Mr. Justice Niehaus delivered the opinion of the court.
2. Stbeet bailboads, § 110*—when variance between pleading and proof as to cause of injury. ' There is a fatal variance between the allegations of a declaration that the plaintiff was injured by reason of a carriage in which he was riding being struck by a street car, so as to cause him to be thrown to the ground, and evidence that the collision caused a horse to run away into a nearby telegraph pole and to thereby throw the plaintiff to the ground. 3. Appeal and ebbob, § 521*—when question of variance open to review. The question of variance between pleading and proof may be reviewed on appeal, when called to the attention of the trial court by a motion to strike out the evidence at the close of the plaintiff’s case, and afterwards included in a motion for a new trial although without being specifically pointed out. 4. Witnesses, § 283*—when witness may be cross-examined as to statement of plaintiff discrediting merits of case. The credibility of a witness for the plaintiff may be impeached by cross-examining him from a paper as to answers made to an attorney for the defendant oh another occasion, concerning statement made to the witness by the plaintiff with reference to the merits of his case. 5. Negligence, § 112*—when negligence of intoxicated driver imputable to occupant of vehicle. A person who places himself in the care of a driver whom, he knows to be intoxicated is chargeable with the latter’s want of ordinary care which results in an injury to the former. 6. Stbeet bailboads, § 140*—instruction as to imputing negligence of driver to passenger. An instruction in an action for injuries sustained by a passenger in a carriage through a collision with a street car, that he could recover from the railroad company if, at the time of the accident, he was in 'the exercise of ordinary care and that he would not be chargeable with the negligence of the driver of the vehicle which contributed to his injury, held erroneous, where the evidence was conflicting as to whether the plaintiff voluntarily placed himself in the care of a driver whom he knew to be intoxicated. 7. Stbeet bailboads, § 140*—instruction as to exercise of care by person injured. An instruction in an action for injuries sustained by the occupant of a vehicle in a collision with a street car, which limited the exercise of care by him “to the time of the injury complained of,” held sufficient. '