GARNISHMENT CONTROVERTING AFFIDAVIT -DISMISSAL-PREJUDICE. Under Sayles' Ann. Civ. St. art. 245, providing that, if plaintiff is not satisfied with the garnishee's answer, he may controvert it by affidavit, where the garnishee admits his indebtedness either to defendant or to a third person, and asks the court to determine the matter, there is no necessity for a controverting affidavit, and plaintiff cannot complain of the court's dismissing it, and rendering judgment on the evidence. Appeal from district court, Maverick county; I. L. Martin, Judge. Action by J. B. White against S. J. Blocker in which T. San Miguel was summoned as garnishee. From a judgment striking out a controverting affidavit of plaintiff, he appeals. Affirmed. J. R. Sanford and W. C. Douglas, for appellant. F. Vandervoort, for appellees. FLY, J. Appellant sued S. J. Blocker for $526.85, and obtained a writ of garnishment against T. San Miguel, under subdivision 2, art. 217, Sayles' Ann. Civ. St. The garnishee answered, setting up certain facts as to how he had become indebted to Blocker for cattle, and also alleging that his contract with Blocker required the payment of the money to the Border National Bank, and stating that he owed $420 on the cattle either to Blocker or the bank, and he prayed that the latter be made a party to the suit, and that it be determined to whom the money was due. The bank answered, claiming the money. Appellant filed a controverting affidavit claiming that the answers were incorrect on several grounds. This affidavit was, at the instance of the garnishee and bank, stricken out. There is no statement of facts, and the case is before this court on two assignments of error, which complain of the action of the court in sustaining the exceptions to the controverting affidavit. In article 227, Sayles' Ann. Civ. St., it is provided that, if it appears from the answer of the garnishee that he is not indebted to the defendant, and has none of the latter's effects in his possession, and the answer is not controverted, the court shall discharge the garnishee. In article 245 it is provided that, if the plaintiff is not satisfiled with the answer of the garnishee, he may controvert the same by affidavit stating he has good reason to believe and does be lieve that the answer of the garnishee is in correct, stating in what particular he believes the same is incorrect. In the controverting affidavit there was no statement of the matters in which the answer of the garnishee was incorrect, but merely argumentative deductions as to the effect of statements in the answer. However, if the affidavit was improperly dismissed, no injury appears to have been sustained by appellant. There was no denial upon the part of the garnishee as to his indebtedness, but he admitted that he owed Blocker or the bank, and for his protection asked the court to determine the matter. There was, therefore, no necessity for the controverting affidavit. If it had not been stricken out, appellant would have been in no better position to show that it was Blocker to whom the garnishee was indebted than he was under his affidavit for garnishment. There is no complaint that any testimony offered by appellant was excluded, and, on the other hand, the judgment recites that evidence was heard, and on that evidence the judgment was rendered. Had the court, after striking out the controverting affidavit, discharged the garnishee without hearing the testimony, there would have arisen cause for complaint; but there is nothing in the record that indicates that appellant lost any right by the affidavit being dismissed. The judgment is affirmed. RAILROADS-EMPLOYE-HAZARDOUS EMPLOY- 1. Plaintiff, while employed by defendant railroad company in crushing rock, was ordered by his foreman to assist in placing a derailed car on the track. While so engaged, the car lurched, and threw plaintiff down, injuring him. He knew nothing of the hazards of such work, and received no warning from the foreman, who knew of his ignorance. Held, that defendant's foreman was negligent in failing to give warning to plaintiff, such work being extrahazardous as to him. 2. The fact that the workman went voluntarily on request does not release the company's foreman of the duty of giving warning as to the hazards. 3. Where a workman assisting in raising a derailed car was injured by the lurching of the car, caused by the giving way of a jackscrew, which was out of his sight, but in view of the foreman, who gave no warning, the question of the negligence of the foreman was for the jury. 4. Where the right to recover is not predicated on the hazards of using a jackscrew, it is not error to refuse to charge that, if the work of handling a jackscrew in raising a car was not one of extraordinary danger, then no duty of warning existed, and, if the use of the jackscrew was extrahazardous, and plaintiff and the foreman had equal knowledge of the fact, the defendant would not be liable. Appeal from district court, Parker county; J. W. Patterson, Judge. 1 Rehearing denied January 25, 1902, and writ of error denied by supreme court. Action by John B. Utley against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed. B. G. Bidwell, for appellant. Stevenson & Ritchie, for appellee. CONNER, C. J. This is an appeal from a judgment in appellee's favor for $545 as damages for injuries sustained by him while at work replacing a derailed car. As grounds of recovery appellee alleged, in substance, that at the time he was in the employ of appellant as one of a gang of men engaged in crushing rock with a rock crusher; that in accord with the direction of his foreman, W. T. Brannon, he, with others of his gang, assisted the section men, of whom Marion Glenn was foreman, in replacing upon the railway track said derailed car; that such work was extrahazardous, which was unknown to appellee at the time, by reason of his inexperience, and of which he was given no warning; that the day was very cold, and by direction of said foreman a fire had been built on the side of the steep dump where the accident occurred, on the lower side of which an iron rod had been driven in the ground to keep the fire in place, which rod, by reason of its projection and proximity, was dangerous; that while engaged on the south side of said car in raising the east end thereof with a jackscrew the car suddenly careened around to the south, knocked appellee off, and down said dump, and on said iron rod, whereby he was injured as set forth in his petition. It was also alleged that said foreman was negligent in failing to "watch the progress of raising said car, the effect of the working lever of the jackscrews," and in failing to give warning of the danger. We think the court properly overruled the demurrers urged to the petition. The principal objections thereto, in effect, seem to be that it does not appear that the danger to be guarded against was unusual and extraordinary, or that appellee objected to doing the work, or that any concealed danger existed in using the jackscrew, or that any necessity existed for the foreman to look out for appellee's safety and provide therefor. The work of replacing the displaced car was alleged to be extrahazardous. From the allegations of the petition the dangers involved in the extra work were certainly beyond those of his regular employment, the risks of which alone he assumed by his contract of service in the first instance. As to appellee the danger attending the work of replacing the car was extra extrahazardous, and in case of his known inexperience and ignorance, as alleged, it was the duty of the master to notify him of all such dangers as were not apparent. Coal Co. v. Haenni (Ill.) 35 N. E. 162; Railroad Co. v. Renz (Tex. Civ. App.) 59 S. W. 280; Same v. Hughes (Tex. Civ. App.) 54 S. W. 264, and authorities therein cited. The fact, under the circumstances alleged, that he voluntarily undertook the work upon the request of his foreman, in no degree lessened the duty of the master. Appellee was not a mere intruder, and in his inexperience and ignorance he was entitled to the exercise of at least ordinary care on the part of the foreman by warning, by supervisory watchfulness and direction, if need be, as the work progressed, and otherwise to guard him from danger. Nor was it necessary, as insisted, that appellee allege a concealed danger in the use of the jackscrew. This was but a circumstance attending the employment of ap pellee at the time, and illustrating the manner in which the car was being replaced, but of which no complaint is made in the petition. What we have said also applies in a measure to assignments questioning the action of the court in giving and refusing charges and in overruling appellant's motion for a new trial. There was evidence tending to support the material allegations of appellee's petition, including the averments that the work of repla cing the wrecked car was attended with dangers unknown to appellee by reason of inexperience, of all which said foreman had knowledge, and that appellee was placed at such work without having been warned of such danger. The immediate cause of the accident does not seem very clear. W. T. Brannon, the foreman of the rock crushers, testified: "I had been working on the north side, and parties on the south side asked me to hold up on the north side, and I walked around the end [east end] of the car. Just before I came up to the jackscrew [at which appellee was at work], the car slued. * The car did not turn over. I reckon the front end of it moved about twelve inches, or something near that, and then it stopped on the track. The jack on the north side gave way, or the dirt gave way under it, and it caused the car slue south. • I superintended the fixing of the jack on the north side. The jack there was put on the ground on the edge of the dump, and that is the jack that gave way. The dirt was frozen on top, and when the weight came on the jack the frozen earth gave way, and that caused the car to careen to the south. * * I don't know how much one of these cars would weigh, but I expect it is several tons; some twenty or thirty thousand pounds, I reckon. * If I had been standing around there by the north jackscrew, watching the men work that screw, I could have seen [or "might have seen," as he says in another place] whether or not the frozen ground was giving way." Marion Glenn, the section foreman, testified: "The north jack was not right on the edge of that dump. * We put one piece of timber under the jack. Up to that time [of the accident] we had not made a crib by which to raise the car up, but I think we did afterwards. I don't remember about that. I think when we got the car on we built a crib on each side. If we had done that at * first. the car would not have careened. It didn't fall the next time we jacked it up. ** I don't know whether the king pin was out or not. I don't think the car could have slipped to one side unless the king pin was out or was broken. I don't remember whether the king pin was out or broken at that time. I don't remember about putting in another king pin." We think the evidence stated authorized the submission of the issues of negligence in failing to warn appellee of the extra hazard involved in the labor undertaken, and of negligence on the part of said foreman in failing to exercise due supervisory care to guard against danger to those engaged in the work, and it is also sufficient to sustain the verdict on such issues. Appellant requested the court to charge the jury to the effect that if they found "that the work of handling a jackscrew in raising a car was not one of great, unusual, and extraordinary danger," then no duty of warning existed; also that if the jury should find the use of the jackscrew was extrahazardous, and "plaintiff and the foreman had equal knowledge of the fact," the defendant would not be liable. We think it quite evident that these charges were properly rejected. The right of recovery was predicated upon other grounds, and the charge requested would have been manifestly misleading and erroneous under the the facts of the case. It is also insisted, in substance, that the court was in error in submitting the cause, and in overruling the motion for new trial, in that the evidence shows that the danger involved was not extraordinary, and that the accident was due to the giving way of the frozen ground, the danger of which was as apparent to appellee as to the foreman in charge of the work. In addition to what we have heretofore said, we add that it was not necessary to appellee's right of recovery that the work undertaken was "extraordinarily dangerous." The evidence supports the conclusion that as to appellee it was "extrahazardous," and clearly indicates that appellee was without knowledge thereof, and without warning. If the accident was attributable alone to the failure of the frozen ground to support the jackscrew on the north side, the evidence clearly shows appellee's position and duty was such as that he could not observe the conditions on that side. We think the judgment should be affirmed. and it is so ordered. legal paper; that he was sent in by a justice, in charge of a constable, who asked that he be held for trial, and since then had been a prisoner, no one seeming to know why he was there. Held, that the article charged false imprisonment, and was libelous per se. 2. A newspaper article charged that a person was unlawfully received and held a prisoner in the county jail. Plaintiff was sheriff of the county, but the jail was actually in charge of guards, one of whom received the prisoner. Plaintiff sued for libel, and alleged by innuendo that the charge was directed against him. Held, that the burden was on plaintiff to prove that the libel was aimed at him. 3. An assignment of error that "the court erred in not giving to the jury special charge No. 5 asked by the plaintiff, which was refused," followed by a copy of the charge, not being a proposition in itself, and not being followed by any proposition pointing out the error of which complaint is made, will be considered on appeal as waived. Appeal from district court, El Paso county; J. M. Goggin, Judge. Action by James H. Boone against the Herald News Company and others. From a judgment for defendants, plaintiff appeals. Affirmed. J. M. Dean and R. V. Bowden, for appellant. Turney & Burges and Edwards & Edwards, for appellees. FLY, J. This is a suit for damages against the Herald News Company, a private corporation, Hughes D. Slater, Henry L. Capell, and James A. Smith, alleged to have accrued by the publication of a libelous article in a newspaper known as the "El Paso Daily Herald." A trial by jury resulted in a verdict for appellees. The suit was based upon the following article published in the Daily Herald: "Wants His Liberty. Prisoner at the County Jail Wants to Get Out. An effort will be made this afternoon to effect the release of Arcario Alva, who it is alleged had been confined in the county jail since September 18th without any commitment or other legal papers authorizing his imprisonment. Alva was sent in from the smelter by Justice Downs. A constable brought him to jail, and asked that he be held for trial. Since that he has been a prisoner. The boy's mother, it is said, came here a week or so ago from Chihuahua, expecting to find her son at work and at liberty. She found him in jail, though no one seemed to know why he was there. She appealed to friends, and they will endeavor to get him out." The statements by innuendo were made to apply to appellant, who was sheriff and jailer of El Paso county, and it was set out that they were libelous per se in that they charged appellant with the crime of false imprisonment. The court instructed the jury that the publication was libelous per se. It appears from the facts that appellant was sheriff of El Paso county, and had no regular jailer; but it was further in proof that the jail was actually in charge of guards, and that one of them received the prisoner spoken of in the publication, and made the entries as to how he came to be imprisoned in the register provided for that purpose. The libelous article stated that the prisoner was sent to the jail by a justice of the peace in charge of a constable. We are of the opinion that the article was correctly construed by the court to be libelous per se. If the charges in the published article were true, the person who unlawfully arrested and detained the prisoner was guilty of false imprisonment, which, under the penal statutes of Texas, is punishable by fine and imprisonment, and rendered appellant subject to removal from office; and the publication of such a charge is libelous, and the law will presume that it injured the reputation of the party against whom it was directed. George Knapp & Co. v. Campbell (Tex. Civ. App.) 36 S. W. 765; Belo v. Fuller, 84 Tex. 451, 19 S. W. 616, 31 Am. St. Rep. 75; Cotulla v. Kerr, 74 Tex. 89, 11 S. W. 1058, 15 Am. St. Rep. 819. Although the publication was libelous, the burden rested upon appellant to establish that he was meant as the object of the libel, and it was a question of fact to be determined by the jury as to whether the libel was aimed at him. Newell, Defam. p. 767. The jury was justified in finding that the publication was not aimed at the sheriff. The second assignment of error is as follows: "The court erred in not giving to the jury special charge No. 5 asked by the plaintiff, which was refused,"-followed by a copy of the charge. The assignment is not a proposition in itself, and is not followed by any proposition pointing out the error of which complaint is made, and under the rules must be considered as waived. Railway Co. v. Cole, 8 Tex. Civ. App. 635, 28 S. W. 391; Railway Co. v. Higgins, 22 Tex. Civ. App. 430, 55 S. W. 744; Cooper v. Hiner, 91 Tex. 658, 45 S. W. 554. The third, fourth, fifth, and sixth assignments of error are subject to the same objections that apply to the second assignment. The judgment is affirmed. On Motion for Rehearing. (Jan. 29, 1902.) This court did not, as contended by appellant, lose sight of the fact that the sheriff testified that when at home he visited the jail daily, and exercised authority over it; and it also kept in mind that the prisoner was not delivered to the sheriff in person, and that others were in actual charge of the jail; and that a jury could, from these facts, and others in proof, find that appellee had no reference to the sheriff in its publication. If the proof had shown that appellant alone had charge of the jail, then the pubilcation could have referred to no one else; but he was only in charge through his deputies, and while this, in law, might make him responsible, it could not fix and deter mine who was meant by appellees in the publication. No person was mentioned by name, and the publication is made to apply to appellant in the petition only through innuendo, and it is a question of fact, and not of law, as to whom the language applied. Suppose there were, as shown, several persons superintending the jail, and it was not known who was actually in charge, it could not certainly be maintained that every one must, as a matter of law, know that the sheriff was the responsible party. In this case the uncertainty as to who was responsible for the unlawful detention of the prisoner was intensified by the fact that the jail was used for the detention of federal as well as state prisoners. It is insisted by appellant that this court erred in not considering his second, third, fourth, fifth, and sixth assignments of error, and insists that the case of Agency Co. v. McClelland, 86 Tex. 179, 23 S. W. 576, 1100, 22 L. R. A. 105, sustains the assignments, and requires consideration of them. The decision does hold that such assignments are sufficient, but it does not hold that they must be considered when they are not propositions in themselves, and are not followed by propositions. An assignment of error may be a sufficient basis for a proposition, and yet not be a proposition, and it will not be considered unless it was followed by a proposition. As said in the case cited: "An assignment may be brief, and yet specific; and brevity in such a case is commendable, and accords with good practice. The reasons by which allegations of error are sought to be sustained find their proper place in the propositions, statements, and authorities required to be set forth in the brief under and in support of the respective assignments." It is required in rule 30 for the courts of civil appeals that "each point under each one of the assignments relied upon shall be stated in the shape of a proposition, unless the assignment itself is in the shape of a proposition to be maintained, and then it will be sufficient to copy the assignment." 31 S. W. vii. The supreme court holds that courts of civil appeals have the authority to disregard assignments of error not propositions within themselves, nor followed by propositions. Cooper v. Hiner, 91 Tex. 658, 45 S. W. 554. In the case of Railway Co. v. Higgins, 22 Tex. Civ. App. 430, 55 S. W. 744, the assignments were almost identical with the second, fourth, fifth, and sixth assignments of error, and they were not considered. A writ of error was refused. Under the heading "Third Assignment of Error" are copied two assignments of error numbered in the record tenth and fourteenth. The tenth is similar to the second, fourth, fifth, and sixth assignments of error. The fourteenth is: "The court erred in that part of the eighth paragraph of its charges to the jury which requires the jury, before they can give a verdict against defendant Hughes D. Slater, to find that at the time of the pub lication complained of he was in the actual personal exercise of his authority over the columns of said paper." Why it was error to so charge does not appear in the assignment of error, and there is no proposition that gives the explanation. Kruegel v. Berry, 75 Tex. 230, 9 S. W. 863. The motion for rehearing is overruled. ABILENE COTTON OIL CO. v. BRISCOE et al.1 (Court of Civil Appeals of Texas. Nov. 30, 1901.) NEGLIGENCE-PERSONAL INJURY FENCING ROAD-GUARD-WARNING-EVI DENCE CHARGE-APPEAL. a 1. Defendant, owning land adjoining school-house lot, where protracted meetings were being held every night, constructed a barbed-wire fence inclosing its ground, and crossing a road used by the public in entering the school grounds. The fence was built across the road late in the afternoon, and, the night being dark, defendant's manager remained at the fence to warn people of the danger until the preaching commenced, when he went away, leaving no light or other signal of warning. Plaintiff's son, going to the meeting on horseback, not knowing of the fence, ran into it, killing his horse and receiving permanent injuries. Held, that a finding that defendant was negligent was justified. 2. Where defendant, in inclosing its grounds with a barbed-wire fence, built over onto the adjoining grounds, and across a frequently traveled road, whereby plaintiff, in traveling such road, was injured, the fact that its manager believed the fence was on defendant's ground was immaterial. 3. Where plaintiff's son was injured in the nighttime by riding against a barbed-wire fence built across a road by defendant, and the complaint alleged that the fence was so negligently built, and that on account of the darkness, and his not knowing or having been warned of the fence, the son came in contact therewith,the evidence being that there was nothing to warn him of the danger,-a charge which would permit the jury to find that defendant was negligent in leaving the fence unguarded and without warning was within the issues. 4. Where, in an action for injuries resulting from riding against a barbed-wire fence built by defendant across a road, evidence that defendant left the fence unguarded and without warning is admitted without objection, defendant cannot object to an instruction on its negligence in that respect being given to the jury, on the ground that such negligence is not pleaded. 5. In an action for injuries from building a barbed-wire fence over a public thoroughfare, and leaving it unguarded and without warning signal on a dark night, the admission of oral evidence as to the title to the ground on which the fence was built was harmless error, though the title was not in issue; other testimony showing that the ground was in possession and control of persons other than defendant. 6. Where plaintiff's son was injured by riding against a barbed-wire fence built across a road by defendant, it was not error to admit evidence that defendant's agents knew that the fence was not on defendant's land. 7. Where plaintiff's son was injured by riding against a barbed-wire fence built across a road by defendant, it was not error to refuse to charge that, if defendant exercised care to Rehearing denied January 25, 1902, and writ of error denied by supreme court. prevent injury to persons who might be reasonably expected to pass along such road that night, plaintiff could not recover. 8. Assignments of error for failure of the court to charge on certain phases of a case cannot be sustained, where there was no request to so charge. Appeal from district court, Taylor county; N. R. Lindsey, Judge. Action by William Briscoe, for himself and his minor son I. J. Briscoe, against the Abilene Cotton Oil Company. From a judgment for plaintiffs, defendant appeals. Affirmed. West, Smith & Chapman, Bowyer & Tillett, and Hardwicke & Hardwicke, for appellant. J. M. Wagstaff and D. G. Hill, for appellees. HUNTER, J. This suit was brought by William Briscoe against appellant, for himself and as next friend of his 20 year old son, I. J. Briscoe, for personal injuries inflicted on the latter, whereby he was permanently injured, and has suffered and will suffer great bodily pain and mental anguish, and for the loss of a horse which was killed, and for time lost by the minor from the service of his father, and for drugs and doctor's bills in curing him. Plaintiff alleged that on September 11, 1900, defendant negligently constructed a barbed-wire fence across a traveled road or passway running across a two-acre tract of land alleged to belong to, under control of, and used by the trustees of a public school in Jones county; that such school house was used for school, and religious and other public gatherings, both day and night, and said passway and road was generally and commonly used by the public to approach the school house, all of which, it is alleged, the defendant well knew; that on the night in question, to wit, September 11, 1900, said I. J. Briscoe was approaching said school house where religious services were being held, and that the horse he was riding came in contact with said fence, and I. J. Briscoe was thrown against the fence, whereby the horse was killed, and I. J. Briscoe seriously and permanently injured,-William Briscoe's damages for doctor's and drug bills, loss of son's services for about 10 months, and the value of the horse, being laid at $710, while those of the son were laid at $25,000. The defendant pleaded a general denial and contributory negligence, in that young Briscoe was riding a fractious and untractable horse at a rapid rate of speed in the nighttime, and was heedless, negligent, and careless, and thus contributed to his injury by his own negligence. The jury found a verdict for William Briscoe individually for $385, and for "I. J. Briscoe on account of mental and physical suffering $2,000, and the further sum of $4,000 as actual damages on account of permanent injuries." Judgment of the court was rendered accordingly, and this appeal is from that judgment. The record discloses the following facts: The oil mill and gins, wood yard, ginner's |