DANIEL HOLCOMBE THOMAS, District Judge:
Appellants appeal from the trial court’s granting of a judgment N.O.V. which set aside a jury assessment of exemplary damages in a products liability case. We affirm.
In November of 1977, a trial by jury was commenced before the Honorable Patrick E. Higginbotham, United States District Court, Northern District of Texas. The jury returned a verdict favorable to the appellants on the issues of design defects and gross indifference and awarded $150,-000.00 in actual damages and $10,000,000.00 in exemplary damages. The jury also found that plaintiffs’ decedent had assumed the risk of injury by use of the appellee’s product. By subsequent Order and Opinion entered on April 21, 1978, Maxey v. Freightliner Corp., 450 F.Supp. 955 (N.D. Tex.1978), the trial court set aside the jury’s verdict on the issues of gross indifference as well as their determination concerning assumption of the risk. The court let stand the jury’s verdict as to actual damages. We affirm the judgment of the District Court.
This case involves the design of the fuel system on a truck tractor manufactured by [397]*397appellee Freightliner Corporation. The tractor portion of this eighteen wheeler carried 160 gallons of fuel in two lightweight aluminum tanks attached to the outside of the truck frame rails. The aluminum side-mounted tanks are connected to each other by an equalizer line attached to a depression in the bottom of each tank, thus permitting fuel to flow between the tanks, and in the event of detachment, to drain from both tanks.
On November 21, 1974, the decedents, Billy and Dee Maxey, were en route to Michigan when outside of Comanche, Texas, their tractor/trailer rig tipped over while rounding a curve, and slid to a stop on its right side. The right fuel tank ruptured, spilled its fuel, and ignited.1 There was substantial disagreement between the parties as to whether the cause of death to the decedents resulted from the actual accident or subsequent fire.
The plaintiffs-appellants are Frank Max-ey and Mary Maxey, grandparents and next friends of Mary Kathryn Maxey, age 12, and Carroll Kaylene Maxey, age 9, children of the decedents.
The Maxey’s claims for relief in the trial court included allegations that the design of the fuel system was not reasonably crash-worthy, that Freightliner had failed to warn users of the product of this danger, and that Freightliner’s conduct regarding the design, testing, and sale of trucks with this fuel system constituted gross indifference meriting the imposition of exemplary damages under Texas law.
Appellants noticed this appeal from the trial court’s judgment setting aside the jury’s verdict on gross indifference. Appel-lee Freightliner has filed a cross-appeal from the judgment awarding the surviving children actual damages of $150,000.00.
I. EVIDENCE OF GROSS INDIFFERENCE SUPPORTING AN AWARD OF EXEMPLARY DAMAGES
Appellants urge that in setting aside the jury’s verdict of “gross indifference” the trial court failed to note strong evidence in the record showing Freightliner’s indifference to consumer safety. We disagree.
Judgment N.O.V. should be granted only when the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict, viewing the facts in the light most favorable to the party against whom the motion is made, and giving that party the advantage of every fair and reasonable inference which the evidence justifies. Boeing v. Shipman, 411 F.2d 365, 374-375 (5th Cir. 1974) en banc. Jones & Laughlin Steel Corp. v. Matherne, 348 F.2d 394, 397-398 (5th Cir. 1965). The standard for reviewing such motions is the same in the trial court and on appeal. The Court considers only the question of law regarding the sufficiency of the evidence to raise a jury issue. Boeing v. Shipman, supra; Glazer v. Glazer, 374 F.2d 390, 400 (5th Cir. 1967).
Appellants argue that the evidence of Freightliner’s gross indifference raised an issue for the jury.
The motion for judgment notwithstanding the verdict tests the sufficiency of the evidence in just the same way as does the motion for a directed verdict at the close of all the evidence. Shaw v. Edward Hines Lumber Co., 249 F.2d 434 (7th Cir.). In a doubtful case the court may prefer to deny the motion for a directed verdict, and consider the attack on the sufficiency of the evidence subsequently on motion for judgment N.O.V.
If a verdict is directed and the appellate court holds that the evidence was in fact sufficient to go to the jury, an entire new trial must be had. If, on the other hand, the trial court submits the case to the jury, though it thinks the evidence insufficient, final determination of the case is greatly expedited. If the jury agrees with the Court’s appraisal of the evidence, and returns a verdict for the party [398]*398who moved for a directed verdict, the case is at an end. If the jury brings in a different verdict, the trial court can grant judgment notwithstanding the verdict. Then if the appellate court holds that the trial court was in error in its appraisal of the evidence, it can reverse and order judgment on the verdict of the jury, without any need for a new trial. Wright and Miller, Federal Practice and Procedure, Section 2533, Pg. 586.
“ * * * a motion for a directed verdict or a judgment notwithstanding the verdict should be granted if there is no substantial, i. e., not more than a mere scintilla of evidence to sustain the verdict.” U. S. v. Strebler, 313 F.2d 402 (8th Cir. 1963) (See Footnote 1, page 403). “The scintilla evidence rule is not applied in federal courts.” Mann v. Bowman Transportation, Inc., 300 F.2d 505 (4th Cir. 1962). See, also Tackett v. Kidder, 616 F.2d 1050 (8th Cir. 1980).
The problem, however, lies not with merely stating the rules, but with applying them to a particular set of facts. Were the scintilla rule to be followed in cases such as this, we might easier find error by the trial court in its granting of the motion n. o. v. However, as heretofore stated, the standard is that of substantial evidence to support a verdict. Our careful reading of the transcript reveals no such evidence.
Granted, a judgment n. o. v. may at times seem harsh. However, we agree with the trial judge whose presence at the trial afforded him a much better vantage point from which to evaluate the evidence not from a transcript alone, but from seeing and observing the witnesses themselves.
II. EXEMPLARY DAMAGES UNDER TEXAS LAW
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DANIEL HOLCOMBE THOMAS, District Judge:
Appellants appeal from the trial court’s granting of a judgment N.O.V. which set aside a jury assessment of exemplary damages in a products liability case. We affirm.
In November of 1977, a trial by jury was commenced before the Honorable Patrick E. Higginbotham, United States District Court, Northern District of Texas. The jury returned a verdict favorable to the appellants on the issues of design defects and gross indifference and awarded $150,-000.00 in actual damages and $10,000,000.00 in exemplary damages. The jury also found that plaintiffs’ decedent had assumed the risk of injury by use of the appellee’s product. By subsequent Order and Opinion entered on April 21, 1978, Maxey v. Freightliner Corp., 450 F.Supp. 955 (N.D. Tex.1978), the trial court set aside the jury’s verdict on the issues of gross indifference as well as their determination concerning assumption of the risk. The court let stand the jury’s verdict as to actual damages. We affirm the judgment of the District Court.
This case involves the design of the fuel system on a truck tractor manufactured by [397]*397appellee Freightliner Corporation. The tractor portion of this eighteen wheeler carried 160 gallons of fuel in two lightweight aluminum tanks attached to the outside of the truck frame rails. The aluminum side-mounted tanks are connected to each other by an equalizer line attached to a depression in the bottom of each tank, thus permitting fuel to flow between the tanks, and in the event of detachment, to drain from both tanks.
On November 21, 1974, the decedents, Billy and Dee Maxey, were en route to Michigan when outside of Comanche, Texas, their tractor/trailer rig tipped over while rounding a curve, and slid to a stop on its right side. The right fuel tank ruptured, spilled its fuel, and ignited.1 There was substantial disagreement between the parties as to whether the cause of death to the decedents resulted from the actual accident or subsequent fire.
The plaintiffs-appellants are Frank Max-ey and Mary Maxey, grandparents and next friends of Mary Kathryn Maxey, age 12, and Carroll Kaylene Maxey, age 9, children of the decedents.
The Maxey’s claims for relief in the trial court included allegations that the design of the fuel system was not reasonably crash-worthy, that Freightliner had failed to warn users of the product of this danger, and that Freightliner’s conduct regarding the design, testing, and sale of trucks with this fuel system constituted gross indifference meriting the imposition of exemplary damages under Texas law.
Appellants noticed this appeal from the trial court’s judgment setting aside the jury’s verdict on gross indifference. Appel-lee Freightliner has filed a cross-appeal from the judgment awarding the surviving children actual damages of $150,000.00.
I. EVIDENCE OF GROSS INDIFFERENCE SUPPORTING AN AWARD OF EXEMPLARY DAMAGES
Appellants urge that in setting aside the jury’s verdict of “gross indifference” the trial court failed to note strong evidence in the record showing Freightliner’s indifference to consumer safety. We disagree.
Judgment N.O.V. should be granted only when the facts and inferences point so strongly and overwhelmingly in favor of the moving party that reasonable men could not arrive at a contrary verdict, viewing the facts in the light most favorable to the party against whom the motion is made, and giving that party the advantage of every fair and reasonable inference which the evidence justifies. Boeing v. Shipman, 411 F.2d 365, 374-375 (5th Cir. 1974) en banc. Jones & Laughlin Steel Corp. v. Matherne, 348 F.2d 394, 397-398 (5th Cir. 1965). The standard for reviewing such motions is the same in the trial court and on appeal. The Court considers only the question of law regarding the sufficiency of the evidence to raise a jury issue. Boeing v. Shipman, supra; Glazer v. Glazer, 374 F.2d 390, 400 (5th Cir. 1967).
Appellants argue that the evidence of Freightliner’s gross indifference raised an issue for the jury.
The motion for judgment notwithstanding the verdict tests the sufficiency of the evidence in just the same way as does the motion for a directed verdict at the close of all the evidence. Shaw v. Edward Hines Lumber Co., 249 F.2d 434 (7th Cir.). In a doubtful case the court may prefer to deny the motion for a directed verdict, and consider the attack on the sufficiency of the evidence subsequently on motion for judgment N.O.V.
If a verdict is directed and the appellate court holds that the evidence was in fact sufficient to go to the jury, an entire new trial must be had. If, on the other hand, the trial court submits the case to the jury, though it thinks the evidence insufficient, final determination of the case is greatly expedited. If the jury agrees with the Court’s appraisal of the evidence, and returns a verdict for the party [398]*398who moved for a directed verdict, the case is at an end. If the jury brings in a different verdict, the trial court can grant judgment notwithstanding the verdict. Then if the appellate court holds that the trial court was in error in its appraisal of the evidence, it can reverse and order judgment on the verdict of the jury, without any need for a new trial. Wright and Miller, Federal Practice and Procedure, Section 2533, Pg. 586.
“ * * * a motion for a directed verdict or a judgment notwithstanding the verdict should be granted if there is no substantial, i. e., not more than a mere scintilla of evidence to sustain the verdict.” U. S. v. Strebler, 313 F.2d 402 (8th Cir. 1963) (See Footnote 1, page 403). “The scintilla evidence rule is not applied in federal courts.” Mann v. Bowman Transportation, Inc., 300 F.2d 505 (4th Cir. 1962). See, also Tackett v. Kidder, 616 F.2d 1050 (8th Cir. 1980).
The problem, however, lies not with merely stating the rules, but with applying them to a particular set of facts. Were the scintilla rule to be followed in cases such as this, we might easier find error by the trial court in its granting of the motion n. o. v. However, as heretofore stated, the standard is that of substantial evidence to support a verdict. Our careful reading of the transcript reveals no such evidence.
Granted, a judgment n. o. v. may at times seem harsh. However, we agree with the trial judge whose presence at the trial afforded him a much better vantage point from which to evaluate the evidence not from a transcript alone, but from seeing and observing the witnesses themselves.
II. EXEMPLARY DAMAGES UNDER TEXAS LAW
In somewhat of a strange dichotomy the jury below found plaintiff’s decedent had assumed the risk of using appellee’s product, while at the same time awarding the plaintiffs ten million dollars ($10,000,000.00) in exemplary damages.
The availability of exemplary damages for wrongful death flows from Article 16, § 26 of the Constitution of the State of Texas:
Every person, corporation, or company, that may commit a homicide, through a wilful act, or omission, or gross neglect, shall be responsible, in exemplary damages, to the surviving husband, widow, heirs of his or her body, or such of them as there may be . . . Tex.Const. Art. 16, § 26. (emphasis added).
Trial and appellate courts have authority to supervise jury awards in such cases. See Fed.R.Civ.P. 50, 59.
While we agree that exemplary damages may be appropriate in certain instances, we narrow our focus to the requirements that the defendant’s acts be wilful, gross or manifest conscious indifference.
Appellants primary argument in this area concerns the trial court’s use of language contained in Sheffield Division, Armco Steel Corp. v. Jones, 376 S.W.2d 825 (Tex. 1964), and this court’s decision following Sheffield in Woolard v. Mobil Pipeline Co., 479 F.2d 557 (5th Cir. 1973). In particular, the trial court focused on language from Sheffield concerning a “complete absence of care”, Sheffield, supra, at p. 829 and whether Freightliner acted with an “intent which approximates a fixed purpose to bring about this injury.” Id., Maxey v. Freightliner Corp., 450 F.Supp. 955, 964 (N.D.Tex. 1978). Appellants contention is that these cases are in effect outdated by more recent Texas authority negating a requirement of “a fixed purpose to injure”. Appellants cite McPhearson v. Sullivan, 463 S.W.2d 174 (Tex.1971) and Harbin v. Seale, 461 S.W.2d 591 (Tex.1970) for the proposition that one must look to the surrounding facts and circumstances in determining the propriety of exemplary damages. Harbin, supra, at p. 593 and McPhearson, supra, at p. 176. Were we to accept appellant’s argument that such is now the test, we fail to glean from our overview any support for their claim to exemplary compensation.
Appellants would have us read Hernandez v. Smith, 552 F.2d 142 (5th Cir. 1977), as providing the strong support for their right to an exemplary award. While such au[399]*399thority may remove any requirement that the defendant act with “purposeful conduct”, a closer scrutiny reveals the following at page 143:
Under Texas law, there cannot be that “conscious indifference” to the welfare of others constituting gross negligence for purposes of exemplary damages if it is shown that defendant exercised even “slight” care.
We are unable to discern from our reading of the record evidence of appellee's failure to use even “slight” care. In light of the aforementioned, we support the actions of the trial judge on this issue.
The trial court concluded that Freightliner complied with industry custom, based upon evidence that no commercially produced truck tractor in the United States had fuel tanks located within the frame rails,2 and that no commercially produced vehicle in the United States used fuel bladders.3 Appellants contend that this evidence is insufficient to support the trial court’s conclusion of compliance with industry-wide custom. Maxey v. Freightliner Corp., 450 F.Supp. 955, 963 (N.D.Tex.1978). We disagree.
III. FREIGHTLINER’S CROSS APPEAL
Freightliner urges reversal of the trial court’s determination that decedent, Billy Maxey, did not assume the risk of use from appellee’s product. We fail to find favor with such suggestion.
As appellants suggest, the contention that Freightliner as a national manufacturer of truck/tractors was unaware of post-crash hazards relating to side-mounted fuel tanks, but that Billy Maxey, a truck driver and mechanic with a high school education should be charged with knowledge and appreciation of the nature and extent of this risk is untenable.
Knowledge of the specific defect and appreciation of the dangers created by the defect are required to sustain a finding of assumption of the risk. Bailey v. Boatland, 585 S.W.2d 805 (Tex.Civ.App. — Houston 1979). Cases in Texas on .volenti or assumption of the risk are clear in requiring subjective knowledge and intelligent appreciation of the specific danger involved.
In Rabb v. Coleman, 469 S.W.2d 384 (Tex. 1971), the Supreme Court of Texas stated:
The intelligent choice to expose oneself to a danger presupposes an awareness of that particular danger. The success of the volenti defense in Texas cases has turned on whether or not it was established that the plaintiff knew he was exposing himself to the danger which in fact caused him harm. Id. at p. 387. (emphasis added).
We agree with the trial court that on the facts submitted below and on this appeal, a charge of assumption of the risk against plaintiffs’ decedent would be inappropriate.
Freightliner argues that the record below fails to support recovery against it on a theory of strict products liability. Such contention evolves from the position of Freightliner that the accident itself and not the subsequent fire resulted in Billy and Dee Maxey’s death.
The trial court summarized the defective nature of the fuel system as follows:
Freightliner designed the fuel system on the truck-tractor so that the diesel fuel containers, commonly called saddle tanks, were located near the frame rails. The design placed the fuel tanks in proximity to occupants and close to ignition sources. These aluminum tanks lacked a flexible bladder to absorb impact and fuel line fittings which would separate in a crash, devices designed to reduce the fire hazard of the crash.4
The Maxey’s expert, Mr. Robertson, was a transportation safety engineer qualified as an expert in accident reconstruction, design of crash resistant fuel systems, study of body behavior and injury producing mechanisms in crashes, including toxic haz[400]*400ards from fires.5 His testimony preparation included viewing the remains of the wreckage, the accident scene, the photos, technical reports and statistics regarding truck fire hazards, reading all depositions taken in the case, looking at the police report and studying engineering drawings of the truck.6 Robertson testified that the noxious fumes contained in the smoke from the fuel fire incapacitated the Maxeys and prevented their escape from the vehicle.7 Ap-pellees take the position on appeal that such testimony was nothing more than speculation. The jury and the trial judge found otherwise.
We think that Robertson was a qualified expert whose testimony reached a level above that of speculation or mere conjecture and formed a sufficient basis for the products liability claim of the Maxeys.
On May 8, 1978, appellee filed a conditional motion for a new trial on the ground of newly discovered evidence. Since this was based upon evidence discovered subsequent to the trial proceedings, it did not appear in the record of the trial on its merits. The trial court was not called upon to rule on this issue. The appellee sought no ruling or hearing on said motion by this court, save in the event that we should disturb the judgment below. In light of our ruling herein, we deem this motion moot.
AFFIRMED.