Opinion by
On November 27,1945, at about 4:30 P.M. a collision occurred between an automobile and a truck on Pennsylvania State Highway No. 259 in Westmoreland County resulting in the deаth of Lloyd Bills, the driver of the automobile. That collision' gave rise to the cross actions with which we are here concerned between Henry *209 Zitterbаrt, driver and owner of the truck, and Viola Bills, Administratrix of the estate of Lloyd Bills. The two actions were tried together and resulted in a verdict for Viola Bills in the sum of $7,486.50 in thе suit in which she was plaintiff, and a verdict against Zitterbart in the suit in which he was plaintiff. After motions for judgment n. o. v. and new trial were denied, judgments were entered on the verdicts and Zitterbart brought these appeals.
At the place of the accident, Route 259 is a macadam road, fifteen feet wide, running north and south and ascending sharply to the north. On each side of the road is a berm approximately three feet wide. Bills was driving his automobile in a northerly direction upgrade, while Zitterbart was driving his truck south down the hill and around a curve to his left. Just after rounding that curve, his truck came in contact with Bills’ automobile completely demolishing the left side of it and killing Bills almost instantly. Each vehicle careened off its own right side of the road. The autompbile came to rest with its left wheels in a ditch and its right wheels against a bank. The truck ran 108 feet further down the road and plunged over a steep embankment. These facts were undisputed. In addition, five witnesses for appellee testified that the tracks of Bills’ car were visible in the berm on his right for a distance of 115 feet to the rear of where his cаr stopped.
In support of his motion for judgment n. o. v., appellant contends that appellee proved nothing more than that an accidеnt occurred. It is unquestionably true that the mere happening of an accident does not prove that one of the parties was negligent:
Martin v. Marateck,
From the undisputed facts it is obvious that the accident would not have happened if each vehicle had been on its proper side of the road. The road Avas amply wide enough for truck and car to pass. In fact, at the trial both parties proceeded solеly on the theory that the other had crossed the center line. Appellee’s evidence, Avhich Ave must accept in considering the motion for judgment n. o. v., shows that the vehicles came to rest 108 feet apart. From that, it is reasonable to infer that the accident occurred somewhere Avithin thаt distance. Appellee further shoAved that the right wheel tracks from Bills’ car Avere visible in the berm for a distance of 115 feet indicating that he Avas as far оver on his own side of the road as Avas possible for him to be immediately prior to the accident. In View of this evidence appellant must have bеen driving well on his left of the center line. Since there is nothing in the record to explain appellant’s presence on the Avrong side of the roаd, appellee met the burden of proving her case by circumstantial evidence.
It is true that Royal Ferry, who was riding in appellant’s truck and was the only eye-witness to the happening, testified that Bills had crossed the center line of the road. This Avas a contradiction of the circumstantial *211 evidence produced by appellee. But this contradictory testimony was entirely for the jury. Merely because Ferry saw the accident does not compel the jury to accept his testimony rather than that of witnesses testifying to conditions existing after the accident. The credibility of witnesses is always for the jury.
Appellant urges that the trial judge erred in treating appellee’s suit as a survival action under the Act of July 2, 1937, P. L. 2755, instead of as a wrongful death action under the Act of April 15, 1851, P. L. 669, §19, and as a consequence applied the wrong measure of damages. While the Complaint, as counsel for appellee readily concedes, is not artistically drawn, it contains all of the elements necessary for a survival action. The names of all persons entitled to recover are not included as required in a wrongful death action under Rule 2204 of the Rules of Civil Procedure. Damages for the destruction of thе automobile were claimed in the Complaint, an item recoverable only in a survival action, and evidence was admitted on that subject without оbjection. That appellant fully understood the nature of the action is made crystal clear by two statements of his own counsel during the course оf the trial in which he said categorically that it was an action under the Survival Act of 1937. Having been fully aware of the cause of action set forth in the Cоmplaint, and making no objections either before or during the trial, he may not now be heard to complain that he was misled by the manner in which the Complaint was drawn.
Appellant also questions the ruling of the trial judge which declared him incompetent under the “dead man’s rule”
1
to testify to events occurring prior to the death of Bills. It is appellant’s contention that if this is a wrongful death action he was fully competent, and in the alternative, if it was a survival action he was rendered
*212
competent under the Act of June 11, 1891, P. L. 287
2
when one Mrs. Woods testified for appellee that she “heard the noise of this truck coming fast down this hill”. Since this is a survival action we nеed here consider only the latter half of this argument. For this Court to determine the competency of a witness under the Act of 1891, the record must contain an offer of testimony showing what was proposed to be proved by the witness whose competency was questioned:
Krumrine v. Grenoble,
Appellant’s last objection is to the refusal of certain points fоr charge by the trial judge, and the qualification of others. We have read the charge thoroughly and are convinced that it fully sets forth the law governing this сase. Those points which were qualified were properly qualified to prevent the jury from being misled and those which were rejected were not applicable under the evidence produced.
A careful study of the entire record reveals that the verdicts of the jury were justified by the evidence and that judgments were properly entered on those verdicts.
Judgments affirmed.
Notes
Act of May 23, 1887, P. L. 158.
Section 1 of that Act provides, inter alia: “Although a party . . . may be dead . . . neverthеless any surviving or remaining party . . . whose interest is adverse . . . shall be a competent witness to any relevant matter,' although it may have occurred before the death of said party ... if and only if such relevant matter occurred between himself and another person who . . . does so testify upon the trial, against such surviving or remaining party ... or if such relevant matter occurred in the presence or hearing of such other living or competent person.”