Silver v. New York Central Railroad
329 Mass. 14, 105 N.E.2d 923 (1952)

  • Silver was traveling by train, but was left for four hours in a cold train car waiting for a connection.  She sued.
  • At trial, the conductor was allowed to testify that it was indeed cold in the train car, but was not allowed to testify that the other 11 stranded passengers made no complaints.
    • The Trial Court found that drawing the deduction that it was not too cold based on the silence of the other passengers was hearsay and therefore not admissible.
  • New York Central won.  Silver appealed.
  • The Massachusetts Supreme Court reversed.
    • The Massachusetts Supreme Court found that this was a case of non-assertive conduct.
      • The passengers were not intending to assert that the car was not too cold because they were unaware of the dispute.
    • Since the conduct was not intended by the passengers to be an assertion, it was not hearsay under the FRE.
      • The conductor would not have been allowed to testify that a passenger said to him, “I want you to know that I’m not too cold.”  That would be an assertion.
  • Silver was free to argue to the jury that perhaps the other passengers were too cold, but were just too polite to complain.  That would be a matter of weight.
    • She could also potentially produce evidence that the other passengers were too cold by presenting a witness who saw the passengers rubbing their hands together, putting on heavy coats, or huddling for warmth.  All of that would be non-assertive conduct.