concurring in part, and dissenting in part:
I concur in Judge Danaher’s opinion for the court insofar as it relates to the claim based upon the wrongful death statute. I *147do not join in either the reasoning or the result reached in Part I of the opinion dealing with cross-appellant’s contention that the burden of proof was not allocated properly.
This court has said that proof of a safety code violation can provide a basis for a finding of not only negligence but also proximate cause as to a victim who has been held to fall within the protection of the code. See Bowman v. Redding & Co., 145 U.S.App.D.C. 294, 449 F.2d 956, 963 (1971). But this court has also made plain (at 449 F.2d at 964), that what this means is that the plaintiff’s burden of proof can be carried as a matter of law unless the defendant adduces evidence which tends to offset or rebut the existence of proximate cause. The evidence in this record is such as to create, in my view, a sufficient degree of offset or rebuttal. The question then normally becomes one for the jury, instructed properly that the burden of proving proximate cause by a preponderance of the evidence still rests upon the plaintiff. In the case before us, in which no special circumstances justify departing from the general rule, the jury appears to have been instructed that the burden of proof rests on defendants.