Payne

This is an action for damages for personal injuries in which plaintiff obtained a verdict against the defendant for the sum of $3,000.

From the judgment entered upon said verdict and the order denying the defendant a new trial the latter presents these appeals.

It appears that for nearly five years prior to the day of the accident in which plaintiff sustained the injuries constituting the subject of this action—the twenty-third day of September, 1906—he was employed by the defendant as a motorman on its street-car lines in the city of Oakland. About the hour of 5:40 o ’clock A. M. on the day mentioned, plaintiff took his ear out of the defendant’s car-barn, situated at the corner of Telegraph avenue and Fiftieth street, in said city of Oakland, drove it to East Oakland and then returned with it to the car-barn. On this trip, he observed that the brakes on the car had been set so tightly that it was with considerable or unusual difficulty that he was able to manipulate them, and, therefore, upon reaching the barn on his return trip, ran his car into said barn for the purpose of having the brakes slackened or properly adjusted.

A general outline or plan of the car-barn is shown…