A careful examination of tbe record, including the charge of his Honor to the jury, which is set out in ex-tenso, convinces us that the case was fairly tried and no error was committed which entitles the defendant to a new trial. The two assignments of error most earnestly insisted upon relate first to the admission of certain evidence and the remarks of counsel on the question of damages embraced in the fourth issue; and second, the refusal to give a special instruction predicated upon the evidence that at the time of the negligent killing of deceased, the train was operated by the employees of R. S. Williams, an independent contractor. This instruction was as follows: “If the jury find frouq the evidence that plaintiff’s intestate was killed by an engine and cars, and that said engine and cars were operated by employees of R. S. "Williams, and that the said R. S. Williams had control and management of* said engine and cars at the time of the injury complained of under the contract put in evidence, then he would be an independent contractor and the defendant company would not be responsible for the acts of his employees, and you should answer the first issue, No.” The contract between Williams and the defendant was in writing and was offered in evidence. By its terms, Williams was to cut and haul logs to defendant’s main line, where they were received by defendant, the defendant furnishing the engine and cars to Williams. The overwhelming weight of the evidence fixed the place of the accident on the main line of defendant; and it was uncontradicted that the employees of Williams, at the time of the accident, were operating the train, not in hauling logs, but in returning the engine under defendant’s orders for examination to defendant’s mill at Vineland. So, assuming (but it is not clear that the stipulation of the contract touching the right of the defendant to direct and control Williams, especially in view of certain statements made by Williams in his testimony his obedience to directions given him by defendant as to the performance of his work, create the relationship of employer and independent contractor) that the contract created the relation of independent contractor between Williams and the defendant, his Honor would have, in our opinion, upon the evidence, been justified in instructing the jury that the contract did not em*387brace tbe work Williams was engaged in at tbe time of tbe accident — be was then but acting as tbe agent or servant of tbe defendant. However, bis Honor made tbe defendant’s liability to depend upon whether tbe intestate was killed at a point covered by tbe contract between Williams and tbe defendant, and in so doing we do not think tbe defendant has any just cause of complaint.
In tbe course of tbe trial, tbe defendant, by its cross-examination of plaintiff’s witnesses, attempted to show that tbe intestate bad no earning capacity; was supported by bis sons, and was unable to support himself; and it inquired into tbe number and ages of bis children. After this latitude taken by tbe defendant, bis Honor permitted tbe plaintiff thereafter to ask one witness who raised tbe intestate’s children, and if be was kind and attentive to bis family. Tbe defendant concedes that bis Honor correctly instructed tbe jury as to the measure of damages, and in concluding this part of bis charge, be said: “You allow nothing for suffering, you do not attempt to punish tbe railroad, but you seek to give a fair, reasonable pecuniary worth of tbe deceased to bis family under tbe rule which I have laid down. You should rid yourself of all prejudice, if you have any, and of sympathy. It is not a question of sympathy; it is just a plain, practical question, and you should give a reasonable and fair verdict upon all tbe issues.” More than once, in bis charge, bis Honor, referring to tbe argument of counsel addressed to tbe jury, admonished them that they must find tbe facts from tbe evidence and be guided by tbe law as be gave it to them. Assuming, as we must, that tbe jury was composed of men of intelligence and character, we cannot see bow they could have been misled, under tbe charge of bis Honor and bis frequent admonitions to them of their duty, by tbe argument of counsel. Tbe language of plaintiff’s counsel, to which objection was made at tbe time, was that tbe jury could take into consideration tbe value of tbe deceased to bis., estate and “bis value to bis family in bis care and oversight.” His Honor, in addition to what we have quoted from bis charge, specifically instructed tbe jury what they could consider in determining tbe damages sustained, to-wit: tbe age of tbe deceased, bis prospects *388in life, bis babits, bis character, bis industry and skill, tbe means be bad for making money, tbe business in wbicb be was engaged. With these explicit instructions, we do not perceive bow men of intelligence could have been misled by an argument of counsel based upon an erroneous view of tbe law. It must be conceded that as counsel have, under our statute, tbe right to argue both tbe law and tbe facts to tbe jury, that it is probable that some one of tbe counsel may submit an argument to tbe jury based upon a misapprehension of tbe law governing tbe case. His Honor corrects this in bis charge, and we think be did so fully in this case. We do not think bis Honor violated tbe rule laid down in Hopkins v. Hopkins, 132 N. C., 29;R. R. v. Simmons, 105 Va., 657; Pa. R. R. v. Ray, 102 U. S., 451. Finding no reversible error in tbe trial, tbe judgment is affirmed.
No error.