I concur in the conclusion for the reason that neither the averments of the complaint nor the proof show that there was any defect in the car upon which the poles were loaded, and the carrier had nothing to do with the loading. If there was negligence on the part of the consignor in loading the poles without placing sufficient standards in the car to hold the load, this was merely a condition upon which the negligence of the plaintiff's intestate operated to produce his hurt. The averments and proof do not bring the case within the doctrine announced in Chicago, Indianapolis Louisville Railway Company v. Pritchard, Adm'r, 168 Ind. 398, 79 N.E. 508, 81 N.E. 78, 9 L.R.A.(N.S.) 857, or Elliott v. Hall, L.R. 15 Q.B.Div. 315.
The case is controlled by the decision in Broslin v. Kansas City, Memphis Birmingham Railroad Co., 114 Ala. 398,21 So. 475, supporting the first headnote. It appears that plaintiff's intestate was an independent contractor of the consignee, and that the danger was open and obvious.