Supreme Court of Texas

══════════

No. 22-0431

══════════

Union Pacific Railroad Company and Ezra Alderman Ranches, 

Inc.,

Petitioners,

v.

Elsa Prado, Individually and as Representative of the Estate of 

Rolando Prado, Jr., Deceased, and as Next Friend of A.P., Minor; 

Elizabeth Prado; Rolando Prado; and Maria Prado, 

Respondents

═══════════════════════════════════════

On Petition for Review from the

Court of Appeals for the Fourth District of Texas

═══════════════════════════════════════

Argued November 29, 2023

JUSTICE BOYD delivered the opinion of the Court.

It seems reasonable to think the law should presume that drivers 

will stop at a stop sign, at least absent some kind of emergency situation. 

And landowners, it seems, should be able to expect that drivers will obey 

a stop sign they post on their private property. The plaintiffs in this 

railroad-crossing case, however, urge us to accept that the law leaves 

room for other possibilities. Relying primarily on expert opinions, they 
2

contend that not every visible stop sign is visible enough or, even if it is, 

people cannot always expect that even reasonably prudent drivers will 

obey it. We conclude the evidence in this record is insufficient to create 

a fact issue on whether a railroad crossing protected by a stop sign in 

addition to a crossbuck sign was “extra-hazardous.” And assuming the 

crossing was “unreasonably dangerous,” no evidence exists that the 

landowner knew it was. We reverse the court of appeals’ judgment and 

reinstate the trial court’s summary judgment in favor of the railway 

company and the landowner.

I. 

Background

In 2015, railroad tracks intersected Texas roads in 14,013 

locations, 4,817 of those on private land.1 That same year, vehicle–train 

accidents resulted in nineteen fatalities at those crossings.2 Of those 

nineteen fatalities, four occurred at private rail crossings.

3 This case 

concerns one of those fatal accidents.

On September 12, 2015, Rolando Prado, Jr. died when his 

eastbound pickup was struck by a Union Pacific train at a rural crossing 

on private property owned by Ezra Alderman Ranches. Prado had just 

left work after his first day at a new jobsite a couple of miles away. It 

1 One Year Accident/Incident Overview—Combined, FEDERAL 

RAILROAD ADMINISTRATION, OFFICE OF SAFETY ANALYSIS, https://

safetydata.fra.dot.gov/OfficeofSafety/publicsite/Query/AccidentByRegionState

County.aspx (last visited Feb. 23, 2024).

2 Highway-Rail Crossings, FEDERAL RAILROAD ADMINISTRATION,

OFFICE OF SAFETY ANALYSIS, https://safetydata.fra.dot.gov/OfficeofSafety/

publicsite/Query/gxrtally1.aspx (last visited Feb. 23, 2024).

3 Id.
3

was just after 7:30 p.m., the sun was beginning to set behind him, and 

the skies were clear. Driving at or under the posted thirty-miles-perhour speed limit,4 Prado passed through an open ranch gate and 

followed the caliche road as it curved right about twenty-five degrees 

toward the railroad tracks a football field’s length away. Meanwhile, the 

Union Pacific train was heading north on the tracks at about fifty-eight 

miles per hour. The conductor saw Prado’s truck approaching the 

crossing and blew the train’s horn. About sixteen seconds before impact, 

the train’s horn blew for nearly four seconds, and it blew again from 

about nine seconds until almost four seconds before impact. 

Trees could have prevented Prado from seeing the approaching 

train until he was about six seconds from the crossing, and a fence line 

could have partially obstructed his view for another second or two: 

But nothing during those last six seconds, or even for some time 

before then, obstructed his view of a signpost planted just to the right of 

4 The owner of the private property posted speed-limit signs because he 

believed oilfield workers whom he permitted to use the road to access worksites 

on adjacent tracts had been driving too fast.
4

the road immediately before the tracks. The post displayed a standard 

red stop sign mounted above a slightly larger white sign that displayed 

black crossbucks and stated in black letters, “Private RR Crossing—No 

Trespassing—Right to Pass by Permission Subject to Control of Owner”:

Everyone agrees that anyone who actually stops at or near the 

stop sign can clearly see a train coming from either direction. Prado, 

however, slowed to about seventeen miles per hour five seconds before 

the crossing, then to about nine miles per hour as he reached the stop 

sign, and then continued moving directly onto the tracks and into the 

train’s path. The conductor blew the horn again from about three 

seconds before impact until nearly three seconds after. 

Prado’s widow, children, and parents (collectively, the Prados) 

sued Union Pacific and Ezra Alderman Ranches (the Ranch) for 
5

negligence, negligence per se, and gross negligence.5 Both defendants 

moved for summary judgment, and the trial court granted both motions. 

The Prados appealed, challenging only the adverse judgment on their 

negligence claims. The court of appeals reversed in part, holding that 

fact issues exist as to whether the crossing was extra-hazardous or 

unreasonably dangerous and whether the Ranch or Prado had actual 

knowledge of the crossing’s dangerous condition. 647 S.W.3d 731, 742, 

746 (Tex. App.—San Antonio 2021). Union Pacific and the Ranch both 

filed petitions for review, which we granted. Because the liability 

standards differ for each defendant, we will address their arguments 

separately.

II.

Union Pacific

Although the Prados originally alleged numerous ways in which 

Union Pacific negligently caused the accident, they contend in this Court 

only that the summary-judgment evidence creates a fact issue on 

whether the railroad crossing was extra-hazardous, thus imposing on 

Union Pacific a duty to use extraordinary means to warn drivers of an 

approaching train. We disagree.

Railroad companies have a general legal duty “to give adequate 

warning of approaching trains, given whatever obstructions or other 

conditions exist.” Mo. Pac. R.R. Co. v. Limmer, 299 S.W.3d 78, 92 (Tex. 

5 The Prados also sued the oil company that operated the drilling rig

where Prado worked that day, which contracted with Prado’s employer for

Prado’s services. The trial court granted that company’s summary-judgment

motion, the court of appeals affirmed, and the Prados have not sought review

of that ruling.
6

2009). 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). For “an ordinary rural railroad crossing,” a crossbuck 

sign will typically satisfy that duty. Mo. Pac. R.R. Co. v. Cooper, 563 

S.W.2d 233, 235 (Tex. 1978). 

If a crossing is “extra-hazardous,” however, 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).6 Such extraordinary warnings may include, for example, “lights 

or signal bells to warn persons approaching [the] crossing.” Fitch, 441 

F.2d at 2. “Every railroad crossing is dangerous, but it is only crossings 

which are found to be extra hazardous that place the higher duty upon 

the railroad to use extraordinary means to warn travelers along the 

road.” Cooper, 563 S.W.2d at 235.

The standard for categorizing a railroad crossing as extrahazardous is high, requiring the plaintiff to show that a prudent person

exercising ordinary care cannot safely use the crossing unless 

extraordinary warnings or protections are provided. Id. (“A railroad 

crossing is extra hazardous when, because of surrounding conditions, it 

6 See also Osuna v. S. Pac. R.R., 641 S.W.2d 229, 230 (Tex. 1982) 

(stating railroad must “use extraordinary means to warn travelers” of an extrahazardous crossing); Tex. & New Orleans R.R. Co. v. Compton, 136 S.W.2d 

1113, 1115 (Tex. 1940) (holding railroad had no duty to take “extraordinary 

precautions” when “crossing was not extrahazardous”).
7

is so dangerous that persons using ordinary care cannot pass over it in 

safety without some warning other than the usual [crossbuck] sign.”).7

A crossing may be extra-hazardous due to 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,” therefore, “depends on the circumstances existing at 

the time of the accident.” Williams, 375 S.W.2d at 284. Whether a 

crossing is extra-hazardous at any particular time thus “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 history of similar accidents 

at the crossing.8 But a crossing is extra-hazardous only if such factors 

7 See also Mo., K. & T. Ry. Co. of Tex. v. Long, 299 S.W. 854, 855 (Tex. 

Comm’n App. 1927) (“[A] crossing that is more than ordinarily dangerous is a 

crossing that is so peculiarly dangerous that prudent persons cannot use it in 

safety.”); Fitch, 441 F.2d at 2 (“A railroad crossing is characterized as 

extrahazardous under Texas law when it is so perilous that prudent persons, 

in the exercise of ordinary care, cannot use it with safety in the absence of 

extraordinary warning devices.”).

8 See 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 extra-hazardous 

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. Tex. & New Orleans R.R. 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”); see 

also 18 AM. JUR. 2D Proof of Facts 611 (1979).
8

establish that a reasonably prudent person exercising ordinary care 

could not safely use it without extraordinary warning devices.9

Union Pacific contends that, as a matter of law, the crossing at 

issue here was not extra-hazardous when Prado’s accident occurred. It 

notes that it posted not only a crossbuck sign but also a stop sign, which 

necessarily would cause a reasonably prudent person to come to a stop 

and look for approaching trains before proceeding across the tracks. A 

reasonably prudent person exercising ordinary care in that manner, 

Union Pacific argues, indisputably could have seen the train and heard 

its horn and thus avoided the accident altogether. As a matter of law, 

Union Pacific argues, a railroad crossing cannot be extra-hazardous if 

it’s only hazardous to those who fail to stop at a clearly visible stop sign.

Relying primarily on two expert witnesses, the Prados argue this 

one was. The experts, however, relied on different theories to support 

that contention. The first—an engineer—testified that the stop sign and 

the crossbuck sign were inadequate to eliminate or control the hazards 

because (1) the crossbuck sign was not a standard crossbuck sign and 

was mounted below the stop sign instead of above it, as federal 

standards require, (2) the post on which the signs were mounted did not 

have a reflective strip as federal standards require, and (3) because of 

the slight curve in the road as it approaches the track, the signs were 

9 The fact that a particular plaintiff subjectively failed to “stop, look, and 

listen for approaching trains” constitutes part of “the surrounding facts and 

circumstances” to be considered in that plaintiff’s case, although it alone does 

not conclusively establish the plaintiff’s contributory negligence. Galveston, 50 

S.W.2d at 251. But for purposes of determining whether a crossing was extrahazardous, the important issue is whether, objectively, a person using the 

crossing with ordinary care could do so safely. Cooper, 563 S.W.2d at 235.
9

not visible early enough to permit a reasonable driver to timely respond 

to them.

The Prados’ other expert witness—a human-factors expert—took 

a different approach. He agreed with the engineer that the curve in the 

road “competes for the driver’s attention” and thus could distract a 

driver from seeing the stop sign early enough to react. But contrary to 

the engineer, he testified that the stop sign was not obstructed “within 

any reasonable distance that we’re concerned about” and “visibility of 

the stop sign is not an issue” at all. He conceded that the stop sign was 

the same size, shape, and color as any standard stop sign around the 

state. And he conceded that a driver who stops at or near the stop sign 

can see an approaching train without any difficulty. But in his view, 

Union Pacific should not and could not reasonably expect drivers to stop 

at this stop sign because the sign “lacks credibility.” A stop sign lacks 

credibility, he explained, “when it’s consistently clear to drivers that 

there’s no need to stop.”

In his opinion, this stop sign (like most stop signs placed with 

crossbucks at rural railroad crossings, he says) lacks credibility because 

(1) ninety-eight percent of the time there’s no train present, so it’s just 

“crying wolf” to ask people to stop when they know that stopping is 

practically never necessary, and (2) the stop sign is never enforced. 

When a sign tells drivers to stop but they know stopping is almost never 

necessary and will never be enforced, “you’re not going to get complete 

stops by most people.” In fact, observations he recorded at this crossing 

throughout one sample day revealed that only thirty-two percent of the 

drivers came to a stop at the stop sign. 
10

Both experts support their opinions with evidence that an 

unusually high number of trains (twenty-four per day) and vehicles (fifty 

to seventy-five per day) use this crossing. And they contend this 

crossing, which first opened in 1977, has had a high number (four) of 

prior accidents, including one fatality under similar circumstances and 

one accident just two weeks before Prado’s: 

• On November 21, 1988, at 9:35 a.m., a clear and sunny 

morning, a tractor-trailer driver heading east stopped with the 

trailer on the crossing. A train came while he was stopped and 

struck the trailer. The crossbuck signs were present, and there 

were no injuries.

• On March 23, 2012, just after noon on a clear and sunny day, 

a driver heading east in a pickup failed to stop and was struck 

by an approaching train. The stop signs were present, and the 

driver was killed. 

• On March 28, 2012, at 4:30 a.m. on a rainy night, a driver 

heading east in a pickup pulling a trailer stopped with the 

trailer on the tracks. The crossbuck signs were present, and 

there were no injuries.

• On August 29, 2015, at 8:00 p.m. on a clear evening at dusk, a 

tractor-trailer driver heading west (toward the setting sun) 

failed to stop and was struck by an approaching train. The stop 

signs and crossbuck signs were present, and there were no 

injuries. 

We conclude the Prados’ evidence is legally insufficient to support 

a finding that this crossing was extra-hazardous at the time of Prado’s 

accident. As explained, a crossing is only extra-hazardous if a 

reasonably prudent driver exercising ordinary care cannot traverse the 

crossing safely without some extraordinary warning device beyond the 

usual crossbuck sign. Cooper, 563 S.W.2d at 235. This crossing in fact 

contained a warning device in addition to a crossbuck sign—a stop sign. 
11

Under Texas law, a driver who approaches a railroad crossing marked 

only by a crossbuck sign must “yield” to any train that is “in hazardous 

proximity to the crossing” and must “stop” only if the train is close 

enough that stopping is “required for safety.” TEX. TRANSP. CODE 

§ 545.251(c). But a driver who approaches a stop sign “shall stop” 

regardless of whether safety requires it, unless “directed to proceed by a 

police officer or traffic-control signal.” Id. § 544.010(a). A stop sign thus 

imposes the same legal requirement on a driver as the “extraordinary” 

flashing lights that often protect busier railroad crossings. See id.

§ 545.251(a)(1) (providing drivers “shall stop” if “a clearly visible 

railroad signal warns of the approach of a railroad train”).

Relying on their experts’ testimony, however, the Prados contend 

the evidence creates a fact issue on whether these signs were effective 

to enable a reasonably prudent driver to stop. On the one hand, the 

engineering expert opined that the crossing was extra-hazardous in part 

because the crossbuck sign was not a standard crossbuck sign,10 it was 

mounted below (instead of above) the stop sign, and the post on which 

both signs were mounted did not have a reflective strip as federal 

10 A standard crossbuck sign typically consists of two long white 

rectangles posted together in an “X” formation with one reading “RAILROAD” 

and the other reading “CROSSING.” See TEX. TRANSP. CODE § 471.004(f)(2) 

(referring to federal manual); Port of Beaumont Navigation Dist. v. McCarty, 

No. 09-16-00356-CV, 2017 WL 1089604, at *4 (Tex. App.—Beaumont Mar. 23, 

2017, no pet.) (mem. op.) (describing “the familiar black-and-white, X-shaped 

signs that read ‘RAILROAD CROSSING’”). As explained, the crossbuck sign at 

this crossing was a single white rectangular placard that displayed long black 

rectangles in an X formation and stated in black letters, “Private RR 

Crossing—No Trespassing—Right to Pass by Permission Subject to Control of 

Owner.”
12

regulations require for some crossings. But the expert did not explain 

how any of these factors could have prevented a reasonably prudent 

driver approaching the crossing at the time of Prado’s accident from 

either seeing the signs or understanding that he was approaching a 

railroad crossing and must stop.

The engineering expert also opined, however, that the curve in 

the road prevented drivers from seeing the signs early enough to be able 

to stop before the railroad tracks. Specifically, he testified that federal 

guidance requires at least 270 feet for a driver traveling thirty miles per 

hour to react to a warning sign, and these signs were 266 feet and ten 

inches away from the ranch gate, leaving insufficient distance for a 

driver to react. In his opinion, the defendants should have at least posted 

signs before the ranch gate, warning of a “Stop Ahead” or a “Railroad 

Crossing Ahead.” But the expert did not testify, and we have found no 

other evidence, that a driver could not have seen the signs or the tracks 

from the ranch gate or even earlier. To the contrary, the record contains 

a photograph, described as one taken from the crossing looking back up 

the road to the ranch gate, which confirms that the view from the gate 

to the sign by the tracks was unobstructed:
13

To the extent the expert suggests that the signs were ineffective 

because of the difference between 270 feet and 266 feet and ten inches, 

we must reject that contention. Indeed, the Prados’ human-factors 

expert agreed that the stop sign was not obstructed “within any 

reasonable distance that we’re concerned about” and “visibility of the 

stop sign is not an issue” at all. We conclude the record contains no 

evidence that a reasonably prudent driver exercising reasonable care 

could not see the sign in time to obey it.

The human-factors expert testified, however, that although a 

reasonably prudent driver could see the stop sign in plenty of time, he 

could not be expected to obey it. In his opinion, the sign lacked 

“credibility” because drivers knew there was almost never a reason to 

stop and no one ever enforced that requirement. But as we’ve explained, 

Texas law requires all drivers to stop at a stop sign regardless of 

whether safety requires it. See TEX. TRANSP. CODE § 544.010(a). And the 

law has long presumed that drivers will obey the law. See Int’l & Great

N. Ry. Co. v. Gray, 65 Tex. 32, 36 (1885) (“[T]he public may have a right 
14

to conclude that the law and rules will be observed on any given 

occasion, and to act accordingly in their lawful use of the railway 

track.”).11 Evidence that many or even most drivers would not stop at a 

particular stop sign does not establish that all reasonably prudent 

drivers would not, much less could not, stop at the sign. See Gulf, M. & 

O. R. Co. v. Grubbs, 260 So. 2d 837, 838–39 (Miss. 1972) (holding 

“trainmen had a right to assume that appellee would stop at the ‘Stop’ 

sign, as required by law” despite assertion that “[n]ot one in a thousand” 

drivers would). While the expert’s testimony might be sufficient to 

create a fact issue on whether Prado acted with reasonable prudence 

and exercised ordinary care when he rolled through the stop sign, it is 

no evidence that, objectively, a reasonably prudent driver using ordinary 

care could not stop at the sign or could not pass the crossing safely 

without some additional warning.

The Prados also point to evidence—including the curvature of the 

road, the trees, the fence line, and the train’s speed—that they say 

creates a fact issue on whether Prado could see the approaching train 

early enough to be expected to stop for it. But because the stop sign and 

11 See also United Zinc & Chem. Co. v. Britt, 258 U.S. 268, 275 (1922) 

(holding landowner is “entitled to assume that [adults] would obey the law and 

not trespass”); Faith v. State, 32 Tex. 373, 374 (1869) (“We must presume that 

every man obeys the mandate of the law in the performance of duty enjoined, 

until it otherwise appear.”); Dall. Ry. & Terminal Co. v. Moore, 52 S.W.2d 104, 

107 (Tex. App.—El Paso 1932, no writ) (“[T]he law presumes that everyone will

obey the law and exercise ordinary care for their own safety.”); El Paso & Sw.

R.R. Co. v. Murtle, 108 S.W. 998, 1001 (Tex. App.—San Antonio 1908, writ 

ref’d) (holding railyard master was “authorized to presume that the 

employ[ee]s in control of the engine would obey the law and stop it before 

reaching the crossing”).
15

crossbuck sign required a reasonably prudent driver to stop before 

reaching the track, and because the evidence conclusively establishes 

that a driver could have clearly seen the approaching train once he had 

stopped, the question of when he could have first seen the train is 

irrelevant to whether the crossing was extra-hazardous. 

Finally, the Prados point to the evidence that this crossing had a 

relatively high volume of vehicular and train traffic compared to other 

rural crossings, as well as a comparatively high number of prior 

accidents. The prior accidents are relevant however, only if they 

occurred under “similar but not necessarily identical circumstances.” 

Cooper, 563 S.W.2d at 236. Here, only one of the prior accidents—the 

one involving an eastbound driver who failed to stop on a clear day, 

resulting in a fatality a few years earlier—meets that standard.12

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.

Because no evidence in this record supports a finding that a 

reasonably prudent driver exercising ordinary care could not safely 

traverse this railroad crossing without extraordinary warnings in 

addition to the stop sign and the crossbuck sign, Union Pacific 

12 Two of the prior accidents involved eastbound drivers who safely 

crossed the tracks but then stopped at a very close intersection at an interstate 

access road while their trailers were still on the tracks. The third involved a 

driver who failed to stop as he was heading westbound into the setting sun. We 

conclude that these three accidents are not sufficiently similar to constitute 

evidence regarding whether the crossing was extra-hazardous when Prado 

failed to stop while heading eastbound with the sun behind him.
16

established that the crossing was not extra-hazardous as a matter of 

law. And because the stop sign and crossbuck sign were sufficient 

warnings for an ordinarily dangerous crossing as a matter of law, the 

court of appeals erred in reversing the trial court’s summary judgment 

in Union Pacific’s favor.

III.

The Ranch

The court of appeals held that Prado was a licensee, and no party

contests that holding in this Court. 647 S.W.3d at 745. As a landowner, 

the Ranch owes a duty to “use ordinary care either to warn a licensee of, 

or to make reasonably safe, a dangerous condition of which the owner is 

aware and the licensee is not.” Sampson v. Univ. of Tex. at Austin, 500 

S.W.3d 380, 385 (Tex. 2016) (quoting State Dep’t of Highways & Pub. 

Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992)). The Ranch contends 

that no evidence exists to support a finding that the crossing was 

unreasonably dangerous or that the Ranch had actual knowledge that it 

was. The trial court agreed, but the court of appeals concluded the 

evidence raises a fact issue on both questions. 647 S.W.3d at 746.

A condition is unreasonably dangerous if “there is a sufficient 

probability of a harmful event occurring that a reasonably prudent 

person would have foreseen it or some similar event as likely to happen.” 

United Supermarkets, LLC v. McIntire, 646 S.W.3d 800, 803 (Tex. 2022) 

(quoting Seideneck v. Cal Bayreuther Assocs., 451 S.W.2d 752, 754 (Tex. 

1970)). In determining whether a condition is unreasonably dangerous, 

courts consider several factors, including (1) whether the relevant 

condition was clearly marked, (2) the size of the condition, (3) whether 

the condition previously caused injuries or generated complaints, 
17

(4) whether it substantially differed from similar conditions, (5) whether 

it was naturally occurring, and (6) whether it met applicable safety 

standards. Id.; Christ v. Tex. Dep’t of Transp., 664 S.W.3d 82, 87 (Tex. 

2023). The Ranch contends it fulfilled any duty it owed as a landowner 

by posting speed-limit signs, clearing brush to maintain visibility of the 

track and signs, and ensuring the signs were posted. According to the 

Ranch, these actions eliminated any unreasonably dangerous condition 

and ensured that prudent drivers were fully aware of the risks. The 

Prados, in turn, contend that their experts’ testimony and the evidence 

regarding prior accidents constitutes some evidence that the crossing 

was unreasonably dangerous.

Even if we assume that the Prados are correct, however, the 

record must also contain some evidence that would support a finding 

that the Ranch knew the crossing was unreasonably dangerous. 

Sampson, 500 S.W.3d at 385. More specifically, they must provide some 

evidence that the Ranch actually knew that the crossing was 

unreasonably dangerous, not just that it should have known that it was. 

See State v. Tennison, 509 S.W.2d 560, 562 (Tex. 1974).

“Although there is no one test for determining actual knowledge 

that a condition presents an unreasonable risk of harm, courts generally 

consider whether the premises owner has received reports of prior 

injuries or reports of the potential danger presented by the condition.” 

Sampson, 500 S.W.3d at 392 (quoting Univ. of Tex.-Pan Am. v. Aguilar, 

251 S.W.3d 511, 513 (Tex. 2008)). “Circumstantial evidence establishes 

actual knowledge only when it ‘either directly or by reasonable 

inference’ supports that conclusion.” City of Corsicana v. Stewart, 249 
18

S.W.3d 412, 415 (Tex. 2008) (per curiam) (quoting State v. Gonzalez, 82 

S.W.3d 322, 330 (Tex. 2002)).

The Prados argue this record contains some evidence that the 

Ranch had actual knowledge that the crossing was unreasonably 

dangerous because the Ranch actually knew about the similar prior 

accident that resulted in a fatality. In support, it points to testimony of 

the Ranch’s president, Dustin Headlee, who said he was aware of a small 

cross that had been placed near the crossing and that his son, a Ranch 

employee, told him it was placed there after a previous accident. 

Headlee’s testimony is a little unclear: he says first that he knew of the 

cross but that he had “never noticed [it] very much.” He then said it was 

not until after Prado’s accident that his son told him “he’d heard that 

there was a prior accident.” 

These concessions by Headlee are simply not sufficient evidence 

to raise a fact issue on whether Headlee had actual knowledge of the 

prior accident. At most, they could support a finding that Headlee might 

have thought something had occurred at or near the crossing but that 

he was not actually aware of what occurred until after Prado’s accident. 

See Stewart, 249 S.W.3d at 414–15 (holding that city did not have actual 

knowledge of flooded intersection despite knowing that intersection 

frequently flooded, police officers reported heavy rainfall, and city knew 

that motorists were stranded at other intersections); see also Reyes v. 

City of Laredo, 335 S.W.3d 605, 609 (Tex. 2010) (per curiam) 

(“Awareness of a potential problem is not actual knowledge of an 

existing danger.”).
19

The Prados argue that even if Headlee did not have actual notice 

of the previous accident, the fact that his son knew is sufficient to impute 

the knowledge to the Ranch. Prado relies on Los Compadres Pescadores, 

L.L.C. v. Valdez, in which we held that “any knowledge” an agent had of 

a dangerous condition “must be imputed to” the principal. 622 S.W.3d 

771, 787 (Tex. 2021) (citing La Sara Grain Co. v. First Nat’l Bank of 

Mercedes, 673 S.W.2d 558, 563 (Tex. 1984) (“[A] corporation[] is bound 

by the knowledge of one of its agents if that knowledge came to him in 

the course of the agent’s employment.”)). But even if the son’s knowledge 

could be imputed to the Ranch, there is little to impute. Headlee’s 

testimony establishes only that his son knew of a fatal accident at or 

near the crossing. Headlee testified only that the cross was “down a little 

ways from where they put a little memorial for Mr. Prado.” 

This testimony constitutes no evidence that Headlee’s son or 

anyone else employed by the Ranch knew that the previous fatality 

resulted from a train–vehicle collision, much less that they knew enough 

of the circumstances of that accident to know that the crossing was 

unreasonably dangerous. As Headlee testified, the Ranch, as owner of 

the road, is not privy to any type of reporting mechanism that provides 

notice of accidents at the crossing. And there is no evidence Headlee or 

any Ranch employee ever received or saw the accident report, which is 

the only evidence in the record that the prior fatality was caused by an 

eastbound driver failing to stop at the stop sign. 

The Prados also argue that other circumstantial evidence 

supports a reasonable inference that the Ranch “must have known” the 

crossing was dangerous. They point to the Ranch’s admission that it 
20

knew the crossing had a relatively heavy traffic volume, and their expert 

opined that the Ranch “had a duty and responsibility . . . to evaluate the 

existing railroad crossing warning signs . . . to determine whether the 

addition of automatic gates and/or flashing light signals would mitigate 

and control the known hazard[].” Thus, the Prados argue, the Ranch 

“must have known” the crossing was dangerous.

We disagree for a few reasons. First, the expert did not opine that 

the Ranch had actual knowledge of any danger at the crossing. Second, 

circumstantial evidence may demonstrate actual knowledge only when 

the evidence makes knowledge of the dangerous condition “a virtual 

certainty.” Reyes, 335 S.W.3d at 609 (discussing and distinguishing City 

of San Antonio v. Rodriguez, 931 S.W.2d 535, 537 (Tex. 1996) (per 

curiam)). Prado’s expert opined only that the Ranch should have 

“evaluated” the crossing. Even assuming the Ranch had a duty to 

evaluate whether the crossing was dangerous and failed to do so, that 

would at most establish only that the Ranch should have known it was 

unreasonably dangerous, not that it actually knew it was.

IV.

Conclusion

We hold that on this record the trial court correctly concluded the 

evidence establishes as a matter of law that the railroad crossing was 

not extra-hazardous at the time of Prado’s accident and that the Ranch 

did not have actual knowledge that it was unreasonably dangerous. We 

therefore reverse the court of appeals’ judgment and reinstate the trial 

court’s summary judgment in favor of Union Pacific and the Ranch.
21

Jeffrey S. Boyd

Justice

OPINION DELIVERED: February 23, 2024