Burmeister v. Youngstrom , 81 S.D. 578 ( 1965 )

BIEGELMEIER, Judge

(concurring).

I concur in the opinion. However, as counsel cited, discussed and the opinion mentions Friese v. Gulbrandson, 69 S.D. 179, 8 N.W.2d 438, this impels some comment. Our comparative negligence statute was patterned after a Nebraska statute, and it has been questioned whether Point 7 of the Friese opinion correctly followed the construction the Nebraska Supreme Court had placed on its statute if the interpretation in our Friese opinion was to deny recovery by considering the negligence of one of the parties standing alone as slight without comparing it to that of the other party. See Dwyer v. Christensen, 76 S.D. 201, 75 N.W.2d 650, 56 A.L.R.2d 734. The Nebraska court construction was, the negligence of the parties "must be compared one with the other in determining an issue of slight and gross negligence." Bezdek v. Patrick, 167 Neb. 754, 94 N.W.2d 482. See also Comparative Negligence, an article by Judge Hanson in the July 1962 South Dakota Bar Journal.

While Judge Homeyer's opinion mentions the Friese case in a different aspect and the construction has now been settled by our legislature when they adopted the Nebraska standard in Ch. 149, of the Laws of 1964, this concurring note is added. Judge HANSON is in agreement with these views.