more gas to go over the crossing. The plaintiff testified that she did not remember anything after they had been in front of a store a good many blocks away and did not do anything in connection with the driving at all. A doctor testified that she did not remember anything until six days after the accident. She had signed a statement on September 2, 1915, that she did not know at the time of the accident that there was a train approaching; that she considered Ethel Shambaugh, who was driving the car, a thoroughly competent driver and relied entirely upon her intelligence in driving the car, and as she approached the crossing she did not make an effort to look or listen for trains. At the trial, while she said she did not remember anything about the collision, she said that she left the driving and management of the automobile entirely to the driver and did not do anything in connection with it.

Although there was no dispute of the fact that Kline had a lighted lantern, and he testified that he signaled by waving the lantern back and forth, there was the testimony of Ethel Shambaugh that she looked and did not see anything and the testimony of other witnesses that the light they saw was on the box car, so that the court could not say, as a matter of law, that there was no evidence of negligence on the part of the defendant or ordinary care of the plaintiff.

On the trial plaintiff called a doctor as an expert, who said that he testified in two or three personal injury cases each week and that this was the third time he had testified for the plaintiff's attorney. The attorney asked his opinion upon a hypothesis that the accident occurred with the consequent physical injuries which had been testified to, and that at the time of the trial, nearly three years after the accident, the plaintiff had dizzy spells, pains in the back of her head, pains in her back starting at the right of the spine and running around the front and down the front part of the body, and that after the accident she had exaggerated

reflexes and was pale and sick-looking and a natural process of nature was delayed. Assuming these facts the doctor was asked to give an opinion as to whether that condition could have been caused or brought about by the injury received on July 17, 1915. The question was objected to because it did not include in the hypothesis all of the facts proved, and the objection being overruled, the witness answered that in his opinion the condition stated could be the result of the injuries and that the condition was permanent. The plaintiff had testified that after the accident she was nervous and irritable and was still nervous and unable to sleep, and that the gums were shrunken away from her teeth, and it had been proved and not contradicted that before the accident she had been treated for dysmenorrhea, which caused extreme nervousness and had a disturbing mental influence, and that she had had other illnesses and disorders, and none of these undisputed facts were included in the hypothesis.

Expert testimony on matters not within common knowledge and experience is necessary to enable juries to determine questions of fact submitted to them, and there are experts of great knowledge and high personal standing whose opinions delivered without bias are a substantial aid to the attainment of justice. That class of evidence, however, is generally discredited and regarded as the most unsatisfactory part of judicial administration. This is with good reason, because the expert is often the hired partisan and his opinion is a response to a pecuniary stimulus. The opinion has the sanction of an oath but lacks the substantial safeguard of truth applied to testimony concerning facts observed by a witness which is afforded by the criminal law since the opinion is the result of reasoning, and no one can be prosecuted for defective mental processes. The field of medicine is not an exact science, and the expert being immune from penalties for perjury, his opinion is too often

the natural and expected result of his employment. The objections to that character of evidence can only be overcome or obviated by control by the court of the witness and the examination and such supervision as will at least fairly present the facts upon which an opinion is called for. If the facts are disputed the party examining the witness may include in the hypothesis only those facts which the evidence on his side tends to prove, and it will be for the jury to say whether the facts stated have been proved or not and accept or reject the opinion accordingly. If the evidence as to the particular matter inquired about is not disputed it is obvious that the hypothetical question must contain all the facts or the opinion will not only be worthless but be likely to mislead the jury. If counsel selects from the undisputed facts those which are most favorable to his party and obtains an opinion thereon, the jury may forget the partial nature of the premises and adopt the opinion of the witness on the partial statement. (1 Wigmore on Evidence, sec. 682.) In Fuchs v. Tone, 218 Ill. 445, it was held that a question was properly refused where a considerable portion of the services which the plaintiff was employed to perform was not included in the question, and it was held in McCarthy v. Spring Valley Coal Co. 232 Ill. 473, that a hypothetical question must not ignore material facts which affect the opinion. The opposite party may cross-examine and supply the needed facts, but that ought not to be required and would not obviate entirely the impression created by the first opinion. The argument that the ruling of the court is sustained by FellowsKimbrough v. Chicago City Railway Co. 272 Ill. 71, and Heineke v. Chicago Railways Co. 279 id. 210, misses the point of the objection. It was there held that an expert could be asked for his opinion as to whether certain things might cause or bring about a certain condition, but it was not decided that a question stating part of the undisputed facts proved was proper. The ruling was wrong.

The court gave at the instance of the plaintiff the following instruction:

"If you believe from a preponderance of the evidence that the plaintiff was a guest in the automobile at the time of the accident, at the invitation of the owner, without authority to direct or in any manner control the conduct of the driver of the automobile, and that before and at the time of the accident she was in the exercise of ordinary care for her own safety, then the negligence of the driver of the automobile, if any, could not be imputed to her."

It was essential for the plaintiff to prove that she was in the exercise of ordinary care for her own safety in approaching and going upon the crossing, and she was not relieved from that duty because she was riding in an automobile. If she exercised such care any negligence of Ethel Shambaugh could not be imputed to her, but she would be responsible for her own negligence. The plaintiff sat at the right of the driver in front, with at least equal opportunity to observe danger and the approach of the train, and being bound to prove the exercise of ordinary care by herself, it was no less her duty than that of the driver to observe and avoid danger, if practicable, and to warn the driver. (Flynn v. Chicago City Railway Co. 250 Ill. 460; Pienta v. Chicago City Railway Co. 284 id. 246.) The plaintiff testified that she had no remembrance of the occurrence, and her only reliance to prove her ordinary care was the testimony of Ethel Shambaugh and Belle Wood as to what they could see. If Ethel Shambaugh was not guilty of any negligence in driving the car and could not see or hear anything to indicate the approach of the train, it would, perhaps, be a fair inference that the plaintiff could not, but the instruction was inconsistent and contradictory in substantially telling the jury that although Ethel Shambaugh did not exercise ordinary care for the safety of those in the automobile yet the plaintiff might have been in the exercise of such care herself, without the slightest

evidence that she did anything at all. As a general rule, one who has no control or authority over another is not responsible for the negligence of the other, but instructions should be given as an aid to the jury in deciding the case, and in view of the evidence this instruction was wrong. The only possible ground for recovery was the testimony of Ethel Shambaugh as to her own conduct and care in the management of the automobile. Three directly contradictory instructions were given at the request of the defendant, but they did not cure the error, and apparently the erroneous instruction was adopted by the jury in deciding the case.

Other errors are assigned and argued concerning matters not likely to arise on another trial.

The judgment is reversed and the cause remanded.
Reversed and remanded.

(No. 13336.-Judgment reversed.)

LOMBARD COLLEGE, Plaintiff in Error, vS. THE INDUSTRIAL COMMISSION et al.-(GILLIS HVARFVEN, Defendant in Error.)

Opinion filed October 23, 1920.

WORKMEN'S COMPENSATION-When corporation is not liable as an employer under section 31 of Compensation act. An eleemosynary corporation conducting an institution of learning is not within the meaning of section 31 of the Compensation act when employing a contractor to repair the house it furnishes as a home for its president, and it is not obliged to require the contractor to insure his liability to pay compensation to his employees in order to avoid liability for an injury to an employee of the contractor.

WRIT OF ERROR to the Circuit Court of Knox county; the Hon. GEORGE W. THOMPSON, Judge, presiding.

WILLIAMS, LAWRENCE, GREEN & GALE, for plaintiff in

error.