Opinion
May, 1913.
Bertrand L. Pettigrew, for appellant.
Clifford C. Roberts, for respondent.
The action is upon an insurance policy to recover damages to an automobile. That portion of the 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 road-bed 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 four 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.
GUY and GERARD, JJ., concur.
Judgment reversed, with costs, and complaint dismissed, with costs.