48 Cal.2d 778 (1957) HELEN KNIGHT, Appellant, v. KAISER COMPANY (a Corporation), Respondent. S. F. No. 19697. Supreme Court of California. In Bank. June 28, 1957. Charles O. Morgan, Jr., for Appellant. Frederick M. Van Sicklen and James C. Calkins for Respondent. McCOMB, J. From a judgment predicated upon the sustaining of defendant's demurrer to plaintiff's third amended complaint without leave to amend in an action to recover damages for the death of plaintiff's son, plaintiff appeals. The amended complaint, in substance, alleged that plaintiff was the natural mother of decedent, Johnny William Bass, Jr., 10 years of age; that defendant owned and maintained premises in Stockton on which it had placed or caused to be placed large piles of sand and gravel and, adjacent thereto, a large conveyor belt; that no fences, guards or railings were placed around these sand and gravel piles or a portion of the conveyor belt; that a road or pathway was close to these objects and children were in the habit of playing upon the sand and gravel piles and the conveyor belt; that defendant knew or should have known the conditions existing involved an unreasonable risk of death or serious bodily harm to children playing on the sand and gravel piles; and that *780 on August 20, 1953, plaintiff's son, while playing upon the premises and digging in one of the sand piles, was asphyxiated when it collapsed upon him. [fn. 1]*781 Plaintiff contends that the facts alleged in the complaint as amended state a cause of action within the "attractive nuisance" doctrine. This contention is untenable. [1] Where the facts are undisputed, as in the instant case, it is a question of law whether or not the facts alleged fall within the scope of the "attractive nuisance" doctrine. (Nicolosi v. Clark, 169 Cal. 746, 747 et seq. [147 P. 971, L.R.A. 1915F 638]; Hernandez v. Santiago Orange Growers Assn., 110 Cal.App. 229, 236 [4] [293 P. 875]; cf. Loftus v. Dehail, 133 Cal. 214, 218 [65 P. 379].) Applying this rule to the admitted facts in the present case, it is conceded that defendant maintained upon its premises large sand and gravel piles and a large conveyor belt; that decedent while playing and digging in one of the sand piles was asphyxiated when it collapsed upon him. [2] It is the general rule that where a person goes upon the premises of another without invitation, as a bare licensee, and the owner passively acquiesces in his presence, if any injury is sustained by the licensee by reason of a mere defect in the premises the owner is not liable for negligence, for the licensee has assumed the risk himself. [3] The owner of property does not assume any duty to one who is on his premises by permission only and as a mere licensee, except for wanton or willful injury inflicted upon the licensee while on the premises. (Means v. Southern Calif. Ry. Co. 144 Cal. 473, 479 [77 P. 1001, 1 …
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