(dissenting):
I concur in that portion of the majority-opinion which brings this Court in line with the majority of the jurisdictions in the United States which have adopted a doctrine of strict liability in tort in products liability actions. I further agree that contributory negligence in the sense of failure to discover the defect in a product or to guard against the possibility of its existence is not a defense to strict liability in tort as the majority opinion clearly points out. However, I cannot agree with the narrow view taken of the instructions which the majority has done.
The trial court gave 54 instructions to the jury. The first 15 were stock instructions dealing with the general statement of the case, burden of proof, and other stock housekeeping type instructions. Instructions 16 through 28 dealt with the plaintiff’s theory of express and implied warranty. Instructions 29 through 40 dealt with the plaintiff’s theory of negligence and the defense of contributory negligence. Instructions 41 through 46 dealt with plaintiff’s theory of strict liability in tort. Instructions 47 through 52 dealt with damages, and instructions 53 and 54 dealt with electing the foreman of the jury and admonishing the jury to consider the instructions as a whole. This last-mentioned instruction read as follows:
“INSTRUCTION NO. 53
“All of the instructions are to be taken by you and considered as a whole. None of them states all of the law of the case, but all of them, when taken together, state all of the law that is to be applied to the facts in this case as the jury may find them to be.” Rptr. Tr., Vol. VIII, p. 1563.
It has always been the law in this state that this Court on appeal, in reviewing the adequacy of jury instructions, will consider the instructions as a whole and not on a fragmentary basis. As stated in Blaine v. Byers, 91 Idaho 665, 429 P.2d 397 (1967), at page 674, 429 P.2d at page 406:
“The jury will be presumed to have considered the instructions as a whole; consequently, on appeal, jury instructions will not be considered piecemeal. [Cases cited].”
See also Davis v. Bushnell, 93 Idaho 528, 465 P.2d 652 (1970).
The majority opinion would reverse this two week long trial because the following sentence in instruction number 34, “One who is guilty of contributory negligence may not recover from another for the damage suffered,” is not limited to plaintiff’s theory of negligence. Instructions 34, 35 and 36 are set out below.1 Instruc*679tions 34 and 35 are general statements of the law of contributory negligence, which the majority opinion describes as correct statements of the law. Instruction number 36 then applies the facts of this case to these general statements of law and specifically limits the application of the doctrine to Shields by stating that if Shields was negligent and if that negligence was the proximate cause of the resulting damage, “then Shields may not recover anything from anyone on their theory of negligence.” (Emphasis added). If the numbers to instructions 34, 35 and 36 were eliminated, and they were all combined into one instruction, it would be difficult to see how it could be argued that such an instruction advised the jury that the contributory negligence of Shields was a defense to anything other than their theory of negligence.
This conclusion is further supported by instructions 41 and 42 regarding strict liability. These instructions set out the element of plaintiff’s proof and instructs the jury that the defendant Morton Chemical Co. is liable to plaintiffs for any injury suffered by them if the plaintiffs establish five things.2 This instruction told the jury that if the plaintiffs proved each of these elements that it was entitled to recover. There is no reason to assume that the jury would ingraft other requirements or defenses into that instruction.
Perhaps the most cogent reason for holding that instruction 34, when viewed together with 35 and 36, was not erroneous, much less prejudicial, is the fact that this same argument was made to the trial court after the jury verdict in a motion for a new trial. At that time the trial court had before it the question of whether or not the handling of the instructions on contributory negligence in instructions 34, 35 and 36 created an erroneous impression in the minds of the jury. All who have spent much time trying cases to juries know that in those closing moments of a long trial, the most impressionistic event that occurs is not the intoning of instructions to a jury, but the arguments of counsel which finally put the whole case together and demonstrate to the jury why, on the law and the facts, a given result should obtain. This case was tried by extremely competent counsel which the record before both the trial court and this Court amply demonstrates. Had counsel for the defendants argued to the jury in his closing argument that contributory negligence as defined in instructions 34 and 35 was a defense to other than the plaintiff’s theory of negligence as explained in instruction 36, I am sure that the motion for new trial would have included such an allegation, and the trial court, who then had the case freshly in memory, would have reacted appropriately. The record is devoid of any indication that the counsel *680argued the case in any other manner than as instruction 36 indicates, i. e., that the negligence of Shields only barred a recovery in Shields on its negligence theory.
This was- a complex case, the trial of which took two weeks. In the press of time, neither counsel nor the trial courts can be expected to perform their functions perfectly. The law does not require it. The Supreme Court of the United States stated many years ago that a person “is entitled to a fair trial, but not a perfect one.” 3 The failure to qualify that one sentence in instruction 34 can hardly be said to have made this two week trial unfair.
The problem which the majority opinion points up is really only a part of a larger problem faced by trial courts in instructing juries in cases involving inconsistent claims, which under Rule 8(e)(2) of the Idaho Rules of Civil Procedure may be joined together in one complaint. While court and counsel have little problem in dealing with multiple inconsistent legal theories, juries do not always possess the sophistication necessary to make the critical distinctions. The grouping together of instructions according to the various theories, as the trial court did in this case, is one way to help the jury cope with this problem. An even better method might be to group the instructions on a given theory together and then instruct a jury that the instructions relating to that particular theory of law, naming them by number, relate solely to the plaintiff’s or defendant’s particular theory, and to none other. Thus, in this case, the trial court could well have advised the jury that the plaintiff was proceeding on three separate theories which contained inconsistent proof requirements; that instructions numbers 1 through 15 and 53 and 54 applied to all of plaintiff’s claims, but that instructions 16 through 28 applied only to plaintiff’s warranty theories; instructions 29 through 40 applied only to plaintiff’s negligence theories; instructions 41 through 46 applied only to plaintiff’s strict liability theories; and that instructions 47 through 52 applied to the issue of damages if the jury arrived at that issue. In the absence of some such approach to instruction of juries in cases involving inconsistent theories, we will no doubt be called upon regularly to do what the majority has done in this case.
DONALDSON, J., concurs.. “INSTRUCTION NO. 34. Contributory negligence is negligence on the part of a person claiming damages, which, cooperating with the negligence of another, helps in proximately causing the injury of which the former thereafter complains.
“You will note that in order to amount to contributory negligence, a person’s conduct must be not only negligent, but also one of the proximate causes of his damages.
“One who is guilty of contributory negligence may not recover from another for the damage suffered.
“The reason for this rule of law is not that the fault of one justifies the fault of another, but simply that there can be no apportionment of blame and damages among tlie participating agents of causation.
“INSTRUCTION NO. 35 Actual knowledge under the defense of contributory negligence is not a requirement. It is sufficient that the party allegedly guilty of contributory negligence, knew or in the exercise of reasonable care should have known of the risk that his acts or failure to act would expose him to.
“INSTRUCTION NO. 36 If you find that Shields was negligent in installing or operating the Panogen MC-R Treater or in applying the Panodrin A-13 treat, and that such negligence was a proximate cause of the resulting damage, then Shields may not recover *679anything from anyone on their theory of negligence.” Rptr. Tr„ Yol. VIII, pp. 1552-1553.
. “INSTRUCTION NO. 42 The defendant, Morton, is not required under the law so to create and deliver its product as to make it accident proof; however, it is liable to the plaintiffs for any injury suffered by them if the plaintiffs establish by a preponderance of the evidence all of the facts necessary to prove each of the following conditions:
“FIRST: The defendant olaced the chemical or Panogen Treater, or both, in question on the market for use, and the defendants knew, or in the exercise of reasonable care should have known, that the particular chemical and treater, or both, would be used without inspection for defects in the particular part, mechanism or design which is claimed to have been defective;
“SECOND: The chemical or treater, or both, were defective in design or manufacture at the time they were placed on the market and delivered;
“THIRD: The plaintiffs were unaware of the claimed defect;
“FOURTH: The claimed defect was a proximate cause of any such injury to the plaintiffs occurring while the chemical or treater, or both, were being used in the way and for the general purpose for which they were designed and intended, and,
“FIFTH: The defect, if it existed, made the chemical or treater or both, unreasonably dangerous and unsafe for their intended use on beans which plaintiffs were treating.” Rptr. Tr., Vol. VIII, pp. 1556-1557.
. Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 97 L.Ed. 593 (1953).