
    Susan A. McClelland v. Benjamin F. Scroggin.
    Filed April 21, 1896.
    No. 6505.
    1. Continuance: Absent Witnesses: Affidavit. A motion and the affidavit filed in support thereof which did not show that if a continuance was granted the evidence of the absent witness or his personal attendance could or would he obtained, held insufficient.
    2. Negligence: Obdinaey Case. The care which may be termed ordinary is such a degree of care as a prudent and reasonable man would exercise under the existing circumstances and conditions. Where the known risks are enhanced the degree of care should correspondingly increase.
    3. Steam-Threshers: Fiees: Negligence: Evidence. The facts and circumstances in evidence in this case with reference to the management and operation of the engine of a steam-thresher, more particularly in respect to the manner of dumping or throwing ashes and cinders and live coals therefrom in the stack-yard near to the straw and stacks of grain, and the condition in which such ashes, cinders, and coals were there left, held to present questions of negligence which should have been submitted to the jury.
    Error from tbe district court of Nuckolls county. Tried below before Hastings, J.
    
      Cole & Brown and S. W. Christy, for plaintiff in error.
    
      Searle & Coleman, contra.
    
   Harrison, J.

During tbe fall of 1891 tbe defendant in error was operating wbat is generally designated a “steam-tbresber,” and with it tbresbed grain for tbe plaintiff in error, in such quantity that the bill for services amounted to $108. This the plaintiff in error did not pay and this suit was instituted for its recovery. Plaintiff in error, in her pleading, admitted the account both as to its origin and amount, but alleged that while engaged in threshing for her the defendant in error and his employes carelessly and negligently dumped or deposited ashes, cinders, and live coals from the engine, a paid of the thresher, on the ground, so that fire was communicated to the loose straw on the premises around the thresher and to the unthreshed wheat and stacks, and there was thereby destroyed wheat belonging to plaintiff in error, of the value of $182.60, all of which affirmative matter pleaded by plaintiff in error the defendant in error denied. When the case was called for trial it was agreed that, as the issues were joined, the plaintiff in error was charged with the burden and should first produce proof. At the close of the testimony introduced in her behalf the judge instructed the jury as follows: “Defendant admits the claim of plaintiff for $103 and interest from November 20, 1891, and seeks to avoid the same by a claim for damages for negligence on the part of plaintiff in the handling and care of plaintiff’s traction engine, whereby defendant’s wheat and straw is alleged to have been burned. In the view of the court the defendant has failed to produce any sufficient evidence to substantiate this claim. You will therefore find your verdict in this cause for plaintiff in the amount of his claim.” The jury followed the directions contained in the instruction and returned a verdict in favor of defendant in error for $112, for which amount, after motion fox* new trial heard and overruled, judgment was rendered.

Prior to the trial, an application was made on behalf of the plaintiff in error for a continuance of the case. This was in the usual form of a motion supported by affidavit. The application was made on March 7, 1893, and it was stated in the affidavit accompanying the motion that one Frank Ribley was a material witness for the af-fiant; that be was, in tbe fore part of February, 1893, at Maryville, Kansas, where affiant wrote with reference to bis being present to testify in tbe canse on behalf of affi-ant, and on or about February 13, 1893, received a letter from Frank Ribley stating that be would be back to Oak,. Nuckolls county, Nebraska, about March, 1893, and not later than March 5, 1893, and it was further stated that the witness had not returned according to his promise to the knowledge of affiant, nor had she heard anything more from him; that, placing' reliance in the promise of the witness to be present and give testimony, affiant had taken no steps to procure his deposition. The affidavit filed in support of the motion for a continuance failed to show that the evidence of the absent witness or his personal attendance would probably be obtained if a continuance was allowed, hence it was insufficient and the judge did not err in overruling the motion. (Polin v. State, 14 Neb., 540; Barton v. McKay, 36 Neb., 632.)

The only further question is, did the trial court err in directing a verdict in favor of defendant in error, or in effect deciding and stating that the plaintiff in error had not produced any sufficient testimony to show that defendant in error or his.employes had been guilty of any negligence in . operating the engine and thresher, which had been the cause of the fire, or was there sufficient evidence on this point to require its submission to the jury as a question of fact for their determination? The evidence disclosed that the threshing was commenced either Wednesday or Thursday of the week, and that it was in progress on Friday until about 5 o’clock P. M., and again on Saturday. During all the time the work was done in one stack-yard, in which there were, in all, eight stacks of grain. The position of the engine was changed two or three times, and at each place in the stack-yard or field where it had stood there had been dumped or thrown out ashes and cinders, and in at least two of them live coals. On Saturday the wind was quite strong and carried with it loose straw, which it strewed around and over the stack-yard, and tbe prevalence of the high, wind and the consequent inconvenience caused in the threshing with the engine and separator in the positions they occupied when work was begun in the morning, necessitated that they be changed during the day. Work was stopped on Saturday evening and the machine left in position for further operation. Between 10 and 11 o’clock on Saturday night the straw and some of the grain stacks were discovered to be burning. The steam-thresher is but one of the advanced types of implements used by man in his labors, and has been, with others of a similar kind, supplied by inventive genius and ingenuity as his wants have become apparent in the progress, development, and advancement of the people in the various pursuits of life, and its usé is proper and necessary, and any new conditions or relations arising from the use of this or any of the new devices or implements are to be adjusted as they present themselves. In the use of the steam-thresher the agency of fire must be employed, and in the near presence of straw and other combustible material, but we have no doubt that the established rule that such care should be exercised in its use as a prudent and reasonable man would take under the existing circumstances should apply and govern. Where the known risks are enhanced, the degrees of care and diligence should increase correspondingly. (City of Beatrice v. Reid, 41 Neb., 214.) Viewed in the light of this rule, the evidence in the case at bar presented subject-matter for the examination and determination of the jury, and the judge should have submitted it to them, and it was therefore error to direct a verdict. The judgment of the district court is reversed and the cause remanded.

Reversed and remanded.  