(dissenting)'.
I find myself unable to agree with my associates in the conclusion which they have reached in this case.
The deceased was a trespasser upon the right of way of the railroad company. The railroad company owed deceased no duty to use ordinary care to discover him on its tracks or to discover his dangerous position. It was under no obligation to defendant, a trespasser, other than not to injure him wilfully or intentionally when his peril came to the notice of the company. The duty of a railroad company not to injure a trespasser upon its right of way begins only when he is actually discovered in his position of peril, not when a reasonable, prudent person would have so discovered him. A. T. & S. F. Ry. Co. v. Phillips, 158 Okl. 141, 12 P.2d 908; Oklahoma R. Co. v. Overton, 158 Okl. 96, 12 P.2d 537; Missouri, K. & T. R. Co. v. Robnett, 57 Okl. 470, 157 P. 72; Atchison, T. & S. F. Ry. Co. v. Howard, 98 P.2d 914, decided by Oklahoma Supreme Court, Sept. 19, 1939; Missouri Pac. R. Co. v. Gordon, 98 P.2d 39, decided by Oklahoma Supreme Court, Sept. 19, 1939.
The only positive testimony adduced by plaintiff was the testimony of the engineer. He testified that he blew his whistle for the crossing just before rounding the curve, about 900 feet from the place of the accident; that in a second or two after sounding the whistle he rounded the curve and for the first time discovered deceased in a *910position of peril; that he immediately set his brakes in emergency and sounded the stock alarm; that it was all done so quickly that he could not tell whether he set his brakes first or sounded the alarm whistle first. The engineer testified that the only thing that can be done toward stopping a train is to set the brakes, shut off the throttle and get the steam out of. the cylinders as quickly as possible. He testified that he did not know how long he waited before he applied the sand; that it was all done so quickly he could not say.
This is all the direct evidence as to what occurred. The only evidence as to any dereliction Of duty on the part of the defendant company is inferences drawn from circumstantial testimony, Lester Hoffman, who lived about 75 steps west of the right of way, testified that he was working around his home; that he saw the train passing; that he watched it casually; and that in his opinion it was traveling from 15 to 20 miles per hour.
Lawrence Hoffman, his brother, testified that he was about 100 yards from the railway; that he saw the train pass; that he estimated its speed at.about 15 miles an hour; that he did not see the train at the point of accident; that where he saw the train pass was about three-fourths of a mile from the place of the accident; that he never paid any attention to the train after it passed. There was testimony that a train traveling 20 miles an hour can be stopped within 250 feet.
Some photographs taken at the scene of the accident were offered in evidence. They were taken from a height approximating that at which the engineer would be sitting in his locomotive. Some of these pictures show a person standing at the approximate place where the accident occurred and show the person visible for approximately 1188 feet. These exhibits also show that at this distance it cannot be told where the person is standing with relation to the rail. They do not reveal whether a person standing in such a position is outside of the line of danger or within the line of danger. The inference to be drawn from these exhibits is that the engineer saw deceased in a position of peril for a much greater distance than he testified to. The question is: When did the engineer first see deceased, not when would a reasonable, prudent person first have discovered him.
Plaintiff established by the positive testimony of the engineer when the engineer first saw deceased in a position of danger.
This accident occurred June 29, 1937. The Hoffman brothers testified in October, 1938, a year and a half later, as to the speed at which the train was going on this particular day. The testimony of both of them is that they only casually observed the train as it went by. No qualifying testimony was adduced showing that they had any knowledge or familiarity with trains or their speeds or that they were qualified in any way to estimate the speed of a locomotive. By this circumstantial evidence it is attempted to establish that the engineer was guilty of negligence, and the attempt is made to discredit his testimony that he applied the brakes immediately when he rounded the curve, but was unable to stop when he was 900 feet away.
A mere scintilla of evidence is not enough to require the submission of an issue to a jury. Before the evidence is left to a jury, there is a preliminary question for the judge to decide, not whether there is literally no evidence, but whether there is enough evidence upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed. Schuylkill & D. Improvement & R. Co. v. Munson, 14 Wall, 442, 448, 81 U.S. 442, 448, 20 L.Ed. 867; Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720. It has been decided that a scintilla of evidence will not support a verdict in the United States courts. Larabee Flour Mills v. Carignano, 10 Cir., 49 F.2d 151; Central Surety & Insurance Co. v. Murphy, 10 Cir., 103 F.2d 117.
It is the trial court’s duty to direct a verdict at the close of the evidence where, although there is some conflict in the evidence, it is so conclusive that the court in the exercise of sound judicial discretion ought to set aside a verdict in opposition to it as rendered by a jury. New Amsterdam Casualty Co. v. Farmers’ Co-Op. Union of Lyons, Kansas, 8 Cir., 2 F.2d 214.
The trial judge presided at this trial, he had an opportunity to, observe the witnesses, their demeanor, their apparent intelligence, their conduct on the witness stand, their knowledge as to the things concerning which they testified, and in my opinion was in a much better position to determine whether the inferences to be drawn from the circumstantial testimony were sufficient *911to overcome the positive testimony of the engineer so as to require a submission of the cause to the jury than is the appellate court.
The record in this case does not reveal to me that this positive duty resting on the trial court was abused. In my opinion the decision of the trial court should be affirmed.