(dissenting). Plaintiff, when lacking four days of being thirteen-years old, was injured as a result of his riding by standing upon the right-hand running board of an automobile and “hanging on” to it. His act in so riding was a violation of subdivision 3 of section 88 of the Vehicle and Traffic Law. Under the evidence plaintiff’s behavior which transgressed the statute did not vary the general duty it established. There were no circumstances to justify the disobedience which, unless it was excusable because of infancy, was negligence per se. (Martin v. Herzog, 228 N. Y. 164.) In submitting the question of plaintiff’s contributory negligence, the court instructed the jury that it was to judge the plaintiff’s conduct “ by the standard applicable to a boy of his age at that time ”, and that he was to be “ held to that standard of care so far as negligence is concerned; not [to that] of an adult, but of a twelve-year-old boy”, and that he was “required to use that degree of care that a jury says a reasonably careful and prudent boy of twelve years of age would have exercised for his own protection.” In response to appellant’s request that the court “ charge the jury on the provisions ” of the aforesaid statute, the court said, “ I decline to charge that other than I have heretofore charged ”, to which the appellant excepted. The evidence presented a question where the jury was permitted to find the plaintiff’s disobedience of the statute negligent or not as it judged it by the standard which was given to it. To apply the pertinent evidence to that standard, the nature and quality of the act in question was the vital consideration. That it was one which the general consensus regarded as being fraught with danger as evidenced by the statute which forbade its commission, was, it seems to. me, a matter which the defendant was entitled *924to' have made known to the jury in connection with its defense of plaintiff’s contributory negligence. Indeed, I think it was essential to the enlightenment which the defendant was entitled to have disclosed to the jury in its decision of the close questions submitted to it. The only standard set forth in the main charge was a generalization which, although it implied "the thought of an unlimited series of particular instances ”, was so gross in definition that it tended to a blurring of its particular features. The conduct of the fictitious, prudent, comparable person would vary in accordance with degree of risk occasioned by the act. The greater the risk the less likely the act. That the act in question was so fraught with danger as to be prohibited by law in the interest of public safety, was a matter descriptive of its nature, the revealing of which could but have better enabled the jury to judge by the standard set for it. I consider the denial of the request prejudicial error. Upon this ground the judgment and order denying the motion to set aside the verdict and for a new trial should be reversed and a new trial granted. I concur in the affirmance of the other orders appealed from.
Heffernan, Foster and Russell, JJ., concur in memorandum by the court; Brewster, J., dissents in a memorandum; Hill, P. J., dissents.
Judgment and orders affirmed, with costs.