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not ‘discover the condition or realize the risk involved.’”) (emphasis added).

In this case, even when all the record evidence is taken in the light most favorable

to Choate, there can be no reasonable dispute that Choate understood the dangerousness

of the feat he had determined to undertake.

Choate

admitted

at

his

deposition

that

he

appreciated

“on

the

day

of

the

accident” that the “train that [he was] grabbing onto was dangerous.” Tr.

1762-63; D. Choate Dep. 127-28 (A29). This should, by itself, have been

dispositive (Swearingen, 181 Ill. App. 3d at 362), but the trial court

erroneously concluded otherwise. See infra pp. 42-46.

  • Choate’s mother repeatedly warned him that moving trains were dangerous. Tr. 1613, 1628-34, 1636, 1722. In particular, she had made clear to him “before the accident the severity of the injury that could occur if someone tried to get on a moving train” (Tr. 1634) and that train accidents could result in the loss of limbs (Tr. 1628, 1636). See Laster ex rel. Laster v. Norfolk S. Ry., 13 So. 3d 922, 930 (Ala. 2009) (“parents had repeatedly warned him”); Butler v. Newark Country Club, Inc., 909 A.2d 111, 115 (Del. 2006) (“mother’s express instruction”); Dragonjac v. McGaffin Constr. & Supply Co., 186 A.2d 241, 243 (Pa. 1962).

  • Both Patton and several of Choate’s companions exhorted him not to approach the moving train. Tr. 730 (Patton), 800 (Spindler: don’t “go on the tracks”), 862 (Van Witzenburg), 884 (Edgar: “get off the f______

tracks and don’t go by the f’ing track”), 945 (Gunderson: “don’t do it”).

See Bonney v. Canadian Nat’l Ry. Co., 800 F.2d 274, 279 (1st Cir. 1986).

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