Citation. Silver v. New York C. R. Co., 329 Mass. 14, 105 N.E.2d 923
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Brief Fact Summary.
A fifty year old woman sustained injuries when the train car she was riding in was left without heat for approximately four hours, while a transfer was being completed to continue with the trip. As a result of those injuries, plaintiff sued the railroad.
Synopsis of Rule of Law.
The absence of declarations by those in situations similar to the plaintiff may be admitted if the conditions are substantially similar and offered to show that they all were subject to a common condition.
Facts.
A 58 year old woman suffered from injuries related to the below freezing temperature in her train car when the car was left without heat for approximately four hours during a transfer. The railroad sought to introduce evidence that no other passenger contacted the porter to complain of discomfort in connection with the temperature.
Issue.
Whether evidence that no other passenger in plaintiff’s car called the porter to complain of discomfort was properly excluded?
Held.
No. Evidence of the lack of other statements about the temperature in the car should have been admitted as evidence of those suffering from a common condition.
Discussion.
As long as the porter was available to be spoken to, and was the person who would most likely receive such complaints, the lack of complaints is admissible as implying that the conditions were not uncomfortable to ten of the eleven passengers who encountered them.
