Mr. Justice Higbeedelivered the opinion of the court.
4. Tbial, § 78*—when rebuttal evidence may be excluded. Testimony offered in rebuttal by a plaintiff in an action for damages caused by fire set by a railroad locomotive, as to the burning, may be refused where the subject matter of the testimony was fully gone into in the case in chief. 5. Appeal and ebbob, § 1639*—when omission in instruction is cured. An instruction omitting to state that proof must be made by a preponderance of evidence will -not reverse where the omission could not have misled when all the instructions were considered together.