Concurring and Dissenting Opinion by
Mb. Chxee Justice Bell :I agree with the majority Opinion that the judgment in the survival action must be reversed, and judgment n.o.v. entered for defendant.
With respect to the judgment in the wrongful death action, I dissent and would grant a new trial in the interest of Justice.
Plaintiff relied upon the testimony of only one witness, Martin Kaplan, an electrical engineer, to establish the standard of care in the industry—namely, how far a noninsulated electric wire should be from a window—and consequently negligence on the part of the defendant. Defendant’s negligence must, of course, be established by plaintiff by a fair preponderance of the evidence in order to support the verdict. Kaplan’s interpretation of the National Electrical Safety Code was not in conformity with, but was contrary to, the language of the 1960 Supplement to the Code (which he himself admitted) and was based upon a clearly unsupportable deduction. Furthermore, if it could be supported at all, which is very doubtful, it did not establish plaintiff’s burden of proving defendant’s negligence by a fair preponderance of the evidence, and has resulted in an obvious gross miscarriage of Justice. For these reasons, a new trial must be granted in the interest of Justice. As we said in Frisina v. Stanley, 409 Pa. 5, 185 A. 2d 580 (page 7) . “[w]here a trial Judge or Court sees and hears the witnesses, it has not only an inherent fundamental and salutary power, but it is its duty, to grant a new trial when it believes the verdict was capricious or was against the weight of the *356evidence and* resulted in a miscarriage of justice [citing numerous recent cases] . . .
“ ‘ “Moreover, in such circumstances, ... it should not be allowed to stand, no matter how many new trials must be granted in the interest of justice: [citing numerous cases]* ** . . .” ’”
While an appellate Court will generally reverse the grant or denial of a new trial only if “ ‘ “(1) there was a clear abuse of discretion or (2) an error of law which controlled the outcome of the case, . . . [citing numerous recent cases]:” Segriff v. Johnston, 402 Pa. 109, 114, 166 A. 2d 496.’ Bohner v. Eastern Express, Inc., 405 Pa. 463, 471-472, 175 A. 2d 864. Accord: F. C. Haab Co., Inc. v. Peltz Street Terminals, Inc., 407 Pa. 276, 180 A. 2d 35,” this general rule is subject to the exception that an appellate Court will grant a new trial if it is convinced that the interests of Justice demand it.
Italics throughout, ours.
Elia v. Olszewski, 368 Pa. 578, 84 A. 2d 188; Maloy v. Rosenbaum Co., 260 Pa. 466, 103 Atl. 882; Clewell v. Pummer, 388 Pa. 592, 598, 599, 131 A. 2d 375. See to the same effect: Sherman v. Manufacturers Light and Heat Company, 389 Pa. 61, 68, 132 A. 2d 255; Greco v. 7-Up Bottling Company, 401 Pa. 434, 165 A. 2d 5; Hartigan v. Clark, 389 Pa. 283, 288, 289, 133 A. 2d 181; Lupi v. Keenan, 396 Pa. 6, 8, 151 A. 2d 447; Coward v. Ruckert, 381 Pa. 388, 393, 113 A. 2d 287; Frank v. Losier & Co., Inc., 361 Pa. 272, 276, 64 A. 2d 829.