
    Anna Cibulski, Respondent, v. John Hutton and Others, Appellants.
    
      nuisance —injury from the explosion of a powder mill — evidence as to its necessity — evidence as to its situation—proof of deafness, when not pleaded — charge as to the effect of a witness testifying falsely.
    
    In an action to recover damages for personal injuries sustained by the plaintiff ■in consequence of the explosion of a powder mill located within 250 feet of the house in which she lived, evidence that she became deaf in consequence of the explosion, being an item of special damage, is not admissible under an allegation of the complaint that she “ received great and permanent injury and was made sick, sore, lame' and disabled for a long period of time.”
    In such a case it is not error to exclude evidence that gunpowder was a necessity to the conduct of some of the principal industries in the city in which the powder mill was located, where the jury knew as much and the. court stated that it was a lawful essential in many industries.
    It is proper to permit the defendants to testify concerning the buildings and occupancy of the neighborhood in which the powder mill was located, and to refuse to permit them .to compare such neighborhood with other designated portions of the city.
    
      Wtiere the evidence given by the plaintiff was contradicted, it is error for the court, upon being requested to charge “ that if the plaintiff or any of her witnesses have knowingly testified falsely in any material matter, this jury may disregard their entire evidence,” to reply, “ I decline to charge that as a proposition of law. They may take into consideration the. entire testimony given by the plaintiff and her witnesses as well as other witnesses; ” it is also error to charge, in response to a renewal of such request as to the plaintiff alone, “ The jury must take into consideration the entire testimony given and received here and weigh it according to their best judgment.”
    Appeal by the defendants, John Hutton and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 1st day of March, 1899, upon the verdict of a jury for $850, and also from an order entered in said clerk’s office, on the 25th day of February, 1899, denying the defendants’ motion for a new trial made upon, the minutes.
    
      Howard Chipp and A. T. Clearwater, for the appellants.
    
      Charles Irwin, for the respondents.
   Landon, J.:

The recovery was upon account of personal' injuries sustained by the plaintiff from an explosion of a powder mill or magazine located in the city of Kingston. In Prussak v. Hutton (30 App. Div. 66) we sustained a recovery against these defendants in favor of the plaintiff in that case for personal injuries caused by the same explosion. The recovery was not placed upon the ground of the defendants’ negligence, but upon evidence sufficient to support the finding of the jury that the powder mill in the place where it was situate, with reference to the dwelling in which the plaintiff in that case was injured, was a nuisance. The house in that case was 300 or 400-feet from the powder mill. In this 'case, the house in which the plaintiff lived and was sitting at the time of the explosion was 250-feet distant from the powder mill. The judgment in this case should be affirmed for the reasons stated in the Prussak case, unless some error assigned by the appellants requires a reversal.

(1) In response to the question of her counsel as to the plaintiff’s health since the explosion, she answered: “Ailing ever since and kind of hard of hearing in one ear.” To which the defendants objected, and moved to strike out her testimony as to her hardness •of hearing. The court overruled the objection and denied the motion. The complaint alleged that by the explosion the plaintiff “ received great and permanent injury, and was made sick, sore, lame and disabled for a long period of time,” and continues so, but without specifying deafness as one of her injuries. Special damages, which, although a natural result of an injury, are not the necessary result, ought to be pleaded, and deafness has been placed in this class.' (Hergert v. Union Ry. Co., 25 App. Div. 218; Stevens v. Rodger, 25 Hun, 54.) We are inclined, however, to think that in the case of an explosion like the one before us, near to the person injured, it is a fair question of fact for the jury whether some deafness might not be such a natural and expected and, therefore, necessary result of the violent shock as to make the evidence •of it under a complaint like this no surprise to the defendants, or to justify the amendment of the complaint, and thus make the evidence admissible.

. (2) The defendants requested the court to charge “that the jury may find in favor of the defendants, or in favor of any one of the ■defendants.” In view of our decision in the Prussah case, upon substantially the same acts of the defendants in maintaining the powder mill as are here presented, the liability of each defendant ■depended upon the question whether the powder mill as placed and •operated was a nuisance. That each one of the defendants contributed to that maintenance was not contested, and, therefore, there was no difference in their legal liability, and no reason why the jury should be told that they might favor one and hold the others. If the jury should find that there was no nuisance, then they should find in favor of all the defendants. The counsel for defendants insist that this refusal was equivalent to a charge that the jury must find against all the defendants. The court said in response to the request, “ I will charge them that. I decline to charge only except in connection with what I have already charged.” The court had •distinctly charged, If you find, gentlemen, that this powder magazine in the locality in which it was kept was not a nuisance, then your verdict will.be for the defendants.” We do not think the jury could have understood that they must find against the defendants.

(3) We do not think the court erred in pointing out, by way of illustrating its definition of a nuisance, a place near the court house where a powder house would be a nuisance, and a place in the wilderness of the town of Hardenberg in Ulster county, where it would not be a nuisance. . The court stated that the illustration was extreme, and hence the jury could not infer that the only1 place where a powder house would not be a .nuisance must be like the wilderness of Hardenberg. •

(4) The defendants were permitted to testify to the condition as tó buildings and occupancy of the neighborhood where the powder-mill was located, but were not permitíed to compare it with other designated portions of the city of Kingston. We think this was right.

(5) There was no error in excluding evidence that gunpowder was a-necessity in conducting some of the principal industries in the city of Kingston. The jury knew as much and the court told them that it was a lawful, essential in many industries,

(6) The defendants asked the court to charge “ that if the plaintiff or any of her witnesses have knowingly testified falsely in. any material matter, this jury may disregard their entire evidence.” . The Court: I decline to charge that as a proposition of law. They may take into consideration the entire testimony given by the plaintiff and her witnesses as well as other witnesses.” The defendants excepted and renewed the request as to the jolaintiff alone. ■ The Court: “ The jury must take into consideration the entire testimony given and received here, and weigh it according to their best judgment.” Defendants excepted.

If the .court had charged as requested,' we should sustain the charge. (Moett v. People of the State of New York, 85 N. Y. 373; Deering v. Metcalf, 74 id. 501; Peyser v. Coney Island, etc. R. R. Co., 81 Hun, 70; Posthoff v. Schreiber, 47 id. 593.)

The request was relevant to the plaintiff’s testimony. She had testified: “ I was laid up with those injuries for six weeks. It was about twelve -weeks before I was able to do my. regular work-.. * * Six weeks I Avag lying in bed steady.” On the other-hand, one witness testified to seeing the plaintiff “out there by the-door ” within a week after the explosion ; another too seeing her Cf on the street two or three times * * * within a week after the explosion; ” another to seeing “ her right along aftenvards, day in and day out,” passing his house and Avalking in the street. . Two other witnesses gave similar testimony.

The plaintiff’s testimony as to the attendance upon her by- two physicians was contradicted.

The testimony of the plaintiff’s husband as'to the extent of the plaintiff’s injuries was also contradicted. The whole of this class of testimony was material upon the question of damages. It was important to know whether the plaintiff told the truth when she testified that she was “ tying in bed steady ” for six weeks. If not, it was fair to argue that she knew it. The error in the refusal to charge, and in the charge as made without the qualification requested, cannot be disregarded.

All concurred.

Judgment and order reversed and a new trial granted, costs to abide the event.  