Arnold

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.

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 .

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…