after stating the case: Was Eerrell, by the terms of the written contract made between defendant and himself, a servant of defendant, employed to hire hands and ' superintend the work of cutting, hauling and loading the trees, or was he an independent contractor ? The answer to this question depends, primarily, upon the construction of the written contract. Defendant requested his Honor to construe the contract and instruct the jury, as a matter of law, that *31Ferrell was an independent contractor, submitting to them the question whether he was Avorking under the contract. His Honor left the question whether Ferrell Avas an independent contractor to the jury. In one aspect of the question this was error. The construction of the language of the contract, being free from ambiguity, was for the court. Assuming that the contract was made in good faith and Avas not a mere colorable device, resorted to for the purpose of avoiding responsibility for Ferrell’s acts, we are of the opinion that it constituted Ferrell 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 Torts, 78; Barrows on Neg., 160. Mr. Justice Walker, in Craft v. Lumber Co., 132 N. C., 151, says: “When the contract is for something that may be lawfully done, 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 the work or the agents to be employed in doing it, and the person for whom the Avork is to be done is interested only infike ultimate result of the Avork 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.”
In Engel v. Eureka Club, 137 N. Y., 100, Andrews, C. J., says: “The exigencies of affairs frequently require that persons exercising independent employments should be entrusted by the OAvners of property with its improvement, and in various relations and under varying conditions they are employed, not as servants, but as independent contractors, to execute contracts which the person who secures their services is unable to execute himself, or the execution of AAdiich he prefers to commit to another.” In Knowlton v. Hoit, 67 N. H., 155, *32it appeared that “The defendant bought the standing timber on a lot adjoining the plaintiff’s land and made a contract with one Hazen to' cut the standing trees into timber, at an agreed price per thousand feet. Hazen performed the contract, hiring and paying his men. Beyond making the contract and paying the price agreed, the defendant had nothing to do with cutting the timber. The defendant took the lumber from the lot. In felling the trees some of them fell upon and across plaintiff’s fence and wall, breaking some of the boards. * * * The defendant did not own the land upon which the timber was cut.” Smith, J., said: “Hazen was a contractor, exercising an independent employment anti selecting his own servants and workmen. He was not an ordinary laborer, engaged in cutting the trees, nor acting under the control of the defendant. The contract was to do an act lawful in itself, and the authority conferred upon Hazen was to do' it in a lawful way. The maxim Respondeat superior does not apply.”
It is not easy to find any essential difference between this and the case before us. Ferrell was to employ the hands, pay them, cut the timber in his own way, free from any control by defendant, and to receive $3.50 per thousand feet. We can perceive no difference in principle between this case and one in which the owner of wood contracts with a woodcutter to cut “cord wood” at so much per cord, or one wherein “a ditcher” is employed to dig ditches on his land at a fixed price per foot, or a carpenter to build a house of fixed dimensions, or numerous other contracts made almost daily by our people. If the contract is made in good faith, we do not perceive how it can be said that the owner of the land is in either case liable for the acts, either contractual or tortious, of the person to whom he commits the execution of the work, without doing violence to the law which “has become the settled doctrine of our land.” As' is well said by an eminent Chief Justice, “There is no reason, founded on public policy or the relation *33between tbe parties to tbe contract, wbicb should subject one party to tbe contract to liability to third persons for tbe negligence of another.” We find nothing in tbe evidence wbicb, as a matter of law, changes tbe relation established by tbe written contract. It is said, however, that, notwithstanding tbe language of tbe written contract,‘as a matter of fact Eerrell was tbe mere servant and employee of defendant, and that tbe writing is a device resorted to for the purpose of protecting defendant from liability. It is clear that Eerrell does not become an independent contractor simply because tbe writing so styles him. Whether be is one depends upon tbe terms upon wbicb be, in truth, enters upon and cuts tbe defendant’s timber. If, as a fact, notwithstanding tbe language of tbe writing, defendant exercises a control over him in the selection and employment of tbe laborers — if defendant pays them and directs the manner in wbicb they perform tbe service; in other words, if tbe writing does not truthfully set forth the agreement between Eerrell and defendant, and tbe jury should so find, then be is not an independent contractor. If be was not acting under the written contract, but as tbe servant or employee of defendant, and the laborers who cut tbe trees are tbe servants of defendant, it would, of course, be liable for their negligence. Plaintiff insists that there is evidence fit to be submitted to tbe jury tending to establish this contention. As the case was not tried or submitted to tbe jury in this view, we forbear any discussion of tbe question, or whether there is any evidence bearing upon it. Plaintiff next insists that, conceding Eerrell is an independent contractor, tbe character of tbe work was so essentially dangerous that, under one of tbe exceptions to tbe rule of nonliability, defendant owed an absolute duty to third persons passing along tbe path over tbe land wbicb it cannot put away by committing tbe work to an independent contractor. It is conceded that, upon grounds of public policy, certain exceptions are made by tbe law to tbe general rule. Tbe one upon wbicb plaintiff *34relies is well stated by Andrews, C. J.: “Where the thing contracted to be done is necessarily attended with danger, however skillfully and carefully performed, or is intrinsically dangerous, it is held that the party who lets the contract to do the act cannot thereby escape responsibility for any injury resulting from its execution^ although the act to be performed may be lawful. But if the act to be done may be safely done in the exercise of due care, although, in the absence of such care, injurious consequences to third persons would be likely to result, then the contractor alone is liable, provided it was his duty under the contract to exercise such care.” Engel v. Club, supra. As illustrative of the principle, the language of the Chief Justice is appropriate : “The taking down the wall was not intrinsically dangerous. The only danger to be apprehended was in doing it carelessly or unskillfully. It was in the manner of doing it, and not in the thing itself.” In Knowlton v. Hoit, supra, there is no suggestion that the felling timber trees in the forest is intrinsically dangerous. Blasting rock has been held to be so. 16 Am. and Eng. Enc., 201; Booth v. R., W. & O. T. R. R., 140 N. Y., 207, where the question is discussed at length. In that case the Court held that blasting rock was not intrinsically dangerous. James v. McMinimy, 93 Ky., 471. Burning brush is held not intrinsically dangerous. Shute v. Princeton, 58 Minn., 337; Tibbetts v. Railroad Co., 62 Me., 437; Bibb v. Railroad Co., 87 Va., 711; Hilliard v. Richardson, 69 Mass., 349. It has never been supposed that cutting down one’s own trees in a forest was so intrinsically and essentially dangerous as to impose upon the owner of the land or the trees the absolute duty of looking out for persons who might be passing along a private footpath. The fact that there was such a path near the trees would impose the duty of a reasonably careful lookout for persons who might be passing over it. The measure of the duty would be affected by the frequency of its use, the knowledge of the persons cutting, etc., but the duty is relative and *35not absolute. The principle upon which rest the rights and liabilities of the owners of property upon which work is being clone by independent contractors is well settled and uniformly recognized. It is founded in wisdom and sound policy. The limitations which have been put upon the immunity from liability are also settled. The application of the exceptions has given rise to much discussion and frequently to some conflict in the views of courts. The testimony here shows that the timber trees belonging to defendant were in a pine forest; that William Young resided on the land, in a house surrounded by a clearing of about twelve acres. It does not appear that the cutting endangered his premises. The laborers had been cutting for several days in the neighborhood of the house.. There is some conflict in the testimony in regard to the size, character, etc., of the undergrowth and its relation to the path. These were questions for the jury upon the question of negligence.
The plaintiff objected to the introduction of the written contract, on the ground that it was not set up in the answer. We concur with his Honor that it was not necessary to do so. It was admissible to show defendant’s relation to the laborers engaged in cutting. It might be well to submit the question raised by the contention of defendant in this respect to the jury in a separate issue or question. This, however, is in the discretion of the court. Revisal, sec. 527. No suggestion is made in the record, or the briefs, that defendant was negligent in the selection of Eerrell for the work. It appears that he had been in the service of the company before entering into the written contract.
There is a number of other exceptions in the record bearing upon the question of negligence. As the case goes back for a new trial, we deem it best not to decide them; they may not arise upon a second trial. Eor the error in the charge pointed out, there must be a