(dissenting). The issue is whether plaintiffs are entitled to summary judgment in this negligence action. A driverless automobile under power rolled across the street, crashed a building, and caused injuries to the infant plaintiffs. The facts, as they are known on this record, were developed on the examination of the defendant driver in a deposition taken before trial at the behest of plaintiffs.
Defendant driver brought his automobile to a stop in order to let off his mother, a passenger. He put the vehicle into neutral, he says; set his parking brake, but did not turn off the ignition. He stepped out of the vehicle on the left side to assist his mother. He walked to the other side but the right-hand door did not open. His four-year-old nephew, who was also sitting in the front seat, climbed into the back; he and then the driver told the mother to get out on the left side *306of the ear. As she moved over, across the front seat, the driver heard the engine race and told her to get her foot off the gas. The mother continued to the left and, as she did, her hand hit the gear push buttons on the dashboard.
At first the automobile started to move slowly. The driver attempted to get in, but the vehicle picked up such momentum that he could not do so and was dragged across the intersection. The vehicle jumped the opposite curb, struck the building and thus caused the injuries to infant plaintiffs.
Defendant driver inferred, as anyone must, if hé had told the truth, that the mother must have inadvertently stepped on the accelerator pedal. Because the police officer at the scene is quoted as having said the parking brake was not set after the accident, one could infer that the mother somehow disengaged the brake, or that the impact of the accident did so. Or one could, of course, infer that the driver never set the hand brake, although he testified he had.
These are the key facts of the accident. From these facts negligence may not be concluded as a matter of law, which is what is required, if summary judgment is to be granted.
Whether an automobile operator should turn off his engine when he leaves the driver’s seat momentarily is a question of fact depending upon the circumstances, namely: type of engine; idling speed of engine; grade of street; condition and type of brakes; persons remaining in the vehicle; character, age, driving skill, and propensities of the persons remaining in the vehicle; the location of such persons in the vehicle; and the general character of the area in which the vehicle is standing.
Whether the driver in fact set his parking brake is a manifest and disputed question of fact.
The findings to be drawn from the vehicle setting into motion, despite the driver’s testimony on deposition that he put the engine into neutral and set his parking brake, involve questions of fact from which contradictory inferences could undoubtedly be drawn by the fact-finders.
Whether this particular automobile could move, although the parking brake was set, is a question of fact.
Whether the parking brake in this automobile was constructed to have as effective a braking force as the main brakes is a question of fact.
Whether the policeman’s quoted extrajudicial statement .that the parking brake was found not set after the accident, uncritically accepted by the driver when testifying on deposition, is to be believed is a question of fact.
*307The inferences to be drawn from the policeman’s quoted statement, if accepted as true, namely, whether the driver did not set his brake, or that the brake lever was sprung by the impact of the accident are questions of fact.
Whether the driver, as a careful operator, should have permitted his mother to move across the front seat, is a question of fact.
Whether the driver should have foreseen that the mother in moving across the front seat, might step on the accelerator pedal, or push the gear push buttons, is a compound question of fact.
Whether the mother not only pressed the accelerator pedal but continued to press on it, as if it were a brake, is a question of fact, on which the record is unenlightening. But whether she did so is not, at this stage of the case, determinative, for one of the prime questions in the case is whether the driver was bound to foresee what she would do and did. It is for that reason that the absence of an affidavit by the mother is of no consequence on this motion.
Whether the driver could have done anything more than he did to stop his mother’s actions or the motion of the vehicle, once the accident had started, is a question of fact.
Yet, in order for plaintiffs to recover, as a matter of law without trial, on a motion for summary judgment, each one of these questions of fact must be viewed as questions answerable in law, and in law alone.
Much is made that no affidavit by either defendant was submitted. Of course, testimony by deposition, taken by plaintiffs is a higher order of proof than an affidavit. An affidavit, usually prepared by a lawyer, and signed by the affiant, is hardly the equivalent in value of a deposition by question and answer, especially when the questioning is done by the adverse attorney. So, the contention that defendants have supplied less than they should have, is difficult to understand. Indeed, plaintiffs annexed the deposition, and from it the issues of fact appear to be present. The trouble is that plaintiffs not only presented a prima facie case in their affidavits but at the same time presented the facts which establish the elements of a defense and require a jury determination.
The jury’s function in a trial is not only to find as between contradicted facts, which are true, but also to find as between contradictory inferences, which are true. Indeed, even the drawing of reasonable inferences is exclusively the province of the fact finders. It is only inferences which must be drawn from *308evidentiary facts that are the stuff of what is referred to as “ matter of law.”
On this record, ultimately, defendants may not be held liable on a motion for summary judgment unless it is held, as a matter of law, that when a driver gets out of an automobile, not for parking but for-a momentary stop, without turning off the motor, he must have foreseen that another in moving across the front seat might inadvertently set the automobile in motion.* This —without regard to the other surrounding circumstances. But this involves no novel question.
In this elementary case in the field of negligence the applicable legal principles are well settled. The automobile is not regarded as a dangerous instrumentality in fixing standards of care in the law of negligence. As far back as 1922, when the automobile was just becoming common, the Court of Appeals of this State stated: “Motor vehicles are commonly left standing in the street without extraordinary precautions being taken to prevent interference with them. They are not regarded as dangerous instrumentalities, but the possibility of danger from careless handling is obvious. The duty of the driver of such a vehicle, when he leaves it unattended in thu street, is to be careful to have it so secured that it will not start up except by the intervention of some external cause not to be' anticipated or guarded against.” (Maloney v. Kaplan, 233 N. Y. 426, 428.) Of course, in this case, the automobile was not unattended, but there was something almost as serious, if not as serious.
Since 1922 the rule has become even more entrenched (1 N. Y. Auto. Law [1957], § 386; 4 N. Y. Jur., Automobiles [1959], §§ 268, 331, 333; Ann. 16 A. L. R. 2d: Injury by Parked Motor "Vehicle, 979, 981). New York Jurisprudence states succinctly: “ The time has long since passed when an automobile could be considered such a dangerous instrumentality or nuisance in itself that negligence might be predicated upon the fact alone that it was left unattended” (op. cit., p. 319). This court, in Lazarowitz v. Levy (194 App. Div. 400, 404), held that an automobile is not to be deemed a nuisance or a dangerous machine. It said: ‘ ‘ An automobile, however, is not deemed to be a nuisance or a dangerous machine (Cunningham v. Castle, 127 App. Div. 580; Ruoff v. Long & Co., L. R. [1916] 1 K. B. 148; Vincent v. Crandall & Godley Co., 131 App. Div. 200),
*309and, therefore, the owner or the person in whose custody it is may leave it standing in a public street temporarily without thereby being subjected to a charge of negligence, at least, provided he takes the ordinary precautions of securing it by the appliances with which it is equipped for that purpose, and if it thereafter be set in motion by the willful or negligent act of a third party, such willful or negligent act will be deemed the proximate cause of the accident or the injury resulting therefrom ”. (For many other cases in this State and elsewhere which exemplify this principle, see Ann. 51 A. L. R. 2d: Automobile — Started by Stranger, 633 et seq.; Ann. 16 A. L. R. 2d 979 et seq.; Ann. 26 A. L. R.: Automobile Unattended, 912 et seq. Universally, the problem has been not so much whether there was negligence as a matter of law, but whether a verdict for plaintiff could be sustained [see, e.g., Walter v. Bond, 267 App. Div. 779, affd. 292 N. Y. 574].)
Cases like Hess v. Pawloski (274 U. S. 352) and Bessan v. Public Serv. Co-ordinated Transp. (135 Misc. 368) are beside the point. They involved constitutional justification for substituted service on nonresident motorists involved in local accidents.
The rule then which obtains is that the operator of an automobile is liable for injuries his vehicle causes only if he has been guilty of negligence by the standards of care which depend upon all of the circumstances — a question of fact as in the vast bulk of most negligence cases. Included within the orbit of this principle, of course, is the further rudimentary proposition that if the willful or negligent act of another was responsible for precipitating the accident the automobile operator will be liable if, as a reasonable man, he should have foreseen the incidence of such act. This, too, simply remits the court to another category of fact.
Accordingly, the order should be affirmed, on the law, with costs to defendants-respondents.
Rabin and McNally, JJ., concur with M. M. Frank, J.; Breitel, J., dissents and votes to affirm in opinion, in which Botein, P. J., concurs.
Order denying motion to strike the answer of the defendants and for an assessment of damages reversed on the law, with $20 costs and disbursements to appellants and motion granted, with $10 costs.
Settle order.
Query: If a driver stops his vehicle on a roadside, leaves his engine running but puts it into neutral with parking brake set, and gets out to inspect a front tire, is he guilty of contributory negligence, as a matter of law, in his action against a passenger who negligently starts the vehicle into motion, thus causing the injuries he sustained?