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.