Briscoe v. C. & A. R. R. et al. opposite side of that track, almost, if not directly, opposite the point where he was last seen. He was not run over by a car; on the contrary, the position of his body, the nature of the injuries, and the testimony as to the height of the buffers upon these cars, show that he was crushed between these two cars, while in an upright position between them, after he had in some manner moved from the south side of the cars to a point near the northern rail of this track. Such is the irresistible inference from the testimony and the physical facts shown in evidence. Furthermore, there is positive testimony that when the engine first approached car No. 56 all of these cars were coupled together; and when coupled together one could not pass between the buffers. Briscoe, last seen on the south side of car No. 56, at about the east end of that car, could not have gone between the cars until after the first impact of the engine and the uncoupling of the cars at or about that time. And when this physical fact is reckoned with, it is to be legitimately inferred, we think, from all of the facts in evidence, that Briscoe met his death by reason of being caught and crushed between these two cars, in the manner indicated above, when the engine struck car No. 56 the second time. The testimony and the physical facts in evidence suffice, in our judgment, to warrant the jury in drawing such inference as to the manner of his death. [Buesching. v. Laclede Gas Light Co., 73 Mo. 219, 1. c. 230.] This conclusion, we think, is not reached by piling one inference upon another, but by inference or inferences drawn directly from and resting upon proven facts; nor does it rest upon mere speculation and conjecture. [See Lynch v. Railroad, 208 Mo. 1, and cases cited, 106. S. W. 68.] The facts involved in Swearingen v. Railroad, 221 Mo. 644, 120 S. W. 773; Warner v. Railroad, 178 Mo. 125, 77 S. W. 67, and Grant v. Railroad, 190 S. W. 586, cited by appellants, are in each instance so far unlike the facts here involved as to make the decisions therein inapplicable. Briscoe v. C. & A. R. R. et al. II. It is argued, however, that in no event do the facts shown in evidence establish any negligence on the part of the servants of the defendant railroad company constituting the other members of this switching crew. In this connection it becomes necessary to refer to some portions of the evidence in more detail. Robertson, the engineer, called as plaintiff's witness, testified, on cross-examination, that if it became necessary for a switchman to go under a car or between cars it was the custom, and the duty of the switchman, to give a signal to the engineer indicating this. On re-direct examination he was asked what the rules of defendant railroad company required of the engine switchman and the yardman, or switching foreman, "with reference to obtaining or not obtaining a signal from the field switchman before coupling into a train about which the field switchman is employed.' The witness at first stated that he did not know what the custom was. Later, after certain objections were made and overruled, he was again asked, “What is that custom?" And he answered: "Well, they always know where all the men are before they move the train, that is if they know they are down in there working on them." Jordan, the yardmaster, also called as a witness for plaintiff, testified that he received no signal from Briscoe when he signalled the engineer to come forward, either at the time of the first attempt to effect a coupling with car No. 56, or upon the second occasion when the coupling was made; that the whistle and bell are not used when the engine is engaged in switching; and that he and Corder were not expecting any signal from Briscoe. He also testified that when a switchman goes between cars it is his duty to give a stop signal; that this was the custom and rule of the company. This witness further testified that he had been employed by the defendant at these yards for about three years; and that the same system, practice and rules in force Briscoe v. C. & A. R. R. et al. at the time of Briscoe's death had been in force during all of that period. One Pimpell, called as a witness for plaintiff, had previously worked for a number of years in these yards, his last position being that of yard foreman. He last worked there about a year and nine months prior to Briscoe's death, but his testimony as to the customs and practices in this yard was admitted upon the ground that Jordan's testimony, supra, showed that the same customs, practices and rules had been in effect for approximately three years prior to June 18, 1914; and this ruling is not questioned here. An assignment of error before us, however, relates to the rulings below on objections interposed by defendants to certain questions asked this witness; which matter we shall later dispose of. Pimpell, among other things, testified, in effect, that, under the custom and practice in this yard while he was there, if an attempt to make a coupling failed, then before making a second attempt it was the duty of the engine switchman not to signal the engineer to move the engine forward in the absence of a signal from the field switchman or until he knew that the field switchman was in a safe place. And later, in answer to a question as to what was the custom and practice of the engine switchman in respect to keeping a lookout for the field switchman during switching operations, he said: "The custom and practice was to know where his field man was before coupling in a string of cars at all times." Defendant Corder, the only witness for defendants, testified to the effect that, under the customs and practices, no signal was needed from Briscoe before effecting a coupling of the engine to car No. 56; and that if a switchman goes between cars or under a car he should give a stop signal. Viewing the evidence in the light most favorable to plaintiff, as it must be viewed for the purposes of the demurrer, we think that it suffices, prima facie, to establish negligence on the part of the servants of de Briscoe v. C. & A. R. R. et al. fendant railroad company. If indeed it was the established custom and practice, and the consequent duty, of the engine switchman, or of the yardmaster, to see that the field switchman was not in a place of danger, under circumstances of this character, before signalling the engineer to move forward, it appears that this duty was violated. As said, both Corder and Jordan saw Briscoe proceeding along the south side of this car for the purpose of cutting the coupling. The former says that he last saw Briscoe when the latter had traversed about one-half the length of the car; while the latter says that he last saw Briscoe at or near the east end of the car, the engine being then about a car length from the west end thereof. Neither looked further to ascertain Briscoe's position, or paid any further attention to him until after the coupling of the engine to car No. 56 had been effected and until that car had been switched to the main track. In this view, negligence appears on the part of both defendants; for since the common law fellow-servant rule no longer prevails as to railroads, the negligence of Corder alone is the negligence of the defendant railroad company. In view of the testimony here adduced the decision of this court in Harris v. Railroad, 180 Mo. App. 583, 166 S. W. 335, upon which appellants place great reliance, is, we think, without application. III. Nor, under the circumstances, do we think that the evidence warrants the conclusion that Briscoe was guilty of negligence, as a matter of law, barring plaintiff's right of recovery herein. Whether it may be inferred that Briscoe went between these cars, after the first attempt to couple the engine to car No. 56, for the purpose of walking to the ladies coach on the main track, where his duties required him to go, we do not say. One witness testified that on "the next morning" he examined the couplers and buffers on car No. 56 and car No. 775, and found on one coupler on car No. Briscoe v. C. & A. R. R. et al. 775 something that "looked like a splotch of blood;" though on cross-examination he said that he was not certain whether it was blood or rust. Upon this, with the other circumstances shown, respondent predicates an argument to the effect that it may be inferred that Briscoe was adjusting this knuckle when killed; but we need not reckon with this theory. No witness saw what Briscoe did at that time; and the presumption is to be indulged that he was in the exercise of ordinary care for his own safety, unless this presumption can be said to have been overcome by the facts and circumstances in evidence. But apart from this, if, in performing his work, he went between the cars in reliance upon the duty which, according to a custom prevailing, devolved upon the engine switchman and yardmaster not to signal the engineer to proceed until he was seen in a place of safety, or signalled, then there was not such contributory negligence on his part as to bar plaintiff's recovery. [See Penney v. Stock Yards Co., 212 Mo. 309, 111 S. W. 79.] We are of the opinion that the demurrer to the evidence was properly overruled. IV. The assignment of error which challenges the ruling of the trial court in admitting certain testimony of the witness Pimpell, over defendants' objections, proceeds upon the theory that certain questions asked this witness permitted him to state his own conclusions, as to what should or should not have been done, and to pass upon one of the ultimate questions of fact in issue, invading the province of the jury. The first of the questions asked this witness, to which appellants direct attention, is the following: "Supposing the engineer drives in and attempts to make the coupling and fails, what signals, if any, should be given by or received from the field switchman?" After objection made and overruled, but be |