Johnson & Swackhammer v. Lehigh Valley Railroad
Johnson & Swackhammer v. Lehigh Valley Railroad
Opinion of the Court
Opinion by
This record presents for our consideration but two questions, neither of which invites any lengthy discussion. The plaintiffs were the owners of a sawmill with other machinery which .they were desirous .of having
The plaintiffs, being dissatisfied with the condition of the machinery, as repaired by the defendant, brought an action of trespass before a justice of the peace to recover compensation for the injury to their property. They filed before'the magistrate an itemized statement of their claim aggregating $292.35. After hearing, judgment was rendered for the plaintiffs in the sum of $244.35. The record thus shows the cause of action was clearly within the jurisdiction of the magistrate, and when the defendant took this appeal to the Court of Common Pleas, the jurisdiction of that court attached. We do not think this jurisdiction was ousted because of the fact that, on cross-examination of one of the plaintiffs, he testified to the selling price of a new machine at the place of its manufacture, and that his own machine, having been, as he thought practically worthless, he ought to have a new one in its place. Later on he agreed his own machine was an old one, had been in use
The plaintiffs knew of the injury to their property before it had started for its destination. Nevertheless, they sent forward to the latter point three men, as they say to assist in unloading and setting it up, and kept them there for a period of eight days and paid out for their boarding and lodging the sum of $48.00. Under the circumstances the jury should not have been permitted to include this item in the amount of their verdict. As the refusal of the learned judge to exclude it is expressly assigned for error, we must take cognizance of it. There being no dispute, however, as to the sum thus improperly included in the verdict, the error can be rectified without necessarily involving a new and expensive trial. We, therefore, make the following order:
The record is remitted to the court below with direction that if the plaintiffs will, within twenty days after the filing of the remittitur, file of record a stipulation agreeing to allow a reduction of $48.00 in the amount of the judgment, so that the same will stand at the sum of $140.00, then the judgment so modified and reduced is affirmed. If the plaintiffs fail to file such stipulation within the time named, then the judgment is reversed and a venire facias de novo awarded.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.