# Flanagan v. Slattery

> South Dakota Supreme Court · August 21, 1951 · 74 S.D. 92

URL: https://www.frixlaw.com/law-library/cases/6693149

## Case

- **Full name:** FLANAGAN v. SLATTERY
- **Court:** South Dakota Supreme Court
- **Decided:** August 21, 1951
- **Citations:** 74 S.D. 92; 49 N.W.2d 27; 1951 S.D. LEXIS 17
- **Precedential status:** Published
- **Opinion:** Dissent by Rudolph
- **Judges:** Knight, Leedom, Roberts, Rudolph, Sickel, Smith
- **Cited by:** 26 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6693149

## Opinion text

RUDOLPH, P. J.
(dissenting). The reasons that supported the affirmance of the judgment in Roberts v. Brown, 72 S. D. 479, 36 N.W.2d 665 , compel me to disagree with the majority in this case. The plaintiff testified: “I got halfway between this intersection and my driveway and released or pulled back on the gas lever and slowed down and crept along the black line for about thirty feet. At this time I turned around looked over my shoulder and there was no traffic in the west lane and as far back as I knew I had clearance to make it in my driveway. I crept along this black line on the east side about halfway to about 30 feet before my driveway, where I turned into the west lane and gradually made my turn into' my driveway.” The collision occurred at the driveway. It is my view that reasonable men might differ upon the question of whether plaintiff’s acts as above described constitute negligence more than slight.
The comparative negligence law enacted in 1941, Ch. 160, Laws of 1941, requires juries not only to compare negligence but the statute, having no application unless plaintiff is guilty of no more than slight negligence, has introduced into our law the idea that negligence can exist in degrees. After ten years of attempting to apply this law, it becomes evident, I believe, that negligence which is essentially the failure to observe a standard of conduct, cannot satisfactorly be separated into degrees. So long as the present law remains upon the books the courts, no doubt, will make an honest effort to give it effect, but the law, combining as it does two doctrines, i. e., comparative negligence and degrees of negligence, both of which are difficult of application, can achieve no satisfactory results. It would seem that if we are to have a comparative negligence law a more practicable law could be enacted. See the October 1940 issue of the South Dakota Bar Journal, page 200.
SICKEL, J., concurs in the above.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6693149. Public record. Not legal advice.