The opinion
SICKEL, J.
(concurring specially). There is no doubt in my mind that the comparative negligence law is applicable to the facts in this case and that the judgment of the Circuit Court should be affirmed. However, the opinion declares that “So the first question which is presented in this case, and in each case where the statute is involved, is whether the evidence is sufficient to permit the jury to infer or draw as a logical conclusion from the facts that plaintiff was guilty of no more than slight negligence”. Also “The reference to gross negligence in the statute has no significance except in making the comparison between plaintiff’s negligence, which must be no more than slight,
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and the negligence of the defendant, which must be great or gross in comparison.” These declarations of principle follow the rule announced in Friese v. Gulbrandson, 69 S. D. 179, 8 N. W.2d 438 and Kundert v. B. F. Goodrich Company, 70 S. D. 464, 18 N. W.2d 786 . The above rule permits comparison between the negligence of plaintiff and defendant in deciding whether the negligence of defendant was gross or less than gross, but permits no comparison between the negligence of plaintiff and defendant in determining whether plaintiff’s negligence was slight or more than slight.
The language of the statute was taken from the laws of Nebraska, and in the enactment of the statute hére it is presumed that we also adopted the construction which the Supreme Court of Nebraska had previously placed upon it. Woodbine Savings Bank v. Yager, 61 S. D. 1, 245 N. W. 917 . In the case of Disher v. Chicago, R. I. & P. R. Co., 93 Neb. 224 , 140 N. W. 135, 137 , the Supreme Court of Nebraska said: “But if his (plaintiff’s) negligence is slight as compared with that of the defendant, whose negligence is gross, he may recover, and the comparison must be made by the jury.” The court in that case held that the above rule does not affect the judicial power to determine the legal sufficiency of the evidence on any question.
Another leading case in Nebraska is Morrison v. Scotts Bluff County, 104 Neb. 254 , 177 N. W. 158 . There the court said: “If, in comparing the negligence of the parties, the contributory negligence of the plaintiff is found to exceed in any degree that which under the circumstances amounts to slight negligence, or if the negligence of defendant falls in any degree short of gross negligence under the circumstances, then the contributory negligence of plaintiff, however slight, will defeat a recovery.”
Another Nebraska case is Day v. Metropolitan Utilities Dist., 115 Neb. 711 , 214 N. W. 647, 650 , 216 N. W. 556 . There it was said: “If the negligence of defendant was gross and that of plaintiff slight in comparison therewith, he may recover, but the amount of his recovery would be diminished in proportion to the amount of contributory negligence attributable to him.”
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Roby v. Auker, 149 Neb. 734 , 32 N. W.2d 491, 494 , was decided by the Supreme Court of Nebraska in 1946. It was held that negligence under the comparative negligence statute “is essentially relative and comparative, depending on the surrounding facts and circumstances.”
As I understand the language of the statute and the Nebraska decisions on the subject, negligence of plaintiff' and defendant shall be compared for the purpose of deciding whether plaintiff’s negligence is slight or more than slight, as well as on the issue of whether defendant’s negligence is gross or less than gross.
It is true that degrees of negligence cannot be distinguished by definition so as to make a classification practical, and that attempts to do so lead to confusion and uncertainty. It is for this reason that this court has always refused to recognize degrees of negligence as known to the common law. However, this statute introduces the element of comparison, unknown to the common law, under which a relative degree of responsibility is to be submitted to the jury. In my opinion juries are capable of deciding whether the blame-for injury rests upon one party more- than upon another.