dissenting:
I respectfully dissent from the majority’s failure to apply the appropriate standard regarding motions for a directed verdict and from its misapplication of the appropriate standards set forth in Syllabus Point 1 of Mandolidis v. Elkins Industries, Inc., 161 W.Va. 695, 246 S.E.2d 907 (1978) and in the single Syllabus of Cline v. Joy Mfg. Co., 172 W.Va. 769, 310 S.E.2d 835 (1983).
In Syllabus Point 5 of Wager v. Sine, 157 W.Va. 391, 201 S.E.2d 260 (1973), this Court stated the general rule that, “Upon a motion for a directed verdict, all reasonable doubts and inferences should be resolved in favor of the party against whom the verdict is asked to be directed.” See also Syl. pt. 3, Robertson v. LeMaster, 171 W.Va. 607, 301 S.E.2d 563 (1983); Syl. pt. 1, Jimco Supply Co. v. Neal, 166 W.Va. 794, 277 S.E.2d 626 (1981); Syl. pt. 2, Ashland Oil, Inc. v. Donahue, 164 W.Va. 409, 264 S.E.2d 466 (1980). This is a condensation of the long established rule in this jurisdiction that, “Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence.” Syl., Nichols v. Raleigh-Wyoming Coal Co., 112 W.Va. 85, 163 S.E. 767 (1932); see also Syl. pt. 9, Casto v. Martin, 159 W.Va. 761, 230 S.E.2d 722 (1976); Syl, Curry v. Heck’s Inc., 157 W.Va. 719, 203 S.E.2d 696 (1974); Syl. pt. 5, Young v. Ross, 157 W.Va. 548, 202 S.E.2d 622 (1974); Syl. pt. 1, Pinfold v. Hendricks, 155 W.Va. 489, 184 S.E.2d 731 (1971); Syl. pt. 5, Smith v. Edward M. Rude Carrier Corp., 151 W.Va. 322, 151 S.E.2d 738 (1966); Syl. pt. 1, Duling v. Bluefield Sanitarium, Inc., 149 W.Va. 567, 142 S.E.2d 754 (1965); Syl. pt. 4, Thornsbury v. Thornsbury, 147 W.Va. 771, 131 S.E.2d 713 (1963); Syl. pt. 1, Lambert v. Goodman, 147 W.Va. 513, 129 S.E.2d 138 (1963); Syl. pt. 1, Spaur v. Hayes, 147 W.Va. 168, 126 S.E.2d 187 (1962); Syl. pt. 5, Reilley v. Byard, 146 W.Va. 292, 119 S.E.2d 650 (1961); Syl. pt. 3, Costello v. City of Wheeling, 145 W.Va. 455, 117 S.E.2d 513 (1960); Syl. pt. 1, Jenkins v. Chatterton, 143 W.Va. 250, 100 S.E.2d 808 (1957); Syl. pt. 1, Reese v. Lowry, 140 W.Va. 772, 86 S.E.2d 381 (1955), overruled on other grounds, Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979); Syl. pt. 1, Roush v. Johnson, 139 W.Va. 607, 80 S.E.2d 857 (1954); Syl. pt. 4, Montgomery v. Fay, 139 W.Va. 273, 80 S.E.2d 103 (1954); Syl. pt. 1, Homes v. Monongahela Power Co., 136 W.Va. 877, 69 S.E.2d 131 (1952); Syl., Hammersmith v. Bussey, 136 W.Va. 437, 67 S.E.2d 609 (1954); Syl. pt. 3, Sammons Bros. Const. Co. v. Elk Creek Coal Co., 135 W.Va. 656, 65 S.E.2d 94 (1951); Syl. pt. 1, Frampton v. Consolidated Bus Lines, 134 W.Va. 815, 62 S.E.2d 126 (1950); Syl, Perry v. Scott, 134 W.Va. 380, 59 S.E.2d 652 (1950); Syl., Raeder v. Sconish, 133 W.Va. 795, 58 S.E.2d 265 (1950); Syl. pt. 1, Konopka v. Montgomery Ward & Co., 133 W.Va. 775, 58 S.E.2d 128 (1950); Syl. pt. 1, Laphew v. Consolidated Bus Lines, 133 W.Va. 291, 55 S.E.2d 881 (1949); Syl. pt. 1, Stokey v. Norfolk & Western Ry. Co., 132 W.Va. 771, 55 S.E.2d 102 (1949); Syl. pt. 1, Parsons v. New York Cent. R. Co., 127 W.Va. 619, 34 S.E.2d 334 (1945); Syl. pt. 1, Boyce v. Black, 123 W.Va. 234, 15 S.E.2d 588 (1941); Syl. pt. 1, Fielder v. Service Cab Co., 122 W.Va. 522, 11 S.E.2d 115 (1940); Syl. pt. 1, Burgess v. Sanitary Meat Market, 121 W.Va. 605, 5 S.E.2d 785 (1940); Syl. pt. 2, Hambrick v. Spalding, 116 W.Va. 235, 179 S.E. 807 (1935); Syl. pt. 4, Jameson v. Norfolk & Western Ry. Co., 97 W.Va. 119, 124 S.E. 491 (1924); Syl. pt. 3, Estep v. Price, 93 W.Va. 81, 115 S.E. 861 (1923); Syl. pt. 2, Potts v. Union Traction Co., 75 W.Va. 212, 83 S.E. 918 (1914). Rather than resolving all reasonable doubts and inferences in favor of the plaintiffs as mandated by this well established rule, however, the majority employs an implicit preponderance of the evidence test, substituting its view of the evidence for that of the jury and the trial court.
Related to the rule that all reasonable doubts and inferences are to be resolved in favor of the party against whom the verdict is asked to be directed is the proposition that, “It is the peculiar and exclusive *81province of the jury to weigh the evidence and resolve questions of fact when the testimony of witnesses regarding them is in conflict; and the finding of the jury on such facts will not be disturbed by this Court.” Syl. pt. 4, Davis v. Sargent, 138 W.Va. 861, 78 S.E.2d 217 (1953); see also Syl. pt. 2, Blamble v. Harsh, 163 W.Va. 733, 260 S.E.2d 273 (1979); Syl. pt. 2, Bourne v. Mooney, 163 W.Va. 144, 254 S.E.2d 819 (1979); Syl. pt. 3, Long v. City of Weirton, 158 W.Va. 741, 214 S.E.2d 832 (1975); Syl. pt. 3, Hall v. Nello Teer Co., 157 W.Va. 582, 203 S.E.2d 145 (1974); Syl. pt. 4, Young v. Ross, supra; Syl. pt. 3, Wager v. Sine, supra; Syl. pt. 3, Willey v. Travelers Indem. Co., 156 W.Va. 398, 193 S.E.2d 555 (1972); Syl. pt. 2, Kidd v. Norfolk & Western Ry. Co., 156 W.Va. 296, 192 S.E.2d 890 (1972), overruled on other grounds, Bradley v. Appalachian Power Co., 163 W.Va. 332, 256 S.E.2d 879 (1979); Syl. pt. 2, Skeen v. C & G Corp., 155 W.Va. 547, 185 S.E.2d 493 (1971); Syl. pt. 3, Western Auto Supply Co. v. Dillard, 153 W.Va. 678, 172 S.E.2d 388 (1970); Syl. pt. 4, Shaeffer v. Burton, 151 W.Va. 761, 155 S.E.2d 884 (1967); Syl. pt. 2, Sydenstricker v. Vannoy, 151 W.Va. 177, 150 S.E.2d 905 (1966); Syl. pt. 1, Evans v. Farmer, 148 W.Va. 142, 133 S.E.2d 710 (1963); Syl. pt. 2, Graham v. Crist, 146 W.Va. 156, 118 S.E.2d 640 (1961); Syl. pt. 2, Overton v. Fields, 145 W.Va. 797, 117 S.E.2d 598 (1960); Syl. pt. 5, Lewis v. Mosorjak, 143 W.Va. 648, 104 S.E.2d 294 (1958). Accordingly, this Court had consistently held that, “Where the evidence is conflicting and the case is fairly tried under proper instructions the jury verdict will not be set aside unless it is plainly contrary to the weight of evidence or is without any evidence to support it.” Bourne v. Mooney, 163 W.Va. at 148, 254 S.E.2d at 821; see also Syl., Morgan v. Bottome, 170 W.Va. 23, 289 S.E.2d 469 (1982); Syl. pt. 1, Elsey Ford Sales, Inc. v. Soloman, 167 W.Va. 891, 280 S.E.2d 718 (1981); Syl. pt. 2, Department of Highways v. Delta Concrete Co., 165 W.Va. 398, 268 S.E.2d 124 (1980); Syl. pt. 2, Rhodes v. National Homes Corp., 163 W.Va. 669, 263 S.E.2d 84 (1979); Syl. pt. 3, Blamble v. Harsh, supra; Syl. pt. 3, Bourne v. Mooney, supra; Syl. pt. 2, Hopkins v. Grubb, 160 W.Va. 71, 230 S.E.2d 470 (1977); Syl. pt. 6, Higginbotham v. City of Charleston, 157 W.Va. 724, 204 S.E.2d 1 (1974), overruled on other grounds, O’Neil v. City of Parkersburg, 160 W.Va. 694, 237 S.E.2d 504 (1977); Syl. pt. 4, Kidd v. Norfolk & Western Ry. Co., supra; Syl. pt. 1, Yeager v. Stevenson, 155 W.Va. 16, 180 S.E.2d 214 (1971); Syl. pt. 2, Western Auto Supply Co. v. Dillard, supra; Syl. pt. 6, Fortner v. Napier, 153 W.Va. 143, 168 S.E.2d 737 (1969); Syl. pt. 5, Shaeffer v. Burton, supra; Syl., Speicher v. State Farm Mut. Auto. Ins. Co., 151 W.Va. 292, 151 S.E.2d 684 (1966); Syl. pt. 9, Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966); Syl. pt. 6, Poe v. Pittman, 150 W.Va. 179, 144 S.E.2d 671 (1965); Syl. pt. 1, Levine v. Headlee, 148 W.Va. 323, 134 S.E.2d 892 (1964); Syl. pt. 2, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 (1963); Syl. pt. 2, Shaw v. Perfetti, 147 W.Va. 87, 125 S.E.2d 778 (1962); Syl. pt. 4, Campbell v. Campbell, 146 W.Va. 1002, 124 S.E.2d 345 (1962); Syl. pt. 3, Overton v. Fields, 145 W.Va. 797, 117 S.E.2d 598 (1960); Syl. pt. 6, Earl T. Browder, Inc. v. County Court, 145 W.Va. 696, 116 S.E.2d 867 (1960); Syl. pt. 1, Moore v. United Ben. Life Ins. Co., 145 W.Va. 549, 115 S.E.2d 311 (1960); Syl. pt. 2, Harless v. Workman, 145 W.Va. 266, 114 S.E.2d 548 (1960); Syl. pt. 4, Laslo v. Griffith, 143 W.Va. 469, 102 S.E.2d 894 (1958); Syl. pt. 6, Dodrill v. Young, 143 W.Va. 429, 102 S.E.2d 724 (1958), Syl. pt. 6, Davis v. Sargent, supra; Syl. pt. 3, Morris v. Nelson, 136 W.Va. 722, 68 S.E.2d 9 (1952); Syl. pt. 1, Mills v. Miller, 135 W.Va. 627, 64 S.E.2d 111 (1951); Syl. pt. 2, Wine v. City Lines of West Virginia, 134 W.Va. 889, 62 S.E.2d 260 (1951); Syl. pt. 2, Davis v. Pugh, 133 W.Va. 569, 57 S.E.2d 9 (1950); Syl. pt. 2, Yuncke v. Welker, 128 W.Va. 299, 36 S.E.2d 410 (1946); Syl., Dangerfield v. Akrs, 127 W.Va. 409, 33 S.E.2d 140 (1945); Syl. pt. 1, Ware v. Hays, 119 W.Va. 585, 195 S.E. 265 (1938); Syl. pt. 2, Stephens v. Bartlett, 118 W.Va. 421, 191 S.E. 550 (1937); Syl. pt. 1, Kaufman v. Charleston Transit Co., 117 W.Va. 591, 186 S.E. 617 (1936); Syl. pt. 2, Hohmann v. County *82Court, 109 W.Va. 734, 156 S.E. 86 (1930). The majority in the instant proceeding continues the practice it established in Cline of usurping the province of the jury by reevaluating the weight of conflicting evidence without an explicit determination that the jury verdict was either plainly contrary to the weight of the evidence or without any evidence to support it. As was stated in the dissent in Cline, 172 W.Va. at 777, 310 S.E.2d at 843, “By ignoring the correct standard of review, the majority substitues its interpretation of the facts, based upon a cold record, for that of both the trial court and the jury.”
In addition to its failure to give appropriate deference to the trial court and the jury, the majority also misapplies the standards set forth in Mandolidis and Cline to the circumstances involved in the present action. The majority concludes that, “[Wjhile there may have been a design defect in the arrangement of the canopy, this does not prove a deliberate intent to injure as required by Mandolidis and Cline.” Although “deliberate intent” to injury may manifest itself in the form of a direct physical assault, both Mandolidis and Cline recognize that “wilfull, wanton and reckless” conduct on the part of the employer resulting in injury to an employee will support a tort recovery. Syl. pt. 1, Mandolidis, supra; Syl., Cline. The injured employee in Mandolidis was not thrown into the power saw by his employer with a deliberate intent to injure. Nevertheless, this Court held that the employer’s maintenance of a hazardous condition in wilfull, wanton, and reckless disregard for the safety of its employees removed the tort action immunity bar granted by the workers’ compensation system. 161 W.Va. at 706, 246 S.E.2d at 914. I agree with the majority that the circumstances involved in Mandolidis were “compelling.” I disagree with the implication that an identical or worse set of circumstances is essential to recover under the wilfull, wanton, and reckless misconduct standard.
The brief recitation of the circumstances involved in the instant action by the majority is incongruous with the complexity of the evidence presented at trial. For example, the majority fails to mention that the forklift involved was actually a combination of two different thirteen year old forklifts, one a two-stage forklift and the other a three-stage forklift. What the majority characterizes as the installation of “shorter booms” on one of the forklifts was actually the transfer of a two-stage boom to a three-stage machine. Evidence introduced by the plaintiff indicated that this modification to the forklift was performed by the employer in wilfull, wanton, and reckless disregard for the safety of the employees operating this machine. Specifically, the plaintiff's evidence indicated that the substantial decrease in the height to which loads could be lifted with a two-stage boom on a three-stage machine mandated that the forks be tilted severely in order to raise the material to be transported to a sufficient height which in turn resulted in a significant likelihood that the boom could catch the expanded metal hanging near the boom raising the safety canopy poles out of their brackets causing the canopy to crash on the driver. The plaintiff presented evidence through testimony of a fellow employee that the employer’s modification of the forklift had nearly resulted in similar injury two weeks prior to the plaintiff’s accident. This employee also testified that he had reported this condition to a maintenance supervisor, although the majority implicitly discounts his testimony in favor of the supervisor, who denied receiving any complaints concerning the forklift. The trial court, under the appropriate standard, considered this and other conflicting evidence presented, resolving all reasonable doubts and inferences in favor of the plaintiff, and denied the employer’s motion for a directed verdict. The jury weighed the conflicting evidence and concluded that the employer was guilty of wilfull, wanton, and reckless misconduct. I dissent from the majority’s invasion of the province of the trial court and jury, particularly where it advances unarmed with the appropriate analytical weapons.