OPINION
LOPEZ, Judge.Defendant Richard Brooks, age 16, was driving a car in which his mother, Mary Brooks, was a passenger, when he hit Plaintiff, Joel Hernandez, age 13, who had just alighted from a school bus and was proceeding to cross the street. Plaintiffs appeal from a judgment entered on a jury verdict for Defendants. We hold that it was reversible error for the court to instruct the jury to the effect that Plaintiff (Joel Hernandez) was negligent as a matter of law if he darted into the path of the vehicle when it was too close to yield.
On April 15, 1977, Richard Brooks struck and injured Joel Hernandez when the latter, on his way home from school, was crossing Standpipe Road in Eddy County, having just stepped off the school bus. The signals on the bus were flashing, and the bus driver testified that she also honked her horn to warn Richard, who was approaching from the opposite direction, to stop. He did not do so, however, until after he had hit the child, despite the fact that he noticed the stopped bus while he was still one-quarter to one-half mile away from it.
Plaintiffs contend that Instruction No. 4, given to the jury by the court, was reversible error. That instruction read:
There was in force in the state at the time of the occurrence in question a certain statute which provided that:
N.M.Stat.Ann., Sec. 64-18-33(b) (1953): No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impossible for the driver to yield.
If you find from the evidence that the plaintiff conducted, himself in violation of this statute you are instructed that such conduct constituted negligence as a matter of law.
Sec. 64 18 33 [now codified as § 66-7-334, N.M.S.A. 1978] is inapplicable to the case at bar. The section is entitled “Pedestrians’ right-of-way in crosswalks.” It is applicable to an ordinary pedestrian in a crosswalk. Subsection (a) directs a driver approaching a pedestrian there to yield the right of way. The statute in effect at the time of the accident that applied where children were getting on or off a school bus stopped with its signals flashing commanded the approaching driver to come to a complete stop. Section 64-18-46, N.M.S.A. 1953 [now codified as § 66-7-347, N.M.S.A. 1978]. That statute read in part:
Overtaking and passing school bus. — A. The driver of a vehicle upon approaching or overtaking from either direction any school bus which has stopped on the roadway, with special school bus signals in operation, for the purpose of receiving or discharging any school children, shall stop the vehicle at least ten [10] feet before reaching the school bus and shall not proceed until the special school bus signals are turned off, the school bus resumes motion or until signaled by the driver to proceed.
Sections 64 18 33 and 64-18-46 apply to entirely different situations, and prescribe different duties. It is reversible error for a court to give instructions relating to § 64-18 33 when the statute has no applicability under the facts of the case. Pitner v. Loya, 67 N.M. 1, 350 P.2d 230 (1960). If the jury believed that Joel Hernandez darted, rather than walked, across the street, it was practically required by Instruction No. 4 to reach a verdict for the Defendants. In these circumstances, this instruction was similar to a directed verdict for the Defendants. It was clearly reversible error to give this instruction.
Section 64 18 — 33(b) [now § 66-7-334(B)] describes what constitutes contributory negligence on the part of an ordinary pedestrian in a cross-walk. There is no similar provision in § 64-18-46 [now § 66-7-347] to indicate what might constitute contributory negligence by a child crossing the street after alighting from a school bus. In the absence of any specific directive, we presume that the legislature intended the usual standard of the contributory negligence of a child to apply. The correct test in determining the contributory negligence of a child is whether he exercised that degree of care ordinarily exercised by children of like age, capacity, discretion, knowledge, and experience under the same or similar circumstances. Saul v. Roman Catholic Church, 75 N.M. 160, 402 P.2d 48 (1965); see, Zamora v. J. Korber & Co., 59 N.M. 33, 278 P.2d 569 (1954). It was error to instruct the jury on any other standard of contributory negligence.
Although Plaintiffs’ other point on appeal — that it was reversible error for the trial court to deny them leave to amend the complaint so as to allege gross negligence — is moot, we note that Plaintiffs should be allowed to so amend their complaint within a reasonable time prior to the new trial. In New Mexico, one who violates a statute or ordinance is guilty of negligence per se, if the statute or ordinance was enacted for the benefit of the class of persons to which the injured person belongs. Bouldin v. Sategna, 71 N.M. 329, 378 P.2d 370 (1963); Zamora. We can see no reason for the enactment of § 64-18-46 [now § 66-7-347] other than to protect school children boarding or alighting from a school bus from injury from oncoming motorists. Consequently, Richard Brooks is guilty of negligence per se. When a statute has been violated, the jury might find not only ordinary negligence, but also gross negligence, depending on the circumstances. Gray v. Esslinger, 46 N.M. 421, 130 P.2d 24 (1942). Since amendments to pleadings shall be permitted with liberality in the furtherance of justice [Vernon Co. v. Reed, 78 N.M. 554, 434 P.2d 376 (1967)], we believe that Plaintiffs should be allowed to amend their complaint to allege gross negligence before the case is retried.
The judgment of the lower court is reversed, and the cause is remanded for proceedings consistent with this opinion.
IT IS SO ORDERED.
WALTERS, J., concurs. SUTIN, J., dissents.