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Now immediately next to the moving train, first Spindler and then Choate

attempted to board it. Tr. 1687-89. Choate recalled that the train was large and very

loud—so loud, in fact, that the “[o]nly thing [he] could hear was the train.” Tr. 1742,

1751. As established by the testimony of Larry Howery, a mechanical superintendent

employed by CSX, and photographs introduced into evidence by defendants, the lowest

rung on the ladders (called the “sill step”) of the passing boxcars was well off the ground.

Specifically, on one randomly selected boxcar the sill step was about two feet from the

rail. Tr. 1903, 1918, DX8A (photograph). Because the track was situated on an elevated

railbed, a person (such as Choate) running alongside a passing train would have had to

jump even higher to reach the sill step. Tr. 1919; DX28-29 (photographs).

Choate testified that Spindler “stuck his hand out” and tried to grab the train, but

then “pulled it right back in” and “acted like he was afraid and backed away from the

train.” Tr. 1742-43. Patton saw much the same thing, testifying that another boy “tried to

grab a hold of the train” and then got “knocked down” and “fell over.” Tr. 728, 746-47.

After Spindler started to make his way off the tracks, Choate persevered and “tried to

attempt to grab onto the train.” Tr. 729, 1687. On Choate’s first attempt, he stood

flatfooted on the ground and grabbed the ladder; it bent his fingers backwards, and he

pulled his hand in. Tr. 1688. On his second attempt, he ran alongside the train, grabbed

the ladder, and then released it when he started “slipping on the rocks.” Tr. 1689, 1747.

On the third and fateful attempt, Choate threw himself at the ladder and managed to put

his right foot on it. Tr. 1689-90; Gunderson Dep. 32-33. Unfortunately, Choate lost his

grip, causing his left foot to swing under the train. Tr. 728-29, 937. The train continued

on, because the engine had long gone by and the crew had no way knowing of the

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