Long

— Defendant appeals from the judgment, and from an order refusing a new trial.

*272 The action is to recover damages for personal injuries received while in defendant’s employ as conductor and brakeman. The defendant owned what is called the Belt Road, at San Diego, which included a short line from the Coronado Hotel to the ferry, a distance of about one and one half miles.

The plaintiff had been in defendant’s employ as conductor for several months. At first a brakeman had been employed. The brakeman was taken off the belt line—around the bay, to Fifth Street, San Diego, in July, and from the avenue line — from the hotel to the ferry— long before, — when, it does not appear. Plaintiff left the employment in June, but returned in September. When he re-entered the employ he knew there was no brakeman, and that he was to be both conductor and brakeman. He was told that defendant would employ a brakeman “ when times got better.”

The road did both a passenger and freight business; plaintiff acting as conductor and brakeman for both species of trains.

The freight-cars used by the defendant were short four-wheeled cars with no bumpers, and with stake-staples projecting from the…