(after stating the facts). If the action had been brought against the organization to the mismanagement and inexcusable negligence of whose servants the intestate’s injuries, and consequent loss of life, are directly attributable, there would be no legal defence against its successful prosecution, and the recovery of damages. But it is a different question, when the claim is asserted against the defendant. Its servants had no control over the cars, which had been delivered to the servants of the Columbia company, nearly an hour previous, nor could they exercise any authority over the action of the latter. The inquiry now is, wherein is found the acts or omissions of the defendant, or its employés, out of which springs its responsibility to the plaintiff’s intestate, or to the plaintiff, and how the negligence of the servants of the other company can be legally imputed to the defendant, so as to subject it to the claim for compensatory damages.

The first issue submitted to the jury was in this form : Was the death of the plaintiff’s intestate caused by the negligence of the defendant ? The response rendered being in the affirmative.

The series of instructions asked for by the defendant, present the case in its different aspects upon the evidence, underlying all of which, is the comprehensive proposition, that no negligence on the part of the defendant’s servants is shown, entitling the plaintiff to the recovery of damages from it. This requires of Uus to examine the directions of the Court, and the grounds upon which the jurors were authorized to act, in imputing negligence to the defendant’s servants, for which their principal is liable.

*658 The Court instructed the jury, that there was no negligence in the defendant, in allowing the other Company to use their switch in making connection between the roads, to facilitate the interchange of freight between them. “But,” says the Judge, restating the evidence, and assuming the facts to be as stated, “ it was the duty of the defendant to have a watchman at that junction, or some signal, provision, or appliance, to prevent such accidents as this, and to provide for the safety of its employés, such as the intestate, running its trains upon the main track.”

The existence of negligence upon a given state of facts, is generally to be ascertained and declared by the Court, though cases may occur, in which they are so inseparably intermixed, in giving a complexion to the result, as to require a submission to the jury, and their general response, under appropriate instructions for their guidance from the Court. When the severance is practicable, as in this case, the Judge must declare the presence or absence of negligence in the transaction, as found by the jury, and it is a reviewable error, when he makes a wrongful decision in the premises. Now, was it the defendant’s duty to have a watchman, signal provision, or appliance at the junction, to guard against such an unforeseen accident as happened on this occasion ? It was not necessary to prevent a derailment of its own trains, for it was a self-adjusting contrivance, that kept its track always in proper position. Its trains ran with the same safety over this, as over any other portion of its track, and the security to persons on them was in no manner jeoparded by the connection.

Was a signal at this noint more needed than elsewhere? Was it within the compass of reasonale foresight and sagacity, that such an accident from such a cause, might take place, which ought to have been provided for and guarded against? An obstruction might be found upon any part of the road, but are watchmen to be distributed throughout its entire length, to look out for such, and give timely warning to approaching trains? We do not think these carrier corporations are held to such measure of *659 ■responsibility, and their public usefulness would be greatly impaired if they were, while the highest degree of diligence and ■sagacity is expected in providing against accident which may be reasonably foreseen, in securing not only safe and substantial cars and moving force to propel them, but in preserving their road in good order, and free from apprehended dangers over which their trains are to pass.

Thus, in Hardy v. Railroad, 74 N. C., 734, when, after an •unprecedented rainfall, a culvert was insufficient to let the water pass, and in consequence, an embankment ten feet high was washed away, into which a passing train plunged, and the plaintiff’s intestate suffered an injury resulting in death, it was decided that there was negligence in not looking out, during the next ten ■hours, for injuries to the road-bed, that might have been supposed to have been caused by the storm, and repairing the break, or ■signaling an approaching train, and thus averting disaster; and the principle was applied to an empioyé of the defendant.

In Battle v. Railroad, 66 N. C., 343, two cars were left on a ■grade of the road, passing through the enclosed pasture lands of the owner of the mule, so insecurely fastened, that it would be easily set in motion. A calf had been before killed by a similar escape of blocked cars, which was nolice to the road of the danger. 'The lower car became unfastened, and, running down the slope, met and killed the mule, and the company was held to be liable for the loss. In these cases, the neglect and want of care pro■ceeded directly from the defendant’s own servants, and consisted •in positive acts of carelessness on their part.

The principle is thus stated, as governing the relations between a company, and one sustaining injury from the spread of fire, ■caused by sparks igniting a lot of cross-ties on the side of its track;: “To render the defendant liable, the injury must be the natural and probable consequences of the negligence; such a consequence as, under the surrounding circumstances, might, or ought to have been foreseen by the wrong doer, as likely to result from his act.” Doggett v. Railroad, 78 N. C., 305.

*660 We have not been referred to any ease in our own courts, or a well-considered adjudication elsewhere, that imposes so stringent a liability as is required to sustain the ruling now reviewed.. Public policy demands the enforcement of every just obligation upon those public agents, who have in charge the property and persons of others, and we are not in the least degree disposed to-relax them. But we are utterly unable, on the facts in this case,, to impute pecuniary or other culpability to the defendant or its-employés, in producing the disastrous results that followed the escape of cars, not in their own charge, but wholly under the control of those of another and disconnected company.

Appreciating this difficulty, the argument for the appellee, seeks to make the defendant liable for the want of care and vigilance in the servants of the other company, upon the ground of' their being permitted to use the defendant’s track, pursuant to-the ruling in Aycock v. Railroad, 89 N. C., 321, and supporting references, found on page 330.

It is there held, upon authority and sound reason, that a company, permitting another company to use its track in running its. own trains over the consenting company’s road, and thus exercising the franchise of the latter, remains liable for the consequences of mismanagement, to the same extent as it would be-for such mismanagement of its own servants in running its own-trains.

The principle does not extend to the present case. The-obstructing cars were not on the defendant’s road by their consent, and their presence was an invasion of the defendant’s proprietary rights. The small part of the track used by defendant’s consent, from the junction to the depot, over which the descending cars passed, was not on this occasion, and lawfully, used by the defendant’s permission, for the cars were running at random, under no control, and such use was never consented to; and besides, the damage was done on a part of the road which the-Columbia Company had no authority or license to use, in a lawful, manner even.

*661 As we have said, a guard was not needed for any purpose of the defendant at the switch, for such a mishap could have no more been foreseen, than the intervention of a wilful and lawless act of aggression from a stranger could have been anticipated.

Would a light or signal at the place have been of any avail ■in averting the catastrophe more than a mile distant? Was there any delay in the effort to give information of the danger to the coming traiu ? What then, could have been done, which was omitted, after the cars started on their mission of min and ■death, to arrest their progress, or give warning to the train, so «ear the depot? We are unable to see how blame for the terrible result, certainly falling upon others, can attach to the defendant.

There is error in this part of the charge as applied to the undisputed facts, as understood and declared by the Court.

We find it unnecessary to solve the interesting question of the plaintiff’s right to maintain the action in this State, putting our ■decision upon other grounds. The subject is touched on in Warner v. Railroad ante, 250.

There must be a new trial. Let this be certified to that end.

Error. Reversed.