(concurring specially) : I concur in the judgment of affirmance on the theory that the injury was not wilfully and wantonly inflicted by the defendant. If it had been done purposely and by design, it would have constituted more than negligence and become an act of aggression and violence, and contributory negligence would not avail as a defense. It is well settled “that if the ordinary negligence of the plaintiff directly or proximately contributed to his injury, he cannot recover unless the injury was intentionally and wantonly caused by the defendant.” (U. P. Rly. Co. v. Adams, 33 Kan. 427, 6 Pac. 529; Tennis v. Rapid Transit Rly. Co., 45 id. 503, 25 Pac. 876.) The contributory negligence of the plaintiff was clearly established, and, under the circumstances of this case, it necessarily defeats a recovery.
Smith, J., not sitting, having been of counsel.