(concurring specially).
In the recently released Treib v. Kem, 513 N.W.2d 908 (S.D.1994), the defendant backed out of his driveway into traffic and collided with a passing motorist. Via directed verdict, the defendant was found negligent. However, the jury found that the plaintiff was contributorily negligent. Trial court thereafter declined to grant a new trial or grant a motion for a judgment notwithstanding the verdict. This Court affirmed the *35trial court. Both Justice Sabers and I dissented agreeing that the evidence did not support the jury’s finding that the plaintiffs alleged negligence was “more than slight,” when compared to the defendant’s negligence.
Before this Court is another negligence-backing case where the jury “has granted the right of way to [Jerzak] while penalizing [Junge] for unfortunately being in the way of a reckless driver.” Treib, 513 N.W.2d at 918 (Henderson, J., dissenting). As SDCL 32-30-20 provides, “The driver of a vehicle may not back the vehicle unless such movement can be made with safety and without interfering with other traffic.” Although it would not grant Junge’s motion for judgment notwithstanding the verdict, the trial court wisely ordered a new trial, acknowledging that Jerzak was negligent as a matter of law. This time, however, our Court agrees that a new trial under this set of facts is warranted. I concur.. There is no question of fact that this legally drunk defendant was negligently backing his vehicle against the flow of traffic. DeBerg v. Kriens, 149 N.W.2d 410 (S.D.1967).
I likewise concur with the majority that the contributory negligence issue should not be presented to the jury. No substantial, credible evidence supports the original contributory negligence verdict. Fajardo v. Cammack, 322 N.W.2d 873, 875 (S.D.1982). Junge’s alleged contributory negligence was not “more than slight” as compared to Jerzak’s reckless behavior. Estate of He Crow v. Jensen, 494 N.W.2d 186 (S.D.1992); Nugent v. Quam, 82 S.D. 583, 152 N.W.2d 371 (1967). Rather, Junge had the right to assume that Jerzak would exercise due care and obey the law. Musilek v. Stober, 434 N.W.2d 765 (S.D.1989). The right rationale has prevailed this time.
As the call for a new trial has been upheld, I find it unnecessary to address Issue II of the Notice of Review concerning another reason for upholding a new trial, a ground not mentioned by Judge Timm to support his order.