delivered the opinion of the court.
*4282. Street railroads, § 135 * — when question for jury whether driver of wagon is guilty of contributory negligence. Where the plaintiff’s decedent, in an action to recover damages for the latter’s death, was driving his wagon on defendant’s street car tracks and, .upon the approach from the rear of the wagon of defendant’s car decedent turned diagonally off the track when the car was fifty to one hundred feet away, and, when the wagon was entirely off the track, turned it parallel to the track to continue forward but so close to the range of the car that the car struck the wagon, resisting in his death, held, that it was a question for the jury whether decedent was contributorily negligent.
3. Appeal and error, § 1506* — when cross-examination of witness is not reversible error. Where an impeaching question was asked a witness on cross-examination as to a fact which examining counsel stated they would prove, to which objection was made and sustained, but the witness answered denying such fact and no proof thereof was made, held that such cross-examination was not reversible error.
4. Appeal and error, § 471* — when impeaching question is not ground for reversal. Where the objection that an impeaching question asked a witness .was improper was not urged at the time the question was asked or when impeaching testimony was attempted to be produced, and no opportunity was given the court to correct the error by a proper instruction, and no request was made for withdrawal of a. juror at any time, such question was not ground for reversal.
5. Death, § 73* — when instruction is not erroneous as assuming facts. An instruction, in an action- to recover damages for death from defendant’s negligence, that the. only care and caution that the decedent was required to exercise at- and before the -time of the accident in question was such care and caution as a reasonably careful and prudent person woufil have exercised under similar- circumstances, and conditions that the evidence in the case showed surrounded the decedent at and before" the time of the accident in question, held not subject to the criticism that it assumed facts in issue. "
6. Appeal and error, § 1531* — when instruction is reversibly erroneous. An instruction cannot be said to be reversibly erroneous unless, when applied to the facts, it tends to mislead the jury in *429regard to matters actually in controversy or to leave out of consideration a matter actually in issue.
7. Street railroads, § 140 * — when instruction referring to declaration in action for death of driver of wagon is not erroneous. An instruction, in an action to recover damages for death due to a wagon driven by decedent being struck by defendant’s street car while decedent was driving the wagon off of defendant’s tracks upon which he had been driving, that plaintiff could recover if she could prove her case “as alleged in her declaration or any count thereof,” held not erroneous, although one count charged only that the decedent then and there drove the wagon to the right and thus commenced and started to drive out of the way of the car, then and there using all due care and caution for his own safety, and while so driving was negligently struck by the car, there being no question as to decedent’s care and caution prior to the time he started to turn off of the track.
8. Street railroads, § 140* — when instruction referring to declaration in action for death of driver of wagon is not erroneous. An instruction, in an action to recover damages for death due to decedent being struck by defendant’s street car, that plaintiff could recover upon proof “as alleged in her declaration or any count thereof,” held not erroneous, although one count charged, after alleging decedent’s due care and caution for his own safety, that it was defendant’s duty not to operate its car at a high and dangerous rate of speed but so that decedent in the exercise of ordinary care and diligence for his own safety would not be injured by the operation of its car, and that defendant, disregarding such duty, had operated its car at such high and dangerous rate of speed that decedent, while so exercising such care and caution for his own safety, was- struck and killed, such allegations being considered in connection with defendant’s proof and instruction that those operating a street car must exercise only ordinary care for the safety of the public in running their cars.