Silver v. New York Central Railroad

WILKINS, J. On January 14, 1948, Frances Silver became a passenger, bound from Boston to Cincinnati, on a train operated by the defendant railroad. The following morning the Pullman car in which she had a berth was detached at Cleveland and stood for nearly four hours in the yard to await connection with the next train to Cincinnati. She was suffering from a circulatory ailment known as Raynaud's disease. The temperature in the car became too cold for her, and she experienced ill effects. Mrs. Silver, who will be referred to as the plaintiff, brought this action against the defendant railroad and The Pullman Company. Upon her death from a cause apparently unrelated to this case, the administrator of her estate was substituted as party plaintiff. At the trial it was stipulated that if there should be a judgment for the plaintiff, it should be against the railroad, and in that event there should be a judgment for The Pullman Company. The judge found for the plaintiff against the railroad. He also found for The Pullman Company pursuant to the stipulation. The exceptions of the railroad, which will be referred to as the defendant, are to the denial of certain of its requests for rulings and to the exclusion of evidence. . . .

As part of its obligation to furnish suitable accommodations, it is the undoubted duty of a common carrier to provide the heat necessary for the health, comfort, and safety of passengers during the performance of the transportation contract. . . .

The porter in the plaintiff's car was rightly allowed to testify as to the temperature conditions in that car. . . . He was giving at first hand his experience with the same conditions which confronted the plaintiff. . . . But he was not permitted to give evidence that eleven other passengers in that car made no complaint to him as to the temperature while at Cleveland. This is a somewhat different proposition, as it was sought to draw from the silence of those passengers a deduction that the car was not too cold, otherwise they would have spoken. In certain courts evidence of absence of complaints by customers has been excluded on the issue of defective quality of goods sold, and the hearsay rule has been relied upon or referred to. United States v. 11 1/4 Dozen Packages of Article Labeled in Part Mrs. Moffat's Shoo Fly Powders for Drunkenness. . . . In Menard v. Cashman . . . which was an action of tort arising out of a fall on a defective stairway in a business block, it was held proper to exclude testimony of a tenant that none of her customers had ever complained of any defects, the court saying that the testimony had the characteristics of hearsay, and that if it was not hearsay, it was only evidence of inconclusive silence, which might be excluded in the discretion of the trial judge.

Evidence as to absence of complaints from customers other than the plaintiff has been admitted in four cases, all relating to breach of warranty in the sale of food, in this Commonwealth. In three of them the testimony was apparently received without objection. . . . In Landfield v. Albiani Lunch Co. . . ., the plaintiff alleged that he had been made ill by eating beans purchased at the defendant's restaurant. Subject to his exception, evidence was admitted that on that day and on the day preceding no complaint as to the beans was made by any other customer. In upholding the ruling on evidence, it was said, at page 530: "The fact that others than the plaintiff ate of the food complained of without ill effects is competent evidence that it was not unwholesome. . . . There is a reasonable inference based on common experience that one who ate and suffered as he believed in consequence would make complaint. There is a further reasonable inference, based on logic, that if no one complained no one suffered. Obviously, the latter conclusion is not convincing that the food was wholesome, unless one is satisfied that both plaintiff and others ate of it. Evidence of no complaint is too remote and should not be admitted unless, in addition to the fact that no complaints were made, there is evidence of circumstances indicating that others similarly situated ate and had opportunity for complaining."

It has often been said that where collateral issues may be opened, much must rest in the discretion of the trial judge. . . . In the case at bar, should the circumstances of the plaintiff and of the other passengers as to exposure to the cold be shown to be substantially the same, the negative evidence that none of the others spoke of it to the porter might properly be admitted. The evidence would not be equivocal, and would then be offered on the basis of a common condition which all in the car encountered. The porter's duties should be shown to include the receipt of that sort of complaints from those passengers. It should appear that he was present and available to be spoken to, and that it was not likely that complaints were made by these passengers to other employees of the railroad or the sleeping car company. This would not seem to be a situation where one might prefer to remain silent rather than to make any statement. Indeed, if the car was too cold, ordinary prudence might seem to require that one speak out. There would be no ambiguity of inference. There would be at least as strong a case for admissibility as in the food cases, and a far stronger one than those relating to the sale of allegedly defective goods in which little may be known of the terms of sale to the noncomplaining buyers. Unlike the unknown users of a stairway in a business block, the uniform result of silence in the cases of a large number of passengers, here apparently eleven, would not be inconclusive. . . .

Exceptions sustained.