Concurring and Dissenting Opinion by
Mr. Justice Pomeroy :Since my agreement and disagreement with the majority does not completely coincide with either of the other separate opinions, I must briefly state my own views.
(1) As to negligence, while the evidence was thin indeed, resting as it did on somewhat wobbly expert testimony of one witness, I agree with the opinion of the Court that there was enough to take the case to the juzy. If this be true, there is no basis for a new trial on the ground the verdict was against the weight of the evidence; the defendant put in no evidence, and did not ask for a new trial on that ground.
(2) As to contributory negligence, the evidence as I read it showed it to be present as a matter of law. Without belaboring the point, the plaintiffs decedent was permanently employed at the building where the unfortunate accident occurred as foreman of the building maintenance crew. Thus he was no stranger to the premises; he knew of the existence of the wires, which were clearly visible; he was specifically told by his superior to “be careful about the wires” j1 in straddling the window sill as he did decedent assumed an unnecessarily awkward position in seeking to get at the drain-spout; he avoided using at least one obviously safe way *360of bringing the spout into the building.2 The presumption of due care to which a decedent is properly entitled does not serve to impose liability in the face of this kind of a showing. I think the case is ruled by Eberlin v. Philadelphia Electric Co., 306 Pa. 239, 159 Atl. 439 (1932) and Rank v. Metropolitan Edison Co., 370 Pa. 107, 87 A. 2d 198 (1952). In my view the learned trial judge should have granted a nonsuit, and, not having done so, judgment n.o.v. should be entered.
(3) Since the court is not granting judgment n.o.v., as I believe it should, the matter of the propriety of allowing the amendment of the complaint to include the survival action must be faced. The court en banc held that the amendment “merely amounted to a reshaping of the complaint for purposes of clarity . . .” and was justified on the authority of Schwab v. P. J. Oesterling & Son, Inc., 386 Pa. 388, 126 A. 2d 418 (1956). With this I agree. The amendment was merely making explicit what was implicit in a complaint rather loosely drawn by appellee’s then counsel. I accordingly concur in the dissenting portion of Justice Roberts’ concurring and dissenting opinion.
There is no law that I know of that such a warning about electric wires need expressly refer to them as uninsulated high voltage wires.
I disagree with the majority that the testimony of Schmieden, the sole witness as to the occurrence, was impeached by his prior statement. The statement said: “I was never warned specificaUy about the wires outside the building on Adams Avenue.” At trial the witness testified that this referred to other warnings given before the day of the accident, and reiterated that before this particular job the crew had again been warned. “We were all warned, all of us, before we went on that job,” he said.