The complaint consists of four counts. The first three are framed under the Employer’s Liability Act. — Code, § 1749,- — and the fourth under the common law. There exists no reason why such causes of action though not consistent with each other, may not be united in the same complaint, in different counts.
That the first three are sufficient as against the demurrers to them, has been too often in principle decided to require further consideration. — A. G. S. R. R. Co. v. Davis, 119 Ala. 572; B. C. M. Co. v. Parker, 134 Ala. 293, and other cases cited in brief for appellee.
The fourth count avers that plaintiff was in the mine “by the invitation of the defendant on business with defendant connected with the oprafion of said mine, though plaintiff was not in the sendee or employment of defendant,” and sets out the negligence of which complaint. is made, which caused the injury to plaintiff by defendant.
“All the authorities agree that it is; incumbent on the owner of premises, upon which persons come by invitation, express or implied, to maintain such premises in a reasonably safe condition for the contemplated uses thereof, and the purpose for which the invitation was extended,” and the question whether the plaintiff was on defendant’s premises by invitation, express or implied is in general one for the jury. The burden of showing that plaintiff entered by invitation is on him. *16121 Am. & Eng. Encyc. of Law (2d ed.) 471, and authorities there cited; West v. Thomas, 97 Ala. 622.
The owner is under no duty to keep the prelnises safe as to a mere, trespasser who, “ordinarily assumes all risk of danger, and who, in order to recover, must show that the injury was wantonly inflicted, or that the owner, being present, might ha.ve prevented, the injury by the exercise of reasonable care after discovering the danger,” “A person,” says Judge Cooley, who gives such an imitation, “especially when he gives it wholly or in part for his own interest, and thereby invites others to come upon his premises, assumes to all such who accept the invitation, the duty of warning them of any danger in coming, which he knows- of, or ought to know of, and of which they are not aware.” — Powers v. Harlow, 53 Mich. 507, Samuelson v. C. I. Min. Co. 49 Mich. 170, and numerous citations there cited; Bennett v. Railroad, 102 U. S. 577.
“To trespassers or idlers, or persons visiting the premise's merely for their individual benefit, or from curiosity, the defendant owes no duty other than, that no wilful or wanton injury should be done. To create a duty to the. plaintiff, he must have sustained a relation to the business; or to the defendant, equivalent to an invitation or inducement to come on the lot (premises). The duty to keep the lot (or premises) free from defect likely to produce injury only extends to persons sustaining such relation.” — Campbedl v. Lunsford, 83 Ala. 515; M. & B. R. Co. v. Thompson, 77 Ala. 448.
As to whether the plaintiff was in the employment of defendant, he testified that, “on the 30th day of November, 1900, I wais at the mines operated' by the Sloss Iron & Steel Company, at Blossburg, where I had secured employment in the mine. I had secured a job from the foreman, previously. My business in the mine at that time, was to select a place that he had promised me to work, which I was doing under the instruction of the foreman. I had a conversation prior to that time with him. I was living there at the time of the injury', in Mr. Watt’s house, which lie rented me. I had moved my family there, in order to go- to work. According to the *162mine foreman’s instructions, 1 went, (in the mine) to bunt me a place,” etc. He further testified in substance, that Mr. Elwood, the foreman, to whom he was introduced, said he would give him a job, but that he did not go to work that day, because his family was not there; that he went and got liisi family and returned in about a week, and told the foreman, that he was ready to go to work, and he replied: “When you get ready, your place is ready. * * I will hold your place for you;” •that the foreman did not designate any particular room for him to work in; that he looked for the foreman the day he was ready; to go to work, and was told he was in the mine, and he went in to look for him, to have his room pointed out.; that in the mine there were a. number of rooans vacant, and it was the rule with the foreman to say, “you can look at1 them and select your room.”
It was also; shown by Kilpatrick, a witness for the. plaintiff, who had been in the mining business twenty years, that he was acquainted with the mining boss of this mine at the time, whose name was Sam Elwood, and he was the one who employed the men to work in these mines; that when he employed miners it was customary and usual to let them go in and select their rooms.
Woodson testified, that the miners secured jobs by going to the bank boss and asking him for them, who would tell them that they could get. jobs, and that they could go in the niine and hunt for a place or room, etc.
The defendant’s evidence tended to show, that before plaintiff was injured, he had not been employed by defendant, and that he went in the mines voluntarily and without invitation. The evidence for plaintiff alsoi tended to show, that the defects complained of in the machinery existed, and that defendant’s superintendent knew of such defects.
The questions for review, other than such as have been considered, arise on charges asked for the defendant and refused. We consider only the charges refused, for the refusal of which, errors are insisted on.
Refused charge one, was the general charge in favor of the defendant. The 2d, was the same charge as to the 4th count, and the ,7th was a like charge on the 1st *163count. These charges were each properly refused. The plaintiff had a right to recover on the 1st count, if he proved the allegations, or failing, on the 4th, if he proved its averments. There was evidence by the plaintiff, tending to- show, the plaintiff’s right of recovery under the 1st count, and that for defendant, tended to show that plaintiff was not an employe of the company at the time he received his alleged injury and had no right of action on that count. The general charge, therefore, could not have been given against the plaintiff on the whole complaint, nor on count. 1. If the jury should have found, under proper instructions, that the plaintiff ivas not an employe when he was injured, and, therefore, could not recover on the first count, but that he ivas in the mine by invitation of defendant, and its other averments were proved, it was open to them to find for him on the 4th count. But, the evidence as to the averments of this count was, also, in conflict, and the general charge as requested by defendant as to- it, was properly refused.
The 6th charge instructs a. finding for defendant, unless the jury believe from the evidence that the company knew of the defect in the tram cars, if such defect existed. It ignores the exercise of reasonable care to have ascertained the defect, the law being that one inviting another on his premises on his own business, owes the duty to the one so invited, of exercising reasonable care for his safety. The 8th, 9th and 10th cliar-ges are subject to the same vice as the1 6th., Moreover, it appears, that the court, too favorably to defendant, gave charges 11 and 12, requested by it, containing substantially the same instructions as requested in said! charges 8, 9 and 10; and if there was any error in the refusal to give said charges, it was error without injury.
From the evidence in the case, it does not appear that the judgment of the court in overruling the motion for a new trial was plainly erroneous.
Affirmed.