
    MISSOURI, K. & T. RY. CO. OF TEXAS v. COOPER.
    (Court of Civil Appeals of Texas. Texarkana.
    Jan. 1, 1914.
    Rehearing Denied Jan. 15, 1914.)
    1. Appeal and Eeeoe (§ 1068) — Haemless Eeeoe — Insteuctions.
    Any error in an instruction authorizing a finding of negligence in a railroad passenger’s action for personal injuries by the sudden jerking of the engine, when the uncontroverted evidence showed that such movement was only the ordinary movement of the train, was harmless to defendant, where the uncontroverted evidence also showed that it was guilty of negligence in furnishing a defective seat to the passenger, which directly resulted in the injury; the instruction submitting the two grounds of negligence being in the disjunctive, and it being presumed that the jury did not base its finding for plaintiff on a ground not supported by the evidence.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. § 1068.]
    2. Tbial (§ 296) — Insteuctions.
    Any error in submitting as negligence, in a passenger’s action for personal injuries, a sudden jerk of the engine, when the evidence showed that the movement was not unusual, was not prejudicial, where the court also charged that the jury could not find for plaintiff with respect to the manner of operation if the movement of the train was only such as was necessarily incident to its operation in the exercise of due care.
    [Ed. Note. — Eor other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. § 296.]
    Appeal from District Court, Fannin County ; Ben H. Benton, Judge.
    Action by D. C. Cooper against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    The appellee, Mrs. Cooper, was a passenger on appellant’s train, and when nearing the station of Ambrose the seat in the coach occupied by her alone at the time became, by reason of a jolt or movement of the train, suddenly displaced in such manner as that she was let downward and came violently in contact with the wooden braces or under framework of the seat, and was thereby grievously injured. She sues for damages, alleging negligence on the part of appellant (1) in failing to fasten the bottom of the seat in the coach so that it would not become displaced, and (2) in the movement or operation of the train in causing it to make sudden jerks. The appellant answered by denial, contributory negligence, and assumed risk. The verdict of the jury was in favor of appel-lee.
    The evidence shows that the seat was constructed to accommodate two people at the time, with a bottom seat or cushion resting upon the framework or legs, but a distinct and movable piece, and with an upright back piece and arm rests on the sides. This particular seat, as constructed, had crosspieces underneath that were too short to allow the cushion to fit close upon the supports or framework, which gave the seat, or cushion too much play at the base, with the result that the seat would easily fall downward at the rear end into the framework beneath. It appears that a jolt or sudden movement of the train resulting from slackening speed for the station caused the seat to be suddenly displaced and the rear end of it to fall out of proper position downward into the framework or legs. While it appears that there was a jolt or sudden movement of the train at the time, such jolt or movement of the train conclusively appears to have been only the ordinary and usual jolt and movement of the train under careful operation. The evidence warrants the findings of fact that appellant was guilty of negligence proximately causing injury to appellee in failing to fasten the bottom of the seat so that it would not become displaced as pleaded in the petition, and that appellee was not guilty of contributory negligence, and the amount of the verdict is warranted by the evidence.
    Head, Smith, Hare, Maxey & Head, of Sherman, and Alex S. Coke, of Dallas, for appellant. Cunningham & McMahon, of Bon-ham, for appellee.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   LEVY, J.

(after stating the facts as above). [1] The second and third assignments, here disposed of together, predicate error upon the third paragraph of the court’s charge so far as it authorized a finding by the jury of negligence upon “or by causing the engine pulling the train on which plaintiff was traveling to make a sudden jerk.” The objections made to such instruction are (1) that it charged upon an issue not made by the evidence, and (2) was upon the weight of the evidence in assuming the fact that the engine was caused to make a sudden jerk. The answer to the objections must be, we think, that under the facts of this case the error must be held necessarily harmless and without any injury resulting to appellant. And, in view of the want of any injurious effect upon appellant shown by the evidence, rule 62a (149 S. W. x) would be applicable, and the error would not afford a proper ground for reversal of the judgment. The .uncontroverted evidence showed that appellant was guilty' of negligence in furnishing for a passenger a seat of the character and condition the seat in question was. And the uncontroverted evidence showed that- the jolt or movement of the train was only the usual and ordinary movement of a train carefully operated. And the jolt or movement of the train was but a mere incident in the falling of the seat. As the evidence making the conclusion of facts in these respects was uncon-troverted, it is believed that it should properly be assumed that the jury, as men of average mind and fairness of conduct, would rest a verdict upon uncontroverted facts rattier than upon a finding wholly unwarranted by the facts. And the instruction given by the court was, as seen, in the disjunctive, which authorized the jury to find upon the one ground proven by uncontroverted facts.

Besides, the special charge given at the request of appellant operated to relieve the court’s charge of any injurious effect upon appellant upon the grounds complained of. The special charge pertinently instructed the jury that they could not return a verdict against appellant as to the manner of operation of the train, where the jerk or move! ment of the train was only such as was necessarily incident to the operation of the train in the exercise of care.

The fourth assignment predicates error upon the paragraph of the court’s charge on the measure of damages. We do not think the charge improperly authorizes a recovery for any damages not sued for or not inflicted by the negligence of appellant. Ry. Co. v. Brown, 16 Tex. Civ. App. 93, 40 S. W. 614.

We have considered the first assignment, and do not think it sufficiently affords ground requiring reversal.

Believing as we do that there is no error of sufficient importance to authorize the overturning of the judgment, the same is affirmed.  