recognize the danger of trying to jump onto a moving train.2 As the D.C. Court of
Appeals explained, the “overwhelming weight of authority” is that “accidents involving
moving trains fall outside the scope of [Restatement §] 339 because . . . a moving train is
a danger so obvious that any nine-year-old child allowed at large would readily discover
it and realize the risk involved.” Holland v. Baltimore & Ohio RR., 431 A.2d 597, 602-03
(D.C. 1981) (emphasis added; collecting cases). Hence, the court concluded, any
suggestion that “a nine-year-old child . . . did not realize the danger inherent in coming
within an area made dangerous by approaching freight trains” is “deficient as a matter of
law.” Id. at 602. That has also been the uniform holding of courts that have applied the
Restatement § 339 approach, or analogous ones, to liability for harm to child trespassers.
All this bolsters the conclusion that under Illinois law, which is in “harmony with section
339 of the Restatement” (Corcoran, 73 Ill. 2d at 326), the danger of a moving train must
be deemed obvious as a matter of law to the general class of children of Choate’s age.
Below, Choate relied on this Court’s decision in Engel v. Chicago & North
Western Transportation Co., 186 Ill. App. 3d 522 (1st Dist. 1989), for the proposition
that it is a question of fact whether the danger is open and obvious. The Engel court
2 Illustrative cases include: Nixon v. Norfolk S. Corp., 2007 WL 4190705, at *9 (W.D. Pa. Nov. 21, 2007), aff’d, 295 F. App’x 523, 525 (3d Cir. 2008) (“the risk of a moving train is so obvious” that “a twelve-year-old taking the initiative to grab hold” of it is “deemed to appreciate the risk as a matter of law”); Sutton v. Wheeling & Lake Erie R.R., 2005 WL 3537537, at *5 (Ohio Ct. App. Dec. 28, 2005) (“eleven-year-old child . . . could fully appreciate the obvious dangers and risks that a moving train possessed”); Wolf v. Nat’l R.R. Passenger Corp., 697 A.2d 1082, 1086 (R.I. 1997) (“[t]he overwhelming weight of authority in jurisdictions across the country is that the attractive nuisance exception does not apply as a matter of law in cases where child trespassers are injured by moving trains”); Perry v. Norfolk & W. Ry., 865 F. Supp. 1292, 1302 (N.D. Ind. 1994); McKinney v. Hartz & Restle Realtors, Inc., 510 N.E.2d 386, 389-90 (Ohio 1987); Henderson v. Terminal R.R. Ass’n, 659 S.W.2d 227, 230-31 (Mo. Ct. App. 1983); Space v. Nat’l R.R. Passenger Corp., 555 F. Supp. 163, 166 (D. Del. 1983).