I concur in the reversal of the judgment upon the principal ground stated for reversal in the main opinion. It is there correctly declared that “The instruction that there was no contributory negligence erroneously deprived defendants of a defense upon which they had relied. ... In these circumstances, we are not justified in disregarding the effect of the erroneous instruction, and, since the error was clearly prejudicial to defendants, the judgment must be reversed.” I must dissent, however, from the views expressed in the main opinion upon the more fundamental questions involved on this appeal. Furthermore, I am of the opinion that the reversal should be accompanied with directions to the trial court to enter judgment in favor of defendants.
This is one of a series of recent appeals involving the question of the nature of the duty owed by the landowner to the trespassing child. My views on this question were set forth at some length in my dissenting opinion in Reynolds v. Willson, ante, pp. 94, 106 [331 P.2d 48], and need not be repeated here. But regardless of the conflicting views expressed in the Reynolds case, it seems entirely clear that *461the present case involves only the common, obvious risk of fire for which liability for injuries to the trespassing child should not be imposed upon the landowner or those acting on his behalf.
Turning first to the facts presented by the record, it is true that conflicting inferences could be drawn as to whether the minor plaintiff was injured through contact with the flames of the fire built by other children or through contact with the embers of a fire previously built in the middle of the vacant lot by Plummer. It may also be conceded that conflicting inferences could be drawn as to whether Plummer was an employee or an independent contractor. But even if all conflicting inferences are resolved in favor of plaintiff, the imposition of liability here appears to be wholly inconsistent with our prior decisions, which strictly limit the type of eases in which liability may be imposed upon the landowner for injuries to the trespassing child.
Accepting plaintiff’s testimony, it showed that while she did not see any ‘ flames, ” she saw ‘ live embers ” and ‘ smoke ’ ’ arising therefrom. Her explanation of her rash act in squatting down there was that she had never seen “live embers” before. The fact remains, however, that any risk which she encountered was a common, obvious risk of fire. To intimate, as does the main opinion, that the risk described by plaintiff could be found by the trier of fact to be a “concealed” risk, or a “hidden” or “masked” risk as required by the authorities, is to indulge in a contradiction of terms. No risk can be more common or more obvious than the risk presented by the ordinary trash fire built upon the surface of the ground. Such was the only risk presented here under any view of the evidence.
It is significant to note that the main opinion does not cite a single case which has imposed liability upon the landowner to the trespassing child under similar circumstances. On the other hand, the great weight of authority supports the view that no liability should be imposed here. (Moon v. Payne, 97 Cal.App.2d 717 [218 P.2d 550]; Dunbar v. Olivieri, 97 Colo. 381 [50 P.2d 64]; Paolino v. McKendall, 24 R.I. 432 [53 A. 268, 96 Am.St.Rep. 736, 60 L.R.A. 133]; Fitzmaurice v. Connecticut R. & L. Co., 78 Conn. 406 [62 A. 620, 112 Am. St.Rep. 159, 3 L.R.A. N.S. 149] ; American Advertising & Bill Posting Co. v. Flannigan, 100 Ill.App. 452; Erickson v. Great Northern Ry. Co., 82 Minn. 60 [84 N.W. 462, 83 Am. St.Rep. 410, 51 L.R.A. 645]; Coleman v. Robert Graves Co., 39 *462Misc. 85 [78 N.Y.S. 893], aff. 89 N.Y.S. 1040; Carlow v. John A. Manning Paper Co., 221 App.Div. 415 [223 N.Y.S. 358]; Zaia v. Lalex Realty Corp., 261 App.Div. 843 [25 N.Y.S.2d 183], aff. 287 N.Y. 689 [39 N.E.2d 300] ; Stinnett v. Liberty Aircraft Products Corp., 273 App.Div. 909 [77 N.Y.S.2d 357]; Eason v. State of New York, 104 N.Y,S.2d 683; Krystopowicz v. Reading Co., 40 Pa. D. & C. 304; City of Harlan v. Peaveley, 224 Ky. 338 [6 S.W.2d 270] ; Lentz v. Schuerman Bldg. & Realty Co. [Mo.], 220 S.W.2d 58; see cases collected 36 A.L.R. 34, 192; 27 A.L.R.2d 1187, 1191.)
Some of the cited fire eases, as well as other cases, have involved violations of ordinances but such violations were not deemed material as the ordinances, like the ordinances here, were obviously not enacted for the protection of trespassing children. As was said in Lopez v. Capitol Co., 141 Cal.App. 2d 60, at page 69 [296 P.2d 63] : “The ordinance added nothing to respondents’ duty insofar as the duty to trespassers is concerned. ’ ’
The main opinion does not discuss the above-cited cases or any of the prior decisions of the courts of this state dealing with the fundamental question involved. It merely quotes section 339 of the Restatement of Torts and, like the dissenting opinion in Knight v. Kaiser Co., 48 Cal.2d 778, 785 [312 P.2d 1089], equates its requirements with mere “lack of due care.” Thus the main opinion places upon the landowner a duty toward the trespassing child which is measured by precisely the same standard as the duty owed by the landowner to a child who is a business invitee. The imposition of such duty is contrary to numerous prior decisions in this state. (Knight v. Kaiser Co., supra, 48 Cal.2d 778; Melendez v. City of Los Angeles, 8 Cal.2d 741 [68 P.2d 971] ; Peters v. Bowman, 115 Cal. 345 [47 P. 113, 598, 56 Am.St.Rep. 106]; Wilford v. Little, 144 Cal.App.2d 477 [301 P.2d 282]; Lopez v. Capitol Co., supra, 141 Cal.App.2d 60; Lake v. Ferrer, 139 Cal.App.2d 114 [293 P.2d 104] ; Ward v. Oakley Co., 125 Cal. App.2d 840 [271 P.2d 536] ; Betts v. City & County of San Francisco, 108 Cal.App.2d 701 [239 P.2d 456]; Demmer v. City of Eureka, 78 Cal.App.2d 708 [178 P.2d 472] ; King v. Simons Brick Co., 52 Cal.App.2d 586 [126 P.2d 627] ; Beeson v. City of Los Angeles, 115 Cal.App. 122 [300 P. 993] ; Reardon v. Spring Valley Water Co., 68 Cal.App. 13 [228 P. 406] ; Polk v. Laurel Hill Cemetery Asso., 37 Cal.App. 624 [174 P. 414].)
The reading of these authorities demonstrates the impro*463priety of discussing the duty of the landowner toward the trespassing child in the conventional terms of “lack of due care” or “negligence” unless it appears that the landowner’s premises presented some uncommon or concealed danger which brings the situation within the recognized exception to the general rules limiting his liability. Then, and then only, does the law impose upon him the added burden of using “due care” to safeguard trespassing children from such uncommon or concealed danger. No such situation is shown by the record here.
There is a further suggestion in the main opinion that plaintiff might have a cause of action upon the theory that she was injured through “active operations” of defendants. Reference is made to Oettinger v. Stewart, 24 Cal.2d 133 [148 P.2d 19, 156 A.L.R. 1221]. While the so-called “active negligence” doctrine may be applied where a defendant who was on the premises was chargeable with some new act of negligence after the injured person had entered thereon (Yamauchi v. O’Neill, 38 Cal.App.2d 703 [102 P.2d 365]), no authorities have been found which hold that the circumstances of the present case would fall within its scope. Any risk of harm here resulted solely from the leaving of the premises in the condition described, and such leaving constituted, at most, mere “passive negligence” as distinguished from “active negligence” within the meaning of the doctrine. There is therefore no question of fact to be determined which could make the “active negligence” doctrine applicable here.
In my dissenting opinion in Reynolds v. Willson, supra, ante, pp. 94, 106 [331 P.2d 48] I referred to the confusion that would inevitably result from the majority opinion there. Such confusion will become worse confounded by the filing of the main opinion here. Both opinions are clearly susceptible to the construction that this court is now, sub silentio, “disapproving the former cases” as was advocated in the dissenting opinion in Knight v. Kaiser Co., supra, 48 Cal.2d 778, 785. Both opinions are likewise clearly susceptible to the construction that this court now, in effect, is approving the erroneous construction placed upon section 339 of the Restatement of Torts in Copfer v. Golden, 135 Cal.App.2d 623 [288 P.2d 90]. Nevertheless, no mention whatever is made of “the former cases” or of the Copfer case in the main opinion here. Unfortunately, the bench and bar will still be compelled to speculate upon this court’s views concerning the proper construction of section 339 of the Restatement of *464Torts and upon this court’s views as to whether “the former cases” are to be followed or ignored.
As indicated in my dissent in Reynolds v. Willson, supra, ante, pp. 94, 106 [331 P.2d 48], I believe that section 339' of the Restatement of Torts, properly construed, is entirely consistent with “the former cases.” (See Knight v. Kaiser Co., supra, 48 Cal.2d 778; Melendez v. City of Los Angeles, supra, 8 Cal.2d 741; Wilford v. Little, supra, 144 Cal.App.2d 477.) On the other hand, I do not believe that the majority opinion in the Reynolds case or the main opinion here can be reconciled with those decisions. I am in accord with Dean Prosser’s version of the proper construction of section 339, where he states: “There are some dangers common in the community which any child of sufficient age to be allowed at large may be expected to understand and appreciate—such as the usual risks of fire and water, ...” (Prosser on Torts, 2d ed., p. 441.) There is no evidence in the record before us which shows anything more than the “usual” risk of fire. Furthermore, it is not suggested that anything more could be shown on a retrial of the cause.
I would therefore reverse the judgment and would accompany such reversal with directions to the trial court to enter judgment in favor of the defendants.
Schauer, J., and McComb, J., concurred.