concurring and dissenting:
I agree with the Majority’s grant of a new trial on the issue of the proffered testimony of decedent’s widow. However, I respectfully but vigorously disagree with the Majority’s rejection of the intoxication issue.
At page 9, the Majority states that “the trial judge’s findings do not disclose a capricious disregard of credible evidence; neither are they unsupported.”
My reading of the record convinces me that the evidence — the credible evidence — of intoxication was overwhelming: the accident, the erratic driving, decedent’s de*400parture contravening police instructions, and the testimony of the pathologist who performed the autopsy upon decedent whose blood alcohol content was .33!
In its brief opinion, the trial court wrote that appellant “did not present any evidence on the issue of causation,” (emphasis supplied) an astounding conclusion under the facts adduced. Indeed, if this were a trial (assuming decedent had survived, of course) on the charge of drunken driving, these facts would be more than enough for conviction beyond a reasonable doubt. Here, of course, the standard is by the fair preponderance of the evidence.
I agree that it is not our prerogative to substitute our judgment for that of the trier of facts, but, surely, to say there was no evidence of causation is to ignore the imposing and heavily preponderant credible evidence presented instantly.