-I dissent.

The nature and extent of the trial court’s power to effectively withhold the fact issues of a lawsuit from the jury was carefully stated by this court in Estate of Lances, 216 Cal. 397 , at page 400 [ 14 P.2d 768 ], as follows: “A nonsuit or a directed verdict may be granted ‘only when, disregarding conflicting evidence and giving to plaintiff’s evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff if such a verdict were given.’ [Citations.] Unless it can be said as a matter of law, that, when so considered, no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that a reviewing court would be impelled to reverse it upon appeal, or the trial court to set it aside as a matter of law, the trial court is not justified in taking the case from the jury.” (Italics added.) The attitude which the law requires of us in a case of this kind is therefore clear, and our inquiry is simply this: If the instant case had been submitted to the jury solely upon the evidence presented by the plaintiff, and the jury, on the basis of that evidence and legitimate inferences drawn therefrom, had duly rendered a verdict in the plaintiff’s favor, would we then be compelled to reverse the judgment entered pursuant to that verdict on the ground of insufficient evidentiary support? I am convinced that we would not.

As the majority opinion recognizes, the law of this state with respect to the liability of a possessor of land for the death or injury of trespassing children is stated in section 339 of the Restatement Second of Torts. That section provides as follows:

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

*751 (a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and

(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.

It is my view that the record herein, though properly termed “meager” by the majority, would nevertheless support a verdict for the plaintiff based on the substantive theory set forth in section 339, and therefore would support findings that the requirements of each of the five clauses of that section were satisfied. However, since the majority has chosen to discuss only clauses (b) and (c) of the section, and purports to justify its result upon plaintiff ⅛ failure to satisfy the requirements of those clauses, I shall limit the scope of this opinion accordingly.

Clause (b) of section 339 deals with the land possessor’s knowledge, actual or imputed, relative to the danger to immature trespassers faced by the artificial condition on his land. In order to justify a finding that this clause has been satisfied, there must be sufficient evidence (1) that the possessor knows or has reason to know of the existence of the condition, and (2). that the possessor realizes or should realize that the condition “will involve an unreasonable risk of death or serious bodily harm to such children.” The majority, referring back to clause (a) of the section, determines that “such children” must in the circumstances of this case mean “high school youths in their middle teens,” and finds as a matter of law that the evidence here presented eould not justify a finding that defendant realized or should have realized that its pier involved an unreasonable risk of harm to such trespassing youths.

This conclusion is reached through reference to the class of trespassers: “We cannot conceive of high school youths in *752 their middle teens failing to realize that at least out to a certain point on such a pier the water below remains too shallow for safe diving. ’ ’ The reasoning seems to be that since trespassers of plaintiff’s class are aware of the physical realities involved in diving into shallow water, they must likewise be aware of the risk involved in such action; and that such awareness negates the risk, so that defendant neither realized nor should have realized it. Aside from the question of the logical consistency of this structure, it is clear that the assumption upon which it rests cannot be taken as a matter of law. Evidence as to the depth of the water at the time of the accident was in conflict, with one estimate placing that depth at “five and a half to six feet,” the surface of the pier being estimated at “about four feet” above the surface of the water. Thus, the majority does little less than find as a matter of law that water 6 feet in depth is “too shallow for safe diving” from a height 4 feet above the surface. Plainly, such a finding represents an open excursion into the province of the fact-finding body.

Further, I would suppose that evidence of plaintiff’s actual realization of danger might be more meaningfully considered in connection with clause (c) of section 339, i.e., that clause specifically concerned with that factor. Defendant’s actual or expected realization of risk is the issue here, and it is clear that evidence was presented which would justify a finding in plaintiff’s favor on this point. That evidence concerns warning signs placed by defendant upon its own pier.

Ironically, but understandably, it was defendant who sought to introduce into evidence photographs showing warning signs upon its pier, and plaintiff who opposed that introduction. The relevant photographs marked for identification were lettered F through I. Exhibit F for identification showed a sign which read “Swimming & Diving From This Pier Strictly Prohibited, Keep Off, South End Rowing Club.” Exhibit G for identification showed a sign which read “No Diving.” Exhibit II for identification showed the far end of defendant’s pier, and appearing there were the signs of which closeup views were shown in exhibits F and G for identification, together with a large “Keep Off” sign painted in white on the surface of the pier, and a sign which said the following: “So. End Swimmers, Danger, Submerged Sharp Obstacles Off Dock, Off Limits.” Exhibit I for identification was essentially identical to Exhibit H for identification.

*753 As the majority points out, none of these photographs was admitted into evidence. However, there was testimony from plaintiff’s witnesses that there were signs of some kind on the pier, and the heavy emphasis laid upon the issue was evident to both court and jury. Joe Cardinale testified that he had seen the large “Keep Off” sign painted on the pier, but exhibit H for identification, the photograph in which that sign appeared, was not admitted into evidence because the other signs appearing in that photograph had not been properly identified at that time. Counsel for the defendant, in response to a question, then stated that defense witnesses would, “if necessary,” identify the remaining signs in the exhibit during the defendant’s case in chief. Finally, Joe Cardinale testified on cross-examination that the “No Diving” sign contained in exhibit G for identification had been seen by him at the time of the accident, though he had not been able to read it at that time. He explained this identification by reference to the texture of the sign, rather than its content: “. . . it’s lighter and darker in some places.” Upon plaintiff’s objection, the offer into evidence was declined on the ground that Cardi-nale ⅛ identification was ‘! clearly a conclusion. ’ ’

It is my view that the evidence presented relative to defendant’s warning signs, together with legitimate inferences to he drawn from that evidence, was sufficient to withstand a motion for nonsuit insofar as the question of defendant’s awareness of danger is concerned. The evidence on this point, though not fully developed at the time of the nonsuit motion, warranted full and mature consideration by the jury rather than the summary judicial rejection which it received.

Clause (e) of section 339, as above indicated, concerns itself with the actual knowledge or awareness of the class of trespassers as regards the particular risk. Thus, the land possessor is not liable unless “the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it.” In order to justify a finding that this clause has been satisfied, there must be sufficient evidence either that the trespasser because of his youth does not discover the dangerous condition, or, if he does discover it, he, because of his youth, does not realize the risk involved. Again, as a matter of law, the majority finds that plaintiff not only knew of the condition but also “had actual knowledge and appreciation of the danger.” Primary reliance is placed upon *754 plaintiff ’s age at the time of the accident, his general health of mind and body, his swimming experience, and his prior experience in diving off the pier. The result is a persuasive argument that plaintiff should have realized and appreciated the risk involved in his conduct.

But that is not the inquiry. Clause (c) of section 339 does not concern itself with plaintiff’s prohable or expected realization of danger. It deals with his actual realization. Unless it can be said as a matter of law that the plaintiff actually realized and appreciated the danger, a nonsuit will not lie. Whether plaintiff because of his age, background, and experience should have so realized or appreciated, though perhaps in point of fact he did not, is a defensive matter of contributory fault, and such evidence is precisely the variety which is to be ignored upon a nonsuit motion.

The record herein contains evidence which, if believed, would support a finding that plaintiff, because of his youth and immaturity, did not realize or appreciate 1 the risk involved in diving from defendant’s pier. In fact, the very evidence upon which the majority relies in part to assertedly show plaintiff’s appreciation of the danger provides this support. I have reference to the evidence of plaintiff’s prior experience in diving from defendant’s pier. The majority seems to conclude that, because plaintiff had dived from the pier “some 10 or 15 times over a period of three or four months,” and because “On the day of the accident he dived off the pier three or four times, but not always off the same side,” he must therefore have realized and appreciated the danger involved. A more obvious non sequitur would be difficult to formulate. Given that the condition was dangerous, how can it be said that one’s appreciation of that danger would be increased by a series of successful confrontations with it ? On the contrary, are we not compelled to say that this evidence tends to show that plaintiff did not in fact appreciate the danger because his past experience had mistakenly led him to believe that it was not present ?

The requirement that the infant trespassers fail to appreciate the danger “because of their youth” does not diminish the force of this observation. A jury might reasonably have found that plaintiff ⅛ failure to realize the danger was a result of immature judgment due to his youth. Whereas a mature *755 adult is usually 2 able to form a responsible judgment as to the danger of a given condition through passive observation, a youth of 16 less prone to reasoning through observation might actively confront the same danger essentially unaware of its potential for harm. 3 A jury’s finding to that effect would manifestly be supported by the common sense which we have traditionally attributed to that body.

The majority relies heavily upon the case of Garcia v. Soogian, 52 Cal.2d 107 [ 338 P.2d 433 ], wherein we reversed a judgment, entered pursuant to a jury verdict for the infant plaintiff, on the ground that that verdict, based upon the theory of section 339, 4 was not supported by substantial evidence. The very different state of the Garcia record renders that case inapposite here. First, it is manifest that the court there, unlike the majority here, did not hold as a matter of law that plaintiff failed to satisfy the requirements of clause (e) in that she appreciated the risk involved in confronting the condition upon defendant’s land. On the contrary, the court at page 113 of its opinion said the following: “It may be, as plaintiff in effect testified, that, because it was getting dark, she did not see the glass before jumping, ...” Thus, the court’s statements as to plaintiff’s expected realization of danger due to her age, etc., were properly directed to the issue of contributory negligence. This is the difference. Whereas we might properly consider evidence of contributory fault in a lawsuit that has been fully tried to a jury—consider it in order to determine whether plaintiff as a matter of law was contributorily negligent or assumed the risk — we cannot properly do so when the case stands in the posture of nonsuit. In the instant case, unlike in Garcia , the only issue relating to plaintiff’s conduct is whether, as a matter of law, he appreciated the danger.

*756 Secondly, it is clear that the primary basis of our Garcia holding was our finding that clause (b) of section 339, as a matter of law, had not been satisfied in that “there is no sound basis for concluding that the condition which caused plaintiff’s injury should have been recognized [by defendant] as constituting an unreasonably great risk of serious bodily harm which plaintiff was unable to discover or appreciate because of her immaturity.” (Id. at 113.) That finding was wholly justified upon the facts of the Garcia case, for the window panels there involved were placed and stacked in such a manner as to render injury to immature • trespassers improbable in the absence of conduct as unusual and unforeseeable as that which in fact occurred. In the instant case, however, ample evidence was presented to support a finding that defendant realized or should have realized the danger which its pier constituted to immature trespassers, and therefore a finding that clause (b) was satisfied would be justified, if not compelled. Thus, in spite of the majority’s strained effort to use the general' language of the Garcia case to support its conclusion in this case, it is patent that that holding will not bear the weight sought to be placed upon it.

It is my view that the record herein, though sparse to an extent unjustified by the factual background of this unfortunate accident, is still not so sparse as to justify the findings of the majority herein. Factual issues become legal issues at. a point far removed from that which this court has today chosen, and facile language cannot effect a credible transformation short of that point.

I would reverse the judgment of nonsuit and remand for a full trial on the merits.

Appellant’s petition for a rehearing was denied July 6, 1966. Peters, J., Tobriner, J., and Peek, J., were of the opinion that the petition should be granted.

'' ‘ Appreciation’ of the danger is what is required to bar recovery, rather than mere knowledge of the existence of the condition, or of some possible risk.’’ (Prosser, Trespassing Children (1959) 47 Cal.L.Rev. 427, 462.)

Again, the very presence of defendant's warning signs, which plaintiff testified that he did not see, tends to show that even mature members of the club were susceptible to lapses of judgment as to the danger of diving from the pier, though such lapses would not be “because of their youth.' 9

The opening lines of Dean Prosser's article attest to this well-known fact: “Children, as is well known to anyone who has ever been a child, are by nature unreliable and irresponsible people, who are quite likely to do almost anything. In particular, they have a deplorable tendency to stray upon land which does not belong to them, and to meddle with what they find there. In the process they not infrequently get hurt.'' (Prosser, Trespassing Children (1959) supra, 47 Cal.L.Rev. 427.)

Section 339 of the first Restatement of Torts, pertinent to the Garcia case, is substantially identical to the same section of Restatement Second insofar as clauses (b) and (c) are concerned.