
    Samuel C. Grudberg, an Infant, by Isaac B. Grudberg, Guardian ad litem, Appellant, v. George Ehret, Respondent.
    (Supreme Court, Appellate Term, First Department,
    March, 1913.)
    Negligence — automobile accident — appeal.
    Where, in an action for personal injuries, it appears that while defendant’s automobile was at a standstill in a public street, plaintiff after pulling out abother boy’s foot which was stuck between barrels on the automobile then jumped off, the fact that without warning the automobile backed up a hill a distance of five feet running over plaintiff and injuring him calls for some explanation by defendant; and a judgment entered on the dismissal of the complaint ait the close of plaintiff’s case will be reversed.
    Appeal■ by the plaintiff from a judgment of the City Court of the city of Mew York, entered upon a dismissal of the complaint at the close of plaintiff’s evidence.
    
      Jacob Grudberg (Clayton J. Heermance, of counsel), for appellant.
    ' Ashbel P. Pitch, Mott & Grant (Grant 0. Fox, of counsel), for respondent.
   Gerard, J.

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. Rep. 100 ; Smith v. American Ice Co., 152 App. Div. 484.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Seabuby and Bijub, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  