Macaluso v. Populis

339 So. 2d 386, 1976 La. App. LEXIS 4427
CourtLouisiana Court of Appeal
DecidedSeptember 14, 1976
DocketNo. 10829
StatusPublished
Cited by3 cases

This text of 339 So. 2d 386 (Macaluso v. Populis) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Macaluso v. Populis, 339 So. 2d 386, 1976 La. App. LEXIS 4427 (La. Ct. App. 1976).

Opinion

LOTTINGER, Judge.

This is a suit filed by Anthony S. Maealu-so individually and for and on behalf of his minor son, Anthony J. Macaluso,1 for damages resulting when the motorbike on which young Macaluso was riding ran into a truck owned and driven by T. C. Populis. Made defendants are T. C. Populis, Maryland Casualty Company (Maryland)2 and Commercial Union Insurance Company (Commercial).3 Maryland settled all claims against it by the minor, Anthony J. Macalu-so, and Anthony S. Macaluso prior to trial. Judgment was rendered against all three defendants in the amount of $10,000.00, and specifically providing that the judgment against Maryland in the sum of $5,000.00 had been satisfied by payment by Maryland of $5,000.00 pursuant to a minor’s settlement. The remaining defendants, T. C. Po-pulis and Commercial, have perfected this appeal.

The appellant, Commercial, at the time scheduled for argument, after due notice, was neither present nor represented, nor had any brief been filed on behalf of Commercial, nor had any motion been filed for a continuance. Therefore, under the authority of Rule VII, § 5(b), Uniform Rules-Courts of Appeal, this Court ex pro-prio motu, considers said appeal as abandoned, and it is hereby ordered that this appeal on behalf of Commercial Union Insurance Company be dismissed with prejudice.

The record discloses that on July 18,1972, between noon and 12:30 p. m., Anthony J. Macaluso, the then minor, was driving a 1972 Honda motorbike in a southerly direction on South Cate Street in Hammond, Louisiana. The motorbike upon which the youth was driving collided with a 1956 Chevrolet Truck owned and driven by T. C. Populis which was traveling in a westerly direction on Hansen Street. It was defendant’s intended purpose to continue in a westerly direction on Hansen Street through the intersection and across a set of railroad tracks. The intersection of South Cate and Hansen is controlled by a stop sign on Hansen Street. The collision occurred before Mr. Populis was able to successfully cross the intersection.

Riding on the rear of the Honda driven by young Macaluso was his cousin, Anthony Arnonne, and also riding in the same direction on a motorbike was a friend, Phillip Tallia. The Tallia vehicle successfully avoided the accident by weaving around the rear of the Populis vehicle.

Mr. Populis testified that he was driving his pickup in a westerly direction on Hansen Street. He came to a complete dead stop at the intersection of Hansen and South Cate Streets. He looked in both directions and saw no traffic coming toward him. He then pulled out slowly into the intersection and had almost completely passed over the southbound lane of traffic before the accident occurred. His front wheels were completely out of the southbound lane of traffic and his rear wheels were almost out of the southbound lane of traffic. The rear portion of the right door on the pickup truck was hit in the collision and Mr. Populis testified that he did not see the motorcycles until immediately prior to the accident. Sgt. Wesley Robertson of the Hammond Police Department investigated [388]*388the accident. He testified that both South Cate and Hansen Streets are concrete surfaced and South Cate is a through street. The point of impact was in the southbound traffic lane of South Cate Street. He says the rear portion of the Populis vehicle was struck. He found no skid marks either by the motorcycle nor the Populis vehicle. The point of impact according to his testimony on the pickup truck was the right rear bumper and fender. He testified that the speed limit was 25 miles per hour and the weather conditions were dry and clear.

Anthony J. Macaluso claimed that he was 16 years old at the time of the accident and that he was operating his motorcycle on Morris Street, came to a four-way stop, stopped, took a right on South Cate Street heading south, and then the accident happened. Morris Street is approximately one block north of Hansen Street. He testified that he was going approximately 25 miles per hour when the accident happened and that he saw the truck just in time when it was right in the middle of the street. He testified that his front wheel hit the middle of the right door.

Phillip Tallia testified that he was riding in the right lane about a bike and one-half behind and to the left of Macaluso and traveling at a speed of about 25 miles per hour. When he first saw the truck it was in the middle of the road and he turned into the left lane to go around the back of it. He said he did not notice the Populis truck until he was in the middle of the intersection.

Anthony Arnonne who was riding on the motorbike with young Macaluso testified that they were traveling at a speed of about 25 miles per hour and that he did not notice the vehicle driven by Mr. Populis until right before the accident.

Floyd Baham was parked near the intersection of South Cate and Hansen Streets and testified that he saw Mr. Populis stop at the stop sign, that Populis had already taken off from the corner when Baham turned and saw young Macaluso come around the corner, that the back end of the Populis vehicle was in the southbound lañé of Cate Street at the time of impact, that he felt Macaluso was exceeding the speed limit, and that Macaluso in an attempt to avoid the collision turned to his right or to the west.

The appellant, T. C. Populis, contends that the Trial Court erred in rendering judgment in favor of plaintiffs where they did not carry the burden of proof; in not finding young Macaluso contributorily negligent for exceeding the speed limit, being inattentive and in turning into the pickup truck rather than away from it; in refusing to allow a newspaper photograph of the scene after the accident into evidence; and in granting an excessive award for damages.

Although we are not favored with written reasons for judgment by the Trial Judge, we are of the opinion that there are sufficient facts in the record to lead this Court to the conclusion that the Trial Judge was not manifestly erroneous. Canter v. Koehring Company, 283 So.2d 716 (La.1973), rehearing denied (1973). The only evidence in the record as to whether or not Mr. Populis stopped at the stop sign was the testimony of himself and Mr. Baham and they both did testify that he stopped. It could have been, however, that he did in fact stop yet did not notice the approaching motorcycles and pulled out in front of them. Unless this was the case, it would appear that at least one of the three boys riding the motorcycles would have noticed the truck sooner. Apparently, the Trial Judge believed the version as given by the three young boys.

As to the specification that the Trial Judge erred in disallowing the introduction into evidence of a picture of the vehicles after the accident which appeared in a local newspaper, this Court in Wallace v. Travelers Insurance Company, 195 So.2d 712, 718 (La.App. 1st Cir. 1967), rehearing denied (1967), said:

“Our procedural rules require identification of photographs as a condition precedent to their admissibility in evidence. Generally photographs are admissible [389]*389only if verified or authenticated by extrinsic evidence. The trial court, however, is vested with some discretion in determining the sufficiency of preliminary proof of authenticity.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Allemand v. Zip's Trucking Co., Inc.
552 So. 2d 1023 (Louisiana Court of Appeal, 1989)
Nicolosi v. Livingston Parish School Bd.
441 So. 2d 1261 (Louisiana Court of Appeal, 1983)
Derouen v. Dept. of Transp. & Development
392 So. 2d 765 (Louisiana Court of Appeal, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
339 So. 2d 386, 1976 La. App. LEXIS 4427, Counsel Stack Legal Research, https://law.counselstack.com/opinion/macaluso-v-populis-lactapp-1976.