NOTES OF RECENT CASES two hours late. He claimed that he made known to the company's agent his engagement in such other city, and was told that the train would arrive on time. As a matter of fact the train was two hours and twenty minutes late at his destination, by reason of which he was unable to keep his engagement, at a loss to him of four hundred dollars, the contract price of such en gagement. The court, in deciding that the carrier was not liable, said that the obligation of a carrier to run its trains in conformity, to its schedule is not an absolute and unconditional one, for it will not be liable for want of punctuality or failure to comply with its published schedule, where such failure is not due to its negligence. The mere taking of a ticket does not of itself prove a con tract upon the part of the carrier, or impose upon it the duty to have a train ready to start at the time at which the passenger is led to expect it. The court also decided that the ticket agent had no authority to make such a special contract as plaintiff claimed was made, citing "Dresser v. Rail way Co., 116 Fed. 281, 53 C. C. A. 559; Railroad Co. v. Cameron, 66 Fed. 712, 14 C. C. A. 358; Railway Co. v. Smith (Tex. Civ. App.), 84 S. W. 852. CARRIERS. (Passengers — Communication of Contagious Diseases.) Tex. Civ. App. — In M., K. and T. R. Co. v. Raney, 99 S. W. Rep, 589, the question is discussed as to the proximate cause of damages resulting from plaintiff's wife contracting smallpox from him after he contracted it from a ticket agent. It appeared that plaintiff, to whom the agent sold a ticket for the transportation of himself and wife, was afflicted with smallpox, and that such agent was the only person to whom plaintiff was exposed, who had the disease, and that it was contracted within the usual time after such exposure. Preliminary to a discussion of the principal questions involved, the court an swered the contention that knowledge of the ticket agent that he had the smallpox at the time he sold the tickets to plaintiff would not constitute knowledge on the part of the railroad company. Reference was made in' the argument of this question to the case of Long v. Railway (Kan.), 28 Pac. 977, 15 L. R. A. 319, 30 Am. St. Rep. 271, which holds in effect that notice to an agent in cases of the character involved did not constitute notice on the part of the principal. The court declines to follow the holding, and concludes, as the better solution of the question, that as the agent at the time he sold the ticket was in the discharge of the duty incumbent on him as an agent and knew that he was suffering from a contagious disease, his knowledge became that of his principal, the railroad company. The main
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contention that there was an independent inter vening cause between the wrongful act of the agent in communicating the disease to plaintiff and the contracting of the disease by his wife, was discussed at considerable length. The wellknown Squib case, Scott v. Shepherd, 2 W. Bl. 892, was discussed and applied. The court in its argument declares that under the common law the railroad company owed to the individuals] com posing the public who dealt with it the duty to keep them from having contagious diseases com municated to them by its agent while they were dealing with it through such agent. It states in this connection that there are two classes of cases in which the duty is owed to the public: one where the duty is owed to the public as such, and for a failure to perform which no action lies. The other is where the duty is due to or intended for the benefit of the individuals composing the public for the failure to perform which an action lies in favor of any one injured by such failure. The case at bar is said to belong to the latter class, because whatever affects the health of the com munity necessarily affects the individual members thereof, and when the duty to prevent the spread of contagious diseases rests on a private corpora tion or person, the obligation arises in favor of each member of the community, and a right of action exists in favor of him who suffers for its breach. In conclusion, the court decides that the railroad company having notice through its agent at and prior to the time plaintiff was exposed to him that he had the contagious disease of smallpox, and such agent having communicated the disease to plaintiff and his wife, it was liable to him for damages sustained as the direct and proximate result of such wrongful act of its agent. CONSTITUTIONAL LAW. (Municipal Corpora tions.) Neb. — State v. Withnell, no N. W. Rep. 680, is a case involving the validity of an ordi nance providing in part as follows: "Before constructing any building or structure, to be used for the manufacture of illuminating or fuel gas, and before erecting any tank, storage reservoir, or other receptacle ' for the purpose- of storing either illuminating or fuel gas, and before remodel ing or using any building or structure, tank or reservoir, for such purpose, the party or parties desiring such privilege shall first obtain the written consent of all the property owners within a radius of one thousand feet of the proposed building, structure, tank or reservoir to be used for such purpose, and file such permission with the building inspector of the city of Omaha, and comply with all other ordinances, rules and regu lations relating to buildings." The charter of the
