specially concurring.
I concur in the result. I confess to having had grave doubts as to the propriety of the action of the trial court in directing a verdict for the defendant. The doubt is somewhat fortified by the difficulty which this court has had in arriving at a satisfactory basis for the decision. Our first opinion is based solely on the absence of any substantial evidence of negligence by the defendant. The second affirms the judgment on the additional ground that plaintiff voluntarily brought himself within a danger zone and assumed the risk; in substance, that plaintiff was guilty of contributory negligence. On the facts the case is at least as close a one as will ever warrant an order directing a verdict.
*397I agree that this is not a proper case for applying the doctrine of res ipsa loquitur, but for reasons entirely different from those asserted in the opinion of the court on rehearing. Bes ipsa loquitur is merely a rule concerning possible inferences which may be drawn from facts proven. It takes a case past a nonsuit. It concerns the sufficiency of evidence of negligence by a defendant. It is not normally concerned with any question of contributory negligence by the plaintiff. The authorities are fully discussed in Ritchie v. Thomas et al., 190 Or. 95, 224 P. 2d 543, and Gow v. Multnomah Hotel, Inc., et al., 191 Or. 45, 224 P. 2d 552. Briefly summarized, the rule is that where the plaintiff does not participate in the activity, normally the operation of some instrumentality by the defendant, the actions of the plaintiff have nothing to do with the applicability of the rule. If a plaintiff is guilty of independent contributory negligence he will of course be barred from recovery, but not because of any rule of res ipsa. If, on the other hand, the plaintiff participates in the operation of the activity of the defendant which causes the mishap — if he as well as the defendant is a participant in operating the instrumentality, then he must “eliminate himself as a responsible cause of the accident.” This is not because of any general rule that a plaintiff must negative contributory negligence in his case in chief, but is because, though the falling of a log or a barrel or the breaking of a chair may speak of negligence, it does not speak of negligence by the defendant if either of two people, the defendant or the plaintiff, may have caused the log or the barrel to fall or the chair to break. Under such circumstances it is held that if the plaintiff would invoke the doctrine of res ipsa loquitur he must eliminate himself as a responsible cause of the event which resulted in the *398injury. In the case at bar, the plaintiff did not participate in any way in the operation which caused the log to fall from the truck. To be sure there was evidence from which a jury could well have found him guilty of contributory negligence which would bar his recovery whether the defendant was or was not also negligent. But since plaintiff did not participate in the operation which caused the log to fall, it is beside the point to consider whether he was a “responsible cause of the accident” in passing upon the question of the applicability of res ipsa loquitur. What plaintiff did is relevant solely to the issue of contributory negligence. His action may have been a contributing cause of his own injury but it was not a cause of the falling of the log. To hold that res ipsa loquitur cannot apply because plaintiff was a responsible cause of his own injury though not of the falling of the log is the same as holding that there was no evidence of the negligence of the defendant because the plaintiff was guilty of contributory negligence. I cannot concur in that reasoning.
The majority employs a second line of argument, substantially as follows: Plaintiff was an invitee on the premises but the terms of his invitation did not authorize him to risk his safety by moving into dangerous proximity to the truck and log. When he did so he became at most a mere licensee to whom the defendant owed no duty except to avoid wilful or wanton injury. The argument proceeds by citing the rule that a mere licensee cannot invoke res ipsa loquitur and the conclusion is reached that the doctrine is therefore not applicable in this case. At this point we must ask, did the plaintiff by his acts change his status from invitee to licensee or did he merely become guilty of contributory negligence? Plaintiff was invited for *399business purposes to enter premises which were in the possession of the defendant. If he ceased to be an invitee and became a mere licensee or perhaps a trespasser, when did the transformation occur? In approaching the truck, how many steps did he take as invitee and how many as mere licensee? When injured, plaintiff was not standing opposite the log which fell. He was to the left of and immediately adjacent to the cab of the truck. He was in front of and beyond any place on which the log could have fallen or did fall. Plaintiff was not hit by that log. The rear end of that log fell on the far end of a small pile of logs on the near end of which plaintiff was standing. He was hurt by being catapulted into the air. In this complicated situation it would appear to be improper for a court to say as a matter of law when and where, if at all, plaintiff ceased to be an invitee. In my opinion he never ceased. He was an invitee and perhaps a negligent one; nothing more. An invitee may conduct himself negligently. Secondly, even if he was a bare licensee or even if he became a trespasser, this court should not under circumstances here present hold that defendant owed him no duty except to avoid wilful or wanton injury. The reason res ipsa loquitur has been held inapplicable when a bare licensee or trespasser is injured is made clear in the passage from Dean Prosser, cited by the majority. “Res ipsa loquitur leads only to the conclusion that the defendant has not exercised reasonable care. It is not in itself any proof that he was under any duty to do so.” Res Ipsa Loquitur in California, 37 Cal. L. Rev. at 208. If in this case defendant owed no duty of reasonable care because plaintiff was a mere licensee, then res ipsa would not apply because it would only lead to a conclusion which was immaterial. There may be circumstances in which a *400defendant owes no duty of reasonable care to a licensee, as for example when he neither knows nor has reason to know that the licensee or trespasser is on the premises, and the injury is due to the condition of the premises. The courts have so held. But there is, and in my opinion should be, a clear exception to this rule. It is set forth in the Restatement of Torts, Yol. 2, § 336, p. 911, as follows:
“A possessor of land who knows that another is trespassing thereon or from facts known to him should know or believe that another is or may be doing so, is subject to liability for bodily harm thereafter caused to the trespasser by the possessor’s failure to carry on his activities upon the land with reasonable care for the trespasser’s safety.”
The rule of the Restatement is both logical and humane and we should not reject it in this case. If the rule applies to a trespasser, it applies a fortiori to a licensee. The presence of the plaintiff on the land was known to defendant’s agents. They invited him there and they had a duty, in carrying on current activities, to exercise reasonable care not to injure him. I am not saying that there is any evidence that defendant violated any duty of reasonable care owed to plaintiff. I am saying that the argument employed by the majority and by which it seeks to demonstrate that res ipsa loquitur does not apply is based on a misinterpretation of that rule. I accept as correct the presentation of facts in both the original opinion and in the one on petition for rehearing. While the issue is close, I think we can properly say that though defendant knew of plaintiff’s presence on the general premises and so had a general duty of due care in carrying on its activities, nevertheless defendant did *401not know that plaintiff had placed himself in a position of danger in time to have prevented the accident. Defendant had no duty to anticipate that plaintiff would voluntarily and negligently take up a dangerous position. Since it was not shown that at or before the critical time, defendant knew or ought to have known of plaintiff’s danger, it cannot be said to have negligently violated any duty of care owing to the plaintiff. The falling of the log may itself speak of carelessness but it does not speak of any negligent violation of any duty to plaintiff.
I am content that the petition for rehearing be denied for the following reason: There is evidence that plaintiff was guilty of contributory negligence. If he was, then he cannot recover, no matter how carelessly the defendant handled the log. If plaintiff was guilty of contributory negligence by assuming a place of danger, then conceivably it could be argued that defendant should have known it and given timely warning if possible. But the negligence, if any, of defendant, would be immaterial as to the result, for plaintiff’s negligence would have barred his recovery. On the other hand, if plaintiff was not guilty of contributory negligence, if he did not put himself in a place of obvious danger, then how could we say that the defendant was negligent in not exercising due care for a man who was in no apparent danger ? The negligence, if any, of the defendant in this ease cannot be inferred unless it is based on the fact first established of the contributory negligence of plaintiff.
Res ipsa loquitur does not apply and I agree that the petition for rehearing should be denied. If the case cannot be decided on these grounds, and I think it can, then surely we should have held in the first place that *402both questions were for the jury. I have gone to these lengths in explaining my views because I believe that the law of negligence, and particularly of res ipsa loquitur, will be thrown into utter confusion and error if the court ultimately adheres to its present position.