The plaintiff, as subrogee, brought this tort action against the defendants to recover for a loss paid under a fire insurance policy issued to its insured. The jury returned a verdict for the defendants and the plaintiff appeals.
The plaintiff’s assured, Ronald D. Fowler and wife, operated a service station in the city of Bend, Oregon, and upon the premises of the assured was located a restaurant leased to a third party. A fire occurred on these premises and as a result of the fire plaintiff *558paid the appraised loss to its assured and seeks recovery from the defendants in this action.
At about 11 a. m. on October 16,1950, the defendant William Mayer, a gasoline tank driver and the agent of the other defendants, who were gasoline distributors, telephoned Mr. Fowler and asked him if he needed any gasoline. Fowler stated that he could use some and, after being requested by the defendant Mayer to use the measuring stick, Fowler called Mayer and advised him that he could take 325 gallons of gasoline. Defendant Mayer metered into a tank on his truck 325 gallons of gasoline and later made delivery at the Fowler Service Station. In making the delivery, defendant Mayer placed a hose from his truck to the fill pipe of the underground tank at the filling station and, after starting the gasoline to flowing from the truck to the underground tank, went into the restaurant for a cup of coffee. While he was in the restaurant, and visiting with some friends, the underground tank filled and overflowed out of the fill pipe. The fill pipe was located just a few feet from the front door of the restaurant and the overflowing gasoline, because of the grade from the fill pipe, ran under the front door and into the restaurant where it was ignited by an oil heater. The only dispute in the evidence is whether Fowler said the tank would hold 325 gallons, or whether he said it would hold about 325 gallons of gasoline.
The city of Bend at the time of this occurrence had in effect an ordinance with respect to tankwagon deliveries of gasoline which stated in part as follows:
“Section 4. The operator of any vehicle delivering petroleum products shall remain at the control valve of such vehicle at all times while such products are being discharged therefrom.”
*559The defendants allege that Fowler was contributorily negligent in that he carelessly and recklessly measured the tank and notified the defendant Mayer that the tank would hold 325 gallons of gasoline when it would not, and that “Fowler knew of the dangerous characteristics of gasoline, and knew or should have known of the danger involved in the possible overflow of said substance from the filler pipe, due to the hazardous positioning of the same in close proximity to the oil heater.”
The plaintiff assigns as error the refusal of the trial court to grant (1) its motion “to strike the defense of contributory negligence,” (2) its motion to withdraw this issue from consideration of the jury, and (3) its motion for an order entering a judgment for the plaintiff non obstante veredicto.
Since these facts are not in dispute, the issues present the single question of whether or not under the circumstances of this case Mr. Fowler’s alleged negligence was negligence and, if so, was it a proximate cause contributing to his injury?
The fact that the fill pipe was located in such a position that if the tank was overfilled the overflow of the gasoline from the fill pipe might run into the restaurant and might be ignited by coming in contact with the oil stove therein could not be considered as a proximate cause in the legal sense. It was at most a passive condition, not inherently dangerous in itself either to the plaintiff or the public, and could become dangerous only through the intervening negligence of one in permitting the tank to overflow in the process of servicing the tank with the inflammable gasoline. Aune v. Oregon Trunk Railway, 151 Or 622, 51 P2d 663; Leavitt v. Stamp, 134 Or 191, 293 P 414; 65 CJS 649, Negligence § 103.
*560In considering the question before us, we must determine the boundaries of the legal liability of Fowler based upon the doctrine of foreseeability as applied by the courts in the law of torts. In 2 Harper and James, The Law of Torts, 1141, Accidents § 20.5(5) it is stated:
“Where there are forces intervening between defendant’s act and plaintiff’s injury courts generally tend to invoke the test of foreseeability. To the eye of philosophy the distinction between intervening and pre-existing causes or conditions is tenuous if it exists at all. The philosophic determinist would see no essential distinction between the gasoline vapor already in the hold of the good ship Thrasyvoulos before the ill-starred stevedore dropped the plank, and the hurricane or flood that arose after defendant’s negligence left plaintiff’s property vulnerably exposed to such a hazard, or for that matter the malpractice of the surgeon which caused gangrene to set in in plaintiff’s wound. To the determinist the stage for all these things was irrevocably set long before any time that matters in this discussion. Of course the law generally —certainly the law of fault — does not accept any such philosophy. But even those who reject determinism can see that a wind or storm or flood was often inevitably in the making before defendant’s negligence took place, though it appeared on the immediate scene thereafter. Yet even such considerations are generally too refined for the law’s roughhewn tests. By and large external forces will be regarded as intervening if they appear on the scene after defendant had acted unless perhaps their pending inevitability at the time of defendant’s negligent act or omission is made crystal clear. And when a new force (for which defendant is not responsible) ‘intervenes’ in this crude sense to bring about a result that defendant’s negligence would not otherwise have produced, defendant is generally held for that result only where the interven*561ing force was foreseeable. As many eases put it, a new and unforeseeable force breaks the causal chain. A better analysis is to regard the intervening force as a risk or hazard and to ask whether its foreseeability was such as to make defendant’s act negligent with regard to it. It is better, in other words, to inquire whether defendant’s duty extends to such a risk as the intervening force, because the question in this form focuses attention on a more significant and less fictitious problem than that of cause.” (Italics theirs.)
We will not concern ourselves with a discussion of whether or not foreseeability of the actor as a reasonably prudent person is an element of negligence or a factor in determining proximate cause, as the result in tliis case would be the same.
The test of the legal efficacy of proof of defendants’ allegations of contributory negligence lie in determining the tendency of Fowler’s conduct to affect the conduct of the defendants.
There is no evidence in this case from which even an inference could be drawn that Fowler intended to cause the particular conduct of the defendants.
When the conduct of a person is not to intentionally cause certain conduct, 2 Restatement, Torts, 827, Negligence § 303d, makes this observation:
“* * # The actor may not intend the third person to act in any particular way. If so, the actor’s negligence lies in the fact that he does or should realize that his conduct may cause the third person so to act, or in the further likelihood that the third person may do the act in a careless manner. In such case, the actor’s negligence depends upon the extent to which he is required to realize and take into account the tendency of mankind or of the particular person to act improperly (see § 302).”
*562There is no evidence that Fowler knew that the defendant Mayer was an irresponsible person. Therefore, under this rule, which we approve, Fowler’s negligence is to be measured by “the extent to which he is required to realize and take into account” the acts of Mayer in carrying out the purchase and sale of the gasoline. There is no evidence that Fowler knew of a customary manner in which deliveries of gasoline were made, but, in any event, the defendant Mayer for safety reasons was required to make delivery of the gasoline into the underground tank in accordance with the commands of the city ordinance, and this set the standard of the defendant Mayer’s conduct to be foreseen by Fowler.
A person, in the absence of notice to the contrary, is not required to anticipate that another will act in a negligent manner or will violate the law. 1 Sherman and Bedfield, Negligence (rev ed) 263, § 111; see also, Senkirik v. Royce, 192 Or 583, 235 P2d 886; Alt v. Krebs, 161 Or 256, 88 P2d 804; Lovett v. Gill, 142 Or 534, 20 P2d 1070.
In Herring v. Springbrook Packing Co., 208 Or 191, 200, 299 P2d 604, 300 P2d 473, we quoted the following with approval:
“ ‘Foresight, not retrospect, is the standard of diligence. It is nearly always easy, after an accident has happened, to see how it could have been avoided. But negligence is not a matter to be judged after the occurrence. It is always a question of what reasonably prudent men under the same circumstances would or should, in the exercise of reasonable care, have anticipated.’ Id., p 50. And ‘Ordinary care of a reasonably prudent man does not demand that a person should prevision or anticipate an unusual, improbable or extraordinary occurrence, though such happening is within the range of *563possibilities.’ Burnside v. Gulf Refining Co., 166 Miss 460, 470, 148 So 219.”
The conduct of Fowler would affect the conduct of the defendant Mayer only to the extent of advising him of the amount of gasoline he should place in his truck for the purpose of making an adequate delivery and could not affect the manner of making the delivery to the underground tank.
The trial court erred in submitting the question of Fowler’s contributory negligence to the jury, and the judgment is, therefore, reversed.