
    H. J. STRICKLAND v. THE MONTGOMERY LUMBER COMPANY.
    (Filed 29 March, 1916.)
    Jfeglig'ence — Independent Contractor — Contracts.
    Under the facts of this case it is held that the defendant could not avoid the damages sought upon the ground that the property causing the injury was operated at the time hy an independent contractor, under the authority of Thomas v. Lumber Go., 153 N. C., 351.
    AotioN tried at August Term, 1935, of Feanklin, before Peebles, J., upon these issues:
    1. Were tbe lands of tbe plaintiff damaged by tbe negligence of tbe defendant? Answer: “Yes.”
    2. What damage, if any, has plaintiff sustained thereby? Answer: “$1,000.”
    Tbe following issue was tendered by tbe defendant, which tbe court refused to submit:
    1. Were Newell & Bryant operating tbe sawmill and logging railroad as independent contractors at tbe time of tbe injury to tbe lands of plaintiff, as alleged?
    Defendant excepted to tbe refusal of tbe court to submit tbe issue, and appealed from tbe judgment rendered.
    
      W. M. Person, W. PL. Yarborough, Jr., for plaintiff.
    
    
      F. S. Spruill, W. H. Buffin, Ben. T. Holden for defendant.
    
   Pee CubiaM.

Upon an examination of tbe evidence in this case and tbe written contract, we are of opinion that tbe case is governed by Thomas v. Lumber Co., 153 N. C., 351. In that ease Mr. Justice Manning reviews all tbe authorities in an able and exhaustive opinion. That case, like tbe present one, was an action to recover damages for tbe burning over of timber lands. Tbe defendant set up tbe same defense as in this case, that tbe lumber road was being operated by an independent contractor; but the Court held that whether the fire originated upon a foul right of way or from a defectively equipped or unslrillfully managed engine, the defendant was liable, saying: “The weight of reason and authority is to the effect that where a party is under a duty to the public or a third person to see that work he is doing, or has done, is carefully performed so as to avoid injury to others, he cannot, by letting it to a contractor, avoid liability in ease it is negligently done to the injury of another (citing numerous authorities). The duty need not be imposed by statute, though such is frequently the case. If it be a duty imposed by law, the principle is the same as if required by statute. Cockburn, C. J., in Bower v. Peate, supra. It arises at law in all cases where more or less danger to others is necessarily incident to the performance of the work let to contract. It is the danger to others, incident to the performance of the work let to contract, that raises the duty and which the employer cannot shift from himself to another so as to avoid liability, should injury result to another from negligence in doing the work.” Arthur v. Henry, 157 N. C., 393; Watson v. R. R., 164 N. C., 176; Dunlap v. R. R., 167 N. C., 669.

No error.  