that there was sufficient evidence to forward on each of the back you can tell this is going to be a long time ago the used to play basketball and in some of the juice the way way behind the basket they have been up against that wall you would yet born with rubber having vertically placed in this particular case it somehow you have put that into the record with some evidence it would that suggest or it should have struc as she was performing this and that's that wouldn't of clinker fault per se but would have prevented her fall in the facts that we heard about that for the first time this morning i believe highlights the issue in front of this court today which is that during the course of this trial plaintiff cutts the simply did not cement evidence to support his theory fit there shouldn't that having or other they never submitted any evidence to describe what or other protection there might have been rather union pacific could have provided that paddy or whether they would have made a difference in the end i will admit that i've spent a lot of time thinking about this case over the past couple of weeks and now once  consider that what we might be talking about is an upgrade have that would have caught this phrase off i consider that maybe we were talking about haves and or need a car or as judge planning you pointed out when he was addressing th issue perhaps some kind of group that we were talking about earlier you know maybe as he pointed out as well i mean that this ferrari would have worked not which was ever discussed during the course of the case but those were all options that came into my mind testimony that even of a person who could no i don't think it is and frankly i think the type of bad that you've discussed here today wouldn't have been possible i mean this test took place in a rail yard on a r car outside on tracks i mean there's no way that this type of padding even could have been put in place let alone whether it would have prevented or stopped this for a while would have been put into place i'm not really sure could have worked and why it would have mattered the standing that is clear and i actually think that the parties agree on this is that a party wants to have a jury instructed on one of the theories of the case they have to present evidence to support that they cannot just walk in and say there was a fall and there was a padding and should have struck the jury that that was somehow a breach of reason union pacific duty to provide a reasonably safe place from where they have to present more but is there any statement in any case that the elements of negligence different no not at all is there is is there som requirement doing it doesn't connect up i mean the fact that there was not a question does not connect up with the rest of the elements of negligence or do you think they should have done to establish a duty i think they should have presented some kind of evidence discussing that kind of today we didn't know and that's the problem that's why there was not sufficient evidence presented on this issue before from court well as it is now from this one question if the railroad have any sort of  anything and round to maybe help somebody in case something that you know i don't think that's enough that i don't believe that that's enough at all i mean that simply establishes the fact i mean you know some expert testimony is necessary a mistake and sometimes you need to bring in professionals to say oh you couldn't do something like that in this context would actually make it more dangerous and here's why sometimes you don't know if some of some of this stuff is just basic common sense a cushion breaking a fall that's kind of common sense is not well i actually don't think it is in this case and i think that you're kind of you know two issues here one is that all of the standard is clear it how much evidence is going to be required to for a theory to be submitted to the jury when there's my case because it differs with the facts of the case and the claim that you're dealing with as far as it being common sense to say that  medical testimony i really don't know i would think that it if there was a mattress under there you know maybe she would give her something off you know or if it was a very i mean i think there is some would have been reasonable for you to put pushing out there instead of this fallacy that everybody's you know something falling apart certainly those are all questions that could have been an answer and i think if any one of the questions had been asked in addition to the one single question then the answer that was asked then we may not be here today this issue may have been submitted to the jury i don't think it would have changed the outcome but the issue may have been before the jury but that's just the point it is the only who wants the instruction to go to the jury perhaps the chicago service unit continuing to do this task that might have been a breach of its duty to provide a reason they safe place where they were to separate instructions regarding the gloves regarding the size of the gloves and regarding whether she had to use company issue they met their burden but judges decided that it would not have been appropriate to instruct the jury on this issue the jury was instructed on the duty and union pacific says intentional breaches and on the potential damages in the case