Page:North Dakota Reports (vol. 48).pdf/776

 from the statement of facts that this statement was made immediately preceding the collision, and at a time when the locomotive was 300 feet or less from the box cars. In our opinion, the evidence was admissible. The statement made by the engineer, according to the testimony of the plaintiff, was a spontaneous utterance, made contemporaneously with the accident. The authorities generally hold such statements admissible as a part of the res gestae. See Champlin v. Pawzuteck Valley St. Ry. Co., 33 R. I. 572, 82 Atl. 481; 2 Jones (Horwitz), Commentaries on Evidence, § 344, p. 810 et seq., and authorities collated in notes.

Error is also predicated upon the testimony of the plaintiff as to the ownership of the railway line extending from Wilton to Bismarck. In our opinion the assignment is devoid of merit, for the defendants themselves, as a part of their case, put in full proof regarding the ownership of the tracks and engines, etc., and there was absolutely no conflict in the evidence as regards these matters.

Error is assigned upon the examination of the engineer in charge of the locomotive at the time of the injury. The engineer was called as a witness by the plaintiff. At the time he was called, plaintiff's counsel seid:

“I would like to have the record show that we are calling him for certain specific questions and as a witness for the other side.”

Defendants’ counsel objected to this statement. The court there- upon said to plaintiff's counsel:

“You claim this man is called for cross-examination ?”

To which plaintiff's counsel replied in part:

“We know this witness is a witness that has been subpcenaed here by the defendants, and we call him to ask him certain specific questions on the theory that we are making him our witness only on such questions on the direct issues we put to him.”

In answer to preliminary questions the witness stated that he had been subpcenaed by the defendants, and had discussed the case slightly with defendants’ counsel. We fail to see wherein defendants could have been prejudiced by this procedure.

One Enright, the superintendent of the coal company, was called as a witness for the defendants. He was asked as to who paid the crews operating the trains on the spur between Wilton and the coal mine. An objection interposed by plaintiff’s counsel was sustained, and that ruling