Ethridge, J.,
delivered the opinion of the court.
The appellant brought suit against the appellee in the circuit court for burning an ice plant located in the town of Collins, Miss., demanding judgment for twenty-two thousand dollars. The declaration charges that on or about the 9th day of February, 1920, the agents and servants of the Director General set fire to, and carelessly and negligently allowed the fire to get into, the lands of the plaintiff, on which was situated plaintiff’s ice plant, including the building, machinery, etc., completely destroying' the building, and so damaging the machinery located therein as to render it worthless or practically so. There were four counts, declaring on different phases of negligence, but all of them charging the burning substantially as above stated.
Plaintiff introduced two witnesses with reference to the date of the fire. The first witness questioned answered as follows:
• “Q. Where were you working along about the 9th day of February, 1920, Milton? A. I was working down at the mill of W. C. Wood Lumber Company’s mill, at the loading shed.
“Q. What railroad runs by that mill? A. The G. & S. I.
“Q. On which side of the railroad is the mill on of the Wood Lumber Company? A. On the west side. •
“Q. That is on this side of the railroad? A. Yes, sir.
“Q. What was on the opposite of the railroad, on the east side of the railroad at that time, before that? A. The ice plant.
“Q. Hoav long had you been at work at the mill before this day? A. Going on three or- four years, something like that.
[265]*265“Q. What happened to the ice plant, if anything, on that day? A. It got burned up.”
The second witness for plaintiff testified as follows:
“Q. Where were you on the 9th day of February, 1920, Frank? What were you doing? A. I ivas working down at the W. C. Wood Lumber Company.
“Q. You remember the occasion when the ice plant was burned down there, don’t you? A. Yes, sir.
"Q. What happened to the ice plant that day? A. It got burned up that day.”
These witnesses testified that the southbound local freight train passed there in the afternoon, and that the locomotive was emitting sparks, and that some time after they saw fire in some shavings and sawdust near the corner of the ice plant, and that the ice plant caught from the said fire and burned; that it was very dry, and it burned rapidly. The time the fire was seen ivas fixed differently by the two witnesses — one estimating the time from an hour to an hour and a half after the passage of the south-hound local freight; the other estimating the time at from thirty to forty minutes after the train passed. There were other witnesses who testified to other matters involved in the case for the plaintiff, but none of them fixed any time at which the fire occurred.
The defendant introduced the train dispatcher, who testified that he kept the records of the movements of trains, and that on the 9th day of February he was on duty from eight a. m. to four p. m. and directed the movements of the company’s trains during that period of time, and that the only freight train that passed going south left Collins at twelve twenty-five p. m.-, and reached Seminary at one ten p. m., Seminary being some distance south of Collins, and that the next train that would pass going south on that day would be about six p. m. It was also proven that the smokestack on the said train was equipped with standard spark arresters and was in good condition. The section foreman was introduced by the defendant, and testified that he was working on the section which included Collins [266]*266on that day, but was at some point north of Collins, and did not see the fire, but that he was called on by the company to make a report concerning the fire, two or three days after it occurred, and that he did make the report, keeping a copy of the report, which he examined at his home the morning of his testimony and prior to testifying, and that the report showed the fire occurred on the 9th day of February. He further testified on cross-examination that, independent of the report, he had no personal recollection of when the fire occurred.
The defendant procured an instruction in the following language:
“The court instructs the jury, for the defendant, that the burden rests upon the plaintiff to prove by a preponderance of the evidence in this case that the ice plant ivas set on fire by sparks from the engine of a local freight train going south on the 9th day of February, 1920, and, unless the plaintiff-has met this burden by a preponderance of the evidence, it is the sworn duty of the jury to find for the defendant.”
The plaintiff requested, and was refused, an instruction in the following language:
“The court instructs the jury, for the plaintiff, that the plaintiff is not confined to proof of a fire on the 9th day of February; but, if they believe from the evidence that the plant was burned on or about the 9th day of February, this is sufficient as to the time.”'
Plaintiff was given an instruction that all that was j:ieeessary to make, out 1ns case was to prove by, the preponderance of the evidence that his property was destroyed by fire communicated, either directly or indirectly, by -a locomotive operated by the railroad in question,. and if the jury believed from the evidence that he met this burden, then they should find for the plaintiff. Plaintiff was also given another instruction, Avhich told the jury, for the plaintiff, that if they believed the ice plant in question was destroyed by fire communicated directly or indirectly by a locomotive engine in use by the railroad company in ques[267]*267tion, then it ivas their duty to find for the plaintiff, regardless of whether the defendant was in any way negligent in the operation of the said railroad or in the communication of said fire.
The jury returned a verdict for the defendant, and a judgment was entered thereon for the defendant, from which judgment this appeal is prosecuted, and the giving of the instruction for the defendant above set out is assigned for error, as is also the refusal of the refused instruction for the plaintiff above set out. It is insisted by the appellant that it was not limited to the 9th day of February for the recovery of damages for the burning-of the ice plant, but that the jury should have been allowed to find for the plaintiff if they believed its ice plant was burned by the railroad at or near the 9th day of February, and also insist that it had a right to prove the fire at any time within the period not barred by the statute of limitations. That time is not of the essence of the suit, and it should not have been limited to the proof of time to the 9th day of February, citing a number of authorities in support of this position.
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Ethridge, J.,
delivered the opinion of the court.
The appellant brought suit against the appellee in the circuit court for burning an ice plant located in the town of Collins, Miss., demanding judgment for twenty-two thousand dollars. The declaration charges that on or about the 9th day of February, 1920, the agents and servants of the Director General set fire to, and carelessly and negligently allowed the fire to get into, the lands of the plaintiff, on which was situated plaintiff’s ice plant, including the building, machinery, etc., completely destroying' the building, and so damaging the machinery located therein as to render it worthless or practically so. There were four counts, declaring on different phases of negligence, but all of them charging the burning substantially as above stated.
Plaintiff introduced two witnesses with reference to the date of the fire. The first witness questioned answered as follows:
• “Q. Where were you working along about the 9th day of February, 1920, Milton? A. I was working down at the mill of W. C. Wood Lumber Company’s mill, at the loading shed.
“Q. What railroad runs by that mill? A. The G. & S. I.
“Q. On which side of the railroad is the mill on of the Wood Lumber Company? A. On the west side. •
“Q. That is on this side of the railroad? A. Yes, sir.
“Q. What was on the opposite of the railroad, on the east side of the railroad at that time, before that? A. The ice plant.
“Q. Hoav long had you been at work at the mill before this day? A. Going on three or- four years, something like that.
[265]*265“Q. What happened to the ice plant, if anything, on that day? A. It got burned up.”
The second witness for plaintiff testified as follows:
“Q. Where were you on the 9th day of February, 1920, Frank? What were you doing? A. I ivas working down at the W. C. Wood Lumber Company.
“Q. You remember the occasion when the ice plant was burned down there, don’t you? A. Yes, sir.
"Q. What happened to the ice plant that day? A. It got burned up that day.”
These witnesses testified that the southbound local freight train passed there in the afternoon, and that the locomotive was emitting sparks, and that some time after they saw fire in some shavings and sawdust near the corner of the ice plant, and that the ice plant caught from the said fire and burned; that it was very dry, and it burned rapidly. The time the fire was seen ivas fixed differently by the two witnesses — one estimating the time from an hour to an hour and a half after the passage of the south-hound local freight; the other estimating the time at from thirty to forty minutes after the train passed. There were other witnesses who testified to other matters involved in the case for the plaintiff, but none of them fixed any time at which the fire occurred.
The defendant introduced the train dispatcher, who testified that he kept the records of the movements of trains, and that on the 9th day of February he was on duty from eight a. m. to four p. m. and directed the movements of the company’s trains during that period of time, and that the only freight train that passed going south left Collins at twelve twenty-five p. m.-, and reached Seminary at one ten p. m., Seminary being some distance south of Collins, and that the next train that would pass going south on that day would be about six p. m. It was also proven that the smokestack on the said train was equipped with standard spark arresters and was in good condition. The section foreman was introduced by the defendant, and testified that he was working on the section which included Collins [266]*266on that day, but was at some point north of Collins, and did not see the fire, but that he was called on by the company to make a report concerning the fire, two or three days after it occurred, and that he did make the report, keeping a copy of the report, which he examined at his home the morning of his testimony and prior to testifying, and that the report showed the fire occurred on the 9th day of February. He further testified on cross-examination that, independent of the report, he had no personal recollection of when the fire occurred.
The defendant procured an instruction in the following language:
“The court instructs the jury, for the defendant, that the burden rests upon the plaintiff to prove by a preponderance of the evidence in this case that the ice plant ivas set on fire by sparks from the engine of a local freight train going south on the 9th day of February, 1920, and, unless the plaintiff-has met this burden by a preponderance of the evidence, it is the sworn duty of the jury to find for the defendant.”
The plaintiff requested, and was refused, an instruction in the following language:
“The court instructs the jury, for the plaintiff, that the plaintiff is not confined to proof of a fire on the 9th day of February; but, if they believe from the evidence that the plant was burned on or about the 9th day of February, this is sufficient as to the time.”'
Plaintiff was given an instruction that all that was j:ieeessary to make, out 1ns case was to prove by, the preponderance of the evidence that his property was destroyed by fire communicated, either directly or indirectly, by -a locomotive operated by the railroad in question,. and if the jury believed from the evidence that he met this burden, then they should find for the plaintiff. Plaintiff was also given another instruction, Avhich told the jury, for the plaintiff, that if they believed the ice plant in question was destroyed by fire communicated directly or indirectly by a locomotive engine in use by the railroad company in ques[267]*267tion, then it ivas their duty to find for the plaintiff, regardless of whether the defendant was in any way negligent in the operation of the said railroad or in the communication of said fire.
The jury returned a verdict for the defendant, and a judgment was entered thereon for the defendant, from which judgment this appeal is prosecuted, and the giving of the instruction for the defendant above set out is assigned for error, as is also the refusal of the refused instruction for the plaintiff above set out. It is insisted by the appellant that it was not limited to the 9th day of February for the recovery of damages for the burning-of the ice plant, but that the jury should have been allowed to find for the plaintiff if they believed its ice plant was burned by the railroad at or near the 9th day of February, and also insist that it had a right to prove the fire at any time within the period not barred by the statute of limitations. That time is not of the essence of the suit, and it should not have been limited to the proof of time to the 9th day of February, citing a number of authorities in support of this position.
This contention would be sound, if the proof showed that the fire occurred on any other day, or if some of the witnesses testified to the 9th day of February, and others to a different day, hut in the case before us the plaintiff’s own witness testified that the fire occurred on the 9th day of February, and his testimony is supported by the section foreman of the defendant, who made a record of the matter while it Avas fresh in his memory. None of the witnesses for either the plaintiff or the defendant fix any other day than the 9th of February as the day on which the fire occurred, and all of the parties to the suit, it seems to us, dealt Avith the matter during the taking of the evidence as though this was the true date of the fire.
The instruction, therefore, requested by the plaintiff, was not applicable to the evidence, and it Avas not error to refuse it. If there had been evidence supporting the hypothesis of the instruction, then it would have been proper. In suits of this kind it is necessary that the evidence shoAV [268]*268with some reasonable certainty when the fire occurred, and, while the plaintiff may select such time within the period of limitation as his proof will support, still, when he does develop his proof, he should then be confined to the period covered by the proof, and not leave the jury greater latitude in its finding than is covered by the proof in the case. It would be impossible for a railroad company to cover, or be expected to cover, the entire period of limitation, because usually many trains pass each day over its tracks. It was therefore, not reversible error to refuse plaintiff the instruction complained of, nor to give to the defendant the given instruction complained of, and the judgment will be affirmed.
Affirmed.