
    LANDLORD AND TENANT;
    [Summit (8th) Circuit Court,
    October 11, 1909.]
    Marvin, Winch and Henry, JJ.
    Sarah A. Dawson v. Frank A. Seiberling.
    Landlord not Liable to Tenant Injured Through Her Own Negligence.
    A tenant of part of a building can not recover damages against her landlord for personal injuries received by her from the falling over upon her of a heavy "radiator standing unfastened to anything in a common hallway of the building, where the evidence points more strongly to her own negligence than to any other cause of the accident.
    Error.
    
      Musser, Kimber & Huffman, for plaintiff in error.
    
      Slabaugh, Seiberling & Huber, for defendant in error.
   HENRY, J.

The plaintiff in error rented lodgings in the building of the defendant in error. She left her apartment and came out into the common hallway, the control or custody of which the defendant retained, and attempted to shut the front door in order to bar out a dog which annoyed her by barking and running in and out of her apartment. A radiator weighing about 200 pounds stood on the floor back of the open door; it was three or four feet high and one foot broad at its base; it was not fastened to the floor or wall. The door was sometimes held open by a brick. After the .accident it appeared that someone had tied it open by a cord attached to the knob and to the radiator, at least the broken parts of such cord were found after the accident, one part tied to the knob and the other part to the radiator. Somehow the radiator fell over while the plaintiff in error was trying to move the obstruction, whatever it was, and her ankle was caught and crushed thereunder. A verdict for the defendant below (defendant in error here) was directed at the close of plaintiff’s evidence. We think there was no error in this ruling. The plaintiff in error wishes us to take the view that the radiator was so dangerous a thing, when left standing upon its base unfastened, as to make the question of negligence in so leaving it a matter for the jury to decide, particularly in view of the possibility that the door knob might somehow engage with it in such a manner as to pull it oyer when the door was closed. We do not take this view. A radiator of this description is not in so unstable equilibrium as to fall over without some force being exerted to push or pull it over and the possibility of the knob of the door engaging with the radiator, or the door itself, when open, pushing it over against the wall in such manner that when the door was closed it would not merely recover its upright position, but balance over in the opposite direction, and so fall to the floor, is a speculation too remote to require submission to a jury. Moreover it is reasonably evident that the plaintiff in error, supposing that the door was obstructed by a brick on the floor, when in fact it was tied to the radiator, exerted such force in trying to shut the door as to pull the radiator over. This, at least, seems to us to be the most reasonable supposition from the evidence.

It does not appear that the defendant in error was in any way responsible for the door being thus tied, if it was tied. The judgment below is affirmed.

Marvin and Winch, JJ., concur.  