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