Missouri, K. & T. Ry. Co. v. Jamison

• Decision Date: 07 November 1894
• Citation: 27 S.W. 1090
• Parties: MISSOURI, K. & T. RY. CO. et al. v. JAMISON et ux.
• Court: Texas Court of Appeals

27 S.W. 1090

MISSOURI, K. & T. RY. CO. et al. v. JAMISON et ux.

Court of Civil Appeals of Texas.

November 7, 1894.

Appeal from district court, Williamson county; W. M. Key, Judge.

Action by Jesse Jamison and Della Jamison, his wife, against the Missouri, Kansas & Texas Railway Company and others, to recover for injuries to the wife caused by defendants' negligence. Plaintiffs had a verdict, from which defendants appeal. Reversed.

Fisher & Townes, for appellants. O. T. Holt, for appellees.

FISHER, C. J.

According to the allegations of plaintiffs' petition, Mrs. Jamison sustained the injuries of which she complains while she was attempting to alight from the train after it had stopped, they being occasioned by the negligent and sudden moving of the train before she had fully alighted. There was some evidence in the record tending to prove that the train was in motion, and that it had not stopped when Mrs. Jamison attempted to leave it. There are no averments in the petition that would serve as a basis for this evidence. From the entire evidence in the record, it would not probably be an unreasonable conclusion for the jury to infer that some of the injuries testified about were not the proximate results of the acts of negligence charged to the appellants. In the light of these facts the appellants requested the following instructions: "Unless the jury believe from the evidence that the train upon which Della Jamison was a passenger had stopped at Granger station, and further that she was injured, as alleged in the petition, while she was attempting to leave the train, by the sudden starting or jerking of the train, and before she, in the exercise of due care, had time to alight, they will return a verdict for the defendants." "To entitle plaintiff to recover in this case, the jury must believe from the evidence that the injuries for which a recovery is sought resulted directly and approximately from the negligence of the defendant, its agents, servants, or employés, in the particulars and at the time and place and under the circumstances stated in the petition. If, therefore, the jury believe from the evidence that the said Della Jamison was, at the time and place stated in the petition, injured, but that she did not sustain the particular hurts or injuries specified, or under the circumstances named in the petition, they will find for the defendant." "If, from the evidence, the jury believe that Mrs. Jamison is suffering from the injuries of...