relieve it of responsibility for negligence in,its operation. Logan v. R. R., 116 N. C., 940; Aycoch v. R. R., 89 N. C., 321. It was further insisted tbat a judgment of nonsuit should bave been allowed as to both defendants, *362 on the ground that, at the time and place the fire originated, the employees of the defendants, operating the engine and train, were not acting in the course and scope of their employment. There was ample evidence of negligence, both as to a defective engine and a foul right of way, and the motion is'made on facts tending to show that the fire may have originated when an engine drawing several cars, with 25 or inore employees aboard, was going up the road in response to an urgency call from another engine of the defendants to aid in putting out another fire in that vicinity and on lands of other owners. The testimony shows that Vandegrift himself, the independent contractor, according to defendant’s version, and the general manager and agent of his codefendant, as plaintiff contends and the jury have found, was also aboard, and the movement of the train under such circumstances for the purpose indicated, is, to our minds, clearly within the course and scope of his authority. Unquestionably so, when there are pertinent facts in evidence which permit the inference that in helping their neighbors they were also acting in protection of their own property. There is no error, and the judgment on the verdict is affirmed. No error.