dissenting from the majority and concurring in part in the opinion of Huntley, J.
Products liability cases are without doubt difficult and complex for the trial judges and attorneys who first deal with them, and no less difficult for appellate courts even though blessed with considerably more time in which to reconsider that which has transpired below. Certainly, as I have remarked in prior opinions, our task, though no less difficult, is not as pressured as the rulings a trial judge has to make on the spot. Yet, even in the spacious amount of time this case has commanded our attention, the five of us have not been able to come to an agreement. The jury reached a verdict in favor of Mortensen. The district judge, however, concluded that the case should be retried because of failure to instruct the jury on a “risk-utility” standard. Whether that ruling was correct or incorrect, we all know that in the time which has gone by a retrial could have been had, and the second trial likely would have been, because of the nature of the beast, more quickly and smoothly tried, and perhaps error-free. And, we all know that under the federal system there exists no right of appeal from the grant of a new trial; hence *842the retrial once granted takes place, and ordinarily in short order. If not immediately, it will for certain be over long before the disgruntled party has gone through the time-consuming appellate process in attempting to overthrow the grant of the new trial. It is recognized of course that the appeal here was first taken by Chevron. And it is understandable that Mortensen would naturally cross-appeal. Chevron’s appeal appears to be permissible under the rules promulgated by this Court. I.A.R. 11(a)(4). The net result of the two rules is that Chevron can move for a new trial, be awarded a new trial, and, instead of proceeding with the new trial which it has obtained, put the controversy on hold while it appeals from the denial of its motion for judgment n.o.v., thereby depriving the plaintiff Mortensen of his right to immediately proceed with the second trial which Chevron has obtained. Naturally, while thus delayed, Mortensen could be expected to challenge the granting of the new trial, where otherwise he might not have done so in favor of the lesser expense of the second trial while the matter was all fresh in the minds of the witnesses and the court and counsel remained alert to the very complex law which all had been studying. All of which brings me to say that there is something basically wrong with court-promulgated rules which produce such a result. Obviously there should not be an appeal from an order granting a new trial, and equally there should not be an appeal by the party which obtained the new trial from the court’s refusal to grant defendant a judgment n.o.v.
Justice Huntley, after due consideration, is convinced that “the jury may have reached the right result based on the evidence, the instructions notwithstanding.” I concur in that statement. However, he concludes that because Mortensen did not appeal the ruling under which the trial court granted Chevron's motion for a directed verdict on Mortensen’s theories of negligence, gross negligence, fraud, and strict liability — based upon failure to warn — that it is beyond the power of this Court to uphold the verdict. I am unable to agree that we are so fettered, and in particular am guided by the statement of a unanimous Court in Archer v. Shields Lumber Co., 91 Idaho 861, 868-69, 434 P.2d 79, 86-87 (1967):
This court has frequently held, in effect, that even though certain elements of damages have been erroneously submitted to a jury and erroneous instructions thereon have been given to a jury, such errors will be held non-prejudicial where other evidence is abundant to justify the verdict without taking into consideration the erroneously admitted evidence and the erroneous instructions. Tarr v. Oregon Short Line R.R. Co., 14 Idaho 192, 93 P. 957; Tucker v. Palm-berg, 28 Idaho 693, 155 P. 981; Austin v. Brown Bros. Co., 30 Idaho 167, 164 P. 95; Boise Association of Credit Men v. Royal Insurance Company, 44 Idaho 249, 256 P. 523,; Nichols v. Sonneman, [91] Idaho [199], 418 P.2d 562 (1966). This principle is also recognized in other jurisdictions. See Mclvor v. Mercer-Fraser Company, 76 Cal.App.2d 247, 172 P.2d 758 (1946); Harding v. H.F. Johnson, Inc., 126 Mont. 70, 244 P.2d 111 (1952); Clawson v. Walgreen Drug Co., 108 Utah 577, 162 P.2d 759 (1945).
Thus, because of the verdict rendered by the jury the errors in instructions and admissibility of evidence claimed by the appellant are deemed non-prejudicial and non-reversible.
I am further highly critical of the Court’s rules which require and pertain to the nuisance and expense of filing cross-appeals. Many are the practitioners who have experienced prevailing at trial, notwithstanding errors committed which were prejudicial to their case. He who has prevailed should have no reason to appeal. In fact, in my book, I am unable to see a party who prevails in full as aggrieved, so as to qualify for filing an appeal. But the adverse party does appeal to challenge the judgment which went against him. And, as it turns out, the losing party convinces the Court of prejudicial error adverse to his *843cause. With increasing regularity, at oral argument, it appears that the party who prevailed at trial, despite erroneous rulings which perhaps went to keeping out some of his evidence or allowing in his adversaries’, and who might continue to prevail except for such error, is asked from the Bench, “Did you file a cross-appeal, counsel?” Recognizing that the Court’s rules seem to require respondents to cross-appeal from erroneous rulings which did not prevent them from prevailing below, with all due respect to my rulemaking brethren, I believe the requirement of the rule is in some instances totally absurd — of which this case appears to be a prime example.
Chevron’s various motions for directed verdict or judgment n.o.v. were granted in part and denied in part. After a prolonged appellate review, the majority holds as to the motions not granted by the trial court, the trial court erred, and Mortensen was not entitled to any verdict. Justice Huntley, with greater clarity and more persuasion, sees that the jury verdict is nonetheless sustainable on Mortensen’s other theories — which were discarded by the trial court on Chevron’s motion. Unfortunately, as I read Justice Huntley’s opinion, he does not believe that Mortensen’s verdict at the hands of the jury can be upheld because the prevailing Mortensen did not appeal those adverse rulings — keeping in mind that those adverse rulings did not hurt him either with the jury’s view of his right to recover, or the trial court’s view of his right to recover. (Here, again keep in mind that the trial court’s grant of a new trial to Chevron was solely because the court thought that in fairness Chevron should have had the benefit of a “risk-utility standard” instruction.)
From time to time I have reminded the other members of the Court of precedent which to my mind is far superior to the Court’s rule requiring cross-appeals in these situations. In Rábido v. Furey, 33 Idaho 56, 190 P. 73 (1920), a court which dealt little in promulgating rules but which was long on common sense and logic said this: “Since the appeal was taken from the judgment, and not from a portion thereof, the entire judgment is before the court and subject to review, even though the respondents took no cross appeal.” I have always fully agreed with that concept, and recently have become more fortified in my view of the soundness by an article only recently drawn to my attention which was written by Justice Bakes when he was but a few months out of the practice of law and on first becoming aware of appellate procedures. Justice Bakes wrote:
If one were to draw an analogy with the animal kingdom from an evolutionary point of view, the appellate courts in the United States would have to compare somewhat with the Galapagos Islands. In many respects, both are an evolutionary backwater. While generally the trial courts have evolved a system of rules and practices designed to grant relief where the facts show that a party is entitled to it, the appellate courts still seem to be decided cases upon procedural niceties.
... Rule 54(c) provides that the trial court “shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings.” Thus, after a century of trial and error, we have arrived at the point where at least the trial courts are required to grant the relief to which a party is entitled by the facts which he has proved, regardless of how the matter may have been presented in the pleadings.
... [0]ne need only peruse the decennial digests, Appeal and Error, Key No. 719 et seq., to see the legions of cases and issues disposed of by appellate courts, not on their merits, but upon the failure of the parties or their counsel to comply with some technical procedural nicety. One of the first things which a new appellate judge learns is how to dispose of an issue or a case without actually confronting the issue on the merits____
*844Why, one might ask, have the appellate courts of the United States adhered so tenaciously to such a technical, waiver-oriented type dispositional philosophy which the foregoing quotations exemplify? One reason, of course, is inertia____
... However, even though a new procedure may require greater judicial effort and resources in some cases, the first and foremost goal of any judicial system ought to be that justice is rendered in a given case, and not how efficiently numbers of cases are decided----
... [I]t should be obvious that judicial systems exist to serve litigants, not judges, and the only consideration in any procedural rule ought to be whether or not it is fair to the litigants and promotes substantial justice____
... [T]he old common law concept remains nevertheless in that the Court, at its discretion, may disregard an issue which would otherwise be determinative of the case where the brief of the party does not present it for review, if the Court feels so inclined. And, if the interests of justice require that trial courts “shall grant the relief to which a party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings,” it is difficult to see why appellate courts should not also be so required____
... However, under the present statutes, rules and precedents of the Idaho Supreme Court, many issues are never considered by the supreme court on appeal because of a failure to comply with these technical procedural rules during the course of the trial and the perfection of the appeal.
Bakes, J., Appellate Procedure — An Evolutionary Backwater, 10 Idaho L.Rev. 117-124 (1974) (emphasis added).
The article, the tenor of which is clear and requires no comments, fails to make any mention of the only real problem which has perplexed the bar and caused miscarriages of justice — the taking of a cross-appeal. Clearly the philosophy of the article is to follow Rule 54(c), and on any appeal from the judgment, proceed to evaluate the entire situation, and attempt to come up with substantial justice instead of resorting to “technical niceties.”
For my part, and the least which I would do in this case, fraught with convolution in the district court, and progressing into convulsions in this Court, and with due regard for the difficult nature of the case and its complexities, is to remand to thereupon reinstate the jury verdict and the judgment entered thereon — which is to also suggest that my vote is to not, at this time, embrace the “risk-utility” standard.
If given some additional time for reflection, I would hope that the other members of the Court would join me in changing the rules which allow appeals in situations such as this where the trial court — always closer to the case than anyone but counsel — has seen fit and mete to award a retrial. And more so, the bar would be gratified to see appeals processed with a view toward substantial justice and less obeisance to procedural niceties. To my knowledge, Rábido, supra, has never been interred, but is the precedent which we should apply in lieu of the cumbersome sandbagging rule of cross-appeals.