(dissenting).
I can find no evidence in this record which would permit a verdict against defendants and therefore I must dissent.
Since Atherton v. Hoenig’s Grocery, 249 Iowa 50, 86 N.W.2d 252, we have considered the duty of an occupier of real estate to an invitee in numerous cases, including Anthes v. Anthes, 258 Iowa 260, 139 N.W. 2d 201; Hanson v. Town and Country Shopping Center, 259 Iowa 542, 144 N.W. 2d 870. Meader v. Paetz Grocery Company, 259 Iowa 1101, 147 N.W.2d 211; Smith v. J. C. Penney Co., Iowa, 149 N.W.2d 794; Chevraux v. Nahas, Iowa, 150 N.W. 2d 78; Knudsen v. Merle Hay Plaza, Inc., Iowa, 160 N.W.2d 279 and Bradt v. Grell Construction Co., filed September 17, 1968.
We are now committed to the rule that the occupier of real estate is not relieved of liability simply because his invitee was injured by an open, obvious or known defect or condition if it appears the invitee would not discover or realize the danger or would fail to protect himself against it. This is based on the language used in sec*475tion 343, Restatement, Second, Torts, as set out in the majority opinion. Although we have reached different results on different factual situations in the cases above listed, all of them have been based on the Restatement principle just stated.
The present controversy is here on an appeal from a directed verdict in favor of defendant at the end of plaintiff’s evidence. We are not concerned with plaintiff’s contributory negligence nor the question of assumption of risk, but we consider Only if plaintiff made out a case of negligence sufficient to go to the jury. I agree with the trial court that he failed to do so and I believe the record conclusively negatives any theory upon which negligence could be predicated.
The majority bases its finding partially on the following testimony of plaintiff as he lay on the ground following his injury:
“I don’t believe I ever worked in a place where there was ice like that. It was slippery and I knew it was slippery. I don’t believe I ever worked in a place where it was that slippery with ice.”
I believe the record discloses this statement — and numerous others similar to it— concerns observations made by plaintiff prior to his fall.
Some of these references, taken from both his direct and cross-examination, follow:
“I noticed the ground where I got out of the truck and had an opportunity to observe the ground where I was walking around. In places it was extremely icy. In places it was snow packed and there was bark lying around, scattered generally all over the area * * * The surface of the ground that I was standing on was icy and on it there were a few pieces of bark * * * I could turn to the left and run out that way, but that would be the way the logs would be coming off, rolling that way. I was turning to the right to see the logs on the truck * * * This is the way I always did it * * * I didn’t want to turn to the left, I imagine because the right is the side the logs are on, so that I could see the logs * * * Didn’t look to me like there was any snow and ice removed from the surface of this log unloading area where we were unloading logs * * * I knew that the chain had been taken from the logs, that the only thing or device holding the logs on the bed of the truck was the left rear trip stake as far as left side is concerned * * * Upon seeing the loop come free from the trip mechanism I knew that trip stake would fall, that part of the load, some of the logs might be released and fall from the truck * * * Upon knocking away this loop I took approximately one or two (steps), just enough to get turned around, and I turned to the right to get away from the logs if they should roll off the bed of the truck * * * When I got out of the right side of the truck the first time I observed snow or ice as I stepped onto the ground. The surface I stepped on was slippery * * * As I walked along the left side of the truck, past the left door and back to where the chains were binding the load of logs on the truck, there was an extreme lot of ice on the ground. It was very slippery * * * As I then walked again from the truck cab back to the rear wheel and stake, I observed the condition of the ground then. It was icy and slippery. * * * In this position * * * some two and a half feet to the rear from the stake upon which I was working, I observed condition of the ground while standing, ice and slippery * * It was a clear day. Everything about the yard and the ground was clear to me that morning. I don’t believe I ever worked in a place where there was ice like that. It was slippery and I knew it was slippery. I don’t believe I ever worked in a place where it was that slippery with ice. * * * I have been out to the Bacon yard several times over the past years * * * I rode with whoever owned logs. I had been there before * * * to help unload loads of logs for inspection. * * * I helped to place that load of logs on the truck the day before the accident. I knew what the gen*476eral load was like, a portion of the load was extending beyond the rear of the bed of the truck maybe a foot or two I don’t know for sure.”
All of this testimony relates to plaintiff’s observations and knowledge before his injury. Not only do these excerpts from the record show he saw the icy condition, but also prove conclusively he appreciated the danger of the situation and knew the hazards which confronted him. He had unloaded logs before; he knew that logs rolled off the truck, once the stakes were freed; he even knew which way he should move to avoid the falling logs; this was his trade, his business.
The test is whether a reasonably prudent person under the same circumstances would appreciate the danger which existed from a known condition. Meader v. Paetz Grocery Co., supra, at page 1106 of 259 Iowa, 147 N.W.2d 211. Even one unfamiliar with this type of work may be presumed to know that wrestling heavy logs from a flat bed truck upon an icy surface is dangerous. This takes no expertise. But in addition to that, plaintiff was one who by training and experience knew the hazards of this operation, even under favorable circumstances. Plaintiff’s testimony leaves no possible doubt that he was keenly aware his job required both care and agility to avoid injury from falling logs.
The majority says, “Particularly in view of the evidence defendant knew the method of unloading logs which required quick movement by those so engaged and then directed the place on its premises for such work to be done we believe there was sufficient evidence to make a jury question as to whether defendant had breached his duty to plaintiff, a business-invitee.”
This sets out the Restatement rule in reverse. The test is not whether defendant knew the method of unloading logs, and its hazards, but whether he should have anticipated plaintiff did not appreciate them, and would not protect himself against them. Certainly defendant was entitled to assume plaintiff, as a reasonably prudent man, familiar with the business of unloading logs and the dangers it presented under the best of circumstances, and thoroughly aware of the slippery condition of the premises, would take adequate measures for his own safety. To hold otherwise does violence to the very rule we claim to have adopted.
In Anthes at page 266 of 258 Iowa, at page 205 of 139 N.W.2d we said, “Defendant erroneously assumes the accepted rule of law to be that an inviter is not liable where an existing condition is as well known to the invitee as it is to the inviter. This can be and is sometimes only half the story. * * * Conditions may be such as to make a danger or peril self-apparent. On the other hand conditions may be such that the danger is latent, concealed or hidden. * * *
“In the case now before us plaintiff admittedly saw existing conditions. * * * A jury question was clearly presented as to whether plaintiff saw or should have appreciated the perils or dangers of the conditions he observed.”
In Hanson at page 549 of 259 Iowa, at page 875 of 144 N.W.2d appears this: “ * * * Negligence may exist even though a defect is, in fact, open and obvious where the circumstances are such that there is reason to believe it would not be discovered or become obvious to the invitee or the risk of harm involved would not be anticipated or appreciated by the invitee. * * * ” In that same opinion at page 549, at page 874 of 144 N.W.2d we quote with approval this comment from section 343A of the Restatement, Second, Torts, “The word ‘known’ denotes not only knowledge of the existence of the condition or activity itself, but also appreciation of the danger it involves. Thus the condition or activity must not only be known to exist, but it must also be recognized by a reasonable man, in the position of the visitor, exercising ordinary perception, intelligence and *477judgment.” In Meader at page 1110 of 259 Iowa, at page 218 of 147 N.W.2d we say, “In other words the inviter should not be charged with failure to anticipate that the invitee, aware of the business operation, will not measure up to his obligation and avoid the condition. To hold otherwise would surely make the operator an insurer, and all authorities agree the inviter’s obligation does not extend that far.
“The rule, then, as we view it, is that the possessor of land is held liable for harm caused to an invitee by a condition of which he was aware or, in the exercise of due care, should have been aware, only if he realizes or should realize that the condition constitutes an unreasonable risk to the invitee, and has no reason to believe that the invitee will observe the condition and realize the risk. In considering whether the invitee will discover and realize the risk, the owner is entitled to assume the invitee will act as a prudent person under the circumstances. Restatement, Second, Torts, section 343.” To like effect in the Chevraux case at page 81 of 150 N. W.2d we put it this way: “* * * If an existing condition on the property of an in-viter is obvious, that is if both the condition and attendant risk are open, visible and apparent and would be recognized by a reasonable person in the position of an invitee, then the former would not be liable to the latter for physical harm caused him by the condition of the visited premises.” Statements to like effect may be found in Smith v. J. C. Penney Company, supra; Knudsen v. Merle Hay Plaza, Inc., supra, and Bradt v. Grell Construction Co., supra.
Not a bit of evidence in this record reveals any conduct by defendant which would subject him to liability under the rules just set forth. Plaintiff not only was fully aware of the conditions then existing, but he also appreciated the attendant dangers. Furthermore there is nothing to suggest that defendant should have anticipated plaintiff would not conduct himself as a reasonably prudent person under the circumstances then existing. If defendant’s conduct here be negligent, then we are indeed but one short step removed from making the inviter the insurer of his invitee’s safety.
I must also mention that I do not agree with the majority that the trial court used the old Atherton rule in his decision on this motion for directed verdict. The majority quotes the trial court as holding, “To recover on this theory of negligence plaintiff must establish that a hidden, obscure or unknown hazard caused the injury to Jimmy Dale Adams.” However, immediately following this the trial court said, “This they have failed to do, but rather they have established clearly that the defect that contributed to his injury was as well known and understood by him as it could be by anyone.” (Emphasis added) I agree with the trial court, and the fact the condition was both known and understood brings the matter squarely within the Restatement rule and our numerous pronouncements that recovery should be denied under such circumstances.
I would affirm the trial court’s ruling.
LARSON and STUART, JJ., join in this dissent.