X hits on this document





20 / 60

that jumping onto a moving train was dangerous, while allowing Choate to introduce

evidence that other people had on other occasions tried to jump onto moving trains.

Compare Tr. 60, 220 (granting Choate’s motion to exclude evidence that his companions

appreciated dangerousness of train flipping) with Tr. 110-15, 162-73, 1080 (denying

defendants’ motions to exclude evidence of train flipping by unrelated persons). Thus,

Choate was able to argue that defendants should have known that adolescents like

himself would jump onto moving trains (see Tr. 2435-37), while avoiding the rejoinder

that all five children who were with Choate at the time of the accident were perfectly

aware of the risks that were inherent in such conduct (see Tr. 804, 832, 865, 888, 953

(offers of proof that each of Choate’s companions was aware of the risks)).

c. Finally, over defendants’ objections (Tr. 153), the court allowed Dr. William

Berg, Choate’s civil engineering expert, broad latitude in offering his opinion about the

additional measures that defendants ostensibly should have taken to address the risk that

a trespassing child would try to jump on a moving train.

Dr. Berg acknowledged that defendants had “[c]learly” made efforts in terms of

education and had similarly taken “enforcement actions” and deployed “railroad police

officers in the area.” Tr. 1251. Dr. Berg had himself been informally involved in

Operation Lifesaver, which involved sending individuals into schools to remind students

about the “dangers and hazards of trains.” Tr. 1244. There was “no question” in Dr.

Berg’s mind that defendants were “devoting a lot of resources to enforcement.” Tr. 1300.

Yet Dr. Berg contended that defendants also should have constructed a new

public crossing—perhaps an overpass—for pedestrians and bicycles at Austin Avenue.

Tr. 1255. According to Dr. Berg, although there already were at-grade crossings a little

  • -

    11 -

Document info
Document views233
Page views233
Page last viewedSun Jan 22 14:52:01 UTC 2017