355 U.S. 20
78 S.Ct. 1
2 L.Ed.2d 3
Pasquale PALERMO, Petitioner,v.LUCKENBACH STEAMSHIP COMPANY, Inc.
No. 350.
Decided Oct. 21, 1957.
Rehearing Denied Nov. 25, 1957.

See 355 U.S. 886, 78 S.Ct. 147.
Order Amended Jan. 6, 1958.
See 355 U.S. 910, 78 S.Ct. 337.
Mr. Philip F. Di Costanzo, Brooklyn, N.Y. (Mr. Robert Klonsky on the brief), for petitioner.
Messrs. Eugene Underwood, William M. Kimball, New York City, for respondent.
PER CURIAM.


1
The petition for certiorari is granted, and the judgment of the Court of Appeals is reversed and the case is remanded.* We hold that the trial court did not commit reversible error in refusing to charge respondent's request No. 12. The petitioner's alleged choice of a more dangerous route did not, under the proofs, operate to bar recovery as a matter of law. The jury was properly instructed that the petitioner's negligence, if any, was to be considered in mitigation of damages under the rule applicable in actions for personal injuries arising from maritime torts. Pope & Talbot, Inc., v. Hawn, 346 U.S. 406, 408—409, 74 S.Ct. 202, 204—205, 98 L.Ed. 143; cf. Socony-Vacuum Oil Co. v Smith, 305 U.S. 424, 59 S.Ct. 262, 83 L.Ed. 265. For reasons set forth in his opinion in Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 524, 77 S.Ct. 443, 459, 1 L.Ed.2d 493, Mr. Justice FRANKFURTER is of the view that the writ of certiorari is improvidently granted.


2
Memorandum of Mr. Justice HARLAN, with whom Mr. Justice BURTON and Mr. Justice WHITTAKER join. For reasons elaborated by Mr. Justice Frankfurter at the last Term, 352 U.S. 521, 524, 77 S.Ct. 457, I think that certiorari should have been denied. However, I continue in the view, expressed at the last Term, 35 U.S. 559, 77 S.Ct. 478, that once certiorari has been granted in such cases, we disbelievers, consistent with the Court's certiorari procedure, should consider them on the merits. Further, much as I disagree, 352 U.S. 559, 562—564, 77 S.Ct. 478—481, with the reasoning and philosophy of the Rogers case, which strips the historic role of the judge in a jury trial of all meaningful significance, I feel presently bound to bow to it. Applying Rogers to the present cases, I am forced to concur in judgments of reversal in Nos. 142 and 350.



*
 Order amended Jan. 6, 1958, 78 S.Ct. 337, case remanded to Court of Appeals.


