dissenting:
I agree with the majority opinion to the extent that it declines to hold that this case presents a proper situation for application of the doctrine of res ipsa loquitur and declines to hold that a presumption or inference that Rastle was the driver arises from the mere fact that he was the owner. I agree that the circumstances present sufficient evidence of negligence on the part of the driver to make a jury question; and that the identity of the driver, like any other fact, may be established by circumstantial evidence. I earnestly disagree, however, with that part of the opinion which holds that the circumstances or physical facts are sufficient to disclose by a preponderance of the evidence that Rastle was the driver of the automobile at the time of the accident in question.
We must bear in mind that the evidence as to the physical facts is not without confusion, conflict and contradiction; that each of the three occupants of the automobile was a licensed driver; that the automobile had been owned by Spaur about a month prior to the accident; and that Siers was the only one of the three whose body was still completely in the wreckage after the accident.
There is no need to cite authority for the proposition that the identity of the driver, like every other fact essential to plaintiffs’ recovery, must appear by a preponderance of the evidence. “To call peremptorily for the submission of an issue to the jury, it is not sufficient that there be a mere scintilla of evidence supporting it; and if the court would not allow a verdict to stand thereon, it may properly direct a verdict for the party against whom the evidence is offered.” Hicks v. New River & Pocahontas Consol. Coal Co., 95 W. Va. 17, pt. 3 syl., 120 S. E. 898.
In this jurisdiction a mere scintilla of evidence is not sufficient to take a case to the jury. It is equally clear that “evidence raising only conjecture, guess, speculation, surmise, or suspicion is insufficient to take the case to the jury, * * 88 C.J.S., Trial, Section 208, pages 429-30; The Law of Evidence (Virginia & W. Va.), Section 205, page 367. If a fact essential to a plaintiff’s recovery “is left to conjee-*177ture or uncertainty, the burden has not been carried, and judgment should be for defendant.” Legg v. Junior Mercantile Co., 105 W. Va. 287, syl., 142 S. E. 259. The evidence “should do more than produce a suspicion of the fact — it should be sufficiently clear and definite in its character to satisfy the mind of the court of the fact, to a reasonable certainty.” Sims v. Bank of Charleston, 8 W. Va. 274, pt. 5 syl. “In an action for tort, the plaintiff bearing the burden of proof, a verdict for him cannot be found on evidence which affords mere conjecture that the liability exists, * * *.” Moore v. Heat & Light Co., 65 W. Va. 552, pt. 1 syl., 64 S. E. 721.
To hold that the physical facts and circumstances are sufficient to warrant a jury in finding that Rastle was the driver of the automobile at the time of the accident is, in my opinion, to give the jury unbridled liberty to engage in the wildest sort of conjecture, surmise and speculation, and to base a verdict on mere suspicion. I am firmly of the opinion that, when tested by pertinent, fundamental legal principles, a verdict against Rastle’s estate could not be upheld by the trial court or by this Court.
For the reasons stated briefly herein, I believe the judge who presided at the trial, and observed the witnesses was clearly right in directing a verdict for the defendant. I would, therefore, affirm the judgment of the trial court.