dissenting. I cannot agree with the opinion of the majority of the court that the plaintiff is not entitled to recover under the allegations in the first and second counts of her declaration. I think that sufficient facts have been alleged to establish that the plaintiff was at a particular place where the defendant railroad should have anticipated the presence of pedestrians, and therefore the defendant owed to her a duty of reasonable care in the operation of its trains.
As to the allegation in the third count of willful and wanton conduct by defendant, I agree with the majority opinion that the demurrer was properly sustained. Because I agree with the majority as to the insufficiency of the third •count and because this issue was scarcely touched upon in the briefs and arguments before us, I will confine my discussion herein to the first and second counts of the declaration.
The first and second counts proceed on substantially the same theory. This theory is that because plaintiff was traveling upon a crossing which continuously, “over a long-period of time,” and with notice to defendant had been used by members of the general public, defendant owed to her a duty of reasonable care in moving its trains upon the tracks at that point. The argument is twofold: First, *47that the circumstances indicate an implied invitation to enter upon the premises; and second, that since defendant had ample notice of the use of a limited area as a crossing, reasonable care should have been exercised in the moving of trains Regardless of plaintiff’s status. As I understand the majority opinion, it deals only with the question of implied invitation and fails to consider plaintiff’s second argument.
It has been held in this state that the passive acquiescence of a landowner in the use of his property is not sufficient to constitute an implied invitation. Paolino v. McKendall, 24 R. I. 432; Boday v. N.Y., N.H. & H. R.R., 53 R. I. 207. There must .be affirmative conduct of some kind which can reasonably be construed as an authorization to the public to enter the premises. Reddington v. Getchell, 40 R. I. 463. I do not wish to depart from this settled rule, and I therefore agree that under the allegations of the declaration the plaintiff in the case at bar was not an invitee upon defendant’s premises. On my view, however, the conclusion that plaintiff was not an invitee by no means disposes of the legal problem in this case.
The general rule is that an owner or occupier of land has no duty to exercise ordinary care with respect to a trespasser and is only required to refrain from willful and wanton conduct after the trespasser has been discovered in a position of peril. Boday v. N.Y., N.H. & H. R.R., supra; Erenkrantz v. Palmer, 69 R. I. 478. It seems clear to me that the basis for this general rule is that normally a trespasser is not reasonably to be expected on the premises. In most cases a landowner is as a practical matter completely justified in assuming that there will be no trespassers on his property. Therefore no duty is imposed upon him until he discovers that, contrary to the normal expectation, a trespasser is in fact on his property and he is then required to act in such' a way as to avoid injuring the trespasser. Erenkrantz v. Palmer, supra.
*48But where, as in the case at bar, there is ample basis for expecting the presence of the trespasser in the first place, then the general rule has no logical application. In 2 Restatement, Torts, §334, p. 904, the rule is stated as follows: “A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area thereof, is subject to liability for bodily harm there caused to< them by his failure to carry on an activity involving a risk of death or serious bodily harm with reasonable care for their safety.”
In my opinion the general rule as to' trespassers assumes the reasonableness of a landowner’s expectation that there will be no unauthorized persons upon his premises. Consequently, where, as in this case, the facts indicate that it was unreasonable for the landowner to assume that there would be no trespassers at a particular point upon his premises, I think it is also unreasonable to apply the general rule. For this reason I think it achieves nothing simply to> call the plaintiff a “trespasser.” I agree with the reasoning adopted in other jurisdictions that in cases of this kind the definition of the plaintiff’s status is unimportant, since his presence on the property was reasonably to be anticipated. Brophy v. Milwaukee Elec. Ry. & Transport Co., 251 Wis. 558; Smith v. Boston & Maine R.R., 87 N. H. 246; J. Ray Arnold Lumber Co. v. Carter, 91 Fla. 548; St. Louis & S. F. R. Co. v. Jones, 78 Okla. 204; Louisville & Nashville R.R. v. McNary’s Adm’r, 128 Ky. 408; Dent v. Bellows Falls & Saxtons River Street Ry., 95 Vt. 523; Missouri Pacific R.R. v. McKinney, 189 Ark. 69. See also 44 Am. Jur., Railroads, §437, p. 661; James, Tort Liability of Occupiers of Land: Duties Owed to Trespassers, 63 Yale L. J. 144. The existence of a duty of care in these cases is compelled by the elementary principles of reasonableness of conduct which is the basis of all negligence law.
I cannot accept the conclusion of the majority that the denial of recovery in this case follows from the decision in *49Boday v. N.Y., N.H. & H. R.R., supra. The opinion of the majority states that the rule of the Boday case is “supported by reasons whose cogency convinces us that we should continue to follow it.” As I read the Boday case, the primary reason for the decision is contained in the following language at page 209: “In view of the prohibiting signs posted by the company near the bridge, and the unsuitability of the bridge structure itself for any but train traffic, railroad trainmen would have the right to presume that there would he no trespassers upon either the bridge or the railroad right of way in general * * (italics mine) It seems to me that the reasoning of the Boday case applied to the instant case would lead to exactly the opposite result from that reached by the majority herein. Since the first and second counts of the declaration allege facts indicating-defendant’s knowledge that a particular small area was used as a crossing, the logic of the Boday rule would appear to require the imposition of liability in the instant case.
The defendant places considerable reliance upon the cases in which this court has rejected the so-called “attractive nuisance” doctrine. See Paolino v. McKendell, supra; Plante v. Lorraine Mfg. Co., 78 R. I. 505; Previte v. Wanskuck Co., 80 R. I. 1. I think that those cases are distinguishable from the case at bar. The “attractive nuisance” doctrine applies to liability for conditions upon the land, and the trespassing in such cases is entry upon the land generally. In the instant case defendant was eonducting a dangerous activity, and the place at which plaintiff’s presence was to be anticipated was a limited area, to wit, a crossing on the tracks. In my opinion the duty which arises here is considerably more confined than that sought to be imposed by the “attractive nuisance” doctrine. See Williamson v. Southern Ry., 104 Va. 146. The plaintiff herein alleges that the public had in fact continuously used the said crossing and that defendant knew or should have known that trespassers frequently had been upon the tracks *50in the very place where the alleged injury occurred. As I understand it, she is not relying upon an attraction or allurement which would simply create a probability of trespassing. See Wolfe v. Rehbein, 123 Conn. 110.
William R. Goldberg, Ronald R. Gagnon, for plaintiff. William J. Carlos, for defendant.At least in the limited situation presented by the allegations herein I would apply the exception to the general rule stated in 2 Restatement, Torts, §334, supra. See Southern Ry. v. Moseley, 35 F.2d 474; O’Leary v. Pittsburgh & Lake Erie R.R., 248 Pa. 4; Va. Mid. R.R. v. White, 84 Va. 498; Hoops v. Thompson, 357 Mo. 1160; Skzypek v. Long Island R.R., 280 N.Y.S. 422; Bellefontaine and Indiana R.R. v. Snyder, 18 Ohio St. 399; Teakle v. San Pedro, L. A. & S. L. R. Co., 32 Utah 276. See also 44 Am. Jur., Railroads, §437, p. 659 et seq.; 120 A.L.R. 1076; 167 A.L.R. 1253. It seems to me that the Boday case does not require otherwise. It is my view that the decision reached by the majority of the court in the instant case is not consistent with the principles governing the law in this area and that the rule adopted 'by the majority of American jurisdictions is more desirable.
Therefore, I am of the opinion that the demurrer to the first and second counts of the declaration should have been overruled.