Memorandum by the Court. This is an appeal by the defendant from a judgment of the Supreme Court, against the defendant and in plaintiff’s favor, entered in Rensselaer County, June 20, 1947, upon a jury verdict at a Trial Term, and from orders denying its motion for nonsuit and to set the verdict aside and for a new trial.
The plaintiff, who was an infant, approximately thirteen years old, together with his uncle, who was sixteen years old, hitchhiked an automobile ride on a 1930 Ford coupe on August- 4, 1937. The plaintiff stood on the right-hand running board of the automobile and hung on with his hands and arms. His uncle rode likewise on the left-hand side of the automobile. On the seat inside *923the coupe sat the driver and a passenger. The Ford coupe on which they were riding was going in a northerly direction on a gravel road. As they proceeded northerly the plaintiff’s vehicle met an approaching oil truck of the defendant at a place between guardrails located on each side of the road. To avoid the oil truck the plaintiff’s driver steered the Ford coupe to the right and when it skidded it came so close to the east guardrail that the plaintiff’s body collided with the southerly end or post of said guardrail and caused the injuries on which this action was based.
The defendant-appellant requested the court to charge the jury on the provisions of subdivision 3 of section 88 of the Vehicle and Traffic Law, which request the trial court declined to charge other than he had previously charged. At the time of the accident subdivision 3 of section 88 of the Vehicle and Traffic Law read as follows: “3. No person shall ride upon the rear of any vehicle without the consent of the driver nor with any part of his body protruding, nor shall any person hang on any street car or vehicle whatsoever.” (Italics supplied.)
It was held in Morris v. Town of Stafford (242 App. Div. 809, affd. 266 N. Y. 597) that where a boy was riding on the running board of the right side of a touring car and was injured when the car collided with the east side of the bridge, that the facts did not establish a violation by the plaintiff of that part of the statute which provided that a person shall not “ hang on any street car or vehicle whatsoever ”. The same construction was held in Webb v. Miles (249 App. Div. 688), on the authority of Morris v. Town of Stafford (266 N. Y. 597). Since the statute did not apply the question of plaintiff’s con= tributory negligence was one of fact for the jury. The trial court was not in error in declining to charge the request as made.
The judgment and orders should be affirmed, with costs.
Judgment and orders affirmed, with costs.