There is testimony in this case, assuming the truth thereof, which shows that the driver of defendant’s car, in response to plaintiff’s signal, brought his car almost to a stop; that plaintiff, in his attempt to get aboard, placed his foot on the step, when his foot slipped into the opening at the back of the step and was caught so tight therein that he *50could, neither get on nor get his foot detached from the car, and was injured thereby; that the step was an open-backed one, there being no riser between the tread of the step and the platform; that for seven years in the leading cities of the country, and for five years in Brooklyn, closed-backed steps were in common use on horse cars, and for a number of years were, and still are, in use on part of the cars of defendant; that there was a double object for the use of such steps, viz., to strengthen them and to prevent the feet of passengers from slipping through the space between the tread of the step and the platform. Whether or not the defendant exercised ordinary care in having an open-backed step on this car, under such circumstances, was, in our opinion, a question for the jury. The fact that the other kind of step was in common use, and for the purp ose of preventing just such accidents, would justify a finding of the jury that defendant was negligent in respect to this step, and we think it was error for the court to take the question .from them. Hegeman v. West. R. Co., 13 N. Y. 9; Smith v. New York, etc., R. Co., 19 id. 127; Boyce v. Manhattan R. Co., 118 id. 314.
Judgment and order must be reversed, with costs to appellant to abide the event, and new trial ordered.
Osbobne, J., concurs.
Judgment and order reversed and new trial granted.