(dissenting).
The majority opinion treats plaintiff’s petition as purely negligence (tort) action *386and therefore regards the bailor-bailee relationship as wholly immaterial to the application of the tort principles involved. The rigid Aristotelian logic evidenced by the trial court and quoted by the majority is unnecessary and inappropriate to a case of this kind.
Had Berhow sued only the bailor Jens-vold it is inconceivable the resulting posture of the case would have generated this result. But because Berhow exercised his right to sue both Jensvold and Kroack, the driver of the colliding auto, it does not or should not mean the interplay of applicable duties and rights are the same with respect to both defendants. The trial court’s dilemma in this situation is understandable but we submit its resolution is incorrect.
The jury, despite the inadequate instructions, noted infra in division II, saw the necessary distinction as to the relationship between Berhow and Kroack on the one hand and Berhow and Jensvold on the other hand. It is true Berhow, as to Kroack, could be found guilty of a form of statutory contributory negligence as a matter of law. But, as the jury recognized, this was not necessarily a proximate cause of the accident and loss as between the bailor and bailee.
I. In pararaph 2 of the petition Berhow alleged “this plaintiff had rented for a good and valuable consideration from Jensvold, Inc., a 560 Farmall Tractor for use upon his farm and while proceeding to his home from the Jensvold, Inc. establishment from which it was rented * * * was hit from behind * * This allegation was admitted by Jensvold. This bailor, by amendment to answer, affirmatively alleged Ber-how was contributorially negligent because he operated the leased tractor on a public highway without a lighted rear lamp exhibiting a red light plainly visible from a distance of 500 feet to the rear in violation of § 321.387, The Code; and operating said tractor in this condition after dark in violation of § 321.398.
Before trial Berhow moved to strike this defense, pointing out to the court “it was the duty and obligation of Jensvold, Inc. to have this tractor equipped with such a light and its failure to do so cannot be set as a defense to the Petition of this plaintiff.” In resistance, Jensvold alleged,
“That the duty of the plaintiff not to operate a motor vehicle upon the highway without displaying a red light is a separate and independent duty based upon a statutory requirement, and has no connection or relationship to the separate duty, if any, to furnish a motor vehicle equipped with such a light.”
Berhow’s motion was overruled.
In instruction 15 trial court referred to the allegations of Berhow’s claimed negligence, set out the statutory requirement of a rear red light on a night-operated tractor, and stated “A failure to comply with this provision of law constitutes negligence.” This instruction was necessitated by a counterclaim of the other driver against Berhow, which claim is not otherwise relevant here.
In instruction 16 trial court defined proximate cause in the usual terms including the concept that the proximate cause is “a moving or producing cause.”
By answer to special verdict the jury found Berhow guilty of negligence, as was plainly mandated by instruction 15. However, when inquiry was made by special verdict whether Berhow’s negligence was “either the sole or a concurring proximate cause of the collision” the jury answered “No.”
Clearly, jury found the “moving or producing cause” of the collision was Jens-vold’s negligence in furnishing the faultily equipped tractor. By application of common sense and reason the jurors must have found plaintiff’s unknowing but matter-of-law “negligence” under the doctrine of Kisling v. Thierman, 214 Iowa 911, 243 N.W. 552 (1932) was not the moving or produc*387ing cause: that plaintiff and tractor together merely created the instrument by which Jensvold’s continuing negligence arrived at the place and time of collision.
Trial court first entered judgment against Jensvold and in favor of Berhow for the damages returned by the jury. Jensvold filed motions for judgment notwithstanding the verdict, and in the alternative, for new trial. While the majority states the first motion was “absent any objection by Berhow” the record clearly indicates Ber-how’s counsel appeared in resistance to the motion. There is no rule requiring a party to resist within any specified time motions under rules 243 and 244, Rules of Civil Procedure. Resistance can be made at the hearing. Sandler v. Pomerantz, 257 Iowa 163, 131 N.W.2d 814 (1964); 56 Am.Jur. 2d, Motions, Rules, and Orders § 20, p. 16; 60 C.J.S., Motions and Orders § 33, p. 43. Jensvold’s alternative motions abandoned its pre-trial theory when, resisting Ber-how’s motion to strike affirmative defense, it alleged Berhow’s claimed negligence and Jensvold’s negligence had “no connection or relationship.” To the contrary, Jens-vold’s post-trial motion argued the “duty of plaintiff Berhow was correlative with and the same as the duty of the defendant Jensvold with reference to seeing that a red light was on the rear of the tractor.” Trial court adopted this reasoning, held Berhow contributorially negligent as a matter of law under the Kisling rule, and entered judgment for defendant Jensvold.
Appellant Berhow argues in his initial brief that although the Kisling rule is available for the protection of other highway users, it is not applicable as a contributory negligence defense by a bailor. In this relationship, Berhow asserts he had a right to assume the vehicle was reasonably suitable for the purpose leased. Only if he operated it after he became aware or should have become aware of the defect would a jury question on his contributory negligence be generated. This theory was advanced in both briefs filed by Berhow and adequately raised at trial by instruction objections set out in the next division.
When violation of a vehicle equipment statute constituting contributory negligence as a matter of law with respect to the driver of another colliding vehicle is carried over into the bailment relationship, confusion in determining proximate cause of the collision follows. But application of the standard contended for by Berhow (that he had a right to rely on Jensvold’s duty performance until he knew or should have known the tractor was illegally equipped) permits the necessary flexibility and insight in assigning proximate cause. To give Jensvold the benefit of the Kisling rule as trial court did by substituting judgment for Jensvold in place of Berhow is to make Jensvold the beneficiary of its own negligence.
A rule permitting a bailor for hire of autos or other vehicles to employ as a contributory negligence defense the statute-violating defect occasioned by bailor’s own negligence, absent any actual negligence regarding the defect by bailee, would be unwise public policy. Such built-in immunity from liability sharply limits the legal incentive for lessor to rent vehicles suitable for the intended purpose.
The rule reduces the logic of the situation to an absurdity. Since the statutory violation (equipment defect) is negligence per se in all cases, the bailor may supply a defective vehicle to the bailee without risk of liability for injury to the bailee. The contributory negligence concept acts as an absolute shield. This is directly contrary to all known principles of bailment law. The failure to allow bailment principles free interplay causes the logical dilemma found in the trial court’s judgment and this court’s opinion.
Where the dominant principles of two fields of law collide it is our duty to reconcile them if we can. Absent reconciliation we have a duty to choose the principle which will most nearly effectuate justice. We have failed here in both aspects. See *388J. Stone, Legal System and Lawyers’ Rea-sonings 248-252 (1964).
The real contributory negligence issue between bailor and bailee is not whether the tractor was operated on the highway with statutorily faulty equipment (this must be taken as established for bailee to make a case against bailor) but whether the bailee was negligent in so operating the equipment when he knew or should have known of such condition. This was never brought home to the jury but the jury reached the proper result through the common sense application of the doctrine of proximate cause. The verdict should be reinstated.
II. In division II of his brief Berhow contends trial court erred in overruling his exceptions to instructions 8 and 15. Number 8 specified what the respective vehicle drivers had a right to assume: that the other would observe the law until he knew, or should have known, otherwise. Instruction 15 referred to allegations of Berhow’s negligence in operating the tractor without proper lighting equipment, stated the substance of the statutory law, and concluded, “A failure to comply with this provision of law constitutes negligence.”
In excepting to instruction 8 Berhow stated in part,
“ * * * -phe rjght to assume that the other would observe and obey the law until he knew or in the exercise of ordinary care should have known to the contrary is applicable to duty imposed upon Jensvold, Inc. the same as upon both of these drivers.
“In other words, this plaintiff had a right to assume that Jensvold, Inc. would exercise reasonable care to have the tractor in reasonably safe condition to comply with the laws of the State of Iowa in connection with the operation of said tractor upon a public highway, until the driver, Berhow, either knew or should have known to the contrary. Under this instruction he is entitled to' no such right to assume. The instruction as given places a greater burden upon Donald Berhow than is imposed by law [.] [Ujnder this instruction he would be guilty of negligence in operating this vehicle after dark on the highway without a red rear light whether he knew or didn’t know that such was the situation.
“In other words, he had no right under this instruction and under the instructions as a whole to assume that Jens-vold, Inc. did what the law imposed upon him in connection with a tail light, and the evidence shows without dispute that Jensvold knew that this vehicle was to be used upon the highway at night * * *.” (emphasis added)
In objection to instruction 15 plaintiff said,
“The plaintiff excepts to Instruction No. 15 for the reason that it imposes a greater burden upon this plaintiff than is imposed by law. The plaintiff is entitled to assume that this tractor was equipped with a workable red rear light until he either knew or should have known to' the contrary. He also had a right to assume that if this tractor was defective for use upon the public highway at night when lights were required that Jensvold, Inc. would apprise him of that fact * * *. That rule of law is not embodied in Instruction No. 15 nor in any other instruction and consequently duty is imposed upon him to have a red light under this instruction and he is not given the right to rely or assume on Jensvold.” (emphasis added)
The bailment contract imposes the duties upon bailor outlined in divisions II and III of majority’s opinion. Tierstein v. Licht, 174 Cal.App.2d 835, 345 P.2d 341 (1959). But this relationship also creates legal rights in the bailee. A bailee for hire has no duty to inspect but has the right to assume the vehicle is roadworthy. 8 Am.Jur.2d, Bailments § 144, pp. 1040-41; 61A C.J.S., Motor Vehicles § 762, p. 727.
*389In Witte v. Whitney, 37 Wash.2d 865, at 869, 226 P.2d 900, at 902 (1951) the court said,
“A bailee for hire has no duty of inspection before using a car. He has a right to assume that it is roadworthy. What would constitute a notice of defect sufficient to shift the responsibility to him, in the event that the defect causes an accident, is a factual question for the fury to determine, in light of all of the circumstances of the case.” (emphasis added)
This right of the bailee was repeatedly raised by Berhow in objections to instructions given. He expressly objected his right to assume the tractor was without defect was not incorporated in any of the instructions. We have held such objections will preserve the error even though a requested instruction is not offered. Sturm v. Tri-City Ry. Co., 190 Iowa 387, 178 N.W. 525 (1920); see also Dakovich v. City of Des Moines, 241 Iowa 703, 42 N.W.2d 511 (1950); Wells v. Chamberlain, 185 Iowa 264, 168 N.W. 238 (1918).
Was this legal concept, of controlling importance in Berhow’s case against Jens-vold, incorporated in any other instruction? Jensvold is reduced to asserting in its brief, “All the rules relating to the duties of Jensvold as a bailor were set out in Instruction 14, which was not excepted to by the appellant. These rules, therefore, need not be repeated in Instruction 15.” Granting that instruction 14 sets out the ditties of Jensvold, bailor begs the question: Ber-how’s objection to instruction 15 was not that it did not set out Jensvold’s duties but that neither it nor any other instruction set out Berhow’s right to assume the vehicle was roadworthy, i. e., had a proper tail light. This goes to the heart of Ber-how’s claimed contributory negligence in his case against Jensvold.
And majority in division XI of the opinion falls into the same error by holding instruction 14 “clearly incorporates the material element which Berhow now alleges was omitted in instructions 8 and 15.”
Instruction 14 appears on pages 320 and 321 of the record filed here. It would unduly extend this dissent to set it out in full. This instruction clearly refutes any claim the court did not recognize a bailment relationship existed. Fairly summarized, it specified Jensvold as “lessor” was under a duty to provide a tractor reasonably safe for the use intended and had a duty to make a reasonable inspection and correct any defects that should have been discovered or to warn the lessee of such defects. This instruction concluded, “A failure in this duty would be negligence.” At no place in instruction 14 is there any articulation or hint of plaintiffs right to assume these duties were in fact performed by Jensvold. Nor is this law to be found in any instruction submitted.
The record will not sustain the position of Jensvold and majority that this pertinent law was incorporated in instruction 14. The conclusion reached by majority in division XI of the opinion, bottomed upon this faulty factual foundation as to what the record is, should not be permitted to stand.
III. The tractor bailment for hire was pled by Berhow and admitted by Jensvold. The resulting duty of Jensvold to furnish a suitable vehicle and the corresponding right in Berhow to assume it roadworthy, together with the rule that his contributory negligence would arise only when he knew or should have known of its defective condition, prevail in a law action ex delicto. Scharf v. Gardner Cartage Co., 95 Ohio App. 153, 113 N.E.2d 717 (1953); Witte v. Whitney, 37 Wash.2d 865, 226 P.2d 900 (1951).
Berhow’s proof developed this bailment situation. In his instruction objections he contended for these applicable rules governing his alleged contributory negligence *390and his right to assume roadworthiness. Majority does not dispute that these issues were raised on appeal. Failure of trial court to accept relevant legal concepts upon submission of the case inexorably led to the application of the wrong law on the post-verdict motions.
In the final analysis it would seem the majority opinion upholds the judgment notwithstanding the verdict because the pleadings were not sufficiently clear and the theories were not clearly enough articulated at trial. As pointed out in prior divisions, we disagree. But even if this were the case, these procedural problems should not control here. The public policy considerations are too important. Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed. 1037, 1041 (1941), says it well:
“Rules of practice and procedure are devised to promote the ends of justice, not to defeat them. A rigid and undeviating judicially declared practice under which courts of review would invariably and under all circumstances decline to consider all questions which had not previously been specifically urged would be out of harmony with this policy. Orderly rules of procedure do not require sacrifice of the rules of fundamental justice.”
Cf. O’Neill v. United States, 411 F.2d 139, 144 (3 Cir. 1969).
This would seem to be a complete answer to the position that the result is harsh but mandated by procedural rules of law.
At the very least, if division I of this dissent is ignored, the judgment for Jens-vold, Inc. should be reversed and the cause remanded for new trial under proper instructions.
BECKER, J., joins in this dissent.