On Motions for Rehearing.
Both appellant, N. M. Hubbard, Inc., and appellee, John Strakos, have filed motions for rehearing. We believe our original opinion covers all of the points raised except the contention of Hubbard that Gehr-ing should be held to indemnify Hubbard for any amount it might be required to pay Strakos. We have held that Gehring’s duty to protect the traveling public ended when his work was accepted by Harris County with full knowledge of the unguarded post holes. Since Gehring was not negligent in so far as Strakos was concerned, he cannot be required to contribute to the satisfaction of the judgment against Hubbard. Patterson v. Tomlinson, Tex.Civ.App., 118 S.W.2d 645, error ref.
Hubbard, however, complains that he is entitled to be indemnified by Gehring under his pleadings and the answers made by the jury to certain special issues.
While the jury found that Gehring failed to notify Hubbard that he had left the hole into which Strakos stepped and that such failure was negligence and a proximate cause of the occurrence in question, such findings have no effect on the judgment the court is required to enter. The failure to warn Hubbard was not- a proximate cause of the injuries to Strakos for the reason that such result is not one of the consequences reasonably to be foreseen as a result of such conduct. Baughn v. Platt, 123 Tex. 486, 72 S.W.2d 580. In the absence of such proximate causation there can be no indemnity. Eastern Texas-Electric Co. v. Rhymes et al., Tex.Civ.App., 1 S.W.2d 688, error dism.
“In order that a person who has paid damages may be entitled to indemnity from another, it is essential that such other should be the one who is primarily responsible for the negligence or wrongful act which caused the injury. * * * Where a person is not primarily responsible for the act or wrong which causes the injury, there is no liability on his part to indemnify the one who has paid the damages; and a person is not entitled to indemnity for payments made by him on a judgment against him for injuries to a third person, where it is apparent that the judgment was based on his own negligence or wrong or that of his employees." 42 C.J.S. Indemnity § 23, pp. 600-601.
The acts or wrongs which caused the injuries to Strakos were the failure of Hubbard to properly protect the public from the dangers attendant on the existence of a concealed hole in the right of way. The judgment was based on the negligence of Hubbard, not of Gehring.
All motions for rehearing are denied.