Page:North Dakota Reports (vol. 48).pdf/777

 is assigned as error. In our opinion the assignment is without merit for two reasons:

(1) On cross-examination conducted by plaintiff's counsel for the purpose of ascertaining the knowledge of the witness as to the matters concerning which he was about to testify, he (Enright) admitted that he did not himself pay the men; that they were not paid through his department; that the only knowledge he had on the subject was by virtue of information received from others, including members of the train crews. He admitted that the plaintiff in this case had never made any statement to him as to who paid him for the services he rendered at Wilton. It seems clear that the testimony sought to be elicited from the witness was not the best evidence, but was hearsay.

(2) Subsequently the defendants were permitted to adduce, and did adduce, other evidence relating to the payment of the crews operating the trains in connection with the mine, and that matter was fully covered by such other evidence. The plaintiff admitted that he had received and cashed certain pay checks, which were admitted in evidence. Such checks were issued by. the coal company. Hence the defendants were in no event prejudiced by the exclusion of Enright’s testimony. 37 Cyc. p. 1464 et seq.

During the course of the trial the engineer, Johnson, was again called as a witness for the plaintiff, and he testified that, during the time he and the plaintiff, Asch, were at Wilton, namely, between December 18th and December 25th, the locomotive which they operated became incapacitated; that while such locomotive was out of order a freight engine (which pulled the way freight on the main line from Bismarck through Wilton) was detached at Wilton, and such engine, together with the crew thereon, assigned to work on the spur track leading to the mine in place of the engine on which Johnson was engineer and Asch fireman, and that such engine so assigned to work on the spur track continued to do so for a period of some three or four hours, whereupon it went back to its work on the main line of the defendant railway company. It is asserted that the court erred in admitting this evidence. We are of the opinion that the evidence was admissible. As already noted, one of the main contentions of the Director General was that the plaintiff at the time of the injury was an employee of the coal company. This was one oi the questions of fact submitted to the jury. A determination of this question in turn involved a consideration of whether the plaintiff gave