The verdict is based on findings that ■when defendant parked his car he failed to comply with the provisions of subdivision (a) of section 1210 of the Vehicle and Traffic Law (which requires that upon leaving a car unattended the ignition must be locked and the key removed from it) and that such failure constituted negligence which was the proximate cause of plaintiffs ’ injuries. The trial court charged: “ If you find, as a fact, that the keys * * * were in the glove compartment and that the ignition was locked at the time the car was entered by Smith and Brooks, this section of the law has not been violated by Mr. Gorski and there shall be no recovery by any of the plaintiffs ’ ’. Defendant and his witness Mastrangelo both testified that when defendant parked his car he removed the keys from the ignition and took them with him, and that another set of keys in a blue key case was left in the glove *231compartment of the car. The only evidence to the contrary is the testimony of Smith that he and Brooks were talking about taking a car: “We found this car, keys were in it * * * I think they were in the ignition * * * I am not positive, no. ” Smith further testified .that Brooks entered the car first and looked into the glove compartment, that “ Yes, he was looking in the glove compartment ’ ’, and it was possible that Brooks was in the car long enough to have found the keys and put them in the ignition.
In my opinion the jury’s finding that defendant left his keys in the ignition is against the weight of the evidence.
In Matter of Smith (MVAIC) (34 A D 2d 629) the First Department in affirming denial of a motion for summary judgment said: “A violation of subdivision (a) of section 1210 of the Vehicle and Traffic Law may result in the owner of the car being found guilty of negligence in the creation of an opportunity for the theft of the car. Yet the trier of the facts may further find that the acts of * * * the thief * * * were not the legal responsibility of the defendants herein. * * * A violation of the Vehicle and Traffic Law may still be found not to be the proximate cause of an accident.” In my opinion the finding that violation of subdivision (a) of section 1210 was a proximate cause of the accident is also against the weight of the evidence.
‘‘ Where a thief puts in motion a vehicle left on a public street and injury or damage ensues, a majority of the cases have taken the position that the act of the thief prevented a finding' that the injury or damage was the proximate result of any prior negligence in the manner in which the vehicle was parked”. (Ann. 51 ALR 2d 662, 663; see, also, Ross v. Nutt, 177 Ohio St. 113; Hersh v. Miller, 169 Neb. 517; Corinti v. Wittkopp, 355 Mich. 170; Consiglio v. Ahern, 5 Conn. Cir. 304; Galbraith v. Levin, 323 Mass. 255; Anderson v. Theisen, 231 Minn. 369.) The automobile owner leaving his car unlocked is not liable to third persons injured by the negligence of a thief who has taken and operated it unless the owner realizes that leaving the car unlocked involves an unreasonable risk of harm to another ¡through the negligent or reckless conduct of the thief. (Restatement, Torts 2d, § 302 A.)
‘' The great majority have refused to hold the defendant liable, either with or without a car-locking ordinance * * * leaving a car unlocked certainly creates a foreseeable likelihood that it will be stolen, which endangers the interest of the owner; but is it so likely that the thief, getting away, will drive negligently, that there is any unreasonable risk of harm to anyone else? *232* * * The decisions are probably right in saying, no.” (Prosser, Torts [3d ed.], p. 323).
In Liney v. Chestnut Motors (421 Pa. 26, 28) the court in holding that a car owner was not liable for damages caused by a thief driving the owner’s car which had been parked with a key in the ignition said: ‘ ‘ Assuming also that the defendant should have foreseen the likelihood of the theft of the automobile, nothing existed * * * to put it on notice that the thief would be an incompetent or careless driver. ’ ’ (see, also, Richards v. Stanley, 43 Cal. 2d 60, 65-66, 75-76).
Although defendant’s car was not left upon a highway or upon a private road open to public motor vehicle traffic, where the provisions of section 1210 of the Vehicle and Traffic Law would apply (Vehicle and Traffic Law, § 1100), but was parked in a lot adjacent to an area where field day events were being performed, the trial court erroneously charged the jury that if defendant violated the provisions of section 1210 such violation would constitute negligence. While no exception was taken by defendant’s counsel to the court’s charge, the error was a fundamental one and we should take cognizance of it in the exercise of our power to reverse and grant a new trial in the interests of justice. (Niagara Mohawk Power Corp. v. Ætna Ins. Co., 15 A D 2d 390, 394; De Joseph v. Gutekunst, 13 A D 2d 223, 226.)