Plaintiff recovered judgment in the lower court for damages sustained by him November 3, 1913, by the short-circuiting of a twenty-two thousand volt current through his body while he was engaged in the work of cleaning certain bushings and wires in an electric substation operated by the defendant, his employer. Defendant appeals. At the time of the injury the Roseberry Act (Stats. 1911, p. 796) was in force, and both plaintiff and defendant had elected to be bound by the provisions thereof. Plaintiff, however, ignored the compensatory provisions of that statute as therein authorized, in cases of gross personal negligence, *Page 550 and brought this action in which the jury found as a fact by necessary implication that the defendant was guilty of such gross personal negligence. Unless such negligence has been proved, the plaintiff cannot recover. The claim of negligence is based upon the failure of the employer to furnish a safe place to work. Briefly stated, the admitted facts are as follows: In the substation were three stationary transformers by which electricity entering at one hundred thousand volts was transformed by induction into a current of twenty-two thousand volts. To prevent the grounding of the high-voltage current, insulators, called bushings, extended four feet six inches above the upper surface of the transformers, which surface was eleven feet five and one-fourth inches above the floor of the substation. In order to prevent the current from leaking over the surface of these bushings it is necessary to clean the surface thereof of dust and other accumulations about once a month, and for this purpose the current was shut off from the one hundred thousand volt circuit. Plaintiff was engaged in cleaning this surface and the uninsulated copper wire leading therefrom at the time of his injury, and for that purpose the current had been shut off from the high-voltage circuit. The injury resulted from the short-circuiting through his body of the twenty-two thousand volt current coming from a station bus distant from the wire being cleaned, at its closest point, between twenty-eight and one-fourth and thirty-one inches. It was unnecessary to clean the surface of the copper wire, as the purpose of the cleaning was to avoid the danger of short-circuiting the current over the surface of the bushing. The plaintiff had been working in the substation a month and knew the voltages carried by the respective wires and believed that the arcing distance from the twenty-two thousand volt wire was only three-eighths of an inch. He had arranged the switches at the substation to shut off the current on the one hundred thousand volt wire and retain the current on the twenty-two thousand volt wire, and at the time he was engaged in cleaning the former the twenty-two thousand volt wires were "hot." The arcing distance of a twenty-two thousand volt current to ground under the most favorable conditions is one and two-tenths inches. Assuming that it was properly a part of the duty of the employee not only to clean the bushing, but the copper wire arising therefrom, the question *Page 551 at issue resolves itself into this: Was it negligence to so arrange the substation that a man was required to clean the wire distant twenty-eight and one-fourth inches from an uninsulated wire carrying a current of twenty-two thousand volts? It must be obvious that such a wire could be cleaned by wiping it with a rag, without bringing any part of the body sufficiently near the station bus to produce an arc. If this was a usual place in which a workman was required to perform duties which would distract his attention from the perils involved in working in proximity to an uninsulated high-voltage wire, and there was a possibility of contact by reason of unconscious or involuntary action, it might readily be concluded that a finding of gross negligence by the was sustained by the evidence. But this was not a place where workmen were usually required to work. At most but once a month were they called upon to perform this service, and then under conditions which necessitated their careful attention to the condition of the various wires in the substation. To have come in contact with the one hundred thouand volt wire, or within arcing distance thereof (ten and one-fourth inches) meant instant death. It is evident that a man engaged in the occasional task which occupied the plaintiff would naturally be alert to the peril of his position. At this point it is well to give the plaintiff's statement as to the conditions attending his injury. He testified that the current jumped across a space of twenty-one inches to the back of his hand. If this were a contestable fact, we would have to assume the correctness of this testimony in determining the question of defendant's negligence. [1] But it is a scientific impossibility for a current of that voltage to jump through the air for that distance and it is shown that a lightning-arrester with a perfect ground reached within one inch of the wire. [2] It is a scientific fact of which we take judicial notice that if a twenty-two thousand volt wire had been surcharged with a sufficient voltage to jump for a distance of one inch, such additional voltage would have discharged into this ground wire at one inch rather than to ground through the hand of the plaintiff at twenty-one inches. Moreover, the iron beams of the substation were within twelve inches of the twenty-two thousand volt wire and connected with the corrugated iron surface of the substation so as to form a perfect ground, and this would receive *Page 552 the discharge before plaintiff could have been injured as he states. Plaintiff testified that the rag in his hand was moist and dirty; that he had been flipping the rag about in an endeavor to clean the one hundred thousand volt wire at a point higher than he could reach, and for the purpose also of shaking the dust out of it. It is defendant's contention that his injury resulted from the rag coming in contact with the twenty-two thousand volt wire and thus forming an are which, once formed, may extend a distance of two or three feet. If the injury thus resulted it is evident that it was occasioned by the carelessness of the plaintiff rather than the gross negligence of the defendant. In determining the credibility of the plaintiff's testimony we may freely concede that he testified with the utmost good faith. It is doubtful if anyone who has survived a stroke of lightning or a short-circuit from a high-voltage wire could either observe, or if he did, could remember the circumstances. But if we assume that his testimony is absolutely true and that the current did leap over this intervening space of twenty-one inches without short-circuiting into the lightning-arrester or any of the nearer metal conductors in the building, it would at once follow that this extraordinary violation of all known rules of the conduct of electricity of that voltage was such as no human being could anticipate, and the failure to anticipate it could not be considered negligence. The defendant in arranging its substation was only bound to make provision for those laws of nature of which one of ordinary prudence engaged in a like enterprise would be required to take notice. [3] Whether, therefore, we regard the circumstances detailed by the plaintiff as an inherent impossibility or, as an extraordinary and unprecedented electrical phenomena, the defendant cannot be held guilty of gross negligence in the arrangement of its electrical devices in the substation. A good deal is said in the evidence and in the briefs concerning the distance which should be maintained between wires carrying a twenty-two thousand volt current and those carrying one hundred thousand volt current. This testimony has no significance in this action, for the reason that such testimony is directed to a condition where both wires are charged with the current they are designed to carry, and has no relevancy to a situation where the one hundred thousand volt wire is "dead." We have, therefore, directed our attention *Page 553 to that situation. It is proper to say that the testimony of an expert witness to the effect that it was customary and desirable that a partition should be placed between wires carrying these voltages, and that such partitions would have made the place a safe one in which to work, has no significance other than to point out the fact that if there had been a partition between the plaintiff and the twenty-two thousand volt wire he would not have been injured. This, of course, is a self-evident fact. Mr. Van Norden, an electrical engineer, was asked his opinion as to what precautions could be made which would make the situation perfectly safe to a man working where plaintiff worked. He replied: "The only safe method of construction in a point of that kind, and I think it is general practice, would be to have a barrier or cell wall outside of the one hundred thousand volt line to protect the one hundredthousand volt line from any possible circuit that might be nearit. In other words, there should have been a barrier between the one hundred thousand volt line and the twenty-two thousand volt line." He further testified that the ordinary form of barrier is a thin reinforced concrete wall and that the practice was to place each one hundred thousand volt transformer in a separate cell or the three in a single cell; that is, a room closed at both ends, at the back and top and open in front. It developed, however, that the reason this witness considered the place where plaintiff was working dangerous was because "it is always dangerous to work within reaching distance of a twenty-two thousand volt line, because a man might unconsciously put his hand out, or his coat might fly out, or in this case the rag that was in the man's hand, the point of the rag might fly out as he moved around unconsciously, and either come very close to the wire, or actually strike it, in which case there is no question but he would get a short-circuit falling down into his hand and hence over his body, as it probably was in this case, because, if it had gone through his body, it probably would have killed him — down through his shoes and into the transformer and to the ground.
"Q. Then, as I understand it, it is because the man might come close to the twenty-two thousand volt wire?
"A. He might, if he was constantly keeping his presence of mind, he might work up there every day for years and not actually come close enough to get a shock off of that wire. *Page 554 Then, again, in an unconscious moment he might do it. It does not seem to me that there is any particular question of negligence, it might be unconscious."
In response to a question of a juror this witness also testified that the accident would have been impossible if such a barrier had been erected between the two wires. The arcing distance of a twenty-two thousand volt current having been established by expert testimony, the question as to whether or not plaintiff was working in a safe place was not a question for an expert witness, and although the evidence came in in the first instance without objection, motion was made to strike it out. It is sufficient, however, to say that the witness did no more than to call the attention of the court and jury to the obvious fact that a man working within thirty-one inches of a live wire might carelessly or thoughtlessly come in contact with it. Whether or not this constituted either negligence or gross negligence was a question of law and fact. [4] Where, as here, all the facts are either shown without dispute, or by scientific principles of which the court takes judicial notice, the question of whether or not the evidence was sufficient to support a finding of gross negligence is a matter of law for the court. In the view we take of the case it becomes unnecessary to determine whether the plaintiff was guilty of negligence or that the defendant was guilty of lack of ordinary care, for we hold, as a matter of law, that the plaintiff failed to establish that gross negligence upon which his cause of action was predicated. For the same reason it is unnecessary to determine whether such negligence is personal, within the meaning of the Roseberry Act (supra), and it is unnecessary to pass upon the question of whether the defenses of contributory negligence or assumption of risk are available under the Roseberry Act in cases based upon the gross personal negligence of the employer.
The judgment is reversed.
Olney, J., Shaw, J., and Angellotti, C. J., concurred.