to be served within thirty days after such injury shall have occurred a notice," etc.

We are of the opinion that the language quoted indicates an intention that it should not apply to such, as we cannot infer that they intended to exclude cases wherein the 30 days had already expired, and where perhaps proper notices under the previous law had been seasonably served. Davis v. Railroad Co., supra, contains nothing inconsistent with this view. The rule is stated in 1 Lewis' Sutherland on Statutory Construction (2d Ed.), § 237:

"The amendment operates to repeal all of the section amended not embraced in the amended form. The portions of the amended sections which are merely copied without change are not to be considered as repealed and again enacted, but to have been the law all along; and the new parts or the changed portions are not to be taken to have been the law at any time prior to the passage of the amended act. The change takes effect prospectively, according to the general rule."

It is urged that the effect of such a repeal must be to remove all obligations as to notice, and that plaintiff's right of action in this case is therefore unrestricted by any such provisions. The effect of this is somewhat startling. Evidently what was sought was not to remove all requirements in regard to the character of the notice required (thus throwing open wide the door to all cases not barred by the previous statute if not all cases that had accrued within the period of six years), but to impose greater ones. We have held in several cases that we would not infer an intention to bring such cases within the amendatory act, but would leave them to be governed by the law as it theretofore existed, but we think it more reasonable to infer such an intent than that the legislature designed to relieve plaintiff from all requirements as to notice. That is what defendant claims. The prevailing opinion in the case of Weller v. Wheelock, 155 Mich. 698, appears to sustain such claim, and, had it received the approval of

five judges, might be held to have established such rule, though it could be applied to this class of cases only upon the theory that it had the effect of overruling the cases herein before cited. Whatever may be said on that subject, no one contended in that case, and it is improbable that any of the judges approving that opinion would have been willing to hold, that the amendment of the statute then under consideration had repealed the pre-existing law, and thereby relieved purchasers of tax titles from the necessity of giving any notice whatever to original owners, though there is little opportunity to distinguish that case from this upon that point.

It is a noticeable fact that the rule from Sutherland was not applied in Bank of Saginaw v. Pierson. On the contrary, we refused to do so; saying:

"Even in the case of statutes falling, strictly or in a general sense, under the head of penal laws, the intention of the legislature has been permitted to prevail over the rigid application of the rule.' Endlich on Interpretation of Statutes, § 483.

"It is beyond belief that the legislature intended, by simply changing the period within which the reports were to be made, to repeal the provision imposing the liability upon the directors for failure to comply with the prior law. The provision creating the liability was not repealed, and we think that no repeal by implication arises."

While prospectively all matter in the earlier act that is not incorporated in the amendatory act is repealed of necessity, it does not follow that such repeal is simultaneous for all purposes, but the omitted portions remain in force as to past transactions. Endlich on Interpretation of Statutes, 196, contains this statement in reference to this question:

"Where an act or portion of an act is amended 'so as to read' in a prescribed way, it has been said that the section amended is entirely repealed and obliterated thereby. It is perfectly clear that as to all matters contained in the original enactment, and not incorporated in the amendment, the latter must be held to have the effect of a repeal. But as to the remainder, i. e., that which in

the amendatory act is declared thereafter to be its form and effect, it would seem that even an amendment in the phrase indicated does not have the effect of a simultaneous repeal and re enactment, but that of a merger of the original statute in the new, leaving the old statute no vitality distinct from the new, and of force only as to past transactions, as to which it must be deemed to be continued in force as from the time of its first enactment, whilst, as to new transactions, its whole force rests upon the amendatory statute."

Again, the requirement of a notice in the earlier act is retained in the later one, thus plainly indicating an intention not to dispense with it in pre-existing cases. We must therefore apply the test of the earlier statute to this declaration.

Under this statute, it was not necessary to state the nature of the claim, and, in detail, the amount of each item, making the amount claimed. Davis v. City of Adrian, 147 Mich. 300. It does not require that the claim or affidavit state the particular manner in which the fall occurred nor the nature and extent of the injuries, nor the names and addresses of witnesses. The notice served does, however, state a claim for injuries. sustained through a fall caused by a loose plank and hole in a defective sidewalk, describing the place. The method of stating the claim and the verification of the same are in form sufficient under the statute applicable to this case.

The order of the circuit court is affirmed, with costs, and the cause is remanded for further proceedings.

BLAIR, C. J., and GRANT, MOORE, and MCALVAY, JJ., concurred.

POTVIN v. WEST BAY CITY SHIPBUILDING CO.

1. EVIDENCE-EXPERT TESTIMONY-COMPETENCY.

A witness experienced in metallurgical analysis is competent to give expert testimony in respect to the condition of an alleged defective tool, as shown by a subsequent chemical analysis and microscopical examination.

CONTRIBUTORY

2. MASTER AND SERVANT-PERSONAL INJURIES-DEFECTIVE TOOLS -EVIDENCE- ASSUMED RISKS - NEGLIGENCE NEGLIGENCE-QUESTIONS FOR JURY.

Plaintiff was injured by a chip flying from a hammer, known as a 'softhead," when struck by a riveting hammer, resulting in the loss of an eye. The "softhead" was made from a riveting hammer by taking the temper from one end. The testimony in plaintiff's behalf tended to prove a defect in its construction by reason of temper being left in the soft end, while that of defendant tended to prove that it was properly made in the first instance, but had become hardened and crystallized by use. Held, that the questions of whether or not it was a safe tool when furnished, whether plaintiff assumed the risk of his employment, or whether he was guilty of contributory negligence, were for the jury.

3. DAMAGES PERSONAL INJURIES

- IMPAIRMENT OF EARNING CAPACITY-EXCESSIVE VERDICT-QUESTION FOR JURY.

Whether the continuance of plaintiff in the employment in which he was engaged at the time of his injury disproves the testimony of himself and his physician that the loss of an eye affected his ability to do his work, was properly submitted to the jury; and, aside from a diminution of earning power, a verdict of $3,682 is not excessive compensation for such loss. 4. MASTER AND SERVANT-PERSONAL INJURIES-DUTY OF MASTER -NEGLIGENCE-INSTRUCTIONS-HARMLESS ERROR.

Where, in such action, it appeared that defendant manufactured the tools furnished to its employés-its duty to furnish safe tools being absolute and nondelegable-and plaintiff's entire claim rested upon the proposition that defendant's blacksmith left temper in the "softhead," which was the proximate cause of the injury, and such act being conceded to be negligent if it occurred, the verdict of the jury established defendant's negligence; and the action of the

trial court in withdrawing a portion of the charge that "defendant did not owe plaintiff the duty of furnishing a reasonably safe tool, but only the duty to use reasonable care to furnish a reasonably safe tool," if erroneous, was not prejudicial to defendant.

5. EVIDENCE-ADMISSIBILITY.

The admission in evidence of tools and photographs of microscopical enlargements of sections thereof was permissible to explain and illustrate the testimony of the expert and to enable the jury to understand the character of such tests and the basis of the expert's opinion; the trial court in the charge fully protecting the defendant against harmful inferences that might be drawn from a comparison of the exhibits.

6. APPEAL AND ERROR-HARMLESS ERROR-OPINION EVIDENCEADMISSIBILITY—INSTRUCTIONS.

The admission of opinion evidence by one incompetent to so testify was cured by the giving of a requested instruction directing the jury to disregard it; and it will not be inferred that the jury were affected by the admission of similar testimony which was not called to the attention of the court.

Error to Bay; Collins, J. Submitted January 6, 1909. (Docket No. 10.) Decided April 30, 1909.

Case by Maxim Potvin against the West Bay City Shipbuilding Company for personal injuries. There was judgment for plaintiff, and defendant brings error. Affirmed.

Gillett & Clark, for appellant.

F. W. De Foe, for appellee.

BLAIR, C. J. Action to recover damages for the loss of plaintiff's eye, alleged to have been the result of defendant's negligence in furnishing an unsafe tool to plaintiff for his use in riveting. At the time of his injury, plaintiff, a riveter of many years' experience, was engaged with two others in riveting, by hand, steel plates used in the construction of a steel ship. Bloom, one of plaintiff's gang, was holding a heavy hammer against the