The defendant maintained a stable with an entrance through a triangular passageway to the street. To gain an entrance to this stable it was. necessary to pass under a door connecting with the second story of the stable, where hay was stored for the use of the defendant’s horses on the floor below. There was a trap door from the left to the stable below, but that was not large enough to permit bales of hay to pass. The defendant’s employees were in the habit of throwing bales of hay out of this door opening out on the passageway between the entrance of the stable and the street. The danger of a bale of hay thrown out of - this door hitting any one using the passageway from the stable to the street was obvious, and it was certainly negligence for a person to throw out a bale of hay * without first ascertaining whether or not there was any one in the *349passageway. The defendant’s employee did throw out of this door into the passageway a bale of hay which struck the plaintiff and severely injured him. This is all conceded. Whether the defendant’s employee used the proper precaution to ascertain whether or not there was any one in the passageway liable to be injured was clearly a question for the jury ; and the case was submitted to the jury in a manner which was certainly as favorable to the defendant as the facts justified. The defendant, however, claimed upon the trial and now claims on this appeal that the plaintiff was a trespasser as to whom the defendant owed no duty, and a determination of this question, it seems, to me, decides this appeal.
I do not think that the plaintiff was a trespasser. The plaintiff’s father was employed by the defendant in this stable and on the morning in question was working there. The plaintiff called there to see his father, was admitted into the stable by the defendant’s employees and there was no suggestion made to him that he was not rightfully on the premises. He was certainly there with the consent of the defendant’s employees then in charge of the stable. He used the only entrance to the stable that was provided by the defendant, and while thus on the premises I think the defendant owed him the duty of using ordinary care and prudence to avoid injuring him.
This is not a case where a person, going upon the defendant’s premises, having no business there, was injured by machinery improperly guarded. Here the negligence complained of was the act of throwing down into the passageway maintained by the defendant as a means of access to the building upon the premises a bale of hay, and it was this affirmative act of one of the defendant’s employees for whose negligence the defendant is liable which resulted in the injury of a person whose presence upon the premises at the time of the injury was neither unlawful nor against the orders of the defendant, or its employees in charge of the property.
I do not think that there is any distinction between this case and the case of an entrance to a tenement house or other building where the public are admitted and where an injury is occasioned by negligence of the owner of the building, or his employees, to a person who is lawfully on the premises, and that this case is controlled by Walsh v. Fitchburg R. R. Co. (145 N. Y. 301). The rule laid down *350in that case has not been at all affected by the subsequent decisions which relate to a person who is purely a trespasser, as was the case of Weitzmann v. Barber Asphalt Co. (190 N. Y. 452) and cases there cited. Assuming that the plaintiff was not a trespasser, the question then is, was the act of the defendant, or its employees, considering the relations of the plaintiff to the premises, so negligent as to justify the jury in finding that the defendant’s employees violated the duty that they owed to the plaintiff. I think, under the circumstances, the defendant owed to any one using this passageway lawfully the duty of at least exercising ordinary care to prevent a bale of hay thrown out of this window striking him, and that, therefore, there was a question for the jury which they have answered and that their verdict is supported by the" evidence.
I think, therefore, that the judgment should be affirmed.
Dowling, J., concurred.
Judgment and order reversed, new trial ordered, costs to ajipellant to abide event.