The defendant operated a gas service station. His wife and daughter tended the gas pump and served customers. On the evening of December 1, 1923, the plaintiff, then about seventeen years of age, was at the defendant’s home. Mr. Spoth and Mr. Trost were also present. As they were about to leave Mr. Spoth stated that he needed some gasoline. He and Mr. Trost, the plaintiff and the defendant’s daughter got into the car driven by Mr. Spoth and drove to the gasoline pump, about 200 feet from the house. The plaintiff and the defendant’s daughter sat on the back seat. The plaintiff had a kerosene oil lantern, which was turned down. The car was stopped at the pump and the defendant’s daughter got out and asked for the lantern so that she could see to unlock the pump. The plaintiff handed her the lantern, she unlocked the pump and put on the handle with which to operate it. Mr. Trost took up the cushion from the front seat and unscrewed the cap on the gasoline tank, which was under the front seat. He then asked for a light to see how much gasoline he needed. The defendant’s daughter handed him the lantern and he measured the gasoline in the tank with a stick, but did not remove the lantern. “ Then Isabelle [the defendant’s daughter] handed the hose to him and he put it in the gas tank and started, turned the crank, and this young fellow [Mr. Trost] pulled the hose out quick and threw it back on me. * * * Just as soon as the gas started to go into the tank the light and the gas ignited *175and everything was afire, everything was ablaze then.” The plaintiff had remained on the back seat, and was seriously burned.
The defendant’s version of what took place is entirely different from that given by the plaintiff. The evidence presented a question of fact which has been resolved by the jury in favor of the plaintiff. It is urged that the verdict in favor of the plaintiff should be reversed because of her contributory negligence. It is contended that the findings of the jury that the defendant was negligent and the plaintiff free from contributory negligence are necessarily inconsistent because the plaintiff had the same knowledge that the defendant’s daughter had or should have had; that she remained on the back seat and saw everything that the defendant’s daughter saw, and that she is precluded from recovering because of her own negligence.
We are unable to agree with such contention. There can be no question but what it was negligent for the defendant’s daughter to start the pump and force gasoline into the tank while the lighted lantern stood near the opening into the tank. No doubt Mr. Trost was negligent in leaving the lighted lantern near the tank for the purpose of measuring the gasoline, but that negligence was not the cause of the plaintiff’s injury. The negligent act of starting the pump and forcing gasoline into the tank while the lighted lantern stood near, is what caused the fire.
An expert called by the plaintiff testified that the space in the tank above the gasoline was filled with a mixed vapor “which is wonderfully more easily ignited than the vapor of gasoline alone.” The vapor from gasoline is fighter than air and rises. When the gasoline commenced to run into the tank it forced the vapor out and caused the fire. >
The defendant’s daughter was negligent because she failed to use the precaution of removing the lantern before she started the pump and she was negligent, also, because of the affirmative act of starting the pump while the lighted lantern stood near. The plaintiff, of course, knew that it was intended to put gasoline into the tank, and she knew that the lighted lantern was in the car near the tank, but she did not know that the defendant’s daughter would start the pump without removing the lantern or causing it to be removed. She was not bound, as a matter of law, to anticipate such a negligent act on the part of the operator of the pump. The defendant owed to the plaintiff the duty of using reasonable care. He was engaged in the business of selling gasoline and chargeable with knowledge of its dangerous nature. The general rule is stated in 29 Cyc. (at p. 516) as follows: “The general rule is that every person has a right to presume that every *176other person will perform his duty and obey the law, and in the absence of reasonable ground to think otherwise it is not negligence to assume that he is not exposed to danger which can come to him only from violation of law or duty to such other person.” (See also 1 S. & R. Neg. [5th ed.] § 92; 20 R C. L. 117; Newson v. N. Y. C. R. R. Co., 29 N. Y. 383; Redmond v. Maitland, 23 App. Div. 194.)
The negligent manner in which the defendant’s daughter undertook to fill the 'tank could not have been foreseen by the plaintiff; at least, she was not bound to foresee it as a matter of law. She did nothing to bring about the negligent act, nor did she participate in any way in the negligent conduct of the operator of the pump in attempting to fill the car. She had no warning that the gasoline was to be forced into the tank with the lighted lantern nearby. These facts distinguish this case from those where a plaintiff has been held negligent because he knew that the defendant was about to perform some act in a dangerous manner, thereby endangering him.
The question of the plaintiff’s negligence was a question for the jury and its decision is not against the weight of the evidence. The judgment and order should be affirmed, with costs.
All concur, except Clark and Crouch, JJ., who dissent in an opinion by Crouch, J. Present — Hubbs, P. J., Clark, Sears, Crouch and Taylor, JJ.