(concurring in part and concurring in result in part).
I agree with the majority opinion on Issue I. The fact that the blacked topped road was a through highway, as designated by SDCL 32-29-2 was not only relevant but critical. This fact should have been considered by the trial court when comparing the negligence of the parties. However, the test used by the trial court under Issue II was not only correct but in accord with Lovell and Nugent. As stated in Lo-vell at 399:
The comparison is made with the negligence of the defendant, rather than with the ordinarily prudent person. Crabb v. Wade, 84 S.D. 93, 97-98, 167 N.W.2d 546, 549 (1969). However, the norm of conduct of an ordinary, reasonably prudent person must be considered in determining the extent to which each party fell below that standard and, thus, was found negligent or contributorily negligent. Nugent v. Quam, 82 S.D. 583, 594-95, 152 N.W.2d 371, 377 (1967).
The trial court complied with the test, but simply failed to insert the Issue I factor in the proper light or give it the proper consideration. Therefore, I would reverse and remand for the application of the comparative negligence statute, SDCL 20-9-2, with proper consideration for the Issue I factor.
Justice MORGAN joins in this special writing and I am authorized to so state.