(dissenting). In my view the granting of the judgment dismissing plaintiff’s complaint on the merits and granting a nonsuit should be affirmed. The difficulty with the plaintiff’s case is that two events have been proven, either of which could be a competent producing cause of the death of the plaintiff’s intestate. Plaintiff’s medical witness testified that the fractured skull which caused the death could have *248been caused by the defendant’s left wheel striking the head of plaintiff’s intestate, while he was prostrate on the pavement. He also testified that this fractured skull could have been caused in the first accident either by plaintiff’s intestate being thrown from his vehicle onto the macadam surface of the highway and striking the back of his head, or that plaintiff’s intestate’s head was caught between his own car and the pavement while rolling over in the road after he had been thrown out. Therefore there were two equally possible causes of death for only one of which the defendant could be responsible. No preference was given one over the other or any greater probability. This does not establish a cause of action. Only by conjecture and speculation could it be said that the evidence tends to establish any responsibility on the part of defendant. Under these circumstances there can be no recovery and there is nothing for the jury to pass on.
In Cole v. Swagler (308 N. Y. 325, 331), the court says: “ It is well settled that where an accident is one which might naturally occur from causes other than a defendant’s negligence, the inference of his negligence is not fair and reasonable (Foltis, Inc. v. City of New York, 278 N. Y. 108, 117; Galbraith v. Busch, [267 N. Y. 230], supra, pp. 233-234; Tortora v. State of New York [269 N. Y. 167], supra). Here it may have been a variety of causes other than Swagler’s negligence that led to this accident. Indeed, the cause of the accident remains undisclosed upon this record.”
In Digelormo v. Weil (260 N. Y. 192, 199-200), the court says: “ The law is that where the evidence is capable of an interpretation which makes it equally consistent with the absence as with the presence of a wrongful act, that meaning must be ascribed which accords with its absence. In other words, it can only be established by proof of such circumstances as are irreconcilable with any other theory than that the act was done. (Lopez v. Campbell, 163 N. Y. 340; Specht v. Waterbury Co., 208 N. Y. 374; Ruppert v. Brooklyn Heights R. R. Co., 154 N. Y. 90.) The rule is well settled that where there are several possible causes of injury, for one or more of which defendant is not responsible, plaintiff cannot recover without proving the injury was sustained wholly or in part by a cause for which the defendant was responsible (Ruback v. McCleary, Wallin & Crouse, 220 N. Y. 188.) ”
In White v. Lehigh Val. R. R. Co. (220 N. Y. 131, 135-136) the court says: “If the facts are as consistent with the appellant’s theory as with the respondent’s, the plaintiff should have been nonsuited. It was not sufficient for the plaintiff to show *249that a defect might have caused the fall and death, if the circumstances indicate an equal probability that they were due to some other cause. The plaintiff was bound to make out her case by the preponderance of evidence. The jury must not be left to mere conjecture, and a bare possibility that the fall was caused in consequence of the negligence of the defendant is not sufficient. When the precise cause of an accident is left to conjecture and may be as reasonably attributed to a condition for which no liability attaches as to one for which it does, then the plaintiff is not entitled to recover, and the evidence should not be submitted to the jury. ’ ’
The judgment should be affirmed, with costs.
Bbegan, Gibson and Heelihy, JJ., concur with Fosteb, P. J.; Reynolds, J., dissents in an opinion, and votes to affirm.
Judgment reversed and a new trial granted, with costs to the appellant to abide the event.