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 uncontroverted, it is believed that it should properly be assumed that the jury, as men of average mind and fairness of conduct, would *Page 1180 rest a verdict upon uncontroverted facts rather 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 movement 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.