Considering tbe ground upon which judgment as of nonsuit was entered in Superior Court, these questions arise here for decision: (1) When tbe evidence is taken in tbe light most favorable to plaintiff, is tbe mother, who is a beneficiary of tbe estate of intestate, as a matter of law, guilty of negligence which proximately contributed to tbe injury and death of intestate? (2) If so, may such contributory negligence be imputed to tbe father of intestate, who is also a beneficiary of tbe estate, and bar tbe prosecution of this action ? Botb questions are properly answered in tbe negative.
1. Tbe principle prevails in this State tbat what is negligence is a question of law, and, when tbe facts are admitted or established, tbe court must say whether it does or does not exist. “This rule extends and applies not only to the question of negligent breach of duty, but also to tbe feature of proximate cause.” Hicks v. Mfg. Co., 138 N. C., 319, 50 S. E., 703; Murray v. R. R., 218 N. C., 392, 11 S. E. (2d), 326, and cases cited.
It is proper in negligence cases to sustain a demurrer to tbe evidence and enter judgment as of nonsuit, “when contributory negligence is established by plaintiff’s own evidence.” Smith v. Sink, 211 N. C., 725, 192 S. E., 108, and cases there cited. See, also, Murray v. R. R., supra. But where tbe facts are not admitted, or where more than one inference may reasonably be drawn from tbe evidence, tbe issue must be submitted to tbe jury. Such is tbe situation in the present case.
2. In this State, it is provided by statute, C. S., 160, tbat in an action for wrongful death, “tbe amount recovered ... is not liable to be applied as assets, in tbe payment of debts or legacies, except as to burial expenses of tbe deceased, but shall be disposed of as provided in this chapter for tbe distribution of personal property in case of intestacy.” See Baker v. R. R., 91 N. C., 308; Avery v. Brantley, 191 N. C., 396, *722131 S. E., 721. The statute referred to, C. S., 137, provides tbat: “(6) If, in the lifetime of its father and mother, a child dies intestate, without leaving husband, wife or child, or the issue of a child, its estate shall be equally divided between the father and mother. . . .”
Where the right of action created by statute for wrongful death does not constitute an asset of the estate, but belongs to the beneficiaries designated by the statute as the beneficiaries of the recovery, as is the law in this State, the administrator in bringing the action is pro hac vice their representative and not the representative of the estate. In such cases the prevailing view is to the effect that the negligence of the parent, directly or proximately contributing to the death of a child non sui juris, will bar the recovery in an action by the administrator, at least to the extent that the recovery, if any, would inure to the benefit of the parent so guilty of contributory negligence. Davis v. R. R., 136 N. C., 115, 48 S. E., 951, 1 Anno. Cas., 214. See, also, Harton v. Telephone Co., 141 N. C., 455, 54 S. E., 299; Reid v. Coach Co., 215 N. C., 469, 2 S. E.(2d), 578; Annotations 23 A. L. R., 670; 69 A. L. R., 478, where the authorities are assembled.
In Davis v. R. R., supra, is laid down what is considered the correct principle as follows: “While the negligence of parents, or others in loco parentis, cannot be imputed to a child to support the plea of contributory negligence, when the action is for his benefit, yet, when the action is by the parent, or the parent is the real beneficiary of the action as distributee of the deceased child, the contributory negligence of the parent can be shown in evidence in bar of the action.”
However, the weight of authority and the better view is that the contributory negligence of one parent, even though it bar recovery for his or her benefit, or to the extent of his or her interest in an action by the administrator for the death of a child, will not defeat recovery by or for the benefit of the other parent who is not negligent, but that the amount of the verdict will merely be reduced to the extent of the negligent parent’s share. Annotations 23 A. L. R., 670, IY 690.
Applying these principles to the case in hand, the judgment below is