Waldorf v. Sorbo

Bergan, P. J.

(dissenting). The violation of the statute by defendant Peck in parking his motor vehicle, although disputed'by him, must be assumed in view of the jury’s finding against him on the general issue. But that violation is not also negligence unless the act constituting the violation was itself a cause of the accident. The failure of Peck to put on his brakes did not cause the accident; it did not help to bring it about. Peck’s car did not run away because its brakes were not on. It was parked on level ground; its motor was stopped. Nothing that Peck did or failed to do about the brakes is shown to have caused the accident.

Unless it can be held as a matter of law that Peck had some obligation to stop Sorbo’s car in negligent transit and to prevent Sorbo’s negligent management of his vehicle from injuring Ruth Waldorf, no liability has been brought home to Peck by his statutory violation.

Peck owed no duty whatever to plaintiff Waldorf to break the force of momentum of Sorbo’s car; and the only effect of the absence of brake application was the failure to break that momentum. To become negligence the act of statutory violation itself must play some causative part in the dynamics of the accident. The court at Trial Term was right and this part of the judgment should be affirmed.

Coon and Herlihy JJ., concur with Reynolds, J.; Bergan, P. J., and Gibson, J., dissent and vote to affirm the order and judgment in favor of defendant Peck in a memorandum by Bergan, P. J., in which Gibson, J., concurs.

In the actions against defendant Sorbo the judgments are reversed on the law and the facts as excessive, with costs to the defendant-appellant to abide the event and a new trial ordered unless plaintiff Ruth Waldorf stipulates to accept $10,000 in damages and unless plaintiff Paul Waldorf accepts *231$2,000 in damages and such stipulations are filed within 10 days of notice of entry of the order herein, in which event the judgments as thus modified are affirmed, without costs.

In the actions against defendant Peck the order and judgment are reversed on the law and the facts,- the motion to dismiss the complaint denied, but the verdict as returned is determined to be excessive and a new trial ordered, with costs to plaintiffs to abide the event; unless plaintiff Ruth Waldorf stipulates to accept $10,000 in damages and unless plaintiff Paul Waldorf accept $2,000 in damages and such stipulations are filed within 10 days of notice of entry of the order herein, in which event the verdict as thus reduced is reinstated and judgment directed in such reduced amounts, with costs to plaintiffs.