dissenting:
I respectfully dissent.
The majority opinion points out the error of the court in failing to instruct the jury upon the legal definition of the terms “invitee” and “licensee” as those terms were *390used in the instructions defining the duties of the defendant. The majority feels, however, that we should not reverse on account of this error since it was not mentioned in the motion for new trial. I cannot agree.
I think the above-mentioned error is so fundamental in this case that this Court ought to notice the said error on its own motion under R.C.P. Colo. 111(f). One of the basic issues of this case was whether the plaintiff was an invitee or a licensee at the time of the accident. She was, of course, an invitee while visiting her son and the serious question in this case is whether, when she failed to use the sidewalk and instead took the path, she left the zone of invitation and became a licensee. The sidewalk was provided by the defendants for the use of the tenants and the tenants’ guests. Had she stayed on the sidewalk, she would have clearly remained an invitee. There was conflicting evidence as to whether the sidewalk was safe for traveling. When the zone of invitation is made unsafe by the owner, then the invitee does not forfeit his status by departing from the zone in a reasonable and prudent manner. See Wooll v. J. S. Shea Co., 214 Cal. 302, 5 P.2d 421. It was the duty of the trial court here, on its own motion in the absence of a request therefor, to instruct the jury on what principles of law it should apply in determining what I consider to be the threshold issue in the case, that is, whether or not plaintiff was a licensee or an invitee. See Maloy v. Griffith, 125 Colo. 85, 240 P.2d 923.
The failure of the trial court to do so, in my view, constituted such fundamental error as to deprive the parties of a fair trial and should, in my opinion, require reversal by this Court.
Mr. Justice Kelley authorizes me to say that he joins in this dissent.