Opinion
November 14, 1951.
Appeal from Supreme Court, Ulster County.
Present — Foster, P.J., Heffernan, Brewster, Bergan and Coon, JJ.
Dock Street in the city of Kingston runs closely along the edge of Rondout Creek. The distance between the edge of the pavement and the water's edge is five feet. From the crown of the road to the water's edge is a drop of eleven inches in a distance of sixteen and one-half feet. The city exercises control over the area between the pavement and the water's edge. No guardrail, barrier or other protection existed between the edge of the pavement and the water on February 4, 1949. On that day the street was covered with snow and ice and slippery. Plaintiff's testator's car went over the edge of the bank and into the water and he was drowned. There was some indication from the marks left by the wheels of his car that he had not straightened out after turning into Dock Street from Ravine Street. Whether it was negligence on the part of the city in maintaining a street constructed as this one was with a rather highly pitched crown and close to a stream in this climate without any protection to vehicles turning into or driving along it fairly presents a question of fact and we do not regard the verdict in this respect as against the weight of the evidence. The court properly excluded the testimony of a hematologist as to a "recognized standard" by which intoxication is presumed to occur from the percentage of alcohol found in blood. He was not a physician or otherwise shown qualified from personal experience to be able to give an opinion which a court would accept on this subject, and the court left it open to the appellant to show by competent proof the effect of the alcohol which the hematologist said he found on examining the blood. Such proof was not offered, although a physician who assisted at the post-mortem examination had been a witness. Judgment unanimously affirmed, with costs.