concurring.
I concur in result only. This case should be retried because of the prejudicially erroneous instructions given on behalf of defendant. Although I reach the same conclusion as Judge Hamilton, I do so for different reasons.
I.
First, a brief comment regarding Instruction No. 7. In my opinion this instruction constitutes a disparaging comment upon the evidence. Although government regulations and industry guidelines do not establish an absolute standard of care they are nevertheless admissible for the jury’s consideration in determining whether or not the conduct of a party was negligent as defined by proper instructions. See Pierce v. Platte-Clay Electric Coop., Inc., 769 S.W.2d 769, 772-73 (Mo. banc 1989). The cases cited by Judge Hamilton regarding evidence admissible for one purpose but improper for another or evidence raising a false issue are inapposite. The import the jury might give to such evidence is a matter for lawyer’s arguments, not for a judge’s comments.
II.
I also depart from Judge Hamilton’s discussion pertaining to the propriety of the verdict directing and converse instructions. The basis for the remand of this case is stated in her opinion as follows:
Issuance of the Ballinger decision while the instant case was pending before this court necessitates a remand because the record in this case fails to disclose which of the four elements of Smith the jury disbelieved in reaching a verdict in favor of the defendant. If the jury based its decision on plaintiff-appellant’s failure to prove the third or fourth elements, relating to the personal negligence of Penzel, their case was impermissibly decided under the inherently dangerous activity doctrine and they are, therefore, entitled to a new trial with a proper verdict director. Accordingly, we remand for a new trial.
Rare indeed is the ease where this court has granted a party a new trial because of error in a verdict directing instruction offered by and given on behalf of that same party. Plaintiffs do not ask us for relief because of their own instruction. They chose to submit their case on the theory of direct and primary negligence on the part of Penzel in failing to see that adequate precautions were taken in a subcontractor’s performance of inherently dangerous work, a theory amply supported by the evidence. The fact that Ballinger now authorizes the submission of such case on the theory of vicarious liability does not render the submission on the theory on direct and primary negligence improper, only a greater burden than plaintiffs’ need to assume.
The origin of the inherently dangerous activity doctrine rests upon the fundamental concept “that one must not authorize acts upon his property which in themselves constitute a nuisance or a menace to the lives and property of another; and it is no defense to show that the performance of this inhibited act is delegated to an independent contractor.” Salmon v. Kansas City, 241 Mo. 14, 145 S.W. 16, 23 (banc 1912). In Salmon the court stated the doctrine related to instances of “injuries inflicted upon persons disconnected from the work as, for instance, passers-by on the street or adjacent property owners.... ” Id. However, the court refused to apply the doctrine in the case of injury to an employee of the independent contractor caused by the latter’s negligent perform-*357anee of the work, stating such a holding would be “a strange anomaly in jurisprudence.” Id. 145 S.W. at 24.
Sixteen years after Salmon the question of applying the inherently dangerous activity doctrine in case of injury to an employee of the independent contractor arose again. In Mallory v. Louisiana Pure Ice & Supply Co., 320 Mo. 95, 6 S.W.2d 617 (banc 1928) the Supreme Court, without overruling Salmon, reached a different conclusion under the circumstances of that case. Mallory, an employee of an independent contractor, was injured while excavating beneath a brick wall which collapsed. The evidence showed the owner knew of the danger from undermining the wall and agreed that it would shore-up the wall section-by-section as dirt was removed. The owner failed to do so. The general contractor took charge of the project after the excavation was partially completed and directed the independent contractor in the performance of the remaining work, including the removal of additional dirt beneath the foundation of the old wall. Neither the owner nor the general contractor took any precautions against or even warned of the recognized danger. These were the circumstances, the direct and primary negligence of the owner and general contractor in failing to carry out the duty to remedy or warn of known dangers, which caused the Mallory court to refuse to “apply the broad rule stated in the Salmon case which would inflexibly exclude the plaintiff upon the single ground that he was the servant of the contractor.” Id. 6 S.W.2d at 626-27.
Application of the inherently dangerous activity exception to the general rule in the case of injury to an employee of a subcontractor does not appear in Missouri reported cases for almost fifty years after Mallory. In Smith v. Inter-City Telephone Co., 559 S.W.2d 518 (Mo. banc 1977) the Supreme Court followed Mallory in upholding the submissibility of a case brought against an employer of an independent contractor by an injured employee of the independent contractor. The factual basis for this conclusion was similar to that in Mallory and the opposite of that in Salmon, i.e. the direct and primary negligence of the employer in failing to ensure that any precautionary measures were taken in the performance of the inherently dangerous work by the independent contractor. Id. at 523. The Smith court noted that Mallory was an exception to the general application of the inherently dangerous activity doctrine to members of the public who are injured, id. at 522, and required, as an essential element of submissibility, proof that “the one contracting with the independent contractor negligently failed to ensure that adequate precautions were taken to avoid damage by reason of the inherently dangerous activity” and that the plaintiff’s injury was a direct result of this negligence.
Thus, both Mallory and Smith predicate the right of an employee of an independent contractor to recover from one who employs the independent contractor to perform inherently dangerous work upon the direct and primary negligence of the employer of the independent contractor. In Ballinger v. Gascosage Electric Coop., 788 S.W.2d 506 (Mo. banc 1990) the Supreme Court tacitly overruled Salmon v. Kansas City, supra, and, on the authority of cases applying the inherently dangerous activity exception to injuries inflicted upon members of the public at large, held that an employer of an independent contractor was vicariously liable to the latter’s employee injured as a result of the contractor’s negligence in the performance of the work. Under Ballinger one who employs an independent contractor because of his experience and expertise in doing dangerous work becomes an absolute insurer against damages sustained by the employees of this experienced and expert contractor regardless of the employer’s lack of control over the work or his efforts to see precautions are taken. The employer’s liability for the tort of the independent contractor is absolute irrespective of negligence on the part of the employer. Id. at 511.
Irrespective of the imposition of vicarious liability upon the employer of an independent contractor, nothing in Ballinger precludes an injured employee from seeking recovery against the landowner or general contractor based upon their own direct *358and primary negligence. There is nothing improper contained in instruction 10 given on behalf of plaintiffs’ in this case. The error requiring a retrial of this case lies in instructions 12 and 18, the affirmative converse instructions given on behalf of Pen-zel.
III.
An affirmative converse instruction, MAI 33.05(1), is used to submit an issue to the jury which, if found to be true, defeats the plaintiff’s claim irrespective of the jury’s finding on the issues submitted in plaintiff’s verdict directing instruction. Steenrod v. Klipsch Hauling Co., Inc., 789 S.W.2d 158, 164 (Mo.App.1990). Its function is not to submit the negative of the issues submitted by plaintiff, but to submit a fact issue extraneous to the plaintiff’s submission which, if true, is dispositive. Such an instruction is couched in affirmative language, “if you believe”, as opposed to the negative approach of a true converse, “unless you believe” a proposition submitted in plaintiffs’ verdict director. An affirmative converse instruction which submits a factual proposition which, even if true, does not defeat the plaintiff’s claim is prejudicially erroneous. Id. at 165.
Here, plaintiffs’ theory was submitted to the jury under instructions which required the jury to find that plaintiffs’ damages were caused by Penzel’s negligence in failing to ensure that adequate precautions were taken in connection with the scaffolding activity. Penzel’s affirmative converse instruction directed the jury to find in its favor if the jury believed Penzel had no reason to contemplate the subcontractor’s negligence when the contract was made.
What Penzel knew or should have known when the contract was made has little bearing upon its negligence in failing to act upon the observance by its employees of the subcontractor’s mounting of a leaning scaffold upon the bed of a moveable truck secured by a rope tied to a moveable pickup truck. That Penzel might not have envisioned the use of a scaffolding system so fraught with hazard does not obviate its negligence in failing to insist upon precautionary measures after it had actual knowledge of the creation of such a dangerous condition. Instructions 12 and 18 constitute a misdirection of law.
IV.
Additionally, the instructions erroneously directed the jury to return a verdict “for defendant Penzel Construction Company and against Alan [Sandra] Mays.... ” The verdict forms prescribed in a comparative fault case, and used in this case, do not permit the jury to find in favor of one party and against another party, only to assess percentages of fault to one or to the other or to both. MAI 37.04 directs that in a comparative fault case the initial phrase of a converse instruction should read “In your verdict you must not assess a percentage of fault_” In this case, by directing the jury to return verdicts for defendant and against plaintiffs, the instructions reverted to the harsh “all or nothing at all” concept of contributory negligence.
For the reasons set forth above, I concur in the reversal of the judgment and the remanding of this case for retrial.