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
- 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.