dissenting:
Tim Cline was a section boss at the defendant’s No. 5 Mine in Mingo County when he was tragically crushed between a rib of coal and the continuous mining machine he was operating. In the coal mines, a section boss is a first line supervisor. In reality, he is a man with no place to go. He is squarely situated in the middle of the traditional coal field tension between management and labor. Not only is he responsible for maintaining production, he must sometimes become involved in production itself. Due to his precarious position in the managerial hierarchy, a section boss is the first man to be thrown off the boat when its steerage becomes labored. He has no job tenure and no job protection. Tim Cline was in this position. Therefore, because management threatened to fire him if he did not protect the continuous miner, which was critical to the maintenance of production, Tim Cline acted to protect both the company’s machine and his own job.
Merely because Cline was a boss, and not protected by the benefits of a collective bargaining agreement, does not mean he is not entitled to the full benefit of the protections furnished by rules of law extant in civil and appellate procedure. As the majority correctly notes, the defendant in this case failed to renew its motion for a directed verdict at the close of all the evidence. The direct result of that failure, as the majority recognizes, is that the defendant thereby waived any “objection to the sufficiency of the evidence ....” Syl. pt. 1, Chambers v. Smith, 157 W.Va. 77, 198 S.E.2d 806, 809 (1973). This rule is not only parallel to the federal rule, as the majority indicates, but it is also by far the rule in the majority of jurisdictions. See Grindstaff v. Tygett, 655 S.W.2d 70 (Mo.App.1983); International Fidelity Ins. Co. v. Wilson, 387 Mass. 841, 443 N.E.2d 1308 (1983); Schmidt v. Pine Tree Land Development Co., 291 Or. 462, 631 P.2d 1373 (1981); Daniel v. Quick, 270 Ark. 528, 606 S.W.2d 81 (App.1980); Frisella v. Reserve Life Ins. Co., 583 S.W.2d 728 (Mo.App.1979); Drouillard v. Jensen Const. Co. of Oklahoma, Inc., 601 P.2d 92 (Okl.1979); Pearson v. Adams, 279 N.W.2d 674 (S.D.1979); Woods v. Harrell, 596 S.W.2d 92 (Tenn.App.1979); Hill-Martin Corp. v. Alling, 137 Vt. 432, 407 A.2d 168 (1979); Murphy v. Frinkman, 92 N.M. 428, 589 P.2d 212 (1978); R.J. Frank Realty, Inc. v. Heuvel, 284 Or. 301, 586 P.2d 1123 (1978); Terrio v. Millinocket Community Hospital, 379 A.2d 135 (Me.1977); Barber v. Citizens and Southern Nat. Bank, 268 S.C. 16, 231 S.E.2d 295 (1977); Hauser v. Calawa, 116 N.H. 676, 366 A.2d 489 (1976); Johnson v. McAllister, 455 S.W.2d 563 (Ky.1970); Schofield v. Uebel, 254 Md. 402, 254 A.2d 655 (1969); Christensen v. Stuchlik, 91 Idaho 504, 427 P.2d 278 (1967).
The policies underlying this rule are well established. In Coughlin v. Capitol Cement Co., 571 F.2d 290, 297 (5th Cir.1978), the Fifth Circuit identified the primary reason for the rule: “The policy underlying this rule is sound: a party is not permitted to gamble on the verdict and later question the sufficiency of the evidence that led to his defeat.” Additionally, as the court stated in Little v. Bankers Life and Casualty Co., 426 F.2d 509, 511 (5th Cir.1970), “the litigant who has not moved for a directed verdict in the trial court must have been of the view that the evidence made a case for the jury; he should not be permitted on appeal to impute error to the trial judge for sharing that view.” Therefore, “courts have adhered to the longstanding rule that the introduction of evidence [after making an unsuccessful motion for directed verdict at the close of his opponent’s case] constitutes a waiver of the objection to the sufficiency of the evidence unless the motion is renewed at the time when all the evidence *776is in.” 5A Moore’s Federal Practice § 50.05 (1977) (footnotes omitted).
The majority, while paying lip service to this well established rule of law, attempts to sidestep its application by apparently holding that waiver does not extend to motions for a new trial based upon insufficiency of the evidence. This attempt to avoid the waiver rule conflicts with its general application throughout the country.
In Scheib v. Williams-McWilliams Co., Inc., 628 F.2d 509, 512 (5th Cir.1980), the court stated the generally accepted rule,
When, as in this case, a motion for a new trial has been made on the ground of insufficient evidence to support the verdict and the like, the failure by the losing party to move for a directed verdict ... still operates to foreclose consideration of the question of sufficiency on appeal, and the appellate court may inquire only whether the trial court abused its discretion in overruling the motion for a new trial.
Quoting, Little, supra at 511, citing, Brown v. Burr-Brown Research Corp., 378 F.2d 822, 824 (5th Cir.1967); Pruett v. Marshall, 283 F.2d 436, 438 (5th Cir.1960); see also Valm v. Hercules Fish Products, Inc., 701 F.2d 235 (1st Cir.1983); TCP Industries, Inc. v. Uniroyal, Inc., 661 F.2d 542 (6th Cir.1981); LaForest v. Autoridad de Las Fuentes Fluviales de Puerto Rico, 536 F.2d 443 (1st Cir.1976); Berman v. Palatine Ins. Co., 379 F.2d 371 (7th Cir.1967); Southern Railway Co. v. Miller, 285 F.2d 202 (6th Cir.1960); Oslund v. State Farm Mutual Automobile Ins. Co., 242 F.2d 813 (9th Cir.1957); Home Ins. Co. v. Davila, 212 F.2d 731 (1st Cir.1954); Irvin Jacobs & Co. v. Fidelity & Deposit Co., 202 F.2d 794 (7th Cir.1953); Atlantic Coast Line R. Co. v. Smith, 135 F.2d 40, 41 (5th Cir.1943); Woodbridge v. DuPont, 133 F.2d 904 (2d Cir.1943); Fallert Tool & Engineering Co., Inc. v. McClain, 579 S.W.2d 751 (Mo.App.1979); Eva-Lee, Inc. v. Thomson General Corp., 5 Mass.App. 823, 362 N.E.2d 935 (1977); Drouillard v. Jensen Construction Co. of Oklahoma, Inc., supra; Fales v. Kaupp, 83 S.D. 487, 161 N.W.2d 855 (1968); Bredouw v. Jones, 431 P.2d 413 (Okl.1966); Galbraith v. Oswald, 237 Md. 620, 205 A.2d 797 (1965); Clagett v. Neugebauer, 376 S.W.2d 768 (Tex.Civ.App.1964); but see Vieau v. City and County of Honolulu, 653 P.2d 1161 (Hawaii App.1982).
The court in Scheib, 628 F.2d at 512, identified the issue on appeal of a denial of a motion for a new trial based upon insufficiency of the evidence where the appellant fails to renew his motion for a directed verdict as “whether there was an ‘absolute absence of evidence to support the jury’s verdict.’ Fugitt v. Jones, 549 F.2d 1001 at 1004 (5th Cir.1977); Litherland v. Petrolane Offshore Construction Services, Inc., 546 F.2d 129, 134 (5th Cir.1977); Urti v. Transport Commercial Corp., 479 F.2d 766, 769 (5th Cir.1973); Indamer Corp. v. Crandon, 217 F.2d 391, 393 (5th Cir.1954).” Similarly, other courts have adopted severely stringent tests for reviewing the sufficiency of the evidence upon appellant’s failure to renew his motion for a directed verdict. In Dunn v. Sears, Roebuck & Co., 639 F.2d 1171, 1175 (5th Cir.1981), the court stated, “Our inquiry is ... ‘limited to whether there was any evidence to support the jury’s verdict, irrespective of its sufficiency, or whether plain error was committed which, if not noticed, would result in a ‘manifest miscarriage of justice.’ Coughlin v. Capitol Cement Co., 571 F.2d at 297; Little v. Bankers Life & Casualty Co., 426 F.2d 509, 511 (5th Cir.1970).” In Valm, 701 F.2d at 237, the court stated, “In order to award a new trial in this case, we must find that the jury’s verdict was so clearly against the weight of the evidence as to constitute a manifest miscarriage of justice.” Quoting Hubbard v. Faros Fisheries, Inc., 626 F.2d 196, 200 (1st Cir.1980). Several state courts also apply a “manifest injustice” or “miscarriage of justice” test in such cases. See Avery v. Gilliam, 97 Nev. 181, 625 P.2d 1166 (1981); Fee, Parker & Lloyd, P.A. v. Sullivan, 379 So.2d 412 (Fla.App.1980); Henderson v. Meyer, 533 P.2d 290 (Utah 1975).
The only “miscarriage of justice” in the present case is the majority’s failure to afford Cline the appropriate standard of review. Under the “any evidence” test, *777Cline clearly presented sufficient evidence to allow the case to go to the jury, and to support its subsequent verdict. His employer’s conduct in threatening his job unless he protected the continuous miner created a situation whereby Cline was forced to obliterate his concerns about his own personal safety in favor of the safety of his employer’s machine, which his employer knew was malfunctioning and in need of repair. By ignoring the correct standard of review, the majority substitutes its interpretation of the facts, based upon a cold record, for that of both the trial court and the jury. Moreover, a curious result of this disregard for the waiver rule is that the majority is forced to remand a case for retrial which it has already determined fails to state a cause of action upon which relief may be granted. Yet, the majority clearly holds that Cline is entitled to a new trial, and a new trial he must have. Accordingly, for the foregoing reasons, I will not condone this travesty of justice.
I am authorized to say that Justice HARSHBARGER joins in this dissent.