New Hampshire Bar Journal
2003 December, 9.
An Epic Court Battle of the Last Century: Watkins v. Boston & Maine Railroad (1918-1929)
New Hampshire Bar JournalDecember 2003, Volume 44, Number 4An Epic Court Battle of the Last Century: Watkins v. Boston & Maine Railroad (1918-1929)By Frederic K. UptonAn account of a case heard by juries three times (resulting in three plaintiffs' verdicts), and considered on various issues by the New Hampshire Supreme Court no less than six times. A case in which the mettle of Robert W. Upton, attorney representing the plaintiff, was sorely tested and found more than equal to the challenge.
On February 27, 1918 a young Concord, New Hampshire lawyer, Robert W. Upton,(EN1) brought suit in Merrimack County Superior Court on behalf of his client, Arthur J. Watkins, against the Boston & Maine Railroad for negligence and resulting injuries under the Federal Employers' Liability Act(EN2) and the companion Boiler Inspection Act.(EN3) The suit arose out of an accident that occurred on December 20, 1917 when Watkins, a fireman employed by the Railroad, was thrown or fell from the engine of a moving train. Robert Upton was opposed by the Concord firm of Streeter, Demond, Woodworth & Sulloway, a highly regarded and formidable adversary. This litigation was to last 11 years; be tried by juries three times with each jury returning a plaintiff's verdict; be transferred by the railroad to the New Hampshire Supreme Court six times, resulting in six reported decisions of that Court;(EN4) and not to end until October 21, 1929 when the United States Supreme Court denied the railroad's Petition for Writ of Certiorari.(EN5)
The marathon nature of this litigation is notable by any standards and for any era. Even more remarkable was the unwavering single-minded perseverance of Robert Upton in the face of often bitter and frustrating contretemps and vicissitudes that beset the plaintiff's case (not to mention a zealous, renitent, and unyielding defense), and Upton's dedication to his client's cause even to the point of personally financing the litigation's continuation during its darkest days. It is that perseverance and that dedication beyond the call of any professional duty that warrant re-telling the epic-like tale of Watkins v. The Railroad before it becomes lost in history.
PREFACE: A 1918 VIEW OF THE PARTIES AND THEIR LAWYERS
When the lawsuit began in 1918 Robert Upton was thirty-four years old. His legal education had consisted of reading law in the Concord offices of Sargent, Niles & Morrill in lieu of college and attending Boston University Law School from which he graduated with honors in 1907. He was admitted to the New Hampshire and Massachusetts bars that same year. During the next nine years he practiced in association with Edward C. Niles, the first chairman of the New Hampshire Public Service Commission in 1911 and later Supreme Court Reporter. By 1918 Robert Upton was becoming known in the profession as a trial lawyer and litigation matters were being referred to him by other lawyers. He had formed in 1916 a felicitous association with Joseph C. Donovan and the two worked equably and as a team in handling their growing practice. Joseph Donovan assisted in the trial of the Watkins litigation throughout its many turns.
When the case first went to trial in the fall of 1918, Arthur J. Watkins, a Concord resident, was 24 years old, weighed about 185 pounds, and was married and the father of one child. He completed his schooling at the age of 16 or 17, and from that time until the accident performed railroad work of various kinds for the Boston & Maine Railroad. He began cleaning engines and doing odd jobs. Subsequently he was sent for three summers to serve as a fireman on the Mt. Washington Cog Railroad, firing its small engines, and worked the winters of those years in the Concord shops. He began working as a fireman on the main roads of the Boston & Maine in January, 1916, and had been performing such work for nearly two years when the accident occurred in December, 1917. Locomotives of that time were propelled by steam and generally fired by coal. Arthur Watkins would reach the age of 35 before the litigation finally terminated in 1929.
By the early 1900's the Boston & Maine Railroad had completed the acquisition of all the rival roads in New Hampshire. From this summit it soon gained and held for a short time domination and virtual control of New Hampshire state government. A Concord lawyer, Frank Streeter, served as general counsel to the railroad in that period until 1906, and was the acknowledged head of its political machine.(EN6) A major source of the railroad's early power was its influence with the bar and bench.
No lawyer in the State could rise to a position of any influence in his profession or otherwise without being offered a railroad retainer. Sometimes that fee was small, consisting merely of a free pass, but the limit was always raised as the reputation of the lawyer increased. In fact, it was not entirely easy for those who had claims against the corporation to find competent lawyers to represent them because most of those consulted were bound under general railroad retainers, and the search might have been hopeless had not some members of the bar, of independent turns of mind, refused pre-emption of their services by the corporation. When judges were to be selected, it was practically impossible to find competent candidates who were not subject to whatever weakness there may have been in being former railroad employees. (EN7)
In 1906 a reform movement led to the prohibition of the practice of issuing free passes to public officials. including expressly justices of the supreme and superior courts,(EN8) followed by revaluation of the Railroad's property for tax purposes and stricter regulation of its rates.(EN9) Thereafter the political sway of the Boston & Maine Railroad went into decline and by 1918 its heyday had clearly passed. Although no longer a political juggernaut, it was still a force to be reckoned with in matters affecting its own legal interests. Its power flowed from the fact that most people and property still traveled or moved by rail over its tracks. Moreover, the Boston & Maine remained a significant employer and property owner in New Hampshire. In Concord alone it maintained huge shops and a cavernous passenger depot. Frank Streeter, widely known as "General Streeter" from his service as judge advocate general, had risen to a position of commanding influence in state affairs. His friend and classmate at Dartmouth College, Frank Nesmith Parsons, Chief Justice of the New Hampshire Supreme Court from 1902 to 1923 was to write, after Streeter's death, that Streeter had built up one of the most powerful "legal machines" the state had ever seen.(EN10) Justice Parsons was, of course, referring to the firm, Streeter, Demond, Woodworth & Sulloway, attorneys for the Boston & Maine Railroad in the action brought against it by Arthur J. Watkins.
The railroad was defended in court at the first jury trial of the Watkins litigation by Edward K. Woodworth and Frank J. Sulloway from the Streeter office.(EN11) At the second and third jury trials in 1925 and 1927, respectively, Sulloway and William N. Rodgers represented the railroad. Sulloway was to become one of New Hampshire's most eminent lawyers and public figures in the mid-20th century. Rodgers was to serve as a congressman from the First District from 1923 to 1925 and again from 1931 to 1939. Jonathan Piper from the same law office briefed and argued all six New Hampshire Supreme Court appeals taken by the railroad.
PREFACE, CONT'D: THE LEGAL AND STATUTORY FRAMEWORK OF THE LITIGATION
The Boston & Maine Railroad was in receivership in 1918 and the action of Arthur Watkins was initially brought against the railroad's Receiver, James H. Hustis.(EN12) Watkins sued the Receiver for negligence under the Federal Employers' Liability Act(EN13) charging a violation of the Boiler Inspection Act.(EN14) These statutes were congressional responses to remedial and safety concerns of a bygone era when most travel was by railroad. Together they greatly liberalized the remedies of injured railroad workers, and they have generally been interpreted in furtherance of this humanitarian objective.
The plaintiff in his Declaration alleged that on December 20, 1917, he was employed by the defendant railroad in interstate commerce as a locomotive fireman; that by reason of the defendant's negligence, the "apron" between the cab and tender was defective and in want of repair; and that as a result he was "thrown" from the apron, sustaining a fractured skull and other injuries.
Robert Upton chose to mount his client's claim via the Federal Employers' Liability Act(EN15) (known by its acronym "FELA") because of its advantages over the common law. Enacted in 1908, it was an ideal vehicle for the suit. FELA imposes on common carriers by railroad while engaged in interstate commerce liability for negligence resulting in injury to any person employed by them in commerce, and creates a right of action for damages to the injured employee. Traditional defenses, such as assumption of risk and fellow-servant doctrine, are abrogated by FELA, and contributory negligence operates to diminish damages rather than as a bar.(EN16) State courts are given concurrent jurisdiction of such actions with federal courts, enabling Watkins to sue in Merrimack...