essary for the court to direct a verdict as it did, and the court has been offered no reason to overcome this belief which would warrant the granting of a new trial. "In the case of Hall v. Murdock, 114 Mich. 223 (72 N. W. 150), the court says:

"We think there was evidence sufficient to submit the case to the jury whether the cable had become old and worn, and parted in consequence. The mere fact that it broke, under the decisions of this court, was no evidence of negligence.'

"In the case of Mirabile v. Simon J. Murphy Co., 169 Mich. 522 (135 N. W. 299), the Supreme Court of this State has passed on the question squarely. The plaintiff in that case proceeded on the theory that it was only necessary to show that the elevator dropped. He said:

""When the plaintiff proved that the elevator dropped while she was alighting therefrom, her negligence in no way contributing thereto, she made out a prima facie case, establishing the negligence of the appellant.'

"The court, however, did not take this view, and Justice BLAIR said:

"The weight of authority seems to be in favor of this proposition, * but such is not the rule in this State.'

-citing a number of cases sustaining this view."

The motion being denied, exception was duly taken, and the plaintiff has brought the case here for review, assigning many errors.

In his brief counsel for appellant says:

"Plaintiff was entirely blameless. She was in the elevator at the invitation of the defendant, and the accident could not have happened, unless it was guilty of negligence. The assignments of error have been referred to in the statement, showing how the questions arose. The last two assignments of error, however, viz., the direction of a verdict for defendant, and a refusal to grant a new trial, cover the case.'

It is urged by appellant's counsel that the trial court erred in its construction of the Murphy Case, and he

places much stress on the language of Justice BLAIR, where he said:

"Where, however, the facts and circumstances surrounding an injury are such as to justify an inference of negligence, no further proof of negligence is required."

We find nothing in the facts of the instant case making applicable the language here quoted. We find nothing to justify an inference of negligence. We think that the reasoning of the trial judge, above quoted, fully justified him in denying the motion for a new trial, and in directing a verdict.

The rule is well settled in this State that the mere fact that an accident happens, is no evidence of negligence. We cite the following cases: Toomey v. Iron & Steel Works, 89 Mich. 249 (50 N. W. 850); Robinson v. Wright & Co., 94 Mich. 283 (53 N. W. 938); Peppett v. Railroad Co., 119 Mich. 640 (78 N. W. 900); Whitcomb v. Railway, 125 Mich. 572 (84 N. W. 1072); Casterton v. Blower Co., 142 Mich. 407 (106 N. W. 61); Brown v. Bryant, 166 Mich. 180-183 (131 N. W. 577); Fifelski v. Gas Light Co., 181 Mich. 503 (148 N. W. 195). We are of opinion that it cannot be held that the pushing or jostling of the conductor by a third person constituted negligence either of the conductor or the defendant. In the Robinson Case it was held that even the sudden breaking or giving way of a piece of machinery, properly constructed, was not sufficient to justify the conclusion of negligence. The rule which this court has applied is a reasonable one. In the Casterton Case it was said:

"We have many cases which hold that where a machine has worked well up to the time of the accident, and the occasion is unexpected and unexplained, a charge of negligence is not sustained. These cases are not necessarily applicable to a case where the machine has previously shown symptoms of inefficiency or dan

gerous irregularity in its operation, for with such warnings it may be the duty of the proprietor to ascertain and remedy the tendency."

We have examined the numerous Michigan cases cited by appellant's counsel in support of his contention. In many of them, like La Fernier v. Lighter & Wrecking Co., 129 Mich. 596 (89 N. W. 353), and Lincoln v. Railway Co., 179 Mich. 189 (146 N. W. 405, 51 L. R. A. [N. S.] 710), there was evidence tending to show negligence, and we held that, although negligence will not be presumed from the mere fact of an accident, yet such fact may be taken into consideration, in connection with all the other facts and circumstances, in determining whether negligence existed. In another class of cases like Barnowsky v. Helson, 89 Mich. 523 (50 N. W. 989, 15 L. R. A. 33), it has been held that negligence might be inferred from the circumstances. In the case of the falling roof there was also evidence that it was not properly braced, and the facts were so simple that a majority of the court held that the presumption was almost conclusive that the roof fell because it was not sufficiently braced or stayed. These cases are readily distinguished from the instant case.

We deem it unnecessary to discuss the other assignments of error, for the reason that the verdict rendered was the only one that can be justified.

The judgment of the circuit court is affirmed.

BROOKE, C. J., and PERSON, KUHN, OSTRANDER, BIRD, MOORE, and STEERE, JJ., concurred.

GUNGRICH v. ANDERSON.

1. EVIDENCE-PREJUDICIAL ERROR-CHILDREN-APPEAL AND ERROR. Though testimony of plaintiff in an action for assault and battery against her employer that she had several children, giving their respective ages, was improper, and ought to have been excluded by the trial court, a ruling admitting the evidence was not prejudicial where it had already appeared that plaintiff had a child, and that the alleged quarrel arose over her request to leave her employment and visit the infant.

2. SAME CONCLUSION-TRESPASS VI ET ARMIS.

On an objection of the defendant that plaintiff was testifying to a conclusion, the court did not err in admitting plaintiff's statement that she declined to work for a week following the assault and that it was because of the injury she had received in the assault.

3. TRIAL APPEAL AND ERROR-ARGUMENT-MISCONDUCT OF COUN SEL-SAVING QUESTIONS FOR REVIEW.

It was erroneous for plaintiff's attorney to invite the jury to give her what they would consider a mother or sister of their own would be entitled to receive, under like circumstances, but in the absence of a ruling of the court and exception to it, there was no question for the Supreme Court.

4. TRESPASS-ASSAULT AND BATTERY-VI ET ARMIS.

Where plaintiff, who was a domestic servant of defendant, asked for a few days off to enable her to visit her child in a neighboring town, and defendant refused the request, over which an altercation ensued, and plaintiff claimed to have been severely injured, the rules applicable to a trespasser were not in effect as to plaintiff's right to remain; she had the right to a reasonable time to collect her belongings and make ready for departure.

5. SAME REASONABLE FORCE-OPPORTUNITY TO DEPART-MASTER AND SERVANT.

The defendant was not entitled to use force to expel the servant, as in case of an intruder, or to force her to de

part without reasonable notice to enable her to leave peaceably.

6. SAME-DAMAGES-CHARGE

TRIAL-PROVOCATION.

The charge of the court that defendant would not be justified in assaulting plaintiff, if the latter called her a liar, but that the evidence went to the amount of damages, was not error, but correctly stated the law.

7. SAME-NEW TRIAL-VERDICT.

Held, also, that a verdict of $250, reduced by the trial court to $150, was not so excessive, as modified, that the appellate court should award a new trial.

Error to Muskegon; Sullivan, J. Submitted October 12, 1915. (Docket No. 33.) Decided December 21,

1915.

Case by Emily F. Gungrich against Mary E. Anderson for assault and battery. Judgment for plaintiff. Defendant brings error. Affirmed.

Turner & Turner, for appellant.

Cross, Vanderwerp, Foote & Ross, for appellee.

STONE, J. This is an action on the case to recover damages for an assault and battery alleged to have been committed by the defendant upon the plaintiff on the evening of the 9th day of April, 1914, at the village of Montague, and for the resulting injuries. The declaration charges a violent assault upon the person of the plaintiff, and that defendant with great force and violence pulled and dragged plaintiff about and struck her a great many blows with her fist, and threw plaintiff against the wall of the room where said assault took place, and also threw the plaintiff upon the floor, striking and pinching the plaintiff, pulling her hair, and tearing off her dress, by means whereof the plaintiff then and there became and was greatly hurt, cut, bruised, and wounded in and about her face, head,

189 Mich.-10.