
    H. C. SIMMONS et als. v. JOHN L. ROPER LUMBER COMPANY.
    (Filed 3 October, 1917.)
    1. Negligence — Fires—Causal Connection — Evidence—Railroads—Logging— Roads.
    Evidence tending to show that defendant, in cutting and removing timber from lands under a timber conveyance, operated a steam train on tramroads through the lands, on the right of way of which straw and other combustible matter had been left by them; that a fire occurred •thereon near a locomotive which was fired up and stood at one of these places; that the defendants’ employees were seen trying to put out the fire which was spreading from the direction of the locomotive, on both sides thereof, is sufficient upon the issue of defendant’s actionable negligence, the causal connection between the fire and its supposed origin, creating a reasonable inference from which the jury may find the issue against, especially when the evidence tended to show that the only fires on the land were those used by the defendant’s employees in the operation of the locomotive.
    2. Same — Presumptions—Res Ipsa Loquitur.
    Where the evidence tends to show that a fire was set out by defendant’s locomotive, standing on its tramroad with an inflammable right of way, which spread to plaintiff’s land and damaged it, and defendant’s ef6-ployees were the only ones present when the fire originated, the burden is on the defendant to go forward with its proof, if he would show the absence of negligence, which, under the circumstances, is presumed, at least, prima facie, the matter being peculiarly within its own knowledge and the engine under its control; and the doctrine of res ipsa loquitur applies.
    3. Contracts — Independent Contractor — Negligence — Liability — Dangerous Work.
    The doctrine of independent contractor, relieving his principal from liability for the negligence of such contractor, does not apply when the latter assumes control and management in the prosecution of the work, or where the work to he done is inherently dangerous, as in cutting and hauling from the land, with steam locomotive power, the timber thereon, under a conveyance of such timber, giving the right to operate logging roads on the land for that purpose.
    4. Pleadings — Proof—Variance—Statutes.
    In the case of a variance between the allegations of the complaint and the proof upon the trial, the defendant must pursue the remedy prescribed in Revisal, sections 515 and 516, or the variance, under our liberal practice of construction, will be deemed immaterial, under the former section. The allegations of the complaint in this case are held sufficient.
    Civil actiow for damages, tried before Lyon, J., and a inry, at April Term, 1917, of Owslow,
    This action was brought to recover damages for burning plaintiffs’ woods, which they contend was caused by the defendant’s negligence. The court, in the charge, states concisely the principal facts upon which the plaintiffs claim the right to recover.- It is alleged by plaintiffs “that about 1 -May, 1914, while the defendant Roper Lumber Company was in possession of certain land, and cutting the timber, building tramroads for the purpose of getting the timber out, hauling logs to load, that they negligently and carelessly permitted fire to escape from their engines, and thereby destroy a large quantity of timber that was not covered by the deed made by them to the Blades Lumber Company; that there were two fires several days apart, and there was no one else in the woods at. tbe time, except those wbo were employed by tbe Roper Lumber Company, and tbat one of tbe fires originated from tbe right of way that they bad weeded out for tbe purpose of putting down cross-ties and iron, and tbat no one else was there when tbe fire started; tbat tbe fire originated from or near tbat place, and tbat defendant’s servants negligently and carelessly permitted tbe fire to get out, and tbat after tbe fire got out, tbat they, through their carelessness and negligence, did not stop it, and did not get a sufficient force for tbat purpose; tbat tbe fire was originated near where they were at work, in a pile of logs tbat bad been hauled there, and tbat some of tbe parties working for tbe Roper Lumber Company were at work near-by, and tbe fire spread out on tbe south side of tbe road and did great damage.”
    Tbe principal exception of tbe defendant is tbat there was no evidence of negligence. We will, therefore, make such excerpts from tbe testimony as will show what tbe proof was upon which tbe plaintiffs relied, though will not state all of it consecutively, but only connectedly, .as to that part of it which is material:
    R. W. Craft testified: “Defendant’s train ran on tbe only right of way be knows of in tbe woods in question.”
    A. D. Wood testified: “I know about tbe fire tbat started on and burned over that land ... I passed there and saw tbe fire on one of tbe rights of way. I was 60 or 70 yards from tbe fire, I think. I bad seen tbe right of way before I saw tbe fire on it. I think tbe bands bad finished it. It came from tbe Pender line of tbe Roper Lumber Company. They bad been making tbe right of way and it was just cleaned off. I saw tbat tbe logs and trees were cut and tbat it was weeded to .secure tbe fire. Tbe right of way was in condition to burn. I don’t recollect bow long it bad been since it rained, but it was very dry; it was ordinary grass and straw on tbe ground; I' beard some knocking. going on around there. I went tbe next day where I bad seen this and found fresh timber cut there. I know tbat afterwards tbe Roper Lumber Company hauled tbe logs. Some of tbe grass on tbe track was dead and some was alive. It bad not burned much at tbat time. It was straw and wire-grass, pine straw; it was dry. Tbe wind was blowing-in a northerly direction tbat morning. I saw Mr. Hub Jones, and he was working for tbe Roper Lumber Company and was looking after tbe fire when I found him. I did not see any one else. Tbe fire came from towards tbe train. It was burning in a few feet of tbe train. -There was a train operating on tbe tram. I think tbe loader was on tbat line. I went near enough to see tbat they were trying to stop tbe fire. Tbe loader was operated by a steam engine.”
    J. S. Raynor testified: “There was a lot of pine tops, which were dry .and trashy. Tbe ground where tbe fire spread was right smart trashy •and dry busb. Tbe best I can remember, tbe engine was not far from tbe fire at tbe time I first noticed tbe fire break out.”
    There was a verdict for $600 in favor of tbe plaintiffs. Judgment was entered tbereon, and defendant appealed, after reserving its exceptions. ' •
    
      Duffy & Day and G. V. Oowper for plaintiffs.
    
    
      Frank Thompson and L. I. Moore for defendant.
    
   Walker, J.,

after stating the case: Tbe first question is, whether there was sufficient evidence, in law, to support the verdict, or, in other words, was there any evidence that the defendant, by its servants, negli.gently burned the timber on plaintiffs’ land ?

After a most careful review of the testimony, we think that the ease was properly submitted to the jury upon the question of negligence, and that the evidence was sufficient to support the verdict. It was said in Deppe v. R. R. Co., 152 N. C., 79, 81: “Tbe defendant contends that no witness testified that be saw sparks emitted by the engine, or that he .saw the sparks from the defendant’s engine ignite the plaintiff’s lumber kiln. In considering this contention, it must be remembered that this fire occurred in the daytime — in the brilliancy of a summer sun, ren•dering sparks emitted by an engine incapable of being seen by the human eye. That no one saw the sparks ignite the burned property was the fact in McMillan v. R. R., 126 N. C., 725, and Williams v. R. R., 140 N. C., 623, in which latter case this Court comments upon a similar contention: “No one testified that be saw the sparks fall from the engine upon the right of way. It is rarely that this can be shown by eye-witnesses, for it would be put out by the observer. But here the fire was seen on the right of way; it burned along the track between the ditch and the ends of the ties, and thence bad .gone into the woods. Tbe wind was blowing from the northwest across the track, the fire being on the south side. Two witnesses testified that they first saw the smoke about thirty minutes after defendant’s engine passed, blow long before that the fire began no one knew, but there was no fire before the engine passed. Tbe other witnesses first saw the fire after a longer interval, and there was evidence that the fire burned both ways. These were matters for the jury. ... In considering the origin of the fire, it is immaterial whether the fire caught on or off the right of way.”

If this is a correct statement of tbe law as applicable to tbe Deppe •case, it must be so in tbe present one, when we consider it with reference to tbe facts appearing in this record, which are much stronger, as tending to show negligence on tbe part of tbe defendant, than those in the other case.

It was said by Pearson, J., in Bottoms v. Kent, 48 N. C., 154, quoted with approval in Cheek v. Lumber Co., 134 N. C., 225, 228: “As a condition precedent to the admissibility of evidence,’ the law requires an open and visible connection between the principal and the evidentiary facts. This does not mean a necessary connection which would exclude all presumptive evidence, -but such as is reasonable and not latent or conjectural.”

It seems to us that the case of Ashford v. Pittman, 160 N. C., at p. 47, is on all-fours with this case, in all essential respects. Justice Brown there stated: “No evidence is offered which tends in the least to explain or throw any light upon the cause of the fire, unless it caught from the fire around the pot, built within 30 feet of the stables. It is true that the evidence does not prove conclusively that the stables caught from the fire, built so near them, but we think the evidence is of such circumstantial character that it should be submitted to the jury, to be determined whether the building the fire around the pot caused the burning of the stables. Circumstantial evidence has frequently been allowed to determine matters of much greater consequence, both criminal and civil. There are a number of cases in our reports where the evidence of circumstances has been allowed to go to the jury as bearing upon the origin of a fire,” citing McMillan v. R. R., 126 N. C., 726; Aycock v. R. R., 89 N. C., 327; Simpson v. Lumber Co., 133 N. C., 101. In the McMillan case, when the point was suggested that there was no eye-witness' who testified to the origin of the fire, but the plaintiff relied only upon circumstances as to how the fire originated, the Court remarked that, while it was true the evidence was entirely circumstantial, it frequently happened in cases of gravity and of the greatest importance, both criminal and civil, that this kind of evidence is resorted to for proving or disproving the existence of an essential fact; and, it is added, that in the case then under consideration, the undisputed facts were that there was a railroad track and right of way where the defendant’s engine was and had been, and immediately afterwards the fire was ignited, which spread to the plaintiff’s lands and damaged them, the land contiguous to the track being covered with combustible material — that is, covered with dead broom-straw. The Court held the facts sufficient to go to the jury. The Simpson case is to the same effect. There the sparks were not actually seen by any one. It appeared in' that case that the train had passed on the defendant’s track, and shortly thereafter a fire was discovered not far from the plaintiff’s house and near the track. That case is also very much like ours, the difference, if any, being that in this case there were fires on both sides of the track, while in the Simpson case the fire was confined only to one side. The mere fact that in the Simpson case the train was moving makes little or no difference, because an engine standing still can emit sparks as well as one that is moving. The Aycock case is like the Simpson case in its material facts.

Tbe cause of the fire is not required to be shown by direct and positive proof, or by the testimony of an eye-witness. It may, as we bave seen, be inferred from circumstances, and there are many facts like tbis one, wbicb cannot be established in any other way. It is true that there must be a causal connection between the fire and its supposed origin, but tbis may be shown by reasonable inference from the admitted or known facts, for otherwise presumptive evidence would be excluded. We bave held, proof as to the emission of sparks from locomotives or stationary engines to be sufficient for the purpose of showing that a fire was started by them, where no one saw the sparks dropping on the place wbicb was burned, and for the reason that the surrounding circumstances tended to prove that they were the cause of the fire, by reasonable presumption or inference. We bave cited several such cases, and it would be useless to mention others. This is rather a typical case of that class, and the facts tend to show the true cause of the fire with more certainty than in many of them where the owner of the engine was held liable for a negligent burning. There were fires on both sides of the tramroad. One of the witnesses stated that “the fire came from towards the tram and was burning within a few feet of the train wbicb was operating on the' tram. Tbe loader, I think, was on the line, wbicb was operated by a steam engine. I was near enough to see that they were trying to stop the fire.” He also testified that the right of way was covered, at places,, with dry grass and pine straw, logs and other inflammable material, and that the first fire seen by him was “in the region near the southwest swamp and on the right of way.” Tbis evidence is not merely conjectural or speculative, but is such as warranted the jury in forming a reasonably safe conclusion that the fire was set out by the engines; there being, in addition to all tbis proof, the fact that there was nothing else there to cause the fire. McMillan v. R. R., 126 N. C., 725; Williams v. R. R., supra.

Tbe next question is, Was there any negligence on tbe part of tbe defendant ? “Tbe decided weight of authority and of reason is in favor, of bolding that tbe origin of tbe fire being fixed upon tbe railroad company, it is presumptively chargeable with negligence, and must assume tbe burden of proving that it used all reasonable precautions.” Beppe’s case, supra. An able writer on tbe law of negligence says: “Tbe plain proposition applicable here, as in other cases, is that where an injury to ‘A.,’ or tbe property of ‘A./ proceeds from tbe premises of ‘B./ under such circumstances that injuries do not ordinarily happen where care is used to prevent them, tbe mere fact of tbe injury so proceeding is prima facie evidence of negligence to charge ‘B.’ in conformity with tbe rule that the thing itself speaks.” Thompson on Negligence, Yol. 1, sec. 732, p. 671. This principle, as stated by Mr. Thompson, has frequently found its way into our decisions, and has been applied by us with exceptional uniformity. Aycock v. R. R., 89 N. C., 329; Williams v. R. R., supra; Cox v. R. R., 149 N. C., 118; Knott v. R. R., 142 N. C., 238; Kornegay v. R. R., 154 N. C., 392; Currie v. R. R., 156 N. C., 419. In the Aycoclc case, Chief Justice Smith said: “It is but just that the owner should b.e allowed to say, ‘You have burned my property, and if you were not in default, show it and escape liability,” citing note to R. R. v. Schurtz, 2 Am. and Eng. R. R. Cases, 271. And the same was thus substantially said by Justice Burwell, in Haynes v. Gas Co., 114 N. C., 203, 208, citing and quoting from Aycoclc’s case, supra, and Moore v. Parker, 91 N. C., 275, to this effect: “A prima facie case of negligence being thus made out against the defendant, he must produce proof of care on his part, or of some extraordinary accident that rendered care useless, in order to rebut the presumption. Guided by the principle announced in these cases, we come to the conclusion that this plaintiff should have been allowed to say to this defendant, ‘The wire you put in the street hilled my son while passing along the highway, as he had a right to do. If you are not in default, show it and escape responsibility.’ Numerous Authorities might be cited to sustain our conclusion upon this point, the cases being strictly analogous to this one. But we content ourselves with a reference to Ray on Negligence of Imposed Duties, p. 145; Wood’s R. R. Law, 1079; Whitaker’s Smith Negligence, 423. The last-mentioned author says (p. 422) : ‘If the accident is connected with the defendant, the question whether the phrase, “res ipsa liquitur ,” applies or not becomes a simple question of common sense.’ It seems to us that there is nothing in the relation of the deceased to the defendant or in any of the circumstances attending the incident of his death to prevent the rigid application here of the rule announced by Judge Gaston in Ellis v. R. R., 24 N. C., 138, and reaffirmed, as stated above, in Aycock v. R. R., supra.” And in Haynes’ case, Justice Burwell gave the following reason for the rule, though, that Chief Justice Smith, from whose opinion he quoted, had personally preferred the one which placed the burden upon the plaintiff: “In Aycock v. R. R., 89 N. C., 321, where a plaintiff sought to recover damages for the burning of his property, fire having been communicated to it by sparks from an engine on the defendant’s road, Chief Justice Smith, discussing ‘the question as to the party upon whom rests the burden of proof of the presence or absence of negligence where only the injury is shown, in case of fire from emitted sparks,’ declares that this Court will ‘abide by the rule so long understood and acted on in this State, not alone because of its intrinsic merit, but bceause it is so much easier for those who do the damage to show the exculpating circumstances, if such exist, than it is for the plaintiff to produce proof of positive negligence/ and he adds that 'the servants of the company must know and be able to explain the transaction, while the complaining party may not.’ ” Justice Allen-states the rule concisely in Currie v. R. R., sufra, as follows: “The first issue establishes the fact that the defendant destroyed the property of the plaintiff by fire, and from this fact alone the presumption arises that the defendant was negligent,” citing several of our decisions. The jury, in response to the first issue in the Currie case, merely found that the property was burned by sparks from the defendant’s engine,, and the burden was then shifted to the defendant to disprove negligence, or to show that the engine was properly constructed and carefully operated, so as to prevent the emission of sparks. This renders useless further discussion of this matter.

The contention that Jones and Eaynor were independent contractors, having charge and direction of defendant’s operation at the place of the fire, the jury have settled against the defendant, upon sufficient' evidence and a correct instruction from the court, which was that if the jury found from the evidence that Jones and Eaynor were at the time under the control and management of the defendant in doing the work assigned to them, they were not independent contractors; but that if the defendant had no control over the manner in which they performed the work, but simply paid them for their services, being interested only in the result of their labor, they would be independent contractors. This was sufficient, especially in view of what was said by the witness J. S. Eay-nor, that “Mr. Whitehurst (defendant’s vice-principal) told me what to do in the woods.ILe would tell me what logs to haul and how to put them, and I had to put them where he said. I hauled them in any direction that I wanted to. . . . Mr. Whitehurst was over me. ILe was walking boss. He told me where to work, and how to work, and where to put the logs, and so forth. . . . There was no one else there, except those working for the defendant.” This was evidence that Eaynor was not an independent contractor. There was other evidence of the true relation between defendant and Jones and Eaynor. Thomas v. R. R., 153 N. C., 351; Beal v. Fiber Co., 154 N. C., 147; Denny v. Burlington, 155 N. C., 33; Embler v. Lumber Co., 167 N. C., 457; Dunlap v. R. R., 167 N. C., 669. But the doctrine does not apply at all if the work which the master directs to be done is inherently dangerous, as held in Davis v. Summerfield, 133 N. C., 325; Thomas v. R. R., supra ; Watson v. R. R., 164 N. C., 176; Denny v. Burlington, supra, and Embler v. Lumber Co., supra, in which the Court said: “An independent contractor is said to be one who, exercising an independent employment, contracts to do a piece of work according to his own judgment and methods, and without being subject to his employer, except as to the result of the work, and wbo lias the right to employ and direct the action of the workmen, independently of such employer and freed from any superior authority in him to say how the specified work shall be done or what the laborers shall do as it progresses. 1 Bouvier’s Law Diet., p. 1011; Casement v. Brown, 148 U. S., 615 (37 L. Ed., 582). The rule, however, is subject to this qualification: ‘Where an obstruction or defect which ocasions an injury results directly from the acts which an independent contractor agreed and was authorized to do, the person who employs the contractor and authorizes him to do these acts is liable to the injured party; but where the obstruction or defect caused or created is purely collateral'to the work contracted to be done, and is entirely the result of the wrongful acts of the contractor or his workmen, the rule is that the employer is not liable, and in such case the contractor will be liable for his own negligent acts.’ . . . An employer, of course, cannot authorize a dangerous piece of work to be done, or work, the doing of which according to the contract of employment will necessarily or probably be dangerous and injurious to others, for this would be to participate in the commission of the tort, or to authorize the doing of it. The employer is, therefore, liable if injury results from work done as he has authorized it to be done,” citing the following cases: Robbins v. Chicago, 4 Wall. (U. S.), 657, 679 (18 L. Ed., 527); Water Co. v. Ware, 16 Wall., 566, 576 (21 L. Ed., 485); Ph., etc., R. Co. v. Ph., etc., Steam Towboat Co., 23 How. (U. S.), 209 (16 L. Ed., 433); Chicago v. Robbins, 2 Black (U. S.), 418 (17 L. Ed., 298).

The defendant’s next position is, that there was a variance between the allegations and the proof; but we think the complaint is sufficiently broad in its allegations, when considered under the liberal construction to which it is entitled by our Code, to include a cause of action such as corresponds with the evidence, especially section 5, which is more general in its allegations. Besides, if there was any lack of correspondence between the allegations and the proof, Revisal, secs. 515 and 516, provides how a party may take advantage of it; and when the procedure there presented is not followed, the variance is deemed immaterial, under section 515.

We have carefully examined the questions raised by defendant’s exceptions to evidence, and we find nothing that should induce us to reverse this judgment. We do not agree with defendant as to the nature of the questions, and the influence of the answers to them, upon the jury. In no view, we think, were they of sufficient importance to substantially affect the result.

The case was ably and forcefully argued by Mr. Moore for the defendant, but we have been unable to discover any fatal error, after carefully weighing the facts appearing in the record and the learned argument of counsel. We conclude that the ease has been correctly tried. It was submitted to the jury under a clear-cut charge from Judge Lyon, which was certainly not unfavorable to the defendant. We therefore affirm the judgment.

No error.  