(dissents).
I dissent.
Coop’s contributory negligence defense is based in large part upon SDCL 49-32-111 and SDCL 49-32-12.2 Violation of a statute is negligence as a matter of law if the statute was intended to protect the class of persons injured against risk of the type of harm which in fact occurred. Walz v. City of Hudson, 327 N.W.2d 120 (S.D.1982); Weeks v. Prostrollo Sons, Inc., 84 S.D. 243, 169 N.W.2d 725 (1969). Violation of a statute will result in contributory negligence as a matter of law if the statute was intended for the benefit of the defendant and the violation was a proximate cause of plaintiff’s injuries. Alley v. Siepman, 87 S.D. 670, 214 N.W.2d 7 (1974).
Arguably, the Lovells did violate SDCL 49-32-11, as the well pipe came into contact with the electrical lines. The thrust of Lovells’ case, however, was that Coop was negligent in constructing the transmission lines near the Lovells’ well. In such a case, both parties could be held negligent.
In this regard, South Dakota has adopted a comparative negligence standard. SDCL 20-9-2. The jury was instructed on this standard as follows:
NO. 18
If the jury should find the plaintiffs were contributorily negligent, as elsewhere in these instructions defined, the plaintiffs may still recover if the jury should find that such contributory negligence of the plaintiffs was slight in comparison with the negligence of the defendant. This rule has no application unless such contributory negligence of the plaintiffs was slight in comparison with the negligence of the defendant. If the jury considers that such contributory negligence of the plaintiffs exceeds that which in the circumstances is slight negligence in comparison with the negligence of the defendant, the plaintiffs *401cannot recover. If the jury should find that the plaintiffs are contributorily negligent, but under the rule just stated, the plaintiffs are still entitled to recover, then the damages to be awarded to the plaintiffs must be reduced in proportion to the amount of the plaintiffs’ contributory negligence.
Under our comparative negligence standard, plaintiffs may recover if their negligence was slight in comparison to defendant’s negligence. Lovells argued that their negligence, if any, was indeed slight when compared to Coop’s. Lovells claim that they would not have been placed in a position to be contributorily negligent if Coop had not negligently constructed the electrical lines. Therefore, even if the Lovells were contributorily negligent as a matter of law, they may still recover if their negligence was only slight in comparison with Coop’s. I cannot say that Lovells were guilty of more than slight negligence as a matter of law. “Questions relating to negligence and contributory negligence are questions of fact for the jury in all except the rarest of instances.” Stoltz v. Stonecypher, 336 N.W.2d 654, 657 (S.D.1983); see also Hoffman v. Royer, 359 N.W.2d 387 (S.D.1984). This case does not present one of those rare instances in which contributory negligence as measured against Coop’s negligence was not a matter for the jury. Further, we have before us no indication of whether the jury did find Roger and Earl contributorily negligent. The jury returned a general verdict in the Lo-vells’ favor. No special interrogatories were given to the jury. We therefore have nothing in the record to indicate the jury found any contributory negligence on the part of the Lovells.
Coop also claims that Lovells assumed the risk in choosing to pull their well near a functioning transmission line. The question of whether a plaintiff assumed the risk is ordinarily a jury question. Berg v. Sukup Mfg. Co., 355 N.W.2d 833 (S.D.1984).
The jury was instructed on the issue of assumption of the risk as follows:
NO. 20
It is the law that a person cannot be heard to complain of a dangerous condition, situation or conduct when such person with knowledge thereof voluntarily places himself in a position or voluntarily continues in a position wherein he knows of hazard of injury or damage to himself from such dangerous condition, situation or conduct. In such a case, such person is deemed to have assumed the risk of such injury or damage and is not entitled to any recovery for the same.
Once again, I cannot say that the Lovells assumed the risk as a matter of law in pulling the well near the electrical lines.
Accordingly, I would affirm the judgment of the trial court.
. SDCL 49-32-11 provides:
No person may, individually or through an agent or employee, and no person as an agent or employee of another person, may perform or permit another to perform any function or activity if it is probable that during the performance of such activity any person or any tool, equipment, machinery or material engaged in performing work connected with such activity, will move to, or be placed in, a position within six feet of any high voltage overhead electrical line or conductor. A violation of this section is a Class 2 misdemeanor.
. SDCL 49-32-12 provides:
No person may, individually or through an agent or employee, and no person as an agent or employee of another person, may store, operate, erect, maintain, move or transport any tools, machinery, equipment, supplies, materials, apparatus, house or other building, or any part thereof, within six feet of any high voltage overhead conductor. A violation of this section is a Class 2 misdemeanor.