(dissenting).
The accident happened under the most unlooked for and extraordinary circumstances. The heavy train of 76 freight cars, loaded with coal and drawn by a double unit Diesel engine, was proceeding on a slight upgrade at the rate of 15 miles per hour on a track which ran in a narrow space between a mountain on one side and a river on the other. The automobile had just fallen from the mountain side and lay on its right side between the mountain and the tracks, with its top extending a short distance over the rail next to the mountain. There was no access to the tracks from either side at the point of the accident or at any point in either direction for a long distance, and there was no reason for the trainmen to expect to encounter any person or animal on the tracks in this vicinity. Certainly it was beyond reason to foresee the presence of an overturned automobile.
It was after 5 P.M. on March 23, 1953, on a dim and misty evening. The automobile had fallen from the cliff before the train rounded a curve 1250 feet away. The uncontradicted evidence is that the trainmen did not see the car until it was too late to avoid the collision. However, at the moment of collision the speed of the train was diminishing, so that it stopped a few feet, less than a car length, beyond the automobile. It stopped because appropriate steps had already been taken, since the trainmen had been alerted to the fact that there was trouble ahead. The fireman, who sat on the river side of the engine, first became aware that something was wrong when he saw a man across the river waving his arms and pointing down the track ahead of the engine. The fireman at once notified the engineer and told him there must be something on the track. The engine was then about 600 feet from the car. The engineer immediately took the following steps. He made a reduction in the air pressure to slacken the speed of the train, applied the emergency brake, put sand on the track, rang the bell, and blew the whistle. These steps were taken in rapid succession, if not simultaneously, and the uncontradicted testimony of the engineer is that nothing else could have been done. It is now suggested that the engineer should have put on the emergency brake before he did anything else; but there is no testimony by any person that this procedure would have been feasible or that the course adopted was not usual or proper, or that the trainmen did not act with due care in view of the facts then known to them.
All of these precautions were taken before the trainmen caught sight of the girl who, according to her testimony, ran up the track in her stocking feet in the direction of the train for a distance of 400 feet waving her arms. When they did see her, the engineer waved her off the track and then, according to her testimony, she ran back a distance of 400 feet and reached the car before the engine struck it. The attention of the trainmen was directed toward her actions and they did not see the automobile until later. When they did see it there was nothing more that could be done. All of the procedures for the stopping of the train had already been taken by the time they saw the girl. She testified that she did not notice any slackening of the speed of the train, and hence it is said that there was *174some evidence of negligence to go to the jury. Her testimony, however, is obviously without probative force for it is conceded that the train stopped only a few feet beyond the car and in this space the heavy train of 76 loaded ears, running at the rate of 15 miles an hour, could not have been stopped if the brakes had not been previously applied. -Moreover, she was so shaken by her terrifying experience of falling from the cliff in the car, which she was driving, that according to her own testimony she found herself standing by the track after the fall without knowing how she had gotten out of the car.
It is established under the law of West Virginia that a railroad company owes no duty to trespassers on the tracks at a point where persons would not be expected to be, except to use ordinary care to avoid injuring them after their presence has been discovered by the operators of the trains. The rule was applied amongst other cases in Raines v. Chesapeake & O. Ry. Co., 39 W.Va. 50, 19 S.E. 565, 24 L.R.A. 226; Huff v. Chesapeake & O. Ry. Co., 48 W.Va. 45, 35 S.E. 866; Tompkins v. Sunday Creek Co., 68 W.Va. 483, 69 S.E. 980; Prok v. Norfolk & W. R. Co., 75 W.Va. 697, 84 S.E. 568; Ballard v. Charleston Interurban R. Co., 113 W.Va. 660, 169 S.E. 524; Barron v. B. & O. R. Co., 116 W.Va. 21; Payne v. Virginian Ry. Co., 131 W.Va. 767, 51 S.E.2d 514; Stokey v. Norfolk & W. Ry. Co., 132 W.Va. 771, 55 S.E.2d 102; Chesapeake & O. Ry. Co. v. Craft, 4 Cir., 162 F.2d 67.1
These decisions embody the element of foreseeability in determining what is due care in a given case, and apply the general rule in the law of torts that no one is bound to guard against or take measures to avert that which under the circumstances a reasonably prudent person would not anticipate as likely to happen. In Atchison, T. & S. F. Ry. Co. v. Calhoun, 213 U.S. 1, 9, 29 S.Ct. 321, 323, 53 L.Ed. 671, the court said:
“But, even where the highest degree of care is demanded, still the one from whom it is due is bound to guard only against those occurrences which can reasonably be anticipated by the utmost foresight. It has been well said that, ‘if men went about to guard themselves against every risk to themselves or others which might, by ingenious conjecture, be conceived as possible, human affairs could not be carried on at all. The reasonable man, then, to whose ideal behavior we are to look as the standard of duty, will neither neglect what he can forecast as probable, nor waste his anxiety on events that are barely possible. He will order his precaution by the measure of what appears likely in the known course of things.’ Pollock, Torts, 8th ed. 41.”
See also Consumers Power Co. v. Nash, 6 Cir., 164 F.2d 657, 658; Kansas City Southern Ry. Co. v. Pinson, 5 Cir., 23 F.2d 247, 248; Johnson v. Kosmos Portland Cement Co., 6 Cir., 64 F.2d 193, 195; Fort Smith Gas Co. v. Cloud, 8 Cir., 75 F.2d 413, 415, 97 A.L.R. 833; Hale v. Montana-Dakota Utilities Co., 8 Cir., 192 F.2d 274, 276. Restatement of Torts, § 282 — Comment g; Restatement of Torts, § 289 — Comment b.
The application of this rule by the trial court in the instant case was peculiarly appropriate to the extraordinary circumstances of the accident which happened at a point on the railroad tracks where no person would be expected to be, much less a wrecked automobile occupied by human beings. The situation was so unprecedented that even if it should be *175deemed possible to draw some inference of negligence on the part of the Railroad Company, it would be so remote and tenuous as to furnish no basis for an adverse verdict. The rule is so well settled in this and other federal circuits as to leave little room for debate.
It is undoubtedly true that the trial judge in the exercise of a sound discretion may grant a new trial, although there was substantial evidence to support the verdict, if he thinks this action is necessary to prevent a miscarriage of justice; but it is not always necessary for him to postpone action until the verdict is rendered. As Judge Parker said in Garrison v. United States, 4 Cir., 62 F.2d 41, 42, the trial judge may direct a verdict when the evidence is so overwhelmingly against one party as to leave no room to doubt what the fact is. Many years ago Judge Walter H. Sanborn in Motey v. Pickle Marble & Granite Co., 8 Cir., 74 F. 155, 157, stated the idea in these words. “It is the duty of the trial court at the close of the evidence to direct a verdict for the party who is clearly entitled to recover where it would be its duty to set aside a verdict in favor bf his opponent if one were rendered”; and the Supreme Court, in Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 343, 53 S.Ct. 391, 395, 77 L.Ed. 819, gave authoritative sanction to the rule when it said:
“ * * * where the evidence is ‘so overwhelmingly on one side as to leave no room to doubt what the fact is, the court should give a peremptory instruction to the jury.’ * * * The rule is settled for the federal courts, and for many of the state courts, that whenever in the trial of a civil case the evidence is clearly such, that if a verdict were rendered for one of the parties the other would be entitled to a new trial, it is the duty of the judge to direct the jury to find according to the views of the court. Such a practice, this court has said, not only saves time and expense, but ‘gives scientific certainty to the law in its application to the facts and promotes the end of justice.’ * * The scintilla rule has been definitely and repeatedly rejected so far as the federal courts are concerned.”
See also Gunning v. Cooley, 281 U.S. 90, 93, 50 S.Ct. 231, 74 L.Ed. 720; Myers v. Reading Co., 331 U.S. 477, 485, 67 S.Ct. 1334, 91 L.Ed. 1615.
These decisons have never been repudiated. On the contrary they have been followed on numerous occasions in this and other circuits. The courts have not only set aside verdicts based on a scintilla of evidence, or speculation, or conjecture, but have reiterated the rule that where the evidence is “so overwhelmingly on one side as to leave no room to doubt what the fact is, the court should give a peremptory instruction to the jury.”2
The decision of the District Judge in the instant case was fully justified.
. Many of the cases go so far as to say that the railroad company owes no duty to a trespasser except to do him no wilful or wanton injury after he is discovered; and in Connelly v. Virginian Ry. Co., 124 W.Va. 254, 20 S.E.2d 885, the court held that the railroad had no liability for the death of an unconscious man lying on the tracks, since there was no negligence after his presence was discovered.
. United States v. Ingalls, 10 Cir., 67 F.2d 593, 596; Ferreyros v. Fox Theatres Corp., 63 App.D.C. 3, 68 F.2d 575, 576; Arnall Mills v. Smallwood, 5 Cir., 68 F.2d 57, 59; Adams v. Barron G. Collier, 8 Cir., 73 F.2d 975, 977; Chambers v. Skelly Oil Co., 10 Cir., 87 F.2d 853, 856; Wardman v. Washington Loan & Trust Co., 67 App.D.C. 184, 90 F.2d 429, 431; N. L. R. B. v. A. S. Abell Co., 4 Cir., 97 F.2d 951, 958; N. L. R. B. v. Asheville Hosiery Co., 4 Cir., 108 F.2d 288, 292, 293; Daroca v. Metropolitan Life Ins. Co., 5 Cir., 121 F.2d 917, 920; White v. New York Life Ins. Co., 5 Cir., 145 F.2d 504, 509; Gill v. Reveley, 10 Cir., 132 F.2d 975, 976; Floyd v. Ring Const. Corp., 8 Cir., 165 F.2d 125, 129; See also Texas Co. v. Hood, 5 Cir., 161 F.2d 618, 620; Scocozza v. Erie R. Co., 2 Cir., 171 F.2d 745, 747; Eastern Coal Corp. v. N. L. R. B., 4 Cir., 176 F.2d 131, 136; Moore v. Chesapeake & O. Ry. Co., 4 Cir., 184 F.2d 176, 179.