girls that were killed in this case were safe on the west four left hand sort of trash as the amtrak train th thirteen car train set proceeded across the pressel at sixty miles an hour she made that conclusion based solely on one person's testimony and that was the engineer's two experts in this case bought boston from the deputies see an experienced investigator in fatality train accidents and the plaintiff's own expert charles culver from houston texas both testified that it is very dangerous quote very dangerous to be on the tre at any time one of the five hundred ton train is moving across it at sixty or sixty five miles an hour i think the information in this pay shows the train was probably moving according to the their reporter at sixty three or sixty four miles per hour as it passed over the trestle it's also worth stating that none of the experts in this case and all of the times that we were at the trestle taking photographs and measurements none of the experts including experience training in this case were willing to stand on the trestle at any time when any amtrak train was passing over the trestle at that speed or at any other speed the other thing act upon which is that is that it lethal they've moved like off his track to the track on the other side that's correct still on the still out on the trestle that's correct above the ground and so at that point he even is off the brake or the brake and proceeds and then he says the children appeared on the frac at the last minute then i think this is what the facts show in that and i think it's i think it's important i want to review this scenario with each of you because i think that in all of these cases involving willful and wanton misconduct the facts are everything he received a radio message five minutes before arriving at the trestle that kids were quote unquote kids are playing get the children that's that's exactly correct your honor and what we're contending is that both the railroad and the engineer acted with complete and utter disregard for the consequences under all of the circumstances which would have let any reasonable person to these kids were not playing on the transvaal all the evidence shows that he doesn't know that moment sorry or we don't even know these are the same tunes and on the planes because these kids were playing on the trestle we know that is playing chicken with trains means that kids have a deliberate disregard for their own safety in other words you cannot trust them to do the right thing that's the message the engineer gets and i don't believe honor that the that the case we necessarily have to get into the mind of the engineer and subjectively try to determine what he was thinking but we can look at these object of facts and try to determine what a reasonable person might have been thinking so i guess this radio message five minutes out and then what you and he instead of increasing or decreasing his feet he increases his speed he goes through a forty mile an hour zone then increases it above the seventy five mile an hour track speed or excuse me a timetable in that area he sees the girls a half a mile away on the trestle and he sees them at what is the south end now from what happens at this point on is very careful what he sees from a half mile out he as he sounds whistle by the way and tracks expert determines that at this point the girls the train arrives at the trestle about twenty six seconds after the horn is sounded which is consistent with a speed of about sixty three or sixty four miles an hour it will give me any slowdown from what's with seventy nine to sixty five or something but he doesn't slow down for the girls he slows down for his next crossing and he says down as opposed to rolling across that sixty five or sixty three miles an hour that's right and it was this train could have stopped at a quarter of a mile he was a half mile away from the track we're not suggesting that he should have stopped but rather the pla evidence that he deviated from his timetable yes just only by four miles an hour which is which is hardly worth raising or any point except he did that after receiving the radio message which suggests more into passenger largely empty passenger cars that's all it's pulling it's a european swiss or european train set and they say they stop at six hundred feet and that's consistent this train stopped and sixteen hundred feet using only its service so the girls have another twenty feet to go and in all they have a hundred two feet to go they're actually in the middle of the trestle he thinks they're at the south end of the trestle for all the engineer knows they have to cover two hundred feet and twenty six seconds which is impossible because the ties don't permit anybody to run or even walk quickly over the trestle so what does the engineer do instead of doing the prudent thing and slowing down he forge ahead at sixty three or sixty four miles an hour and while he's doing this he is watching the backs of these girls struggle to try to get off the trestle and that's what makes running down pedestrians for twenty six seconds on a trust so after receiving actual notice that they're there he could have been asleep because of an anything but we know he knows they're on the bridge we know he's looking at them and for twenty at least twenty six still proceeding with the kids backs to him that's right there on the trestle and running back and forth from track to track and you're saying at that point that he said he was trying to break the trainer and he was not in fact jury determined that they never got off the press or or they may have moved in the opposite track on the throttle but they were still on the cross and we know they never got off the trestle they were hit on the trestle they were hit they had black diamond or someplace you're in your car you're driving sixty miles an hour or sixty five miles an hour you see kids on a steel bridge ahead of you moving back and forth from lane to lane wouldn't be wanting to proceed over the bridge at sixty five miles an hour sixty three sixty four sixty five because the girls have momentarily moved to the left lane no that is wanton conduct that is acting in perilous disregard for the girls and that hypothetical and in this case this man has been the engineers been driving this train for twenty nine driving trains that mr ali does from twenty nine years he operates  and then he struck a boy three years before this incident in white castle b c who he said was playing chicken and that is jumping back and forth on and off the track so case like this that is dismissed on summary judgment for insufficient evidence you cannot find them because they don't exist you form the issue of baghdad and you say more than that's a part of what you're saying as i understand  proceeded in the direction of the building at sixty plus now from our well he knew they were on the thrust that's correct any sees them struggling to save their own lives that's the most material part of it i suppose that an adult trestle in any event but that's not true you have an eleven and a thirteen year old girl it was described five minutes earlier to this engineer as kids and under all of those circumstances this is this is this case has wa hear the evidence and make that decision so i hope you will address that at some point in your argument that's exactly what i'm going to go to the heart of i hope your honor and in short order for the record michael king along with john campbell who is with me at counsel table in the still work of art on the that their safety not be willfully or wantonly disregarded number two a railroad track is a place of danger and those who trust possible upon railroad tracks are charged with knowledge of that danger number three the wanton although normally you might think someone would get out of the way when you blow a whistle if they're out in the middle of a bridge you know high above whatever is above they can step to the side off the first there was breaking here i got a half a mile from the record reflects that the engineer spot of the trespassers blew the whistle and slowed down slowed down from the seventy nine miles an hour that the engine was perceiving at which by the way sh a good wind is the operative speed limit here eighty miles an hour that's the federal speed limit the the n s f speed limit that it imposes on its trek trains for whatever reason the seventy five mile an hour speed limit doesn't slow down roughly fifteen miles an hour right but why isn't it wanted and seeing a person on a trestle in front of you and not continue to slow that's serious properly in play in the case being raised in the reply brief setting aside the question whether that's really an attempt to backdoor some sort of attractive nuisance theory which was abandoned on appeal and which has been refuted by court after court across circumstances where if somebody is on a stressful and the operator spots them and blows the whistle and slows down and sees you know they're not getting out of the way because they have no place else to go other than to get off the that just because somebody was on a single track trestle and you blew the whistle and you slow down and you saw that they were getting out of the way but that necessarily meant that it would be deliberately indifferent to life to fail to throw the emergency move and you're past the point where you can't do anything other than emergency brake i would submit to you that it would be an appropriate exercise and certainly not a deliberately in testimony in this point is he says that at the point they got out of the way there was certainly no reason to increase the speed and i was going to be slowing down anyway because i customarily slow down going over the review your three seventeen through three eighteen because this is where judge rothstein holmesian on counsel's argument the court where are you getting this insight into the engineer's mind because the way his campbell my colleague here described it he thought they were off the track if you're telling me that he believed they were running north on the track she's telling me that he saw them get off the track referring to the east track mr bolen let me describe the discrepancy in the testimony and at this point you can just imagine judge  long and they get off that track they go to the other track they're out of the zone of peril you might say look the reasonably prudent engineer should do something that hunch that you know the  what i would think the question in my mind is whether a jury on the seventh could say that the engineer doing something different is one thing i know because what the jury is going to end up doing as a matter of sympathy in humans instinct and facts the relevant testimony about back and forth is on page fifteen of our brief at the top it was the information i got going back and forth was actually provided by the engineer himself which he tried to disavow during his deposition testimony it is dangerous it's dangerous dangerous dangerous and these folks have been representing frank companies for fifty years this perm and they know that standing on a trestle with a train going by sixty five miles an hour the blow by from the blast alone makes it hazardous to be on that left track that's why no experience train man will stand on a trestle when a five hundred ton machine goes by at that speed now on page forty one of our brief i was going to recite this the reason is that i think  incident and we have the absence of any policies these are true and cost questions i'll close with this briefly amtrak has never taken in all the at least begin to page forty of our opening brief and frag has never taken any action against an engineer involved in a manager of the pacific division no regulation requires engineers to attempt to avoid killing or injuring a trespasser interact engineers are not required to exercise any additional care when operating a locomotive in a heavily dolls and track engineers are not required to prevent trespassers fatalities even where hostile to do so that the stunning testimony and track does not even encourage according to mr branson it's engineers to prevent fatalities among trespassers finally amtrak is not interested in collecting fatality records for their engineers because it's not relevant to their competency this is one of those cases your honor where you can actually prevent future deaths by telling amtrak to do the right thing of void