Plaintiff appeals from a judgment entered in favor of the defendant following the granting of the latter’s motion for nonsuit. The action is one for damages for personal injuries.
It appears that shortly prior to the accident which gave rise to the plaintiff’s injuries, the defendant, in the usual course of business, rented an electric hoist machine to the Fox Film Corрoration by whom the plaintiff was employed as an actor. Defendant’s salesmanager was informed that the hoist machine would be required to carry a load of approximately 2,500 or 3,000 pounds. The Fox Film Corporation by means of cables connected the hoist machine to a cage or car which was lowered and raised in a shaft leading down to a tunnel being constructed and used in the filming of a motion picture. At the suggestion of the film company, defendant’s salesmanager submitted the names of persons who might be engaged to operate the machine. One of the persons so suggested, was employed to operate the hoist machine and was so engaged at the time of the aсcident. It was stipulated, however, that though recommended by the defendant, through its salesmanager, the operator was, in fact, the employee of the film company. Consequently, any negligence in the operation of the hoist machine would be chargeable solely to the employer, the Fox Film Corporation. Plaintiff did not, however, proceed against thе defendant because of any negligence of the operator, as shall hereinafter appear.
Just prior to the accident, the plaintiff, with ten other actors, boarded the hoist car for the filming of a scene showing them being lowered in the shaft to the tunnel about the construction of which the picture evolved. The operator of thе hoist machine could not see the hoist car or cage from his station and he was unaware that it was loaded with men. *566 Upon receiving the signal to lower the car, he disengaged the clutch and released the footbrake with which the hoist machine was equipped. The car thereupon fell 33 feet to the bottom of the shaft with resulting injuries to the plaintiff. As thе ear was falling, the operator apparently sensed that something was wrong whereupon he applied the foot-brake. The brake failed to bring the car under control. His testimony indicates that “he was not able to apply sufficient brake stoppage” before the rapidly moving car hit the bottom of the shaft, with resulting injuries to the plaintiff.
In his comрlaint, containing several counts, the plaintiff alleged, among other things, that the defendant, as owner and lessor of the hoist had, in several specified particulars, violated a municipal ordinance and certain incorporated safety orders, all of which, he averred, had proximately contributed to the accident and his injuries. It was, and is, his theоry that even though the operator of the hoist may have been negligent, such negligence did not break the line of causation and that the alleged negligence of the defendant was a concurrent proximate cause of the accident. In support of this theory he introduced in evidence a certified copy of the ordinance which it is claimed the defendant had violated. (Ordinance No. 33,512, N. S., as amended.) So far as material here, the ordinance provided that: “The Board of Mechanical Engineers shall have authority and jurisdiction over all . . . hoists, . . . and shall inspect and license the use and operation of any of the said apparatus, machinery or equipment as hereаfter provided. . . .
“Sec. 26. Payment of Inspection Fees. It shall be unlawful for any person, firm or corporation to use or operate, or cause or permit to be used or operated, any of the equipment or apparatus mentioned in this ordinance until after the same shall have been inspected, all Permit and Inspection fees Paid, and a Certificate issued as herein provided, which Certificate of Inspection shall be good for a period of one year unless sooner revoked for cause. . . .
“Operating Without Certificate. It shall be unlawful for any person, firm or corporation to use, or to cause or permit to be used, any elevator or any equipment mentioned in this ordinance for the transportation of passengers or freight until the certificate of inspection of such equipment shall have been issued by the Board of Mechanical Engineers and said *567 certificate posted in such elevator, or in a conspicuous place near the equipment inspected.”
Plaintiff also put into evidence а certified copy of certain “General Construction Safety Orders” as the same had been published by the Industrial Accident Commission and which were expressly made a part of the cited ordinance. The portions of said safety orders relied on by plaintiff read as follows:
“Order 11,14. Construction Material Elevators . . .
“ (w) Every hoisting engine shall be equipped with proper brakes to sustain its maximum load in аny position . . .
“Order 1115. Construction Material and Man Elevators
“(c) The cable drum of the hoisting machine shall be rigidly and permanently attached to the driving mechanism. Friction gearing or clutch mechanism shall not be used.
“(d) All hoisting machines shall be provided with an automatic brake of sufficient holding power to prevent rotation of drum in either direction when the power is cut off from the machine.
“(e) All hoisting machinеs shall be provided with an efficient device which will automatically bring the cage to a stop at the top and bottom limits of travel. ’ ’
Plaintiff adduced other evidence which disclosed that, contrary to the provisions of the ordinance, the hoist machine furnished by the defendant had not been inspected, that the cable drum of the machine was not rigidly and рermanently attached to the driving mechanism but was connected by a clutch mechanism, that the machine was not equipped with an automatic brake to prevent rotation of the drum when the power was cut off and that it was not equipped with a safety device to bring the cage to a stop at the top and bottom limits of travel.
At this point we pаuse to state that we find no merit in the defendant’s contention that the above quoted safety orders are without application here because of the terms of order No. 1100 to the effect that “These orders [as above quoted] shall apply to the construction, alteration, repairing, renovating, removal or wrecking of buildings or other structurеs within this state.” We are of the opinion that the shaft and tunnel used and being constructed in the filming of the picture then in production constituted the “construction” of one of the “other structures” contemplated in *568 said safety orders. Its temporary character does not militate against such a conclusion. Certainly, it could not successfully be urged that the “construction, alteration, repairing, renovating, removal or wrecking' ’ of a building essential to a movie set would not come within the purview of the safety orders, thus exempting the machinery employed in such work from the regulatory features thereof. The ordinance and safety orders fail to include any requirement that the “building” or “other structures” therein contemрlated should be invested with any particular degree of permanency. The obvious purpose of the ordinance and the safety orders is to protect from injury and possible death all persons properly on, near or using the regulated machinery when employed in the construction, etc., of “buildings or other structures”. As stated, in our opinion, the cоnstruction of the tunnel being filmed came within the phrase “other structures” so as to require the hoist machinery used in connection therewith to comply with the established regulations.
Nor do we think that the ordinance and safety orders are here inapplicable because the defendant had leased the hoist machine to a third person. To indulge such а construction would be to disregard as surplusage many of their terms and would render meaningless the word “owner” and such phrases as “or permit to be used or operated”, repeatedly appearing therein. It is our function to construe the ordinance and incorporated safety orders as they were enacted, without adding thereto or detraсting therefrom. If defendant’s construction were intended, the legislative body could well have omitted the language which we are here requested to read out of the ordinance.
The case of
Gulzoni
v.
Tyler,
*569
We are satisfied that the plaintiff produced sufficient evidence to warrant the case going to the jury and that it was error for the trial court to grant the defendant’s motion for nonsuit. It is well established that upon such a motion every favorable inference and presumption fairly arising from the evidence adduced must be considered as facts proved in favor of the plaintiff. Entirely apart and aside from any negligence of the operator in the operation of the hoist machine, and for which, as stated, the defendant would not be answerable, we are of the view that there is evidence in the record upon which the jury might have found that the ear would not have drоpped to the bottom of the shaft if the defendant, as owner and lessor, had first caused the hoist machine to be inspected and equipped with the safety devices and automatic brake specified in the ordinance and safety orders. Section 408 of the Restatement of the Law of Torts states that ‘ ‘ One who leases a chattel as safe fоr immediate use is subject to liability to those whom he should expect to use the chattel, or to be in the vicinity of its probable use, for bodily harm caused by its use in a manner for which, and by a person for whose use, it is leased, if the lessor fails to exercise reasonable care to make it safe for such use or to disclose its actual condition to those who may be expected to use it.” In comment “a” thereunder it is stated that “The fact that a chattel is leased for immediate use makes it unreasonable for the lessor to expect that the lessee will do more than give it the most cursory of inspections. The lessor must, therefore, realize that the safe use of the chattel can be secured only by precautions taken by him before turning it over to the lessee ...” In comment “b” it is stated, in part, that “The rule stated in this Section is peculiarly applicable to persons who make a business of leasing chattels. In such a case, in the absence of an understanding to the contrary it may be assumed that both lessor and lessee understand that the article is leased as fit for immediate use.” (See, also,
McCall
v.
Pacific Mail SS. Co.,
To state the matter another way, we are inclined to the view that a finding by the jury that the car would not have fallen if the defendant lessor had complied with the ordinance, might well render the defendant liable to third persons not in privity with it, but properly using the hoist, under the dangerous instrumentality doctrine announced in
Dahms
v.
General Elevator Co.,
Nor do we think the case of
Stultz
v.
Benson Lumber Co.,
6 Cal. (2d) 688 [
“It is true that the plaintiff alleges that the Benson Lumber Company was informed of the use to be made of the lumber and that it knew of the defects in the plank and its unsafe and dangerous condition for use as a main support in the construction of a scaffolding. But it is not alleged, nor is it contended that the conditiоn of the plank was concealed in any manner or unknown to the purchasers, the Newbys. On the contrary, it is expressly alleged that the plank was full of knots and was cross-grained, and that this condition and its unsuitability for the purpose of a support for a scaffolding was likewise known to them, and that they with such knowledge used it as a main support for the scaffolding.
‘ ‘ The conceded negligеnce of the Newbys must be deemed to be an intervening cause which served to break the chain of causation between the alleged negligence of the defendant Benson Lumber Company and the injury suffered by the plaintiff. . . . Whether the defendant Newbys’ acts in constructing the scaffold with the defective lumber, had they been without knowledge of its defective cоndition, would still have been an efficient intervening act of negligence we are not called upon to decide. . . .
“When the defendants Newby constructed the scaffolding with the defective plank, knowing it to he defective, such negligence in the construction of the scaffolding became their negligence and their responsibility and terminated the responsibility of the Bеnson Lumber Company as to the plaintiff. ...”
*572 It is thus apparent that the Stultz ease turned on the employer’s deliberate use of the plank when he knew of its defective condition, a fact alleged by the plaintiff in his complaint. The opinion expressly leaves open the question whether the line o£ causation would have been broken by the employer’s conduct in using the plank had he been without knowledge of its defective condition. In the present case, the hoist machine was furnished by defendant to the plaintiff’s employer as a completed whole which, as stated above, the plaintiff’s employer had the right to assume was ready to be used for the purpose for which the defendant had leased it. Plaintiff’s evidence does not disclose, as did the complaint in the Stultz case, that his employer had knowledge that the hoist was uninspected and unequipped with the required safety devices. Upon a motion for nonsuit, it must be assumed from the showing made that the jury would find that the employer was without such knowledge. Under such circumstances, there appears to be no reason why the instant. case should be governed by a rule other than the usual and ordinary rule that the question of proximate cause is one of fact for the jury.
For the foregoing reasons the judgment is reversed with directions to the court below to proceed in conformity with the views herein expressed.
Curtis, J., Langdon, J., Houser, J., Shenk, J., and Seawell, J., concurred.
Rehearing denied. Langdon, J., and Edmonds, J., voted for a rehearing.