(dissenting.) The trial court based its decision largely on Schuh v. Fox River Tractor Co., 63 Wis. 2d 728, 743-45, 218 N.W.2d 279, 287-88 (1974). When Schuh was decided, the comparative negligence statute provided that a plaintiff could not recover if the plaintiffs negligence was equal to or greater than that of the defendant. See id. at 733 n. 1, 218 N.W.2d at 282. The law is now that contributory negligence does not bar recovery unless the plaintiffs negligence was greater than that of the defendant. Sec. 895.045, Stats. The Schuh court did not hold that the negligence of the plaintiff in that case was greater than that of the defendant farm machinery manufacturer. The court held only that the trial court was correct in determining that the negligence of the plaintiff equaled or exceeded that of the defendant. Schuh, 63 Wis. 2d at 744, 218 N.W.2d at 287. Schuh is not persuasive.
I accept the trial court’s conclusions that Krantz was negligent, and that credible evidence supports a finding that the forage box was defectively designed so as to render the defendant liable under a strict liability theory. No one would suggest, however, that *409the negligence of Krantz and the negligence of the manufacturer had anything in common. They are necessarily dissimilar and of different kinds.
The apportionment of negligence is ordinarily for the trier of fact. Morgan v. Pennsylvania General Ins. Co., 87 Wis. 2d 723, 732, 275 N.W.2d 660, 665 (1979). The instances in which a court may rule that, as a matter of law, the plaintiffs negligence exceeds or equals that of the defendant are extremely rare. Davis v. Skille, 12 Wis. 2d 482, 489, 107 N.W.2d 458, 462 (1961). And those instances in which the court may make such a ruling are ordinarily limited to cases where the negligence is of a similar kind or character. Id. For this reason, it is only in an unusual case that a court will upset a jury’s apportionment, particularly where the negligence of each party is not of the same kind and character. Jagmin v. Simonds Abrasive Co., 61 Wis. 2d 60, 83-84, 211 N.W.2d 810, 822 (1973), Williams v. Milwaukee & Suburban Transport Co., 37 Wis. 2d 402, 408, 155 N.W.2d 100, 103 (1967), and Mix v. Farmers Mutual Automobile Ins. Co., 6 Wis. 2d 38, 43, 93 N.W.2d 869, 873 (1959), are to the same effect.
In an unusual case, perhaps a court can conclude that where the acts of negligence by the plaintiff and the defendant differ in kind and quality, the negligence of each at least equals that of the other. But in my view, it is the extraordinary case in which a court may hold as a matter of law that the negligence of one party exceeds that of the other where the acts of negligence have nothing in common, as in a product liability case. This is particularly true in a products liability case involving a design defect. This is not an extraordinary case.
*410Accordingly, in my view, the trial court erred when it concluded that the negligence of Krantz exceeded that of the farm machinery manufacturer.