I dissent and vote to reverse the judgment and dismiss the complaint.
The plaintiffs’ decedent died of injuries sustained while a passenger in an automobile owned and operated by the defendant. The car was proceeding on Cross Bay Boulevard at about 2:30 a.m. on a clear, dry morning when it spun out of control, struck a tree and ended up facing in the opposite direction on the side of the road. The only witness to the accident was the defendant. She testified that she was driving at about 40 or 45 miles per hour in a 40-mile per hour zone when she noticed an unidentified car approach her from the rear. She stated that that car hit her vehicle in the right rear, causing it to spin out and she lost control, resulting in this tragic accident. The defendant lost consciousness upon impact and was seriously injured. The record reveals that the defendant’s testimony was corroborated by the introduction of photographs which show that her car was damaged in the right rear, although the car window on that side was not shattered. The photographs are strong evidence that another car struck the right rear and that this damage was not caused by the impact with the tree. Two other witnesses for the defendant testified that her car was not so damaged when they saw it shortly before the accident.
It is true that a plaintiff in a death action is not held to the same degree of proof required in a personal injury action, but there still must be a showing of negligence, however slight (Noseworthy v City of New York, 298 NY 76; Wank v Ambrosino, 307 NY 321). The fact that the defendant candidly admitted to driving five miles above the speed limit does not, itself, constitute negligence. The essentials of unreasonableness and proximate cause are still prerequisites, even in a wrongful death case (Cole v Swagler, 308 NY 325, 329-331). *25This is not a situation such as existed in Pfaffenbach v White Plains Express Corp. (17 NY2d 132), where the defendant chose to remain silent, leaving an insurmountable burden upon the absent party to show the cause of the accident. Rather, the defendant, the only eyewitness, offered a reasonable explanation which is supported by the uncontroverted persuasive physical proof introduced at the trial. Rejecting this evidence, as the majority does, allows a jury to infer negligence on defendant’s part upon any number of unexplained theories. Such a position would impose upon the defendant a liability springing solely from the fact that there was an accident. It completely disregards the only evidence as to how the accident happened and, in fact, makes the driver an insurer of the passenger’s safety, regardless of the driver’s freedom from negligence. This certainly is unwarranted in this case since the defendant’s evidence is uncontradicted and corroborated. Accordingly, I would reverse the judgment and dismiss the complaint.
Martuscello, Acting P. J., and Cohalan, J., concur with Shapiro, J.; Christ, J., dissents and votes to reverse the judgment and dismiss the complaint, with an opinion, in which Latham, J., concurs.
Judgment of the Supreme Court, Kings County, entered April 19, 1974, reversed insofar as it is in favor of plaintiffs upon the jury verdict of $85,000 for wrongful death, on the law, and said cause of action severed and new trial granted solely on the issue of damages, with costs to abide the event, unless, within 30 days after entry of the order to be made hereon, plaintiffs shall serve and file in the office of the clerk of the trial court a written stipulation consenting to reduce the verdict for wrongful death to $50,000 and to the entry of an amended judgment accordingly, in which event the judgment, as so reduced and amended, is affirmed as to said cause of action, without costs.
Judgment affirmed insofar as it is in favor of plaintiffs upon the jury verdict of $5,000 upon the cause of action for conscious pain and suffering, without costs.