only suffered excruciating torture, pain, and | purtenances situate and being entirely in mental anguish above described, but for a the state of North Carolina to the South long time became dangerously ill, and was Carolina line, and that the plaintiff was incompelled to call in the professional skill and jured at or about the time named in the services of physicians and surgeons, and was complaint by attempting to get off of one of subject to great expense in endeavoring to the moving trains of said railroad company cure himself, and was compelled for the which was then in motion, and that the preservation of his life to have both his said injuries did not occur on the line of legs amputated in the manner hereinbefore this defendant, as alleged in the complaint. described, and will be compelled to incur further expense in seeking relief from physicians and surgeons the remainder of his life. "(10). That plaintiff is now 23 years of age, and a resident and citizen of York county, in the state of South Carolina, but at the time he sustained the injuries hereinbefore complained of he was 19 years of age, possessed a strong and vigorous constitution and of robust health, and was earning wages amounting to about $300 per annum, and enjoyed life expectancy of 42.9 years under the mortuary table now in force in this state. "Wherefore, plaintiff demands judgment of the defendant in the sum of fifty thousand dollars ($50,000) besides the costs of this action."

The answer of the defendant is as follows: "(1) That it admits the allegations contained in paragraph 1 of the complaint.

"(5) For a fourth defense defendant alleges that heretofore the plaintiff, by his next best friend, Thomas Carson, brought his action in the superior court in and for the county of Gaston, in the state of North Carolina, against the railroad upon whose line he was injured, to wit, against the Atlanta & Charlotte Air Line Railroad Company, a corporation duly chartered, organized, and doing business under and by virtue of the laws of the state of North Carolina, for the same cause of action upon which he is now suing. and that said cause was duly tried in the said court, and judgment of nonsuit was duly rendered against the plaintiff, from which judgment an appeal was duly taken by the plaintiff to the Supreme Court of the state of North Carolina, and the said Supreme Court of said state thereafter duly rendered its decision and judgment, adjudging and determining that the plaintiff was guilty of contributory negligence and affirm

rendered in the superior court of the county of Gaston, in the state of North Carolina, against the plaintiff.

(2) For a first defense defendant admits that it is now, and was at the times hereinafter mentioned, a corporation duly charter-ing the judgment of nonsuit which had been ed and organized under the laws of the state of South Carolina, but it denies that at said times and now it owns a railroad from Charlotte, N. C., running through the county of Spartanburg, to Atlanta, Ga., together with the tracks, cars, locomotives, passenger stations or depots, station yards, and all appurtenances thereunto belonging, or that it was a common carrier of passengers thereupon for hire between the afore said cities of Charlotte, N. C., through the aforesaid county and city of Spartanburg, S. C. On the contrary, this defendant alleges that it is a corporation duly chartered, organized, and doing business under the laws of this state, and that it owns a railroad running from the North Carolina line to the Georgia line, together with tracks, cars, locomotives, passenger stations or depots, and station yards, and all appurtenances thereunto belonging situate or being in the state of North Carolina.

"(3) For a second defense this defendant denies each and every allegation of the said complaint which has not hereinbefore been admitted, explained, or modified, and says the same are not true.

"(4) For a third defense defendant alleges, as it is informed and believes, that at about the time named in the complaint the plaintiff was injured on a railroad corporation which was chartered, organized, and doing business under and by virtue of the laws of the state of North Carolina, which owned a railroad together with the tracks,

"(6) Defendant, further alleges that the injury about which the plaintiff is complaining occurred in the state of North Carolina, and the laws of said state provide as follows: 'If an action shall be commenced within the time prescribed therefor, and the plaintiff be nonsuited, or a judgment therein be reversed on appeal, or be arrested, the plaintiff, or if he dies, and the cause of action survive, his heir or representative may commence a new action within one year after such nonsuit, reversal or arrest of judgment.' And the defendant further alleges that after the judgment or nonsuit herein before mentioned had been granted and had been affirmed by the Supreme Court of the state of North Carolina, and within the time fixed by the statute of the said state of North Carolina, the plaintiff began a second action in the said superior court for the county of Gaston, in the state of North Carolina, against the Atlanta & Charlotte Air Line Railway Company for the same cause of action, and that judgment of nonsuit was again rendered in the said court against the plaintiff, from which judgment the plaintiff duly appealed to the Supreme Court of said state, and the said Supreme Court thereafter duly rendered its decision and filed its opinion affirming the judgment of nonsuit which had been granted against the plaintiff in the said superior court of Gaston, in the

"(14) For a further defense this defendant | records of the superior court of Gaston counalleges that under the law of North Caro- ty, N. C., and the records of the Supreme lina the plaintiff is required to bring his ac Court of that state and copies of various tion for personal injury within three years statutes, all of which were introduced into from the time the cause of action accrues to evidence. The circuit judge reserved his dehim, and that plaintiff did within the three cision upon these matters, and allowed the years fixed by the statute of North Carolina case to go to the jury. The jury found a bring his action by his next friend against verdict for the plaintiff, after which the cirthe Atlanta & Charlotte Air Line Railway cuit judge made an order setting aside the Company in the superior court of the county verdict and dismissing the complaint, upon of Gaston, in the state of North Carolina, the ground that, under the statutes and decito recover damages for the same injuries sions of the state of North Carolina, the acón account of which he is now bringing this tion was barred. From this order the plainaction, and that in said suit plaintiff was tiff has appealed, upon the following excepduly nonsuited, and that he duly appealed tions: from the said judgment of nonsuit to the Supreme Court of the state of North Carolina, and that thereafter the Supreme Court of said state rendered its judgment and affirmed the judgment of nonsuit which had been granted by the superior court of Gaston county for the state of North Carolina. The defendant further alleges that there is a statute in the state of North Carolina which allows the plaintiff to bring a second action on the same cause of action, provided he does so within one year after he is nonsuited, and defendant alleges that the plaintiff did within the time fixed and limited by the said statute of the state of North Carolina bring his second action against the Atlanta & Charlotte Air Line Railway Company to recover damages for the same cause of action for which he had brought his first suit in the said superior court of Gaston county, and for which he is now bringing the present suit, and that, on the trial of the cause in the said second suit, a judgment of nonsuit was duly rendered against him by the said superior court of Gaston county, in the state of North Carolina, the court adjudging 'that plaintiff take nothing by his action, and that the defendant go without pay and recover its costs'; that from the said judgment the plaintiff duly appealed to the Supreme Court of the state of North Carolina, and that said court thereafter duly affirmed the said judgment which had been rendered against the plaintiff in the said superior court for Gaston county, and that more than one year has elapsed since said judgment was last rendered, and that more than three years have elapsed since the cause of action arose to plaintiff, and this defendant pleads the said statutes of North Carolina and the said judgments of the superior court of Gaston county, in the state of North Carolina, and of the Supreme Court of said state as a bar and as an estoppel to this action.

"Wherefore defendant prays that the complaint herein be dismissed, with costs."

The plaintiff introduced evidence responsive to the allegations of the complaint. At the close of all of the evidence, the defendant moved for a direction of verdict upon the grounds, among others, that the cause of action was barred under the laws of the

"(1) That his honor erred in holding this action is barred under the statutes and decisions of the state of North Carolina; the error being, generally, that there is nothing in such statutes to sustain such holding; and, particularly: (a) his honor could not, and consequently did not, intend to hold that the testimony of the case barred the plaintiff under the light of the law of that state, in a case of this kind, under the law of North or South Carolina, a judge having no power to dismiss a complaint upon conflicting testimony as to alleged negligence and contributory negligence. (b) He could not, and accordingly did not intend to, hold that plaintiff is barred by a statute of limitation of that state because no statute of limitation of that can apply to an action brought in this state. (c) If he meant that this same cause of action had been determined between the same parties upon the same testimony in North Carolina, and that, therefore, plaintiff is barred from again maintaining such action in the courts of this state, he was in error, because: (1) This is the first action of this plaintiff against this defendant, a South Carolina corporation. (2) The testimony was not the same; and, besides, to hold them to be the same would be exercising the function of the jury. (3) Even if this action were between the same parties and for the same cause of action, there is nothing in the law of North Carolina introduced in evidence which would prevent this action being instituted and prosecuted in that state; there never having been a determination, anything more than nonsuits, in that state, and no final judgment having been entered thereon, and defendant having failed to produce any statute which would prohibit the renewal of the action for the second nonsuit.

"(2) That his honor having failed and refused to grant defendant's motion for a new trial, and it being error to dismiss the complaint, as a matter of law, as was done by his honor, plaintiff should by this court be adjudged to have the right to enter judgment upon the verdict as rendered."

The facts of the case are that the plaintiff was injured on the 27th of August, 1902, in the town of Gastonia, N. C., by stepping

and being struck or run over by the train., judgment upon the merits. It was originall, In November, 1902, plaintiff sued as a minor by his next friend in the superior court of Gaston county, N. C., and in 1903 an order of nonsuit was signed by the presiding judge as follows: "At the close of the plaintiff's evidence the defendant moved for a nonsuit, motion sustained, and plaintiff excepted and appealed." Upon hearing the appeal the Supreme Court of North Carolina affirmed the decision of the court below. 134 N. C. 92, 46 S. E. 12. The plaintiff then immediately began another action in Gaston county, N. C., for the same injury. The defendant answered, setting up the prior judgment above referred to as a bar to the action. At the conclusion of the plaintiff's evidence, on motion of the defendant, the court ordered a nonsuit. The plaintiff then appealed to the Supreme Court, which, by a per curiam order, without opinion, rendered its decision to the effect that there was no error in the record of the proceeding of the superior court. After the above decision this action was begun in Spartanburg county, in this state, and the main issue involved by this appeal as we view the case is: If the plaintiff's alleged cause of action is barred under the laws of North Carolina, is it also barred here? And is it barred under the laws of North Carolina? This court in the case of Dennis against A. C. L. R. R. Co., 70 S. C. 254, 49 S. E. 869, 106 Am. St. Rep. 745, and also in the case of Sawyer et al. v. Macauley, 18 S. C. 549, held, in effect, that, if the right of a plaintiff was extinguished in the jurisdiction in which the right arose, it was gone everywhere, and an action could not be instituted in another jurisdiction where under similar circumstances the right would have continued. It is further held that if the right still exists, but the remedy to enforce same is barred by the laws of the state where the right was created by some statute of limitations, that this statute of limitations would not follow the right into another jurisdiction and effect it there, the distinction being that the law of the state in which a right is created governs the creation, existence, and extinction of that right, but that laws which relate purely to the remedy are no part of the right, and hence are not binding upon courts of other jurisdictions when passing upon the rights of the parties. From this it follows that an adjudication upon the merits to the effect that the plaintiff never had a cause of action, made by a court of competent jurisdiction, is final and conclusive, and will be respected and followed by all other courts in actions between the same parties or their privies concerning the matter.

The Supreme Court of North Carolina upon the first appeal determined that the negligence of the plaintiff was the cause of the injury he sustained. This decision was rendered upon an appeal from an order grant

given against the plaintiff when he intro
duced insufficient evidence to support a ver
dict, or when he refused or neglected to pro
ceed to the trial of the cause, after it ha
been put at issue. It is different, however
where the plaintiff is nonsuited or a verdic
is directed because the evidence introduced
by the plaintiff proves affirmatively as a mat
ter of law that he is not entitled to recover
The difference is that in one instance the
plaintiff fails to make out his case; in the
other instance, he proves affirmatively facts
which as a matter of law show that he is not
entitled to recover. Is this such a case? The
case at bar is very similar to Ordway against
Boston & M. R. R., 69 N. H. 429, 45 Atl. 243,
from which we quote: “A judgment upon an
involuntary nonsuit order on the ground that
plaintiff's own evidence conclusively showed
that plaintiff knew of the danger which caus-
ed his injury, and with such knowledge
he assumed the risk therein as a matter of
law, is a judgment on the merits, which is
a bar on another action by the same party
on the same cause." The Supreme Court of
North Carolina in passing upon the first ap-
peal used the following language: "In this
case the plaintiff attempted to alight from
a moving train and was in the very act of
alighting, when there was a sudden jerk of
the train, which might have been expected
under the circumstances, and he was thrown
under the cars and injured. The train at
the time was running with increasing speed,
and the act of alighting from it at such a
time was little, if anything, short of reck-
lessness. It is unfortunate, Indeed, that the
plaintiff was thus injured, but it was due at
least to his own misfortune, and not to any
fault which can be imputed to the defendant
as a direct cause of it. The plaintiff's act,
according to his own version of the facts,
was the proximate cause of the injury. This
seems to us to be well settled as the law of
such a case. By his evidence the plaintiff
shows affirmatively and beyond any dispute
or controversy, if his evidence is to be taken
as true, and it must be so regarded upon a
demurrer to it, that his own negligence was
in law the cause of the injury he sustained,
and the rule laid down in Neal v. Railroad,
supra, 126 N. C. 634, 36 S. E. 117, 49 L. R.
A. 684, and Bessent v. Railroad, 132 N. C.
934, 44 S. E. 648, applies. "Although our de-
cision that the plaintiff's own negligence was
the proximate cause of the injury is in it
self sufficient to sustain the ruling of the
court below, we have discussed the question
of the defendant's negligence, as that of the
plaintiff's negligence could not have arisen
unless there was negligence on the part of the
defendant. It was necessary, therefore, to
determine first whether the defendant had
been negligent in causing the injury to the
plaintiff. Gordon v. Railroad, supra, 132 N.
C. 565, 44 S. E. 25. The ruling of the court

The above then is an adjudication by a court has been held otherwise by our court. Baker of competent jurisdiction that the plaintiff has proven that he has no cause of action. The plaintiff contends that, notwithstanding this, his right is not finally determined or extinguished because of the North Carolina Code as follows: "If an action shall be commenced within the time prescribed therefor and the plaintiff be nonsuited or a judgment therein be reversed on appeal, or be arrested, the plaintiff ** may commence a new action within one year after such nonsuit, reversal or arrest of judgment." It would appear to be the object of the above statute to extend the period of limitations where an action was commenced within the time limit, and, after the time limited by the statute had expired, the plaintiff had been cast in his action by some decision not affecting the merits. But, however this may be, the plaintiff has brought a second action in the courts of North Carolina and been again nonsuited, and we do not think the position is tenable that he can bring an indefinite number of actions and be nonsuited an indefinite number of times upon grounds involving the merits of his cause of action, provided in each instance a new action is brought within one year of the preceding nonsuit.

This, in effect, disposes of all the grounds of appeal. We do not consider it necessary to pass upon the question of whether the defendant in this action is the same corporation as the organization bearing the same name in North Carolina and authorized to do business under the laws of that state. The fact is that the plaintiff cannot maintain his action against this defendant for an act committed by a separate defendant in North Carolina without showing privity between them, and, if the record in this case shows that, then it shows that there is such privity that the judgment rendered upon the same cause of action is res judicata and conclusive of the issue involved in this appeal.

WOODS, J. (concurring). I concur in affirming the judgment of the circuit court.

If it were an open question, I would concur in the opinion that, where the plaintiff proves facts showing that as a matter of law he is not entitled to recover, a judgment of nonsuit on the merits of the cause has the same effect as a judgment on a verdict or other final judgment on the merits, and is a complete defense to another action. This -doctrine is held in some of the states, but it 66 S.E.-13

v. Deliesseline, 4 McCord 372; McEwen v. Mazyck & Bell, 3 Rich. Law, 210; Whaley v. Stevens, 24 S. C. 479. The decisions of the Supreme Court of North Carolina are to the same effect. Tussey v. Owen, 147 N. C. 335, 61 S. E. 180, and cases cited. This seems to be also the view of the Supreme Court of the United States. Homer v. Brown, 16 How. 354, 14 L. Ed. 970; Life Ins. Co. v. Broughton, 109 U. S. 121, 3 Sup. Ct. 99, 27 L. Ed. 878; U. S. v. Parker, 120 U. S. 89, 7 Sup. Ct. 454, 30 L. Ed. 601, 604. The accident happened and the injury was received in the state of North Carolina. The Supreme Court of North Carolina in two actions brought by the plaintiff on the same alleged cause of action has held that the facts adduced by the plaintiff on the trial conclusively showed that he was not entitled to recover and affirmed the judgment of nonsuit. The position that the evidence here was substantially different from that introduced on the trials in North Carolina we do not think is borne out by the record. There are, it is true, slight differences in detail, but this material fact appears in all the evidence, namely, that the plaintiff was engaged in the act of getting off a moving train, and his undertaking to do so was a proximate cause of his injury. The plaintiff's case depends upon the law of North Carolina, and the Supreme Court of that state has held in the plaintiff's own case, and other cases, that such conduct is contributory negligence, and defeats a recovery. The language of Judge Walker speaking for the court is conclusive: "But, even if there was evidence of the defendant's negligence in this case, we do not think there was any error in the ruling of the court below, because the plaintiff, upon his own showing, was guilty of contributory negligence which was the proximate cause of his injury. When he found that the train was in motion and its speed steadily increasing, he should have notified the conductor of his situation, so that the train could be stopped, or he should have waited until it reached the next station before he attempted to get off. His failure to do so, and his attempt to alight from the train which was then running at the rate of three or four miles an hour, was such negligence on his part as defeats his right of recovery."

I do not think it is necessary to construe or decide upon the applicability of the North Carolina statute, providing for a second action to be brought within one year after a judgment of nonsuit; and, in the absence of necessity, the court should refrain from making the attempt.