Supreme Court of Texas
                          ══════════
                           No. 21-0769
                          ══════════

                Angela Horton and Kevin Houser,
                             Petitioners,

                                  v.

          The Kansas City Southern Railway Company,
                            Respondent

   ═══════════════════════════════════════
              On Petition for Review from the
       Court of Appeals for the Fifth District of Texas
   ═══════════════════════════════════════

                     Argued January 31, 2023

      JUSTICE BOYD delivered the opinion of the Court.

      JUSTICE BUSBY filed a concurring opinion, in which Justice
Devine, Justice Blacklock, and Justice Young joined.

      Petitioners sued the Kansas City Southern Railway Company
(KC Southern) for the wrongful death of their mother, alleging KC
Southern negligently maintained a railroad crossing by raising the
crossing grade over time to form a “humped crossing” and by failing to
replace a missing yield sign. In response to a single broad-form
negligence question, the jury found both parties negligent and equally
responsible for causing the accident, and the trial court entered
judgment on the jury’s verdict. The court of appeals held that the
evidence supports a finding that the missing yield sign proximately
caused the accident, but that federal law preempts a negligence claim
based on the humped crossing. 

, 9, 10 (Tex. App.—Dallas
2021). Because the appellate court could not determine which of the two
allegations the jury relied on when it found KC Southern negligent, it
reversed and remanded for a new trial. 

. We disagree with the
court of appeals on both issues and hold: (1) federal law does not preempt
the humped-crossing claim, and (2) no evidence supports the jury’s
finding that the absence of the yield sign proximately caused the
accident. Based on these holdings, however, we agree with the court of
appeals that a new trial is required. We thus affirm the court of appeals’
judgment, but for different reasons.
                                 I.
                             Background
      A KC Southern train collided with Ladonna Sue Rigsby’s pickup
truck as she drove across a railroad track on a rural county road near
her home. The track had been there for over a century, and KC Southern
maintained it by lifting and adding materials under the rails and ties,
incrementally raising the track over the course of many years. This
created a “humped crossing,” with the mid-point rising around thirty
inches above the level road thirty feet away. No signal lights, bells, or
barrier gates protected the crossing, but “crossbuck” signs—white,
X-shaped signs reading “Railroad Crossing”—marked the tracks from
both directions. The posts holding those signs also previously included




                                    2
yield signs, but—for reasons no one could explain—the yield signs were
missing at the time of Rigsby’s accident.
      According to a video of the accident, recorded by a camera
installed on the train, Rigsby slowed her vehicle to around seven miles
per hour as she approached the track, and then to three or
three-and-a-half miles per hour as she began to ascend the hump.
Rigsby, who was deaf in her left ear, continued to cross the track as if
she never saw or heard the train approaching from her left. She did not
survive the collision.
      Rigsby’s adult children, Angela Horton and Kevin Houser
(together, Horton), sued KC Southern, alleging negligence based on the
humped crossing and missing yield sign. KC Southern filed a
summary-judgment motion, asserting, among other things, that federal
law preempts Horton’s claim. The trial court denied the motion, and KC
Southern filed a motion for reconsideration, arguing federal law at least
preempts Horton’s claim to the extent it is based on the humped
crossing. The trial court did not rule on that motion, and the case
proceeded to trial.
      The trial court submitted a single broad-form question to the jury,
asking whether the negligence of Rigsby or KC Southern proximately
caused the accident. KC Southern objected to the question, arguing the
court should submit two separate negligence questions—one based on
Horton’s   humped-crossing      allegation   and    the   other    on   the
missing-yield-sign allegation. The trial court overruled that objection.
The jury found both Rigsby and KC Southern negligently caused the
accident and assigned fifty percent of the responsibility to each. The trial




                                     3
court entered a final judgment based on the verdict, awarding Horton
$200,000 in damages.
      KC Southern appealed, and the court of appeals reversed, with
one justice dissenting. 666 S.W.3d at 4, 25. The court concluded the
evidence supports liability under the yield-sign allegation, but federal
law preempts the claim to the extent it is based on the humped-crossing
allegation. Id. at 14–15. Because the court could not “determine whether
the jury rested its liability determination on [Horton’s] preempted
humped crossing theory, which should not have been submitted, or the
missing yield sign theory,” it remanded the case for a new trial only on
the yield-sign allegation. Id. at 18. Horton and KC Southern both filed
petitions for review, which we granted.
                                  II.
                              Preemption
      We begin by addressing whether federal law preempts Horton’s
negligence claim based on the humped crossing.1 The United States
Constitution provides that federal law “shall be the supreme Law of the
Land; and the Judges in every State shall be bound thereby.” U.S.
CONST. art. VI, cl. 2. As a result, federal statutes may preempt state laws
and render them ineffective. Altria Grp., Inc. v. Good, 

(2008). They may do this expressly, by declaring that intent on the face
of the statute, Arizona v. United States, 

 (2012), or
impliedly, by demonstrating an intent to “occup[y] the field” or creating
an irreconcilable “conflict,” Cipollone v. Liggett Grp., Inc., 

,


      1  KC Southern no longer argues federal law preempts the negligence
claim to the extent it is based on the missing yield sign.




                                     4
516 (1992) (first quoting Pac. Gas & Elec. Co. v. State Energy Res.
Conservation & Dev. Comm’n, 

, (1983), and then
quoting Fid. Fed. Sav. & Loan Ass’n v. De la Cuesta, 

(1982)). KC Southern asserts—and the court of appeals agreed—that
provisions of the federal ICC Termination Act of 1995, Pub. L. No. 104-
88, 

 (1995) (codified at 49 U.S.C. §§ 10101–16106),
expressly and impliedly preempt Horton’s humped-crossing claim. We
disagree. To explain, we describe the ICCT Act and its relevant
provisions, the separate Federal Rail Safety Act and its relationship to
the ICCT Act, and other court decisions addressing preemption under
the ICCT Act before turning to our own preemption analysis.
A.    The ICCT Act
      Congress enacted the ICCT Act “to reform economic regulation of
transportation, and for other purposes.” 109 Stat. at 803. The Act
amended numerous federal statutes, including Subtitle IV of Title 49 of
the United States Code, which addresses and governs interstate
transportation. Id. at 803–04. Part A of Subtitle IV specifically
addresses rail transportation. 49 U.S.C. §§ 10101–11908. KC Southern’s
contention that the Act preempts Horton’s humped-crossing claim relies
on this part, which we refer to as the Rail Provisions.
      As part of its reform of “economic regulation of transportation,”
the ICCT Act abolished the Interstate Commerce Commission and
created a new federal agency called the Surface Transportation Board,
granting it “jurisdiction over transportation by rail carrier that
is . . . only by railroad” or, in some circumstances, “by railroad and
water.” 109 Stat. at 807; see 

(a)(1). More specifically,




                                    5
Section 10501(b) grants the Surface Transportation Board “exclusive”
jurisdiction over:
   (1) transportation by rail carriers, and the remedies provided
       in [the Rail Provisions] with respect to rates,
       classifications, rules (including car service, interchange,
       and other operating rules), practices, routes, services, and
       facilities of such carriers; and
   (2) the construction, acquisition, operation, abandonment, or
       discontinuance of spur, industrial, team, switching, or side
       tracks, or facilities, even if the tracks are located, or
       intended to be located, entirely in one State.

(b). Immediately following this jurisdictional grant,
the section includes a preemption clause: “Except as otherwise provided
in [the Rail Provisions], the remedies provided under [the Rail
Provisions] with respect to regulation of rail transportation are exclusive
and preempt the remedies provided under Federal or State law.” 

(emphasis added).
       The Act defines the term “rail carrier” to mean “a person
providing common carrier railroad transportation for compensation.” 

§ 10102(5). And it defines the term “transportation” to include a “facility,
instrumentality, or equipment of any kind related to the movement of
passengers or property, or both, by rail,” and “services related to that
movement.” Id. § 10102(9). The parties here do not dispute that KC
Southern is a “rail carrier” and that its tracks and crossings qualify as
“facilities” or “equipment,” and thus “transportation.”2


       2  The Second Circuit has held that rail crossings do not qualify as a
“facility” under the Act, see Island Park, LLC v. CSX Transp., 

, 103
n.9 (2d Cir. 2009), and the Fifth Circuit has expressed similar skepticism, see
Franks Inv. Co. v. Union Pac. R.R. Co., 

 (5th Cir. 2010). In




                                      6
B.     The Federal Rail Safety Act
       The ICCT Act is not the only federal statute that addresses rail
transportation. The Federal Rail Safety Act (the Safety Act) created a
separate statute contained within Subtitle V of Title 49 of the United
States Code. See 

 §§ 20101–21311. The Safety Act directly addresses
rail-safety concerns, as its express purpose “is to promote safety in every
area of railroad operations and reduce railroad-related accidents and
incidents.” Id. § 20101. The Safety Act delegates rail-safety regulation
to the federal Secretary of Transportation, not to the Surface
Transportation Board. Id. § 20103. Because Horton alleges the humped
crossing created safety issues, the Safety Act complicates the question
of whether the ICCT Act preempts Horton’s common-law negligence
claim, particularly because the Safety Act contains its own preemption
provisions that explicitly address common-law claims concerning safety
issues.
       The Safety Act’s preemption provisions permit states to adopt
their own regulations governing rail safety, but only if the state
regulation is “not incompatible with” federal regulations and “does not
unreasonably burden interstate commerce.” Id. § 20106(a)(2); see CSX
Transp., Inc. v. Easterwood, 

 (1993) (holding federal



this case, the dissenting opinion in the court of appeals expressed a similar
concern that a broad construction of the term “facility” could preclude any state
regulatory authority over any movement—by vehicles, bicycles, or
pedestrians—over a rail crossing. 666 S.W.3d at 20 n.2 (Carlyle, J., dissenting).
Because the parties here do not raise the issue, we assume without deciding
that the Rail Provisions reach rail crossings, although that assumption does
not affect our conclusions regarding the types of state laws Section 10501(b)
preempts.




                                       7
regulations adopted under the Safety Act preempt state-law regulations
“if the federal regulations substantially subsume the subject matter of
the relevant state law”). In 2002, however, Congress amended the Safety
Act to “clarify” that nothing in Section 20106 “shall be construed to
preempt an action under State law seeking damages for personal injury,
death, or property damage” if the action alleges that a party (a) “failed
to comply with the Federal standard of care established by a regulation
or order issued by the Secretary of Transportation,” (b) “failed to comply
with its own plan, rule, or standard that it created pursuant to a
regulation or order issued by” the Secretary, or (c) “failed to comply with
a State law, regulation, or order that is not incompatible with subsection
(a)(2).” 

(b). As a result, federal rail-safety regulations
can provide the “standard of care by which a defendant’s actions are
judged for negligence.” Gallo v. Union Pac. R.R. Co., 

 (W.D. Tex. 2019) (addressing cases). In the absence of a federal
safety regulation covering the subject matter at issue, the Safety Act has
no preemptive effect. 

 (citing Easterwood, 

).
      Addressing the relationship between the Safety Act and the ICCT
Act, courts have generally agreed that “the federal statutory scheme
places principal federal regulatory authority for rail safety with the
Federal Railroad Administration . . . not the [Surface Transportation
Board]” and thus the Safety Act “provides the appropriate basis for
analyzing whether a state law, regulation or order affecting rail safety
is pre-empted by federal law.” Island Park, 

; see BNSF
Ry. Co. v. Hiett, 

, 1195–96 (10th Cir.), cert. denied sub
nom. City of Edmond v. BNSF Ry. Co., 

 (2022). As the




                                    8
Sixth Circuit explained, the Federal Railroad Administration’s and the
Surface Transportation Board’s “complementary exercise of their
statutory authority accurately reflects Congress’s intent for the [ICCT
Act] and [the Safety Act] to be construed in pari materia,” granting the
Federal Railroad Administration “primary authority over rail safety
matters” and subjecting state laws related to rail safety to “preemption
analysis under the Safety Act,” not under the ICCT Act. Tyrrell v.
Norfolk S. Ry. Co., 

 (6th Cir. 2001). Moreover, the
Safety Act specifically addresses safety issues affecting “grade crossings
and railroad rights of way,” which it expressly refers to as “the railroad
grade crossing problem.” Iowa, Chi. & E. R.R. Corp. v. Washington
County, 

 (8th Cir. 2004) (quoting 

(a)).
As a result, the Safety Act, rather than the ICCT Act, appears to be the
primary authority governing federal preemption of state-law claims
addressing rail safety, and particularly the safety of railroad crossings.
      But the Safety Act and the ICCT Act have a “complicated”
relationship, particularly “when a state action or common law claim falls
at the intersection of [the ICCT Act’s] realm of economic regulation and
the [Safety Act]’s realm of safety regulation.” Ezell v. Kan. City S. Ry.
Co., 

, 300 n.6 (5th Cir. 2017). The Surface Transportation
Board has suggested that “the overwhelming weight of precedent holds
that safety issues are generally governed by [the Safety Act]
preemption.” Jimmy Lee Waneck & Starr Swearingen Waneck, et al.-
Petition for Declaratory Order, FD 36167, 

, at *4
(S.T.B. Oct. 31, 2018). Although “there can be rare cases when both the




                                    9
Safety Act and [the ICCT Act] preemption may apply,” such cases do not
include allegations of unsafe conditions at a railroad crossing.
       KC Southern does not contend the Safety Act preempts Horton’s
humped-crossing negligence claim but instead asserts that the final
sentence of Section 10501(b) of the ICCT Act expressly preempts
Horton’s claim because it would regulate KC Southern’s construction,
repair, and maintenance of the humped crossing. And in the event it
does not, KC Southern contends the Rail Provisions impliedly preempt
such claims. We must thus consider whether these facts provide one of
the circumstances under which the ICCT Act may have a preemptive
effect over a state-law rail-safety claim.
C.     Precedent
       We are not the first to consider this thorny question. Numerous
courts have addressed the scope of preemption under Section 10501(b)
and have reached varying conclusions. Many have addressed the
question of whether the section preempts state and local legislative
enactments—particularly statutes, regulations, and ordinances—as
opposed to state common-law claims like the negligence claim at issue
in this case. Most of these have concluded Section 10501(b) expressly or
“completely”3 preempts state and local legislation that attempts to

       3Many federal courts have analyzed preemption under Section 10501(b)
to determine their jurisdiction under the federal removal statute. Under the
“complete preemption doctrine,” a state-law claim arises under federal law and
can be removed to federal court if a federal statute wholly displaces the
state-law claim. See Beneficial Nat’l Bank v. Anderson, 

 (2003).
Although complete preemption and express preemption are not identical
concepts, they are sufficiently similar to each other—and sufficiently distinct
from implied (or “as-applied”) preemption—to render the complete preemption
cases helpful guidance in this case.




                                      10
“regulate,” “manage,” “govern,” or “restrain” a rail carrier’s “operations,”
or at least its operations “in the economic realm.”4 Conversely, others
have held Section 10501(b) does not expressly preempt state and local
legislation that does not attempt to “regulate” or “interfere with” a rail
carrier’s operations.5


       4 See, e.g., Hiett, 

 (holding Section 10501(b) expressly
preempted a state statute regulating trains blocking track crossings because
the statute “regulates railroad operations”); Tex. Cent. Bus. Lines Corp. v. City
of Midlothian, 

 (5th Cir. 2012) (holding Section 10501(b)
expressly preempted a city ordinance that prevented a rail carrier from
expanding transloading operations because the ordinance dictated
“construction design and layout of railroad tracks” and thus “would frustrate
[the carrier’s] economic decision making”); Elam v. Kan. City S. Ry. Co., 

 (5th Cir. 2011) (holding Section 10501(b) expressly and
completely preempted a state statute regulating trains blocking track
crossings because the statute “is a direct attempt to manage [the rail carrier’s]
decisions in the economic realm”); Green Mountain R.R. v. Vermont, 

, 643 (2d Cir. 2005) (holding Section 10501(b) expressly preempted a state
environmental-land-use statute requiring a pre-construction permit for a
transloading facility because the statute restrained a rail carrier from
developing its land); see also State v. CSX Transp., Inc., 

(Ohio 2022) (holding Section 10501(b) expressly preempted a state statute
regulating trains blocking track crossings because the statute regulates,
manages, and governs rail traffic), petition for cert. filed, 

(U.S. Nov. 10, 2022) (No. 22-459); A & W Props., Inc. v. Kan. City S. Ry. Co.,

 (Tex. App.—Dallas 2006, pet. denied) (holding Section
10501(b) expressly preempted a landowner’s suit to enforce a rail carrier’s
alleged statutory obligation to widen a bridge and culvert to prevent flooding
of the landowners’ land because the statute would regulate rail operations);
Burlington N. & Santa Fe Ry. Co. v. City of Houston, 

, 248–49
(Tex. App.—Houston [14th Dist.] 2005, no pet.) (holding Section 10501(b)
preempted a state statute limiting a rail carrier’s condemnation power and
preempted a state paramount-purpose doctrine because they prevented the
rail carrier from constructing and operating a rail line the Surface
Transportation Board had approved).
       5 See, e.g., Island Park, 559 F.3d at 103–04 (holding Section 10501(b)
did not expressly preempt a state agency order requiring a rail carrier to close




                                       11
       Several courts have also addressed Section 10501(b)’s preemptive
effect on common-law claims, including claims for negligence,6 trespass,
nuisance, and even inverse condemnation. Some have held that Section
10501(b)     expressly    preempted       such    common-law        claims—which
complained of noise and vibrations from a rail carrier’s operations or of
a train’s speed, length, scheduling, use of side tracks, and extended



a private rail crossing because the order did not interfere with the carrier’s
operations); New Orleans & Gulf Coast Ry. Co. v. Barrois, 

, 332–33
(5th Cir. 2008) (holding Section 10501(b) did not completely preempt a state
law governing landowners’ access across rail lines because local crossing
disputes typically do not regulate carriers); Iowa, Chi. & E. R.R. Corp., 384
F.3d at 561–62 (holding Section 10501(b) did not expressly preempt a state
statute requiring rail carriers to construct and maintain safe bridges and
crossings, at least absent evidence that the carrier obtains federal funding for
such projects); Fla. E. Coast Ry. Co. v. City of West Palm Beach, 

 (11th Cir. 2001) (holding Section 10501(b) did not preempt a city
zoning and licensing ordinance as applied to an aggregate company leasing
land from a rail carrier because application “does not constitute ‘regulation of
rail transportation’”).
       6    Courts have employed a different analysis when addressing
negligence per se claims based on a rail carrier’s alleged violation of a statute,
regulation, or ordinance, usually holding Section 10501(b) preempts such
claims when they are “based solely on [a] preempted state statute.” Elam, 

; see Ezell, 866 F.3d at 299–301 (holding Section 10501(b) expressly
preempted a negligence per se claim alleging violation of an anti-blocking
statute); R.R. Ventures, Inc. v. Surface Transp. Bd., 

, 563 (6th Cir.
2002) (“Congress intended to preempt the Ohio state statutes, and any claims
arising therefrom, to the extent that they intrude upon the [Surface
Transportation Board’s] exclusive jurisdiction over ‘transportation by rail
carriers’. . . .”); Friberg v. Kan. City S. Ry. Co., 

 (5th Cir. 2001)
(holding Section 10501(b) preempted a negligence per se claim based on alleged
violations of a state anti-blocking statute because “regulation of KCS train
operations, as well as the construction and operation of the KCS side tracks, is
under the exclusive jurisdiction of the [Surface Transportation Board] unless
some other provision in the [ICCT Act] provides otherwise”). We need not and
do not address preemption of such negligence per se claims in this case.




                                         12
blocking of crossings—because such claims (like the state and local
legislation discussed above) sought to regulate, manage, or govern a rail
carrier’s operations or rail transportation.7
       Other courts, however, have held that Section 10501(b) does not
expressly preempt common-law claims, for various reasons. Some
concluded the rail carrier’s allegedly negligent conduct was not the type
of “transportation”-related conduct the Rail Provisions address and for
which they provide remedies that carry preemptive power under




       7   See, e.g., Ezell, 866 F.3d at 299–300 (holding Section 10501(b)
expressly preempted a negligence claim based on a train’s blocking of a
crossing because the claim would “economically regulate [the carrier’s]
switching operations” (quoting Elam, 

)); Tubbs v. Surface
Transp. Bd., 

, 1145–46 (8th Cir. 2015) (holding Section 10501(b)
expressly preempted a landowners’ common-law claims for trespass, nuisance,
negligence, inverse condemnation, and statutory trespass, alleging a rail
carrier built embankments that caused flooding on the landowner’s land,
because the claims “would unreasonably burden or interfere with rail
transportation”); Franks, 

 (stating Section 10501(b) would
expressly preempt “a tort suit that attempts to mandate when trains can use
tracks and stop on them” because the suit would “attempt[] to manage or
govern rail transportation in a direct way”); Friberg, 

 (holding
Section 10501(b) expressly preempts common-law claims seeking to impose
liability for “a railroad’s economic decisions such as those pertaining to train
length, speed or scheduling”); Rushing v. Kan. City S. Ry. Co., 

 (S.D. Miss. 2001) (holding Section 10501(b) expressly preempted
common-law nuisance and negligence claims complaining of a rail carrier’s
annoying switch-yard operations); Guckenberg v. Wis. Cent. Ltd., 

 (E.D. Wis. 2001) (holding Section 10501(b) expressly preempted a
common-law nuisance claim complaining of a rail carrier’s use of a side track
because the claim would effectively regulate the carrier’s operations); A & W
Props., 

 (holding Section 10501(b) expressly preempted a
landowner’s common-law nuisance, trespass, and negligence claims seeking to
force a rail carrier to widen a bridge and culvert to prevent flooding of the
landowners’ land because the claims would regulate the carrier’s operations).




                                      13
Section 10501(b).8 Others focused on the idea that an adverse judgment
on a common-law claim would not necessarily require the carrier to alter
its operations, see Elam, 635 F.3d at 813–14, or observed that a common-
law claim seeking only compensatory damages does not attempt to
“manage” or “govern” operations, even in the “economic realm,” id. at
813.9 And several concluded that common-law claims, by their nature,
do not “directly” address rail-carrier operations and instead have only
an “incidental” effect on rail transportation. See, e.g., id. (citing Franks,

).



       8  See, e.g., Emerson v. Kan. City S. Ry. Co., 

 (10th
Cir. 2007) (holding Section 10501(b) did not expressly preempt claims for
trespass, unjust enrichment, nuisance, and negligence based on a rail carrier’s
alleged dumping of used railroad ties and vegetation in a drainage culvert,
causing flooding to the plaintiffs’ land, because “these acts or omissions are not
‘transportation’ under § 10102(9)”); Rushing, 

 (holding
although Section 10501(b) expressly preempted negligence and nuisance
claims complaining of noise and vibrations caused by a carrier’s rail-yard
operations, it did not preempt such claims complaining that a carrier’s
construction of a berm to minimize rail-yard noise resulted in flooding the
plaintiff’s property because the carrier’s “design/construction of the berm does
not directly relate to the manner in which the Defendant conducts its switching
activities”).
       9 See Elam, 

 (holding Section 10501(b) did not expressly
preempt a negligent-failure-to-warm claim by a driver who drove into the side
of a stopped train because a “typical negligence claim seeking damages for a
typical crossing accident (such as the Elams’ simple negligence claim) does not
directly attempt to manage or govern a railroad’s decisions in the economic
realm”); Rushing, 

 (holding Section 10501(b) did not
expressly preempt negligence and nuisance claims complaining that a carrier’s
construction of a berm to minimize rail-yard noise resulted in flooding the
plaintiffs’ property because “an order by the Court directing the Defendant to
compensate and correct drainage problems resulting from the construction of
the berm would not implicate the type of economic regulation Congress was
attempting to prescribe when it enacted the [ICCT Act]”).




                                       14
       The Fifth Circuit focused on this direct-versus-incidental
distinction in Franks, holding that Section 10501(b) did not expressly
preempt a landowner’s claim seeking to enforce a covenant in an
easement deed to prevent a rail carrier from removing a track crossing
on the landowner’s land, explaining that the claim was “governed by
Louisiana property laws and rules of civil procedure that have nothing
to do with railroad crossings. Railroads are only affected when the
[easement] happens to cross a railroad.” 

. The same court
later applied that distinction to conclude the ICCT Act did not expressly
preempt a negligent-failure-to-warn claim, explaining that, “[l]ike state
property laws and rules of civil procedure that generally ‘have nothing
to do with railroad crossings,’ the effects of state negligence law on rail
operations are merely incidental.” Elam, 

 (quoting
Franks, 

). As a Texas federal district court explained
when applying this Fifth Circuit approach, although tort claims may
“affect the management or governance of railroads if the railroad
company is the tortfeasor, these claims arise under state common law
and are not intended to regulate railroad transportation even if they
may incidentally affect it.” Gallo, 

.10
       Two other federal district courts within the Fifth Circuit,
however, have addressed “humped crossing” negligence claims like the
one at issue here, and both concluded that Section 10501(b) expressly


       10See Battley v. Great W. Cas. Ins. Co., No. CIV.A. 14-494-JJB, 

, at *4–5 (M.D. La. Mar. 18, 2015) (“[T]he plaintiffs’ negligence
claim [does not] challenge [the carrier’s] general operating procedures,” and a
“judgment for the plaintiffs based on the circumstances presented in this case
would have only an incidental and limited effect on rail transportation.”).




                                      15
preempted such claims. Addressing claims by those injured and killed
when a train struck a tour bus that got stuck on a humped crossing, a
federal district court in Mississippi reasoned that the plaintiffs’
negligent-maintenance claims were “tantamount to a claim regarding
the design and construction of the crossing” and thus “directly attempt
to manage or govern a railroad’s decisions in the economic realm such
as the construction and operation of tracks.” Waneck v. CSX Corp., No.
1:17CV106-HSO-JCG, 

, at *5 (S.D. Miss. Mar. 29,
2018). Addressing similar claims arising from a similar train–bus
collision, a Texas federal district court reasoned that an adverse
judgment would require “changes in design and construction of railroad
tracks and crossings” and thus “have the effect of managing or governing
rail transportation in the economic realm.” Voight v. CSX Transp., Inc.,
No. 3:17-CV-01018-N, slip op. at 7, 9 (N.D. Tex. June 19, 2017).
      A federal district court in Kentucky, however, expressly rejected
the reasoning in Voight and Waneck, concluding that both “cases are
inconsistent with Sixth Circuit and Supreme Court law on complete
preemption.” Minton v. Paducah & Louisville Ry., Inc., 

, 383 (W.D. Ky. 2019). And the Surface Transportation Board itself
rejected their reasoning in response to requests for administrative
rulings from the parties involved in Waneck. See Waneck, 

, at *4. According to the Board, the question of federal
preemption of these types of humped-crossing claims “should be
governed by the preemption provisions of the Federal Railway Safety
Act . . . and not by 

(b).” Id. at *1. Expressly rejecting
the courts’ holdings in Voight and Waneck, the Board opined that the




                                   16
plaintiffs’ negligent-maintenance claims based on humped crossings
“appear to be focused on purely safety-related issues” and thus “are not
in direct conflict with the Board’s exclusive jurisdiction over
transportation that is part of the interstate rail network.” Id. at *7.
       Having described the ICCT Act’s relevant provisions and its
complex relationship with the Safety Act, as well as the broad array of
precedent considering this question, we now turn to the question of
whether Section 10501(b) expressly or impliedly preempts Horton’s
humped-crossing claim. We agree with KC Southern that federal law
can expressly preempt common-law negligence claims in some
circumstances,11 but we hold that the ICCT Act does not expressly




       11  It is well-established that federal law can preempt a state
common-law negligence claim. See Cont’l Airlines, Inc. v. Kiefer, 

 (Tex. 1996); see also Easterwood, 

; Ezell, 

. But courts have applied presumptions both for and against federal
preemption of state laws—particularly state common-law claims like
negligence—that are relevant here. Courts presume, for example, that federal
law does not preempt “the historic police powers of the State . . . unless that
was the clear and manifest purpose of Congress” and that presumption
“applies with particular force when Congress legislates in a field traditionally
occupied by the states.” Altria, 

 (quoting Rice v. Santa Fe
Elevator Corp., 

 (1947)). And as the Supreme Court noted
long ago, “[t]he care of [railroad] grade crossings is peculiarly within the police
power of the states.” Lehigh Valley R. Co. v. Bd. Of Pub. Util. Comm’rs, 

 (1928). This presumption “is nowhere stronger than under
circumstances in which a state is exercising” authority “in matters involving
their citizens’ public health and safety” because states have traditionally
“exercised primary authority” in such matters. Great Dane Trailers, Inc. v. Est.
of Wells, 

 (Tex. 2001) (first citing Medtronic, Inc. v. Lohr,

 (1996), and then citing Hillsborough County v. Automated
Med. Labs., Inc., 

, 718–19 (1985)). Because common-law
negligence claims “involve the state’s power to regulate health and safety




                                        17
preempt Horton’s humped-crossing claim. We reach this conclusion
based on the ICCT Act’s clear language, which much of the precedent
has underemphasized.
D.     Express Preemption
       It is clear that Section 10501(b) expressly “preempts” something,
but we must focus on the statute’s language to determine the scope of
that preemption. “Where, as in this case, Congress has superseded state
legislation by statute, our task is to ‘identify the domain expressly
pre-empted.’ To do so, we focus first on the statutory language, ‘which
necessarily contains the best evidence of Congress’ pre-emptive intent.’”
Dan’s City Used Cars, Inc. v. Pelkey, 

 (2013) (first
quoting Lorillard Tobacco Co. v. Reilly, 

 (2001), and
then quoting Easterwood, 

).
       As noted, Section 10501(b) states that “the remedies provided”
under the Rail Provisions “with respect to regulation of rail


matters,” overcoming the presumption against preemption of a negligence
claim presents a “difficult burden.” 

        On the other hand, the presumption against preemption applies with
less force when the federal statute addresses a field in which the federal
government has historically been significantly involved, as is true for railroad
regulation. Elam, 635 F.3d at 803–04. Congress and federal courts have long
recognized a need for federal regulation of railroad operations. City of Auburn
v. United States, 

 (9th Cir. 1998). These considerations
make the usual presumption against preemption somewhat hazy in the context
of this case. But we are guided here by our previous recognition that, “while a
federal requirement would ordinarily not preempt general state common law
requirements such as a duty of care or a duty to warn in the abstract, a federal
requirement would preempt a particularized application of such duties that
imposed a specific ‘standard of care or behavior’ different or in addition to the
federal requirement.” Worthy v. Collagen Corp., 

 (Tex.
1998) (quoting Medtronic, 518 U.S. at 504–05 (Breyer, J., concurring)).




                                       18
transportation” are “exclusive and preempt” the “remedies” provided
under state law. 

(b). In a statement other courts have
often quoted, one federal district court suggested that it “is difficult to
imagine a broader statement of Congress’s intent to preempt state
regulatory authority over railroad operations.” CSX Transp., Inc. v. Ga.
Pub. Serv. Comm’n, 

 (N.D. Ga. 1996). We agree
with the Eleventh Circuit, however, that “[a]lthough this subsection on
its surface seems to provide for broad pre-emption, the text contains
limitations on the reach of pre-emption.” West Palm Beach, 

. Specifically, the section grants preemptive power only to the
“remedies” provided in the Rail Provisions “with respect to regulation of
rail transportation.” 

(b). To determine the scope of
preemption, we must explore the section’s references to “remedies,”
“with respect to,” and “regulation” of rail transportation.
       1. “Remedies”
       Section 10501(b)’s preemption clause uses “remedies” twice—first
to describe what has preemptive power (remedies “provided under [the
Rail Provisions] with respect to regulation of rail transportation”), and
then to describe what is preempted (remedies “provided under Federal
or State law”). 

 Thus, per the clause’s explicit text, the “remedies” that
preempt state law are those provided in the Rail Provisions. The Rail
Provisions provide “remedies” in Sections 11701 through 11708,
including the recovery of “damages sustained by a person as a result of
an act or omission of” a rail carrier “in violation of” the Rail Provisions.

 § 11704(b). A person who sustains such damages as a result of a
violation may assert a claim for those damages before the Surface




                                     19
Transportation Board and through a civil action to enforce the Board’s
order. Id. § 11704(c)(1)–(2), (d)(1)–(2).
       Relying primarily on the ICCT Act’s purpose and legislative
history, some courts have concluded that the Rail Provisions’ remedies
address only economic regulation of rail transportation. See, e.g., Elam,

 (relying on legislative history to “observe Congress was
particularly concerned about state economic regulation of railroads
when it enacted the [ICCT Act]”). Based on this conclusion, they have
construed Section 10501(b) to grant preemptive power to (and against)
only “laws (and remedies based on such laws) that directly attempt to
manage or govern a railroad’s decisions in the economic realm.” 

 (emphasis added).12 Other courts have disagreed, see, e.g., N.Y.
Susquehanna & W. Ry. Corp. v. Jackson, 

 (3d Cir.
2007) (“[The ICCT Act] does not preempt only explicit economic
regulation.”), as has the Surface Transportation Board, see CSX
Transp., Inc.—Petition for Declaratory Order, 

, 

, at *7−8 (S.T.B. Mar. 14, 2005) (concluding
that Section 10501’s preemption scope “is broader than just direct
economic regulation of railroads” and that states and municipalities
“cannot take an action that would have the effect of foreclosing or unduly
restricting a railroad’s ability to conduct its operations”).



       12Although the Elam court acknowledged that the “preemptive effect of
§ 10501(b) may not be limited to state economic regulation,” it nevertheless
concluded that because “economic regulation is at the core of [the ICCT Act]
preemption,” it expressly and completely preempts only state laws that
“directly attempt to manage or govern a railroad’s decisions in
the economic realm.” Elam, 635 F.3d at 806–07.




                                     20
       Based on the ICCT Act’s text, we also disagree. The Act’s
introduction states that its purpose is “to reform economic regulation of
transportation, and for other purposes,” 109 Stat. at 803 (emphasis
added), and we find nothing in its text that strictly limits its remedies
to address only violations of “economic” regulations. Yet we note that, as
even the Board has suggested, characterizing the ICCT Act as
regulating “economic” operations can provide a helpful label for
distinguishing between the ICCT Act and the Safety Act, which
generally governs rail-safety issues, along with their respective
preemption provisions. See Waneck, 

, at *4 (agreeing
that “safety issues are generally governed by [the Safety Act]
preemption” but concluding “there can be rare cases when both [the
Safety Act] and [the ICCT Act] preemption may apply”). In other words,
whether we label13 the ICCT Act’s regulatory scope as “economic” or
merely “non-safety operational-related,” as the Board has labeled it,14
the important point is that the two Acts generally address different
regulatory scopes, although they may overlap.



       13As the Second Circuit has explained, labels distinguishing between
“economic” and other types of regulation, such as “environmental” regulation,
are not particularly “useful” in this context because various types of regulation
can and often do overlap. Green Mountain, 404 F.3d at 644–45 (explaining how
a regulation labeled as “environmental” can “in fact amount to ‘economic
regulation’ when it prevents a carrier from conducting economic activities”
(quoting City of Auburn, 

)).
       14 Waneck, 

, at *7 (agreeing it can be “difficult for
courts and the Board to draw the line between safety-related claims (subject to
[the Safety Act] preemption) and non-safety operational-related claims
(subject to [the ICCT Act] preemption)” (citing Griffioen v. Cedar Rapids &
Iowa City Ry. Co., 

 (Iowa 2018))).




                                       21
       These observations about the remedies the Rail Provisions
provide (in contrast to those the Safety Act provides) matter here
because the types of state-law “remedies” Section 10501(b) preempts are
the same types of federal-law remedies the Rail Provisions provide.
Although the sentence does not expressly limit its reference to
state-provided remedies to those “with respect to regulation of rail
transportation,” the sentence clearly imposes that limitation. See, e.g.,
Franks, 

 (explaining that the preempted state-law
“remedies receive their meaning from the earlier part of the sentence”).
We thus conclude that Section 10501(b) grants preemptive power only
to remedies provided in the Rail Provisions “with respect to regulation
of rail transportation,” and those remedies only preempt state-law
remedies “with respect to regulation of rail transportation.” We thus
turn to the meaning of that limitation.
       2. “With respect to regulation”
       Consistent with the jurisdiction the ICCT Act grants exclusively
to the Surface Transportation Board, the Rail Provisions address a rail
carrier’s “rates, classifications, rules . . . practices, routes, services, and
facilities” and the “construction, acquisition, operation, abandonment,
or discontinuance of” its tracks and facilities. 

(b); see
Franks, 

 (addressing the Act’s exclusive remedies);
Jackson, 

 (same). Section 10501(b), however, does not
grant preemptive power to or against all laws that merely affect these
types of activities, but instead grants such power only to and against
remedies provided “with respect to regulation” of such activities.
       Rather than encompassing any law that might indirectly touch
on the relevant subject matter, the phrase “with respect to” limits the



                                      22
clause’s preemptive effect so that it includes only those remedies that
directly “concern” or “involve” the matter the clause describes. Dan’s
City, 569 U.S. at 261–62.15 And the matter the clause describes—
“regulation     of     rail    transportation”—further         narrows       its
preemptive scope. Section 10501(b) does not preempt “all state laws”16
or even all state-law remedies “with respect to rail transportation.”
Instead, it preempts state-law remedies with respect to “regulation of”
rail transportation. 

(b). The inclusion of the word
“regulation” within the description of the section’s preemptive scope
“necessarily means something qualitatively different from remedies
‘with respect to rail transportation.’” West Palm Beach, 

.
       Both the Supreme Court and this Court have recognized the
narrow scope of a statutory reference to laws that “regulate” a subject
matter. Concluding that an insured’s common-law claims against an
insurance carrier for breach of contract, breach of fiduciary duty, and


       15See also Consumer Data Indus. Ass’n v. Frey, 

 (1st Cir.
2022) (holding a statute that preempted state laws “with respect to” a subject
intentionally narrowed the scope of preemption to those laws that directly
concern the subject matter), cert. denied, 

 (2023); Galper v. JP
Morgan Chase Bank, N.A., 

 (2d Cir. 2015) (same).
       16 As the Eleventh Circuit has noted, see West Palm Beach, 

, Section 11321 of the same chapter provides a helpful contrast. See 

(a). There, the statute expressly provides that a rail carrier is
exempt from “all other law, including State and municipal law,” as necessary
to permit the carrier to participate in a corporate consolidation, merger, or
acquisition the Surface Transportation Board has approved. 

 (emphasis
added). As the Supreme Court has recognized, this language “is clear, broad,
and unqualified.” Norfolk & W. Ry. Co. v. Am. Train Dispatchers Ass’n, 

 (1991). Section 10501(b), by contrast, does not preempt “all other
law,” but only state remedies “with respect to the regulation of rail
transportation.”




                                      23
fraud did not “regulate insurance,” the Supreme Court explained that a
“common-sense view of the word ‘regulates’ would lead to the conclusion
that in order to regulate insurance, a law must not just have an impact
on the insurance industry, but must be specifically directed toward that
industry.” Pilot Life Ins. Co. v. Dedeaux, 

 (1987)
(emphasis added).17 And applying that same “common-sense view,” we
held that Texas laws that empower state-agency executives to discipline
licensees for violations of other laws that “regulate” abortions are not
themselves laws that regulate abortions because such laws are not
“specifically directed toward” that subject. Whole Woman’s Health v.
Jackson, 

, 578 (Tex. 2022). Similarly, as discussed above,
the Fifth Circuit has held that Section 10501(b) expressly preempts
state “laws that have the effect of managing or governing rail
transportation.” Franks, 

 (emphasis added).
       Under this “common-sense view,” a state statute that restricts the
amount of time a train may block a crossing “regulates” rail
transportation because the statute “homes in on ‘railroad compan[ies]’”
and “has no application” at all “except with respect to the operation of
railroads at rail crossings.” Elam, 

 (quoting MISS.
CODE § 77–9–235). But general laws that are not specifically directed
toward rail transportation, such as general state property laws, “are not
meant to regulate railroad transportation, though at times they may
have an incidental effect on railroad transportation.” Franks, 593 F.3d

       17See also Ky. Ass’n of Health Plans, Inc. v. Miller, 

(2003); Rush Prudential HMO, Inc. v. Moran, 

, 365–66 (2002);
UNUM Life Ins. Co. of Am. v. Ward, 

 (1999); FMC Corp. v.
Holliday, 

 (1990).




                                     24
at 411. The same is true of “standard building, fire, and electrical codes,”
which do not specifically “target[] the railroad industry,” Jackson, 

, and even common-law contract laws, which enforce
“[v]oluntary agreements between parties” and “are not presumptively
regulatory acts,” PCS Phosphate Co. v. Norfolk S. Corp., 

 (4th Cir. 2009). In the same way, a common-law negligence claim
does not ordinarily “regulate” rail transportation because it is not
specifically directed toward rail transportation and only incidentally
affects rail transportation when the alleged tortfeasor happens to be a
rail carrier.
       As we have previously recognized, although “the term ‘law’ can
include both common law and statutory law” and “jury awards can have
an effect akin to regulation,” generally, such a “regulatory effect is not
as direct as that of positive enactments,” and thus a federal law that
preempted state “laws and regulations” did not preempt state
common-law claims. Moore v. Brunswick Bowling & Billiards Corp., 

, 249–50 (Tex. 1994) (holding the Federal Boat Safety
Act did not preempt a “state law tort claim that a boat was defective
because it lacked a propeller guard”).18

       18 We are aware, of course, of the Supreme Court’s observations that
state “regulation can be as effectively exerted through an award of damages as
through some form of preventive relief” and that an “obligation to pay
compensation can be, indeed is designed to be, a potent method of governing
conduct and controlling policy.” San Diego Bldg. Trades Council, Millmen’s
Union, Loc. 2020 v. Garmon, 

, 246–47 (1959). And the Court
quoted this principle again as part of its preemption analysis in Cipollone. 

. In this context, however, the text of Section 10501(b) indicates a
narrower understanding of the term “regulation.” Neither of those cases
addressed a clause preempting state laws or remedies related to “regulation”




                                      25
       The combination of these phrases, with their respective histories,
is determinative, especially when considered within the context of the
chapter that also includes the Safety Act. Section 10501(b) does not
expressly preempt this common-law negligence claim. It may be, as
other courts have held, that a common-law claim could so directly seek
to control, manage, or govern the core operational functions of a rail
carrier that it could only be said to seek a “remedy with respect to
regulation of rail transportation.”19 But in our view, negligence claims
based on railroad-crossing safety will rarely meet that standard.

of a subject matter, much less “with respect to” such “regulation.” Because the
federal law at issue in Garmon provided essentially no guidance on the scope
of its preemptive effect, the Court based its decision in that case on its own
perception of the federal law’s “national purposes,” 

, not on a
statute that preempted state “regulation” of anything, 

 (noting that
the federal law “leaves much to the states, though Congress has refrained from
telling us how much” (quoting Garner v. Teamsters, Chauffeurs & Helpers Loc.
Union No. 776 (A.F.L.), 

 (1953))). Similarly, in Cipollone, the
federal law at issue preempted any “requirement or prohibition . . . imposed
under state law,” not any state law that “regulated” the subject matter. 

 (emphasis added). The Court concluded this “broad” language, not
any reference to “regulation,” effected preemption of state common-law claims.

. In fact, the Court recognized that a prior version of the federal law,
which did not target state “requirements or prohibitions,” “most naturally
refers to positive enactments by those bodies, not to common-law damages
actions” and thus preempted “rulemaking bodies from mandating particular
cautionary statements and did not pre-empt state-law damages actions.” 

 at
519–20. The prior law, the Court explained, was concerned not with
“requirements or prohibitions” but with “‘regulations’—positive enactments,
rather than common-law damages actions.” 

 at 521 n.19.
       19See, e.g., West Palm Beach, 

 (holding Section 10501(b)
preempts “state laws that may reasonably be said to have the effect of
‘manag[ing]’ or ‘govern[ing]’ rail transportation, while permitting the
continued application of laws having a more remote or incidental effect on rail
transportation” (quoting Regulation, BLACK’S LAW DICTIONARY (6th ed.
1990))); Elam, 

 (holding Section 10501(b) expressly preempts




                                       26
       Considering Section 10501(b)’s language limiting its preemptive
effect to “remedies” provided by state law “with respect to regulation” of
rail transportation, the Safety Act’s primary role in addressing
rail-safety issues, and its clause expressly allowing certain common-law
claims, we conclude that Section 10501(b) does not expressly preempt
Horton’s common-law claim that KC Southern negligently maintained
the crossing resulting in an allegedly distracting and dangerous hump.
E.     Implied Preemption
       We now turn to the issue of whether Section 10501(b) impliedly
preempts Horton’s humped-crossing claim. As stated above, a federal
law may impliedly preempt state law if Congress intended federal law
to occupy the field exclusively or if the state law is in actual conflict with
and creates an obstacle for the federal law. See Cipollone, 

 (quoting Hines v. Davidowitz, 

 (1941)). Within the
context of the ICCT Act, courts have relied on the “conflict” prong of
implied preemption to hold that Section 10501(b) may impliedly
preempt a generally applicable state-law remedy if, as applied to a
particular case, that remedy has the effect of “unreasonably burdening
or interfering with rail transportation.” Elam, 

 (quoting
Franks, 

); see CSX Transp., Inc. v. City of Sebree, 

 (6th Cir. 2019); Tubbs, 812 F.3d at 1145–46; PCS


laws that “have the effect of managing or governing rail transportation,” but
not “generally applicable state laws that have a mere ‘remote or incidental’
effect on rail transportation” (quoting Franks, 

)); City of
Midlothian, 

 (“[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.” (quoting Franks, 

)).




                                     27
Phosphate Co., 559 F.3d at 220–21; Jackson, 

; Emerson,

. We might question whether an unreasonable burden
or interference, standing alone, is sufficient to create the kind of legal
“conflict” required to establish implied preemption, but the parties here
agree that this is the proper test in this context. So, for purposes of this
case, and for the sake of consistency with courts across the country, we
will apply this standard here, without suggesting that it provides the
proper test for evaluating conflict preemption in other contexts.
      A party arguing for implied preemption has the burden on that
issue. Mo. Pac. R.R. v. Limmer, 

 (Tex. 2009). In the
context of Section 10501(b) and a claim involving a rail crossing, this
means the rail carrier must provide specific evidence regarding the
crossing at issue, rather than rely on assertions about the effect of grade
crossings on rail transportation in general. See Elam, 

;
Franks, 

. This requirement is consistent with the
requirements of an “as-applied” preemption analysis, which considers
the degree to which a specific scenario conflicts with requirements and
objectives of the federal law at issue. Thus, for example, evidence that
private crossings can affect drainage, increase track maintenance costs,
and cause trains to move at slower speeds, without evidence that the
particular private crossing at issue would have those effects, is
insufficient to establish the kind of unreasonable burden or interference
necessary to trigger implied preemption. Franks, 

; see
Emerson, 

.
      Here, Horton’s negligence claim does not seek a court order
requiring KC Southern to alter its operations. Horton sought only




                                    28
economic damages, not any sort of injunctive requirement that could
prevent KC Southern from maintaining the lines, crossings, services,
rates, or other operations in which it was engaged at the time of Rigsby’s
death. Consistent with the typical purpose of a negligence claim, Horton
sought only compensation for damages resulting from the accident. See
Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Rsch. Corp.,

 (Tex. 2009) (“A negligence claim . . . is about
compensating an injured party.”).
      As KC Southern notes, however, the effect of a successful
negligence claim can far exceed the payment of compensatory damages
to a particular claimant. KC Southern contends that a successful claim
in this case would effectively require KC Southern to alter all of its
humped crossings, or at least this particular line and crossing, and that
requirement would unreasonably burden KC Southern or interfere with
its operations. The trial court made no factual findings on this assertion,
so we must presume the court resolved any factual disputes against
preemption. See Pharo v. Chambers County, 

 (Tex.
1996). Thus, KC Southern must conclusively demonstrate its contention
as a matter of law. Nevertheless, even if we assume that KC Southern
could have established an unreasonable burden or interference based on
changes in its tracks and operations (as opposed to the damages award),
we conclude KC Southern’s evidence is insufficient here.
      A lack of definitive evidence regarding costs and operational
methods will render evidence insufficient to establish an unreasonable
burden or interference as a matter of law. In Gallo, for example, the
federal district court found the evidence of unreasonable burden was




                                    29
insufficient when the parties offered competing visions for how a
railroad could remedy a potential drainage issue, and different cost
estimates for those changes, without any clear evidence that the
defendant’s more burdensome proposed change was required. See 

.
      On the other hand, in Union Pacific Railroad Co. v. Taylor Truck
Line, Inc., No. 15-0074, 

 (W.D. La. Apr. 10, 2018), the
railroad offered evidence that lowering the specific crossing at issue
would require extensive studies and redesign of the drainage, signal
circuits, and nearby crossings; rehabilitation of the switches, adjacent
tracks, and drainage culverts; and extensive construction work at the
crossing and three-quarters of a mile of track on both sides, at a cost of
approximately $2,000,000. 

 at *7–8. It also provided evidence that the
work would require closure of the mainline track through the area for at
least three to four days, impacting five road crossings. 

 The court
found this evidence, in the absence of any sufficient opposing evidence,
established that the change would pose an unreasonable burden and
result in regulation of the railroad. 

 at *8–9.
      Here, KC Southern failed to provide such definitive evidence. At
trial, Horton’s railroad-maintenance expert, Allen Blackwell, testified
without opposition that KC Southern could address the humped
crossing either by lowering the track to the level of the county road or
by raising the county road to create a gradual incline up to the track.
KC Southern did not present its own expert or other specific evidence of
the likely cost and burden of either option. Instead, it relied on
Blackwell’s deposition testimony that lowering the track might cost up




                                    30
to $300,000. But at trial, Blackwell testified that number was inaccurate
and that the project would more likely cost between $50,000 to $150,000.
Horton also offered evidence that the cost of removing the hump would
be comparable to KC Southern’s routine-maintenance process, which,
incidentally, created the hump in the first place, saving KC Southern
about $100,000 that could be deducted from the cost of removing the
hump.
        Even if this cost were unreasonable, courts have generally
concluded that increased costs alone cannot create the type of
“unreasonable” burden or interference necessary to trigger implied
preemption. See Barrois, 

; Adrian & Blissfield R.R. v.
Village of Blissfield, 

 (6th Cir. 2008); City of Sebree,
924 F.3d at 284–85. KC Southern therefore also relied on Horton’s
expert to describe the type of construction required to lower the track to
the road level. Blackwell agreed that lowering the track by thirty-two
inches—the amount required for KC Southern to comply with its own
adopted safety guidelines—would require “major revision to the
alignment, elevation, or profile of the track.” According to Blackwell, KC
Southern would have to remove asphalt up to six feet away from each
side of the track rails, cut and remove the rails and track panel at the
crossing, resurface the crossing area with new ballast, pour new asphalt,
and then install new crossing panels. The parties also agreed that KC
Southern would need to extend the renovation out at least 661 feet on
each side to maintain required evenness of the track. KC Southern’s
corporate representative testified that a culvert present under the track
could make it impossible to lower the track by the full thirty-two inches.




                                   31
Thus, KC Southern argued this project would far exceed the scope and
cost of a typical crossing rehabilitation.
      On the other hand, Horton provided evidence that, despite the
seemingly broad scope of work, it would take relatively little time.
Blackwell testified that undercutting the track would take the same
amount of time as a routine resurfacing (six to eight hours). He also
specified that, to the extent work could not be completed in a day, KC
Southern could run trains in the evening at a reduced speed, with
subsequent speed and tonnage restrictions lasting no more than
forty-eight hours. KC Southern did not contest this evidence.
      All of this evidence, however, addressed only one possible means
of eliminating the hump. Other testimony established that KC Southern
could address the safety issue by raising the county road on each side of
the crossing. Blackwell testified that, while KC Southern would not have
a sufficient right-of-way to complete that project alone, it would not be
unusual for the railroad to coordinate with county and state authorities
to complete the work. KC Southern argued it could not alter the road
alone but failed to dispute that it could do so in coordination with the
county. More importantly, it offered no evidence regarding the probable
costs and burdens of such a project.
      We conclude that KC Southern did not meet its burden to
establish that Horton’s negligence claim complaining of the humped
crossing would pose the “unreasonable burden or interference with rail
transportation” required to trigger implied preemption under Section
10501(b). Even assuming we should consider more than the burden of
the compensatory damages alone, KC Southern failed to provide




                                    32
definitive evidence of the cost of any of the possible solutions needed to
eliminate the hazard at this specific crossing. And even if we assume, as
KC Southern argues, that Horton’s claim could require it to lower all the
humps on all of its crossings, it provided no evidence of those costs and
burdens either.
      The most specific evidence KC Southern presented to establish an
“unreasonable” burden involved testimony that the curvature of this
section of track, which was in a hilly area, would require undercutting
a longer section of track than normal and would be further complicated
by the presence of a flood-control culvert in the area. KC Southern’s
witness testified that this would not be “a very feasible function for us
to perform.” But even accepting KC Southern’s assertions that lowering
the track would exceed the scope of a typical crossing rehabilitation, KC
Southern failed to contest Horton’s evidence that lowering the track
would close the track for less than a day and would only require weight
and speed restrictions for forty-eight hours. As to the less burdensome
option of raising the road, KC Southern provided no evidence of possible
delays associated with such a solution, nor did it successfully refute
Horton’s evidence that partnering with the local road authority for such
a project would be routine.
      We thus hold that KC Southern failed to meet its burden to
establish     that   Section   10501(b)   impliedly   preempts   Horton’s
humped-crossing negligence claim. And having also concluded that the
section does not expressly preempt the claim, we reverse the court of
appeals’ judgment to the extent it was based on the trial court’s contrary
conclusion.




                                    33
                                   III.
                               Yield Sign
       In addition to the complaint about the humped crossing, Horton
also argued and put on evidence that KC Southern negligently caused
the accident by failing to ensure that yield signs remained in place on
the posts containing the crossbuck signs at the crossing. KC Southern
argues that no evidence could support a finding that the lack of a yield
sign proximately caused the accident. We agree.
       In reviewing the legal sufficiency of evidence to support a jury
verdict, we honor the rule that the jurors “are the sole judges of the
credibility of the witnesses and the weight to give their testimony,” and
it is their role to resolve any conflicts in the evidence. City of Keller v.
Wilson, 

, 819–21 (Tex. 2005) (citations omitted). We
“credit favorable evidence if reasonable jurors could, and disregard
contrary evidence unless reasonable jurors could not.” 

. We
must consider the evidence “in the light most favorable to the verdict,
and indulge every reasonable inference that would support it,” and we
must credit any evidence that “allows of only one inference.” 

(citations omitted). We cannot substitute our judgment for the jury’s. 

       Applying these standards, we conclude that the following
evidence, presented through expert testimony and supporting studies
and documents, supports Horton’s yield-sign theory:
   -   Like a yield sign, “[t]he purpose of a crossbuck sign is to
       tell a motorist they need to yield.” In a sense, it sends the
       same message as a yield sign. But it is “a more specific yield
       sign,” specifically telling drivers “there’s a railroad
       crossing” and they need to “yield for [a] train.”




                                    34
-   “[S]tudies have shown that [a] crossbuck [sign] alone does
    not give the kind of warning . . . that reminds people that
    there is a potential train coming.”
-   This is because the same type of crossbuck sign is used at
    both active rail crossings (those with lights, bells, or
    protective gates that automatically warn a driver that a
    train is approaching) and passive crossings (those lacking
    such automatic signals). As a result, drivers “tend to regard
    the crossbuck sign as marking there’s a railroad track
    here” and then rely on “active signals as being the devices
    that control whether they should stop or go through the
    crossing.” So, at passive crossings, drivers “sometimes
    think the crossbuck sign merely marks the location of the
    grade crossing when, in fact, it . . . also needs to [warn
    drivers to] yield to trains.”
-   Because “research . . . showed road users do not fully
    comprehend the message being communicated by the
    crossbuck” sign, and because “there is an advantage for
    awareness improvement with the use of a yield sign,” in
    2009, federal law began requiring yield signs be posted
    along with crossbuck signs at passive crossings.
-   Studies “indicate that [adding a] yield sign . . . conveys the
    message that the driver has the responsibility to look for
    and yield to an oncoming train better than . . . the
    crossbuck alone.”
-   Adding the yield sign “adds awareness and it makes people
    recognize yield more than they recognize a crossbuck
    [sign]. So the combination together works well.”
-   This is particularly true for drivers who are not as familiar
    with the crossing. “[D]rivers who are crossing the tracks for
    the first time or very infrequently would be more prone to
    respond by slowing somewhat and more conscientious
    about searching for oncoming traffic.” But drivers who
    cross the tracks “on a frequent basis” are likely to
    “eventually . . . revert back to [their] behavior before the
    yield sign was installed.” Warnings “tend to be less




                                 35
      effective” for those who “use the same crossing over and
      over.”
We agree with Horton that this evidence would support a finding that
adding a yield sign to an already existing crossbuck sign would help
alert drivers and cause them to look for an oncoming train before
actually crossing an otherwise unprotected track. And so conversely, we
agree that the evidence would support a finding that the absence of the
yield sign made it less likely that Rigsby would have looked and stopped
for the train that struck her pickup. But it is not sufficient to support
the finding Horton had to obtain to prevail on the yield-sign claim: that,
more likely than not, the absence of the yield sign proximately caused
Rigsby to proceed into the train’s path.
      Other evidence, which a reasonable juror could not have ignored,
established that no studies or empirical data confirm that adding a yield
sign helps reduce crashes. The literature on which the experts relied
provides “little empirical basis regarding the change in crash rates at
crossings with either a yield or a stop sign,” and “no study has been
conducted on crash effect when yield signs are used.” As one report
explained, “[i]t is expected that this knowledge [a yield sign provides]
should increase advanced searching [for oncoming trains], but how this
apparent effectiveness carries over to actual locations, especially if most
passive crossings were to have a yield sign, is a matter of conjecture.”
      A jury finding of proximate causation cannot be based on such
“conjecture.” Horton’s expert conceded that he could not point to any
study or evidence that the absence of the yield sign, “more likely than
not, would have been a difference” for this accident. And he could not
say that “this accident more likely than not would not have happened if




                                    36
the yield sign was present.” Nor does any other evidence support such a
finding. Horton’s expert testified that, in his opinion, the addition of a
yield sign more likely than not provides a more effective warning, but
he based that opinion merely on the fact that the federal government
recommended the addition of yield signs in 2000 and required them in
2009. This is not the type of basis that could support such an opinion,
and the opinion itself was insufficient to support a finding that the
absence of the yield sign more likely than not caused this particular
accident.
      As to this accident, the video recording confirms that Rigsby, who
lived near the crossing and regularly crossed it for years up until she
was hospitalized several weeks before the accident in fact did slow down
as she approached the crossing, and then slowed even more, to three or
three-and-a-half miles per hour, before reaching the rails. As Horton’s
expert confirmed, Rigsby “was cautious. She showed approach. It looked
like she was intent. The purpose of those kind of signs and a warning
sign is to alert that.” We must conclude that no evidence supports a
finding that, more likely than not, Rigsby would have approached the
crossing any more cautiously or intently had the yield sign been present,
or that the absence of the yield sign more likely than not caused Rigsby
to drive into the train’s path.
                                 IV.
                             Harmful Error
      Having concluded that the ICCT Act does not preempt Horton’s
negligence claim based on the humped crossing, but no evidence
supports the negligence claim based on the missing yield sign, we must
finally determine whether the trial court’s submission of both negligence




                                   37
theories through a single broad-form negligence question constituted
harmful error. KC Southern objected to the broad-form question on the
ground that it would permit the jury to find negligence on an invalid
liability theory, and it offered a proposed charge that included two
blanks for the jury to separately determine the parties’ negligence
liability for the humped crossing and the missing yield sign.
      The trial court overruled the objection and refused the proposed
question, believing it improperly granulated a single negligence cause of
action. The court of appeals—after agreeing with KC Southern that
federal law preempts the humped-crossing claim and agreeing with
Horton that the evidence supports the yield-sign claim—concluded that
the trial court erred by submitting both theories in one question and
that the error was harmful under Crown Life Insurance Co. v. Casteel,

 (Tex. 2000), because the court could not determine
whether the jury found negligence on a valid or invalid theory. See 666
S.W.3d at 19.
      We have also concluded that only one of Horton’s two allegations
can support the jury’s negligence finding, albeit the opposite one. Thus,
we too must determine whether submission of the broad-form question
over KC Southern’s objection resulted in harmful error. KC Southern
argues it did because the question “commingle[d] valid and invalid
liability theories . . . and a proper reason for the verdict cannot be
ascertained from the record.” Horton argues it did not because the
question properly submitted Horton’s single claim for negligence,
leaving it to the jury to determine what acts would support that claim.
We agree with KC Southern.




                                   38
      We held in Casteel that “when a trial court submits a single
broad-form liability question incorporating multiple theories of liability,
the error is harmful, and a new trial is required when the appellate court
cannot determine whether the jury based its verdict on an improperly
submitted invalid theory.” 

. Horton argues Casteel does
not apply here, however, because that case involved multiple, distinct
“theories of liability,” some of which were valid and others of which were
not. But here, Horton contends, the court submitted just one liability
theory—negligence. According to Horton, Casteel does not apply because
“[f]ailing to maintain tracks and failing to post a yield sign are different
negligent acts, not separate theories of liability.” We disagree.
      It is true that Casteel involved a single broad-form liability
question with instructions addressing “thirteen independent grounds
for liability,” four of which we concluded were invalid. 

. But in
holding that the error was harmful because appellate courts could not
determine whether the jury based its verdict on an invalid theory, we
relied on and reaffirmed our prior decision in Lancaster v. Fitch, 

 (Tex. 1923), in which “the trial court submitted a single
general negligence issue with instructions regarding three distinct
theories of negligence liability.” Casteel, 

. Lancaster
applied the same rule in a case in which the plaintiff “pleaded three
separate acts of negligence as the proximate cause of his injury” and the
trial court submitted a single negligence question. 246 S.W. at 1015–16.
We held that the submission of one invalid negligence theory along with
two valid theories, where it was impossible to tell which theory the jury
relied on, was harmful error. 

 at 1015–17.




                                    39
         We have since applied Casteel’s harmful-error rule in cases
involving a variety of circumstances that created the same problem for
the appellate courts, including the broad-form submission of multiple
elements of damages, Harris County v. Smith, 

 (Tex.
2002),     the   inclusion   of   two     theories   within     a   single
apportionment-of-responsibility question, Romero v. KPH Consol., Inc.,

 (Tex. 2005), and a trial court’s refusal to submit
necessary instructions with a broad-form question, Columbia Rio
Grande Healthcare, L.P. v. Hawley, 

 (Tex. 2009).
Most recently, and most importantly, we specifically rejected Horton’s
argument in Benge v. Williams, 

 (Tex. 2018).
         At the trial in Benge, the plaintiff “argued and offered
evidence that    her physician was negligent both in using              an
inexperienced resident to assist with performing her surgery and in not
disclosing the resident’s level of involvement.” 

 at 467–68. But the
plaintiff only claimed a right to recover based on the physician’s
negligent use of the inexperienced resident and did “not claim a right to
recover for the nondisclosure.” 

. The trial court submitted a
broad-form negligence question, after refusing the physician’s request
for an instruction that the jury should disregard the plaintiff’s
arguments and evidence regarding the nondisclosure, and the jury
found in the plaintiff’s favor. 

. We held that the court erred in
refusing to submit the requested instruction, and we found that error
harmful under Casteel because the jury could have found negligence
based on the nondisclosure even though the plaintiff “does not assert
that claim.” 

. We did so even though the question the trial court




                                    40
submitted, “unlike the one in Casteel, did not include multiple theories,
some valid and some invalid. It inquired about a single theory:
negligence.” 

.
      To the extent Horton contends that the Casteel rule applies only
when a broad-form question permits a liability finding based on a theory
or ground that is legally “invalid” as opposed to, as here, a ground
lacking sufficient evidence, our precedent has also rejected that
argument. We have applied the rule not only when the question permits
a finding based on a legally “invalid” theory, but when it permits an
erroneous finding based on a ground the evidence does not support,
Harris County, 

; Romero, 166 S.W.3d at 227–28, a
ground that is “jurisdictionally barred,” Tex. Comm’n on Hum. Rts. v.
Morrison, 

 (Tex. 2012), and, in Benge, a claim the
plaintiff simply “does not assert,” 

. As we explained in
Hawley, “[s]ubmission of an invalid theory” simply “involves ‘[a] trial
court’s error in instructing a jury to consider erroneous matters.’” 

 (quoting Harris County, 

).
      Horton relies on our opinion in Dillard v. Texas Electric
Cooperative, where we stated that, under broad-form submission rules,
“jurors need not agree on every detail of what occurred so long as they
agree on the legally relevant result. Thus, jurors may agree that a
defendant failed to follow approved safety practices without deciding
each reason that the defendant may have failed to do so.” 

 (Tex. 2005) (citing Burk Royalty Co. v. Walls, 

 (Tex. 1981)). Indeed, we went on to say in Dillard that jurors “could
have unanimously found [the defendant] negligent, even if half believed




                                   41
the negligent act was overloading his truck and half believed it was
failing to warn oncoming traffic—acts that preceded two different
collisions.” 

 We read Horton’s reliance on Dillard to argue that the
trial court’s broad-form submission of his two negligence allegations was
not error at all, much less harmful under Casteel.
       But Dillard involved a completely different issue: “whether the
trial court abused its discretion in refusing to submit one of two different
instructions on the defendants’ inferential rebuttal defenses.” Id. at 430.
We held that the court sufficiently instructed the jury on those defenses
and thus committed no error, and we made the statements on which
Horton relies to explain why additional instructions would have been
duplicative and unnecessary. Id. Our discussion addressed only the
defendants’ defenses, not the plaintiff’s claims, and the statements on
which Horton relies presumed that each of the acts supporting a
negligence finding were themselves valid and supported by the evidence.
Here, by contrast, we have concluded that the evidence does not support
one of the acts on which Horton relied for a negligence finding. Jurors
finding negligence may not all have to agree on the same valid and
supported grounds to find negligence, but they cannot rely on invalid or
unsupported grounds.
       Finally, Horton argues that application of the Casteel rule in this
case   would   undermine     our   strong    preference   for   broad-form
submissions, as set forth in Texas Rule of Civil Procedure 277. We think
this argument goes too far. Although Rule 277 is “intended to simplify
jury charges for the benefit of the jury, the parties, and the trial court,”
it “was certainly never intended to permit, and therefore encourage,




                                    42
more error in a jury charge.” Romero, 

. As we
explained when addressing this argument in Romero, Rule 277 requires
that issues be submitted to a jury in broad form “whenever feasible.” 

(quoting TEX. R. CIV. P. 277). We adhere to that rule today, but “Rule
277 is not absolute,” and “[s]ubmitting alternative liability standards
when the governing law is unsettled might very well be a situation
where broad-form submission is not feasible.” Casteel, 

(quoting Westgate, Ltd. v. State, 

, 455 n.6 (Tex. 1992)).
       Our holding does not overhaul the general preference for
broad-form submission. Rather, it emphasizes that, despite our rules’
preference for broad-form jury questions, “broad-form submission
cannot be used to broaden the harmless error rule to deny a party the
correct charge to which it would otherwise be entitled.” Romero, 

. Where, as here, true doubt exists as to the validity of one
underlying theory and the trial court must resolve a close call20 as to
whether sufficient evidence supports a separate act of negligence,
submitting either separate questions or separate blanks within the
same question may be helpful. Separate jury questions are not the only
means to avoid a Casteel problem. In some cases, rephrasing the
question or giving an instruction not to consider theories that are




       20 We note that this case does not present an issue of whether KC
Southern preserved its objection to the trial court’s error. KC Southern
objected that there was a Casteel-type defect in the form of the negligence
question because the humped-crossing theory was preempted, and the
missing-yield-sign theory was not supported by the evidence. Although this
objection was sufficient to make the court aware of its complaint, KC Southern
also tendered an alternative charge that separated the theories.




                                     43
unpled, invalid, or lacking in evidentiary support will be sufficient.21
And that alternative is preferable to separate questions when it is
feasible. Again, we emphasize that this holding does not undermine the
general preference for broad-form submission, but rather provides
additional guidance as to how courts should approach instances where
broad-form submission is not feasible.
       Because the trial court submitted Horton’s negligence claim as a
broad-form question subsuming both his humped-crossing theory and
his missing-yield-sign theory, we are unable to discern whether the jury
found KC Southern negligent based on the yield-sign theory, which the
evidence does not support. Because the question “allows a finding of
liability based on evidence that cannot support recovery,” Casteel’s
“presumption-of-harm rule must be applied.” Benge, 

.
                                     V.
                                 Conclusion
       We hold that the ICCT Act does not expressly preempt Horton’s
humped-crossing negligence claim, that KC Southern failed to bear its
burden of proving that the Act impliedly preempts that claim, that the
evidence does not support liability based on Horton’s missing-yield-sign
negligence claim, and that the trial court’s submission of both negligence


       21 See, e.g., Benge, 548 S.W.3d at 474–76 (holding it was error to deny a
jury instruction not to consider an unpled negligence theory regarding failure
to disclose a resident’s level of involvement in surgery); Morrison, 381 S.W.3d
at 535–36 (holding that it was error to deny a request to rephrase an
employment discrimination liability question to specify discriminatory
termination rather than a term that encompassed actions that had not been
administratively exhausted); Hawley, 284 S.W.3d at 863–65 (holding it was
error to deny a limiting instruction that the jury should not consider actions of
a doctor who was not the hospital’s agent in determining hospital liability).




                                       44
theories using a broad-form question constituted harmful error in this
case. We thus affirm the court of appeals’ judgment reversing the trial
court’s judgment and remanding the case to that court for a new trial.



                                       Jeffrey S. Boyd
                                       Justice

OPINION DELIVERED: June 30, 2023




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