In my opinion, on the law and the facts and in the interest of justice, the verdicts of the jury should be affirmed.
The majority are reversing on the ground that the nonsuit in favor of the defendant Cornell was error, apparently reasoning that the violation of the statute (Vehicle and Traffic Law, § 1210, subd. [a]) was or should have been foreseeable as likely to cause or contribute to the happening of an accident.
There is no direct proof, in this record, of any violation of the statute and the evidence does not permit any reasonable inference thereof but assuming arguendo that an inference could be deduced, such negligence would not be causally related to the happening of the accident. The glaring and gross negligence of the defendant Bowser was solely responsible for the happening of this accident. The trial court in dismissing stated: “ But on the question of the violation of a statute being or constituting negligence — the violation of a statute doesn’t constitute negligence. The "violation of a statute or an ordinance has to be a proximate cause of the injury which results ” and cited Boronkay v. Robinson & Carpenter (247 N. Y. 365, 368). In granting the motion, the court said: “ [T]he failure to put it [brake] on would be merely a remote, at most, proximate cause of the accident, and for that reason, I am going to grant the motion
*110The factual situation is such that the doctrine of foreseeability is not readily applicable and is in marked contrast to Waldorf v. Sorbo (10 AD 2d 226, affd. 9 N Y 2d 703).
To have submitted the case of Cornell as a defendant to the jury might have caused unnecessary confusion and if a verdict had been returned against Cornell, on the present record, it would have been set aside as a matter of law. (CPLR 4401, formerly Civ. Prac. Act, § 457-a, subd. 1.)
In Blum v. Fresh Grown Preserve Corp. (292 N. Y. 241, 245-246) the court stated: “ This court has frequently pointed out that insufficient evidence is, in the eye of the law, no evidence. ’In Matter of Case [214 N. Y. 199, 204], opinion by Cardozo, J., it reiterated that rule and added: ‘ In the words of Maule, J., in Jewell v. Parr (13 C. B. 916), “ When we say that there is no evidence to go to a jury, we do not mean that there is literally none, but that there is none that ought reasonably to satisfy a jury that the fact sought to be proved is established.” ’ ”
In my opinion, the dismissal of the complaint in the Cornell action was proper and the over-all verdicts as returned by the jury are fair and in accordance with the evidence.
I would modify the order of Judge McAvoy by reinstating the verdicts of the jury and thus give control of the final decision to the plaintiffs.
We have here a situation where the amount of the mother’s award is too high and part of it should be encompassed in the infant’s judgment.
Accordingly, the order appealed from should be reversed on the law and the facts and a new trial granted unless the plaintiff Lillian Copp, within 10 days after the notice of entry of the order of this court, stipulates that on payment of the judgment in her action, the sum of $2,000 thereof will be deposited for the benefit of the infant, subject to withdrawal only on order of the court, and on the filing of such stipulation, the order in the Copp action and the judgment in the Cornell action should be affirmed, with costs. (See Stiles v. Caddick, 11 A D 2d 889, 890.)
GriBSon, P. J., Taylob, and Aulisi, JJ., concur with Hamm, J; Heblihy, J., dissents, and votes to affirm, in a memorandum.
Judgments and orders reversed, on the law and the facts and in the interest of justice, and a new trial ordered, with costs to abide the event.