O'N PeíCITION TO' ReHBAE.
Petition to rehear has Been filed by Defendant Myrtle Brichetto, which consists wholly of an attempt to have this Court reconsider its finding on the evidence. It is a matter of reargument merely, and insufficient to justify rehearing. Louisville & N. Railroad v. United States Fidelity & Guaranty Co., 125 Tenn. 658, 148 S. W. 671; Supreme Court Rule 32, 173 Tenn. 886, 887.
Petitioner copies certain excerpts from the transcript to support her contentions. It is sufficient to say that these excerpts do not contain the evidence upon which this Court based its conclusion that the jury was warranted in holding Petitioner liable for maintaining the awning in a dangerous condition. As we undertook to state in the former opinion, it was the absence of the safety chain and not the condition of the ropes, used for raising and lowering the awning, that was the predicate of liability.
(1) Vann, as an expert witness, testified that for proper and safe installation and maintenance, the type of awning involved here should have had a safety chain or device to prevent the horizontal arm, at the building end, from slipping down to the lowest point on the sleeve. *275That no such chain was on this awning at the time of the accident, is nndispnted.
(2) Garrett testified that at the time, of the accident the building end of the horizontal bar was down at the lowest point on the sleeve, or 5 feet, 2% inches above the sidewalk. The witness Hall testified to the same fact.
(3) Garrett, who is 5 feet, 11 inches tall, passed under the outer or street edge of the awning which brushed his hair. Hargis, who was on the inside next to the building as the two men ran down the street, collided’ with the' building end of the horizontal bar.
"We think from this testimony which is undisputed and unimpeached, that the jury was warranted in finding that the maintenance of the awning without the safety chain, was the proximate cause -of the accident.
Under Rule 32, supra, and for the reasons stated, the petition to rehear is denied.'
Plaintiff has also filed petition to rehear on two grounds, namely; (1) Because of our dismissal of the City, (2,) because of our suggestion of a remittitur.
(1) In support of this ground, it is insisted that under the Common Law count of the declaration there was such evidence of constructive notice as should have taken the casé tó the jury as against the City. This proposition was fully argued and considered before the delivery of our former opinion. We think the record shows no such constructive notice, as would have supported a verdict against the City. It is not even conclusively proved that the awning overhung the City sidewalk at all. There is strong evidence that the awning was wholly within the property lines of Mrs. Birchetto, and the photographs introduced seem to support that fact. *276Of conrse tlie Common Law dnty of the City with respect to the maintenance of its streets and sidewalks is limited to them and does not extend, so far as any authority which has been produced discloses, to adjacent property, and if it be admitted that the awning did extend over the City sidewalk, then to support the contention that the City had constructive notice of the dangerous and defective condition of the awning, there would have to be some evidence that the condition of the awning had become notorious by reason of other accidents, or that there had been a failure to inspect when the City was under a duty to inspect, or some other evidence upon which a finding' of constructive notice can be based. There is absolutely no such evidence in this record.
(2) While it is true that there was no specific assignment here that the verdict was excessive, there were general assignments which would cover that error and the excessiveness of the verdict was vigorously argued and its reasonableness equally vigorously defended at the bar of this Court. In a matter so fundamental as the amount of the judgment, we think no specific assignment was necessary to justify this Court in undertaking to carry out its conception of justice between the parties.
While the Court “Need not consider” (Hawkins v. Hubbell, 127 Tenn. 312, 315, 154 S. W. 1146, 1147), matters on which no error is assigned it is not, by the absence of a specific assignment, precluded from looking to a question presented to the Trial Judge as one of the grounds for motion for new trial.
Petition denied.