Opinion
March, 1913.
Jacob Grudberg (Clayton J. Heermance, of counsel), for appellant.
Ashbel P. Fitch, Mott Grant (Grant C. Fox, of counsel), for respondent.
The evidence offered by plaintiff disclosed that plaintiff and another boy ran after defendant's automobile, and the other boy jumped on it, and then when some one yelled "Get off," the other boy tried to get off, but in getting down got stuck between the barrels on the automobile and the plaintiff went to his assistance and pulled out his foot. At this time the automobile had stopped, and, the friend being free, plaintiff jumped off, but just at this time the automobile, without warning, backed up hill a distance of five feet, running over the plaintiff.
It makes no difference whether the friend was a trespasser on the automobile, or whether plaintiff came to his assistance or not. The plaintiff had a right to be in the public street. The automobile of defendant was at a stop and the unexplained sudden backing of the automobile, without any warning, calls at least for some explanation on the part of the defendant. See Lundy v. Second Ave. R.R. Co., 1 Misc. 100; Smith v. American Ice Co., 152 A.D. 484.
The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
SEABURY and BIJUR, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.