On Petition for Rehearing
Before Brand, Chief Justice, and Hay, Rossman, Lusk and Warner, Justices.Denied.
HAY, J.Plaintiff has petitioned for a rehearing.
He contends that we erred in holding that there was no proof of negligence, and in that connection says that res ipsa loquitur was applicable.
Sufficiency of the evidence was not argued by plaintiff either on brief or orally. His counsel explained that they acted upon the assumption (they put it, gracefully, “erroneous assumption”) that, since *393the trial judge did not direct the verdict upon the ground of insufficiency of proof of negligence, such ground could not properly he considered upon plaintiff’s appeal. This assumption was incorrect. An appellant in such a situation has the burden of showing that the allowance of a motion for directed verdict was not justified upon any of the grounds stated, whether passed upon by the trial court or not. Bohart v. Parker, 76 Or. 371, 377, 147 P. 188, 149 P. 85; 3 Am. Jur., Appeal and Error, § 828.
The question of the applicability of res ipsa loquitur was not argued, and perhaps we should be warranted in considering it as having been waived. 3 Am. Jur., Appeal and Error, §§ 770, 776; General Construction Co. v. Fisher, 149 Or. 84, 87, 39 P. 2d 358, 97 A.L.R. 1252, ap. dism., 295 U.S. 715, 79 L. ed. 1671, 55 S. Ct. 646, reh. den., 295 U.S. 768, 79 L. ed. 1709, 55 S. Ct. 828; Longbotham v. Takeoka et al., 115 Or. 608, 617, 239 P. 105, 43 A.L.R. 1285. However, as our opinion held that there was no proof of negligence, it may be that we should have considered the applicability of res ipsa of our own motion. We shall now do so.
The rule in Oregon is that, where a plaintiff makes specific allegations of negligence in his complaint, he may invoke res ipsa loquitur, if applicable, as to such specific acts. Boyd v. Portland Electric Co., 40 Or. 126, 132, 66 P. 576, 57 L.R.A. 619; Cosgrove v. Tracy, 156 Or. 1, 12, 64 P. 2d 1321; Suko v. Northwestern Ice Co., 166 Or. 557, 566, 113 P. 2d 209; 38 Am. Jur., Negligence, § 305, n. 15. Lest we be misunderstood, we hasten to add that, of course, he may, if he wishes, allege negligence both generally and specifically, and invoke res ipsa, if applicable, as to either or both.
Plaintiff here, in addition to specific acts of negli*394gence, attempted to allege negligence generally. He says that we overlooked snch general allegations, but snch is not the case. The allegations in question simply stated, in effect, that defendant had placed a small pile of logs upon the ground to the left of the truck and trailer; that “plaintiff was standing at the end of these logs, fartherest [sic] away from the loading operations”; and that defendant so carelessly and negligently conducted its loading operations as to cause and permit a log to slide off the trailer bunks “directly onto the” small pile of logs, “and the force of the impact therefrom threw said logs into and against plaintiff * * * .” These were not general allegations of negligence, but rather allegations of general negligence under specific circumstances. The allegations which implied that plaintiff was standing clear of the small pile of logs, and that the impact threw the logs against his person, were completely disproved by the evidence, including plaintiff’s own testimony.
Whether or not res ipsa is applicable must be determined by the facts and circumstances of any given case. 65 C.J.S., Negligence, § 220 (10), n. 39; 38 Am. Jur., Negligence, § 355, n. 12. The requisite facts and circumstances must be shown by the evidence. Dunning v. Northwestern Electric Co., 186 Or. 379, 429, 199 P. 2d 648, 206 P. 2d 1177; Gow v. Multnomah Hotel Co., 191 Or. 45, 224 P. 2d 552, 555.
Plaintiff was injured by the impact of the falling log upon the log pile on which he was standing. He was upon defendant’s premises by implied invitation, but his invitation certainly did not authorize him to enter the actual loading area while another driver’s truck was being loaded. The logs in the small pile were used, *395when necessary, to complete loads. Plaintiff climbed upon the pile to advise the other driver as to the best method of binding a one-log load. He did not owe either the other driver or defendant any duty in this regard. His complaint admits that the log pile was a place of danger. By entering an area not within the terms of his implied invitation, plaintiff became, at the most, a mere licensee. Napier v. First Congregational Church, 157 Or. 110, 113, 70 P. 2d 43; Christensen v. Weyerhaeuser Timber Co., 16 Wash. 2d 424, 133 P. 2d 797, 801; Ciarmataro v. Adams, 275 Mass. 521, 176 N.E. 610, 75 A.L.R. 1171, 1174; 38 Am. Jur., Negligence, § 100; 2 Restatement, Torts, § 343, Comment b. A mere licensee cannot invoke res ipsa loquitur. Carr v. Oregon-Washington R. & N. Co., 123 Or. 259, 279, 261 P. 899, 60 A.L.R. 1434; Prosser, Res Ipsa Loquitur in California, 37 Cal. L. Rev. 183, 208 (note 150).
Plaintiff, having voluntarily and unnecessarily brought himself within the danger zone of the loading operation, being aware of the dangers incident thereto, his action in that regard, we think, created or brought about a condition which resulted in his injury. This brought the case within one of the limitations upon the applicability of res ipsa loquitur. “The injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party injured.” Wigmore, Evidence, 3d ed., Yol. IX, p. 380. We may assume that, normally, such limitation would have reference to a plaintiff’s voluntary participation with the defendant in the operation or control of the injurious machine or thing, but we think that it is also applicable to a situation such as we have here. Plaintiff had the opportunity of making an intelligent choice as to whether to remain in a place of safety *396without the danger zone or to go within it. For his own convenience and purposes he chose to go within it. There was no evidence that defendant knew of plaintiff’s dangerous situation in time to have given him adequate warning or otherwise enabled him to have avoided injury.
The facts to which we have referred were shown by the evidence at the time when the sufficiency thereof was challenged by defendant’s motion for nonsuit. We have recited them, not for the purpose of showing that plaintiff was guilty of contributory negligence (although they do tend to show that he was so guilty) but simply because, in our opinion, they prevented him from invoking res ipsa loquitur to raise an inference of negligence.
Other errors are suggested by plaintiff, but, in our view of the evidence, none of them are of sufficient merit to require further discussion.
The petition for rehearing is denied.