(dissenting).
The writer respectfully dissents. In the writer’s opinion, Leake was not negligent; but, even accepting the majority’s premise that he was, then Bertinot, the defendants’ delivery driver, had the last clear chance to avoid this accident.
*1089The majority finds Leake negligent in ordering more gasoline than his tanks could hold. This error in calculation does not, in my opinion, constitute negligence.
Negligence is conduct which creates an unreasonable injury of foreseeable harm to others. Turner v. Caddo Parish School Board, 252 La. 810, 214 So.2d 153 (1968); Restatement of Torts 2d, Sections 284, 291-293. Liability for negligence involves a breach of a duty owed to the person injured. Day v. National U. S. Radiator Corp., 241 La. 288, 128 So.2d 660 (1961).
In the present instance, I am unable to see what duty Leake breached or what undue hazard he created by miscalculating the amount of gasoline he needed. As the majority opinion notes, the man delivering the gasoline has the obligation of keeping a proper lookout and assuring safe deliveiy of his product. Leake could no more expect the delivery man to be so .deficient in lookout to permit the gasoline to overflow and cause this disastrous fire, than could any corner service station expect the delivery truck to put more gasoline in its tanks than the tanks hold. |f As we stated in Turner, at 214 So.2d 157: “■* * * failure to take every precaution against all foreseeable injury to another does not necessarily constitute negligence. That would amount to making one an insurer of the other’s safety. The risk involved must be both foreseeable and unreasonable. And failure to perform any given act to guard against injury to another in connection with the risk constitutes negligence only when it appears that the performance of such act would have been undertaken, under the circumstances, by the reasonably prudent person.”
I thus disagree with the majority finding of negligence on the part of Leake or his employees.
However, even conceding such negligence, the defendants’ driver, Bertinot, had the last clear chance to avoid the accident and the resultant injuries. Under our last clear chance doctrine, even though a plaintiff be contributorily negligent, a defendant who observes or who should by reasonable care observe the peril of another may be held responsible for injuries caused by an accident if, after the peril arises, the defendant has a reasonable opportunity to observe it and thereafter also has the reasonable opportunity to avoid the accident. Williams v. City of Baton Rouge, 252 La. 770, 214 So.2d 138 (1968); Belshe v. Gant, 235 La. 17, 102 So.2d 477 (1958).
In the present instance, after the gasoline started overflowing, Bertinot had the reasonable opportunity to observe same and to have operated the shut-off mechanism designed to avoid ignition of overflowing gasoline, which mechanism was solely under Bertinot’s control. Under our jurisprudence, Bertinot had the last clear chance to have avoided the accident, even *1091conceding (as the writer does not) that Leake was contributorily negligent.
For these reasons, the writer respectfully dissents.