*215DISSENTING OPINION.
VALLIANT, J.Plaintiffs are the minor children of Edward L. Chrismer .deceased who, while in the service of the defendant, was drowned in the Missouri river in consequence of the capsizing of a skiff through, as the petition alleges, the negligence of the defendant:
The plaintiffs’ testimony tended to show as follows: Defendant’s telephone line crosses the Missouri river by a submerged cable at a point opposite Washington in Franklin county. The cable got out of repair and defendant sent a party of men to repair it. The party consisted of twelve men and was under the command of one Thompson as foreman, and one Caesar as sub-foreman, Thompson was first and Caesar was next, the rest of the party were mere linemen subject to the orders of those two.
The plan of operation adopted by Thompson was as follows: A barge, or common flatboat, was located in the river over or near the submerged cable, crosswise the current, and held in position by wire strands reaching to the shore. The cable was fished up from the bottom of the river and laid across the barge so that it could be handled and repaired; as one part would be repaired the barge would be moved so as to bring up and expose to view another part to- be repaired and so on until the whole cable should be examined and repaired.
In addition to the wires that held the barge in position was another strand that was used as a means of conveyance by aid of a pulley to bring materials from the shore to the barge; this will be hereinafter called “the strand.” When this strand was in use for this purpose it was all above water, but when not in use it was allowed to sag beneath the surface of the water, the ends, one fastened on the shore, the other on the barge, remaining above the water, the end at the barge extending out about 15 feet before dipping into the water; this *216strand had not been in nse for two days before the accident and had remained sagged in that manner.
For the purpose of transporting the- men from the shore to the barge where they were to do their work, the foreman, Thompson, hired one Hugo Lambke with his skiff. The skiff was 15 feet 10 inches long, 16 inches deep, and 4 feet 4 inches wide; its normal capacity was to carry five men, it was designed for two sets of oars— swivel oars. A swivel oar was explained to be one in which a pin was fastened which when in use fitted into a socket in the gunwale of the boat, and formed the pivot on which the oar turned. The significance of this form of oarlock was that if the oar should get fastened to an obstruction in the water it could not be released from the oarlock and the boat was liable to capsize.
Lambke who owned the skiff was also employed by Thompson to row it. The substance of what was said in the hiring of Lambke was that Thompson told him he wanted to hire him and his skiff to carry the men to and from the barge as occasion required and bring them ice and water, to which Lambke agreed and entered on the work; the amount of wages was not mentioned, but when Lambke quit, which he did immediately after this accident, Thompson paid him at the rate of $2 a day, which was satisfactory. Caesar knew nothing of the agreement made by Thompson with Lambke and gave him no orders except to land at the down stream side of the barge. Lambke was nineteen years and ten months old ; his occupation was that of a laborer in a cob-pipe manufactory; he had never followed boating for an occupation, but had owned this skiff about two years and had often gone in it fishing, rowing it himself, catching driftwood and had taken members of his own family across the river in it. He was the only man employed by the defendant to row this skiff. He testified that he had two sets of oars, one his own and one borrowed from a friend. “Q. Who, besides you, was employed to row that boat? A. They helped me out, that is *217all. One day one man, and the next day another. They did not help me regularly — any special one. . . . Q. There was no regular man provided to pull the other set of oars'? A. No, sir.” On cross-examination he said that Johnson generally rowed with him and when he did not then Haines generally did. Sometimes Byrnps also rowed, he did so “once, twice, yes, sir, maybe more. I don’t know just exactly.” He considered Johnson and Haines very good oarsmen, he also considered Byrnes a pretty good oarsman. (Byrnes was the man whose awkward stroke caused the skiff to be capsized.) Sometimes also Thompson and Caesar helped to row.
The men boarded at a hotel in Washington, they were carried in the skiff every morning to the barge, back to shore at noon for dinner, returned to the barge after dinner and back again to shore at the end of the day’s work. In this way the skiff, carrying half the party in one trip, made eight trips a day carrying the men, and two or three extra trips carrying ice and water, in which last-named trips Lambke rowed the boat alone.
No instructions were given to Lambke except to approach the barge at the down-stream side.
The work had thus been going on four or five days and was approaching conclusion; the foreman had notified the men at the close of the day that he desired to get an early start next morning, and accordingly about six o’clock, or shortly after, the skiff was loaded with Lambke and four of the men ready to start. Lambke had the bow oars, Byrnes the other pair, Chrismer was in the stern and the two other men in the next seat. Neither Thompson nor Caesar was present.
The point from which they started was a few feet above the shore end of the strand. They rowed up stream on that side of the river for some distance where the current was not so strong, aiming to drift with it when they should turn across stream and so effect an easier landing on the down-stream side of the barge, *218which, course would necessitate the crossing of the strand. But when they were approaching the barge and close to the strand, Byrnes made an awkward dip with his oar on the down-stream side of the skiff and it caught on the strand, and being a swivel oar he could not release it, and the consequence was the force of the current came against the imprisoned skiff and capsized it, throwing the men into the river, two of whom, Lambke being one, were rescued, but the three others, of whom the plaintiffs’ father was one, were drowned. The current of the river at that point was from seven to ten miles an hour.
The testimony on the part of defendant was not materially different from that of the plaintiffs on the points above mentioned, but it brought out some other points.
The foreman, Thompson, testified that Chrismer and Byrnes had assisted in the work of putting the barge and strand in position, and knew how they were located. That ordinarily the skiff carrying the men started below the strand and did not cross it; that if they should go above' the strand there would be danger of fouling with it if they attempted to cross it too near the barge. The barge was stationed about 250 or 275 feet from the shore and crosswise the stream. “Q. What arrangement did you make with Mr. Lambke about transporting the men? A. I told him I would like to have him and his sldff to transport the men from the shore to the barge as the work required.” On cross-examination: ‘1Q. And when you came to Washington you needed another man and so you hired Lambke? A. Needed the boat. Q. And the man too? A. Yes, sir. Q. So you hired Lambke? A. Yes, sir. . . . Q. What did you say to Lambke? A. That I should like to hire him and his boat. Q. For the company — you were not doing that on your own hook, you were acting for the company? A. Yes, sir. Q. Wliat did you say to him about his wages? A. I don’t think
*219I said anything to him at all ahont it. ’ ’ He also testified that he gave Lambke no orders and that no one was authorized to give him orders except Mr. Caesar and himself. Caesar testified that he did not know anything of the agreement between Thompson and Lambke, that he gave Lambke no orders except to land on the down-stream side of the barge; that he ordered Johnson and Haines to help Lambke row the boat; he did that because he knew them to be expert oarsmen, had never seen-any one except Johnson and Haines helping to row except when Thompson or himself did so.
The defendant’s testimony also tended to show that just as the skiff was starting off Johnson came in sight and called to them to stop the skiff and let him get in, but Byrnes answered, “wait till next trip,” and the boat went on. Also that Byrnes was awkward in handling the oars, dipped them too deep. Also that the most of the skiffs in use at Washington were equipped with swivel oars. During the cross-examination of one of plaintiffs’ witnesses the following colloquy between counsel occurred: Counsel for defendant: “Will counsel admit that this was a suitable boat and suitable appliances for crossing this river at this place?” Counsel for plaintiff: “It would be if those obstructions were not there? Q. Apart from obstructions and danger, you admit that this was a proper boat to cross this river at that place? A. Except for those appliances and obstructions, yes.”
The summary of the charges of negligence in the petition is that the skiff equipped and maimed as it was under the circumstances to be operated in the presence of the submerged wires was not reasonably safe for the carrying of the men and that defendant was negligent in attempting to do so.
At the close of the plaintiffs’ evidence and again at the close of all the evidence, the defendant asked the court to instruct the jury that the plaintiffs were not entitled to recover, the court refused the instruction and *220defendant excepted. There was a verdict by ten of the jury for the plaintiffs for $3,200, and judgment accordingly, from which defendant has appealed.
The appeal was allowed to this court because at that time the constitutionality of the law authorizing a verdict of three-fourths of a jury had not been settled.
I. The question for our first consideration is, should the court have given the peremptory instruction-asked by the defendant to the effect that the plaintiffs were not entitled to recover?
The deceased, Clirismer, plaintiffs’ father, was an electric wire lineman and so far as we know from the record he had no knowledge whatever of skiffs or other boats or of the hazards of river navigation, and so were all the other men in the gang except that it is said of Johnson and Haines that they were good oarsmen, and of the ill-fated Brynes that he too was a pretty good oarsman — as oarsmen seem to have been accounted then and there. But whatever may be said of the others, Chrismer was ignorant of boating* and exhibited no ambition to experiment in that line. He confided in his master to furnish him the necessary transportation, put himself in the vessel his master furnished him for that purpose and lost his life through the negligence of some one — was it his master’s negligence?
It was the defendant’s duty to furnish a reasonably safe boat, and to see that it was managed with reasonable care and skill, to carry its servants across the water. The transporting of these men back and forth across "the river at this point, though capable of being-accomplished with safety by the observance of due care, was nevertheless attended with danger and the care that was necessary to render it reasonably safe was the care that would be exercised by an ordinarily prudent person whose experience gave him knowledge of the conditions. The situation demanded of the riiaster knowledge of the danger reasonably to be' anticipated, knowledge of means reasonably calculated to avoid it, and ordinary *221care to use such means. Before sending his servants into a field where danger is reasonably to be expected it is the duty of the master to know what the.danger is, andto know what precautions are reasonably necessary to take to avoid it, he cannot hide his liability behind ignorance of the situation. The duty of the master in this respect is an imperative and continuing one. It may be delegated, but the person to whom it is delegated becomes in respect of it the master’s alter ego and his neglect is the neglect of the master. [Rodney v. Railroad, 127 Mo. 676.] This duty is unending while the service continues. Therefore, when the master in this case provided this boat it became his boat, and when he provided a man to row it the man was his vice-principal.
In contemplation of law the master was or should have been in person or by representative ever present -observing and directing the operation of the boat. If he was present and permitted the negligent operation he was liable for permitting it; if he was not present in person or by representative he was liable because he was negligently absent from his post of duty.
"When Chrismer saw this boat in the hands of the man, ostensibly, at least, employed by the master to manage it, he had a right to trust both the boat and the man as the providence of his master.
Can we in the light of the evidence in this case say, as a matter of law, that this master so faithfully performed its duty that there can in reason be no two-opinions about it? What did the master do ? He hired Lambke and his skiff and thereafter trusted everything to his judgment and management. Thompson the foreman himself testified that he gave Lambke no orders, and Caesar said that the only order he gave him was to land against the barge on the down-stream side. Lambke was, therefore, permitted to take his own head for it and navigate the boat as to him seemed proper, and so he had been doing for five days in view of the foreman and in view of' the men, in view of the master and in view *222of the servant. Under those circumstances can the servant be blamed if he looked upon Lambke as the man entrusted by the master to observe the care required in the safe handling of the boat?
So far as appears from the plaintiffs’ evidence the hiring of Lambke and his skiff is all that the master did; the assistance in rowing that Lambke received was voluntary and as might happen to be convenient from first one of the linemen and then another. Even the defendant’s evidence on this point does not help its case much. Caesar testified that he ordered Johnson and'Haines to help Lambke, because, he said, he knew them to be good oarsmen. Just what Caesar’s own experience was or his ability for judging the capacity of these men in this particular does not appear. But there was no evidence that Chrismer or any of the other men knew that any one was detailed to help Lambke or that Lambke himself knew it. Chrismer saw sometimes one and sometimes another helping to row without any notice that any one was designated by the foreman for that purpose, therefore, he had a right to judge from what he saw that Lambke availed himself of the help of anyone who was willing to help, and when he saw Byrnes in the place of the helping oarsmen he had as much right to think that he was there by authority as if he had seen Johnson there.
But aside from the question of an efficient helper, is it so clear that that skiff and Lambke constituted an all-sufficient means of transportation that there was no question in that respect to submit to the jury? This court might perhaps be pardoned if it assumed to know something of the nature of the Missouri river, its swift current, its changing banks, its shifting sand bars, its muddy water hiding obstructions, its eddies and its whirlpools, but without judicial cognizance of that, the evidence shows sufficient of the nature of the river to indicate that the transporting of those men to and fro as was done was a dangerous act demanding that great *223care should he observed by the master in guarding the lives of his servants who were trusting their lives to him.
Lambke was no skilled waterman, he was a landsman, a cob-pipe maker, who took to the river only occasionally for pleasure or an odd job. He was only nineteen years and ten months old. Can we say as a matter of law that he was so mature in years, so experienced and skillful in the handling of a boat that there is no question on that point to go to the jury? We sometimes-read of skillful amateur oarsmen in college teams who are not older than this young man, but we do not find them giving specimens of skill in rowing a boat freighted with human life in the waters of a turbid river, and, anyway, if we were seeking to find a man possessed of that care and prudence and experience that is required for the dangerous work to which this young-man was assigned we would not go to a team of college boys to find such a one.
Blame is chiefly laid on Byrnes whose awkward stroke caused his oar to foul, but we must remember that Byrnes was only a helper, he was not the chief oarsmen, he did not direct the course of the boat, he was not responsible for its going above the strand, necessitating the crossing of the strand to reach the downstream side of the barge, nor was he responsible for approaching too close to the end of the barge at the point when the strand dipped into the water, before attempting to cross. And if it be conceded that Brynes was unfit to handle the oars, Lambke, if he was himself fit to judge of his capacity in that respect, knew he was deficient, for he had rowed with him before. If, therefore, Byrnes was the cause of the accident and was unfit to handle the oars somebody was to blame for allowing him to attempt it — who was to blame? Certainly not Chrismer for he was no judge of such matters.
Lambke testified that on this occasion he took the course he usually took, that is, he first went above the *224strand, aiming to come down across it to reach, the downstream side of the barge. Thompson, the foreman, testified that the skiff ordinarily started below the strand and did not cross it; he also testified that it was dangerous to cross it. Yet seeing, if he was paying any attention to it, that the skiff did, sometimes at least, go above the strand and come back, across it, and knowing, as he said he did, that there was danger of the occurring of the very thing that did occur in this instance, he said he gave Lambke no order at all and Caesar gave none except to land at the down-stream side. That testimony seems to have been adduced by the defendant to support its theory advanced in its brief that Lambke was an independent contractor. In the brief for appellant at page 49 it is said: ‘ ‘ They, therefore, employed a ferryman who owned a skiff. His name wa.s Hugo Lambke. He did not become in any sense a servant of defendant, nor did he in anyway fall under the direction or control of defendant. ... In this case, instead of using a steam ferry, they contracted with the owner of a skiff to do the ferrying, and Hugo Lambke in furnishing his skiff to transport the men back and forth was clearly an independent contractor.”
If that was the case, then Lambke was not there in a representative capacity; he was the captain of the vessel, and he took orders from no one, he employed for his crew whom he chose, the foreman of the gang had no right to impose Johnson or Haines or anyone else on him; he had a right to select Brynes if he chose and, by acquiescence at least, on this occasion he did chose to let Byrnes take the oars. And if the master esteemed Lambke worthy of this trust and confided to his skill and judgment the lives of his servants, was it for the servant to question his master’s providence?
Lambke was either the servant of the defendant and subject to its orders or he was an independent contractor. If he was a servant he was a servant to discharge the duty the master owed to these other servants, *225and in that respect was the master’s vice-principal and if he was negligent it was the master’s negligence. If he was a servant, then, though as to others he was the master’s vice-principal, yet as to the master he was subject to orders, and if he needed orders or directions the master was negligent if orders or directions were not given. If on the other hand he was an independent contractor, then he was master of the boat and Thompson and Caesar were right when they saw him going and coming the course he chose and gave him no orders.
The defendant having for the purpose of shifting its liability asserted that Lambke was an independent contractor, cannot with consistency treat him also as one whom the other servants were to regard only as a servant without authority to act except under orders of the foreman, and without authority to row the boat with the help of any one except one appointed for that purpose by the foreman. Whether the defendant can take shelter behind the independent contractor theory or not, it has assumed in its brief to say in effect that Lambke was in command of that boat by virtue of his employment, and in that respect we think the defendant is correct, that at least was what Chrismer and the other men had a right to suppose from what they saw of the management.
But even in the employment of an independent contractor the employer does not lay aside all responsibility; he is bound to use care to employ a competent man and if he would take shelter behind him he must be prepared to show that the man employed was a competent person in that line of work. In 1 Thompson on Negligence, sec. 621, it is said: “It is a general rule that one who has contracted with a competent and fit person, exercising an independent employment, to do a piece of work . . . will not be answerable for the wrongs of such contractor, his subcontractors or his *226servants, committed in the prosecution of such work.” In the next section the author says: “In every case, the decisive question is, had the defendant the right to control, in the given particular, the conduct of the person doing the wrong?”
The author then proceeds in pages following to point out many exceptions or qualifications to the general rule which it is unnecessary now to consider, because the facts in this case do not in our opinion bring Lambke in the category of an independent contractor. There is no evidence that he was engaged in the ferry business or boating of any kind; such was not his avocation, he followed the business of making cob-pipes for a living, he was not known as and did not profess to be a contractor in river transportation of any kind. There was evidence tending to show that he knew how to row a skiff, but in the light of the evidence and of the undisputed facts of the case his fitness for this work was a subject on which, to state it most strongly for the defendant, there might be two opinions. There was nothing in the act of hiring that indicated an intention to' constitute Lambke an independent contractor. Thompson said that he hired Lambke and his skiff and in the end paid him two dollars a day; that is all that is shown by the record on the subject. The fact that he gave him no orders indicates only neglect of duty. It is said as a defense that when the skiff started that morning neither Thompson nor Caesar was present, but what good would it have done if they had both been there, since they would give no orders ? This was not the first time Byrnes had assisted Lambke in rowing and Thompson and Caesar either saw him doing so or would have seen him if they had paid attention or had cared to observe the movements of the boat. But their whole conduct shows that they treated Lambke as a competent person to man and manage the boat and trusted to his judgment, put him, as it were, at the head of the transportation department. If théy treated him so and *227held him out to Chrismer and the other men in that capacity, how can Chrismer and the others be blamed for putting the same trust and confidence in him?
The evidence points to the facts that Lambke was the master’s accredited manager of that boat, and the master’s vice-principal; it also tends to show that it was Lambke’s negligence that caused the accident. That negligence consisted in allowing Byrnes to take the oars, in selecting the more dangerous course which necessitated the crossing of the strand, and in so directing the course of the boat as to attempt the crossing of the strand too close to the end of the barge where the strand was not deep in the water. These were all matters under Lambke’s control and they combined to produce the accident.
There was evidence tending to show that Lambke could row a skiff, but ability to row a skiff under some conditions does not demonstrate ability to do so under other conditions, or prove one to be of sufficient judgment and skill to be entrusted with the lives of men under the circumstances shown in this case. Whether Lambke possessed such skill and judgment was, under the evidence; and in the light of the skill and judgment displayed by him on this occasion, a question for the jury. And though a skiff of the size, capacity and equipment of the one in evidence in this case may be a safe means of crossing the river under some conditions, yet it may not be so under other conditions, and whether the skiff in evidence in this case, taken with the provisions for its management and the peculiar circumstances shown in evidence, was a reasonably safe boat for the purpose was also a question for the jury.
On the whole case there was a showing of loose management indicating either that the danger had not been appreciated or proper care had not been taken to avoid it.
*228The court did not err in refusing the peremptory instruction asked by the defendant.
Gantt, and Burgess, JJ., concur with the writer in the views expressed in this opinion.