The negligence of a minor's parents can not be interposed as a defense to bar a recovery for the benefit of the minor. The contributory negligence that precludes him from a recovery must be that of the minor himself, and whether it exists is a question for the jury to decide, taking into their consideration the age and situation of the minor and all other circumstances connected with the case.
The minor son dislocated his arm. His mother sent a telegram to the family doctor asking him to come immediately. The telegram was never delivered and the doctor didn't examine the minor son until nine days later. By then it was too late to reset the arm and it became permanently disabled. The father filed an action on behalf of himself and the minor son for damages and the trial court rendered judgment against the telegraph company. On appeal to the Supreme Court of Texas, the telegraph company argued that the trial court erred in not finding the father and son contributorily negligent.
Was the father contributorily negligent?
The court found that the permanent nature of the minor son's injuries were attributable to the failure of the parents to obtain other medical assistance when the requested doctor failed to arrive. No excuse was offered for this want of diligence. Thus the father was barred from recovery. However, the negligence of the parents was not attributable to the minor son. Any contributory negligence precluding him from recovering had to be that of the minor son himself. Given the minor son's age and the mental and physical condition caused by the injury, the minor son was not negligent in failing to procure medical attention himself.