HOWARD L.

SILVER, administrator,
vs. NEW YORK CENTRAL
RAILROAD COMPANY & another.
329 Mass. 14
March 3, 1952 - May 2, 1952
Suffolk County
Present: LUMMUS, RONAN, WILKINS, & SPALDING, JJ.
A basic ruling made without objection at the trial of an action became the law of the trial. [17]

Evidence that on a winter morning when it was very cold a railroad left a passenger car standing
unheated in a yard, inaccessible to a station, for about three hours, so that a passenger of ordinary
good health on the car might have been adversely affected by the cold, would warrant a finding
of negligence on the part of the railroad toward a woman passenger on the car who had the
circulatory ailment known as Raynaud's disease and was susceptible to attacks from cold, and
would justify recovery from the railroad for all injury suffered by her through an attack brought
about by her exposure to the cold in the car on that morning.

In an action against a railroad for injuries sustained by a passenger through a cold condition of
her car, it was error to refuse a ruling requested by the defendant that it was not liable unless it
"negligently permitted the car . . . to get so cold that the health of persons of ordinary and normal
health would be endangered thereby." [18]

At the trial of an action against a railroad for injuries sustained by a passenger through a cold
condition of her car, it was not error to exclude testimony by a porter as to the temperature in
another car or testimony as to absence of discomfort from cold of another passenger not shown
to have been in the plaintiff's car [18-19]; the porter of the plaintiff's car was rightly allowed to
testify as to the temperature in that car [19]; and testimony by the porter of the plaintiff's car that
eleven other passengers in that car made no complaint to him about the temperature therein
would be admissible if the other passengers were shown to be in substantially the same situation
concerning exposure to cold as the plaintiff, if the porter's duties were shown to include the
receipt of such complaints, if he were shown to have been present and available to be spoken to,
and if it were shown to be unlikely that the other passengers complained to some other employee
of the defendant. [19-21]

CONTRACT OR TORT, originally brought by Frances Silver and later prosecuted by the
administrator of her estate.
Page 15

Writ in the Municipal Court of the City of Boston dated April 16, 1948.

Upon removal to the Superior Court, the action was tried before Swift, J.

Walter N. Kernan, for New York Central Railroad Company.

Thomas D. Burns, for the plaintiff.

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.

Certain basic facts are not in dispute. The plaintiff, who was 58 years of age, boarded the train at
Boston, on January 14, 1948, at 4:50 P.M. She occupied a lower berth in the rear car, which was
the only through car to Cincinnati. The train was scheduled to arrive in Cleveland at 6:20 A.M.
the following day, but did not do so until 8:40 A.M., too late for the intended connection for
Cincinnati. This necessitated a lay-over in Cleveland until the next train for Cincinnati, which
left at 12:30 P.M. In Cleveland the

Page 16

weather bureau records show that the temperature at 5:35 A.M. was one degree below zero
Fahrenheit and 26 degrees above zero at 9 P.M. The plaintiff reached Cincinnati without further
event, but because of her tendency to develop Raynaud's syndrome and the exposure to cold in
Cleveland the condition of her hands required that she be hospitalized. There was a discoloration
of the right ring finger showing an area of impending gangrene to the tip; there was demarcation
of the area of the left ring finger which was formerly occupied by a vesicle, and the tip of the
finger was gray in color and cool to touch; she complained of pain, numbness, discoloration, and
coldness of her fingers; and it was diagnosed as an obliterative arterial disease, or, in other
words, the arteries of her upper extremities were structurally involved, causing a lack of proper
circulation to the fingers.
Other facts could have been found by the judge. A woman 58 years of age can get the Raynaud
syndrome at any temperature below body temperature and after exposure to cold of only a few
minutes. Such attacks are brought on by changes of temperature, but also by absolute cold if
below the temperature to which a person is accustomed. If a person is used to 72 degrees, and
there is a sudden drop to 60 degrees, from 70 to 69, if maintained for more than five minutes
could have brought about the plaintiff's condition. A lay person looking at the plaintiff on
January 15 could not have told that she had the disease.

Findings as to the plaintiff's experience at Cleveland could have been based upon statements she
had made before suit was brought. She woke up about 9 A.M. because she was cold. She rang for
the porter but no one came. She was alone in the car, which was standing in the yard and not at a
platform. The station was inaccessible. She went to the washroom and got dressed. She "had to
bundle up with her coat and furs," and put on a pair of woolen gloves. She rang twice more. Still
no one came. She thought that the temperature was below freezing. She was

Page 17

extremely cold. She went back into her berth. The car remained in the same condition until
connected with the Cincinnati train after 12 M. At that time the temperature outside was 10 to 15
degrees, and the car had been "without any heat whatsoever" for about three hours with that
temperature outside.

The judge ruled, in accordance with a request of the defendant, that the rights and liabilities of
the parties are to be determined by the law of Ohio. This ruling is of no present importance,
however, as we have seen no case in Ohio indicating any pertinent variation from the law of this
Commonwealth.

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. 10 Am. Jur., Carriers, Section 1337. 48
Am. Jur., Sleeping Car Companies, Section 13. 13 C. J. S., Carriers, Section 744, page 1398. 33
A. L. R. 168. The judge without objection by the plaintiff granted the defendants' second request,
"That the defendants were under a duty to exercise ordinary care for the comfort of its
passengers." This ruling became the law of the trial. Horton v. North Attleborough, 302 Mass.
137 . Dalton v. Post Publishing Co. 328 Mass. 595 , 599. Upon the assumption that that basic
ruling is correct, we do not consider applying the "single uniform standard of care" principle set
forth in Holton v. Boston Elevated Railway, 303 Mass. 242 , 244, or relying upon the explanation
of Moreland v. Boston & Providence Railroad, 141 Mass. 31 , given in Dodge v. Boston &
Bangor Steamship Co. 148 Mass. 207 , 217-219.

This assumption is not decisive, however, as we think that, on either theory, there was evidence
of the defendant's negligence. The testimony, however lacking in plausibility, was not too vague
to permit a finding that, while the thermometer outside read at 10 to 15 degrees, the car stood for
nearly three hours "without any heat whatsoever," and

Page 18
that the temperature within the car was below freezing. This was enough to warrant a finding that
a person of ordinary good health might have been affected by the cold. If the temperature was
low enough to cause harm to such a person, the plaintiff, although in a susceptible condition,
could recover for all the injury she sustained as a result. Spade v. Lynn & Boston Railroad, 172
Mass. 488 , 491. Webber v. Old Colony Street Railway, 210 Mass. 432 , 442. Larson v. Boston
Elevated Railway, 212 Mass. 262 , 267. Dellapenna v. Irwin, 291 Mass. 221 , 223. Bryant v.
Emerson, 291 Mass. 227 , 228-229. See Murphy's Case, 328 Mass. 301 .

The judge denied the defendants' fifth request, which reads: "That the defendants cannot be liable
to the plaintiff in this action unless they negligently permitted the car in which the plaintiff's
intestate was a passenger on January 15, 1948, to get so cold that the health of persons of
ordinary and normal health would be endangered thereby." In this there was error. Except
possibly where a common carrier has, or reasonably should have, particular knowledge of a
passenger's delicate condition, it is under no liability for failure to heat a car unless a person of
ordinary good health would suffer harm. Roark v. Missouri Pacific Railway, 163 Mo. App. 705,
708. Owen v. Rochester-Penfield Bus Co. Inc. 278 App. Div. (N. Y.) 5. Bulloch v. Missouri,
Kansas & Texas Railway, 171 S. W. 808 (Tex. Civ. App.). Zoccolillo v. Oregon Short Line
Railroad, 53 Utah, 39, 49-52. Marcott v. Minneapolis, St. Paul & Sault Ste. Marie Railway, 147
Wis. 216, 219. See Atlantic Coast Line Railroad v. Powell, 127 Ga. 805. As was said in Spade v.
Lynn & Boston Railroad, 172 Mass. 488 , 491, "Ordinary street cars must be run with reference
to ordinary susceptibilities, and the liability of their proprietors cannot be increased simply by a
passenger's notifying the conductor that he has unstable nerves."

We omit unnecessary discussion of the defendants' other requests, and turn to questions of
evidence that may arise again. The porter in the car next to that in which the

Page 19

plaintiff was a passenger was not permitted to testify as to temperature conditions in his car
while at Cleveland. A woman passenger in a drawing room in a car on the same train, who may
or may not have been shown to be in the same car with the plaintiff, was not allowed to testify
that she experienced no discomfort from the cold while at Cleveland. These rulings might be
upheld on the ground that substantial identity of circumstances was not shown. See Emerson v.
Lowell Gas Light Co. 3 Allen 410 , 417; Robitaille v. Netoco Community Theatre of North
Attleboro, Inc. 305 Mass. 265 ; Southern Railway v. Harrington, 166 Ala. 630, 639-640.

The porter in the plaintiff's car was rightly allowed to testify as to the temperature conditions in
that car. Leopold v. Van Kirk, 29 Wis. 548, 553-554. He was giving at first hand his experience
with the same conditions which confronted the plaintiff. Carter v. Yardley & Co. Ltd. 319 Mass.
92 , 94, and cases cited. Wigmore, Evidence (3d ed.) Sections 442, 457, 1977. 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, 40 Fed. Sup. 208, 211 (D. C. W. D. N. Y.). United
States v. Paddock, 68 Fed. Sup. 407, 409 (D. C. W. D. Mo. W. D.). Altkrug v. William Whitman
Co. Inc. 185 App. Div. (N. Y.) 744, 748-749. James K. Thomson Co. Inc. v. International
Compositions Co. Inc. 191 App. Div. (N. Y.) 553, 556-557. George W. Saunders Live Stock
Commission Co. v. Kincaid, 168 S. W. 977, 978 (Tex. Civ. App.). Contra: St. Louis Southwestern
Railway v. Arkansas & Texas Grain Co. 42 Tex. Civ. App. 125, 132. McCormick, The
Borderland

Page 20

of Hearsay, 39 Yale L. J. 489. See Danish Pride Milk Products Co. v. Marcus, 272 Pa. 340, 344-
345. In Menard v. Cashman, 94 N. H. 428, 433-434, 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. Gracey v. Waldorf
System, Inc. 251 Mass. 76 , 78. Monahan v. Economy Grocery Stores Corp. 282 Mass. 548 ,
550. Schuler v. Union News Co. 295 Mass. 350 , 352. In Landfield v. Albiani Lunch Co. 268
Mass. 528 , 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

Page 21

opened, much must rest in the discretion of the trial judge. Bemis v. Temple, 162 Mass. 342 ,
344. Guidara & Terenzio Inc. v. R. Guastavino Co. 286 Mass. 502 . Commonwealth v.
Cohan, 307 Mass. 179 , 183. 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. See Falknor, Silence as Hearsay, 89 U. of Pa. L. Rev. 192.

Exceptions sustained.

G.R. No. 1785 July 17, 1905

SHANNON RICHMOND, plaintiff-appellee,

vs.
FRANCISCO ANCHUELO, defendant-appellant.

Federico Olbes for appellant.

R. E. Manly for appellee.

WILLARD, J.:

The defendant, who was blind, employed the plaintiff, a doctor, to treat his eyes. Plaintiff did so,
without success, and brought this action to recover for his services. The principal question in the
case is, What was the contract between the parties?

The plaintiff claimed that he was to receive 200 pesos in any event, and if he effected a cure he was
to receive 500 pesos more. The defendant claimed that if a cure was effected plaintiff was to receive
200 pesos, but if no cure was effected he was to receive nothing. The court below found upon the
evidence in favor of the plaintiff, and we think this finding is supported by the proof.

At the trial the defendant presented a witness, Jose Pastor, and offered to prove by him that the
defendant, on returning from the plaintiff's office, had stated to the witness that the plaintiff had
agreed to cure him for 200 pesos, and not to charge anything if no cure was effected. The judge
excluded this evidence, to which ruling the defendant excepted.

It will be noticed that the witness did not offer to testify to anything which the plaintiff had said, but
offered to testify to what the defendant said that the plaintiff had said. The witness did not know that
the plaintiff had made these statements; he only knew that the defendant said that the plaintiff had
made them. Such evidence is inadmissible, according to the provisions of section 276 of the Code of
Civil Procedure.

The judgment of the court below is affirmed, with the costs

G.R. No. L-20986 August 14, 1965

THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. VICENTE N. CUSI JR., Presiding Judge, Branch I, Court of First Instance of Davao,
ARCADIO PUESCA alias Big Boy, WALTER APA, JOSE GUSTILO alias Peping, FILOMENO
MACALINAO, JR. alias White, RICARDO DAIRO alias Carding, and MAGNO
MONTANO alias Edol, respondents.

Davao Provincial Fiscal Alejandro B. Ruiz and Assistant Provincial Fiscal Martin V. Delgra, Jr. for
petitioner.
No appearance for respondents.

DIZON, J.:

In Criminal Case No. 6813 of the Court of First Instance of Davao, Arcadio Puesca, Walter Apa, Jose
Gustilo, Filomeno Macalinao, Ricardo Dairo, and Magno Montano were charged with robbery in
band with homicide, to which they pleaded not guilty. During the trial, and while Sgt. Lucio Bano of
the Police Force of Digos, Davao was testifying as a prosecution witness regarding the extrajudicial
confession made to him by the accused Arcadio Puesca, he said that the latter, aside from admitting
his participation in the commission of the offense charged, revealed that other persons conspired
with him to to commit the offense, mentioning the name of each and everyone of them. Following up
this testimony, the prosecuting officer asked the witness to mention in court the names of Puesca's
alleged co-conspirators. Counsel for the accused Macalinao, Gustilo and Dairo objected to this,
upon the ground that whatever the witness would say would be hearsay as far as his clients were
concerned. The respondent judge resolved the objection directing the witness to answer the
question but without mentioning or giving the names of the accused who had interposed the
objection. In other words, the witness was allowed to answer the question and name his co-
conspirators except those who had raised the objection. The prosecuting officer's motion for
reconsideration of this ruling was denied. Hence the present petition for certiorari praying that the
abovementioned ruling of the respondent judge be declared erroneous and for a further order
directing said respondent judge to allow witness Bano to answer the question in full.

The question involved herein is purely one of evidence. There is no question that hearsay evidence,
if timely objected to, may not be admitted. But while the testimony of a witness regarding a
statement made by another person, if intended to establish the truth of the facts asserted in the
statement, is clearly hearsay evidence, it is otherwise if the purpose of placing the statement in the
record is merely to establish the fact that the statement was made or the tenor of such statement
(People vs. Lew Yon, 97 Cal. 224; VI Wigmore 177-8).

In the present case, the purpose of the prosecuting officer, as manifested by him in the discussions
below, is nothing more than to establish the fact that the accused Puesca had mentioned to Sgt.
Bano the names of those who conspired with him to commit the offense charged, without claiming
that Puesca's statement or the answer to be given by Sgt. Bano would be competent and admissible
evidence to show that the persons so named really conspired with Puesca. For this limited purpose,
we believe that the question propounded to the witness was proper and the latter should have been
allowed to answer it in full, with the understanding, however, that his answer shall not to be taken as
competent evidence to show that the persons named really and actually conspired with Puesca and
later took part in the commission of the offense.

On the other hand, the fact which the prosecuting officer intended to establish would seem to be
relevant to explain why the police force of the place where the offense was committed subsequently
questioned and investigated the persons allegedly named by Puesca.

PREMISES CONSIDERED, the writ is granted. The writ of preliminary injunction issued heretofore is
hereby set aside.