distant from them to a pole and thence to a car barn; that from and inside the car barn an insulated flexible wire ran back to an incandescent electric light, and a man who was standing on cinders, packed about 10 inches deep, grasped hold of the insulated wire or of the light socket and received a shock of electricity which burned his hand and killed him-will you state in your opinion how he might have received that shock? Ans. He might have received that shock by the primary current leaking on to the secondary wire to which the man had his hand attached, and through his feet to the other side of the generator which generated the current which produced the high voltage primary that you speak of." The principal complaint made to this question is that it calls for the opinion of the expert upon the very question to be decided by the jury, and amounts to an usurpation by the witness of the functions of the jury. From the nature of expert testimony, every hypothetical question propounded to an expert in any case may call for an opinion upon some issue or fact which is to be determined by the jury, and it is therefore not always a good objection to such question that it calls for an opinion upon a question to be decided by the jury. The opinion of an expert is admitted in any case only from necessity, where some special knowledge not possessed by persons in general, and hence not presumed to be possessed by the jury, is required in reaching a proper conclusion from a given state of facts, and its admission is in no wise an invasion of the province of the jury. The expert witness has nothing whatever to do with settling controverted questions of fact or with determining the credibility of witnesses. His opinion is based upon a state of facts which is assumed to be true, and he is not permitted to express an opinion as to whether the evidence establishes the assumed state of facts rather than some other state of facts which the evidence tends to prove. It is the province of the jury to determine whether the state of facts assumed by the expert to be true has been established by the evidence. case they find that such state of facts has been established, then they are authorized to adopt the opinion of the expert as their conclusion upon that state of facts; but, if they find that such assumed state of facts has not been established, then the opinion of the expert, as a matter of course, cannot be followed by them. It is therefore apparent that the functions of the jury are not usurped by an expert witness who gives an opinion upon some assumed state of facts which the evidence tends to prove, where it requires some special knowledge or skill in order to reach the proper conclusion from that state of facts. The statement found in Chicago & Alton Railroad Co. v. Springfield & Northwestern Railroad Co., 67 Ill. 142, to the effect that an opinion covering

the very question to be found by the jury is improper, evidently means that an opinion cannot be expressed upon the ultimate question to be found by the jury, which in this case was whether appellants had been guilty of negligence which caused the death of Enzler. The question above quoted does not call for an opinion on that question, and hence is not subject to this objection made against it.

It is next urged that the question was not based upon the evidence. So far as the question itself is concerned, there is no foundation for such objection, as the evidence tended to prove all the facts assumed therein. From appellants' argument. however, it would seem that the objection intended to be made is that the witness based his opinion upon certain alleged facts which were not included in the question and not shown by the evidence, but which, from the answer, appear to have been taken into consideration by the expert and assumed by him to be true. If the answer is subject to such criticism, appellants are in no position to complain, as they made no motion to strike out the answer, and the objectionable feature did not appear when the court made its ruling upon the question. We are not called upon to decide whether the above question is objectionable for any reasons other than those above considered.

It is next urged that the court committed reversible error in permitting expert electricians to answer the following questions propounded by appellee: "Q. How could a higher current than 104 volts get in those secondary wires? Ans. By the primary and secondary wires getting crossed with one another, the wind blowing them together accidentally, or there might be a leakage in the transformer. Q. Does that sometimes happen-a leakage in the transformer? Ans. It does on some occasions. Lots of times a transformer is overloaded, and it overheats it, and it gets affected in that way. Q. Might a transformer be so affected that a higher current than 104 volts, and still not 2,280 volts, could go along that secondary wire? Ans. On one side; yes, sir. Q.

Suppose those wires should blow together, and those uninsulated points should come together for an instant; would that be long enough for that high voltage you speak about to go through? Ans. Yes, sir. Q. How might it be possible to have 500 volts flowing along an incandescent or secondary wire where the following facts are true: That it was a two-wire circuit carrying about 2,000 volts alternating current, running to a general electric ten-kilowatt transformer on a pole, and that from the transformer a secondary circuit supposed to be carrying 104 volts, supplying incandescent lights, ran back alongside of the primary wires, and from 10 to 12 inches distant from them, to a pole, and thence to a car barn? Ans. I would think it would be

The foreman directed him to go down, stating that there was no danger, and that the board would be all right when there was weight placed upon it. Plaintiff thereupon attempted to descend, and the board, catching on a projected rivet, tipped, and caused him to lose his seat and fall to the bottom of the stack. Held, that plaintiff did not assume the risk of injury, as a matter of law.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, § 1086.] 2. SAME-CONTRIBUTORY NEGLIGENCE-QUESTION FOR JURY.

Whether plaintiff was guilty of contributory negligence in attempting to descend on the swing board facing the center of the stack, instead of sitting with his knees facing the stack walls, was for the jury.

[Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, §§ 1089-1092, 1095, 1096, 1106-1126.]

Where, in an action for injuries to a servant, the second count of the declaration on which the case was 'submitted to the jury averred facts which, if true, showed that plaintiff did not assume the risk, which caused his injury, instructions that plaintiff might recover, if he had proven his case as stated in such count, were not objectionable, as ignoring the defense of assumed risk.

[Ed. Note. For cases in point, see vol. 46, Cent. Dig. Trial, §§ 613, 616.]

4. SAME-ARGUMENT OF COUNSEL-ACTION OF

COURT.

Where plaintiff's counsel in his closing argument argued facts alleged in a count of the complaint which had been withdrawn, but an objection made thereto was promptly sustained by the court, and counsel was reproved for indulging in the arguments referred to, his misconduct did not constitute reversible error.

[Ed. Note.-For cases in point, see vol. 46, 'Cent. Dig. Trial, § 316.]

Appeal from Appellate Court, Third District.

Action by Roscoe E. Parks against the Springfield Boiler & Manufacturing Company. From a judgment in favor of plaintiff, affirmed by the Appellate Court, defendant appeals. Affirmed.

This was an action on the case commenced by the appellee, by his next friend, in the circuit court of Sangamon county, against the appellant, to recover damages for an injury to his person alleged to have been sustained by him while in the employ of the appellant. The case was submitted to the jury upon a declaration containing one count, which averred the appellee was inexperienced in the particular work in which he was engaged; that the foreman of appellant had knowledge of such inexperience and ordered appellee to use a certain swing board in descending a stack for the purpose of doing certain work therein, and assured appellee he would incur no danger in using said swing board; that appellee, relying on such assurance of safety, used the said swing board, and while descending thereon into said stack he fell from said swing board and was injured, etc. The general issue was filed, and a trial resulted in a verdict and judgment in favor of the appellee for the sum of $2,500, which

has been affirmed, on appeal, by the Appellate Court for the Third District, and a further appeal has been prosecuted to this court.

The appellant was engaged in constructing two stacks for the Springfield Electric Light & Power Company at the plant of said company in the city of Springfield. The appellee was employed by appellant as a workman upon said stacks. When he commenced work thereon, two brick stacks 35 feet high, which extended to within 10 feet of the roof of the power house, had been completed. On these brick stacks appellant constructed metal stacks 35 feet high, and which, when completed, extended 25 feet above the roof. The metal portions of said stacks were constructed by riveting together sheets of iron in courses 5 feet in width. While at work on the inside of the stacks the workmen stood upon scaffolding which was constructed as the work progressed, and the workmen on the outside of the stacks were supported either in a swinging cage or upon a swing board, which was attached by hooks to the top of the rims of the stacks. The swing board consisted of a board 14 inches thick, 16 to 18 inches wide, and 2 feet long, with cleats on the bottom to prevent its splitting. In each corner of this board, about an inch from the ends and sides, were bored an inch and a quarter hole, and through these holes, on each end of said board, a three-fourths inch rope ten feet long was passed, the ends of which were firmly tied beneath the board. Said ropes also passed freely through rings of the size of the holes in said board, which were fastened to iron hooks, and, when the swing board was in use, the hooks passed over the top of the rim of the stack, and the operator sat upon the board between the ropes, with his face toward the stack and his feet suspended downward below the board; his knees being between the edge of the board and the side of the stack. The swing board was raised and lowered by its hooks being attached to a rope which passed through a pulley in the end of an arm which was fastened to a gin pole, which was placed upon the scaffold in the north stack. The appellee was 19 years of age at the time he was injured, and had been in the employ of the appellant about four months, and had worked in the appellant's shops as a laborer and boiler maker's helper until he commenced work upon the stacks at the plant of the electric light and power company. Just before going to work upon said stacks the appellant was about to lay off a number of its workmen, including appellee, but retained the appellee and put him to work upon said stacks upon his statement to its superintendent that he wanted work; that he had assisted in building scaffoldings, was in the habit of going up high, and that he thought he could do the work upon said stacks satisfactorily. The appellee worked mostly upon the outside of the stacks, his duties being to insert the rivets through the holes in the

sheets of iron from that side and to hold a hammer against the same while they were bradded by a workman upon the inside of the stacks. The appellee, while at work, usually occupied the cage, but upon two or more occasions used the swing board, and on different occasions, in ascending or descending the outside of the stacks, was drawn up in the swing board.. On the day of the injury the stacks were completed by appellee and a fellow workman named Foster, by riveting thereon the crowns and fastening the stacks together by placing thereon angle irons. When completed the scaffold remained in the north stack, but the one in the south stack had been removed. When appellee and Foster had completed the work at the top of the stacks, Charles Gue, the foreman in charge of the work, directed the appellee to go down into the south stack and to remove some plates at the bottom of that stack. Appellee testified that Gue then said to him: "You go down. You are already there on the stack. You go down and take those plates out." That he replied he did not want to go down on the swing board. That Gue wanted to know what was the matter, and he replied he did not like the way the ropes were fixed, did not like the way they ran through those rings, did not think that they were safe. That Gue then said: "Go on! There is no danger. It will be all right when you get some weight on it." Whereupon appellee tied the pulley rope into the hooks of the swing board and got onto the swing board with a hammer in his right hand, his feet toward the center of the stack, and his left side and back toward the north side of the stack, and grasped the ropes with both hands, and, while he was being lowered by Gue and another man who stood upon the roof, a corner of the swing board caught upon a projecting rivet and tipped up, which caused appellee to slip off his seat. He held on with his hands and called for help, but before help came he became exhausted and fell to the bottom of the stack and was severely injured.

Patton & Patton, for appellant. Stevens & Stevens, for appellee.

HAND, J. (after stating the facts). The appellant, at the close of all the evidence, asked the court to instruct the jury to return a verdict in its favor, which the court declined to do, and the action of the court in that regard has been assigned as error and is mainly relied upon in this court as a ground of reversal.

The first ground urged as a reason why such instruction should have been given is that the appellee assumed the risk of being injured from the use of said swing board while at work upon said stacks, and as he was injured while using said swing board there could be no recovery. It is the settled

law of this state that, where a servant engages to perform service for another, he does so in view of the risks incident to his employment, and that he will be presumed to have contracted with reference to such risks and to have assumed the same, and, if he receive an injury resulting from the incidental risks and hazards ordinarily connected with such employment, he cannot hold the master responsible. This general rule has, however, like most general rules, its exceptions, one of which is that when the servant is directed by the master, or one who stands to the servant in the place of the master, to encounter a danger, and the servant, by reason of such direction, does encounter the danger and is injured, the master cannot escape liability unless the danger which the servant is directed to encounter is so apparent that an ordinarily prudent person would not have encountered it, in which event the master escapes liability on the ground of contributory negligence on the part of the servant, rather than that of assumed risk. Illinois Steel Co. v. Schymanowski, 162 Ill. 447, 44 N. E. 876; Offutt v. World's Columbian Exposition, 175 Ill. 472, 51 N. E. 651; Graver Tank Works v. O'Donnell, 191 Ill. 236, 60 N. E. 831; Illinois Steel Co. v. McFadden, 196 Ill. 344, 63 N. E. 671; Illinois Central Railroad Co. v. Atwell, 198 Ill. 200, 64 N. E. 1095; Illinois Central Railroad Co. v. Sporleder, 199 Ill. 184, 65 N. E. 218; Chicago & Eastern Illinois Railroad Co. v. Heerey, 203 Ill. 492, 68 N. E. 74. The appellee testified that, when he and his fellow workmen had completed the stacks, appellant's foreman directed him to go down into the south stack and remove certain plates from the bottom of that stack. That he stated to the foreman he did not want to go down upon the swing board as he did not think it was safe, but that the foreman said to him: "Go on! There is no danger. It will be all right when you get some weight on it." And that thereupon he attached the hooks of the swing board and started to descend into the stack, when the end of the board caught upon a rivet and the board tipped and he fell to the bottom of the stack. While this statement of appellee was contradicted by the foreman, the jury, the circuit court, and the Appellate Court have found upon that proposition in favor of the appellee, and their findings are binding upon this court. It is therefore clear the appellee was acting under the direction of the foreman of the appellant at the time he was injured. In Illinois Steel Co. v. Schymanowski, supra, on page 456 of 162 Ill., and on page 878 of 44 N. E., it is said: "Where a corporation authorizes one of its employés to have the control over a particular class of workmen in any branch of its business, such employé is, quoad hoc, the direct representative of the company. The commands which he gives within the scope of his authority are the commands of the company itself, and,

if such commands are not unreasonable, those under his charge are bound to obey at the peril of losing their situations. Hence the company will be held responsible for the consequences." And in Offutt v. World's Columbian Exposition, supra, on page 479 of 175 Ill., and on page 635 of 51 N. E.: "The rule is that, where the servant is injured while obeying the orders of his master to perform work in a dangerous manner, the master is liable, unless the danger is so imminent that a man of ordinary prudence would not incur it." And the question whether the execution of the order of the foreman was attended with such danger that a man of ordinary prudence, having the knowledge of the situation which appellee had, would have incurred the danger by going upon the swing board, was one of fact for the jury. Pittsburg Bridge Co. v. Walker, 170 Ill. 550, 48 N. E. 915; Offutt v. World's Columbian Exposition, supra; Graver Tank Works v. O'Donnell, supra. We think, in view of the testimony of appellee and the authorities hereinbefore referred to, that the appellant cannot invoke the doctrine of assumed risk in this case to relieve itself from liability.

It is next contended the instruction should have been given on the ground that a right of recovery was defeated by reason of the contributory negligence of appellee. While it is true appellee sat upon the swing board facing the center of the stack as he started to descend instead of with his knees against the wall of the stack, as was the customary method of sitting upon the swing board, the arm attached to the gin pole in the north stack, to which the pulley rope which controlled the movement of the swing board was fastened, was not of sufficient length to permit the swing board to swing freely in the south stack, and appellee testified he sat upon the swing board in the manner in which he did, so, as he thought, he could more easily avoid contact with the side of the stack as the swing board descended into the stack, and, while the appellee had been inside of the stacks, it does not appear from the evidence that he had, prior to the time he fell, used the swing board for ascending and descending the inside of the stacks. It also appears that the stacks were riveted on the inside, which would cause the inside. of the stacks to present a more uneven surface and afford greater obstruction to the free ascent and descent of the swing board than the outside of the stacks, where the heads of the rivets alone were exposed, and by reason of the concave surface of the inside of the stacks the corners of the swing board would be more likely to come in contact with the surface of the stacks as it moved up and down and cause the board to tip than they would with the outside of the stacks. Negligence and contributory negligence are questions of fact, and, unless the facts are uncontroverted and all reasonable

minds would readily agree as to the conclusion to be drawn from the admitted facts, those questions are questions to be submitted to the jury as questions of fact, and not to be decided as questions of law by the court. In view of all the facts proven in this case, we think the question whether the appellee was guilty of such contributory negligence as should defeat his right to recover was properly submitted to the jury as a question of fact.

It is also urged the evidence does not show the appellant to have been guilty of the negligence charged against it in the declara. tion upon which the case was submitted to the jury. It must be conceded the swing board from which the appellee fell was a very simple device, the use of which might readily be understood by the ordinary man. The case was not submitted to the jury, however, upon the theory the swing board was defective or of complicated mechanism, but upon the theory the appellee was inexperienced in its use; that the foreman of appel.lant was aware of that fact, but nevertheless ordered the appellee to descend into the stack thereon with the assurance that the swing board was a safe appliance to be used for that purpose. It is evident it would require more or less experience in the use of a swing board to enable a workman in safety to descend thereon into a stack 70 feet high, and whether the appellee was possessed of such experience in the use of the swing board at the time he was ordered by the foreman of the appellant to go thereon to the bottom of the stack was clearly a question of fact, and not of law. On this branch of the case it is, however, urged the evidence fails to show that Gue, the foreman of appellant, had knowledge, as was averred in the declaration, that the appellee was lacking in experience in the use of the swing board at the time he ordered the appellee to descend into said stack. At the time appellee went to work, a foreman by the name of Cook was in charge of the work upon said stacks. After the work thereon had progressed for a number of days, Cook was superseded by Gue, appellant's regular stackman. Appellee testified when Gue took charge of the work he inquired of him if he had ever worked upon stacks before, and that appellee informed him he had not. That evidence fairly tended, we think, to support the averment of the declaration that Gue knew the appellee was wanting in experience in the use of the swing board in the construction of stacks at the time he ordered the appellee to descend into the stack upon the swing board. We are of the opinion the court did not err in declining to peremptorily instruct the jury to find for the appellant, but that the court properly submitted the case to the jury.

It is further contended that the court improperly gave to the jury the first, second, and third instructions offered on behalf of