I dissent. I am in accord with the opinion of Mr. Justice Lennon and shall confine myself to some additional observations. The main opinion rests upon a negative answer to the question, "Was it negligence so to arrange the substation that a man was required *Page 563 to clean the wire distant twenty-eight and one-fourth inches from an uninsulated wire carrying a current of twenty-two thousand volts?" This conclusion is arrived at by a line of reasoning that we will take judicial notice that it is a "scientific impossibility" for a current of twenty-two thousand volts to "jump" a distance of twenty-one inches; that this was not the place where the plaintiff was usually required to work, and that the known proximity of the wires made it imperative for him to "be alert to the perils of his position"; that, inasmuch as he admitted "flipping" the cleaning rag about in order to reach higher on the wire which he was wiping, and also to shake the rag free from dust, "it is evident" that the injury was occasioned by his carelessness rather than by any negligence of the defendant; that, moreover, in view of the "scientific impossibility" already referred to, it cannot be considered negligence for the defendant to fail to provide against such an extraordinary violation of all known rules of the conduct of electricity as the "jumping" of the current over a space of twenty-one inches; and, finally, again calling attention to the "scientific principle" that electricity will not "jump" a distance of twenty-one inches, it is declared that the evidence does not sustain the implied finding that defendant was guilty of negligence in failing to provide a safe place for the plaintiff to work.
May we take judicial notice that a twenty-two thousand volt current will not "jump" twenty-one inches? The general rule as to when a court will take judicial notice is stated inDunphy v. St. Joseph Stockyards Co., 118 Mo. App. 506, 523, [95 S.W. 301, 306]: "Courts should observe the utmost caution to avoid assuming knowledge of natural facts and laws that are beyond the scope of common positive knowledge." (Italics mine. See, also, 124 Am. St. Rep. 21, note.) This rule is thus expressed in 15 R. C. L. 1127: "Judicial notice will be taken of scientific facts which are universally known, . . . but they must be of such universal notoriety and so generally understood that they may be regarded as forming part of the common knowledge of every person. . . . cognizance may not be taken of scientific matters of uncertainty or dispute, or of insufficient notoriety." (Italics mine.) And in Curtis on the Law of Electricity, page 3, it is said: "So dangerous a force as electricity must legally *Page 564 be considered in the same class as high explosives and other treacherous and destructive agents . . . the power and manifestations of which are fully comprehended only by experts." (See, also, Brown v. Consol. Light etc. Co., 137 Mo. App. 718, [109 S.W. 1032]; Campbell v. United Ry., 243 Mo. 141, [147 S.W. 788].) Several witnesses did testify that they had never known a current of twenty-two thousand volts to "arc" more than one and two-tenths inches, but Reuben D. Bennett, an electrician, stated: "Electricity is an unknown quantity. They presume that it will 'jump' so far. It never acts the same twice; there is no knowing how far it will go." I do not think that the "arcing" distance of twenty-two thousand volts has been proved to be so invariable as to attain the certainty of a scientific fact, or that it is a matter of such common knowledge or so generally understood as to entitle it to recognition under the theory of judicial notice.
The majority opinion, in discussing the plaintiff's duties in the cleaning of the transformer, states that "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 evidence was in conflict on this point. There was some testimony that it was unnecessary to clean the wires, but the chief operator at the substation testified that it was the practice to wipe the wire, as well as the bushing, and the plaintiff stated that such was the practice and that on the occasion in question he had been ordered by the chief operator to clean the wire. It seems to me from this state of the evidence that the jury may have found that it was customary to clean the wire, or, at any rate, that the plaintiff in cleaning it acted under the instructions of one in authority.
I am particularly impressed by the evidence from which the jury may have decided that the injury was the result of a false policy of economy in failing to erect a concrete wall between the station bus wires and the transformer. The complaint alleged that defendant's attention had, prior to the time when plaintiff was injured, been repeatedly directed to the dangerous proximity of the twenty-two thousand volt wire. The chief operator testified that in a conversation with defendant's electrical engineer, who controlled *Page 565 and supervised changes in substation construction, he said, referring to the spot where plaintiff was injured: " 'We have one awfully dangerous place to work here,' and I showed him this bus, how close it was to the one hundred thousand, and where we had to get up in there to work. . . . I told him it was absolutely unsafe. . . . He says, 'I know it is pretty close. This place is not arranged just as we would like to have it, but we have not got money to spare now to make any changes.' " This witness testified that he had had similar conversations with the superintendent of substations and the superintendent of operations, both of whom acknowledged to him that the place was unsafe, but said that the company could not afford to install safety appliances. As Mr. Justice Lennon points out, the expenditure of one hundred dollars would have rendered the place safe. The defendant was under the duty of providing a reasonably safe place for the plaintiff to work, and it must be implied from the verdict and the order refusing to grant a new trial on the claim of insufficiency of evidence that the defendant failed to perform this duty. There is nothing in the Roseberry Act to indicate that the term "personal gross negligence" implies that actual knowledge of the dangerous condition of the premises must be brought to the attention of the officers of a corporation before the failure to remedy such condition becomes the negligence of the corporation.
I therefore conclude that it cannot be held, without invading the province of the jury, that, upon the application of the theory of judicial notice, or otherwise, "the plaintiff failed to establish that gross negligence upon which his cause of action was predicated"; nor that the plaintiff was careless in wiping the wires; nor that the defendant was not guilty of personal gross negligence in failing to provide a barrier between the station bus wires and the transformer.
Rehearing denied.
All the Justices, except Lawlor, J., and Lennon, J., concurred. *Page 566