
    Johnson & Swackhammer v. Lehigh Valley Railroad Company, Appellant.
    
      Justice of the peace — Jurisdiction—Amount—Railroads.
    In an action against a railroad company before a justice of tbe peace to recover damages for injuries to machinery suffered in transportation, the justice has jurisdiction where it appears that the itemized statement of the claim filed with the justice aggregated $292.35, and that judgment was rendered for $224.35; and the jurisdiction is not ousted on the trial of an appeal in the Common Pleas because on cross-examination plaintiff testified that he thought he ought to have a new machine in place of the old one. and that the price of a new machine would amount to more than the magistrate’s jurisdiction, although he acknowledged that his own machine was an old one, and that the cost of repairing it would be much less than the cost of a new machine.
    In such a case plaintiff is not entitled the expenses of maintaining and boarding three men for several days whom he had sent forward to set up the machine after he knew that it had been injured and before it had started finally for its destination.
    Argued Nov. 16, 1915.
    Appeal, No. 220, Oct. T., 1915, by defendant, from judgment of C. P. Bradford Co., Sept. T., 1912, No. 337, on verdict for plaintiff in case of Johnson & Swackhammer v. Lehigh Valley Railroad Company.
    Before Rich, P. J., Orlady, Head, Porter, Henderson, Kephart and Trexler, JJ.
    Modified and affirmed.
    Appeal from judgment of justice of the peace. Before Maxwell, P. J.
    The facts are stated in the opinion of the Superior Court.
    Verdict and judgment for plaintiff for $168. Defendant appealed.
    
      Error assigned was in refusing to dismiss case for want of jurisdiction.
    
      J. Roy Lilley, with him Wm. P. Wilson, for appellant.
    
      Chas. M. Culver, with him D. E. Kaufman, for appellees.
    July 18, 1916:
   Opinion by

Head, J.,

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 shipped from Rummer-field, in Bradford County, to Rich-ford, New York, over the line of the defendant company. A car for that purpose was provided at the first named station and the machinery loaded thereon. Before the car was moved at all it was struck by an engine with a few cars attached coming from a siding, and some injury to the plaintiffs’ property was occasioned thereby. As we read the testimony, the collision was witnessed by at least one of the plaintiffs. It appears to have been agreed by both parties the machinery could not go forward until it had been repaired or its place supplied either by the plaintiffs or the defendant. There was a wide divergence of view between the parties as to the nature and extent of the injury to the property and the probable cost of repairing it. Either as a result of some negotiation or by the act of the defendant itself — and the testimony leaves this in some doubt — the machinery was removed to the defendant’s shops at Sayre and there the necessary repairs were made. After a delay of a few days the car went forward to its destination.

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 for many years, and the probable cost of repairing it would be much less than the price of a new one. The plaintiffs’ claim was for unliquidated damages and it was for the jury, under all of the evidence, to determine how much they were entitled to as compensation for the injury to their property. There is no foundation in the record to support the argument that the plaintiff’s claim was in fact more than $300.00, or that the Court of Common Pleas was without jurisdiction to hear the cause. The first assignment of error is therefore dismissed.

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.  