(dissenting):
I disagree with the majority that the district court’s failure to charge the jury on assumption of risk was harmless error; I would therefore reverse and remand for a new trial.
As the majority apparently concedes, it was clear error for the district court to fail to instruct the jury that recovery for plaintiff would be barred if they found that plaintiff did realize or should have realized the danger involved in photographing an oncoming motorcycle. This failure, however, the majority excuses on the ground that the contributory negligence charge was tantamount to an assumption of risk charge.
New York law is quite strict in holding that plaintiffs who realize or should realize the risk of injury from their conduct are barred from recovery as a matter of law.1 At the very least, then, the *1218issue of whether plaintiff here assumed the risk of his injury in accepting the photo assignment should have gone to the jury.2
It is true that the court in its supplemental charge3 on contributory negligence used language that arguably encompasses the question of whether plaintiff was negligent in accepting the photo, assignment. It is also true that defense counsel in his summation specifically argued that plaintiff “should have known better” in photographing an oncoming motorcycle. But the significance of this evidence supporting the contention that the court’s error was harmless pales in light of the court’s language in explicitly refusing to charge assumption of risk.4 During trial the court granted plaintiff’s motion to strike the defense; in so doing the court remarked:
It is not true in this case that a fair inference can be drawn to the effect that he was taking head-on pictures. He was not. That would be perfectly ridiculous. It would be like placing himself in the path of a moving motor vehicle, or placing himself on the tracks of a train that is approaching him to take a photograph, and then trying to jump away at the last minute. He was doing no such thing.
He was stationary, the driver of the motorcycle was supposed to pass at a distance from him, a short distance, but at a distance from him, and he was not trying to take head-on pictures at all.
I decline to permit you to argue assumption of risk — 5
In its charge to the jury the court made it clear that they were not to consider the issue of whether plaintiff’s acceptance of the photo assignment constituted an assumption of the risk of injury:
Let us also be careful to limit this question of negligence to the precise circumstances to which it applies. The suggestion has been made by counsel that they could have had a shield or they could have put an automobile there. In fact, he could have taken these pictures behind a brick wall with a hole through it, I suppose, if they had found a brick wall with a hole through it.
But, we are not dealing with that. That is not the correct frame of reference. The time and circumstances deal with the time when this motorcycle was moving towards the photographer plaintiff, who is in a stationary condition and position, according to his testimony and that of the driver of the motorcycle. You must ask *1219yourselves as of that time, as of that place, under those circumstances as we find them to have existed at that time, was the plaintiff contributorily negligent.
There was no time to build a brick wall or to get a car between him and this motorcycle. I suggest to you that the charge of contributory negligence on that basis has no place in the case.6
In light of this evidence, it seems to me that of the two possibilities — that the jury did consider the issue of assumption of risk or that it did not — the latter is the more likely.
Because New York law requires at the very least that defendant be permitted to go to the jury on the assumption of risk issue, and because the error here may well have contributed to the verdict, I would reverse and remand for a new trial.
. See Nucci v. Warshaw Constr. Corp., 12 N.Y.2d 16, 234 N.Y.S.2d 196, 186 N.E.2d 401 (1962); Shields v. Van Kelton Amusement Corp., 228 N.Y. 396, 127 N.E. 261 (1920); Greelish v. New York Cent. R. R. Co., 29 A.D.2d 159, 286 N.Y.S.2d 61 (3d Dep’t 1968), aff’d mem., 23 N.Y.2d 903, 298 N.Y.S.2d 308, 246 N.E.2d 161 (1969); Avery v. Order of St. Basil the Great, 27 A.D.2d 481, 280 N.Y.S.2d 171 (3d Dep’t 1967), aff’d mem., 21 N.Y.2d 908, 289 N.Y.S.2d 625, 236 N.E.2d 857 (1968).
While the defense of assumption of risk is said to apply only to the knowing acceptance of the risk of injury, an objective standard does in fact play a role in the defense:
. It is evident that a purely subjective standard opens a very wide door for the plaintiff who is willing to testify that he did not know or understand the risk; and there have been a good many cases in which the courts have said in effect that he is not to be believed, so that in effect something of an objective element enters the case, and the standard applied in fact does not differ greatly from that of the reasonable man. The *1218plaintiff will not be heard to say that he did not comprehend a risk which must have been quite clear and obvious to him.
W. Prosser, Torts § 67, at 462-63 (3d ed. 1964). For New York cases that implicitly support this position, see Nucci v. Warshaw Constr. Corp., supra, 12 N.Y.2d at 19, 234 N.Y.S.2d at 199, 186 N.E.2d at 402-403; Greelish v. New York Cent. R. R. Co., supra, 29 A.D.2d at 161, 286 N.Y.S.2d at 63.
. “ . . . assumption of risk is a jury question in all but the clearest cases.” W. Prosser, supra note 1, at 453-54 (footnote omitted).
. In the robing room after the court delivered its charge one of the defense counsel objected to the charge on contributory negligence in that it did not make clear that negligence of the plaintiff, however slight, bars his recovery if such negligence is a substantial factor in causing the injury. The supplemental charge was to correct this perceived error in the first charge.
. See Greelish v. New York Cent. R. R. Co., 29 A.D.2d 159, 161-162, 286 N.Y.S.2d 61, 64 (3d Dep’t 1968), aff’d mem., 23 N.Y.2d 903, 298 N.Y.S.2d 308, 246 N.E.2d 161 (1969):
. in actions where the factual situations are decisive in determining the issues of negligence and contributory negligence, the jury should be instructed in reasonable detail as to such issues and a pro forma charge, such as given in the present action, is neither legally sufficient nor helpful to a jury in fairly assessing the issues, particularly on the controlling issue of contributory negligence.
. Transcript of Trial at 258-59.
. Id. at 426.