concurring.
I agree with the majority that the complaint against Conrail should not have been dismissed at the end of plaintiff’s case. The Railroad Immunity Act, N.J.S.A. 48:12-152, did not preclude recovery since plaintiff was not injured while walking, standing or playing on the railroad or by jumping on or off a car while in motion. See Renz v. Penn Central, 87 N.J. 437, 463 (1981) (Schreiber, J., concurring).
At the trial the statutory immunity was properly held to be inapplicable to the engineer. Potter v. Finch & Sons, 76 N.J. 499 (1978). However, a question existed as to the nature of the duty owed. Since the charge incorrectly described that duty and the cause is being remanded for a new trial, it is necessary to delineate guidelines for the trial court to follow which will be *476applicable to the engineer and the railroad. Traditionally, the scope of the duty owed depends upon the plaintiff’s status, be it as trespasser, licensee or invitee.
The duty owed to a trespasser depends in the first instance on whether the plaintiff’s injury is due to a natural condition of the land or an activity which has been or is being carried on by the property owner. In the former situation, the property owner generally is only under an obligation to warn a known trespasser of a concealed dangerous condition. Morril v. Morril, 104 N.J.L. 557 (E. & A. 1928). In the latter, the property owner should refrain from intentionally injuring the trespasser. Sohn v. Katz, 112 N.J.L. 106 (E. & A. 1934).
Some exceptions have developed with respect to dangerous activities in railroad cases. One requires the defendant to exercise reasonable care for the safety of trespassers where their presence is to be anticipated and the activity carried on involves a high degree of danger. Cleveland-Cliffs Iron Co. v. Metzner, 150 F.2d 206 (6 Cir. 1945). It is not essential that the trespasser be perceived, but it is sufficient if the information would lead a reasonable man to conclude that a person might be there. The Second Restatement of Torts gives this illustration:
The engineer of the X & Y Railroad Company sees lying upon the track a pile of clothing such as would give a reasonable man cause to suspect that it might contain a human being. Under these circumstances the engineer is not entitled to assume that it is not a human being but is required to keep the engine under control until he is certain that it is not. [Restatement, Torts 2d, § 336 at 191, illus. 1 (1965)]
See also F. James, “Tort Liability of Occupiers of Land: Duties Owed to Trespassers,” 53 Yale L.J. 144, 177-79 (1953), advocating elimination of determining duty on the basis of classification and deciding instead whether the property owner’s activities constitute an unreasonable danger under all the circumstances.
The duty owed to a licensee with respect to dangerous activities differs from that owed to a trespasser. The general rule is that there is an obligation to exercise reasonable care for the *477protection of the licensee.1 See Berger v. Shapiro, 30 N.J. 89, 97 (1959). The property owner must act with due regard for the possibility that the licensee may be present. Dean Prosser has observed:
The obligation is higher than that owed to a trespasser, because the possessor may be required to look out for licensees before their presence is discovered.... [Prosser, Law of Torts (4 ed. 1971), at 380]
The duty owed to a business invitee is not only to protect the invitee against dangers which the owner knows or with reasonable care might discover, Bohn v. Hudson & Manhattan R. Co., 16 N.J. 180, 185 (1954), but also to carry on its activities in a reasonably prudent manner.
An inadvertent involuntary deviation from the area of invitation does not necessarily destroy the status as an invitee. It has been held that some intrusions upon the lands of others do not transform the individual into a trespasser. For example, a pedestrian on a public highway may detour onto adjoining land to avoid an obstruction, Sawicki v. Conn. Ry. & Lighting Co., 129 Conn. 626, 30 A.2d 556 (1943); or an inadvertent slip into adjoining land does not affect invitee status, Puchlopek v. Portsmouth Power Co., 82 N.H. 440, 136 A. 259 (1926); Prosser, Law of Torts (4 ed. 1971), at 353. Restatement, Torts 2d, § 368, comment e at 269 — 70 (1965), projects a similar proposition:
The public right to use the highway carries with it the right to protection by reasonable care against harm suffered in the course of deviations which may be regarded as the normal incidents of travel. This is true particularly where the deviation is inadvertent, as where one walking on the highway slips and falls into an excavation next to it, or misses his way in the dark, strays a foot or two to one side, and falls into the pit.
The facts in this case fall within the same pattern. The plaintiff was a business invitee on the common carrier’s platform, a place to which the public was invited, and involuntarily fell upon the tracks due to an unexpected grand mal seizure. He had not experienced an attack of this nature for at least six *478years. On these facts, the burden being on the defendant to establish contributory negligence, I would hold that the plaintiff continued to be an invitee and was in a position comparable to the user of a public highway who inadvertently fell into an adjacent area. The engineer and the railroad owed him a duty to operate its dangerous instrumentality with reasonable care so as to avoid causing the plaintiff injury.
The jury charge contained numerous prejudicially erroneous instructions in which the trial court assumed the plaintiff was a trespasser. A few illustrations demonstrate the point. The trial court stated a railroad’s engineer is “not responsible for the safety of a person who trespasses on the railroad track” ; the railroad “employees have a duty to exercise reasonable care to avoid injuring a trespasser when the victim is actually discovered in a position of peril” (emphasis supplied); the engineer has a “right to assume that a person on a track will leave it in time to avoid a collision”; “the engineer owes no duty to a trespasser until his peril is discovered”; the engineer is bound “to only exercise reasonable and ordinary care to avoid injuring trespassers after he has discovered them to be imperiled” (emphasis supplied); the engineer is not liable if “after becoming aware” (emphasis supplied) of the physical condition of the injured person, he uses all reasonable efforts to prevent an injury; the engineer is not required to slacken speed or stop after having given a signal to a person on the track; when a person is discovered on the track, the engineer is under a duty to exercise due care, but it is not negligence if the engineer fails to take precaution where it is impossible to do so after the person’s peril has been discovered; where a person has been discovered in a position of peril on the tracks, the engineer must use all reasonable means to avoid an accident. These references made it clear to the jury that the engineer’s duty did not arise until after he discovered the plaintiff on the track.
Putting aside the question whether the plaintiff was an invitee or licensee and assuming his status was that of a trespasser, the trial court’s charge conflicted with the principle *479that a possessor of land who has reason to be aware of a trespasser’s presence should carry on activities with reasonable care for the trespasser’s safety. Thus, the engineer was not entitled to assume that the obstruction on the track was not a human being and the trial court erred in stating that his duty of due care did not arise until after he was aware that a person was on the track. The charge also conflicted with the principle, which I believe was appropriate, that the defendant was obligated to operate the train with reasonable care, including the exercise of reasonable care to discover his presence on the track. So, irrespective of plaintiff’s status, the jury instructions were erroneous on a crucial issue.
I also agree with the majority that the plaintiff should have been permitted under the circumstances to use the defendant’s interrogatory answers against both defendants and that the trial court should have consulted counsel before reading portions of the transcript to the jury.
Justice PASHMAN joins in this opinion.
PASHMAN and SCHREIBER, JJ., concurring in the result.
For modification and affirmance — Chief Justice WILENTZ and Justices SULLIVAN, PASHMAN, CLIFFORD, SCHREIBER and HANDLER — 6.
For reversal — None.
This assumes that the licensee is not fully aware of the activity. Restatement, Torts 2d, § 341 at 207-08.