delivered the opinion of thfe court.
*6202. Instructions, § 111 * — when instruction ignoring counts of declaration is not erroneous. In an action to recover for death by wrongful act, the court may properly instruct the jury that plaintiff may recover if fie proves by a preponderance of evidence his right to recover “as alleged in the first, second or third count of the declaration, and it is not necessary for him to prove his right to recover under all of said counts,” though a form of the instruction which told the jury what facts plaintiff was required to prove in order to recover would have been preferable.
3. Death, § 74* — when requested instruction on due care of deceased should not he refused. In an action to recover for a wrongful death caused by being struck by a train at a crossing, an instruction as to the due care of the deceased which announces the rule to be that he was required to exercise ordinary care for his own safety while approaching the crossing, immediately prior to the injury, and while he was on said crossing, should not he refused, though inaptly worded, as it sufficiently states that it was the duty of deceased to exercise ordinary care for his own safety at the time he was approaching the crossing, and while he was on the crossing, at the time of and immediately before the injury.
4. Death, § 73*- — when instruction referring to declaration is properly refused. In an action to recover for wrongful death, an instruction on the measure of damages which makes reference to the amount claimed in the declaration is properly refused.
5. Death, § 74* — when instruction on contributory negligence of deceased is erroneous. In an action to recover for a wrongful death caused by collision of an automobile with a train at a crossing, it is error to instruct that if the jury believe from all the facts and circumstances, if any, shown by the evidence, that if the deceased “by the exercise of such diligence as is usually exercised by ordinarily prudent persons to protect themselves from injury, could reasonably have done some act which would have apprised him of the approach of the train in time to avoid the collision, it was his duty to do such act, and if he did not so do, he was guilty of contributory negligence and cannot recover.”