dissenting.
I dissent from the majority opinion and from the concurring opinion of Judge Pritchard which erroneously find a perceived instruction error to require a new trial and from the majority and concurring opinions of Judges Pritchard and Shangler which fail to acknowledge that the instruction issue is moot because plaintiff made no submissible case of liability. I would affirm the jury verdict for defendants and enter judgment thereon.
Additional facts, essentially undisputed but not fully recounted in the majority and concurring opinions, need be set out because of their relevance to the issue of liability.
The construction work on which Clarkson and Tobin were engaged consisted of the addition of a new traffic lane to the right of existing traffic lanes on the interstate highway route through Platte County. As a consequence of this work, the highway shoulder area as it formerly existed was displaced and was to be reconstructed to abut the new traffic lane. Preliminary to paving the added lane, Clarkson and Tobin had excavated the former shoulder to a depth of some twelve inches below and adjacent to the existing concrete slab. The latter, twenty-four feet in width, was open and unobstructed to traffic. Signs warning of the construction area ahead were placed 1000 to 1500 feet to the south and a reduced speed limit was posted. As additional warning of the hazard, Clarkson and Tobin had placed sawhorse type barricades in the excavated area where the shoulder had formerly been. These barricades bore the legend “Open Trench.”
The Ballard vehicle in which plaintiff was riding was northbound and while traveling through the construction area, the car left the concrete slab and the right wheels dropped into the excavated trench. In this position, the undercarriage of the car made contact with the concrete pavement because the depth of the excavation was greater than the normal clearance for the car frame on an even surface. Despite the braking effect of the undercarriage dragging along the concrete, however, the car traveled some 600 feet in the excavation and knocked down three of the sawhorse barricades placed there. When the Ballard car finally reached the end of the construction area, it then returned to the paved roadway, but slid sideways at 35 to 40 miles an hour, crossed the northbound traffic lanes, jumped the median divider and came to a stop.
According to plaintiff’s evidence, her injury was sustained when a rock was projected through the automobile windshield on the passenger side. Plaintiff herself had no recollection of the event, but Ballard, the only other occupant of the car, testified that immediately before striking one of the sawhorse barricades, as he was struggling to regain control of the car, he saw that a rock weighing 40 or 50 pounds was atop the barricade. He then observed the rock propelled through the windshield on impact between the car and the sign.
Evidence from Ballard and one other witness for plaintiff, both of whom regularly drove the route along the construction area, was that they had seen other signs weighted with rocks, the inference being one of common practice. Defendants’ evidence was to the contrary. Because the accident here happened on a Sunday afternoon when no Clarkson or Tobin employees were at the job site, no defense witness was able to testify as to the condition of the sign that day. Tobin and Clarkson witnesses did testify, however, that there was no practice on this job of weighting signs with rocks, that none of defendants’ employees had placed a rock on this particular sign and none had ever been seen on the sign.
The holding of the majority on the issue of liability rests upon two premises, neither of which is valid. The first assumes that *549some evidence leads to the conclusion that defendants were chargeable, directly or by inference, with responsibility for placing the rock on the sign. There is no such evidence in the case. The second relies on a purported responsibility by highway contractors for the safety of persons in vehicles driven into construction areas where traffic is prohibited by posted warning signs and where passage is hazardous or impossible. No authority is cited for this proposition and there is none to be found in decisions by Missouri courts.
The majority opinion assumes the proof in plaintiff’s case established that defendants placed the rock on the sign. Such is evidenced from the following statement in the opinion: “If the defendants placed a rock on top of the No. 2 sawhorse warning sign and to do so constituted a hazardous and dangerous condition, as testified by expert witness Paul Box, the plaintiff’s evidence established both the duty and a breach thereof.” There is no proof in this record either as to who was responsible for placing the rock on the sign or how long it had been there. Plaintiff’s evidence was limited to the testimony of Ballard who saw the rock momentarily before impact and the observations by Ballard and another witness of rocks on other signs at other times. For all that appears, the rock could have been placed on the sign only moments or hours before the accident by persons unknown.
Moreover, the record fails to confirm the assertion in the concurring opinion of Judge Pritchard that absent direct evidence showing Clarkson and Tobin employees were responsible for placing the rock on the sign, that fact is a reasonable inference because defendants “had exclusive control of the area.” There was no proof whatever that Clarkson and Tobin exercised dominion over the construction area to the extent of excluding passersby or that the area was fenced or guarded or even that any signs were posted except those warning motorists. The record does include the categorical denial by Clarkson and Tobin employees of rocks placed or observed to have been placed on the sign, against which plaintiff’s evidence showed only that a rock was on the sign before the car struck and that rocks were on other signs at other times. As to the latter, there was no proof of involvement by Clarkson and Tobin employees or that they had ever followed that practice.
Plaintiff’s evidence warranted no finding directly or by inference that Clarkson and Tobin were responsible for placing the rock on the warning barricade, an element essential to the result reached by the majority. Perhaps in tacit recognition of this deficiency in proof, the concurring opinion of Judge Pritchard embarks on a totally different theory as evidenced by the statement that if in fact there were a possibility of the intervening conduct of a third party, the burden to show that was on the defendants. This concept, of course, would relieve plaintiff of showing more than the mere presence of the rock on the sign and would attribute fault to the defendants irrespective of whether they contributed to cause the dangerous condition or even had any knowledge of the condition. The majority opinion cites no authority for this proposition and the concurring opinion of Judge Pritchard cites only 65A C.J.S. Negligence, § 207, p. 462, which is inapposite to the proposition advanced. The C.J.S. text preceding the cited paragraph announces the rule that the burden of proving negligence is on the party asserting it and that burden of proof never shifts. If, however, the claimant has sustained his burden and the defendant claims an intervening, independent, proximate cause, the burden of going forward with that evidence is on the defendant. Here, there was no burden on Clarkson and Tobin to go forward with evidence to show the origin of the rock placement until plaintiff adduced evidence from which, according to plaintiff’s jury submission, it could be concluded that Clarkson and Tobin were negligent in allowing the rock to be so placed and in not effecting its removal. Plaintiff’s evidence totally failed of any such proof.
Even were it to be assumed that Clarkson and Tobin were obligated to foresee the *550prospect of a wayward vehicle entering the excavation despite warning signs and the practical impossibility of motor car travel there, plaintiff’s case was not tried or submitted on the liability theory the concurring opinion adopts. Under plaintiff’s verdict directing instruction, plaintiff assumed the burden of proving, first, that Clarkson or Tobin employees allowed the barricade sign to be weighted with a rock and, second, that Clarkson or Tobin failed to use ordinary care to remove the rock. Under the theory of submission, plaintiff made no case.
The undisputed evidence established there was no Clarkson or Tobin employee on the job site the day of the accident, a Sunday, and no Clarkson or Tobin employee had any knowledge of the rock on the sign. There was no proof any Clarkson or Tobin employee participated or acquiesced in weighting the sign with a rock. Any inference to this effect is sheer speculation and conjecture. In the exercise of ordinary care, Clarkson and Tobin were, according to plaintiff’s evidence, obligated to inspect the job once a day, an inspection which demonstrably could not have prevented plaintiff’s injury because there was no proof as to how long the rock had been on the sign. In direct contradiction of the expert opinion in evidence, the concurring opinion suggests the duty of ordinary care required Clarkson and Tobin to perform 24-hour surveillance.
In sum, the majority and concurring opinions combine to find liability where no proof was made in essential particulars and to modify the theory of liability under which the case was tried and submitted to accommodate the deficient proof.
On an equally fundamental basis, the majority errs in concluding that Clarkson and Tobin were liable to plaintiff even if it be assumed that defendants did place the rock on the warning sign. The essence of the majority holding is that highway contractors must anticipate the prospect of vehicles entering prohibited areas by misadventure and therefore must make such areas reasonably safe for the passage of wayward vehicles without injury to the occupants. This proposition not only ignores former decisions which limit the responsibility of contractors to the posting of adequate warnings and to the maintenance of the traveled way free of dangerous conditions, but would render it virtually impossible for any improvement to be built at or near an existing road without assumption by the contractor of economically prohibited liability.
It should be noted that here, unlike the situation in Penn v. Columbia Asphalt Company, 513 S.W.2d 679 (Mo.App.1974), there was no shoulder area and no entitlement to regard the construction area as a part of the public highway. The excavation to add an additional traffic lane had removed what formerly was the highway shoulder and had created a condition rendering any vehicle traffic on what had been the shoulder either impossible or extremely hazardous. That danger was present as a part of the work itself and precluded any use of the area adjacent to the highway for any travel whatever.
The majority opinion holds the contractor liable to eliminate a condition in the excavation posing a potential hazard to occupants of a vehicle which descends into the excavation. That liability must, in turn, depend on the obligation of the contractor to anticipate that a vehicle will enter the excavation despite ample advance warning signs of the danger ahead and despite the physical features of the work precluding any traffic at all, accidental or intentional, beyond the edge of the concrete slab. This enlargement of liability based on foreseeable risk of harm to another exceeds the bounds which have formerly prevailed.
Reasonable anticipation of danger is essential to establish actionable negligence. Existence of negligence in a particular situation depends on whether a reasonably prudent person would have foreseen the danger and provided against it. Scheibel v. Hillis, 531 S.W.2d 285, 288 (Mo. banc 1976). The duty of anticipation is not that of prescience; it is the duty to be aware of reasonable potential for harm or injury. A person is not required to look for danger where he has no cause to anticipate it and, in so doing, one is entitled to assume and act *551upon the assumption that others will exercise due care for their own safety, in the absence of notice to the contrary. Taylor v. Dale-Freeman Corporation, 389 S.W.2d 57, 61 (Mo.1965).
The duty to foresee risk of harm, even though tested retrospectively as the majority requires, does not encompass every possible event. Rather, the test is premised on a duty to guard against probable events of sufficient moment to induce reasonable persons to take precautions. Zuber v. Clarkson Construction Co., 363 Mo. 352, 251 S.W.2d 52 (1952). The occurrence here, the unanticipated steering failure in Ballard’s car, was a possibility of remote dimensions and involved a combination of circumstances, the location, the speed of the car, the wayward path the uncontrolled car assumed and other factors far beyond any anticipatory duty owed by Clarkson and Tobin in conducting their construction work. Indeed, were contractors obligated to guard against any and all eventualities, as the majority would rule, they would enter any construction project as virtual insurers of the motoring public.
A case of remarkably similar facts is found in Larsen v. Johnson, 21 Utah 2d 92, 440 P.2d 886 (1968). There, the highway construction contractor had placed “small A-frame-type-flasher-signal” barricades along an interstate highway to keep traffic from entering the construction area. The plaintiff motorist crashed into one of the barricades which was weighted with an 85-pound rock. The impact propelled the rock through the windshield causing the injury which produced the suit. There, as here, plaintiff’s claim was predicated on the asserted negligence of the contractor in placing the rock on the barricade.
In affirming summary judgment for the contractor, the court noted that the defendant was under a duty to place some warning barrier to keep motorists from driving into the construction area, and that the barrier would have to be constructed of something substantial and durable. In addition, the likelihood that a warning sign would be blown over indicated the propriety of stabilizing the barricade with some type of weight or ballast. The court then posed the question of whether, by stabilizing the barricade with an 85-pound rock, the contractor should have foreseen that it was exposing the plaintiff and other motorists to an unreasonable risk of harm. The court then stated:
“In insisting on an affirmative answer to that question the plaintiff is confronted with some difficulties. The first is that it is ordinarily not unreasonable to assume that drivers will keep their cars on the portion of the highway designated for travel; moreover, that they will keep on their own side of the highway and will not cross clear over the wrong side and into barriers erected for their protection.”
The majority here breaks new ground in holding a highway contractor responsible for the safety of persons in a vehicle driven into a construction area where traffic is prohibited. The analogy to Best v. Fred Weber Construction Co., 525 S.W.2d 102 (Mo.App.1975) is misplaced as is the citation in the concurring opinion to Joshmer v. Fred Weber Contractors, 294 S.W.2d 576 (Mo.App.1956). In Best, the accident occurred when the automobile left an exit ramp on a sharp curve unmarked by warning signs. In Joshmer, a walkway board placed across an excavation broke when the plaintiff sought to use it as the only access to a nearby apartment building. In both cases the accident site was not only a place where the injured party had a right to be but it was a place intended for travel by automobiles or pedestrians. The construction contractor therefore had the duty to make the way safe because traffic there was expected. The cases do not support and no other cited Missouri case supports the proposition on which the majority opinion turns — that a contractor must make reasonably safe a construction area not intended for passage.
The majority next errs in concluding that the jury verdict for defendants Clarkson and Tobin must be set aside and a new trial granted for instruction error. As demonstrated by the cases hereafter cited, similar *552errors where instructions have inadvertently confused conjunctive and disjunctive associations of multiple parties have repeatedly held the error harmless. No analogous case is cited to support the result reached by the majority.
The theory on which plaintiff’s case was tried was the same as to all the defendants, that each was responsible to maintain the signs in a manner reasonably safe to the traveling public and that each had failed to use ordinary care to discover the rock atop one sign and remove it. In like manner, plaintiff’s verdict directing instructions posed the same requisite findings for recovery against each defendant, with the instructions grouped, however, as to Clarkson and Tobin in one and Safe-T-Flare in another.
Plaintiff’s petition alleged and her proof established that Clarkson and Tobin were engaged in a joint venture, the consequence of which was that each was responsible for the acts of the other. Neither pleading nor evidence presented any contest on the joint liability of Clarkson and Tobin and no suggestion appears in the trial record that either Clarkson or Tobin claimed any possible immunity for acts or omissions attributable to its co-venturer. Indeed, Clarkson and Tobin were treated throughout as a single entity, they were represented at trial by the same lawyer and they presented a unitary defense. Moreover, the evidence bearing on liability was indistinguishable. A failure to have personnel on hand to inspect the signs and thus remove any potential hazard was equally a charge leveled without differentiation between the companies.
The majority awards a new trial to plaintiff on the ground of instruction error as to a non-issue. In asserting that the instruction was a “violent misdirection” and that the jury was misled and confused, the majority seizes upon a minor deviation in the converse instruction which demonstrably could not have prejudiced plaintiff’s case, they ignore all practical considerations of how the case was submitted and they violate the direction of Rule 84.13(b) that no judgment be reversed for error which does not materially affect the merits of the action.
Whether an instruction is confusing or misleading depends on how it would be understood by a jury composed of ordinary intelligent laymen when it is read and considered with the other instructions. Sanfilippo v. Bolle, 396 S.W.2d 690 (Mo.1965). It is axiomatic that all the instructions must be read together. Goodwin v. S. J. Groves & Sons Company, 525 S.W.2d 577 (Mo.App.1975). Even though one instruction, standing alone, may be defective, if the instructions as a whole completely instruct the jury and do not permit speculation or conjecture, the instructions are proper. Miller v. Ranson and Company, 407 S.W.2d 48 (Mo.App.1966). No appellate court shall reverse any judgment unless it finds that error was committed by the trial court against the appellant materially affecting the merits of the action. Rule 84.13(b).
In McGowan v. Hoffman, 609 S.W.2d 160 (Mo.App.1980), two plaintiffs, driver and passenger, claimed damages for injuries sustained when defendant’s car “rear ended” the vehicle plaintiffs occupied. Separate verdict directing instructions posed the claim of each plaintiff, but defendant’s converse as well as plaintiffs’ damage instruction combined the damage element with the result that literally read, neither plaintiff could recover unless the jury found that both had sustained damage. Finding no prejudice in what were manifestly incorrect instructions linking the plaintiffs’ injuries, this court there noted that no juror with any intelligence could be misled by the instructions, particularly because there were numerous and constant trial references to the individuality of plaintiffs’ claims.
In Colonial Construction Co. v. Sharp Industries, Inc., 421 S.W.2d 551 (Mo.App.1967), the verdict directing instruction provided only for a verdict against both defendants whereas the forms of verdict contemplated a possible finding against only one, the actual result in the case. The omission was of a verdict director which would have authorized the verdict the jury returned. Finding that the instruction er*553ror did not materially affect the merits of the action, the judgment was affirmed despite the lack of an appropriate verdict directing instruction.
As the majority opinion correctly notes, there is no precedent in point for the result the majority accomplishes here. Two of the cases cited, Long v. REA Express Co., 573 S.W.2d 62 (Mo.App.1978) and Mayberry v. Clarkson Construction Co., 482 S.W.2d 721 (Mo.1972), were, like McGowan, supra, instances where the offending instructions linked the damage claims of multiple plaintiffs. Davis v. St. Louis Southwestern Railroad Co., 444 S.W.2d 485 (Mo.1969) was an action against plaintiff’s employer for failure to provide a safe workplace and, on derivative liability, for the negligent act of a fellow employee. The instruction advised the jury that the employer’s liability was to be measured by his fault alone.
None of these cases bear on the subject of error in an instruction as to issues not in controversy. In Long and Mayberry, the nature and extent of each plaintiff’s injuries were disputed. In Davis, the negligence of both employer and fellow employee was contested. The instructions were misdirections of consequence and prejudicial to plaintiff because they authorized verdicts on controverted issues by misstatements of the law applicable to the subject contested. In contrast, the defect in the converse instruction in the present case, the joint responsibility of Clarkson and Tobin, was never in question.
Here, it is inconceivable that the jury would have ferreted out the technical variance between the verdict director and the converse when nothing else in the case even inferentially suggested that the issue of several liability of Clarkson and Tobin was before them. The issue simply was not in the case and it strains credulity to accept the majority’s assertion that the merits of plaintiff’s case were affected. Considered as a whole, the instructions adequately informed the jury and the majority errs in its holding to the contrary. With appropriate conformity to the reasoning of McGowan, supra, and similar cases, the error in the converse instruction should be recognized as harmless and the judgment should be affirmed.