Even if there was negligence on the of the plaintiff contributed proximately to the accident at the time thereof, the plaintiff cannot recover. In such case the plaintiff would himself be guilty of contributory negligence, and where there is such negligence the law will not attempt to measure the proportion of blame or negligence to be attributed to each party. ages for personal injuries. Said injuries | ant. were alleged to have been sustained on ac- part of the defendant, yet if the negligence count of the negligence of the defendant in not furnishing the plaintiff with reasonably safe appliances, to wit, brakes. The contention of the plaintiff was that by reason of the imperfect and defective condition of the brakes upon the car which he was operating as the servant of the defendant, he was unable to stop the car, and by reason thereof, collided with another trolley car and was thereby injured. Verdict for plaintiff. Argued before PENNEWILL, C. J., and the person on account of whose injury the WOOLLEY, J. W. W. Knowles and Caleb E. Burchenal, for plaintiff. Robert H. Richards, for defendant. Contributory negligence has been defined to be the negligence of the plaintiff, or of action is brought, amounting to a want of ordinary care, and approximately contributing to the injury. [4-7] The relation existing between the defendant and the plaintiff at the time of the PENNEWILL, C. J. (charging the jury). accident was that of master and servant, Gentlemen of the Jury: The plaintiff in this and the primary duty imposed upon the deaction seeks to recover from the defendant fendant towards the plaintiff in the course company damages for personal injuries which of his employment by reason of this relation are alleged to have been sustained on acwas to furnish him reasonably safe tools, count. of the negligence of said company. machinery and appliances with which to The plaintiff claims that about 11 o'clock work. The tools or machinery used need not on the night of August 14, 1911, he was be of the safest, best nor of the most immotoring a car of the defendant from Brandy-proved kind. It is sufficient if they are reawine Springs to the city of Wilmington, and sonably safe, and adapted to the purpose of because of defective brakes on the car, which would not take hold of the wheels, he was unable to stop or hold the car when descending a grade near Haley's curve, and in consequence thereof his car collided with another car and he was injured. The plaintiff's declaration consists of two counts, one of which avers that the said defendant negligently and carelessly suffered and permitted the said plaintiff to use and operate a certain car with an improper, defective, inadequate, unfit, unsafe, unsuitable and dangerous brake shoe, all of which was well known to the said defendant but unknown to the said plaintiff, and by reason of the said negligence of the said defendant in permitting the use of said car with the defective brake shoe as aforesaid at the time and place aforesaid, the said car on which the said plaintiff was a motorman as afore said ran into and collided with another car operated and controlled by the said defendant, whereby the said plaintiff was greatly bruised, cut, mangled, broken, injured and distressed. The second count is similar to the first, except that the word "brakes" is used in the second count instead of “brake shoe," as in the first count. So that, the negligence averred, and relied upon, by the plaintiff is, that the defendant suffered and permitted the plaintiff to use and operate the car with a defective, unsafe and dangerous brake shoe, or brakes. the employment. If the master fails to observe this rule of law and injury results to his servant from such failure, he becomes liable therefor on the ground of negligence. In the performance of this duty the master must use all reasonable care and prudence for the safety of the servant, having regard to the character of the work to be performed. Such care must be in proportion to the danger of the employment. The servant has the right to rely on the master for the performance of this duty without inquiry on his part. The servant assumes no risk whatever as to such primary duty at the time he enters upon his employment; but he does assume all the ordinary risks incident to the employment; such as are patent, seen and known, or which may be seen and known by the ordinary use of his senses. And he is required to exercise due care and caution in the course of his employment to avoid dangers and injuries; for the master, having performed the primary duties required of him, is not an insurer of the safety of his servants. [8-10] "It is the duty of the master also to maintain said tools and machinery in a reasonably safe condition so long as they are continued in use. If the master knows, or by the use of due diligence might know that the tools and machinery in use in his business are not reasonably safe it is negligence on his part to fail to remedy and correct the defects of which he has knowledge, or by the [1-3] The gist of this action is negligence, exercise of due diligence he might discover. which is the want of ordinary care, and the Notice to the foreman or person in general burden of proving the negligence of the de- charge of the business, or having charge and fendant rests upon the plaintiff. If there control of the men and the cars, that the was no negligence on the part of the com- machinery is unsafe or dangerous, is, in law, cover for any injury to himself caused by proper control, and be able to stop it, or reduce its speed whenever necessary to avoid accident, if by proper care and caution he can do so. Therefore, if you believe from the testimony in this case that the brakes were not defective, and that the plaintiff's of such notice it would be negligence on the part of the master to fail to make such machinery reasonably safe for the servant in his employment. But in such case the mas-run and operate his car as to have it under ter would not be liable if the servant having knowledge of such defect continued to use such machinery. The servant must always exercise such care and caution to avoid danger as the circumstances reasonably require, and the greater the danger the greater the care, diligence and caution required." | injuries were caused by his running the car But even though machinery is defective in the knowledge of the employé, yet if the master has knowledge of such defect and promises to remedy the defect, and the employé, relying on that promise, continues by direction of the master to use it for a reasonable time, he does so at the master's risk, inasmuch as he has a right to rely on such promise. Boyd v. Blumenthal, 3 Pennewill, 567, 52 Atl. 330; Ray v. D. S. Steel Co., 2 Pennewill, 528, 47 Atl. 1017. at such a high, excessive and unusual rate of speed, or by such improper handling of the brakes, that he was not able at, and just before the collision, to stop or control the car by the means provided for the purpose, he would be guilty of contributory negligence and could not recover. [13-14] Where there is a conflict of evidence, as there is in this case, it is the duty of the jury to reconcile it if they can, but if they cannot do so, then it becomes their side upon which the evidence reasonably and clearly preponderates. In determining the weight of the testimony and the credibility of the witnesses, the jury may consider the apparent fairness, interest or bias of the witnesses, if any, their opportunity to see and know of the accident, their recollection of the circumstances connected therewith, and any and all other facts and circumstances that go to test the accuracy of their testimony. [11] If you should believe from the evi-duty to render their verdict in favor of that dence that the defendant exercised reasonable care in the inspection of the trolley car which the plaintiff was operating at the time of the accident, and that the brakes of said car, or other appliances complained of, when last inspected before the accident, were in reasonably good working condition, and that any defect or disorder (if any) in any of said appliances was not discovered sufficiently long before the accident to reasonably permit the repair thereof or the discontinuance of the operation of such car, in such event the existence of such defect or disorder would not constitute negligence on the part of the defendant. [15] If you believe from the preponderance, that is, the weight of the evidence, that the injuries of which the plaintiff complains in this action were caused by the negligence If you should believe from the evidence of the defendant company, remembering the that the defendant exercised reasonable care law as we have stated it, and applying it to in the inspection of the car in question and the facts in the case; and shall also believe of the brakes and other appliances there- that the plaintiff at the time of the accident on, and that the same were found in reasonwas himself entirely free from any negligence ably good working condition when the car that proximately contributed to his injuries, was turned over to the plaintiff to operate your verdict should be for the plaintiff, and as a motorman, shortly before the accident, for such sum as you believe from the testiand that any defect or disorder (if any) in mony will reasonably compensate him for said appliances occurred during the opera- any money laid out and expended for medition of the car by the plaintiff, and that there cal attendance, for his pain and suffering in was no opportunity to repair the same or the past, and for such as may be in the fudiscontinue the use of the car before the ture, resulting from the defendant's negliaccident, in such event the existence of such gence; and also for any loss of wages sufferdefect or disorder would not constitute neg-ed by him in the past, as well as for any ligence on the part of the defendant. impairment of ability to earn a living in the future, as may be shown to be the result of the defendant's negligence. If you should believe from the evidence that the plaintiff knew on the day of the accident and before he began to operate car number 6 that the brake of said car was de-ance of the evidence that the plaintiff's inIf you are not satisfied by the preponderfective, and should also believe from the juries were caused by the negligence of the evidence that the defendant did not promise defendant; or if you believe from the testito remedy said defect upon any complaint thereof by the plaintiff, and that the plaintiff mony that the plaintiff's own negligence, or took said car out and operated it with knowl-mately to his injuries, your verdict should be edge of such defective brake, then the plain- in favor of the defendant. tiff assumed the risk of operating said car with such defective brake, and cannot re want of care and caution, contributed proxi Verdict for plaintiff. (3 Boyce, 329) the information whereby the relator may STATE ex rel. BRUMLEY V. JESSUP & determine the value of his stock." MOORE PAPER CO. (Superior Court of Delaware. April 8, 1912.) [1] The Superior Court has no duty to New Castle. perform, and no power in the premises, other than to carry out the mandate of the Supreme Court, which is, to order the issuance of the peremptory writ as directed, and in conformity with the opinion delivered by the court. 1. APPEAL AND ERROR (§ 1198*)-MANDATEPOWERS OF LOWER COURT. When the Supreme Court has reversed a judgment of the Superior Court sustaining the return to an alternative writ of mandamus, and has directed the issuance of a peremptory writ, the Superior Court has no duty or power, except to issue the peremptory writ as directed, in conformity with the opinion delivered by the Supreme Court. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. § 4668; Dec. Dig. § 1198.*] 2. Appeal and ERROR (§ 1198*)-STOCKHOLD ERS-RIGHT TO INSPECT BOOKS. The Supreme Court ordered mandamus requiring a corporation to permit a stockholder to inspect and make copies of such books, papers, and writings of the corporation, and only such, as under direction of the Superior Court might be found essential to furnish the stockholder information as to the value of his stock. Held, that the peremptory writ would require the corporation to permit the stockholder to examine and make copies of the company's general ledgers and the balance sheets submitted by the company to the directors, but not to inspect the directors' minutes, or make copies of the names of the corporation's cus tomers. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4668; Dec. Dig. § 1198.*] Application by the State, on the relation of Irene Brumley, for writ of mandamus against the Jessup & Moore Paper Company to compel the respondent to allow the relator to inspect and make copies of certain books, etc., in conformity with the opinion of the Supreme Court in reversing the judgment of the said Superior Court in refusing to quash the return to the alternative writ. Writ granted. See 7 Pennewill, 397, 72 Atl. 1057. See, also, 80 Atl. 350; 82 Atl. 540. Argued before PENNEWILL, C. J., and BOYCE, J. Robert H. Richards, of Wilmington, for relator. Willard Saulsbury and Hugh M. Morris, both of Wilmington, for respondent. [2] Manifestly such opinion means that the relator and his counsel should not be permitted to inspect and make copies of all the books and papers mentioned in his petition; furnish the information asked for. but only of such of them as are required to The Our effort has been to ascertain what books and papers are required for such purpose, and we have made some independent inquiry and investigation in order to ascertain that fact. The task imposed has not been easy to satisfactorily perform. thought in the mind of the Supreme Court evidently was that inspection should not be authorized except for the purpose mentioned in the petition, to wit: The ascertainment of the value of the stock, and that the business of the defendant company should not be interfered with by any inspection of its affairs not essential to that purpose. In order to faithfully carry out the mandate of the court, it is our duty to restrict the inspection as far as may be consistent with the relator's rights under the decision of the Supreme Court. What books and papers, and what books and papers only, are required to furnish the information whereby the relator may deter mine the value of the deceased's stock in said company, cannot perhaps be ascertained with perfect exactness, but it is our opinion, based upon the most reliable information we have been able to obtain, that the minutes of the directors are not so required. There may be very much in the minutes that would not be pertinent to the inquiry, and which need not be disclosed. We are of the opinion that in order to ascertain the value of the stock held by Horace T. Brumley, deceased, his executrix should be permitted to inspect and make copies of the general ledgers of the defendPENNEWILL, C. J. The Supreme Court, ant company, from the 1st day of August, in reversing the court below in the above 1905, up to the present time, and also of the stated case, said: statements or balance sheets submitted by "We hold that the relator is therefore en- the company to the directors thereof, showtitled to the peremptory writ of mandamusing the business done by the company, its of the court to which this case is remanded, to be issued by that court under such reasonable regulations as to time and place as it may direct, commanding the defendant to suffer and permit the relator, or his duly authorized attorney, to inspect and make copies of such of the books, papers and accounts and writings of the defendant mentioned in his petition, and only of such of them that, under the direction of said court, are found essential and sufficient to furnish profits and losses, and assets and liabilities, from the 1st day of August, 1905, up to the present time; but that no copies should be made of the names of the customers of the company, either the persons from whom it buys or to whom it sells. We further hold that such inspection and copies should be made by the relator, or by her duly constituted attorney, between the hours of 10 and 12 o'clock in the forenoon, and 1 and 3 o'clock in the afternoon, of such number of consecutive days as may be necessary for that purpose, after 10 days' notice by the relator of her intention to begin such inspection and making of copies and of the name of her attorney duly constituted for that purpose, in case she should name such an attorney; and that such inspection and such copies shall be made at the principal office of the defendant company within the state of Delaware, to wit, at the Augustine Mills, belonging to said company, near the city of Wilmington, Delaware, unless the said relator and the said defendant can, by written stipulation filed in this cause, agree upon another place for making such inspection and copies more convenient to both of them, or either of them. (83 N. J. L. 254) CARPENTER v. CORNISH et al. (Supreme Court of New Jersey. April 11, 1912.) (Syllabus by the Court.) 1. ELECTIONS (§ 1*) - QUALIFICATIONS OF VOTERS-SEX. Prior to the adoption of the Constitution of 1776 of the state of New Jersey, women had no legal claim to vote. [Ed. Note. For other cases, see Elections, Cent. Dig. § 1; Dec. Dig. § 1.*] 2. ELECTIONS (§ 7*)-QUALIFICATIONS OF VOTERS-SEX. No right to vote was conferred on females by the Constitution of 1776. [Ed. Note. For other cases, see Elections, Dec. Dig. § 7.*] 3. ELECTIONS (8 10*)-QUALIFICATIONS OF VOTERS-SEX. Even though the act of 1797 (Paterson's Laws, p. 231) permitted females to vote, it was subsequently repealed by the statute of 1807 (Bloomfield's Laws, p. 33). [Ed. Note. For other cases, see Elections, Cent. Dig. § 7; Dec. Dig. § 10.*] 4. ELECTIONS (§ 9*)-QUALIFICATIONS OF VOTERS-SEX. The act of 1807 (Bloomfield's Laws, p. 33) and subsequent statutes excluding females from the right to vote are not in contravention of the Constitution of 1776. [Ed. Note.-For other cases, see Elections, Cent. Dig. 6; Dec. Dig. § 9.*] 5. ELECTIONS (§ 9*) VOTERS-SEX. QUALIFICATIONS OF (Additional Syllabus by Editorial Staff.) 7. ELECTIONS (§ 7*) QUALIFICATIONS OF VOTERS-CONSTITUTIONAL PROVISION "ALL INHABITANTS. In Const. 1776, art. 4, conferring the right to vote on "all inhabitants" having certain qualifications, the quoted phrase is limited to those having the right to vote before the adoption of the Constitution. [Ed. Note. For other cases, see Elections, Dec. Dig. 7.* For other definitions, see Words and Phrases, vol. 1, pp. 312-335; vol. 8, pp. 7572-7573.] 8. ELECTIONS (§ 7*) — QUALIFICATIONS VOTERS CONSTITUTIONAL PROVISION "CLAIM A VOTE." OF - inhabitants of full age who, among other qualiIn Const. 1776, art. 4, providing that all fications, have resided within the county in which they claim a vote for twelve months shall be entitled to vote, etc., the phrase "claim a vote" means a lawful claim to vote at the time of the adoption of the Constitution. [Ed. Note. For other cases, see Elections, Dec. Dig. & 7.* For other definitions, see Words and Phrases, vol. 2, pp. 1202–1211; vol. 8, p. 7604.] Application by Harriet F. Carpenter for rule to show cause why a peremptory mandamus should not issue to Charles A. Cornish and others. Rule discharged. Argued November term, 1911, before KALISCH, J. Harriet F. Carpenter seeks to obtain a writ of mandamus to be directed to the members of the board of registry and elections of Passaic township, Southern district, requiring her to register her name, that she may be qualified to vote. It is admitted that her application came too late to enable her to vote at the last November election, but she insists that her application should receive consideration so as to qualify her by having her name upon the list to vote at the Primaries in September of this year. This presents the question of the right of women who are in other respects qualified as to citizenship and residence to vote in stitution of 1844 women cannot vote. New Jersey. It is clear that under the ConThe argument advanced by the relator in behalf of the right of women to vote, notwithstandThe act of February 23, 1844 (P. L. p. ing the constitutional impediment, is that 111), calling for a constitutional convention, the Constitution of New Jersey of 1776 gave and which excluded women from voting for to "all inhabitants" possessing certain qualdelegates thereto, was neither in contravention of the letter nor of the spirit of the Consti-ifications the right to vote; that certain stattution of 1776. utes relating to elections subsequently pass[Ed. Note.-For other cases, see Elections, ed, including the laws of 1790, in referring Cent. Dig. 6; Dec. Dig. § 9.*] to those persons who are entitled to the 6. CONSTITUTIONAL LAW (82,* New, vol. 4, right of suffrage mentioned them as "he" Key No. Series)-ADOPTION OF CONSTITU- and "she"; and that women voted extensiveTION-EFFECT. The Constitution of 1844 having been sub-ly throughout the state until 1807 (Bloommitted to the vote of the people, in pursuance field's Laws, p. 33), when the first act was of the act of February 23, 1844 (P. L. p. 111), passed, depriving women of the right to vote; and adopted, is the fundamental law of this state that the statute of 1807 and the subsequent until supplanted either by a new Constitution adopted, as that was adopted, or by amendment statutes passed in 1820 (Rev. Laws 1821, p. in the manner therein provided. 741) and 1838 (Laws 1838-39, p. 199) depriv *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes ing women of the right to vote are uncon- | of such a constitutional limitation, there stitutional, and that the act of the Legis- would have existed no good reason for exlature (P. L. of 1843-44, p. 111), provided cluding aliens, and negroes who were in a for the election of delegates to the conven- state of servitude, from exercising the election to frame a constitution, and excluding tive franchise. It is essential to observe women from voting for such delegates, were also unconstitutional, in so far as it excluded women, and that, therefore, the provisions of the Constitution of 1844 giving to every male citizen the right to vote cannot be held to exclude women, and that the election laws passed since the adoption of the Constitution of 1844 are unconstitutional, in so far as they exclude women from the right to vote. that this constitutional provision is a simple declaration that those inhabitants of this state, who claimed a right to vote prior to the adoption of the Constitution shall be entitled to vote, provided they are otherwise qualified, as prescribed therein. the light of the conditions which existed at the time it was framed and by contemporaneous legislation. Due regard must also be had to the context in order to ascertain whether the term "all inhabitants" was used in a general or restrictive sense. It is manifest from the context of the constitutional clause that the term "all inhabitants" was used and intended to be understood in a restrictive sense, but to what extent can only be determined when it is ascertained what class of persons had a lawful claim to vote at the time of its adoption. [8] The words "claim a vote" must be understood to mean a lawful claim to vote at the time of the adoption of the Constitution. A fair reading of the constitutional clause [2] The premises upon which this argu- makes it plain that it is an affirmance of a ment rests are inaccurate and fallacious. | privilege which was enjoyed by a certain There is nothing in the Constitution of 1776 class of inhabitants at the time of its adopwhich confers on women the right to vote. tion, and which will more clearly appear The fourth clause of the Constitution de- by a reference to the laws pre-existing the clares: "All inhabitants of this colony of adoption of the Constitution. It was not full age, who are worth fifty pounds procla- intended to confer the right to vote on all mation money, clear estate in the same, and inhabitants irrespective of their sex, condihave resided within the county in which tion, or servitude. The Constitution dealt they claim a vote for twelve months imme- with the legal voter as then known and undiately preceding the election, shall be en- derstood, and it was not intended to create titled to vote for representatives in council a new and additional class of voters. The and assembly; and also for all other public constitutional clause must be construed in officers that shall be elected by the people of the county at large." The contention of the relator is that the term “all inhabitants" in this clause includes the female as well as the male sex. And it is from this constitutional declaration that it is insisted by the relator that women derive the constitutional right to vote. A careful reading of the clause demonstrates that the framers of the Constitution had in view a particular class of inhabitants, and that the inference drawn by the relator from the use of the term "all inhabitants" cannot be justified when the context is considered. It is of [1] It does not appear that, before the material significance that the constitutional adoption of this clause of the Constitution, provision after declaring, "all inhabitants of women did exercise the right of suffrage. this colony of full age, who are worth fifty No such right was conferred on them by the pounds proclamation money, clear estate in law of the land. It appears conclusively the same," is followed by this qualification: that prior to the adoption of the Constitu"And have resided within the county in which tion of 1776 the right to vote was exercised they claim a vote, for twelve months imme-exclusively by the male inhabitants. Grants diately preceding the election shall be en- and Concessions of New Jersey (Leaming and titled to vote," etc. Spicer) p. 154, § 3; Allinson's Laws, p. 6, c. [7] The plain and obvious meaning of this 10, § 1; page 306, § 1; pages 69, 70, §§ 1, provision is that all inhabitants who are 5. It thus appearing that the male sex qualified as required by the constitutional was the class who exercised the right and provision and who have been legal voters before the adoption of the Constitution and who claim a vote in the county in which they reside shall be entitled to vote in such county, provided they have a residence therein for 12 months preceding the election. The term "all inhabitants" must be limited to those legally entitled to vote in this state before the adoption of the Constitution and who have qualified under it. If it were not for this constitutional limitation referred to, it might well have been maintained that the term "all inhabitants" included females of had a claim to vote from the earliest period of legislation in this state up to the time of the adoption of the Constitution of 1776 leads us to the inevitable conclusion that the use of the term "all inhabitants" in said Constitution did not confer on women the right to vote. Since this right to vote claimed by the relator did not exist prior to the Constitution of 1776, and although females are not by express terms of its provision excluded from exercising the elective franchise, no right to exercise such franchise can be predicated upon it. It must be conceded that it |