the Kansas City Southern Railway Company v. Angela Horton and Kevin Houser

REVERSE and REMAND and Opinion Filed March 11, 2021

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-00856-CV

THE KANSAS CITY SOUTHERN RAILWAY COMPANY, Appellant
V.
ANGELA HORTON AND KEVIN HOUSER, Appellees

On Appeal from the 68th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-17-06507

MEMORANDUM OPINION
Before Chief Justice Burns, Justice Myers and Justice Carlyle
Opinion by Chief Justice Burns

The jury verdict in this appeal by Kansas City Southern Railroad Company

rests on a broad form negligence charge encompassing two theories of liability.

KCSR contends one theory of Appellees’ negligence claim was preempted by a

federal statute and judgment on the second liability theory suffers from a Casteel

error. We reverse with respect to the preemption issue and remand for further

proceedings to allow correction of the Casteel error.

1
 Appellees’ mother, Ladonna Sue Rigsby, was killed when a KCSR train

collided with her car while she drove across a railroad crossing near her home.

Although the track had been in existence for about 140 years, over the course of

many years, KCSR’s maintenance incrementally but continually raised it. The

crossing was thus humped, with the mid-point rising 30 inches from the level road

30 feet away from the crossing. When the accident occurred, crossbuck signs1 were

posted on each side of the crossing, but yield signs posted several years earlier were

missing. Appellees contend KCSR’s negligence in failing to maintain or correct the

crossing to preclude or eliminate the hump and failing to maintain yield signs at the

crossing was a proximate cause of the accident.

KCSR asserted federal preemption as an affirmative defense and requested

summary judgment on both theories of appellees’ negligence claim, which the trial

court denied. KCSR then sought reconsideration of its summary judgment motion

but asserted preemption applied only to the humped crossing theory. Without an

express ruling on the motion for reconsideration, the case proceeded to trial on both

theories of negligence for which a single liability question was submitted to the jury.

The jury found both KCSR and Rigsby negligent and equally responsible for the

accident, and the court entered judgment awarding KCSR’s share of the damages.

1
Crossbuck signs are “X” styled regulatory signs placed at railroad crossings that require drivers to look
for and yield to oncoming trains.
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 On appeal, KCSR asserts 1) the trial court erred as a matter of law in not

concluding appellees’ claim, to the extent it relied on the humped crossing theory,

was preempted by federal law; 2) the evidence was legally and factually insufficient

to support a finding that a missing yield sign at the crossing was a proximate cause

of the accident; and 3) in the alternative to issue number two, any error with respect

to the first issue was harmful because the jury may have premised its verdict on an

improperly submitted theory as prohibited by Crown Life Insurance Company v.

Casteel, 22 S.W.3d 378, 388 (Tex. 2000). We address each issue in turn.

A. Preemption of the humped crossing theory

1. Procedural posture and standard of review

Pursuant to the Interstate Commerce Commission Termination Act of 1995

(ICCTA), 42 U.S.C. § 10401(b), KCSR asserted preemption as an affirmative

defense. See Mills v. Warner Lambert Co., 157 S.W.3d 424, 427 (Tex. 2005)

(“Federal preemption is ordinarily a federal defense to the plaintiff’s suit but does

not ordinarily deprive a state court of jurisdiction.” (internal quotation omitted)).

Because summary judgment was denied, KCSR bore the burden of proving its

defense at trial. Mo. Pac. R.R. Co. v. Limmer, 299 S.W.3d 78, 84 (Tex. 2009). The

absence of any conclusions or findings regarding preemption require that we

presume the trial court resolved all factual disputes against preemption, which in

turn requires that KCSR demonstrate its entitlement to the defense as a matter of

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law. Id.; see also Shields Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017)

(When party attacks legal sufficiency of adverse finding on issue on which it bears

burden of proof, judgment must be sustained absent conclusive evidence

establishing all vital facts supporting issue). Because federal preemption of state

law presents a legal question, a de novo standard controls. Grocers Supply, Inc. v.

Cabello, 390 S.W.3d 707, 712 (Tex. App.—Dallas 2012, no pet.).

2. ICCTA preemption framework

We discern whether Congress intended federal law to preempt state law by

analyzing the federal statute at issue.2 CSX Transp., Inc. v. Easterwood, 507 U.S.

658, 664 (1993) (“If the statute contains an express pre-emption clause, the task of

statutory construction must in the first instance focus on the plain wording of the

clause, which necessarily contains the best evidence of Congress’ pre-emptive

intent.”); A & W Props., Inc. v. Kansas City S. Ry. Co., 200 S.W.3d 342, 345–46

(Tex. App.—Dallas 2006, pet. denied); Burlington N. & Santa Fe Ry. Co. v. City of

Houston, 171 S.W.3d 240, 247 (Tex. App.—Houston [14th Dist.] 2005, no pet.)

(“Where a statute contains a specific preemption clause, as does the ICCTA, that

clause becomes the focus of our analysis.”). Although we recognize the presumption

2
In interpreting a federal statute, we are “obligated only to follow the . . . decisions of the United States
Supreme Court and the Texas Supreme Court.” Legend Airlines, Inc. v. City of Fort Worth, 23 S.W.3d 83,
92 (Tex. App.—Fort Worth 2000, pet. denied). We, however, see no conflict between decisions of the
courts whose precedent is controlling and those of courts whose decisions are nonbinding but nonetheless
analogous and therefore persuasive, and thus reference both binding and nonbinding decisions above.

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against preemption, it “applies with less force when Congress legislates in a field

with ‘a history of significant federal presence’” such as railroads. Elam v. Kan. City

S. Ry. Co., 635 F.3d 796, 804 (5th Cir. 2011) (quoting United States v. Locke, 529

U.S. 89, 108 (2000)).

Congress enacted the ICCTA primarily to address concerns regarding state

economic regulations impacting rail transportation. Id. at 805 (discussing legislative

history regarding bill). The statute provides for exclusive federal jurisdiction over

state or local action, that has the effect of regulating rail transportation. Federal and

state courts have recognized the breadth of the ICCTA’s preemption: “it is difficult

to imagine a broader statement of Congress’s intent to preempt state regulatory

authority over railroad operations.” Burlington N. & Santa Fe Ry. Co., 171 S.W.3d

at 247 (quoting CSX Transp., Inc. v. Ga. Pub. Serv. Comm’n, 944 F.Supp. 1573,

1581 (N.D. Ga. 1996)). The ICCTA’s preemption provision provides:

(b) the jurisdiction of the [Surface Transportation] Board over—

(1) transportation by rail carriers, and the remedies provided in
this act with respect to rates, classifications, rules (including car
service, interchange, and other operating rules), practices, routes,
services, and facilities of such carriers; 3 and
(2) the construction, acquisition, operation, abandonment, or
discontinuance of spur, industrial, team, switching or side tracks,

3
The dissent questions whether rail crossings constitute rail “facilities.” We, however, confine our review
to the arguments fairly raised. Victoria Gardens of Frisco v. Walrath, 257 S.W.3d 284, 290 (Tex. App.—
Dallas 2008, pet. denied) (“We will not affirm the trial court’s order based on a legal theory not presented
to the trial court and to which Victoria Gardens had no opportunity to respond.”). For the same reason, we
find no basis for inquiring as to the effect of the Fixing America’s Surface Transportation Act.
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 or facilities, even if the tracks are located, or intended to be
located, entirely in one State,

is exclusive. Except as otherwise provided in this part, the remedies
provided under this part with respect to regulation of rail
transportation are exclusive and preempt the remedies provided under
Federal or State law.

42 U.S.C. § 10501(b) (emphasis added).

The exclusive remedies provision of the statute—the statute’s second

sentence—defines the scope of its preemption. Id.; Elam, 635 F.3d at 806. Thus,

on its face, the statute expressly preempts laws that have the effect of managing or

governing rail transportation, and similarly, remedies provided under federal or state

laws that have the same effect. 42 U.S.C. § 10501(b); Tex. Cent. Bus. Lines Corp.

v. City of Midlothian, 669 F.3d 525, 532 (5th Cir. 2012) (“[E]nactments that have

the effect of managing or governing, and not merely incidentally affecting, rail

transportation are expressly or categorically preempted under the ICCTA.” (internal

quotation omitted)); Franks Inv. Co. v. Union Pac. R.R. Co., 593 F.3d 404 (5th Cir.

2010). Preempted remedies include more than those provided by statutes or

regulations. “[W]hen a plaintiff’s tort claim directly attempts to manage or govern

a railroad’s decisions in the economic realm, that claim is either wholly federal or

nothing at all.” Elam, 635 F.3d at 807 (concluding negligence per se claim premised

on violation of anti-blocking statute and train that blocked intersection at which

collision occurred was expressly preempted) (internal quotation omitted)); A & W

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Props., Inc., 200 S.W.3d at 351 (concluding landowner’s negligence and related

claims arising from railroad’s refusal to widen its bridge and culvert to preclude

flooding on plaintiff’s land were preempted, where requiring widening operations or

permitting damages if work was not performed, was effectively “regulation of rail

transportation”).

In addition, state laws, including tort laws, are preempted if the law, as

applied, has the “effect of unreasonably burdening or interfering with rail

transportation.” Elam, 635 F.3d at 805; New Orleans & Gulf Coast Ry. Co. v.

Barrois, 533 F.3d 321, 333 (5th Cir. 2008) (“[P]reemption claims in routine crossing

cases fall into the category of as-applied preemption challenges.”). Thus, rather than

focusing on the purpose of state negligence laws that unquestionably aim at

compensating injured parties, our preemption analysis focuses on the effect of a

negligence claim.4 Elam, 635 F.3d at 805.

Moreover, this Court has already rejected the distinction between a forward-

looking “fix” (i.e., an injunction compelling correction of hazardous or problematic

4
We find little persuasive value in Guild v. Kansas City Southern Railway Company, 541 F. App’x 362 (5th
Cir. 2013) or Gallo v. Union Pacific Railroad Company, 372 F. Supp. 3d 470, 480–81 (W.D. Tex. 2019),
cited by our dissenting colleague, since neither involved a humped crossing accident, let alone a crossing
claim.

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condition) and damages for past conduct as the fulcrum upon which prohibited

“regulation” and thus preemption rests. “If A & W were correct [that an award of

damages rather than injunctive relief would exempt its claims from preemption], and

payment of damages could somehow allow a claim to escape preemption, then no

civil claim would ever be preempted.” A & W Props., Inc., 200 S.W.3d at 349; see

also Pejepscot Indus. Park, Inc. v. Main Cent. R. Co., 297 F. Supp. 2d 326, 333–34

(D. Me. 2003) (“[T]his Court joins other courts in recognizing that awards of

damages pursuant to state tort claims may qualify as state ‘regulation’ when applied

to restrict or burden a rail carrier’s operations.”); S.D. ex rel. S.D. R.R. Auth. v. BNSF

Ry. Co., 280 F. Supp. 2d 919, 935 (D.S.D. 2003) (tort claims for punitive damages

and tortious interference completely preempted).

We thus determine whether KCSR met its burden to demonstrate that

appellees’ humped crossing claim had the effect of managing or regulating KCSR’s

economic decisions, or if the effect of the claim unreasonably burdened or interfered

with KCSR’s rail operations.

3. Facts related to the humped crossing claim

The track was constructed between 1871 and 1880. Ownership changed

numerous times, and in 1992 KCSR acquired control of the track. Periodically over

the years, KCSR would add small amounts of ballast under the tracks to level them

or ensure they were well-supported, which caused a gradual increase in the slope of

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the crossing. In 2013, KCSR dug out all the ballast under the crossing, tamped it

down, laid a new track panel and resurfaced it, but did not reduce the crossing’s

slope. The photo below accurately depicts the crossing on the date of the accident.

In accordance with federal law, KCSR’s responsibility for the crossing ends

approximately two feet outside of each rail. Beyond that space, even though the

approach lies within KCSR’s right of way, Hunt County, Texas, was responsible for

and controlled any maintenance or changes to the road. KCSR, on the other hand,

was responsible for maintaining the crossing surface over the railroad ties and up to

the outside perimeter of the railroad ties.

At trial, appellees argued KCSR was negligent because the pavement

approaching the crossing sloped excessively, thereby creating the hump. Appellees

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asserted the hump was a safety hazard because the steep grade impaired visibility

and was a distraction that limited Rigsby’s attention in looking for an approaching

train. Appellees argued that in the 30-foot span over and reaching equally both sides

of the crossing, no more than a three-inch slope should exist, relying on guidelines5

provided by the American Railway Engineering and Maintenance-of-Way

Association (AREMA). Compliance with those guidelines would have required

lowering the crossing by at least 32 inches. Appellees presented two options for

conforming the crossing to the AREMA recommendation: 1) leveling and raising

the roadway in the approach to and retreat from the crossing; or 2) lowering the

tracks at the crossing. Appellees argued KCSR was negligent in having failed to

undertake either of these two options.

KCSR asserted it lacked the authority to accomplish the roadway option.

Reducing a slope of 32 inches to a slope of 3 inches within a 30-foot span would

require raising the slope of the road over a distance of 300 feet—three-inch increases

over ten 30-foot sections. KCSR’s right-of-way, however, extended only 25 feet

from the center of the rails, and KCSR established it lacked the legal right to alter

the entirety of the roadway in this manner to eliminate the hump.

5
Appellees’ counsel referred to the AREMA provisions as “regulations” and “standards,” while KCSR’s
witness referred to them as desirable “recommendations” or “guidelines.” Because counsel’s description
was not evidence, we utilize the description provided by the witness.
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 The parties disputed the cost and extent of work required to lower the crossing

by lowering the track. Although deposition testimony was admitted on cross-

examination in which appellees’ expert testified he would not quibble with an

estimate of $300,000 to perform the work, at trial, he also testified rehabilitating the

crossing would cost between $50,000 and $150,000.

KCSR’s corporate representative, who had extensive experience supervising

track maintenance and rehabilitation projects, testified lowering the track would

require major revision to the alignment, elevation, or profile of the track. In this

regard, appellees’ expert admitted conforming to applicable Federal Railway

Administration Track Safety standards and preventing a dip caused by grading out

the hump would require undercutting,6 and running out—leveling—work in the

approach to and beyond the crossing for a minimum of 661 feet on each side of the

crossing. KCSR’s witness testified that hills and curves near the crossing would

create further complications and expenses and require extending the run-out beyond

661 feet on each side of the crossing. Finally, KCSR’s witness testified that water

flows under the crossing through a 33-foot-long, 36-inch diameter culvert, which

also maintains uniform water levels on both sides of the crossing. The culvert and

6
The rock underlying the crossing would require use of a giant chainsaw-like machine to undercut the
ballast. A normal grading procedure utilizing undercutting would require cutting out the asphalt six–feet
from both sides of the rail, cutting the rail out in the same stretch, using machinery to remove the track
panel, laying new ballast and smoothing it with a tamping machine, returning the track or laying new track,
and paving the new crossing.

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concerns about flooding thus further complicated the lowering/undercutting option.

KCSR argues that providing a remedy to appellees for the condition of the crossing

has the effect of managing its operations, and the claim is accordingly preempted.

4. ICCTA preemption in this case

i. Cases specifically addressing humped crossing claims

Every court that has addressed preemption related to a tort claim or regulation

involving a humped crossing has concluded the ICCTA preempts the claim.7 See

CSX Transp., Inc. v. City of Sebree, 924 F.3d 276, 283–84 (6th Cir. 2019); Waneck

v. CSX Corp., No. 1:17CV106-HSO-JCG, 2018 WL 1546373, at 5 (S.D. Miss. Mar.

29, 2018); Union Pac. R.R. Co. v. Taylor Truck Line, Inc., No. 15-0074, 2018 WL

1750516 (W.D. La. April 10, 2018); Voight v. CSX Transp., Inc., No. 3:17-CV-

01018-N (N.D. Tex. June 19, 2017) (mem. op.). Appellees, like our dissenting

colleague, take issue with each of these cases but notably fail to cite a single case

involving maintenance of or a tort claim arising from a humped crossing in which

preemption was rejected.8 The absence of any such supporting authority speaks

7
Despite the dissent’s criticism of our reliance on the cases discussed below, we nonetheless include an
undeniable fact in addressing the claim at issue: no other court that has addressed a tort claim arising from
a humped crossing claim has reached the result advocated by appellees and the dissent. Moreover, our
citation to cases which rely on implied preemption, for instance Union Pac. R.R. Co. v. Taylor Truck Line,
Inc., No. 15-0074, 2018 WL 1750516 (W.D. La. April 10, 2018) provides no basis for rejecting preemption
of the humped crossing claim at issue here or ignoring persuasive authorities merely because some courts
relied on implied rather than express preemption, or vice versa, particularly given evidence of different
costs, delays, and burdens potentially involved.
8
The dissent leans heavily on the STB’s “helpful guidance” regarding the ICCTA’s preemption of the
humped crossing claims addressed in Voight and Waneck. We observe, however, that the STB’s guidance

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loudly. As discussed below, we reject appellees’ and our dissenting colleague’s

effort to distinguish these cases.

We consider first those cases most closely aligned with our facts. In Voight,

the court concluded claims that alleged CSXT had failed to maintain a crossing that

was steep and therefore hazardous fell squarely within the ICCTA as having the

effect of managing or governing rail transportation economically. Voight, No. 3:17-

CV-01018, at *6. Likewise, in Waneck, the court concluded improper maintenance

claims premised on a humped crossing were “in actuality claims concerning the

physical characteristics of the . . . crossing, including the configuration, operation,

and maintenance of the crossing and related rail structures,” and as such were

completely preempted. 2018 WL 1546373, at *4. Notably, both cases arose out of

collisions when a bus became high-centered on a humped crossing. Id. at *5

(negligence claim premised on maintenance whereby railroad added layer upon layer

of asphalt patches to crossing thereby creating dangerous humped crossing was

involved a question not presented by the parties or record: the interplay between FRSA preemption and the
ICCTA. Moreover, the STB itself qualified its advisory-only guidance, as follows:
The Board [in its May 23, 2018 opinion] reasonably provided guidance to assist ‘the court
and the parties,’ noting relevant precedent involving the interplay between § 10501(b) and
FRSA preemption. . . . That guidance explains the Board’s view of the preemption issue,
but it is not binding or controlling in these cases, as the preemption issues are properly
before the district courts (or potentially the relevant courts of appeals) and those courts
have concurrent jurisdiction to determine preemption.”
Jimmy Lee Waneck & Starr Swearingen Waneck, et al-Petition for Declaratory Order, FD 36167,
2018 WL 5723286, at *4 (S.T.B. Oct. 31, 2018).

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tantamount to claim regarding design and construction of the crossing and thus

preempted by ICCTA); Voight, No. 3:17-CV-01018, at *2 (negligence claim arising

from accident in which tour bus high-centered on railroad crossing and was struck

by train).

Appellees counter KCSR’s reliance on Waneck, and Voight, by arguing both

involved rail safety claims, which are not automatically preempted.9 But that

argument misses the distinction made in Waneck and inapplicable here. The court in

Waneck held claims premised on improper maintenance were preempted by the

ICCTA. Waneck, 2018 WL 1546373, at *5. It could not conclude, at the motion to

dismiss stage, that the “safety issues” inherent in an alleged breach of its duty to

operate its train at a safe speed, ability and preparedness to slow or stop for hazards,

etc., were preempted by FRSA. Id. at *6.

Nor does the surplus holding in Voight, that a judgment in the plaintiffs’ favor

would also have unreasonably burdened or interfered with rail transportation in the

economic realm, compel a different result. The initial holding premised on the

ICCTA’s express preemption of remedies that regulate rail transportation suffices to

9
Compare ICCTA to regulation of rails safety claims provided by the Federal Railroad Safety Act, 49
U.S.C. § 20106, which expressly excludes preemption for actions under state law which seek damages for
personal injury, death, or property damage premised on instances when a defendant has failed to comply
with safety regulations. As noted below, neither party raised the FRSA or its preemption provision.

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support the decision in Voight and preemption here.10 The claims asserted in Voight

and Waneck are functionally indistinguishable from appellees’ claims.11

Similarly, appellees’ efforts to distinguish Taylor Truck Line, Inc. fail to

persuade. In that case, a negligence claim was asserted against the railroad following

a collision between a train and a truck, after the truck high-centered on a humped

crossing. 2018 WL 1750516, at *1–2. The railroad sued for damages to the train

and track, and the truck company alleged the railroad was comparatively negligent

10
Nonetheless, even relying solely on appellees’ expert’s cost estimate for undercutting, given the amount,
the expanse of track involved, the culvert, hills and curves, and the possibility of the same outcome in other
humped crossing claims asserted in the future by other plaintiffs, we see no basis to conclude that the
interference was anything but unreasonable. See A & W Props., Inc., 200 S.W.3d at 349–50 (questioning
whether loss of half a million dollars would be insignificant to any business enterprise, regardless of size,
and concluding “without hesitation that it is decidedly unreasonable to assume that a railroad would not be
significantly impacted by a ruling that could allow an unknown number of landowners to recover a half
million dollars each from that railroad for a diminution in the value of their land purportedly caused by its
proximity to the railroad”).
11
The dissent relies on Minton v. Paducah & Louisville Railway, Inc., 423 F. Supp. 3d 375, 383 (W.D. Ky.
2019) in attempting to diminish the import of Voight and Waneck. But Minton’s holding does little to
support the dissent or weaken the persuasive value of either Voight or Waneck. Instead, Minton disagreed
with Voight and Waneck regarding whether “complete” or “ordinary” (defensive) preemption existed for a
crossing accident that involved, but did not rely on, a humped crossing. Id. at 383 (“The Court
acknowledges that Voight and Waneck conflict with the undersigned’s decision today. However, the Court
finds that these cases are inconsistent with Sixth Circuit and Supreme Court law on complete preemption
and declines to adopt them.”) (emphasis added). The distinction was important in Minton, as in Voight,
because ordinary (defensive) preemption does not provide federal question jurisdiction in a case removed
to federal court. Caterpillar Inc. v. Williams, 482 U.S. 386, 393 (1987); Barrois, 533 F.3d at 330–31 (Under
complete preemption, apparent state law claim is converted to claim arising under federal law for
jurisdictional purposes because federal statute wholly displaces state law claim. Comparatively, ordinary
preemption “declares the primacy of federal law, regardless of the forum or the claim.”). We of course
need not decide that complete preemption exists to decide that, at a minimum, defensive preemption bars
appellees’ claims. Indeed, the Minton court recognized the same thing: “Preemption under the ICCTA may
be a defense to Plaintiff’s negligence action, but whether that is so is an issue for the Grayson Circuit Court
to decide.” Id. Thus, any error in Voight, Waneck, or Minton in determining whether complete preemption
created federal question jurisdiction gives us no pause in deciding that, whether by complete or defensive
preemption, the effect of appellees’ claim is governance of KCSR’s operations through regulation of the
grade and manner of the crossing’s maintenance.

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in failing to maintain the crossing without a hump. Id. at *4. The court determined

the truck company’s affirmative defense was impliedly but completely preempted,

because the truck company asserted

that the Crossing has been raised over the years, and Union Pacific has
failed to repair it. If the Taylor Entities are correct, then Union Pacific
would be required to make changes to the Crossing that would require
considerable reconstruction.

Id. at *7.

Appellees argue the holding rested on the cost of the work—approximately

$2,000,000—the disruption to rail traffic necessitated by closing at least five other

crossings for three or four days, and different safety hazards created by lowering the

crossing. Thus, appellees again rely on the unreasonable burden aspect of the claim.

In concluding the claim was preempted, however, the court recognized the truck

company disputed the burden and cost inherent in the work and acknowledged the

truck company’s characterization of that work as rehabilitation rather than

reconstruction, but relied on the admission by the truck company’s expert that “‘the

defense concerns the design of the railroad tracks and crossing’ . . . [and]

‘considerable redesign and reconstruction work.’” Id. at *8. The court also discussed

an STB decision in which express and implied preemption existed because the claim

at issue had the effect of regulating and interfering with rail transportation and also

concluded the claim “‘further . . . unduly burden[ed] interstate commerce and

amount[ed] to impermissible state regulation of [the railroad’s] operations by

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interfering with the railroad’s ability to uniformly design, construct, maintain, and

repair its railroad line.’” Taylor Truck Line, Inc., 2018 WL 1750516, at *8 (quoting

Thomas Tubbs—Petition for Declaratory Order, STB Docket No. FD 35792, 2014

WL 5508153, at *5 (S.T.B. Oct. 31, 2014)). Thus, while the court appeared to also

rely on the unreasonable burden with rail transportation arising from the claim, no

doubt exists as to its reliance on the same concept at play here: a claim that has the

effect of managing rail transportation by interfering with the design and maintenance

of a crossing.

We also reject appellees’ and the dissent’s challenges to KCSR’s reliance on

City of Sebree in which the Sixth Circuit concluded the ICCTA preempted a city

ordinance and settlement agreement that prohibited the railroad from performing

surfacing maintenance by raising a crossing, which the railroad preferred to the more

expensive and disruptive undercutting method. 924 F.3d at 281. The court

determined the regulation and settlement agreement were preempted on several

grounds, including that the breadth and uncertainty of the regulation could force

CSX to use a maintenance method—undercutting—that imposed an unreasonable

burden on CSX. Id. at 284–85. And, allowing enforcement of the local regulation

interfered with CSX’s ability to “uniformly design, construct, maintain, and repair

its railroad line.” Id. at 285. In the same way, allowing a jury to determine the

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manner and extent of maintenance required at the crossing interferes with KCSR’s

ability to homogenously control maintenance of its tracks.

Appellees differentiate City of Sebree by arguing the regulation at issue had

already been used to deny CSX the ability to perform maintenance by raising the

crossing grade, and in comparison, no regulation or ordinance had prevented KCSR

from correcting the high grade at the crossing. But that argument highlights the

point of preemption: the doctrine should preclude interference before it occurs.

The dissent further distinguishes City of Sebree on the basis that the plaintiffs

in that case relied on negligence per se, while appellees relied only on industry

standards, a distinction we find irrelevant. The dissent also observes that the City

Sebree court determined the ordinance at issue was susceptible to use as a pretext

for interference in rail service and lacked standards cabining the city council’s

discretion, problems not present here. Id. at 284. But the dissent ignores the second

basis for preemption relied upon in City of Sebree: “Because the Ordinance has the

effect of prohibiting CSX from using the maintenance method it prefers and believes

is the ‘industry best practice,’ and instead requires the use of a method that ‘reduces

train safety,’ [undercutting] it has the effect of unreasonably interfering with rail

operations.” Id. at 285. The same is true here. We conclude the holding and analysis

in City of Sebree are persuasive.

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 ii. Typical and routine crossing claims

In addition to disputing the applicability of the humped crossing cases relied

upon by KCSR, appellees argue KCSR’s underlying analysis incorrectly assumes

preemption applies to typical crossing cases and improperly relies on Fifth Circuit

precedent that does not support its argument. We consider each of appellees’

arguments below.

First, we address appellees’ arguments rejecting preemption in “typical” or

“routine” tort cases arising from crossing accidents. Appellees provide a truncated

portion of a quote from Barrois, 533 F.3d at 333, arguing “the care of grade crossings

is peculiarly within the police power of the states.” But the entirety of the quote

supports our statement of the law and conclusion:

The care of grade crossings is peculiarly within the police power of the
states, and, if it is seriously contended that the cost of this grade
crossing is such as to interfere with or impair economical management
of the railroad, this should be made clear. It was certainly not intended
by the Transportation Act to take from the states or to thrust upon the
Interstate Commerce Commission investigation into parochial matters
like this, unless by reason of their effect on economical management
and service, their general bearing is clear.

Id. (quoting Lehigh Valley R.R. Co. v. Bd. of Pub. Util. Comm’rs, 278 U.S. 24, 35,

(1928) (citations omitted) (emphasis added)). Thus, while true that routine

“[c]rossing disputes, despite the fact that they touch the tracks in some literal sense

. . do not fall into the category of ‘categorically preempted’ or ‘facially preempted’

state actions,” Id. at 332–33, “routine” is key. In routine cases, maintenance of the

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track and the costs and burden to eliminate the alleged structural cause of an accident

are not at issue as here. “[R]outine, non-conflicting uses, such as non-exclusive

easements for at-grade road crossings, wire crossings, sewer crossings, etc., are not

preempted so long as they would not impede rail operations or pose undue safety

risks.” Id. at 333 (quoting Maumee & W. R.R. Corp. & RMW Ventures, LLC–

Petition for Declaratory Order, STB Finance Docket No. 34354, 2004 WL 395835,

at *2 (S.T.B. March 2, 2004)). For instance, in Barrois, the railroad sued to preclude

property owners from installing private use crossings over the track. Id. at 325. The

court determined complete preemption did not apply and held the railroad had failed

to carry its burden regarding as-applied preemption. Id. at 333–34. Appellees,

however, do not present a routine crossing case, and thus Barrois has limited

application.

Moreover, despite appellees’ assertion, KCSR does not rely on “general

evidence that rail crossings affect rail transportation.” C.f. Franks Inv. Co., 593 F.3d

at 415 (railroad failed to connect evidence regarding drainage, track maintenance

costs, and reduced speed issues to crossings at issue). It relies on the specific

crossing at issue and the specific remedies sought by appellees, which seek to impose

liability for KCSR’s prior failure to correct the humped crossing, which KCSR

contends has the effect of regulating rail transportation.

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 Appellees also take issue with KCSR’s reliance on Texas Central Business

Lines, which involved enforcement of a local ordinance requiring a crossing slope

of no more than 4:1, rather than the steeper 3:1 and 2:1 grades at the challenged

crossings, which were within industry standards. Tex. Cent. Bus. Lines, 669 F.3d at

533. Appellees assert, in contrast, the grade at the crossing exceeded industry

recommendations, and argue no grading ordinance exists here. As KCSR observes,

however, appellees seek a slope that meets the AREMA guidelines, a comparable

paradigm to the regulation at issue in Texas Central Business Lines. Nonetheless,

preemption does not depend on the mechanism by which interference occurs—

whether by regulation or tort claim—or the degree to which the crossing complies

with or varies from a standard set by a regulation or a common law duty of care. See

Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 521 (1992) (“[S]tate regulation can be

as effectively exerted through an award of damages as through some form of

preventative relief. The obligation to pay compensation can be, indeed is designed

to be, a potent method of governing conduct and controlling policy.”); A & W Props.,

Inc., 200 S.W.3d at 349 (“[W]hen a state requires a railroad to pay damages to a civil

litigant related to the railroad’s operations, that claim is the equivalent to state

regulation of the railroad.”); see also In re Katrina Canal Breaches Consol. Lit., No.

05-4182, 2009 WL 224072, at *6 (E.D. La. Jan. 26, 2009) (“The application of state

law negligence principles to assess and evaluate the suitability of the design and

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construction of a railroad crossing, railroad tracks, and roadbed for railroad tracks

qualifies as an attempt at state law ‘regulation’ in respect to rail transportation.”).

Rather, it turns on whether a local regulation conflicts with an activity governed by

the ICCTA, such as an express conflict regarding construction of rail lines as in

Texas Central Business Lines, 669 F.3d at 533, or, whether the effect of a claim, as

applied to the circumstances at hand, is regulating, economically through a damage

award, the grade and manner of maintenance at a crossing.12

iii. Elam does not mandate the absence of preemption here

We also disagree with appellees’ argument that KCSR (and this Court)

ignores precedent by relying on Elam. On the contrary, the portion of the Elam

decision that rejected preemption for a simple negligence claim has no bearing here,

given the difference in the facts supporting KCSR’s preemption argument and the

facts at issue in Elam. In Elam, the Fifth Circuit concluded preemption applied to a

strict liability claim arising from violation of a Mississippi anti-blocking statute that

regulated train length, speed, and how long a train could occupy a crossing because

12
Nor do we see any meaningful distinction between the direct influence on the permissible grade and
manner of maintenance at issue here and the direct effect of the regulation at issue in Texas Central Business
Lines on “where rail lines could be situated, as well as . . . the distance between railroad tracks and the
position of track-side equipment.” As the dissent correctly observes, the regulation at issue in Texas Central
Business Lines fell within the STB’s exclusive jurisdiction over the “construction . . . of spur, industrial,
team, switching, or side tracks, or facilities.” Tex. Cent. Bus. Lines. Corp., 669 F.3d at 533. The court also
observed, that as here, “ordinances that would apply to the slope or other features of the embankments for
the railroad tracks” are expressly preempted. Id. (emphasis added). Thus, whether we rely on an ordinance
or a jury verdict for determining the permissible slope of a crossing or an embankment, we nonetheless deal
with regulation of construction or operations.
–22–
the effect of the claim was economic regulation of the railroad’s switching

operations. Id. at 807. In comparison, on the bare removal record presented, the

court concluded the simple negligence claim premised on the stalled train blocking

the crossing was not preempted. Id. at 813. The court determined KCSR, which

was also the defendant in Elam, had not demonstrated that providing adequate

warnings of the train’s presence on the crossing in an affidavit that asserted “limiting

the amount of time a train could block a crossing” or “otherwise regulating how

KCSR uses the tracks in switching” would “directly impact KCSR’s operation...”

Although the affidavit addressed the burdens of the challenged anti-blocking statute,

it did not address the burdens of providing adequate warnings at the crossing where

the accident occurred and did not demonstrate an unreasonable burden arising from

application of the statute. Id. at 814. Here, KCSR did not rely solely on the

unreasonable burden regarding the time, cost, and effort involved in correcting the

hump. It argued the claim constituted a local regulation requiring KCSR to

undertake a major redesign and renovation of the crossing and the adjacent track,

which had the effect of managing its operations.

Like each court presented with a claim premised on failure to properly

maintain or reconstruct a humped crossing, we conclude ICCTA preemption

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prohibits judicial resolution of appellees’ humped crossing claim.13 We sustain

KCSR’s first issue.

B. Sufficiency of the evidence supporting the yield sign theory and Casteel
error

In its second issue, KCSR argues the evidence was legally and factually

insufficient to support a finding that the absence of a yield sign at the crossing was

a proximate cause of the collision. In the alternative, KCSR argues that if sufficient

evidence supported the absence of a yield sign as a cause of the accident to support

submission to the jury, the trial court erred in submitting both theories in one broad-

form question. It asserts the manner of submission was harmful, given preemption

of the humped crossing theory of the claim. We agree with KCSR’s alternative

argument.

1. Standard of review governing sufficiency of the evidence

An appellant challenging the legal sufficiency of the evidence on an issue on

which it did not have the burden of proof must demonstrate no evidence supports the

adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). In

reviewing such a challenge, we consider the evidence in the light most favorable to

the verdict and “credit favorable evidence if reasonable jurors could and disregard

13
We need not specifically determine, as appellees suggest, whether KCSR should have attempted to
compel Hunt County to grade the road, or, obtained permission to do the work at its own expense, because
requiring either action would involve regulation of rail transportation, just as proceeding with the
undercutting option would.

–24–
contrary evidence unless reasonable jurors could not.” City of Keller v. Wilson, 168

S.W.3d 802, 808 (Tex. 2005). If more than a scintilla of evidence supports the

finding, the no evidence challenge fails. United Servs. Auto. Ass’n v. Croft, 175

S.W.3d 457, 463 (Tex. App.—Dallas 2005, no pet.).

In contrast, a factual sufficiency complaint challenging an adverse finding on

an issue on which the appellant did not have the burden of proof requires a

demonstration that insufficient evidence supports the adverse finding. Id., at 58;

Croucher, 660 S.W.2d at 58. In reviewing such a challenge, we consider and weigh

all of the evidence and set aside the verdict only if the evidence is so contrary to the

overwhelming weight of the evidence that the verdict is clearly wrong and unjust.

United Servs. Auto. Ass’n, 175 S.W.3d at 463. We regard the jury’s verdict as

conclusive if the record includes conflicting evidence. Id. Thus a finding supported

by sufficient competent evidence of probative force mandates overruling a factual

sufficiency challenge. Id.

2. Evidence supporting the absent yield sign theory

Appellees’ evidence demonstrated that, as required by a master agreement

with the Texas Department of Transportation, years before the accident KCSR had

installed yield signs on the same posts as the crossbuck signs posted on each side of

the crossing. KCSR failed to maintain the yield signs, however, and at the time of

the collision, they were missing.

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 According to appellees’ expert, crossbuck signs provide notice to drivers of a

railroad crossing and even in the absence of other warnings like lights, alert drivers

to look for an approaching train before entering a crossing. Appellees’ expert

testified yield signs enhance a driver’s recognition of a hazard, given that motorists

do not necessarily view crossbuck signs as providing such notice. The expert also

testified that because yield signs at crossings became legally required in 2009, the

presence of a yield sign would more likely than not have made a difference at the

crossing, although he could cite no studies supporting his opinion. KCSR disputes

the import of this testimony, arguing the expert’s opinion was speculative and

constituted no evidence or insufficient evidence, given the conclusion in a study

admitted into evidence that reported the absence of any substantive evidence

regarding how yield signs may affect driver behavior at grade crossings. The same

study, however, also indicated that “yield signs . . . convey . . . the message that the

driver has the responsibility to look for and yield to an oncoming train better than it

[sic] does the crossbuck alone.” Additionally, the expert testified that although no

studies showed whether yield signs coupled with crossbucks reduced crash rates,

studies did show the benefits of yield signs. Although KCSR also relied on evidence

that drivers pay less attention to warning signs the more familiar they are with the

crossing where the signs are located, appellees’ expert countered by testifying that

–26–
although Rigsby had lived near the crossing for many years, because of a recent

illness, she was driving for the first time in two months when the accident occurred.

Questions related to the quality of the information relied upon by an expert

generally address weight rather than admissibility. Onwuteaka v. Gill, 908 S.W.2d

276, 283 (Tex. App.—Houston [1st Dist.] 1995, no writ). Here, the jury was the

sole judge of the weight to which appellees’ expert’s testimony was entitled. Melvin

v. Jimenez, No. 04-00-00746-CV, 2002 WL 21963, at *2 (Tex. App.—San Antonio

Jan. 9, 2002, no pet.) (“[W]e defer to the jury’s determinations on the credibility of

the witnesses, the weight to be afforded to the testimony, and its resolution of

conflicts in the evidence.”) (not designated for publication). Viewing this evidence

in the light most favorable to the jury’s verdict,14 we conclude more than a scintilla

of evidence supports the existence of cause in fact arising from the absent yield sign.

See Figueroa v. Davis, 318 S.W.3d 53, 62 (Tex. App.—Houston [1st Dist.] 2010,

no pet.) (conflicting evidence demonstrates legally and factually sufficient

evidence); Trinity Indus., Inc. v. Ashland, Inc., 53 S.W.3d 852, 862–63 (Tex. App.—

Austin 2001, pet. denied) (appellate court will not substitute its judgment for the

14
We question KCSR’s assertion that expert testimony was necessary to establish the missing yield sign as
a cause of the accident. See Katy Springs & Mfg., Inc. v. Favalora, 476 S.W.3d 579, 591 (Tex. App.—
Houston [14th Dist.] 2015, pet. denied) (“Non-expert evidence alone is sufficient to support a finding of
causation in limited circumstances where both the occurrence and conditions complained of are such that
the general experience and common sense of laypersons are sufficient to evaluate the conditions and
whether they were probably caused by the occurrence.” (internal quotation omitted)). We need not reach a
conclusion on this issue, however, given our determination regarding the sufficiency of the evidence
provided by appellees’ expert.
–27–
jury’s when the verdict rests on sufficient evidence). We overrule KCSR’s second

issue.

3. Broad-form submission of one question encompassing humped
crossing and missing yield sign theories

Appellees submitted evidence and argument regarding both theories of

negligence. During trial, KCSR submitted a proposed jury question that separated

liability premised on the humped crossing theory from the absent yield sign theory.

At the charge conference, KCSR objected to submission of the proposed negligence

question and asserted that since one theory of the claim was barred by preemption,

submitting a broad-form question created a Casteel error. Nonetheless, the broad-

form liability question submitted to the jury asked whether the negligence of Rigsby

or KCSR caused the occurrence in question. Following the jury’s verdict and entry

of the judgment in favor of Rigsby, KCSR filed a motion for judgment

notwithstanding the verdict and again asserted the humped crossing theory was

preempted as a matter of law. KCSR’s third issue on appeal tracks its objection and

JNOV motion.

In support of this issue, KCSR, relying on Casteel and derivative cases, argues

Texas law presumes harmful error when a single broad-form liability question

commingles valid and invalid liability theories and a proper reason for the verdict

cannot be ascertained from the record. Appellees respond that in Casteel,

impermissible claims were comingled with valid ones, while the issue here rests on

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a single cause of action. Casteel, 22 S.W.3d at 387–88 (five theories of liability

arising from DTPA for which plaintiff lacked consumer status commingled with

claims for negligence, breach of fiduciary duty, etc.). Appellees also point to two

decisions from our sister courts in support of their reading of Casteel, Columbia

Medical Center of Las Colinas v. Bush, 122 S.W.3d 835, 858 (Tex. App.—Fort

Worth 2003, pet. denied), and Formosa Plastics Corp. v. Kajama International, Inc.

216 S.W.3d 436, 455 (Tex. App.—Corpus Christi–Edinburg 2006, pet. denied), as

well as one decision from the Texas Supreme Court, Dillard v. Texas Electric

Cooperative, 157 S.W.3d 429, 434 (Tex. 2005). We begin with Casteel.

As KCSR asserts, Casteel determined that broad-form submission of legally

invalid theories—liability pursuant to various provisions of the DTPA where

plaintiffs were not consumers—with legally valid theories, was reversible error

where the court could not determine the theory on which the jury’s verdict rested.

22 S.W.3d at 389.

It is essential that the theories submitted be authorized and supported
by the law governing the case. If they are not, the appellate court must,
at a minimum, be able to determine whether properly submitted theories
constituted the basis of the jury’s verdict.

Id. The holding was not limited to valid claims and instead, prohibited broad-form

submission of invalid theories. Id.; see also, Benge v. Williams, 548 S.W.3d 466,

475 (Tex. 2018) (“[W]hen the question allows a finding of liability based on

evidence that cannot support recovery, the same presumption-of-harm rule [stated in

–29–
Casteel] must be applied.”); Tex. Comm’n on Human Rights v. Morrison, 381

S.W.3d 533, 534–35 (Tex. 2012) (per curiam) (“In this employer retaliation case, a

broad-form jury question allowed the jury to find liability based on a legal theory

that was jurisdictionally barred and thus could not support liability. As in Casteel,

we cannot determine whether the jury relied on the invalid theory.”). We have the

same dilemma here. We cannot determine whether the jury rested its liability

determination on appellees’ preempted humped crossing theory, which should not

have been submitted, or the missing yield sign theory. Accordingly, we follow

Casteel’s holding.

When a single broad-form liability question erroneously commingles
valid and invalid liability theories and the appellant’s objection is
timely and specific, the error is harmful when it cannot be determined
whether the improperly submitted theories formed the sole basis for the
jury’s finding.

Id.

Although we recognize that Columbia Medical Center facially supports

appellees’ contrary argument, we decline to interpret it as conflicting with Casteel.

In that medical malpractice case, the Fort Worth court rejected a Casteel-based

challenge premised on submission of a single broad-form negligence question,

where the appellant argued that several of the alleged negligent acts lacked

supporting evidence. 122 S.W.3d at 857–59 (“Even if the specific acts of negligence

alleged might be considered separate ‘theories of liability,’ in this case, unlike in

Casteel, no valid theories of recovery were commingled in a listing with invalid
–30–
theories of recovery in the broad-form question; thus, no charge error occurred.”).

The objection at issue15 in Columbia Medical Center was whether each theory was

supported by factually sufficient evidence, rather than whether each theory was

legally valid. Columbia Med. Ctr. of Las Colinas, 122 S.W.3d at 857–59. Here,

instead of factual sufficiency, we are presented with a liability theory the ICCTA

rendered legally impermissible for a jury to decide, and a theory properly submitted

to the jury.

Finally, we perceive nothing in Dillard, 157 S.W.3d at 434, or Formosa

Plastics Corporation, 216 S.W.3d at 455 supporting a different conclusion. Dillard

does not address Casteel error, and instead holds that jurors need not agree on every

fact supporting a negligence finding if they all agree that negligence occurred.

Dillard, 157 S.W.3d at 434.

Formosa, more like Columbia Medical Center than Casteel, involved five

construction contracts in which Kajima International asserted Formosa made

fraudulent statements. 216 S.W.3d at 455. One fraud question was submitted to the

jury and Formosa argued on appeal that the absence of “separate answer blanks for

each contract makes it impossible to trace the jury’s damage award back to any

15
Importantly, the appellant in Columbia Medical Center did not object to submission of the broad-form
question. Id. at 858, n.9. Thus, because the error was waived, the entire discussion regarding error with
respect to the jury question is arguably dicta. See TEX. R. CIV. P. 274; In re A.V., 113 S.W.3d 355, 358
(Tex. 2003) (“[O]ur law on preservation of error does not permit . . . review of unpreserved” charge error,
which is waived where appellant fails to object to the charge in the trial court).
–31–
specific contract or contracts and prevents Formosa from challenging the sufficiency

of the evidence as to any of the individual contracts.” Id. The court rejected the

argument, concluding “the underlying conduct upon which the jury found liability

was essentially the same for all five of the contracts at issue.” Id. It thus determined

that any error with respect to submitting potential liability under any of the contracts

for which insufficient evidence existed was harmless, because the court was

“reasonably certain that the jury was not significantly influenced by issues

erroneously submitted to it.” Id. The holding has little application here, where we

deal with a legally invalid theory premised on underlying conduct completely

distinct from the valid missing yield sign theory and related evidence.

Because we conclude submission of the single broad-form liability question

encompassing both the humped crossing and the missing yield sign theory was

harmful error, we also sustain KCSR’s third issue and remand the case for further

proceedings consistent with this opinion.

/Robert D. Burns, III/
ROBERT D. BURNS, III
CHIEF JUSTICE

Carlyle, J., dissenting

190856F.P05

–32–
 S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

THE KANSAS CITY SOUTHERN On Appeal from the 68th Judicial
RAILWAY COMPANY, Appellant District Court, Dallas County, Texas
Trial Court Cause No. DC-17-06507.
No. 05-19-00856-CV V. Opinion delivered by Chief Justice
Burns. Justices Myers and Carlyle
ANGELA HORTON AND KEVIN participating.
HOUSER, Appellees

Based on the Court’s opinion of this date, the trial court’s judgment is
REVERSED and remanded for further proceedings consistent with the opinion.

It is ORDERED that appellant THE KANSAS CITY SOUTHERN
RAILWAY COMPANY recover its costs of this appeal from appellees ANGELA
HORTON AND KEVIN HOUSER.

Judgment entered March 11, 2021.

–33–