(specially concurring).
Digesting the majority opinion together with the issues and briefs in this case, I principally write to make sure that settled South Dakota law does not become unsettled.
I would sustain this verdict in favor of Berg and against Sukup in the amount of $81,223.56 based upon strict liability.
A “plaintiffs or [a] defendant’s negligence is irrelevant and contributory negligence is not a defense in strict liability.” Smith v. Smith, 278 N.W.2d 155, 160 (S.D.1979). “Strict liability in products liability cases ... relieves the plaintiff of the burden of proving negligence by the manufacturer ... and deprives the defendant of contributory negligence as an affirmative defense.” Jahnig v. Coisman, 283 N.W.2d 557, 560-61 (S.D.1979). Assumption of the risk (although a legitimate defense to strict liability) was, under these facts, a question of fact for the jury. Smith, supra, at 162, Henderson, J., concurring specially.
After return of the verdict and entry of judgment, Sukup filed motions for judgment notwithstanding the verdict and for a new trial. Sukup argued that Berg’s conduct amounted to contributory negligence more than slight and assumption of the risk as a matter of law. In my opinion, these arguments are not well taken.
This $81,223.56 verdict was a general verdict. No one knows upon which theory it was predicated. Simultaneous submission to the jury of theories of both negligence and strict liability will likely confuse jurors and cloud the settled principles of law on both theories. It tends to create murky conceptual waters. The better practice would have been to require a special verdict with interrogatories, that we might be assured the issues were adequately separated. Nevertheless, if a verdict is general in nature and does not permit a determination to be made on which theory the jury allowed recovery, it is presumed the verdict was based on the theory on which it could be sustained. Baker v. Jewell, 77 S.D. 573, 96 N.W.2d 299 (1959).
My suggestion is in keeping with the spirit of past expressions of this Court. “It is sometimes difficult to distinguish defendant’s negligence, the effect of plaintiff’s assumption of risk or his contributory negligence and the exact ground upon which courts may have rested the deci*838sion.” Bunkers v. Mousel, 83 S.D. 45, 49, 154 N.W.2d 208, 210 (1967). See also Platt v. Meier, 83 S.D. 10, 153 N.W.2d 404 (1967).
There can be no doubt that a verdict based upon strict liability could be sustained. Contributory negligence is no defense in a strict liability action. Therefore, there was no error in failing to grant appellant’s motions.
I am authorized to state that WUEST, Circuit Judge, joins in this special concurrence.