Page:North Dakota Reports (vol. 48).pdf/775

 amendments allowed were as follows:

The plaintiff was permitted to add to his allegation as to the injury sustained the following: “And by grievous bodily injuries to his face and other portions of, his body”—and to substitute John Barton Payne in place of Walker D. Hines, as Director General. So far as the latter amendment is concerned, the court would take judicial notice that the fact that Walker D. Hines had ceased to be Director General and that John Barton Payne had been appointed as his successor. C. L. 1913, § 7938, subds. 28, 30, 33. Manifestly there could be no prejudice in permitting this amendment to be made. Nor do we believe there was any error in permitting the complaint to be amended as to the extent of the injury received. It is elementary that the allowance of amendments rests largely in the sound, judicial discretion of the trial court, and that its rulings will not be disturbed unless an abuse of discretion appears. No application for a continuance was made, and there is not the slightest indication that the defendants were taken by surprise, or in any manner prejudiced by the allowance of the amendments.

At the commencement of the trial the plaintiff called one Enright, the superintendent of the coal company, for cross-examination under § 7870, which provides that a party to a civil action, or the directors, officers, superintendent, or managing agents of any corporation, which is a party to the record in the action, may be examined upon the trial as if under cross-examination at the instance of the adverse party. Enright testified that he (at the time of the trial) was the superintendent of the defendant coal company. The defendants, however, contend that the plaintiff was not entitled to call him for cross-examination under the statute for the reason that his testimony showed that he was not superintendent at the time the accident in question occurred, and that he, at that time, was merely a traveling salesman for the coal company. We find it wholly unnecessary to determine the question raised, for it developed upon the examination of Enright that he knew nothing about the accident; he was therefore dismissed, and he gave no testimony which could in any manner affect the result of the action. The error, if any, was clearly non-prejudicial.

Error is also predicated upon the admission of the testimony of the plaintiff, Asch, as to what the engineer Johnson said to him upon discovering the box cars, viz.: “Let’s get out of here!” It will be noted