so.” Id. Along similar lines, the Illinois Supreme Court rejected imposing a duty on
railroads to prevent a child of eight years and nine months in age from trying to jump on
a slowly moving train. Briney v. Ill. Cent. R.R., 401 Ill. 181, 183, 190 (1948). And in
Fitzgerald v. Chi., B. & Q.R. Co., 114 Ill. App. 118 (1st Dist. 1904), the court concluded
that a 12-year-old plaintiff was “presume[d]” to “know that it is dangerous to attempt to
get on a moving freight train. In view of the clarity of this authority, it is unsurprising that
federal courts have had no difficulty in concluding that Illinois law “bars recovery as a
matter of law” when a trespassing child attempts to “hop a train.” Ill. State Trust Co. v.
Terminal R.R. Ass’n, 440 F.2d 497, 501 (7th Cir. 1971).
The Illinois cases holding that moving trains are an open and obvious danger for
children are in the mainstream of American jurisprudence. As one leading treatise
observes, the “perils of . . . moving vehicles” are among the dangers that a trespassing
“child of sufficient age to be allowed at large by his parents, and so to be at all likely to
trespass,” invariably is expected to understand “as a matter of law.” DOBBS, supra,
PROSSER AND KEETON ON TORTS § 59, at 407; see also RICHARD A. EPSTEIN, TORTS §
12.5, at 319-20 (1999) (“once the danger becomes too obvious, as when a child seeks to
jump onto a moving train, . . . liability can be denied on the grounds that the [condition] .
. . may be obvious even to ordinary children”). Indeed, the Reporter’s Notes to comment i
of Restatement § 339—the approach to premises liability with which Kahn brings Illinois
law into “harmony” (Corcoran, 73 Ill. 2d at 326)—contemplate a “moving train” as a
“condition whose danger the child can reasonably be expected to appreciate.” Id.
Courts in other jurisdictions consistently have held that even small children can