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(“his friend . . . had warned him on the night of the accident”).

  • Choate had been caught trespassing on railroad property on multiple occasions and warned to stay away by railroad police officers. Tr. 1409- 10, 1613, 1628-29, 1673, 1724; DX21.

  • Choate’s companions knew that trying to jump on a moving train was dangerous. Tr. 804 (Spindler), 831-32 (Weyer), 865 (Van Witzenburg), 888 (Edgar), 953 (Gunderson); see infra pp. 46-47. In fact, Choate saw Spindler try to grab the train, and then “pull[] [his hand] right back in” because he “was afraid.” Tr. 1742-43.

  • Choate’s first two attempts to climb onto the train ended in predictable failure (Tr. 1688-89), given the patent difficulty of hoisting oneself several feet off the ground onto a moving ladder from uneven terrain in low-cut tennis shoes. Tr. 1745, 1749-50; DX8A.

  • The train was large and loud. Tr. 1742, 1751. See Herrera v. S. Pac. Ry., 10 Cal. Rptr. 575, 580 (1961) (“Nothing could be more pregnant with warning of danger than the noise and appearance of a huge, rumbling, string of railroad cars.”).

In the face of this overwhelming evidence that he was fully aware that moving

trains are dangerous, Choate largely stood on his conclusory denial at trial that he did not

appreciate, “while [he] was doing it,” that jumping onto a moving train was dangerous.

Tr. 1758. Choate was not, however, free to “create a factual dispute by contradicting [his]

previously made judicial admission” (Hansen v. Ruby Constr. Co., 155 Ill. App. 3d 475,

480-81 (1st Dist. 1987)) that he appreciated “on the day of the accident” that the “train

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