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Bar Journal - December 1, 2003

An Epic Court Battle of the Last Century:
Watkins v. Boston & Maine Railroad (1918-1929)


An 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,1  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 Act2 and the companion Boiler Inspection Act.3  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;4 and not to end until October 21, 1929 when the United States Supreme Court denied the railroad’s Petition for Writ of Certiorari.5

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.


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.6 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. 7

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,8 followed by revaluation of the Railroad’s property for tax purposes and stricter regulation of  its rates.9  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.10 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.11 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.


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.12  Watkins sued the Receiver for negligence under the Federal  Employers’ Liability Act13  charging a violation of the Boiler Inspection Act.14 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 Act15 (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.16  State courts are given concurrent jurisdiction of such actions with federal courts, enabling Watkins to sue in Merrimack County Superior Court.  Although charging negligence, Watkins relied upon a violation of the Boiler Inspection Act as constituting or evidencing the negligence.

The Boiler Inspection Act (a quaint and now misleading title) was enacted by Congress in 1911 in response to numerous boiler explosions in steam locomotives. Its scope was broadened in 1915 to cover locomotives in their entirety.  The primary purpose of Congress was to protect railroad employees and passengers from injury. The Act is one of a series of federal statutes dealing with railroad safety that have been grouped and called the Safety Appliance Acts. The Boiler Inspection Act makes it "unlawful" for any railroad to use any locomotive on its line unless the "locomotive,  its boiler, tender and all parts and appurtenances thereof" are "in proper condition and safe to operate" so that they can be used without "unnecessary peril to life and limb", and unless such locomotive in its entirety has been regularly inspected as required by law. The language is mandatory.

The Act as amended in 1915 granted to the Interstate Commerce Commission (ICC) the authority to prescribe inspection requirements for every part of the locomotive and tender, and, assuming to act pursuant to this limited delegation and at the joint request of several carriers, the ICC adopted and published a series of Orders between 1915 and 1919 setting not only inspection standards but also uniform equipment requirements (a dubious expansion of its authority).   These were assembled as a single comprehensive code.17

The plaintiff claimed that the "apron," singled out in his declaration as having been defective and in want of repair, was a "part" of a locomotive under the Boiler Inspection Act and was not "in proper condition and safe to operate" without "unnecessary peril," so that its use by the Boston & Maine was a violation of that Act.  Since the Boiler Inspection Act does not itself create a right of action for injuries resulting from a violation of its provisions, an action to recover for such an injury is properly brought under FELA.18 This was the course followed by Arthur Watkins.

The apron in question was a narrow footway or gangway bridging the gap between the cab and the tender, intended for the use of firemen and enginemen in the performance of their work. It consisted of an iron plate about 7 feet long and about 21 inches wide, attached to the cab by hinges that permitted vertical play.  At its forward end, the apron rested on an angle iron attached to the floor of the cab, and the rear end rested on the floor of the tender. The sides were open or unguarded. Under normal conditions there was no appreciable lateral play in the apron.

The claimed defect in the apron was excessive lateral play or looseness.  An examination of the locomotive and tender about two months after the accident disclosed lateral play in the apron of 1 3/4 inches, a condition that could have easily been corrected by tightening the hinges. In addition to the looseness, grooves 1/8th of an inch-deep were found in the angle iron on which the forward end of the apron rested. These grooves were co-extensive with the amount of free sideway movement, and evidenced that the loose condition had existed for as much as a year.


A Favorable Start Turns Into a Lawyer’s Nightmare:  The Jury’s Verdict for the Plaintiff Is Transposed by the Supreme Court Into Judgment for the Defendant

The case went to trial by jury at the October Term, 1918 of Merrimack County Superior Court. Presiding was Judge William Sawyer, a commanding figure who had a special knack for explaining legal concepts with pithy language.19 On the eve of trial, negotiations between counsel for an agreement that would have located the place of the accident at or near a curve collapsed.

Many of the basic facts were not in dispute. On December 20, 1917, the plaintiff was called to fire the locomotive of the St. Paul’s Special, a special train running from Concord, New Hampshire, to Worcester, Massachusettts, for the accommodation of St. Paul’s School. It consisted of a locomotive, tender and some ten or twelve heavy passenger coaches. On arrival at Ayer, Massachusetts, the train stopped at Ayer Yard to take on water. The accident occurred as the train was leaving Ayer Yard, westbound, in the vicinity of Davis Crossing which it passed at a speed of 35 mph. There was a short curve  beyond the crossing.

Presentation of the plaintiff‘s case was handicapped throughout the trial by the impairment of his memory caused by the severe head injuries that he received in the accident.

The plaintiff’s account at the first trial, as best he could then remember, was he was standing inside the cab shortly after leaving Ayer. His attention was called to Ft. Devens, visible on the right-hand side of the road.  He then shoveled coal into the firebox and stepped back with both feet onto the apron.  The next thing he knew, he was "thrown" into the air.  He testified that he did not fall, and did not remember any jolt prior to being thrown. The two engineers in the cab did not immediately notice that the plaintiff was missing.  The crew of an eastbound train found the plaintiff lying unconscious between the westbound track and a side track containing freight cars. The distance between the tracks was more than seven feet.  It was evident that the plaintiff had been ejected or thrust with considerable impetus, as his head struck one of the freight cars.

The plaintiff’s case focused on lateral play of 1 3/4 inches in the apron that was discovered shortly after the accident, and on the co-extensive grooves in the angle iron on which the apron rested. According to the evidence these grooves had been made by constant lateral sliding of the apron caused by the sway of the locomotive as it traveled over curves in the track, unevenness of or variations in the alignment in the track, or from the rising and falling of the tender (coal car) The plaintiff contended that this long-continued condition of excessive lateral play in the apron, and the risk that it posed to the equilibrium of an employee required to stand on it in the course of his work, constituted negligence, thus this condition caused the plaintiff’s injuries.

An expert for the plaintiff testified that given the amount of play in the apron, a lurch of the locomotive entering or leaving a curve at 35 mph would have been sufficient to throw a man standing on it. The defendant strenuously tried to negate this testimony by showing that the accident did not happen on a curve, and produced testimony that the plaintiff’s body had been found alongside straight track a substantial distance beyond the only curve in the westbound track leaving Ayer. The plaintiff’s attempt to show that the accident occurred in the vicinity of that curve largely failed when a railroad employee whom the plaintiff had deposed changed his testimony at the trial. However, there was evidence that any lurching of the locomotive, however caused, might generate lateral motion of the apron capable of upsetting and throwing the plaintiff, and that unevenness of straight track as well as negotiating curves in the track might cause such lurching. Nevertheless, there was no evidence as to whether the straight track in the vicinity of the accident was even or uneven.

Since the apron was clearly a "part" of the locomotive and covered by the Boiler Inspection Act, a major point of contention was whether its instability was a dangerous condition so that its use would constitute a violation of the Act.  In addition, the defendant maintained that if such use violated the statute, the violation was not the proximate cause of the plaintiff’s injuries.

The defendant moved for a directed verdict at the close of the evidence which was denied by Judge Sawyer, subject to exception.  The case was submitted to the jury which returned a verdict for the plaintiff for $10,000.20  The railroad appealed.

The Supreme Court in an opinion by Chief Justice Parsons, issued November 4, 1919,21 held that the case should not have been given to the jury, and entered a verdict and judgment for the defendant. According to the court, there was no evidence that the loose apron was actually dangerous unless the apron could be seen as the cause of the plaintiff’s injuries. Since the plaintiff had failed to show a connection between the loose apron and his injuries, to make that connection without proof would be to engage in forbidden speculation, the court ruled.   The court identified two key unanswered questions:   "........did the apron throw him, and was he thrown on a curve?"  The court reasoned that even if it was assumed that the defendant was negligent in furnishing the plaintiff with "an engine unsafe to ride curves upon,"22 there was no evidence that the accident had happened  on a curve. The court added:

The same is true as to the claim as to unevenness of the track. There was no evidence of such condition.  There was at most a possibility.  A mere possibility is not a circumstance in proof from which inferences may be drawn.23

Did the Court disregard the distinction between conjecture and reasonable deduction?24 There were only two plausible explanations for the accident: The plaintiff either fell or he was ejected by a loose, unstable apron.  These were not equal possibilities.  The plaintiff testified that he did not fall and there is no direct evidence that he did fall.  Rather, he claimed that he was "thrown" and his body in fact fully cleared the locomotive and tender.  The fact that his head struck a freight car on an adjacent track several feet distant is more consistent with having been ejected or flung than having simply fallen, under the force of gravity perhaps, beneath the wheels of the tender. It was reasonable to infer the presence of uneven track sufficient to cause the locomotive to lurch and the apron to slide abruptly. According to the record, uneven track was one of the constant conditions that caused lurching by the locomotive. That, in turn, caused lateral movement of the apron and the gouging of the angle iron. Indeed, the presence generally of uneven track on rail lines in New Hampshire was common knowledge.  The inference that the plaintiff was thrown by a sudden lateral movement of the apron on which he was standing as a result of the lurching of the locomotive seems supported by a balance of probabilities.  Drawing such an inference would not be an exercise in guesswork.

On a motion for a directed verdict it is axiomatic that the non-moving party is entitled to a view of the evidence most favorable to him, and to have those inferences that may be rationally drawn from the evidence construed in his favor.  The motion for a directed verdict is only to be granted if, on considering the evidence in that light, no reasonable juror could conclude that the non-moving party is entitled to relief. This rule, which is so well established that no citation of authority is necessary, was not mentioned by the Supreme Court.

Right or wrong, the decision of the Supreme Court was final and would terminate the litigation unless some means could be found to revive it.  No loss could have been more disheartening to Robert Upton and his client.  It was bad enough to have had a hard-won verdict wrenched away. Even worse was the Court’s ruling that their case did not even belong in court, the worst possible fate that could befall any litigant and his lawyer.


The Plaintiff Is Finally Awarded a New Trial on the Ground of Newly Discovered Evidence, But on Painful Terms

Robert Upton never wavered in his belief in the justice of Arthur Watkins’ case.  Although he had suffered a calamitous, crushing loss, he was not daunted and by no means about to quit the battle.  He remained convinced that the plaintiff had been thrown from the locomotive on a curve in the track, and believed that his proof of that had failed at the first trial on account of bad luck.

Having engaged in further investigation,  Robert Upton filed in Merrimack County Superior Court on February 6, 1920, a petition for a new trial on the basis of newly discovered evidence which, by accident, mistake and misfortune, the plaintiff, without fault, had been unable to present at the former trial. The receivership of the railroad had in the meantime been dissolved, and consequently the petition for a new trial was brought against the railroad corporation.  It had assumed the liabilities of the Receiver as a condition to the recovery of its properties.

This petition encountered roadblock after roadblock, resulting in three transfers to the Supreme Court, two of which were interlocutory.  Attorneys for the railroad zealously resisted the petition at every turn.

In the course of this new investigation, Upton sought to depose railroad employee Walter E. Tufts, and gave notice of his intention to the defendant. Mr. Tufts had previously been deposed by the plaintiff prior to the first trial.  The Boston & Maine responded by petitioning the court to enjoin the taking of Mr. Tufts’ deposition and any other depositions, claiming that the main case had gone to judgment for the defendant so that there was no longer any civil case pending which would entitle the plaintiff to take depositions. Further, the railroad argued that in any case a petition for a new trial must be supported by affidavits. The railroad’s petition for injunction was dismissed, and Mr. Tufts, who was represented by the Railroad’s counsel, having been summoned, refused to answer and was committed by the magistrate. Mr. Tufts then brought a petition for habeas corpus which the Superior Court refused to issue, and he then submitted to the deposition. The exceptions of both the railroad and Tufts were reserved and transferred. In an opinion by Chief Justice Parsons, the Supreme Court held that by completing the deposition, the railroad and Tufts had waived their exceptions.25  Assuming that Watkins might seek to take further depositions, the court offered guidance, holding that a petition for a new trial is a civil proceeding in which depositions may be taken.  The court also found no legal support for the proposition that a petition for a new trial must be supported by affidavits, and concluded by giving the plaintiff good marks for proceeding by deposition:

The railroad certainly cannot complain because Watkins, instead of seeking to extract information from Tufts, their employee, by secret negotiation, proceeded openly by giving them notice and opportunity to hear all that Tufts might be induced to say.26

The plaintiff’s petition for a new trial was heard before Judge Sawyer at the October Term, 1920, of Merrimack County Superior Court. The newly discovered evidence produced at the hearing consisted of the testimony of three new witnesses who located the approximate place where the plaintiff’s body was found. They testified that the plaintiff was found close to the curve west of Davis Crossing.  In addition, two firemen of substantial experience testified that a loose apron might even be dangerous upon a straight and level track as well as upon a curve or uneven track. They testified that a locomotive traveling at a speed of 30 to 40 mph will frequently develop a pronounced rolling motion, especially if the speed is increased or decreased, and gave their opinion that at times this rolling motion would be capable of moving an apron having 1 1/4 inches of lateral play with sufficient suddenness as to throw a man standing on the apron. The new evidence addressed the two unknowns mentioned by the Supreme Court.

On the issue of whether Robert Upton had been at fault in not producing the new evidence at the first trial, it appeared that neither Arthur Watkins nor Robert Upton, despite a thorough investigation, had known of the existence of the new witnesses.  Robert Upton believed that he had found all the available witnesses who had knowledge bearing on the location of the accident.  It also appeared that on the eve of the first trial the defendant had withdrawn from a proposed agreement of counsel that would have placed the accident in the vicinity of the curve, putting Robert Upton in the difficult position of having to make a snap judgment whether to go to trial or move for a continuance. Believing that he had other evidence sufficient to locate the place of the accident on the curve (the deposition of Mr. Tufts), he had elected to go ahead with the trial, only to be surprised when Tufts changed his testimony. Finally Robert Upton had believed, mistakenly, according to the Supreme Court that the evidence presented by the plaintiff at the first trial had been sufficient to sustain a verdict.

Judge Sawyer, having heard the petition for new trial, found that the plaintiff was free from fault in not producing the new evidence at the former trial.  He transferred to the Supreme Court, without ruling, the question whether the evidence, with the proof now available, was sufficient to sustain a verdict.  The Supreme Court, in an opinion by Justice Peaslee,27 held that it was premature to consider the questions presented, but went on to engage in a far-ranging review of the findings necessary to support the award of a new trial on the basis of newly discovered evidence. This decision set down principles governing new trials on the basis of newly discovered evidence that have stood the test of time.28

Judge Peaslee found that there must be a finding that the new evidence presents a substantially different question regarding the sufficiency of all the evidence, and that a different result will probably, not merely possibly, be reached.  The court also found that mistakes of counsel as well as mistakes of a party may be considered, and that counsel’s mistake as to the legal sufficiency of evidence is a mistake of law that may be the basis of relief if counsel has not been culpable. Cumulative evidence will not suffice, but if a party had in effect presented no evidence on an issue (e.g. Watkins’ failed attempt to locate the accident on a curve), new evidence where none had existed before would not be treated as cumulative in nature.

Finally, the court held that upon a petition for new trial grounded on the mistake of the moving party,  rather than on accident, the moving party must put his opponent in status quo ante, and must pay (1) the latter’s expenses of the first trial and (2) perhaps some or all of its expenses in contesting the petition for new trial if it is found that justice so required. Payment must be made before a new trial is granted.

Having laid down these ground rules, the Supreme Court sent the matter back to the Superior Court. After further hearing, Judge Sawyer found and ruled that the plaintiff was free from fault, that a substantially different case was presented, and that with the benefit of the new evidence, a different result was probable.  Judge Sawyer further found that  the plaintiff had not received justice and that a new trial would be equitable, provided the plaintiff repay the defendant $2,334.61, which represented the defendant’s expenses of the first trial and a part of its expenses incident to the petition for new trial.  The judge decreed that a new trial would be granted if the plaintiff paid the $2,334.61 within 70 days after the defendant’s exceptions had been decided. The defendant excepted to these findings and the decree.

Thus the petition for new trial came back to the Supreme Court for the third time.  The defendant’s exceptions were overruled in an opinion written by Justice Allen and issued November 5, 1924.29 The railroad’s principal CONTENTION was that it could not be made responsible for a liability of the Receiver that was not pending on February 1, 1920, the closing date for filing claims against the Receiver under the decree terminating the receivership. It stressed that judgment had been entered for the Receiver in the original action on December 19, 1919, and that the petition for a new trial had not been filed until February 6, 1920.  This highly technical yet plausible contention was vigorously advanced by counsel for the railroad, and epitomizes the intensity with which it opposed at every step the petition for a new trial.

The Supreme Court responded that, on analysis, any judgment is not final and is subject to vacation " ......while the rights of the defeated party to attack its validity can be successfully maintained."30  In this sense the original action was still alive and an inchoate liability of the Receiver that the Railroad corporation had promised to assume as a condition of being restored to its properties. 

The appeal also involved claimed errors of the trial court (1) in not ordering reimbursement for more of the defendant’s expenses as a condition to the grant of a new trial, and (2) in finding that Robert Upton, although mistaken as to the legal sufficiency of his evidence, had not acted negligently.  The Supreme Court held that these were matters of fact for the trial judge, and found no basis in the record for disturbing his findings.

The judgment for the defendant entered on December 19, 1919, had finally been vacated and a new trial conditionally awarded to Arthur Watkins on November 5, 1924, some five years later, but at a steep price.  He must pay the railroad $2,334.61 within 70 days, as a condition to the granting of a new trial. This sum, having in mind the purchasing power of United States currency in 1924, was a small fortune to Arthur Watkins and beyond his reach. The funds were provided by his lawyer, Robert Upton,31 who, with the new evidence, was more than ever convinced of the justice of his client’s cause and not willing to see it fail for lack of resources. The case had come back to square one.  There was still a long and bumpy road to travel.


On January 5, 1925,  only months before the start of the new trial, the United States Supreme Court, in Baltimore & Ohio Railroad v. Groeger32 clarified the Boiler Inspection Act in two respects that were to figure importantly in the Watkins litigation.  First, the Court addressed the changed standard of duty under the Act, observing that a carrier "..... was bound absolutely to furnish what before under the common law, was only its duty to exercise ordinary care to provide."33 This meant that liability would attach for an injury proximately resulting from a carrier’s breach of this  unqualified statutory duty, irrespective of the care exercised by it.  In effect, a proven violation of  the Act, when prosecuted under FELA, would constitute negligence per se, and only causation would remain at issue.

The Groeger case also established that a violation of the Boiler Inspection Act could not be predicated on the failure of a carrier to equip a locomotive with safety devices, experimental or otherwise, that had not become standard equipment in the rail industry and that the ICC had not ordered carriers to provide by rule.   The Court specifically held that it was reversible error to allow a jury to second-guess industry judgment and practice on the desirability of installing these devices.  The effect of the decision was to place such devices outside the scope of the "parts and appurtenances" of a locomotive embraced by the Act.  Although the failure of a carrier to provide such optional equipment would not of itself constitute a violation of the Boiler Inspection Act, the Court added that the lack of such safety devices might be taken into account in determining whether some other locomotive part covered by the Act was in a safe condition.

The ICC, purporting to act under the 1915 Amendment to the Boiler Inspection Act and at the joint request of carriers, had issued an Order dated October 11, 1915, setting out a comprehensive code of rules and instructions for inspecting and equipping steam locomotives and their appurtenances.34 One of these Rules,  No. 117,  reads:

117.  Cab aprons. —  Cab aprons shall be of proper length and width to insure safety.  Aprons must be securely hinged, maintained in a safe and suitable condition for service, and roughened, or other provision made, to afford secure footing.

The lateral play in the apron on which the plaintiff was standing was attributable to loose hinges and this condition could have been remedied by tightening the hinges. Plainly the apron was not "securely hinged" as required, and Rule 117 might have played a significant role in the renewed litigation.  However, in 1925 when the second trial took place it was questionable, even doubtful, whether the 1915 Amendment to the Boiler Inspection Act had in fact empowered the ICC to prescribe by rule the precise equipment that a carrier must provide for its locomotives in order to comply with the Act. The Supreme Court had left this question open in 1916 when it decided Vandalia R. Co. v. Public Service Com.35   In 1924 the Boiler Inspection Act was further amended, clarifying the authority of the ICC regarding inspections and other matters,  and on November 29,1926,  the Supreme Court held that the 1924 Amendment had conferred on the ICC the power to specify the equipment to be used on locomotives in order to put them "in proper condition and safe to operate" as commanded by the Act.36 The plaintiff was not entitled to the benefit of this ruling, as it  was based on a legislative change enacted after the 1917 accident.


A Verdict for the Plaintiff Is Affirmed by the Supreme Court;  Then, on Reconsideration,  the Supreme Court Orders a New Trial

For the second time, a jury was seated to hear the Watkins case. At the October, 1925 Term of Merrimack County Superior Court, Oliver W. Branch, then Chief Justice of the Superior Court, was presiding. The plaintiff now claimed violation of the Boiler Inspection Act in two respects:  namely that the Boston & Maine Railroad had failed to furnish a locomotive and tender "in proper condition and safe to operate," not only because of excessive lateral play in the apron but also because of the absence of chains across the open sides of the apron or gangway. Seven years had now elapsed since the accident of December 20, 1917, had occurred. The plaintiff’s memory had recovered somewhat, and his testimony at the second trial was that  "the apron lurched to the right with a snap and also lifted at the same time; it seemed to lift and throw me." This was, he testified, an unusual lurch, one that he had not experienced before. His memory recovery was consistent with medical knowledge and the severe head injuries he received. The plaintiff’s newly discovered evidence buttressed his claim that the accident had happened on a curve with attendant engine lurching. There was additional evidence that, whether on a curve or not, unevenness in the track might cause an abrupt lateral as well as upward motion of the apron from engine lurching.  In this regard there was testimony that low track joints were frequent because of frost and were difficult to detect.  It also appeared that changes in engine speed alone might cause the locomotive to lurch.

The locomotive in controversy was of the Pacific or 3600 class and had no chains for closing the gangway. There was evidence that certain locomotives, including the Atlantic type, had been furnished to the defendant equipped with chains that could be drawn across the gangway, but that locomotives so equipped had not been used by the defendant for several years before the accident.  It also appeared that in 1917 operators of railroads did not  approve the use of chains to guard gangways. The plaintiff fell from the right-hand side of the engine,  and, as noted above, he testified that the lurch of the apron was also to the right.  The defendant contended strenuously that the plaintiff’s account was contrary to the laws of physics and could not be true.

The jury was instructed that they might find the plaintiff was thrown by the loose apron either (1) from his own testimony, or (2) from the testimony relating to the effect of a curve on the apron if they believed from the evidence that the accident happened while the locomotive was on a curve.  The jury was asked to determine whether the absence of chains on the locomotive rendered it dangerous and unsafe so as to constitute a separate violation of the Boiler Inspection Act.  The defendant’s motions for a nonsuit and directed verdict were denied subject to exception, and the defendant claimed exceptions to the jury instructions already mentioned.  The jury returned a verdict for the plaintiff in the sum of $12,000. Again, the railroad appealed.

The Supreme Court, in the first instance, in an opinion authored by Justice Thomas Marble and issued in final draft on March 1, 192737  held that the defendant’s exceptions were without merit and ordered: "Judgment for the Plaintiff." The Court found that there was "....abundant proof of excessive play in the apron" and that on the plaintiff’s testimony alone a finding was justified that the accident would not have happened "...if the apron had been properly tightened."38  Addressing the defendant’s contention that the plaintiff’s account was contrary to the laws of nature, the court observed that the jury was not required to believe the plaintiff’s narrative in every detail since it related to objective matters about which he might be mistaken. On the issue whether the jury had been improperly allowed to find that lack of safety chains was itself an actionable violation of the Boiler Inspection Act, contrary to the holding in the Groeger case,39 the Court made the following distinction, although it seemed to be without a difference:

"In the present case the court did not ask the jury to decide whether an engine in order to conform to the statutory requirements must be equipped with chains, but merely to determine whether the absence of chains  .......rendered that particular locomotive dangerous and unsafe. The instruction was unobjectionable."40

It seemed at last that Arthur Watkins was home free. Sadly for him and for Robert Upton, the victory proved to be fleeting and ephemeral. The railroad moved for a rehearing on its exception to the trial court’s handling of the issue of lack of safety chains under the Boiler Inspection act.  On rehearing, in an opinion by then Chief Justice Peaslee, the Court held that the question whether the railroad ought to have supplied chains across the gangway was erroneously submitted to the jury as an independent violation of the Boiler Inspection Act.  This was because the governing federal rule, enunciated in Groeger, excludes from the jury the determination of what should constitute standard or proper railroad equipment.  In the absence of ICC regulation, that determination is to be based on industry practice. and, the Court ruled,  a jury cannot be allowed to second-guess industry judgment.  Here the industry practice was not to use such chains. The only issue for submission to the jury as an actionable fault under the Boiler Inspection Act was the loose apron.  The Court added that the fact that the apron was unguarded could be considered as bearing upon the adequacy of the apron but not otherwise.

The Railroad’s exception to the charge on this issue was sustained, and the Court ordered a new trial. This esoteric corollary to an esoteric statute was the fly in the ointment.  The Court’s interpretation of the Boiler Inspection Act was undoubtedly correct.  Whether the error warranted another trial is another matter, especially in the light of the Court’s findings about the excessive play in the apron and its causal connection to the accident.  However that might be, Arthur Watkins was again back to square one.


The Plaintiff Wins a Verdict for the Third Time, and on Appeal Is Finally Allowed to Keep It.

The parties went back to the drawing boards and prepared their cases anew.  By now each knew the strengths and weaknesses of the other side, and the governing law had been spelled out twice by the Supreme Court.  The case quickly went to retrial at the April, 1927 Term of Merrimack Superior Court,  Judge Burque presiding. Apparently sensing that the litigation was reaching a climax, the parties tried the case with even greater intensity than before, with no talk or thought of settlement. The plaintiff’s evidence again tended to prove that he was thrown from the gangway by a sudden and violent movement, upward and to the right, of the loose apron upon which he was standing. His body was found and picked up near the south end of a curve in the vicinity of Davis Crossing in Ayer, tending to show the accident was precipitated by lurch of the engine as it was leaving the curve. The defendant again pressed its contentions that a sudden lurch to the right, as testified by the plaintiff, would throw him to the left, rather than to the right, making his story inherently false, contradicted by fundamental physical laws;  and that the curve in question was too slight to be a contributing factor. Expert witnesses called by the plaintiff testified that in their opinion the curve would be sufficient to cause the accident described by the plaintiff.

The defendant excepted to the denial of its motions for a nonsuit and a directed verdict, to the denial of certain requests for instructions, and to portions of the charge. The jury returned a verdict for the plaintiff, awarding $17,500.

The Supreme Court in an opinion issued on June 27, 1929,41 overruled the defendant’s exceptions and entered judgment on the verdict. The opinion was written by Justice Oliver W. Branch who as Chief Justice of the Superior Court had presided at the second jury trial in the fall of 1925, and had been subsequently elevated to the Supreme Court.42

To begin with, the Court refused to plow over old ground. It declared that that the contentions embodied in the railroad’s exceptions to the denial of its motions for nonsuit and directed verdict, having already been considered and rejected by the Court in the second appeal, were not entitled to further consideration. The Court also held that the trial judge had properly denied certain requests that sought to have the trial judge make findings based upon selected portions of the evidence.

The opinion dealt mainly with the railroad’s exceptions to the trial judge’s application of the Boiler Inspection Act, exceptions that in retrospect seem rather contrived. The trial court had charged the jury that the railroad’s duty under the Act to have the locomotive and all its parts and appurtenances in safe condition so they could be used without unnecessary peril to life and limb was "an absolute and continuing duty," to be contrasted with the lesser common law duty of an employer to use ordinary care in providing employees with appliances. The Supreme Court ruled that this statement of the defendant’s duty was legally correct and not misleading, noting that the quoted language had been taken from the Groeger case.43 However, the railroad contended at length that the trial court should have given what the Railroad claimed was a true statement of its duty under the Boiler Inspection Act, to wit:  that it owed "....the absolute duty of maintaining its engine and appurtenances in such condition that they may be reasonably safe to operate, taking into consideration the danger inherent in such operation."44 This hybrid ( part strict liability - part negligence)  misreading of the holding in the Groeger case was rejected by the Court which noted that the proposal had been derived by stitching together two widely separated statements from that case. Moreover, the Court noted that the defendant had not made any request for an instruction embodying this theorem, and at best had only obliquely brought it to the attention of the trial judge.  In exasperation the Court wrote: " is difficult to avoid the conclusion that they were more interested in getting a possibly valid exception to the charge than in securing a correct statement of the law." 45

And so the case ended at the state level. The railroad still had one arrow left in its quiver, but now Arthur Watkins and his lawyer could sense victory.


The Boston & Maine Railroad promptly petitioned the United States Supreme Court for a Writ of Certiorari, contending that the New Hampshire Supreme Court had misapplied federal legislation, namely the Boiler Inspection Act. On October 21, 1929, the Petition was denied without comment.46  The eleven-year battle was over.


The Watkins litigation involved a steam locomotive and tender, and the Boiler Inspection Act, archaic curiosities and vestiges of a by-gone era. The litigation did not establish any important or lasting legal principles — although it did make a road map for obtaining a new trial on the ground of newly discovered evidence.  The three jury trials and six Supreme Court transfers consumed an inordinate amount of judicial resources. No one got rich, certainly not Robert Upton, who undoubtedly ended up poorer for this protracted experience.

Clearly Robert Upton was not motivated by profit, but by some higher purpose. He faced formidable odds from the outset; survived a disaster and all manner of other contretemps;  provided from his own pocket the funds to continue the battle when all seemed lost;  fought through and around every roadblock and ambush prepared by a highly skilled and resourceful opponent; and battled on for years, and for as long as it would take to achieve a just result for Arthur Watkins.  The law can be ennobling, and this was an eminently noble undertaking.47 Years later, in 1953, Robert Upton was appointed to the United States Senate, receiving an interim appointment to fill out the remainder of the term of the late Senator Charles Tobey.  At a reception for the new Senator, his long-time legal adversary, Frank J. Sulloway, spoke graciously and generously about the strength of character of Robert Upton, specifically recalling his uncommon dedication to his client in the epic case, Watkins v. Boston & Maine Railroad. This seems a fitting epitaph to that great court battle.


  1. The author is a son of Robert W. Upton and an unabashed admirer of his father. He does not recall ever hearing his father discuss or refer to the litigation, except as an example of how difficult it once was to keep a jury verdict against the Boston & Maine Railroad.  Concerning sources, unfortunately the office files of Robert Upton in this litigation were not preserved.  The case files in Merrimack County Superior Court have been skeletonized and were of little help. However, the briefs and cases on file in the Supreme Court were quite valuable.
  2. 45 U.S.C. § 51
  3. 45 U.S.C. § 23
  4. 79 NH 285, (1919); 80 NH 102, (192 1); 80 NH 468 (1922); 81 NH 363 (1924); 83 NH 10 (1927); 84 NH 124 (1929).
  5. Boston & Maine R. Co. v Watkins, 280 U.S. 584 (1929).
  6. Leon Burr Richardson,  William E. Chandler  (1940), p.617.
  7. Id at 618.
  8. 1907 N.H. Laws, ch. 79 § 1
  9. James Wright, the Progressive Yankees, Republican Reformers in New Hampshire 1906-16 (Hanover, N.H. 1987), 54 passim.
  10. MacGillis, Alec, "General Frank Streeter" in New Hampshire Century: Concord Monitor Profiles of One Hundred People Who Shaped It, Ed. Felice Belman and Mike Pride (2001), p. 88.
  11. General Streeter died in 1922, and the firm name was then changed to Demond, Woodworth, Sulloway & Rodgers.
  12. The receivership was on a creditor’s petition.  The Receiver was appointed in 1916 by the Federal District Court of Massachusetts, and was discharged by decree of that Court effective December 1, 1919.
  13. 45 U. S. C. § 51 et seq.
  14. 45 U. S. C. § 23. 
  15. 45 U. S.C. § 51 et seq.
  16. 32 B Am. Jur. 2d, "Federal Employers’ Liability and Compensation Acts" §§ 1-9.
  17. A copy is to be found in 2 M. Roberts, Federal Liability of Carriers (2d Ed., 1929), Appendix V,  p. 2059 et seq.
  18. Annotation: "Construction and Application of Boiler Inspection Act",  80  L. Ed. 743, 752-53  (1935).
  19. According to reliable report, Judge Sawyer once instructed a Carroll County jury on self-defense in an assault and battery case substantially as follows: "Gentlemen, if you think the plaintiff got just what was coming to him, then you find for the defendant."
  20. $10,000 in 1919 dollars would be worth $104,200 in 2002 dollars, according to the Inflation Calculator of Columbia Journalism Review,>
  21. Watkins v. Hustis, Receiver, 79 N.H. 285 (1919).
  22. Id. at 287.
  23. Id. at 287-288.
  24. Cf. Saad v. Papageorge, 82 N.H. 294, 295 (1926).
  25. Watkins v. Railroad, 80 N.H. 102, 103 (1921).
  26. Id. at 105.
  27. Watkins v. Railroad, 80 N.H. 468 (1922).
  28. Richard V. Wiebusch, New Hampshire Practice: Civil Practice and Procedure (2d Ed., 1998) § 57.07.
  29. Watkins v. Railroad, 81 N.H. 363 (1924).
  30. Id. At 366.
  31. This information came to the author from his brother, Richard F. Upton, years later. Robert Upton may have felt some responsibility for the 1919 loss in the supreme Court, although he emphatically disagreed with the Court as to the legal sufficiency fo his case. In 1924, he had a growing family of young children and was far from being a wealthy person.
  32. Baltimore & Ohio Railroad v. Groeger, 266 U.S. 521 (1925).
  33. Id. at 528-29.
  34. 2 M. Roberts, Federal Liability of Carriers (2d Ed., 1929) § 508.
  35. 242 U.S. 255 (1916).
  36. Napier v. Atlantic Coast Line R. Co., 272 U.S. 605 (1926).
  37. Watkins v. Railroad, 83 N.H. 10 (1927).
  38. Id. At 12.
  39. Baltimore & Ohio Railroad Co. v. Groeger, 266 U.S. 521 (1925). See discussion supra.
  40. 83 N.H. at 14.
  41. Watkins v. Railroad, 84 N.H. 124 (1929).
  42. Justice Branch was later to serve as Chief Justice of the New Hampshire Supreme Court.
  43. 84 N.H. at 128, discussing Baltimore & Ohio Railroad Co. v. Groeger, 266 U.S. 521 (1925). See discussion supra.
  44. 84 N.H. at 129.
  45. 84 N.H. at 130.
  46. Boston & Maine R. Co. v. Watkins, 280 U.S. 584 (1929).
  47. Robert Upton would have been embarrassed by such lofty, idealistic terms. His orientation was down-to-earth and pragmatic. He attributed his success in the practice of law to careful preparation, hard work, common sense and sound judgment.



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