Gay v. Roanoke Railroad & Lumber Co.

Bnowisr, J. It is unnecessary to consider all tbe errors assigned, as they may not arise on another trial. Two errors assigned in the record we think are fatal to the judgment rendered. 1. One of the tracts of land alleged to have been burned over'was called the 'Williams' land. The defendants’ counsel asked the plaintiff, on cross-examination, if the timber on that land was not owned by some one else at the time of the fire. The question, upon objection by plaintiff, was excluded. In this we think his Honor erred. We suppose the question was excluded upon the idea that defendants were attempting to prove title to land by parol. We do not take that view of it. The record states that the defendants “admitted in open court that the plaintiff was the owner and in possession of the land upon which the trespass was alleged to have been committed.” The plaintiff had been examined in his own behalf as to the extent of his damage, and a part of his damage, he claimed, arose from the burning of the timber on the Williams land. On cross-examination it was competent to ask him if some one else did not own the timber on that land — in other words, had he not sold it. It was a direct impeachment of the estimate of damage plaintiff had testified to on his examination in chief. Had the defendants offered parol evidence, by a witness other than the plaintiff, for the purpose of proving a sale of the timber by plaintiff, a different proposition would be involved. 2. It is admitted that the defendant Eoanoke Company owned certain timber in Greene and Pitt counties, and that the codefendants Jackson Bros, were cutting and removing it for the company. During the trial a certain contract, dated 1 February, 1905, entered into between the Eoanoke Company and Jackson Bros, was put in evidence by defendant *342 Roanoke Company for the purpose of exonerating them from liability by showing that Jackson Bros, were independent contractors and not its agents. The defendant Roanoke Company moved to nonsuit, and also requested the court to charge the jury: “That upon the evidence in this case the defendants W. R. Jackson and M. II. Jackson were, at the time of the injury alleged in the camp limit, independent contractors in the logging and operating of the railroad, and defendant Roanoke Railroad and Lumber Company would not be in anywise liable for the conduct or act'of either of the Jackson Bros, concerning such operation.” His Honor refused to give this instruction prayed for, and defendants excepted. A very careful examination of the record discloses no evidence whatever as to the relation existing between these defendants, except the written contract under consideration, and as to that the court charged: “That the paper-writing introduced by tlie defendants, termed, a contract, between Jackson Bros, and the defendant corporation, does not make Jackson Bros, independent contractors, but you can consider such contract in passing upon the liability of defendant company, as to whether they (Jackson Bros.) were independent con-' tractors.” Defendants excepted. It is patent that, if as matter of law this paper-writing does not make Jackson Bros, independent contractors, as charged, his Honor erred in telling the jury that “You can consider such contract in passing upon the liability of defendant company, as to whether Jackson Bros, were independent contractors”; for it is elementary that where the language of a contract is free from ambiguity its construction is for the court and not for the jury. The ruling of which the Roanoke Company may justly complain, however, is in the construction the Judge himself placed upon the instrument. In our opinion, according to its terms, Jackson Bros, held the relation of independent contractors engaged in the cutting and removal of the timber of the Roanoke Company. There is nothing *343 in the language of the instrument by which Jackson Bros, are made the servants of the Eoanoke Company, employed to superintend the work of cutting and removing the timber. Jackson Bros, come clearly within the recognized definition as to what constitutes an independent contractor. 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 the person for whom he does it, and may use his own discretion in things not specified. Pollock on Torts, 78; Barrow on Neg., 160. The law is well stated in Young v. Lumber Co., 60 S. E. Rep., 656, a case strikingly like this, and by which it is controlled. Mr. Justice Connor, speaking for the Court, says: “When a contract is for something that may be lawfully doner 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, either 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 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.” We think the Judge below should have sustained the motion to nonsuit as to the Eoanoke Company, and it is so ordered. As to the defendants Jackson Bros., we award a New Trial.