ON MOTION FOR REHEARING
NORVELL, Justice.Our action in holding Gehring liable is in accord with the American Law Institute’s Restatement of the Law of Torts1 and what is described by the editors of the American Law Reports as the “Modern view of liability for foreseeable harm caused by negligence.” 2
By way of analogy, we may consider the case of a contractor who negligently affixed *803handrails to bathtubs in a home for aged persons. This defect is unnoticed by an inspector with the result that the building is accepted by the owner. Is there any reasonable basis for saying that the liability of the negligent contractor to one injured by the use of the defectively fastened handrail is automatically cut off by the owner’s acceptance of the premises ? Should negligent inspection excuse negligent construction, or should acceptance of a structure in a dangerous condition because of a hidden defect cut off a contractor’s liability? At least, under such a factual situation and others similar thereto an exception to the “acceptance of the work” rule is called for. Such an exception relating to inherently dangerous defects is recognized in numerous jurisdictions. 58 A.L.R.2d 882. We need not, however, rely upon exceptions in this case as liability is fixed by the general rule of tort liability.
We see no difference in applicable principle between the hypothetical case given and the one actually before us. As pointed out in footnote 4 of the original opinion, the jury found from evidence sufficient in law that the hole left by Gehring was “inherently dangerous.” In determining whether a condition is “inherently dangerous” under circumstances like those before us in this case, the question of foreseeability of resulting harm is clearly involved.
It is argued that under this contract, Gehring was not required to fill up the holes caused by his removal of the fence posts. The agreement is silent as to this matter and the contractual provisions thereof are not couched in directory wording of that certainty which would require a- conclusion that the act of leaving the hole was at the time of its origin and thereafter the act of Harris County and not that of the contractor, as is sometimes the case where a builder merely follows plans and specifications which have been handed to him by the other contracting party with instructions that the same be literally followed. Liability of Gehring to Strakos is not based upon contract, but arises out of the circumstance that Gehring left a dangerous hole in the highway.
This case falls within the ambit of general tort liability. For the purposes of analysis only and for the time disregarding the methods employed in submitting elements of liability to the jury under our special issue system, we call attention to the recent article written by Professor Leon Green of the Law School of the University of Texas called “The Causal Relation Issue in Negligence Law,” 60 Mich.Law Review 543. Professor Green points out that the orthodox analysis of a negligence case embodies the following elements :
“(1) Did defendant’s conduct contribute to the victim’s injury (the causal relation issue) ? (2) Was the victim protected under the law against the defendant’s conduct with respect to the injury inflicted on him (the duty issue) ? (3) Did defendant violate his duty under the law with respect to the victim’s injury (the negligence issue) ? (4) What is the evaluation in money of the losses suffered by the victim as a result of his injury (the damage issue) ?”
The causal relation issue mentioned relates to cause in fact and not to the technical “proximate cause.” The Court of Civil Appeals in its opinion points out that on July 2, 1956, Strakos approached a gate in the fence of the I. C. Matthews farm. On stepping out of his car, his leg went into a post hole left by Gehring when he moved the fence. Serious injury and disability resulted. This disposes of the causal relation issue. The cause and effect relationship between the leaving of the hole and the injury was clearly established.
The duty issue is to be resolved as a matter of law. 60 Mich.Law Review 562. Here there is no problem. Anyone working upon or using a highway is under a duty to refrain from creating conditions which are dangerous to other persons *804using the same, or to warn of dangerous conditions should the same be created.
As to the negligence issue, it would perhaps be clearer to divide the same into two parts, i. e., the test of the reasonably prudent man and the test of the foreseeability of harm. This, because under the Texas special issue practice, the element of foreseeability is usually incorporated with the definition of proximate cause. Clearly as stated in the original opinion, a jury could find that a reasonably prudent person would not have left the hole in the road as Gehring did. The question as to foreseeability is similarly answered. Considering the position of the hole and the vegetation surrounding the same,3 it would have taken little prophetic ken to have anticipated some injury similar to that which actually occurred.
There is no doubt that Strakos suffered serious bodily injuries and the Court of Civil Appeals has passed upon the contention that the amount of damages was excessive.
It accordingly appears that the facts of the case bring the same within the general rule of tort liability and we accordingly adhere to our holding that under the findings of the jury Gehring was liable to Strakos.
We need not extend this discussion further. What has been said on rehearing is somewhat repetitious of matter discussed in the original opinion. Further writing was, however, deemed advisable in the interest of clarity and the vigorous and able motions for rehearing filed herein.
We should perhaps also point out that in the Court of Civil Appeals numerous matters -raised by Gehring were -in substance the same as those raised by Hubbard. Likewise some points urged in the Court of Civil Appeals were much broader than the arguments made thereunder. However, all contentions efficiently raised have been disposed of either by this Court’s opinions or by the opinion of the Court of Civil Appeals.
The motions for rehearing filed herein are overruled.
. One who on behalf of the possessor of land erects a structure or creates any other condition thereon is subject to liability to others within or without the land for bodily harm caused to them by the dangerous character of the structure or condition after his work has been accepted by the possessor under the same rules as those stated in §§ 394 to 398, 403 and 404 as determining the liability of one who as manufacturer or independent contractor makes a chattel for the use of others. § 385, Restatement of the Law of Torts.
. 58 A.L.R.2d 891. It is also stated by the A.L.R. editors that:
“As the modern view gains more and more support among the leading jurisdictions it seems safe to predict that the general rejection of the privity of contract rule as to building contractors is merely a matter of time.
“It is submitted that such a development is fully in accord with modern legal theory. Both reason and justice revolt against a further retention of the old rule with its potentially unfair re-suits based on nothing but antiquated legal concepts and refuted hazy ideas of public policy. There can hardly be any doubt that liability should, issue from negligence in the face of a clanger to others that may be reasonably foreseen. This principle has been applied successfully in the case of personal property for the last forty years. It is equally applicable in the case of real property and will avoid in this field the confusion and uncertainty which is inherent in the application of the rule of nonliability with its numerous flexible and poorly defined exceptions. The adoption of the “modern view” does not burden the building contractor with an absolute liability. Under the rule, to fin'd liability the plaintiff is still required to prove negligence on the part of the contractor and to show that a dangerous structure has been in fact erected and that the builder knew that it was to be used for human occupancy. It merely does away with an outmoded privilege based on an anachronistic legal concept and replaces it with the basic rule of negligence.” (Italics supplied) 58 A.L.R.2d 872.
. The Court of Civil Appeals in describing the hole at the time of Strakos’ injury stated that, “It was so obscured by grass as to be very difficult to discover.” (345 S.W.2d 767)