Russell v. Joplin Transfer & Storage Co. , 169 Mo. App. 685 ( 1913 )

ROBERTSON, P. J.

This action was instituted in the circuit court of McDonald county and afterwards taken on change of venue to Barton county.. Defendant James Bragassa was doing business under the name of Hughes Stone Company. Plaintiff recovered judgment below on a petition which alleges that on November 17, 1910, be was in tbe employment of defendants who were engaged in installing a steam boiler and engine at the “gravel works” of the defendant Bragassa; that the defendants in preparing to raise and adjust the smokestack to the boiler were proceeding to raise a mast or gin pole and had selected for the gin pole an iron rail, being an ordinary railroad rail about twenty-five feet long and weighing approximately 700 pounds. Plaintiff then describes the method of raising it and charges the acts of negligence to be that defendants’ superintendent loosened one of the guy ropes to the rail and allowed it to fall, and that the defendants were further negligent in not securely fastening the foot of said rail and said ropes so as to prevent the rail from slipping or coming loose and in selecting the rail for such mast or gin pole.

The evidence discloses that the Joplin Transfer & Storage Company had undertaken to move the boiler from another place in this -State to Noel where it was to be set up at the “gravel works” of the defendant Bragassa.by the transfer company and Bragassa. The transfer company sent to Noel for the purpose of assisting in setting the boiler up one of its employees and an employee of defendant Bragassa was also there, both assisting in and superintending the work. The raising of the gin pole had progressed until it was up to an angle of about eighty, degrees, when it fell striking and wounding the plaintiff. 'As to how it was being manipulated, the surroundings and the manner and method of work of the various parties there engaged, it is impossible for us to determine from the record in this case. It seems at the. trial of the case a plat was used and demonstrations made by the witnesses indicating the various positions of the gin pole and the guy ropes, the boiler and appliances, but none of these matters' are before us. The plat was offered in evidence but by a mistake of the printer another plat is in the record which is of no ' assistance to the court. When illustrations are made before the jury as to instrumentalities about which there is controversy or references are made to plats, it is important, if the parties desire the opinion of this court upon any question connected therewith, that these matters he preserved or duplicated for nur benefit; otherwise, the testimony is meaningless. [Scott v. Railroad, 158 Mo. App. 625, 629, 139 S. W. 259.]

It is insisted in the brief filed here in behalf of the appellant that the employee of the transfer company who was sent to Noel to assist in adjusting this' boiler, was simply loaned to the defendant Bragassa. We can readily dispose of that question as the record clearly refutes that theory. The testimony discloses that the Joplin Transfer & Storage Company was to receive $50 or $60 for hauling the boiler from the place where it was purchased and for unloading it and setting it up at Noel. Defendant Bragassa so testified as did also the employee of the transfer company who says he was sent down there to unload and set up the boiler and superintend the work.

Under; this state of facts there can be no question as to the liability of the defendant transfer company on account of any acts of negligence that may have been committed there during that work, as alleged in the petition; and as we have said the record in the case is in such shape that a consideration of.any alleged errors occurring at the trial is impossible, it therefore becomes our duty to affirm the judgment of the trial court, which is accordingly done. Affirmed.

All concur.