(dissenting in part, specially concurring in part).
This was a December 12, 1978 accident and the case was tried on January 21-23, 1987. Hence, approximately nine years of delay. Appellate counsel for plaintiffs is not responsible for this delay, for there was previous counsel for plaintiffs. Defendant’s answer was dated December 2, 1981, and was filed with the Codington County Clerk of Court on July 10, 1984. Said answer alleged, as a defense, the contributory negligence of plaintiff, Douglas K. Beyer, without any mention of alleged contributory negligence by plaintiff Norma Beyer. Defense counsel, to say the least, had adequate time (years) to allege contributory negligence of Norma Beyer, but did not do so. When the plaintiffs made a *773motion, at the close of the evidence, for a directed verdict, it was specifically called to the attention of the court that not one shred of defense had been raised to Norma Beyer’s claim of liability, whereupon defendant moved to amend his answer to allege contributory negligence. Norma Beyer was a passenger and the vehicle was not under her control. This mStion was untimely and should have been denied by the trial court; it was totally stale and it was conceptually obnoxious, for there were no facts to justify such an amendment. Defendant testified that he was in a hurry to get home because there was a storm coming; he testified that he knew the roads were slippery because he skidded while coming to a stop at a stop sign as he entered Highway 212, which was the highway upon which the accident took place; he testified that the weather conditions were very bad, including snow, blowing, and being very cold on that night; he testified that the visibility was such that there were “spots where you couldn’t hardly see at all”; he testified that he proceeded through the town of Watertown at 40 miles per hour under these treacherous conditions; he testified he could not see the clearance lights of the semi until he was about 100 feet from it; the motion for a directed verdict in favor of the plaintiffs and against defendant should have been granted, for the plaintiffs stopped their car, behind the semi, and had parked their car but for a few minutes before Cordell crashed into them with fury. The semitrailer truck had driven part way up a ramp and lost traction and then slid or backed down the ramp, blocking all eastbound traffic on Highway 212. In the left lane on Highway 212, another vehicle was stopped waiting for the traffic lanes to be cleared because of the precarious position of the semitrailer truck. The force of the impact was so great that the seats of the plaintiffs’ automobile were totally broken away from the mounting and the plaintiffs’ automobile was “totalled,” i.e., absolutely destroyed. Plaintiffs both suffered permanent partial disability. At the time that the defendant moved to amend to allege contributory negligence against Norma Beyer, not one negligent act or omission was called to the attention of the trial court by defendant’s counsel to justify the granting of such an amendment. Notwithstanding, the court permitted the defendant to “amend the pleadings to conform to the proof.” There was never any evidence demonstrating that the plaintiffs either had the time to move their vehicle or that it was practical for them to move their vehicle from the lane of traffic.
When objection was made by the plaintiffs to the giving of a contributory negligence instruction, the court ruled in their behalf, even though — -just ten minutes previously — the court had permitted an amendment to the claim of the defense of contributory negligence. The trial court saw fit, however, to give a standard pattern jury instruction on comparative negligence in South Dakota. As a result, in my opinion, of the confusing instructions, an award of damages granted to Norma Beyer of $14,568 was made and $11,980 to Douglas Beyer, notwithstanding medical bills of over $15,000 and permanent injuries to both. Testimony established a 20% permanent partial disability unto Douglas Beyer, and a 16% permanent partial disability unto Norma Beyer. Unfortunately, unfolded is a scenario of long wait at the bar of justice for seriously injured plaintiffs and small compensation because of delay and legal errors.
Indeed, the trial court did abuse its discretion in permitting this amendment. The issues had been joined in this case for six years and defendant had never claimed any contributory negligence on the part of Norma Beyer. She was never permitted, at the trial, an opportunity to defend herself against a claim of contributory negligence, as it was never alleged against her; furthermore, the case was not tried, either expressly or impliedly, on any theory of contributory negligence of Norma Beyer. It does not make any sense to have granted this motion to amend so as to interject an issue of contributory negligence of Norma Beyer into the case and then, some ten minutes later, rule that contributory negligence was not to be instructed upon; but, *774rather, to instruct the jury only upon comparative negligence. In Fredrick v. Dreyer, 257 N.W.2d 835 (S.D.1977), this Court would not tolerate an amendment to an answer adding a defense of contributory negligence where two years elapsed after an answer which originally asserted a general denial only. This case has never been overruled or modified. Here, six years elapsed. I agree with Justice Miller’s rationale as reflected by his special writing on this issue and to his case authorities.
Alluding to the second issue, it is fundamental that a trial court can instruct upon the theory of comparative negligence when it has first been established, by legally sufficient evidence in the record, that there has been contributory negligence. Instruction No. 17A in this case begins: “If the jury should find the plaintiff contributorily negligent, as elsewhere in these instructions defined, the plaintiff may still recover if the jury should find that such contributory negligence of the plaintiff was slight in comparison with the negligence of the defendant.” There was never any instruction, given to this jury, containing a definition of contributory negligence. Furthermore, as covered above, the court had ruled that a contributory negligence instruction was not warranted. We have, therefore, confusing and conflicting instructions resulting in an inadequate award under the circumstances and a miscarriage of justice. Trial courts can only present those issues to the jury, through their instructions, which find support by competent evidence in the record. Some fairly recent cases authored by this special writer include: Frazier v. Norton, 334 N.W.2d 865 (S.D. 1983); Atyeo v, Paulsen, 319 N.W.2d 164 (S.D.1982); Van Zee v. Sioux Valley Hosp., 315 N.W.2d 489 (S.D.1982); Ebert v. Fort Pierre Moose Lodge No. 1813, 312 N.W.2d 119 (S.D.1981); Ryken v. Blumer, 307 N.W.2d 865 (S.D.1981); Wolf v. Graber, 303 N.W.2d 364 (S.D.1981).
On remand, my holding would be that an amendment permitting a defense of contributory negligence against Norma Beyer would not be permitted under the obvious facts of this case. There is no question of fact on contributory negligence concerning her conduct. The old Am.Jur. cite, contained in Justice Sabers’ writing, quoted in Hanisch, is inapposite to the facts at hand. Generic language in that cite is an inadequate peg upon which to hang a hypothesis of contributory negligence against Norma Beyer.