This is an action brought by the plaintiff, Oregon Mutual Fire Insurance Company, a corporation, as subrogee, to recover the amount of an insurance loss paid to its insureds Robert D. Fowler and wife, as a result of a fire which damaged a service station operated by the Fowlers at Bend. Plaintiff alleged that the fire was. caused solely by the negligence of the defendant Tidewater Associated Oil Company, a corporation, and its agents. The defendants charged Fowler with negligence contributing to the cause of the fire. The jury returned a verdict for the defendants and plaintiff appeals.
The plaintiff assigns as error (1) the denial of the motion to strike the defense of contributory negligence from the answer, (2) the submission to the jury of the issues of contributory negligence and promixate cause, and (3) the denial of its motion for a judgment notwithstanding the verdict.
The dual question raised by this appeal is whether Fowler was negligent and if so, whether his negligence was a proximate cause contributing to his damage. In my opinion, these questions were properly submitted to the jury for determination.
*564As stated in plaintiff’s brief, “There is little, if any, dispute in the evidence.” Fowler and his wife had operated the service station for about six and a half years. They leased one-half of the service station building to a tenant who operated a restaurant therein. The gasoline sold by Fowler was delivered by the defendant into an underground storage tank. The fill pipe for this tank was located between the service station door and the restaurant door in a small entryway which separated the two rooms. There is evidence that the concrete floor sloped slightly downward from the fill pipe toward the restaurant. According to Fowler, an O’Cedar mop, 16 or 18 inches wide, “was used quite often to put against the door of the cafe at times of filling to keep the fumes from going under.”
The underground tank at the service station had been calibrated at 550 gallons but held at little more than that. A stick specially marked to measure the contents of the underground tank was kept at the service station and used for that purpose.
About 11 o’clock a. m. on October 16, 1950, the defendant’s tank truck driver, William Mayer, telephoned to ask Fowler if he needed any gasoline. Upon receiving an affirmative reply, Mayer asked Fowler to “stick” the tank to determine how much gasoline was needed. Fowler measured the tank and then, according to Mayer, told Mayer that he wanted 325 gallons. Fowler testified that he ordered about 325 gallons and this difference constitutes the only notable conflict in the testimony. Fowler testified that this order for gasoline was made “in the customary way.” Mayer did not deliver the gasoline for approximately two hours, during which interval Fowler sold an undisclosed amount of gasoline from his underground tank.
Shortly after 1 o’clock p. m., at the plant of de*565fendants, Mayer measured 325 gallons of gasoline into an empty compartment of his truck and drove to Fowler’s service station. Mayer described in detail the method used in metering the gasoline into his delivery truck. Although in its brief plaintiff contends that Mayer might have made an error in measuring the gasoline at the bulle plant, no evidence tending to prove this contention was offered at the trial.
At the station Mayer placed the nozzle of the discharge hose in the fill pipe and opened the valve on the truck which permitted the gasoline to flow from the truck into the underground storage tank. The truck was equipped with a meter hut from the evidence it appears that this was not customarily used in making deliveries to the service station. Apparently the quantity of gasoline needed was determined by “sticking” the underground tank and then the desired quantity was measured into a compartment of the tank truck at defendant’s hulk plant. The gasoline was then dumped into the underground tank at the service station without further metering. There was no way to shut off the flow of gasoline at the nozzle end of the discharge hose and the only shut off valve was at the point where the discharge hose was attached to the truck. After the valve on the truck was closed, the gasoline in the hose, estimated to he four or five gallons, would continue to flow out.
After the gasoline had started to flow into the underground tank, Mayer went into the restaurant, ordered a cup of coffee and engaged in a conversation with some friends. Mayer’s conduct in going into the restaurant and remaining there was in direct violation of an ordinance of the city of Bend, which required-the operator of any vehicle delivering petroleum products “to remain at the control valve of such vehicle *566at all times while such products are being discharged therefrom.” While Mayer was in the restaurant the tank overflowed and gasoline ran from the fill pipe and under the door into the restaurant where the gasoline or the vapors therefrom were ignited by a circulating oil heater located inside the restaurant door.
When Mayer’s attention was called to the liquid flowing under the restaurant door, he realized that the tank was overflowing and shut off the control valve at the truck. It was later determined that the tank on the truck still contained about 26 gallons of gasoline. How much gasoline overflowed is not disclosed by the evidence.
That Mayer was negligent and that his negligence was a proximate cause of the fire can hardly be questioned. The principal question presented is whether Mayer’s negligence was the sole proximate cause of the fire or whether negligence of Fowler also contributed thereto.
That Fowler also was negligent can hardly be questioned. The definition of negligence consistently used by this court was stated in Stout v. Madden & Williams, 208 Or 294, 309, 300 P2d 461, as follows:
“It is well-established in this state that for a cause of action for negligence to exist there must be (1) a legal duty to use care, (2) a breach thereof, and (3) damage to the plaintiff which (4) was proximately caused by the breach. Schumann v. Bank of California, N.A., 114 Or 336, 233 P 860, 37 ALR 1531; Chambers v. Everding & Farrell, 71 Or 521, 136 P 885, 143 P 616. * * *”
We are here concerned with contributory negligence, but as we said in Leap v. Royce et al., 203 Or 566, 574, 279 P2d 887: * * the standards and tests for determining contributory negligence ordinar*567ily are the same as those for determining negligence, and the rules of law applicable to the former are, in general, applicable to the latter. The distinction lies in that negligence involves a risk of injury to another whereas contributory negligence involves a risk of injury to the one injured. * * *”
Fowler might have refused to measure the gasoline in the tank but when he agreed to do so he assumed a duty to perform the act with reasonable care. Even a volunteer who undertakes to perform an act for another assumes the duty to perform the act with reasonable care. The rule is concisely stated by Cardozo, J. in Glanser v. Shepard, 233 NY 236, 135 NE 275, as follows:
“* * * It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all. * * *”
To the same effect see Kennedy v. Hawkins, 54 Or 164, 102 P 733, Smith v. Twin State Improve. Corp., 116 Vt 569, 80 A2d 664, 25 ALR2d 1193 and 2 Restatement 873, Torts § 323 (1) and Comment (a) thereto. Fowler was not a volunteer but was acting in furtherance of his own business. The purchase of gasoline by Fowler for resale to his customers was a matter of concern to him as well as to the defendants.
That Fowler breached the duty to use reasonable care is apparent. With the equipment at hand he could have accurately measured the quantity of gasoline that the tank would hold. One who measures inaccurately when he has the means, ability and opportunity to measure accurately has not made the measurement with reasonable care. Fowler either measured the tank inaccurately or carelessly ordered more gasoline than the tank would hold and in either event, he was negli*568gent. The potential danger of escaping gasoline is a matter of common knowledge and was certainly known to Fowler as evidenced by his testimony about the use of the mop to keep gasoline fumes out of the restaurant. All of us learn at an early age that containers of liquid will overflow unless care is used in filling them. In addition, Fowler knew of the location of the fill pipe, the restaurant stove, the slope of the floor and other conditions existing on his premises. No excuse or explanation is offered by Fowler for having measured the tank inaccurately or for having ordered more gasoline than the tank would hold.
The most difficult question is whether the negligence of Fowler proximately contributed to his damage. In considering this question we are confronted with the obvious conclusion that if Fowler had accurately measured the tank and ordered the proper amount of gasoline, the fire would probably not have occurred. The causal connection between ordering more liquid than the container would hold and the overflow of the tank must be apparent to all. Under these circumstances the question of proximate cause was a question of fact for the jury, unless we can say as a matter of law that the negligence of Mayer was an intervening, efficient, proximate cause of the damage. In my opinion, we can not so hold as a matter of law.
Three distinct steps were required in the method customarily used to fill the underground tank: (1) measuring the tank, (2) measuring the required amount of gasoline into the tank truck at the bulk plant, and (3) delivering the gasoline into the underground tank at the service station. These three steps were interrelated and each required the exercise of reasonable care. When Fowler in the customary manner measured the tank and ordered a particular quantity of gasoline, he *569knew that Mayer would rely on that information. Fowler obviously intended that Mayer should rely on that information.
I think the rule applicable in this case is contained in 2 Restatement 1184, Torts § 439, as follows:
“If the effects of the actor’s negligent conduct actively and continuously operate to bring about harm to another, the fact that the active and substantially simultaneous operation of the effects of a third person’s * * * tortious * * * act is also a substantial factor in bringing about the harm does not protect the actor from liability.”
Plaintiff calls attention to the rule that a person is not bound to anticipate negligence on the part of another and has a right to assume that others will obey the law, citing 34 Am Jur 871, Negligence § 192. It is difficult to see how this rule can help the plaintiff in this case. The negligent person can not use this rule to avoid responsibility for the natural and probable consequences of his own negligent act. See Johnson v. Updegrave, 186 Or 196, 206 P2d 91.
It can be persuasively argued that if Mayer had remained at the control valve of the vehicle he could have told by the escaping of air from the fill pipe that the tank was nearly full and shut the valve, or at least could have closed the valve as soon as the tank started to overflow and before a sufficient quantity of gasoline had escaped to cause the damage. However, this argument raises questions of fact involving the location of the control valve, the speed with which it could have been closed, the length and size of the hose, the amount of gasoline which would flow from the hose after the valve was shut and other questions of fact. In my opinion, these questions of fact were properly submitted to the jury for determination. As stated in
*570Celorie v. Roberts Bros., Inc., 202 Or 671, 276 P2d 416:
“This court has stated and restated many times that the question of proximate cause is one for jury determination unless the facts of the case are such that the court can say affirmatively that all reasonable minds must reach the same conclusions therefrom. It is unnecessary to cite our many decisions to that effect. It is a rare case, indeed, where proximate cause is decided as a matter of law. * *
The majority base their decision upon the doctrine of foreseeability and quote 2 Harper and James on Torts 1141, § 20.5 (5). It is interesting to note that the same authors state, at page 1146:
“* * * One other point should be noted here. There are cases where defendant’s wrong would not have caused plaintiff’s injury if some third person had taken intervening precautions which he was legally bound to take. In such a case it might be said that the third person’s negligent omission intervened between defendant’s wrong and the injury. Where that is the case foreseeability is less likely to be used as a test of exclusion of the original defendant’s liability than where an affirmative act intervenes.”
In the footnote to the above text, the authors state:
“In the majority of cases the original wrongdoer is held liable for the ultimate consequences of his act even though some third person, by performing his duty, might have prevented these consequences. * *
It is an invasion of the province of the jury to hold as a matter of law that the negligence of Fowler did not contribute in any degree to cause the fire. In my opinion the judgment should be affirmed.