Opinion of the Court-Ducker, J. negligence a verdict conclusive upon us." thereon is binding or 8. We thus see that this court on the evidence adduced in the former case, independently of a contrary finding by the jury, determined that, as a matter of law, appellant's negligence was one, if not the sole, proximate cause of his injuries. There is no substantial difference in the evidence to render this ruling on the former appeal inapplicable here. True, in the former trial of the case it appeared that appellant was a trespasser, inasmuch as his presence on the track with his velocipede car was in violation of an order made by responIdent not to run his car on its tracks after dark, and in violation of his employer's written instructions to the same effect; while the evidence on this trial, considering it as it should be weighed on a motion for a nonsuit most strongly against the defendant, does not establish that appellant was on the track at the time of the accident in violation of the orders of the respondent and his employer. On this trial, under the evidence, he appears as a bare licensee. But, as the duty the respondent owed him as a licensee, under the facts of this case, was no greater than a trespasser-that is, not to wantonly or wilfully injure him or fail to exercise due care to prevent his injuries after his presence in a place of danger was discovered the difference in the evidence in this respect cannot make the decision of the court on the former appeal less controlling as to the question of proximate cause. As appellant was guilty of contributory negligence which was a proximate cause of his injuries, it follows that he cannot recover unless the negligence of the railroad company was of such a character as to preclude it from availing itself of appellant's negligence as a defense. 9. Contributory negligence is no defense to an action for damages for an injury wilfully or wantonly inflicted. 1 Thompson on Negligence, secs. 206, 207; Beach, Contributory Negligence (2d ed.) sec. 64; Atchison, T. & S. F. R. Co. v. Baker, 79 Kan. 183, 98 Pac. 804, Opinion of the Court-Ducker, J. 21 L. R. A. (N.S.) 427; 20 R. C. L. 144, and cases cited in note 18. 10. It is difficult to formulate a general definition of what constitutes such wilful or wanton conduct as will warrant a recovery of damages by an injured party, notwithstanding his own contributory negligence; but we think the following has been fairly extracted from the many cases in which a definition of the term has been undertaken: "To constitute wilful injury there must be design, purpose, and intent to do wrong and inflict the injury; while to constitute wanton negligence the party doing the act or failing to act must be conscious of his conduct, and, though having no intent to injure, must be conscious, from his knowledge of surrounding circumstances and existing conditions, that his conduct will naturally or probably result in injury." 20 R. C. L. 21. "The distinction between wilful and wanton injury is clearly drawn in Atchison, T. & S. F. R. Co. v. Baker, supra, by the following illustration: "The difference is that between him who casts a missile intending that it shall strike another, and him who casts it where he has reason to believe it will strike another, being indifferent whether it does so or not." 11. It clearly appears that the conduct of respondent's employees could not have been due to wilfulness, that is to say, to a design to inflict injury. The evidence shows conclusively that appellant's presence on the track was unknown to them and was not discovered before the collision, at least not in time to avoid the crash. Counsel for appellant argued that the negligence of respondent's employees in not displaying a light on the rear of the engine prevented appellant and the engineer from being apprised of the impending danger and thus precluded either from its discovery and an opportunity to exercise due care to avoid it. But this is merely to array the negligence of the respondent against the negligence of the appellant. It is as appropriate to say that the negligence of the appellant in not displaying a light on his Opinion of the Court-Ducker, J. velocipede car prevented the engineer from having an opportunity to discover appellant's presence on the track in time to reverse his engine or sound the alarm. Under all the circumstances in evidence, we have no hesitancy in holding that the lower court was justified in withholding the case from the jury as to any element of wilfulness. The evidence does not disclose a state of facts from which a legitimate inference may be drawn that the acts of respondent's employees were of a wanton nature. The switch engine was running on the right track in the direction of the movement of traffic. The evidence shows that the switch engine was running at a very low rate of speed. The engineer had a right to assume that all trains running in an opposite direction would take the other track. It appears that pedestrians and bicyclists sometimes used the tracks between Reno and Sparks, but always in the daytime. There is evidence that hand cars and motor cars were run on the tracks between these points after night, without lights; but it does not appear that any of these cars were ever run on the tracks between Reno and Sparks against the current of traffic at any time. The engineer could not therefore have reasonably anticipated the presence of any of these on the track. The appellant had never run his velocipede car on the tracks after night before this time, so it was not possible to foresee his presence on the track on the night of the accident. Such circumstances have no tendency to prove that any of the respondent's employees on the switch engine were conscious that their conduct in not displaying a light on the switch engine would naturally and probably result in injury to some one. The evidence is not doubtful on this point, nor any of the inferences to be drawn from it so questionable as to require the judgment of the jury. In Georgia Pacific Railway Co. v. Lee, 29 Ala. 262, 9 South. 230, it was held that the assumption of recklessness or wantonness, implying wilful and intentional wrongdoing, may not be predicated of a mere omission of duty, under circumstances which do not, of them Opinion of the Court-Ducker, J. selves, impute to the person so failing to discharge the duty a sense of the probable cause of the omission. In Highland Avenue and Belt R. R. Co. v. Maddox, 100 Ala. 618, 13 South. 615, it was held that neither the mere running of a train at fifteen miles per hour at a crossing just outside the city limits, nor failure to ring the bell, or blow the whistle, or keep a proper lookout, is more than simple negligence as contradistinguished from wantonness, which will preclude the defense of contributory negligence. The court held in Georgia Pacific Ry. Co. v. Lee, supra, that, conceding that the speed of fifteen miles an hour and the absence of any warnings upon approaching a crowded thoroughfare might stand for recklessness and wantonness precluding the defense of contributory negligence, it is insufficient for the purpose where the evidence does not show that the locality involved was of that character. The evidence showed the locality to be the crossing of a considerably traveled public road over the railway. It has been held that evidence that a train approached a public crossing in a town of 500 or 600 inhabitants, at a rate of from 25 to 30 miles an hour, without ringing the bell or sounding the whistle, while showing negligence, does not sustain a charge as to wanton, reckless, or intentional killing, precluding defense of contributory negligence. Gipson v. Southern R. Co. (C. C.) 140 Fed. 410. In Louisville N. A. & C. R. Co. v. Wurl, 62 Ill. App. 381, it was held that neither the fact that a train was running at a greater rate of speed than allowed by a municipal ordinance, nor the fact that, in violation of the rules of the company, it ran past a suburban train which was stopped at a station to receive passengers, is evidence of wilfulness which will preclude defense of contributory negligence, when a person was struck while passing over a highway crossing to reach the suburban train. In none of the foregoing cases were the facts upon which it was sought to predicate wilfulness or wantonness appreciably weaker than in the instant case. True, Opinion of the Court-Ducker, J. the accident in these cases happened in the daytime, while here it occurred at night; but this distinction minimizes the probability of pedestrians or bicylists or persons riding on motor cars using the respondent's tracks. Had the issue been submitted to the jury and a verdict rendered for appellant, it would have been the duty of the court to set it aside, because the evidence was legally insufficient to establish a liability. 12. The appellant contends that the failure of the respondent's employees to display a light on the switch engine in the direction in which it was moving was a violation of section 2 of the so-called headlight law enacted in 1913 (Stats. 1913, c. 32) and effective at the time appellant sustained his injuries, and that such violation of a law enacted to promote the public safety is sufficient to entitle the appellant to recover under the facts of the case. Sections 1 and 2 of that act read as follows: "SECTION 1. Every company, corporational lessee, manager, or receiver, owning or operating a railroad in this state, is hereby required to equip, maintain, use, and display at night upon each and every locomotive being operated in road service in this state, an electric or other headlight of at least 1,500 candle-power, measured without the aid of a reflector; provided, that this act shall not apply to locomotive engines regularly used in switching cars or trains; and provided further, that this act shall not apply to railroads not maintaining regular night-train schedules, nor to locomotives going to or returning from repair shops when ordered in for repairs. "SEC. 2. All locomotives backing up, over any division or district, or portion thereof at night, shall be provided with a headlight of the character described in section 1 hereof displayed in the direction the engine is moving." This contention cannot help appellant. Conceding, but not deciding, that the evidence discloses that the switch engine was not within the exemption of the first proviso of said section 1, but was actually engaged in |