Opinion,

The fourth assignment of error complains that the learned judge of the court below took the facts wholly from the jury, leaving them nothing to do except to settle the amount of the plaintiffs’ damages. Whether this was right or not depends on whether the case presented, when the evidence closed, any open, questions of fact for the jury to pass upon.

The defendants owned separate but adjoining houses and lots, Nos. 139 and 141 Mechanic street. The house of the plaintiffs is on Leibert street, and the defendants’ lots extend back to and adjoin that of the plaintiffs, on oue side. The action is brought to recover damages alleged to have arisen from leakage from the cess-pool used in common for the privies on Nos. 139 and 141 into the plaintiffs’ cellar. Mrs. Craven, one of the defendants, owned and occupied No. 139. No. 141 was owned by McLean, but was, and for several years had been, occupied by Rooney as a tenant. The plaintiffs’ right to recover depended *339on whether the leakage existed as alleged, and, as to McLean, on whether such leakage was due to improper construction, or defective condition when the lease was made, for which the landlord would be answerable, or to negligent use by the tenant, for which he alone should be held responsible.

By a city ordinance, it is made unlawful to locate a cess-pool within two feet of the wall of an adjoining building. This one is not within the prohibited distance, and its location may be regarded as a lawful one. If it was properly built, and in good repair when the tenants took possession, the landlord ought not to be held responsible for the consequences of his tenant’s neglect. On the other hand, if the cess-pool was defectively built, or was oug of repair when the tenant was put in possession, the mere fact of the tenant’s occupancy, when the injury arises, will not relieve the landlord from the consequences of his own negligence. He is liable because of the defective construction or condition at and before the tenancy began, and this liability continues notwithstanding the possession of the tenant. He cannot escape liability for an existing nuisance by leasing the property to a tenant, and putting him in possession: Knauss v. Brua, 107 Pa. 85. The tenant who should use the defective cess-pool would be liable because of his use, but such liability would not take the place of, or in any manner affect, that of the landlord. This was distinctly ruled in Fow v. Roberts, 108 Pa. 489. In that case, the plaintiff was nonsuited in the court below, the court being of opinion that the plaintiff’s action should have been brought against the tenant who was in possession during the time when the alleged injury was sustained. This court, however, held that, inasmuch as the cess-pool was maintained by the landlord within the prohibited distance, in violation of the city ordinance, and the testimony showed that, as often as the contents of the pool rose to a level with the bottom of the plaintiff’s cellar, they began to find their way into the cellar, the plaintiff should have been allowed to go to the jury on the question of the landlord’s defective construction.

In this case, the question of the character of the original construction, and the actual state of repairs when the premises passed into the possession of the tenant,, was one upon- which McLean had the right to go to the jury. The learned judge of the court below seems to have overlooked this question, or to *340have taken its decision into his own hands. This was doubtless an inadvertence, but we do not see how the mistake can be repaired without sending the case back for a new trial.

The judgment is reversed, and a venire facias de novo awarded.