I cannot concur in the conclusion reached or the doctrine announced in the foregoing opinion, that a city cannot be held liable for damages for injuries resulting under the circumstances of this case. The obstruction of the street was the direct act of the city. The work being done, which resulted in such obstruction, was the work of the city, and not of a contractor. To deny all remedy as against a city, under such circumstances, is in many cases a practical denial of justice.
It may be that some of the cases cited in the prevailing opinion are broad enough to cover this case and justify the conclusion reached, but if so, they should, in my judgment, be modified. Most of the cases are for mere negligence of the corporation to keep public highways in repair, or perform some other duty devolving upon its officers. (Huffman v. San Joaquin County, 21 Cal. 426; Sherbourne v. Yuba County, 21 Cal. 113; 81 Am. Dec. 151; Winbigler v. City of Los Angeles, 45 Cal. 36; Tranter v. City of Sacramento, 61 Cal. 271; Moore v. City of Los Angeles, 72 Cal. 287; Barnett v. Contra Costa County, 67 Cal. 77.)
Whether these cases state the law correctly or not, it is not necessary to determine. It is enough to say that they differ materially from the case under consideration.
Two of the cases cited may be fairly construed as broad enough to cover this case. (Crowell v. Sonoma County, 25 Cal. 313; Howard v. San Francisco, 51 Cal. 52.) *592But so construed, they cannot, in my judgment, be supported either by reason or authority.
Mr. Dillon, in his valuable work on Municipal Corporations, states the rule thus: “Where streets have been rendered unsafe by the direct act, order, or authority of the municipal corporation (not acting through independent contractors, the effect of which will be considered presently), no question has been made or can reasonably exist as to the liabilty of the corporation for injuries thus produced, where the person suffering them is without contributory fault, or was using due care. Even in those states in which a municipality is not held impliedly liable to a private action for neglecting to keep its streets in repair, it is held to be liable if it, or its officers under its authority, by positive acts, place obstructions on the streets, or by such acts otherwise rendered them unsafe, whereby travelers are injured. Where the duty to keep its streets in safe condition rests upon the corporation, it is liable for injuries caused by its neglect or omission to keep the streets in repair, as well as those caused by defects caused by the wrongful acts of others, but as in such case the basis of the action is negligence, notice to the corporation of the defect which caused the injury or facts from which notice thereof may reasonably be inferred, or proof of circumstances from which it appears that the defect ought to have been known and remedied by it, is essential to liability.” (Dillon on Municipal Corporations, 3d ed., sec. 1024.)
I take this to be a correct statement of the law, and one that is supported by an overwhelming weight of authority. (Shearman and Redfield on Negligence, secs. 273, 288, 289, 291; Galveston v. Posnaisky, 62 Tex. 118; 50 Am. Rep. 517; Barnes v. District of Columbia, 91 U. S. 540; Ehrgott v. New York, 96 N. Y. 264; 48 Am. Rep. 622; Nelson v. Canisteo, 100 N. Y. 89; Thompson on Negligence, 735, 736, notes; Maximilian v. New York, 62 N. Y. 160; 20 Am. Rep. 468; Harper v. City of Milwau*593kee, 30 Wis. 365,372; Barton v. City of Syracuse, 36 N. Y. 54; Eastman v. Meredith, 36 N. H. 284, 294; 72 Am. Dec. 302; City of Denver v. Rhodes, 9 Col. 554, 562.)
Innumerable cases might be cited to the same effect, but to do so would unnecessarily extend this opinion. Many of them will be found cited in the text-books above referred to. For the reasons stated, I am of the opinion that the judgment and order appealed from should be affirmed.
Beatty, C. J., concurred in the foregoing opinion of Mr. Justice Works.
Rehearing denied.