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March 13, 1961


Appeals, Nos. 387 and 390, Jan. T., 1960, from judgments of Court of Common Pleas of Luzerne County, Oct. T., 1957, No. 605, in case of Harry P. Evans v. Otis Elevator Company et al. Judgments affirmed.


John J. McDevitt, 3rd, with him Harry B. Schooley, Jr., for appellant.

E. Charles Coslett, with him Robert L. Fleming, for appellee.

John L. McDonald, with him James P. Harris, Jr., for appellee.

Before Jones, C.j., Bell, Musmanno, Jones, Cohen, Bok and Eagen, JJ.

Author: Jones

[ 403 Pa. Page 16]


On July 20, 1955, Harry P. Evans (Evans), employed as a stock clerk by Sperling Tobacco Company (Sperling) in Wilkes-Barre, Pa., was operating Sperling's freight elevator which, while descending, struck something which tilted the left side of the elevator cage whereupon a board*fn1 from the elevator roof fell on Evans' head, causing serious injuries. Evans instituted this trespass action in the Court of Common Pleas 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. Page 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 n.2; 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 right-hand side of the cage; the elevator stopped and the left-hand side of the cage tilted whereupon a roof board fell and struck Evans. In 1953, Otis and Sperling entered into a written agreement which was in effect

[ 403 Pa. Page 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 elevator, 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 accessory equipment: COA: Interlocks, Car gates, Freight gates, Hall buttons. Hoistway doors, door hinges, door latches, door knobs and when necessary: Oils, greases, 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 become 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), ยง 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 ...

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