
    Edward McConnon et al., Appellants, v Theresa J. Catalano et al., Respondents.
   In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from a judgment of the Supreme Court, Queens County, entered December 27, 1973, in favor of defendants, upon a jury verdict, after trial on the issue of liability only. Judgment affirmed, with costs. No opinion. Rabin, Acting P. J., Hopkins, Cohalan and Munder, JJ., concur; Martuscello, J., dissents and votes to reverse and grant a new trial, with the following memorandum: Reversible error was committed when the trial court, in charging the jury on the applicability of a traffic statute, said, "I have read this statute to you not because I have determined as a matter of law that it is applicable to this case, but to apprise you what the law is in the event you decide that the facts in this case bring it within the scope of the statute. In other words, this statute sets up a criterion of conduct to which a reasonable person is required to conform. If you find that the statute was applicable to the factual situation at the time of this accident, then you must accept the statutory test”. The applicability of the statute is a judicial determination and not a question for the jury (Petru v Hertz Corp., 33 AD2d 755). In the circumstances of this case, such an instruction was so highly prejudicial that, although no objection was made, the interests of justice mandate reversal. I also note that the court’s instruction on contributory negligence may have confused the jury as to the standards to be applied, although, again, no specific objection was made. The instruction did not distinguish between a finding of negligence measured against the standard of the conduct of a reasonable man in similar circumstances, which is not a measure of percentage degrees of perfection, with negligence "no matter how slight” contributing to the accident.  