Counsel for the administratrix now-insist that the judgment may rest upon the allegation of the petition that the engineer did not use due care to avoid the injuiy to McCormick after discovering his peril, and the evidence adduced upon that point. 13y clear implication at least, it is now admitted that the judgment can stand upon no other ground. If that view had been taken by counsel in the preparation of. the petition, or by the court upon the trial, questions now before us would have been excluded from the record. But allegations of negligence as to the construction of the bridge, the omission of signals at a neighboring road crossing, and of violation of the ordinance as to the speed of trains, were made in the petition, evidence was introduced to sustain them, and the court directed the jury to consider them as the foundation of their verdict. They appear, therefore, as grounds upon which the verdict and judgment were recovered; and if any one of them was improperly applied in the case the error can not now be cured by admissions in the argument. It seems entirely clear that but for the allegations of the petition relating to a want of care by the engineer after the discovery of McCormick’s peril, the petition itself would have been bad upon general demurrer; and all of the other allegations of the petition should have been omitted.

There is no statute requiring the construction of a railroad bridge in any other manner than that in which this bridge was constructed; certainly there is no common knowledge that different methods of construction prevail, nor was there any evidence to that effect. There was, therefore, shown no duty whatever *618resting upon the company to construct its bridge otherwise; and if there had been such duty it is entirely clear from the plaintiff’s own case that, with full knowledge of the condition acquired through ten years of service, he had acquiesced in that condition, and had thereby waived a right of action in consequence of it (Krause v. Morgan, 53 Ohio St., 26; Coal Co. v. Estievenard, 53 Ohio St., 44).

The petition and all the evidence having shown that McCormick was an employe of the company, engaged as a track-walker, there should have been no allegation in the petition as to the omission of signals for the neighboring road crossing, or of the violation of the ordinance regulating the speed of trains, because, by the fact of his relation to the company, it was made to appear that he was not within the classes of persons for whom such signals are required to be given, or for whose protection the speed of trains is regulated. The omission of a duty does not constitute the foundation of an action unless it results in injury to one for whose protection the duty is imposed. This would seem to be elementary, and it is sustained by the decided cases (Railroad Co. v. Depew, 40 Ohio St., 121; Railway Co. v. Workman, 66 Ohio St., 509). In view of the admissions of counsel upon the argument, it does not seem necessary to pursue these points at length.

Passing to a consideration of the ground upon which counsel for the administratrix now insist that the recovery might have been sustained, the general inquiry is whether it is in accordance with the law which defines liability for the wanton and willful infliction of injury. The concrete rule upon the subject is, that if one is upon the track of a railway company by his own fault and in peril of which he is unconscious, or from which he can not escape, and these facts and conditions are actually Imown by the engineer, it is his duty to exercise all reasonable care to avoid the infliction of injury. It does not impose the duty to exercise care to discover that one so upon the track is in a place of danger, but it does impose a duty to be exercised upon actual discovery. No matter if the rule did originate in considerations of humanitv, it is an established rule of the law which does not unreasonably interfere with the rapid movements of trains, nor is it ordinarily .difficult of application if earnest and impartial efforts are made to apply it according to its terms and obvious import. With re*619spect to the ground of liability now considered, the court instructed the jury that the company would be liable if the engineer ought, by the exercise of ordinary care, to have seen the deceased in his perilous position, and could, by the exercise of ordinary care, have stopped or checked the speed o.f. the train so as to avoid the collision. Notwithstanding the manifest conflict between the instruction given and the rule, it is said that the instruction is authorized by Railroad Co. v. Kassen, 49 Ohio St., 230. Attention to that case will show that it was decided in accordance with the generally recognized rule, and that its doctrines are not applicable to the present case. In the discharge of its duty to administer justice according to law the court was there called upon to determine the liability of the defendant in view of the very peculiar state of facts which the ease presented. This it did by the application of the reason for adjudging that a liability arises in such cases. For the purpose of declaring the law it assumed the existence of all the facts which the evidence tended to establish. The material facts were: The company was running two trains in the same direction about two hours apart; Kassen fell‘from the rear platform of the forward train to the track, sustaining injuries which disabled him from leaving his position of danger on the track; and while in that position and condition he was run upon and killed by the following train. That he had fallen from the train and was in a place of danger were facts actually known by the employes of the company operating the forward train. There was ample opportunity to rescue him either by stopping the train from which he had fallen, or by using the telegraph to communicate information of his situation to those in charge of the following train. The actual knowledge of the employes of the company in charge of the forward train was its actual knowledge, charging it with the duty of using the' opportunities at hand to rescue him from his perilous position. The phrase “ought to have been aware” manifestly applies to those in charge of the following train, and implies the duty of the company to communicate to them its actual knowledge of Kassen’s danger. This is entirely clear, not only from the peculiar facts of the case, but from the language of the opinion; for it is said:

“The court properly instructed the jury that the employes operating the train which ran over Kassen were without fault. *620They had no notice that he was on the track, and were not required to anticipate his presence there. Until they discovered him they were justified in running the train as if the track was clear; and it is not claimed that after his discovery they omitted any precaution for his safety. If those employes had received notice of Kassen’s situation in time to have avoided the injury, it is clear that it would have been their duty to exercise due care in the management of the train to do so, notwithstanding he was there through his own fault, which was 'known to them; and for their omission to use such care the defendant would be liable. While they were ignorant of the situation, the defendant was not.”

It is entirely clear, therefore, that the liability of the company was placed upon the sole ground that after receiving actual notice that Kassen was upon the track and in a position of peril, it failed to use the means at hand to avoid injury to him. The ■doctrine of the ease can have no application when neither the company nor its employes operating the train by which the injury is inflicted may be charged with actual knowledge. The rule of liability applies only when there is actual knowledge of those operating the train inflicting the injury, which knowledge is imputed to the company, or the actual knowledge of the company derived through other means, with opportunity to communicate it to those operating the train. By introducing into the instruction given the phrase, “if the engineer in charge of the train ought, by the exercise of ordinary care, to have seen the deceased in his perilous position,” and by other expressions in the charge involving the same conception, the court gave to- the jury an erroneous view of the law.

The motion of the companies to direct a verdict at the conclusion of -the testimony offered by the 'plaintiff should have been sustained; for it is quite clear, from the foregoing considerations, that the evidence offered in support of the immaterial aver-ments of the petition did not entitle the plaintiff to a verdict, -and upon the only ground alleged in her petition upon which she might recover there is an entire absence of evidence, to-wit, the actual knowledge of the engineer of McCormick’s peril. .The companies did not stand upon that motion, but introduced the evidence of the engineer which, for the first time, showed that he had discovered McCormick before the collision; and from his *621evidence it also appears that lie did all that was in his power to avoid the infliction of injury.

With respect to the conduct of the trial, it seems sufficient to say that court and counsel appear to have been alike unmindful of the doctrine of Hayes v. Smith, 62 Ohio St., 161. Counsel have, at some length, discussed the constitutional validity of Sec-ción 3365-22 of the statutes of this state; but in the view of the ease which we have taken we do not consider that question material and we do not determine it.

Judgments of the circuit court and the court of common -pleas reversed.