Evans v. Otis Elevator Co.

• Citation: 168 A.2d 573,403 Pa. 13
• Parties: Harry P. EVANS v. OTIS ELEVATOR COMPANY, Defendant, and Sperling Tobacco Co., Appellants.
• Decision Date: 13 March 1961
• Court: United States State Supreme Court of Pennsylvania

Page 573

168 A.2d 573 403 Pa. 13 Harry P. EVANS
v.
OTIS ELEVATOR COMPANY, Defendant,
and
Sperling Tobacco Co., Appellants. Supreme Court of Pennsylvania. March 13, 1961.

[403 Pa. 16]

Page 574

Harry B. Schooley, Jr., Wilkes-Barre, John J. McDevitt, 3rd, Philadelphia, for appellant.

E. Charles Coslett, Robert L. Fleming, Wilkes-Barre, for Harry P. Evans.

James P. Harris, Jr., John L. McDonald, Wilkes-Barre, for Sperling Tobacco Co.

[403 Pa. 15] Before CHARLES ALVIN JONES, C. J., and BELL, MUSMANNO, BENJAMIN R. JONES, COHEN, BOK, and EAGEN, JJ.

[403 Pa. 16] BENJAMIN R. JONES, Justice.

On July 20, 1955, Harry P. Evans [Evans], employed as a stock clerk by Sperling

Page 575

Tobacco Company [Sperling] in Wilkes-Barre, Pa., was operating Sperling's freight elevator which, while descending, struck something which titled the left side of the elevator cage whereupon a board ¹ from the elevator roof fell on Evans' head, causing serious injuries. Evans instituted this trespass action in the Common Pleas Court of Luzerne County against Otis Elevator Company [Otis], alleging that Otis was negligent in failing to properly inspect the elevator and in failing [403 Pa. 17] to notify Evans or Sperling of its defective and dangerous condition. Otis joined Sperling as an additional defendant. After a jury trial before the Honorable Frank L. Pinola, the jury returned a verdict in Evans' favor against Otis in the amount of $65,000 and a verdict in favor of Sperling. After refusal of Otis' motions for judgment n. o. v. and a new trial, judgments were entered on the verdicts and from the entry of these judgments Otis has taken these two appeals.

Otis first contends that a judgment n. o. v. should be entered because (1) Otis owed no duty to Evans, (2) the evidence was insufficient to sustain a finding that the individual whom Evans testified he observed on Sperling's premises within an hour prior to the accident was an Otis employee and (3) Evans failed to prove that a reasonable investigation would have revealed any defect or danger in the condition of the elevator.

In passing upon this contention of Otis, we consider and evaluate the evidence and the inferences reasonably arising therefrom in the light most favorable to Evans, the verdict winner: Linsenmeyer v. Straits, 402 Pa. 7, 9, 166 A.2d 18; Muroski v. Hnath, 392 Pa. 233, 235, 139 A.2d 902. Examining the evidence in this light, it appears that Sperling for 25 to 30 years had maintained on its premises a 'Warsaw' constructed freight elevator which it used in connection with its wholesale tobacco business; Evans and Coulter, a fellow-employee, on July 20, 1955, after having deposited stock on the third floor, were descending in the elevator when, between the first and second floors, it struck something on the righthand side of the cage; the elevator stopped and the lefthand side of the cage tilted whereupon a roof board fell and struck Evans. In 1953, Otis and Sperling entered in a written agreement which was in effect [403 Pa. 18] on the date of the accident. Under the terms of that agreement, Otis agreed to furnish to Sperling 'Otis Service' on its elevator for $17.75 each month. This 'Otis Service' was 'to consist of a semi-monthly examination of the elvator, including oiling and cleaning machine, motor and controller; greasing or oiling bearings and guides; making necessary minor adjustments.' Otis also undertook to 'examine, lubricate and adjust the following necessary equipment: COA: Interlocks, Car gates, Freight gates, Hall buttons. Hoistway doors, door hinges, door latches, door knobs and when necessary: Oil, grease, rope preservatives and cleaning materials.'

Otis argues that this agreement imposed upon it no duty or obligation to Evans and that Evans, not a party to this agreement, has no standing to complain of an injury allegedly sustained by reason of the manner in which Otis performed this agreement. Generally a party to a contract does not became liable for a breach thereof to one who is not a party thereto. However, a party to a contract by the very nature of his contractual undertaking may place himself in such a position that the law will impose upon him a duty to perform his contractual undertaking in such manner that third persons--strangers to the contract--will not be injured thereby; Prosser, Torts (2nd ed. 1955), § 85, pp. 514-519. It is not the contract per se which creates the duty; it is the law which imposes the duty because of the nature of the undertaking in the contract. If a person undertakes by contract to make periodic examinations and inspections of equipment, such as elevators, he should reasonably foresee that a

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normal and natural result of his failure to properly perform such undertaking might result in injury not only to the owner of the equipment but also to third persons, including the owner's employees: Bollin v. Elevator Construction & Repair[403 Pa. 19] Co., 361 Pa. 7, 17, 18, 63 A.2d 19, 6 A.L.R.2d 277, and cases therein cited. The orbit of Otis' duty to third persons is measured by the nature and scope of his contractual undertaking with Sperling and, if, as presently appears, Otis undertook to inspect the elevator at regular intervals, and, if the elevator was in a defective or dangerous condition discoverable by reasonable inspection, Otis would be liable to third persons, regardless of any privity of contract, who might be injured by Otis' failure to properly perform its contractual undertaking of inspection. Such principle finds support in reason, justice and precedent: Dahms v. General Elevator Co., 214 Cal. 733, 7 P.2d 1013; Higgins v. Otis Elevator Co., 69 Ga.App. 584, 26 S.E.2d 380; Koch v. Otis Elevator Co., 10 App.Div.2d 464, 200 N.Y.S.2d 700; Jones v. Otis Elevator Co., 234 N.C. 512, 67 S.E.2d 492; Durham v. Warner Elevator Mfg. Co., 166 Ohio St. 31, 139 N.E.2d 10; Wolfmeyer v. Otis Elevator Co., Mo., 262 S.W.2d 18; Banaghan v. Bay State Elevator Co. et al., 340 Mass. 73, 162 N.E.2d 807; Delgaudio v. Ingerson, 19 Conn.Sup. 151, 110 A.2d 626; Westinghouse Electric Elevator Co. v. Hatcher, 5 Cir., 133 F.2d 109; Pastorelli v. Associated Engineers, Inc., D.C., 176 F.Supp. 159.

Otis next urges that there was insufficient evidence to support a jury finding that the person observed on the Sperling premises just prior to the accident was an Otis employee. Evans testified that on the morning of the accident, while standing ten feet from the elevator, he observed a person whom he identified as an 'Otis employee' in the Sperling store; while Evans did not know this person, he recognized him as an 'Otis employee' by reason of the uniform which he wore, 'a uniform with the name 'Otis' on the uniform'; this person entered the elevator, rode it up and down, talked to some Sperling employees and then left the premises. No other [403 Pa. 20] Sperling employee...