
    LOPEZ v. AMERICAN PRESIDENT LINES, LTD.
    No. 65.
    Circuit Court of Appeals, Second Circuit.
    Oct. 28, 1943.
    William G. Symmers, Dow & Symmers, and Joseph M. Brush, all of New York City, for appellant.
    Richard M. Cantor, of New York City (Maxwell Opper, of New York City, of counsel), for appellee.
    Before L. HAND, SWAN, and FRANK, Circuit Judges.
   PER CURIAM.

There can be no question in this case of the defendant’s liability, if it can be charged with notice that the men, engaged in cleaning the ship, were using, or were likely to use, the battens to get access to the sides. The plaintiff and his fellows both swore that they had been accustomed to follow that method in other ships in the harbor, including some of this very defendant. Moreover, there was but one ladder provided in the hold in any event. But we need not depend upon their testimony to affirm the judgment. The second mate who was in charge on the day in question, declared in his deposition that for at least two days before the accident happened, this very gang had been using the battens in precisely the way the plaintiff was using them when he fell. It is true that he also said that he did not know of this use; but if the practice had been going on for so long a time, a jury was clearly justified in finding the defendant chargeable with notice of it and with the duty to provide against it.

Judgment affirmed.  