(dissenting). I am unable to concur in affirming the judgment in this case, because it seems plain to me that negligence cannot be predicated upon the proven condition of the sill step in question. Admittedly, all that can be said against it is that the *367tread, originally made rouglicr than any law or regulation requires by punching a few “nicks” on its surface, had become by wear a little smoother than it was at first. The tread proper showed no appreciable wear; but the tips of the nicks, or some of them, had partially worn off, the necessary result of use, even for a short time, as undisputed testimony shows. In every other respect it was the same as new. It had been inspected daily by defendant’s agents, and at least quarterly by the government’s agents, the last time within three months, and apparently no one who saw it before the accident ever had a thought that it was not in proper condition. It was continued in use without change till just before the trial, more than IS months, and then produced in court to show for itself. The legal proof of its identity may not have been sufficient to make it admissible in evidence, but there is no moral doubt that it was the same step. Certainly no witnesses for plaintiff undertook to say that it was not the same, or that it was in any beller condltion than the step he saw when the accident happened. To hold that such a slight departure from perfection as here appears, necessarily caused by a brief period of use, permits an inference of negligence is to hold, as seems to me, that defendant was bound to keep this step continually new, which would be practically impossible, and in effect to hold that in the matter of safety appliances the railroad company is an insurer, which, of course, is not the law.
I am of opinion that a verdict should have been directed for the defendant.