## Facts

- Kelly Hoffman, age 15, suffered a dislocated elbow while his father, August Hoffman, was away from home.
- Kelly’s mother caused a telegram to be sent from Spring, Texas, to the family physician, Dr. Dutton in Conroe: “Come on first train. Kelly Hoffman broke his arm.”
- Western Union received the telegram in Conroe the day it was sent but did not deliver it to Dr. Dutton until he later inquired about it; no excuse for nondelivery was offered.
- No further message was sent and no other physician was sought during the nine days after the injury; no effective treatment was undertaken during that period.
- On the ninth day, Dr. Dutton happened to pass the Hoffmans’ residence, was called in, examined the arm, and testified it was then too late to safely reset it.
- Medical testimony conflicted on whether the dislocation could still have been remedied when Dr. Dutton finally examined Kelly.
- The arm healed stiff and permanently disabled.
- August Hoffman sued for himself and as next friend of Kelly for damages caused by Western Union’s failure to deliver the telegram; Western Union pleaded contributory negligence based on the family’s inaction after no response to the telegram.
- A jury awarded $4,125 to Kelly and $900 to August Hoffman; Western Union appealed.

## Issues

1. Whether the Hoffmans’ failure to send another message or obtain another physician during the nine-day delay constituted contributory negligence as a matter of law barring recovery for injury attributable to Western Union’s nondelivery.

## Decision

- The Texas Supreme Court affirmed the judgment for August Hoffman and Kelly Hoffman.
- The court held contributory negligence was not established as a matter of law on the evidence presented.
- The court concluded the contributory negligence defense was properly submitted to the jury.

## Legal Principles

- A plaintiff may be barred from recovery if the plaintiff’s own negligence proximately contributes to the injury.
- Whether conduct constitutes contributory negligence is generally a fact question for the jury unless the evidence permits only one reasonable conclusion.
- The reasonableness of a minor’s conduct is evaluated in light of the minor’s age, experience, and condition; a 15-year-old’s capacity to appreciate medical consequences may be limited, particularly after injury.
- When evidence is conflicting on causation and avoidability of harm (including medical feasibility of corrective treatment), an appellate court will not treat contributory negligence as conclusively established.

## Conclusion

The court upheld damages against the telegraph company for failing to deliver a medical telegram, ruling that the family’s failure to take additional steps during the delay did not constitute contributory negligence as a matter of law and was for the jury to decide.


W. Union Tel. Co. v. Hoffman, 15 S.W. 1048 (Tex. 1891)