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Although Choate and some (but not all) of his companions testified that their

original reason for approaching the tracks was that they intended to wait for the train to

pass and then cross the tracks to visit a friend’s house on the other side (Tr. 787, 846,

874, 1681; cf. Tr. 827), it is undisputed that once Choate drew near the tracks, his

intention was to jump on the moving train, not cross the tracks. Choate admitted that once

he was next to the train, he “certainly [wasn’t] thinking about crossing the tracks to get to

[the] house.” Tr. 1743. He recognized that his “motive” and “sole focus” at that point

“was trying to jump on the train to impress [his] friends and particularly [Van

Witzenburg].” Id.; Edgar Dep. 94-95. In fact, Choate could not name “any other reason

why [he] tried to do it other than . . . trying to show off.” D. Choate Dep. 206 (A32).

Moments before he “went over and tried to get on the train,” Choate advised Van

Witzenburg that he was “going to hop the train.” Tr. 847. He thought that he was “going

to get on the train, ride it for a couple of feet, and then . . . get off.” Tr. 1689.

Austin Patton, an unrelated adult who witnessed the accident, testified that he saw

Choate “[l]ooking back” at and “obviously talking” to his companions “in the parking

lot.” Tr. 727. Patton shouted warnings and asked “what the hell they were doing.” Tr.

730. One of children, Brittany Edgar, testified that she yelled and swore at Choate to “get

off the f______ tracks and don’t go by the f’ing track.” Tr. 884. She said that she, Van

Witzenburg, and Gunderson told Choate to “stop playing around [and] come back down.”

Tr. 877. Gunderson (Tr. 945-46) and Van Witzenburg (Tr. 862) similarly recalled telling

Choate, “don’t do it,” after he told them that he was “going to try to see if he [could]

jump on” the train (Tr. 945). Spindler also told Choate “not to go on the tracks.” Tr. 800.

Choate seemed to “hesitate[],” but ultimately was not dissuaded. Tr. 877.

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