COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
No. 08-24-00135-CV
Maria Guadalupe Maldonado Individually and as Representative of the Estate of
Juan Maldonado, Juan Carlos Maldonado, Individually and as Next Friend of
Jaythan Maldonado, Jocelyn Maldonado, Julian Maldonado, and Joshua
Maldonado; Daniel Maldonado, Individually and as Next Friend of Giuliana
Maldonado, and Joanna Maldonado, Individually, Appellants
v.
Union Pacific Railroad Company, Appellee
On Appeal from the County Court at Law No. 3
El Paso County, Texas
Trial Court No. 2020DCV0807
M E MO RA N D UM O PI NI O N
In the underlying wrongful-death action, the Maldonados1 alleged that Union Pacific
Railroad Company’s failure to install adequate warnings at an unreasonably dangerous crossing
1
Appellants’ notice of appeal listed the following parties: Maria Guadalupe Maldonado, Individually and as Representative of the Estate of Juan Maldonado; Juan Carlos Maldonado, Individually, and as Next Friend of Jaythan Maldonado, Jocelyn Maldonado, Julian Maldonado, and Joshua Maldonado; Daniel Maldonado, Individually, and as Next Friend of Giuliana Maldonado; and Joanna Maldonado, Individually. The group of appellants includes decedent resulted in a collision between a semi-trailer truck and a train. The case proceeded to a jury trial.
At the close of evidence, the trial court ruled that plaintiffs’ inadequate warning claims were
preempted by federal law and it directed a verdict in favor of Union Pacific. Afterwards, the trial
court submitted a liability question to the jury asking whether the crossing at issue was
“extrahazardous” at the time of the collision. The jury answered “No,” and based on that negative
finding, it then followed the instruction not to answer any further questions on liability or damages.
The trial court entered a take-nothing judgment in favor of Union Pacific. In two issues on appeal,
the Maldonados challenge: (1) the directed verdict granted on federal preemption, and (2) the trial
court’s jury instruction defining the meaning of “extrahazardous.” Finding no error, we affirm.
I. BACKGROUND
On July 23, 2018, Juan Maldonado, a commercial truck driver, drove a tractor-trailer from
Big Springs to Van Horn to pick up a load of sand at a sand mine. At about 7:30 a.m., Maldonado
drove northbound on John Conoly Road. John Conoly Road was a two-way unpaved road with a
speed limit of 35 miles per hour. The area consisted of open desert terrain with low brush and no
trees. A railroad track crossed John Conoly Road, and the crossing was marked with a yield sign
and crossbucks (the Crossing).
and his family members. However, the trial court granted summary judgment against all wrongful death claims asserted by decedent’s grandchildren, and they assign no error against that ruling.
2
As Maldonado approached the Crossing driving northbound, a train traveling westbound
at approximately 68 miles per hour also approached. The train operator applied emergency brakes
and sounded a horn as it approached the Crossing. When Maldonado drove over the railroad track,
his truck was struck by the oncoming train. Maldonado was ejected from the cab of the vehicle,
which exploded soon after impact. Maldonado died as a result of the collision.
Maldonado’s surviving family members filed suit against Union Pacific asserting
negligence and gross negligence based on a variety of theories. Their lawsuit alleged that Union
Pacific played an integral role in designing the Crossing and choosing its warning devices. The
petition alleged the Crossing was “extrahazardous” due to “a rise in commercial truck traffic” that
followed the opening of a sand mine in the area. The pleading detailed that, “[i]n the six months
leading up to the subject collision, Union Pacific was involved in at least three other collisions
with commercial vehicles at the John Conoly crossing.” Moreover, they alleged that employees
riding or operating trains reported near misses with commercial truck traffic prior to the collision
in question.
Union Pacific answered the suit and asserted several affirmative defenses including that
any claims respecting the maintenance or installation of warning devices at the Crossing were
preempted by federal law to include the Federal Rail Safety Act of 1970 (FRSA), the Federal
Highway Safety Act of 1973 (FHSA), and regulations enacted pursuant thereto including those
promulgated by the Federal Railroad Administration. The railroad also alleged the accident was
caused by Juan Maldonado’s failure to use ordinary care under existing circumstances in the
incident alleged.
Prior to trial, the trial court granted summary judgment in favor of Union Pacific on claims
concerning improper training, impaired visibility, excessive speed, and failure to stop or slow the
3
train. The case then proceeded to a five-day jury trial on negligence premised on inadequate
warning signals at an “extrahazardous” crossing. After the close of evidence, Union Pacific moved
for a directed verdict on three grounds: (1) that the evidence established that federal funds
reimbursed Union Pacific for crossing enhancements at the subject crossing, and thus, plaintiffs’
claims concerning ineffective or improper warning were all federally preempted, (2) the Crossing
was not “extrahazardous” as a matter of law, and (3) there was no legal basis for punitive damages
because there was no evidence of gross negligence. The trial court granted a directed verdict “with
respect to the deferral preemption issue” and on punitive damages, but it denied a directed verdict
as to the extrahazardous claim. The trial court submitted conditional questions to the jury. As a
threshold issue, the jury was first asked whether the Crossing was extrahazardous. Because it
answered “No,” the jury was instructed not to answer any other questions. The trial court rendered
a take-nothing judgment in favor of Union Pacific consistent with the jury’s verdict. This appeal
followed.
II. FEDERAL FUNDS PREEMPTION
In their first issue, the Maldonados contend the trial court erred when it granted Union
Pacific’s motion for directed verdict on their inadequate warning claims based on federal funds
preemption. They argue that Union Pacific failed to conclusively establish that the federal
government ever paid any money for warnings installed at the Crossing. They contend the trial
court all but guaranteed an adverse outcome from the jury due to its “mistaken preemption ruling.”
A. Standards of review
We review the trial court’s grant of a directed verdict de novo. JPMorgan Chase Bank, N.A.
v. Orca Assets G.P., L.L.C., 546 S.W.3d 648, 653 (Tex. 2018). In doing so, a directed verdict is
reviewed under the same legal-sufficiency standard that applies to no-evidence summary
4
judgments. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). A directed verdict
typically arises in one of three circumstances: “(1) when a defect in the opposing party’s pleadings
makes them insufficient to support a judgment; (2) when the evidence conclusively proves a fact
that establishes a party’s right to judgment as a matter of law; or (3) when the evidence offered on
a cause of action is insufficient to raise an issue of material fact.” Wheatley v. Farley, 610 S.W.3d
511, 516 (Tex. App.—El Paso 2020, pet. denied).
When responding to a motion for directed verdict, the nonmovant bears the burden of
identifying evidence raising a genuine issue of material fact as to each challenged element of its
cause of action. See Boerjan v. Rodriguez, 436 S.W.3d 307, 310 (Tex. 2014). We view the evidence
“in the light most favorable to the party suffering an adverse judgment.” See Salazar v. Sanders,
440 S.W.3d 863, 870 (Tex. App.—El Paso 2013, pet. denied). We “review the entire record to
determine whether there is more than a scintilla of evidence that a fact question existed.” Id.
B. Applicable law
The Supremacy Clause of the United States Constitution provides: “This Constitution, and
the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme
Law of the Land[] and the Judges in every State shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2.
Based on this provision, a state law is preempted and without effect if it falls within an area
reserved to federal law. Maryland v. Louisiana, 451 U.S. 725, 746 (1981); Hyundai Motor Co. v.
Alvarado, 974 S.W.2d 1, 4 (Tex. 1998).
Congress enacted FRSA, “to promote safety in all areas of railroad operations and to reduce
railroad-related accidents and injuries to persons.” Missouri Pac. R.R. Co. v. Limmer, 299 S.W.3d
78, 82 (Tex. 2009). “FRSA calls for laws, regulations, and orders related to railroad safety to be
5
nationally uniform to the extent practicable” (internal quotation marks omitted). Id. Thus, “[w]hen
railroad crossing improvements are federally funded, federal regulations specify what warning
devices must be used[], and the United States Supreme Court has held that section 20106 of [the
FRSA] expressly preempts state tort law actions challenging the adequacy of those devices.[]” Id.
at 80 (internal citations omitted) (citing 23 C.F.R. § 646.214(b)(3)–(4) and 49 U.S.C. § 20106).
The United States Supreme Court limits the preemption doctrine by presuming that Congress did
not intend to displace state law. Maryland, 451 U.S. at 746.
C. Analysis
The Maldonados assert that, although Union Pacific demonstrated that TxDOT reimbursed
it for the installation of crossbucks at the Crossing, it did not show that the federal government
ever paid money to TxDOT for that installation. They assert that the failure “to bridge this
evidentiary gap” left a fact issue and precluded a finding of federal preemption as a matter of law.
As the movant for directed verdict, Union Pacific had the burden to overcome the
presumption against preemption and to prove that the Maldonados’ claims were federally
preempted as a matter of law. Limmer, 299 S.W.3d at 84; Great Dane Trailer, Inc. v. Estate of
Wells, 52 S.W.3d 737, 743 (Tex. 2001). Union Pacific presented evidence that, in May 2004, the
Federal Highway Administration authorized federal funding for TxDOT’s “STP 2004(561) RXP”
project to update crossbucks at crossings across Texas. The Federal Highway Administration
appropriated $1,215,000, which accounted for 90% of the overall anticipated cost for the project.
This 90% allocation tracked with the statute’s language in that 23 U.S.C. § 130(b) authorized the
Secretary to designate “a percentage of the costs of construction . . . for the purpose of determining
the railroad’s share of the cost of construction.” 23 U.S.C. § 130(b). After Union Pacific installed
crossbucks at the John Conoly crossing, and at other grade crossings across Texas, it submitted a
6
partial bill to TxDOT for $347,519.80 as a part of the project. The submitted bill shows that Union
Pacific installed a crossbuck at the John Conoly crossing on December 14, 2004, and spent $457.
On June 8, 2005, the Federal Highway Administration approved and paid invoices submitted by
TxDOT, Batch 109, which totaled $139,748,177.15. In a report reflecting invoices approved in
2005, $309,683.34 of the $139,748,177.15 of invoices submitted by TxDOT was attributable to
the “STP 2004(561) RXP” project. From this evidence, Union Pacific asserts it established that (1)
Union Pacific installed crossbucks at the John Conoly Crossing as part of the “STP 2004(561)
RXP” project; (2) the Federal Highway Administration approved and funded the project; and (3)
the Federal Highway Administration actually paid TxDOT the federal funds appropriated for the
project which TxDOT in turn paid to Union Pacific.
In response, the Maldonados assert that, due to an evidentiary gap in Union Pacific’s
evidence, it failed to conclusively establish that federal funds were spent on the crossbuck at the
John Conoly crossing. Specifically, they point to testimony by Erik Lewis, a corporate
representative of Union Pacific, who testified the railroad had requested and received
reimbursement from TxDOT. But as to whether TxDOT in turn received reimbursement from
federal funding, Lewis acknowledged he lacked “personal knowledge.” They argue that a failure
of proof on whether federal funds reimbursed TxDOT precluded judgment as a matter of law on
federal funding preemption. We disagree.
Lewis’s testimony, when read in context and coupled with the documentary evidence
admitted at trial, established that federal funds were paid for work at the John Conoly crossing.
Although Lewis acknowledged he lacked “personal knowledge,” he nevertheless confirmed the
documentary evidence showed that federal funds were reimbursed to TxDOT for the installation
of the crossbuck at the John Conoly crossing. As a designated witness for the railroad, Lewis had
7
sufficient knowledge to testify to “matters that are known or reasonably available to the
organization” as demonstrated by the admitted documents. See Tex. R. Civ. P. 199.2(b)(1)
(providing procedural framework for an individual to testify on particular matters for a
corporation). Lewis testified: “I can say federal funds were used to repay TxDOT based on these
forms, yes.”
Additionally, because the Maldonados’ cited authorities are factually distinguishable, they
are not persuasive in discrediting the probative force of Union Pacific’s evidence. In Gauthier v.
Union Pac. R.R. Co., a fact issue arose from internal emails showing that no federal funds were
used to install certain devices. Gauthier v. Union Pac. R.R. Co., 644 F. Supp. 2d 824, 837 (E.D.
Tex. 2009). Second, in Enriquez v. Union Pac. R.R. Co., No. 5:03-CV-174, 2004 WL 7406754 at
*10 (E.D. Tex. Dec. 30, 2004), the district court concluded that Union Pacific failed to establish
that crossbucks were installed with federal funds. There, Union Pacific provided no evidence tying
the work performed to install the crossbucks to a 1979 federal program. Id. Importantly, the district
court concluded that plaintiffs had created a fact issue with the deposition testimony of a Union
Pacific inspector who testified he was not sure that the crossbucks were installed with federal
funds. Id. Moreover, his testimony suggested that the state, not the federal government, funded the
particular project. Id. In short, the record in both Gauthier and Enriquez lacked evidence showing
that federal funds were used for the crossings at issue, and plaintiffs in each case presented
controverting evidence creating a fact issue. Here, by contrast, Union Pacific provided sufficient
evidence to establish that federal funds were used for the installation of crossbucks as a part of the
“STP 2004(561) RXP” project, and the Maldonados presented no controverting evidence creating
a factual issue.
8
Because Union Pacific’s evidence traced federal funds to the installation of the crossbuck
at the John Conoly crossing, the evidence conclusively established the Maldonados’ inadequate
warning claims were federally preempted as a matter of law. We overrule the Maldonados’ first
issue.
III. THE JURY INSTRUCTIONS
In their second issue, the Maldonados assert the trial court erred in failing to submit a
proper instruction on the “ultimate question of whether the subject crossing was considered
[extrahazardous] under Texas law.”
At the charge conference, the Maldonados objected to proposed Question One requesting
the trial court “add a sentence consistent with the [Pyle v. S. Pac. Transp. Co., 774 S.W.2d 693,
694 (Tex. App.—Houston [1st Dist.] 1989, writ denied)] case that’s been argued exhaustively,
saying that the jury may consider reasonably similar accidents, at the end of that sentence.” Union
Pacific responded that “any comment on other similar accidents would be a comment on the weight
of the evidence and it would confuse the standard for [extrahazardous] crossings.” The trial court
overruled the Maldonados’ objection. The question was submitted to the jury as:
Was the John Conoly crossing an [extrahazardous] crossing at the time of Juan
Maldonado’s collision?
A railroad crossing is [extrahazardous] when, because of surrounding
conditions, it is so dangerous that persons using ordinary care cannot pass
over it in safety without some warning other than the usual crossbuck sign.
On appeal, the Maldonados assert two grounds in support of their argument. First, the
Maldonados maintain the definition given to the jury by the trial court’s charge was improper due
to the inclusion of the phrase “because of surrounding conditions.” They contend it requires an
inherent defect at the crossing. Second, they argue the trial court erred in not instructing the jury
9
to consider prior accidents, near misses, and other evidence relating to the history and character of
the crossing in question in determining whether it was “extrahazardous.”
A. Standard of review
The trial court “shall submit such instructions and definitions as shall be proper to enable
the jury to render a verdict.” Tex. R. Civ. P. 277. “An instruction is proper if it (1) assists the jury,
(2) accurately states the law, and (3) finds support in the pleadings and evidence.” Transcon. Ins.
Co. v. Crump, 330 S.W.3d 211, 221 (Tex. 2010) (quoting Union Pac. R.R. Co. v. Williams, 85
S.W.3d 162, 166 (Tex. 2002)). We review a trial court’s decision whether to include a jury charge
definition under an abuse-of-discretion standard. King Fisher Marine Serv., L.P. v. Tamez, 443
S.W.3d 838, 842 (Tex. 2014). However, whether a definition used in the charge misstated the law
is a legal question which we review de novo. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 525
(Tex. 2002). If the charge is legally correct, the trial court “enjoys considerable discretion in
framing a jury charge and is given broad latitude to determine the propriety of explanatory
instructions and definitions.” Rhey v. Redic, 408 S.W.3d 440, 462 (Tex. App.—El Paso 2013,
no pet.); see also Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 664 (Tex. 1999).
We will not reverse a judgment for charge error “unless the error was harmful because it
probably caused the rendition of an improper verdict.” Crump, 330 S.W.3d at 225. Charge error is
“generally considered harmful if it relates to a contested, critical issue.” Id. (quoting Columbia Rio
Grande Healthcare, L.P. v. Hawley, 284 S.W.3d 851, 856 (Tex. 2009)). We examine the entire
record to determine whether an erroneous instruction or definition caused an improper judgment.
Id.
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B. Duty imposed on railroad companies
There is a general legal duty on railroad companies “to give adequate warning of
approaching trains, given whatever obstructions or other conditions exist.” Limmer, 299 S.W.3d at
92. Because “every railroad crossing is tinged with danger,” railroads must provide at least one
warning sign that is adequate to “give notice of the proximity of the railroad and warn persons of
the necessity of looking out for the cars.” Fitch v. Mo.-Kan.-Tex. Transp. Co., 441 F.2d 1, 2
(5th Cir. 1971). A crossbuck sign typically satisfies this duty for “an ordinary rural railroad
crossing.” Missouri Pac. R.R. Co. v. Cooper, 563 S.W.2d 233, 235 (Tex. 1978).
However, if a crossing is “extrahazardous” the railroad company must “take extra safety
measures to protect those using the crossing.” Fort Worth & Denver Ry. Co. v. Williams, 375
S.W.2d 279, 281 (Tex. 1964). “A railroad crossing is [extrahazardous] when, because of
surrounding conditions, it is so dangerous that persons using ordinary care cannot pass over it in
safety without some warning other than the usual [crossbuck] sign.” Cooper, 563 S.W.2d at 235.
Such extraordinary warnings may include, for example, “lights or signal bells to warn persons
approaching [the] crossing.” Fitch, 441 F.2d at 2.
An extrahazardous railroad crossing can be shown through either permanent or temporary
conditions, so its nature may vary from time to time. See Karr v. Panhandle & Santa Fe Ry. Co.,
262 S.W.2d 925, 930 (Tex. 1953). “The degree of danger depends on the circumstances existing at
the time of the accident.” Williams, 375 S.W.2d at 284. Whether a crossing is extrahazardous at
any particular time “depends on the facts of each case.” Id. at 283. “Factors that may be relevant
include visual obstructions like trees and buildings, the volume of train and vehicular traffic, the
angle of the intersection, the grade and curvature of the road leading to the crossing, and any
11
history of similar accidents at the crossing.” Union Pac. R.R. Co. v. Prado, 685 S.W.3d 848, 856–
57 (Tex. 2024) (collecting cases).
C. Preservation
We interpret the Maldonados’ complaint as asserting two arguments: (1) that the charge
erroneously defined “extrahazardous” by containing the phrase “because of surrounding
circumstances” when it was not the “central theory of liability raised by the pleadings and
evidence”; and (2) that the trial court erred by providing a charge that did not include the language,
“reasonably similar accidents,” for determining whether the subject crossing was extrahazardous.
To preserve charge error for review, a party must “point out distinctly the objectionable
matter and the grounds of the objection.” Tex. R. Civ. P. 274. “Any complaint as to a question,
definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless
specifically included in the objections.” Id. Rule 278 provides that in general, the failure to submit
a question, definition, or instruction to the jury “shall not be deemed a ground for reversal of the
judgment, unless its submission, in substantially correct wording, has been requested in writing
and tendered by the party complaining of the judgment.” Tex. R. Civ. P. 278. If a party fails to
lodge an objection to the jury charge that timely and plainly makes the trial court aware of the
complaint, error is not preserved, and the complaint is waived. Ford Motor Co. v. Ledesma, 242
S.W.3d 32, 43 (Tex. 2007). On appeal, the charge error complained of must comport with the
objections made at the charge conference. Cont’l Cas. Co. v. Baker, 355 S.W.3d 375, 383
(Tex. App.—Houston [1st Dist.] 2011, no. pet.).
Union Pacific asserts the Maldonados’ complaint is waived because the argument on appeal
does not comport with the argument made to the trial court. At trial, the Maldonados generally
objected and requested the trial court to “add a sentence.” It was not clear from their objection that
12
they had an issue with the current language of the charge. Because the Maldonados did not object
to the proposed definition or the phrase “because of surrounding conditions” at the charge
conference, this complaint is not preserved.
Moreover, the record does not contain any indication that the Maldonados tendered a
written submission related to their requested definition for the term, “extrahazardous.” Because
the Maldonados did not submit a proposed definition to the trial court at the charge conference,
we cannot conclude the trial court erred in failing to give the jury a definition of “extrahazardous”
that included the consideration of prior accidents and near misses. See Sears, Roebuck & Co. v.
Abell, 157 S.W.3d 886, 891 (Tex. App.—El Paso 2005, pet. denied) (“If the [jury charge] error is
the omission of an instruction relied on by the requesting party, three steps are required by the
Rules to preserve error: a proper instruction must be tendered in writing and requested prior to
submission; a specific objection must be made to the omission of the instruction; and the court
must make a ruling.”).
D. No error in the charge
Even if we address the merits of the Maldonados’ argument—that the evidence raised a
different legal theory requiring a different definition of “extrahazardous” and it refused to instruct
the jury that evidence of prior accidents and near misses could be considered in reaching that
finding—it did not err. In support of their argument, the Maldonados assert that Texas precedent
provides that “admissible evidence of prior, similar accidents is sufficient to establish that a
crossing is [extrahazardous] as a matter of law.” See Cooper, 563 S.W.2d at 236 (providing that
evidence of prior accidents at a railroad crossing, with a proper factual predicate, are proper
evidence to demonstrate a crossing was extrahazardous); Pyle v. S. Pac. Transp. Co., 774 S.W.2d
693, 695 (Tex. App.—Houston [1st Dist.] 1989, writ denied) (holding that the trial court erred in
13
excluding evidence of prior accidents when they occurred under reasonably similar circumstances
and they need not be identical); Missouri Pac. R.R. Co. v. Thomas, 579 S.W.2d 46, 49 (Tex. App.—
Beaumont 1979, writ ref’d n.r.e.) (holding evidence of prior accidents at the railroad crossing was
sufficient to establish the crossing was extrahazardous).
None of the Maldonados’ cited cases stand for a proposition that a trial court is required to
instruct a jury to consider evidence of prior accidents and near misses to properly instruct the jury
on the issue of an extrahazardous condition (or crossing). Here, the Maldonados do not allege the
trial court erred in excluding any evidence. In fact, the Maldonados recount the evidence they
offered, which the trial court admitted, showing that the John Conoly crossing had three prior
accidents and 11 “near misses” in the six months prior to the accident. The Maldonados argue that
the evidence they presented was sufficient to conclude that the crossing was “extrahazardous” and,
therefore, the trial court erred in failing to instruct the jury that they could actually consider prioraccident and near-misses evidence in determining whether the crossing was “extrahazardous.”2
The Maldonados argue that the trial court “only permitted” the jury to consider whether
the crossing had some inherent defect, like a blind curve or repeated episodes of fog, which is
contrary to Texas law. They contend that they offered, and the trial court admitted extensive
evidence at trial of prior accidents and near accidents. However, the Maldonados do not raise a
sufficiency of the evidence challenge. Rather, they assert the trial court should have instructed the
jury that they may consider such evidence when considering whether the crossing was
extrahazardous.
2
We additionally note that the Texas Supreme Court has held that “extra” instructions that comment on the weight of the evidence are error. See Lemos v. Montez, 680 S.W.2d 798, 801 (Tex. 1984) (“This court has treated addenda to the charge as impermissible comments that tilt or nudge the jury one way or the other.”). For this additional reason, we conclude the Maldonados’ proposed instruction commented on the weight of the evidence.
14
To impose a higher duty onto railroad companies to “take extra safety measures to protect
those using the crossing,” a plaintiff must show that a crossing is one where a prudent person
exercising ordinary care cannot safely use the crossing unless extraordinary warnings or
protections are provided. Williams, 375 S.W.2d at 281; Limmer, 299 S.W.3d at 92. Recently, the
Texas Supreme Court addressed the issue of whether a railroad crossing protected by a stop sign
and a crossbuck sign was extrahazardous. Prado, 685 S.W.3d at 853. In Prado, a driver was killed
when his pickup was struck by a Union Pacific train at a rural crossing on private property. Id. at
854. The crossing contained a red stop sign and crossbucks. Id. at 855. Although there was
evidence of prior accidents at the crossing, there was only one of similar circumstances—an
eastbound driver who failed to stop on a clear day, resulting in a fatality. Id. at 858, 861. The Court
reiterated that evidence of prior accidents is only relevant to the question of whether a crossing is
extrahazardous “if they occurred under similar but not necessarily identical circumstances”
(internal quotation marks omitted). Id. (quoting Cooper, 563 S.W.2d at 236). The Court concluded
that the evidence was insufficient to support a finding that the crossing was extrahazardous at the
time of the underlying accident. Id. at 858. The Court stated: “Evidence of one similar accident
over a nearly forty-year period on a crossing with a relatively high traffic volume is simply no
evidence that reasonably prudent drivers cannot safely traverse the crossing without warnings in
addition to the stop sign and crossbuck sign.” Id. at 861.
The Maldonados assert that Prado provided no controlling authority to the case because it
was issued on February 23, 2024, after trial had concluded. We disagree. Prado did not establish
new law. Instead, Prado summarized the history of Texas jurisprudence concerning extrahazardous
railroad crossings. Specifically, Prado stated: “Factors that may be relevant include visual
obstructions like trees and buildings, the volume of train and vehicular traffic, the angle of the
15
intersection, the grade and curvature of the road leading to the crossing, and any history of similar
accidents at the crossing.” See id. at 856–57 (citing Cooper, 563 S.W.2d at 236 (discussing
evidence of earlier accidents); Karr, 262 S.W.2d at 928–30 (discussing cases in which views of
the rail were “obscured” or “obstructed”); Galveston, H. & S.A. Ry. Co. v. Wells, 50 S.W.2d 247,
251 (Tex. 1932) (holding fact issue existed as to extrahazardous condition of crossing when
evidence showed it was frequently used, was obstructed “until a point about 20 or 30 feet of the
track is reached,” and trains traveled at a high rate of speed); Reid v. Texas & New Orleans Ry. Co.,
254 S.W.2d 164, 167 (Tex. App.—Galveston 1952, writ ref’d n.r.e.) (noting that evidence of
obscuring “brush, houses, and fence” was “irrelevant” because the road approaching the crossing
was straight and “traffic was very light”)).
Although Prado concerned an appeal from a summary judgment and did not address jury
charge error, it nonetheless provides guidance on what is required to establish a railroad crossing
is extrahazardous. Id. at 861. We conclude that the trial court’s instruction was not erroneous as it
tracked the recognized definition of an extrahazardous crossing. Because the jury charge contained
general instructions that instructed the jury to base its answers “only on evidence admitted in court”
and the trial court did not preclude the jury from considering any of the evidence on prior accidents,
we presume the jury followed the jury instructions. See Columbia Rio Grande Healthcare, L.P. v.
Hawley, 284 S.W.3d 851, 862 (Tex. 2009) (“The jury is presumed to have followed the court’s
instructions.”). Presuming the jury followed the jury instructions, it did consider the Maldonados’
evidence on prior accidents and near misses and still concluded the railroad crossing was not
extrahazardous.
16
Because we conclude that the trial court’s definition of extrahazardous was legally correct,
and the Maldonados have not shown that the trial court abused its discretion in denying its
requested surplus instruction, we overrule their second issue.
IV. CONCLUSION
We affirm.3
GINA M. PALAFOX, Justice
June 25, 2026
Before Salas Mendoza, C.J., Palafox, and Soto, JJ.
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We acknowledge the unusual posture of this case—that the trial court both granted a directed verdict finding the Maldonados’ inadequate warning claims were preempted by federal law while it also submitted a jury question on whether the crossing at issue was extrahazardous. As explained by the Texas Supreme Court, the purpose for finding a railroad crossing extrahazardous is to impose a higher duty upon railroad companies to provide additional and extraordinary warning devices. Prado, 685 S.W.3d at 856; Cooper, 563 S.W.2d at 235. Here, the Maldonados claimed that evidence of “prior accidents and near misses” made the John Conoly Crossing extrahazardous. Essentially, they argued that, due to similar, prior accidents and near misses, the crossbuck warning was inadequate under the circumstances. This legal theory simply restates an inadequate warning claim. State tort actions concerning a railroad’s failure to maintain adequate warning devices are preempted when federal funds have participated in those devices’ installation. Limmer, 299 S.W.3d at 80. Thus, the two issues before us are interwoven. As we have concluded, the Maldonados’ inadequate warning claims were federally preempted and should have never been given to the jury. Nevertheless, the trial court did submit a question to the jury asking whether the crossing was extrahazardous and we found no error in its instruction. Because we conclude the claims are interwoven, the trial court’s take nothing judgment can be upheld on either ground.
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