taper i represent the defendants of talents in this matter is undisputed that while trespassing on defendant's right of way and despite having been warned over a dozen times th trains are dangerous dominic cho attempted to jump on a moving train three times in order to impress a pro when he got injured he sued the railroads claiming that they had a duty under a car to protect him this case the court should reverse and render judgment in favor of defendants for three independent reasons first cause and the many cases follow hold that there is no duty as a matter of law when the danger of the condition that injured the plaintiff is obvious to children of the plain to see here it is objective leap obvious to children of nearly thirteen years of age that jumping up on a moving train or jumping on a train the civically stated that a moving train is one of the conditions well whose danger the child can reasonably be expected to appreciate and of course as we and unique equine out there as a matter of law to under different circumstances from the ones involved there and we've pointed out in our griefs that there are different circumstances here most importantly that the training always moving much more slowly than the one in facts in dispute like i said how fast was it going here there's no dispute everybody agreed it was nine or ten miles an hour so yes you can you have to keep the ones to the side and in angle if it's going forty five miles an hour let me just you know i was thinking about this this morning if you ever use a treadmill you know that four or five miles an hour you're walking five it's a brisk walk walk to be sure but four miles you're walking nine to ten you're running har so there's a huge difference especially if you're twelve he's twelve and three quarters years old and he's four foot ten inches tall at that time so she's running very hard so anyway that's one basis around the park it's a completely different pinder situation from what they're saying the duty would be here so those are the two bases on which i think angle is clearly distinguishable but perhaps even more importantly and no predates the if i may i'd like to quote from that case because it's so clear that angle can no longer be reconciled with what the court saying after making clear that the that that issue that this was an issue of water court not for the jury to decide the supreme court explained while the responsibility for a child's safety lies primarily with his or her parents whose duty it is to see that the child is not placed in danger the court continued that  any trial old enough to be allowed it large by his parents will appreciate certain obviously it concluded that where a child has committed to be at large the on the watchful eye of his parents it is reasonable to however think about it they said in this case that a six year old should have been in pre k able to appreciate the danger of a calm blue pool if a six year old should be able to appreciate the danger of that how can it not be the case that any of the thirteen year old should not be held to appreciate the danger of a massive moving freight train loud to mean he testified in self  obvious to children of this age now let me just stop for a second explain how this works conceptually the court decides whether or not it's a step that we obviously think so either the trial  or in this case the appellate court makes that decision if the decision is that it's not that's no longer an issue the issue of whether it's objective we obviously dangerous it's no longer an issue in the case the only thing left it at this point is whether the plaintiff actually understood the danger of the court the courts have said in case a case a case that even if it's not objective we obvious to children of a particular age if th latest in this case all of the point this is what the plaintiff saying in their brief defense counsel impeached dominic with his deposition testimony where she said that he recognized on the day of yap's and that train traps were dangerous and that the think because they knew what he meant never asked him a trial did you mean present tense or pants that they didn't ask him at all we had to do it during cross and because they were using it right basis the judge ruled on basis not that it was temporarily problematic but simply that it was a conclusion not a fact and i think that's pretty  pretty clearly wrong why he is a fact just like scientists are in a fraud cases so if you take that off the table the point you guys have articulated simply was never raised below by them the judge you know it was simply not the basis for the way this issue came up but if you don't agree with us that that was a binding judicial admission it is still you're supposed to work at all of the evidence on the issue and then decide whether the little bit they have and it is quite little he just said let me go to his  the rule is you look at everything in totality and if i may let me quote the case because i think it's a very nice analogy we know with o j so the the candlelight analogy is exactly this got on their side is his statement question so you knew while you were attempting to jump on that train that you were doing something dangerous but you couldn't resist the chance to increase impressively so with your your athletic skill answer now while i was doing it i didn't know it was dangerous but knowing of the dangers yes now i'm not really sure what you meant by the last part of that my speculation is what it meant was he knew it before and he knew it after but he wasn't thinking a result of something well he better set back all in fact he understood she defined danger as meaning you could lose your life or limb he never said i'd never understood i could lose my legs if i did this i thought maybe i could get her some other way you know he never said that but i said he had no one for a minute testimony on this point at all it was simply that one answer on cross examination so against all so that you also have the testimony of his five companions now that breaks down into two pieces he's one is the part the judge excluded in which every single one of them said i know that it was dangerous i knew it at the time now the judge excluded it and i think that's wrong for two reasons one it's circumstantial evidence of what actually was that one is circumstantial evidence of what the six member of their group knew if everybody else in the  same thing and i don't think that there was any dealing with subjective knowledge or with dealing with members of the group you can't make a jury can fairly infer from the fact that everybody else was in the fighting line knew it was dangerous people that hang out together all the time they all knew it was dangerous you can infer from that it's a fair reference like snow in the night in the jury instructions that he knew t that circumstantial evidence so if you can so if you conclude that the judge was wrong excluding it that goes on our side but even if you don't several of them testified that they told him not to go testify they agreed that the definition of dangerous was was that that was something that could kill you would take a body part correct yes and then but then he he went on for the say that he didn't know that he was doing something dangerous is that not correct that's the testimony of the client from i don't recall him saying i mean i guess any all i know that it was dangerous after liar he said that statement on cross that's what he said and you know it's there it's in the record my point is that if hedrick means anything it means that when you're contradicting  prior statement when you're when you're saying that you didn't know something was dangerous after admitting that you had been warned about the very thing a over a dozen times when all of your friends testify that they knew of this dangerous and that they told you not to court because there was such a massive imbalance in the evidence on this point it's absolutely inexcusable that the judge refused to give our special into rob a toy that would have forced the jury to accident to appreciate that attempting to jump onto a moving freight train presented a risk of harm to him clearly if the jury had been given this into running toward any answer that he did appreciated it would have been utterly inconsistent with the illinois but the point is that the hill sapelo it says you can't this is such a critical protection for defendant or party feeling more brought up that you can't reject and i'm just going to cut you know to the bottom line here which is there is not any case since congress decided in which a court in this state has imposed a duty to do anything close to as extensive as the plaintiff's expert said needed to be done here specifically he said they had to do two things they had to completely fence the six thousand foot corridor between richmond and central trespassing and if not they'll the second overpass near where the accident no case has ever gone on requiring a warning or repairing a fence in a very limited area such a many cases that say railroads don't have to fence their entire right of way because that would be overly burdensome even though somebody thought it was safe of such a bus six thousand we're talking about nothing entire right well and both sites you're talking about close at twelve thousand feet you're talking about an overpass which would have to be eighty eight comply which would have to have ramps that would proceed from property not owned by the railroad which would have to be the illinois commerce commission all of that would be exceptionally expensive and still the plant the latest expert can't say it would have it would have prevented the accident if i can have your intelligence i'd like to necessary and he said once you make the initial and prove men stand in my opinion are justified and needed then you need to monitor and right now all of your questions are speculative because we don't know if you were to install fencing and put in an overpass i would expect that would solve actually all of the problem now it may not how much of the problem and no one would know until you do this so i can't speculate nor can you nor can anyone else as to what you might find that is defendant's side through their through adverse witnesses that twelve year old children objective we do not understand the risks and dangers of railroads and trains in particular the testimony of ten griffith who was in charge of the railroads lifesaver program he testified that he went to schools junior highs elementary schools senior high schools and he found that children of those ages did not appreciate all the risks of trains and in particular the risk of trying to flip provider how to ride a train in addition there were video tapes that were played to the jury and in those tapes in particular one called davi run it again show that children these people were driving motorbikes sixteen years old did not appreciate the hazard of being on a train that hester dubonnet being on a train when and when it moved so i think the court the trial court was accurate and should be affirmed in his decision in finding that the railroad over to duty in addition to the educational things that came out it also came out in the record that the railroad had knowledge intensive knowledge of what was going on in their tracks they had ten boxes of citations that were written up by their security officers showing that children were on their tracks some as young as four years old others were dragging bicycles under trains so i think that that is case properly went forward on the issue of duty and with regard  done what he did the only thing that he testified to in his deposition was that he had general knowledge about the danger of sharing a house that  danger and should have been a prize was almost thirteen years old his neck right eye he was almost thirteen years old in fact the record suggests it was not even his idea to try to jump or ride in the train wreck believe that based on the supreme court decisions in both cold and corcoran and i think even mt zion the standard that is to be applied is in to terming duty is that of an objective standard and i believe and submit that when it comes to the personal knowledge of the plaintiff that that issue then goes to the comparative all of that point here and in this particular case the defendant's head wide latitude in arguing accident was totally caused or certainly more than fifty one percent caused by the conduct of dominick and in fact in in closing argument defense counsel went through twelve steps where he argued that dominic had the opportunity to stop and and walk away and the accident would have been averted the jury heard that evidence and they concluded that yes dominic was comparative with fall and they in fact found that he was forty percent the proximate cause of the incident so i believe that the issue regarding dominic's knowledge and conduct was fully litigated and the jury had every opportunity to find that he was the cause of the accident and tonight in recovery they did find that he was partially at fault but not enough to to prevent him from recovering  with regard to the issue of speed i would only point out that the speeds of the train were merely estimates by the people who are there and in particular by children who have very limited experience of making such  calculation at the best determination was the testimony of dominic who said that he at four feet a lad was capable of running faster than the train so i believe that when he saw the train and the train was moving slowly at he thought he was and i would submit that in addition to the comments of justice hoffman which i agree with again i believe the special in iraq the tories indicated by the fact that their westie defense of comparative fall and if they had responded that  it the expert in this case dr burke was not advocating that the defendants in this case have to put fences all through their hundreds of miles of track or in this case i believe they have fifty five miles of tra indiana harbor belle what he was saying and said this particular situation posed a unique problem that you had a village cut in half by the river tracks that the evidence was that your head schools and both sides you had apartment buildings on both sides you had houses on both sides and you had a park right next door where little leaguers played all summer and that as a result of all of this particular situation where there was no legal crossing for six thousand feet that was it was it was not it was unavoidable that people fears were going to cross and that there was going to be hazard and danger whenever there's a conflict between  that i would so respectfully say that it would still not go to the ultimate issue because if it's my position or point of position that again what he appreciates goes to the comparative fall issue  is that they look at in determining whether or not there is a duty that you have to look at an objective standard as to what children of the same age would we would understand for example it would seem to me that if if it were a subjective test that in this particular case based on facts we could have a very anomalous situation for example the testimony mr austin that the independent witness was that charlie spent learning went up to the track first he tried to get on the train it was an act yeah we could have had two people injured and if and if one child in his deposition said i didn't know anything about danger but another child said i had some appreciation of it i believe it would be an anomal what a what would be reasonable if they talk about objective standards and they say that in determining duty you have to look at what does the average twelve year old or the average person within the same group what is their knowledge and they do not bring into the equation the personal knowledge i believe that that element the personal knowledge is taken care of in in the comparative fa issue because if the jury finds that the plaintiff had some recognition of the hazard what went forward anyway and was more than fifty one percent at fault then that person is barred from recovery but as far as determining policy wise well sure the defendant due to correct or prevent injury i think that you have to look at the objective standard what what's the standard review on the denial i believe that the judge in this case in analyzing the language and what was said made a proper decision that it was not a judicial didn't mention and in fact he did give the llowed case to go to trial at trial judge gave the defendants a fair opportunity to defend themselves a jury verdict in this case should be allowed to stand  the defendant has the good given a chance to tweak the language if there's a problem with a missing adjective or adverb and and while allowing a judgment to stand when the defendant hasn't been given that opportunity and the trial court's reason is wrong which is exactly the case of both but they're in here now i think quickly try to look up the question of i'm reasonable i don't con cases in the supreme court i think as i said before courts use different phrases to describe the rules all the time doesn't turn them into statutes and say you've got to use every word in especially  but we did cite a case from california that says it's not necessary under three thirty nine for the child to understand the exact wrist that injured them so long as they understand that what they're doing is dangerous and i think that illinois had the chance to consider that issue they come out the same way because con is meant to be a narrow exception to the rule that landowners aren't responsible for injuries people who trespass on their property and it seems to me when you've got somebody who knows that something's dangerous but simply can't articulate precisely what the danger is that that's i'm not going to caught you w agree with that and it needs to accurately state a lot by and this one is not well we think it did they think california no i mean i don't think there's any there's no case that says this is under way for in standard this is what you must use if there were surely we would have used those words we did the best we could based on there's like twenty thirty cases we polled from that the jury first has to decide whether plaintiff had the subject of awareness you don't even get to comparative fog there's a separate case that says that so he was wrong there that was the basis on which he got the judge to check the minutes so you really need to conclude ok two very fast things one for which that disinterested bystander who is an adult said was going at least ten miles an hour second on the subject of  experts saying they don't have the bill fencing everywhere he based his entire testimony on his contact course which are basically violations handed out by the police officers that were throughout the whole thing including