JUDGES: Paterson, J. Works, J., Fox, J., concurring.

         OPINION

          PATERSON, Judge

         This is an action to recover damages for personal injuries sustained by plaintiff by falling into a ditch which defendant had excavated in one of its streets, and negligently left open during the night without guards or lights to warn travelers of the danger.

         The cause of action is of the same nature as that which was set up in Chope v. City of Eureka , 78 Cal. 588, in which a majority of the court in Bank held that the corporation, in the absence of a statutory provision imposing a liability, is not liable. In that case, as pointed out by Mr. Justice Works, "the obstruction of the street was the direct act of the city," yet the corporation was held not liable.

         A distinction is made by appellant between cases arising under charters, making it the duty of the city, as such, to keep streets open and in repair, and those which make it the duty of the city council to do so. We are unable to perceive any merit in the point. The corporation can act only through its agents, and what they do within the scope of their authority is "the direct act of the city." If the city, through its agents, in attempting to perform a lawful act, perform it in such a negligent manner that injury results to a citizen, its responsibility does not rest upon the question whether the charter by mandatory provision required the act to be done or simply left it permissive. The act is lawful in both cases; it is the negligence and injury which render it liable if at all. The distinction contended for was not approved in Winbigler v. Los Angeles , 45 Cal. 36, as claimed by appellant. The court simply said that according to the argument of counsel, the liability would devolve upon members of the city council, as the statute imposed the duty upon them, and not upon the corporation as such. The court did not hold that the position taken by counsel was correct. The question was not involved in the case, as the work was done by a private person for his own benefit. The cases all hold that where the work is done by a contractor or abutting owner, the city is not acting through its own agents, and therefore it is not liable. That is all that could be decided in Winbigler v. Los Angeles, supra .

         It results that the complaint does not state any cause of action, and it becomes unnecessary to consider other questions raised. The court below properly set aside the judgment.

         The order is affirmed.

         CONCUR

          WORKS; FOX

         Works, J., concurring. I concur on the sole ground that the Department is bound by the decision of a majority of the court in Chope v. City of Eureka , 78 Cal. 588, from which decision I dissented.

         Fox, J., concurring. I concur solely on the ground that the court in Department is bound by the decision in Chope v. City of Eureka , 78 Cal. 588.