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.

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, 408409, 74 S.Ct.
202, 204205, 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.

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, 562564, 77 S.Ct. 478481, 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.