#### William P. Hardenbergh, Respondent, *v.*The Employers’ Liability Assurance Corporation, Limited, Appellant.

(Supreme Court, Appellate Term, First Department,

May, 1913.)

Automobiles — action to recover damages under policy of insurance — evidence of existence of any object with which the machine did or could have come into collision.

Where, in an action to recover damages to plaintiff’s automobile under a policy insuring it against loss or damage if caused solely by collision with another object, either moving or stationary, excluding, however, all loss or damage caused by striking any portion of a roadbed, it appeared that the side of the road along which the machine was running sloped from the edge of the roadbed at an angle of thirty to forty-five degrees into a deep ditch, that at a turn in the road the machine turned out on the side of the ditch, the hind wheels skidding and throwing the rear of the machine farther into the ditch than the front wheels, and that in attempting to regain the road the right hand front wheel collapsed, but there was no evidence as to the existence of any object with which the machine did or eonld have come into collision, a judgment entered on a verdict directed in plaintiff’s favor will be reversed.

Appeal from, a judgment of the City Court of the city of New York, entered upon a verdict directed by the court in favor of the plaintiff after both parties had moved for the direction of a verdict, and from an order denying the defendant’s motion to set aside the verdict and for a new trial.

Bertrand L. Pettigrew, for appellant.

Clifford C. Roberts, for respondent.

Page, J.

The action is upon an insurance policy to recover damages to an automobile. That portion of *523the policy upon which the recovery was based provides : ‘ ‘ This policy * * * is extended to indemnify the assured against loss or damage to * * * the automobiles herein described * * * if caused solely by collision with another object either moving or stationary (excluding however * * * all loss or damage caused by striking any portion of the roadbed or by striking street or steam railway rails or ties, and all loss or damage caused by the upset of the insured automobile, unless such upset is a direct result of such collision as is covered hereby).”

The automobile which was injured was running along a road in New Jersey. In this instance the side of the road sloped from the edge of the macadam roadbed at an angle of thirty to forty-five degrees into a deep ditch. At a turn in the road the machine met a horse and wagon approaching from an opposite direction. The automobile turned out of the road upon the side of the ditch the hind wheels *“*skidding ” on the turn, thus throwing the rear of the machine farther into the ditch than the front wheels. In attempting to regain the road the right hand front wheel collapsed, and the automobile turned over twice and was badly broken and seriously damaged.

The burden rested upon the plaintiff to prove that the damage sustained was the result of collision with some *“*object either moving or stationary.” Proof was given of the above facts and the court inferred that there must have been a collision. There was no evidence given of the existence of any object with which the automobile did or could have come into collision. If we are to speculate upon'the causes of the injuries to the machine the facts point more strongly to the collapse of the wheel from strain than from collision. It was shown that the earth was soft on the side of the ditch and the wheels that left the road sunk three or *524four inches into the earth. The spokes of the right front wheel were all broken off at the hub, the tire was intact; as the machine was tipped to the right by the slope of the bank the weight would largely rest upon that wheel. The skidding of the rear wheels would place a great strain upon the -right front wheel sunk three or four inches in dirt. The condition of the front wheel would seem to negative the theory of collision. Could the tire withstand a blow so violent as to break every spoke on the wheel? But the court should not have speculated on the cause of the collapse of the wheel. That should have been proved.

The rule that the policy is to be construed most strongly against the defendant, invoked by the plaintiff, is applicable to the language of the policy, and not to the facts of the case.

The judgment should be reversed, with costs, and'the complaint dismissed, with costs.

G-uy and G-ebabd, JJ., concur.

Judgment reversed, with costs, and complaint dismissed, with costs.