I am not able to subscribe to what is said in the foregoing opinion with reference to the smooth and slippery condition of the iron band around the coal-hole door and used as a portion of the sidewalk. That a smooth and slippery condition of a walk resulting from wear constitutes a defect has been definitely decided by this court. (Leonard v. City of Butte, 25 Mont. 410,65 P. 425.) The same rule has been announced by *Page 231 other courts. Thus in Cromarty v. City of Boston,127 Mass. 329, 34 Am. Rep. 381, in discussing the question whether a smooth and slippery portion of a sidewalk constituted a defect the court said: "It cannot be said, as matter of law, that smoothness and slipperiness of a sidewalk resulting from the condition of the surface of the material of which the walk is made, and not dependent on nor resulting from atmospheric influences, may not render the walk so unsafe and inconvenient for travellers thereon, as to be defective and out of repair within the meaning of the statute. If a walk is constructed of material so smooth and hard that travellers shod in the ordinary way are defeated or obstructed in their attempt to pass over it by inability to get the hold upon it with their feet which is necessary to their walking forward, or the want of which causes them to lose their balance and fall, such walk cannot be said, as matter of law, to be safe and convenient. And if, in a sidewalk, the chief part of which is in proper condition for travel, a small part of the surface is constructed of material different from the remainder, and so smooth and slippery that a foot traveller, stepping suddenly upon it from the portion otherwise constructed, necessarily or probably slips and is likely to fall, it cannot be said, as matter of law, that such walk is not defective. * * * Iron gratings, for example, which might be proper, laid with the bars at right angles to the line of the walk, on a level spot, and covering a small space immediately adjacent to the building standing next the street, could not, as matter of law, be held to constitute no defect, if laid with the bars running longitudinally with the walk, where it was constructed on a steep grade."
Here it should be noted that at the point where plaintiff stepped upon the iron band the corrugations were not running at right angles with her line of travel but were extended as nearly parallel thereto as possible on a circular band and on a grade of 6 1/2 per cent. Other cases holding that a smooth and slippery condition resulting from wear and causing a pedestrian to fall and sustain injuries, constitutes a defect are the following:Berry v. City of Sedalia, 201 Mo. App. 436, *Page 232 212 S.W. 34; Schmidt v. City of Newport, 184 Ky. 342, 212 S.W. 113;Tudor v. City of Louisville, 172 Ky. 429, 189 S.W. 456, 458;Lyon v. City of Logansport, 9 Ind. App. 21, 35 N.E. 128, 130;Schuler v. City of Mobridge, 44 S.D. 488, 184 N.W. 281, 282;O'Brien v. City of St. Paul, 116 Minn. 249, 133 N.W. 981,983, Ann. Cas. 1913A, 668.
The fact that there was no proof that others had slipped and fallen at the place in question, I think, is not important. That, of course, is one way of proving notice or knowledge of the defect, actual or constructive, on the part of the city, but it is not the only method of proving such notice or knowledge.
In O'Brien v. City of St. Paul, supra, the court, in speaking of similar accidents, said: "It is true that this is only a species of constructive notice, but evidence of constructive notice is competent." In other words, the plaintiff here had a right to prove constructive notice otherwise than by the mere fact that others had slipped and fallen at this particular place. She did prove constructive notice and knowledge by proving the length of time that the smooth and slippery condition had existed, and the question is this: Did it exist a sufficient time, and was it so obvious to ordinary inspection as to warrant the inference that the defendant had actual or constructive notice or knowledge of the existing defect in time to have repaired it?
In Tudor v. City of Louisville, supra, the court, in speaking of constructive notice, said: "In order to fasten upon the municipality liability for an omission to repair the unsafe condition of the street or sidewalk, it must have either actual or constructive notice of the defect, and such constructive notice is established when the evidence shows that the defective condition, although not actually known by the city, could have been known by the exercise of ordinary diligence and care on its part. If the defect or obstruction had existed for such a length of time as to have afforded to the authorities of the city a reasonable opportunity to have discovered it, it would be charged with constructive notice."
In the case of Lyon v. City of Logansport, supra, liability was predicated upon a defect consisting of a portion of a sidewalk *Page 233 becoming worn to the extent that it became smooth and slippery. It is true that in that case others had sustained a similar accident to that of plaintiff. However, the court in discussing the law applicable to the case did not base its decision upon that fact, but said specifically that "where the street has become out of repair, the corporation is also entitled to notice of the defect, which may be either actual or constructive." The court pointed out that the condition had existed for more than ten months, and said: "It was the duty of appellee to use active diligence to discover defects in its streets, while the appellant was only bound to use ordinary care to avoid injury. He had the right, in the absence of knowledge to the contrary, to assume that the crossing was safe, and to act upon this assumption, while at the same time using proper care upon his part."
The applicable rule was stated by the supreme court of South Dakota in Schuler v. City of Mobridge, supra, as follows: "It is contended by defendant that there is no evidence that the city had notice of the defective condition of this sidewalk. It was not necessary to prove this fact in this case. The evidence shows that the sidewalk in question had been built some time during the summer or fall of the year previous to the accident. It also shows that the condition complained of by plaintiff had existed from the time the walk was built. And the evidence shows that this particular piece of sidewalk was located in the business portion of the town, and was used as much or more than any other piece of sidewalk in the town. These facts and circumstances are sufficient to impute knowledge of the condition of the sidewalk to the officers of defendant."
Finally, I think it is important to keep in mind the fact that the jury viewed the premises in this case. The importance of this is demonstrated and was pointed out by the court in the case ofCordish v. Bloom, 138 Md. 81, 113 A. 578, 582, wherein it said: "But the court, in determining whether there is legally sufficient evidence to entitle the plaintiff to recover to [or?] go to the jury, could take into consideration the fact *Page 234 that the jury had viewed the premises, and could thereby get a better understanding of the conditions, [than?] if evidence as to them had been offered before the court and jury." Here, while the photographs disclose that the corrugations in the iron band of the coal-hole door are discernible, they do not disclose how deep the corrugations may be, or whether the iron band was in fact worn smooth and slippery when passing over it with the foot coming in contact with it not at right angles with the corrugations. The jury had the superior advantage over us in determining whether the defect relied upon was in fact a defect by being enabled to refer the evidence of the witnesses to the observed conditions, and to determine the truth of statements made by the witnesses with reference to the conditions. (Ferris v. McNally, 45 Mont. 20, 121 P. 889.) This court has often held that it will not overturn the findings of the jury, concurred in by the trial judge, where there is some credible evidence in the record sustaining their findings. (Nilson v.City of Kalispell, 47 Mont. 416, 132 P. 1133; Sanger v.Huguenel, 65 Mont. 236, 211 P. 349; O'Langan v. FirstState Bank of Hilger, 59 Mont. 190, 196 P. 149; Gohn v.Butte Hotel Co., 88 Mont. 599, 295 P. 262; McKeon v.Kilduff, 85 Mont. 562, 281 P. 345.) If, though the evidence may appear inherently weak to this court, from any point of view it could have been accepted as credible by the jury, it is binding upon this court. (Williams v. Thomas, 58 Mont. 576,194 P. 500.) Nor is it sufficient basis for this court to disturb the verdict, approved, as it has been, by the trial court, if we, under the same evidence, might have made a different finding. (Trogdon v. Hanson Sheep Co., 49 Mont. 1,139 P. 792.)
Under the evidence, I think the questions of defendant's negligence and plaintiff's contributory negligence were properly submitted to the jury, and that their findings, approved by the trial court, should not be disturbed by us. Moreover, if the evidence of plaintiff were lacking in the respects stated in the majority opinion, then the utmost that this court should do is to hold that the court erred in denying defendant's motion for nonsuit, or motion for new trial, and thus enable plaintiff *Page 235 to again try the case, and, if she is able to do so, to produce the evidence of similar accidents.