(necessity of conducting field survey), 1324-25 (height requirements), 1328-29
(compliance with the Americans with Disabilities Act); 2092 (cost of acquiring property).
Defendants also challenged Dr. Berg to show how his proposal would have addressed the
condition that gave rise to the accident—trespassers who jump on moving trains to “show
off,” despite “kn[owing] the train and the tracks were dangerous” (Tr. 1280, 1304). They
also argued that “[t]here [was] no connection between the facts of this accident and the
construction of a new crossing at Austin.” Tr. 1369. Nonetheless, the court cut short
defendants’ cross-examination of Dr. Berg on this crucial point. Tr. 1369-70.
Finally, although Dr. Berg was never qualified as an expert on matters of child
psychology or behavior, the trial court also permitted him to testify, over defendants’
objection, that it was “common knowledge” that “young people and trains don’t mix.” Tr.
1244-47. Dr. Berg testified that moving trains were a risk to children because, in his
view, young people lacked the “maturity” of adults. Tr. 1243. He provided no basis for
these opinions. Similarly, although Dr. Berg was not an expert on law enforcement, he
was permitted to testify, again over defendants’ objection, that defendants’ policing
efforts were inadequate. Tr. 1377-1378, 1392. (At the same time, defendants were barred
from adducing the opinion of actual police officers regarding the effectiveness of their
patrols. Tr. 1589, 1648-49.)
Denial of defendants’ request for a special jury interrogatory. Defendants
submitted a special interrogatory, which would have asked the jury: “at the time and
place of Dominic Choate’s accident, did he appreciate that attempting to jump onto a
moving freight train presented a risk of harm to him”? Tr. 1847. The court refused to give
the special interrogatory, reasoning that it was “not dispositive” because, in its view, the