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little while.” Tr. 723-24, 1678-79.

Choate was “scooting” his bicycle around the parking lot, about 50 feet from the

tracks, when an eastbound freight train appeared on the middle of the three tracks. Tr.

725-26, 1681-82, 1733. Defendants did not operate the train. Tr. 73. The operator,

Burlington Northern Santa Fe Railroad (“BNSF”), separately settled with Choate for

$25,000. A3.

According to Choate, the train’s speed was “9, 10 miles an hour” (Tr. 1766), and

the train “kept going at a steady speed” and “never stopped” (Tr. 1734). Although some

of Choate’s companions testified that they thought that the train might have been

“stopped” part of the time (Tr. 785, 856, 935) or was moving “very slow[ly]” (Tr. 878),

they agreed that “at the time the accident happened, [Choate] got onto a moving train”

(Tr. 883).1

After several minutes of the train passing by—it was a long train, and the engine

was therefore no longer visible—the boys left the parking lot and began walking towards

it. Tr. 726, 1681, 1733. Under Illinois law, no unauthorized person is permitted to “walk,

ride, drive or be upon or along the right of way . . . of a rail carrier within the State, at a

place other than a public crossing.” 625 ILCS 5/18c-7503(1)(a)(i). Thus, Choate was a

trespasser as soon as he stepped onto the railroad’s right-of-way. Tr. 1591.

1 See also Tr. 856, 936-37, 943-44, 949; D. Choate Dep. 124 (Choate agreed that the train was “moving continuously” and “never stopped”), 194 (“steady speed”), 207 (train was going faster than a walking pace) (A28, 31-32); Weyer Dep. 76; Van Witzenburg Dep. 50-51; Gunderson Dep. 31-32; Edgar Dep. 64. Dr. William Berg, Choate’s expert witness, recognized that “there’s no question [the train] was moving.” Tr. 1268. And this was confirmed by the train’s black-box event recorder, which “indicate[d] that the train was moving at all times . . . during the events of the accident” (Tr. 2068) and by Austin Patton, who agreed that the “train was moving” at “about 10 miles an hour, if not more,” the “entire time that [he] saw and observed what was going on that day” (Tr. 726, 748).

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