(specially concurring).
I specially concur in the majority opinion but must brand my thoughts with my own words as I am not totally in accord with the language in the majority opinion. The standard of care which I would impose upon a motorist driving on a highway in a national forest open-range area in South Dakota would be a general duty of due care. South Dakota Pattern Jury Instruction (Civil) § 70.01 provides in part:
*40It is the duty of every (driver/operator) of a vehicle using a public highway to exercise ordinary care at all times to avoid placing himself or others in danger and to exercise ordinary care at all times to avoid a collision.
This includes the duty to anticipate the presence on the highway of other persons, vehicles, and objects. Limmer v. Westegaard, 251 N.W.2d 676 (S.D.1977); Nugent v. Quam, 82 S.D. 583, 152 N.W.2d 371 (1967). See also, S.D.P.J.I. (Civil) § 70.01 and collected cases thereunder. Livestock, in my opinion, would be “objects.” Such a motorist should particularly anticipate the presence of livestock on the highway where signs have been posted “Livestock at Large.”
The cow was a black Angus, the road was black asphalt, and the night was black. See Findings of Fact I, VI, and IX. Finding of Fact XI provides:
It was difficult for [appellee] to see the black cow against the black asphalt highway; as soon as [appellee] could see the cow, [appellee] immediately put on his brakes to avoid hitting the cow but was unable to avoid hitting the cow and did strike and kill the cow.
Finding of Fact VII provides: “[Appellee] was driving at approximately 45 m.p.h. at the time of the accident and was exercising all due care in his driving.”
Conclusion of Law I provides: “[Appellant] has failed to prove by a preponderance of the evidence that [appellee] was negligent in any way when he was driving his car on Highway 85 on September 7,1980, at approximately 8:00 p.m.” It is not unreasonable to hypothesize that appellee was exercising due care on the highway when the animal was killed. Here, the motorist’s speed was not unreasonable nor imprudent under the existing conditions. Cf., Doyen v. Lamb, 74 S.D. 126, 49 N.W.2d 382 (1951). Obviously, the signs indicating that it was open range and livestock were running at large served as warning to the motorists to, in effect, proceed with due care. And the facts would reveal that the motorist was proceeding with due care. This motorist was enwebbed in a dangerous situation and, through no fault of his own, as he came around a curve, he killed a cow. Surely, he should not be liable therefore. I do not find the trial court’s findings of fact or conclusions of law to be clearly erroneous. Matter of Estate of Nelson, 330 N.W.2d 151 (S.D.1983). Therefore, I would likewise affirm.
Lastly, the black cow should not have been on the black road in the dark of the night in the first instance as this particular cow was not authorized to be grazing on the Black Hills National Forest. It was turned loose to graze on public lands with the knowledge that it would freely roam upon the highways, there being no fence to enclose the cattle from the public highway. It had exiguous legal stature as it was a trespasser ab initio. Finding of Fact III provides:
The black angus cow above-described was grazing on Forest Service property near the highway for which Forest Service property Third Party Defendant Paul Mclnerney had a grazing permit; the particular cow in question was not listed on the grazing permit which authorized cows to graze on the U.S. Forest Service land located near Highway 85.
In other words, this cow was not entitled to any supposed emolument of safety as it was not lawfully entitled to graze on public lands. It is therefore difficult to fathom how the cow owner can assert damages for his lost cow when he apparently knew that the cow had no right to be in that area in the first instance. His cause of action has a faulty springboard.
I would not establish a rule in this state that in open-range country, a motorist must yield to a cow. But I would certainly require a motorist to exercise due care to avoid a collision with a cow, particularly where signs are posted warning the motorist of “Livestock at Large.” Were it otherwise, we would have a rule condoning the cruel conversion of cattle into immediate hamburger on our highways. There is comfort in the rule I subscribe to for it may be applied to a set of facts with certitude yet *41it provides flexibility in a myriad of factual circumstances. It should not be applied where a more specific duty of care is imposed by statute. Thus far, although the State Legislature passed SDCL 40-28-5, known as the Black Hills Open Range Statute, no specific duty of care higher than a general duty of due care has been created by the Legislature.