
    MADLYN COSTELLO, RESPONDENT, v. HUDSON AND MANHATTAN RAILROAD COMPANY, APPELLANT.
    Submitted October term, 1928
    Decided March 11, 1929.
    Before Justices Trenchard, Kalisch and Lloyd.
    For the appellant, Collins & Gorlin.
    
    For the respondent, McCarthy & McTague.
    
   Per Curiam.

The defendant appeals from a judgment rendered against it in the Second District Court of Jersey City. The action was to recover damages for injuries received by the plaintiff in a fall on the steps of the defendant company’s station at Journal Square, in that city. There was a motion for nonsuit at the end of the plaintiff’s ease; the motion was denied and an exception noted.

The proofs in the case were that the plaintiff was proceeding down the stairs when her heel caught in the metal-edge of a concrete step and she fell down several steps and was injured.

The allegation of negligence was that the step was worn down in the centre of the concrete and the metal strip worn smooth, and the evidence supported this charge.

Smoothness of the step alone, however, is not negligence (Walker v. F. & W. Grand Stores, 5 N. J. Mis. R. 541; affirmed, 6 N. J. Adv. R. 529), and where, as here, there was no proof that the metal edge had by reason of such worn condition of the centre of the concrete, become raised above the concrete where the two joined, there was nothing on which negligence in maintenance of the step could be predicated. The refusal of the nonsuit was therefore error.

We think also the court misled the jury in its charge by limiting the case to the defendant’s negligence after having charged that the plaintiff’s negligence was likewise involved.

The judgment is reversed.  