SMITH, J.
William C. Haase was killed November 25, 1942, as a result of a collision of two motor vehicles. The administratrix of his estate brought this action in May 1945, under SDC 37.22 for the benefit of the next of kin, and alleged that the death was caused by the negligence of defendants. The answer of the defendants contained a general denial, and an allegation that the death was caused by the contributory negligence of the deceased. Trial was had in November 1946. At the close of plaintiff’s case the court granted a motion of defendants for a directed verdict, and a verdict and judgment for defendants resulted. The plaintiff has appealed.
Viewing the record in the light most favorable to plaintiff, we are to determine whether there is any substantial credible evidence which would have supported a verdict of the jury for plaintiff. Hansen v. Isaak, 70 S. D. 529, 19 N. W.2d 521; Lohr v. Watson, 68 S. D. 298, 2 N. W.2d 6 and Wolff v. Stenger, 59 S. D. 231, 239 N. W. 181
In support of the ruling of the trial court the defendants assert that in violation of SDC 44.0324 the deceased left the truck he was driving upon the paved portion of a country highway, although it was practicable to leave it on the eight-foot shoulder of the highway, and unnecessarily exposed himself to danger of harm by lying under and behind the truck so placed while attempting to put a chain on its right rear wheel, which conduct, in the undisputed circumstances, constituted contributory negligence as a matter of law. Of course, this contention assumes negligence on the part of defendants which was a proximate cause of the harm to decedent. We have concluded this contention must be sustained.
Plaintiff cannot recover if the more than slight negligence of the deceased was a legally contributing cause of his death. Ulrikson v. Chicago, M., St. P. & P. R. Co. et al., 64 S. D. 476, 268 N. W. 369 and Friese v. Gulbrandson, 69 S. D. 179, 8 N. W.2d 438. As applicable to this case, con
tributory negligence is conduct on the part of a decedent which falls below the standard to which he should have conformed for his own protection and which was a legally contributing cause, co-operating with the negligence of the defendants in bringing about his death. The standard by which his conduct is tested is that to which a reasonable man would conform under like circumstances. Iverson v. Knorr, 68 S. D. 23, 298 N. W. 28. Contributory negligence is generally a question of fact and to be submitted to the jury for decision; however, if it is a matter of declaring a standard of conduct or of applying such standard to a set of undisputed conduct facts which are of such a nature that reasonable men could not differ in opinion as to whether or not the exhibited conduct conforms to the established standard, then the matter is for the court. Ulrikson v. Chicago, M. St. P. & P. R. Co. et al., supra. And departure from a statutory standard of conduct which is a contributing cause, co-operating with the negligence of defendants in bringing about decedent’s death, will constitute contributory negligence by decedent as a matter of law. Iverson v. Knorr, supra.
A pertinent standard of conduct to which deceased was required to conform is prescribed by statute as follows: “No person shall park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled portion of any highway, outside of a business or residence district, when it is practicable to park or leave such vehicle standing off of the paved or improved or main traveled portion of such highway; * * *” SDC 44.0324.
We turn to a consideration of the undisputed facts established by the testimony of plaintiff’s witnesses, and the cross-examination of defendant Heath.
The collision which caused the death of decedent occurred on November 25, 1942 at a point on U. S. Highway No. 77 about two and one-half miles northwest of Jefferson, Union County, South Dakota. Jefferson is but a few miles north of Sioux City, Iowa, and this highway carries all of the traffic to and through Sioux City from southeastern South Dakota. At the place of collision the highway extends
east and west. It turns about twenty-five degrees to the southwest about 1,500 feet to the west of the place of collision. Travel to the east from this point leads to Jefferson and Sioux City and to the west travel leads to Elk Point. The pavement is 20 feet wide, the shoulders are just a few inches less than 8 feet wide, and there is a 6 or 7-foot slope into the ditch. On the day in question the ditch was filled with snow, and as a result of a rain earlier in the day, the pavement and shoulders were covered with ice. It was cold and a wind was sifting some snow across the pavement. A witness declared it was so slippery he had difficulty in standing up.
At some time between 5 and 6 p. m. an accident occurred at the point in question which precipitated a Model A Ford into the ditch on the north side of the highway and a Chevrolet sedan into the south ditch. The sheriff of Union County had been called. Before he left Elk Point for the scene of the accident, he called the deceased and asked him to follow with his wrecker tow truck. When the sheriff arrived he stopped his car on the shoulder of the road facing east just a few feet east of the Chevrolet which was located in the south ditch with its front end toward the northwest. The sheriff’s car was equipped with a 7-inch blinker light 'near the left rear fender on a level with the bumper. This light cast an intermittent red glare on the pavement, and the blinker itself could be seen at a considerable distance. He had this light and the headlights of his car lighted. Shortly after the sheriff arrived the deceased, driving the wrecker tow truck of his employer, pulled past the sheriff’s car to the east, turned around, came west and backed up in front of the Chevrolet. The sheriff got out of his car and walked over to the truck. The attempt then made to pull the Chevrolet out failed for lack of traction. The sheriff suggested chains. Thereupon the deceased backed his truck up somewhat in preparation for putting on the chains. As it was positioned as he started to work, the truck was at a 25-degree angle with pavement and its right front corner extended out on to the pavement two to three feet. It masked the blinker light on the
sheriff’s car from traffic approaching from the west on the south half of the highway. No flares were put out, and although the sheriff was accompanied by his deputy, no guard was put out to the west to warn traffic of danger. The headlights of the tow truck cast their rays at an angle with the highway and slightly up. It had
'a
cluster of colored lights at the top of its cab.
As the sheriff walked away toward his car, the deceased was lying on the ground at the rear of the truck with his face to the east, and a portion of his body under the truck as he attempted to put the chain on the right rear wheel. After getting into his car the sheriff drove east about 1,000 feet to an intersecting lane, turned around and returned with the idea of placing his lights west of the tow truck. During this trip he saw traffic coming from the west.
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SMITH, J.
William C. Haase was killed November 25, 1942, as a result of a collision of two motor vehicles. The administratrix of his estate brought this action in May 1945, under SDC 37.22 for the benefit of the next of kin, and alleged that the death was caused by the negligence of defendants. The answer of the defendants contained a general denial, and an allegation that the death was caused by the contributory negligence of the deceased. Trial was had in November 1946. At the close of plaintiff’s case the court granted a motion of defendants for a directed verdict, and a verdict and judgment for defendants resulted. The plaintiff has appealed.
Viewing the record in the light most favorable to plaintiff, we are to determine whether there is any substantial credible evidence which would have supported a verdict of the jury for plaintiff. Hansen v. Isaak, 70 S. D. 529, 19 N. W.2d 521; Lohr v. Watson, 68 S. D. 298, 2 N. W.2d 6 and Wolff v. Stenger, 59 S. D. 231, 239 N. W. 181
In support of the ruling of the trial court the defendants assert that in violation of SDC 44.0324 the deceased left the truck he was driving upon the paved portion of a country highway, although it was practicable to leave it on the eight-foot shoulder of the highway, and unnecessarily exposed himself to danger of harm by lying under and behind the truck so placed while attempting to put a chain on its right rear wheel, which conduct, in the undisputed circumstances, constituted contributory negligence as a matter of law. Of course, this contention assumes negligence on the part of defendants which was a proximate cause of the harm to decedent. We have concluded this contention must be sustained.
Plaintiff cannot recover if the more than slight negligence of the deceased was a legally contributing cause of his death. Ulrikson v. Chicago, M., St. P. & P. R. Co. et al., 64 S. D. 476, 268 N. W. 369 and Friese v. Gulbrandson, 69 S. D. 179, 8 N. W.2d 438. As applicable to this case, con
tributory negligence is conduct on the part of a decedent which falls below the standard to which he should have conformed for his own protection and which was a legally contributing cause, co-operating with the negligence of the defendants in bringing about his death. The standard by which his conduct is tested is that to which a reasonable man would conform under like circumstances. Iverson v. Knorr, 68 S. D. 23, 298 N. W. 28. Contributory negligence is generally a question of fact and to be submitted to the jury for decision; however, if it is a matter of declaring a standard of conduct or of applying such standard to a set of undisputed conduct facts which are of such a nature that reasonable men could not differ in opinion as to whether or not the exhibited conduct conforms to the established standard, then the matter is for the court. Ulrikson v. Chicago, M. St. P. & P. R. Co. et al., supra. And departure from a statutory standard of conduct which is a contributing cause, co-operating with the negligence of defendants in bringing about decedent’s death, will constitute contributory negligence by decedent as a matter of law. Iverson v. Knorr, supra.
A pertinent standard of conduct to which deceased was required to conform is prescribed by statute as follows: “No person shall park or leave standing any vehicle, whether attended or unattended, upon the paved or improved or main traveled portion of any highway, outside of a business or residence district, when it is practicable to park or leave such vehicle standing off of the paved or improved or main traveled portion of such highway; * * *” SDC 44.0324.
We turn to a consideration of the undisputed facts established by the testimony of plaintiff’s witnesses, and the cross-examination of defendant Heath.
The collision which caused the death of decedent occurred on November 25, 1942 at a point on U. S. Highway No. 77 about two and one-half miles northwest of Jefferson, Union County, South Dakota. Jefferson is but a few miles north of Sioux City, Iowa, and this highway carries all of the traffic to and through Sioux City from southeastern South Dakota. At the place of collision the highway extends
east and west. It turns about twenty-five degrees to the southwest about 1,500 feet to the west of the place of collision. Travel to the east from this point leads to Jefferson and Sioux City and to the west travel leads to Elk Point. The pavement is 20 feet wide, the shoulders are just a few inches less than 8 feet wide, and there is a 6 or 7-foot slope into the ditch. On the day in question the ditch was filled with snow, and as a result of a rain earlier in the day, the pavement and shoulders were covered with ice. It was cold and a wind was sifting some snow across the pavement. A witness declared it was so slippery he had difficulty in standing up.
At some time between 5 and 6 p. m. an accident occurred at the point in question which precipitated a Model A Ford into the ditch on the north side of the highway and a Chevrolet sedan into the south ditch. The sheriff of Union County had been called. Before he left Elk Point for the scene of the accident, he called the deceased and asked him to follow with his wrecker tow truck. When the sheriff arrived he stopped his car on the shoulder of the road facing east just a few feet east of the Chevrolet which was located in the south ditch with its front end toward the northwest. The sheriff’s car was equipped with a 7-inch blinker light 'near the left rear fender on a level with the bumper. This light cast an intermittent red glare on the pavement, and the blinker itself could be seen at a considerable distance. He had this light and the headlights of his car lighted. Shortly after the sheriff arrived the deceased, driving the wrecker tow truck of his employer, pulled past the sheriff’s car to the east, turned around, came west and backed up in front of the Chevrolet. The sheriff got out of his car and walked over to the truck. The attempt then made to pull the Chevrolet out failed for lack of traction. The sheriff suggested chains. Thereupon the deceased backed his truck up somewhat in preparation for putting on the chains. As it was positioned as he started to work, the truck was at a 25-degree angle with pavement and its right front corner extended out on to the pavement two to three feet. It masked the blinker light on the
sheriff’s car from traffic approaching from the west on the south half of the highway. No flares were put out, and although the sheriff was accompanied by his deputy, no guard was put out to the west to warn traffic of danger. The headlights of the tow truck cast their rays at an angle with the highway and slightly up. It had
'a
cluster of colored lights at the top of its cab.
As the sheriff walked away toward his car, the deceased was lying on the ground at the rear of the truck with his face to the east, and a portion of his body under the truck as he attempted to put the chain on the right rear wheel. After getting into his car the sheriff drove east about 1,000 feet to an intersecting lane, turned around and returned with the idea of placing his lights west of the tow truck. During this trip he saw traffic coming from the west. A car passed on east. He then saw that a truck traveling east had just passed the tow truck of deceased and was stopping. He drove up to it as the driver was alighting and in strong language told him to move on as they did not want another accident. The trucker followed his advice.
When the sheriff reached the tow truck he found it had been backed down into the ditch at a right angle with the pavement and immediately to the west of the Chevrolet. Its right front wheel rested on the neck of the deceased. Death had probably come instantaneously.
Thereupon the sheriff sought to overtake the trucker with whom he had just talked. He caught up with him and followed him into Jefferson where he stopped. The driver was the defendant Heath. He readily admitted that he had felt a jar as he passed the tow truck. His testimony as an adverse witness at the trial disclosed that he was driving from Sioux Falls with a semi-trailer truck carrying a double deck of hogs. Coming out of Elk Point he was preceded by an automobile. He did not attempt to pass it. At times the car would draw away from him and then as it slowed down he would roll up to it, but mostly he drove at a distance of from 200 to 300 feet from the car. He was watching the road ahead but did not observe the road ahead of the car. After they had rounded the curve, above de
scribed, defendant Heath noticed the car ahead slow, down and turn out for something. He followed it but rolled up to within 75 feet of it as it slowed and turned out. He did not see the tow truck until he was 100 feet or less from it. He did not put on his brakes because he thought that would put him into the ditch. At the moment of his discovery of the tow truck, or immediately thereafter, he felt his truck slip. He then “shifted into third and stepped on it to straighten it out.” As he straightened he felt a slight jar at the right rear of his trailer, and came to a stop to investigate. As he alighted the sheriff ordered him on. He neither saw deceased, nor did he know that he had harmed any one until so advised by the sheriff. The only mark left by the collision was a bent right front lamp on the tow truck of deceased, and a small broken rod on the right rear of the trailer of defendant.
The deceased had been engaged in operating this wrecker for a number of years and had served many motorists on the highway in question. He was thoroughly familiar with the highway and with the traffic it carried.
A seeming contempt for a peril with which he was thoroughly familiar was a contributing cause of the death of the decedent. He took an unnecessary risk. He placed his truck to that it obstructed a portion of the 20-foot ribbon of pavement. No reason is or can be suggested which justified him in failing to remove his truck at least to the 8-foot shoulder while he was putting on his chains.' In so doing he failed to conform to the statutory standard of conduct prescribed by SDC 44.0324. Duncan v. Madrid, 44 N. M. 249, 101 P.2d 382; Kassela v. Hoseth, 217 Wis. 115, 258 N. W. 340; Huston v. Robinson, 144 Neb. 553, 13 N. W.2d 885. He knew the position of his car because he had placed it. He knew that it extended on to the pavement and that it masked the blinker light on the sheriff’s car from the right hand, eastbound traffic which his truck obstructed. He knew of the heavy load of trucking and other traffic which traveled that way. The hazard added by the ice was apparent. Because of the ice the most careful driver coming from the west was a source of danger. He
knew that no warning flares or guard had been placed to the west. He must have known that positioned as he was, the sheriff offered him little protection. In the face of all of this he crawled under his truck to put a chain on its right wheel. If he had not been under or behind the truck or if it had not extended on to pavement, decedent would not have been injured.
One may not unnecessarily place and maintain oneself in such a dangerous position and then require others who failed to discover his peril to respond in damages. Dragotis v. Kennedy et al., 190 Minn. 128, 250 N. W. 804; Descombaz v. Klock, 58 S. D. 173, 235 N. W. 502; Staib v. Tarbell, 65 S. D. 304, 273 N. W. 652; 38 Am. Jur. 859, Negligence, § 181.
It it suggested that deceased did not know the sheriff was going to drive east and turn around. The record does not disclose whether deceased saw the sheriff drive east, or whether he knew he was going. We are satisfied, however, that it was negligence as a matter of law for deceased to conduct himself as he did with the sheriff in place, and that such negligence was a contributing cause to his death. The sheriff withdrew some of the protection his presence was affording deceased. No principle of law with which we are familiar declares that negligence is insulated as a proximate cause of harm by the intervening act of such a third person which only serves to increase the degree of hazard attending such negligent conduct.
In the absence of any discussion of the point, we understand the parties to agree that if the deceased was contributorily negligent, his negligence was more than slight. We are in accord with that view and so hold. Cf. Friese v. Gulbrandson, supra.
Able counsel has elected not to argue that the continuing negligence of decedent in placing and maintaining himself in a position of peril has been neutralized and rendered legally remote as a cause of his death by the doctrine of last clear chance. It may be doubtful, therefore, whether we are obligated to enter that field of inquiry in our search for possible support for a verdict favorable to plaintiff.
However, because that theory has been put forward by our colleague, we have determined to briefly indicate our reasons for concluding that, tested by that doctrine, the evidence is insufficient to support a verdict for plaintiff.
A consideration of the application of the doctrine of last clear chance in this case, should be approached, we think, in the light of the crucial undisputed fact 'that deceased retained the ability to act in self-protection after he negligently and unnecessarily placed himself in a position of obvious peril under his truck. By the exercise of ordinary care thereafter he could have observed on-coming dangerous traffic and have extricated himself in time to have avoided injury. This indisputable ability to act in self-protection is important because to fail to observe approaching danger and to extricate himself constituted continuing negligence on his part. The doctrine of last clear chance, as applied in this jurisdiction, will only neutralize such continuing and concurrent negligence of the injured person and permit recovery for his injuries or death notwithstanding his negligence, if the evidence will support an inference that defendant actually discovered the peril to such person, and realized or had reason to realize that such person was oblivious to his peril, and injury resulted because defendant thereafter failed to act with reasonable care in attempting to avoid such injury. Nielsen v. Richman, 68 S. D. 104, 299 N. W. 74; McFarland v. Chicago, M.
& St.
P. R. Co., 51 S. D. 85, 212 N. W. 493.
Because of this retained ability of deceased to act in self-protection the primary negligence of defendant, including an assumed breach of his duty to discover the situation of deceased, is not of significance. “The great weight of judicial authority denies the application of the last clear chance doctrine in the situation where the defendant, while under a duty to discover the danger to the injured person, did not actually discover it and the injured person was physically able to escape from the peril at any time up to the moment of impact.” 38 Am. Jur. 909, § 224, and see Thompson v. Porter, 21 Wash.2d 449, 151 P.2d 433.
In Nielsen v. Richman, supra [68 S. D. 104, 299 N. W. 76], we approved the rule appearing in Restatement, Torts, § 480, viz.,:
“A plaintiff who, by the exercise of reasonable vigilance could have observed the danger created by the defendant’s negligence in time to have avoided harm therefrom, may recover if, but only if, the defendant
“(a) knew of the plaintiff’s situation, and
“(b) realized or had reason to realize that the plaintiff was inattentive and therefore unlikely to discover his peril in time to avoid the harm, and
“(c) thereafter is negligent in failing to utilize with reasonable care and competence his then existing ability to avoid harming the plaintiff.”
The contributory negligence of deceased having been established and it appearing without dispute that by the exercise of reasonable vigilance the deceased could have observed defendant bearing down upon him along the south side of the icy pavement in time to have removed himself from his position of peril, the burden was on plaintiff. (Gregory v. Maine Cent. R. Co., 317 Mass. 636, 59 N. E.2d 471, 159 A. L. R. 714, 724) by direct or circumstantial evidence, to present facts from which a jury could infer all of the matters listed under (a) (b) (c) of the foregoing rule in order to claim the benefit of the doctrine of last clear chance. This, we think, he failed to do. Hence we conclude that the doctrine was not invoked by the evidence.
Because the undisputed facts establish the contributory negligence of decedent and hence will not support a verdict for plaintiff, the ruling and judgment of the trial court must be and is affirmed.
RUDOLPH and HAYES, JJ., concur.
ROBERTS, P.J., concurs specially.
SICKEL, J., dissents.