(dissenting in part). I respectfully dissent from that portion of the court’s opinion which grants a new trial on the negligence issues in the interest of justice. It is well settled that this court will not exercise this discretion unless it has been convinced that there has been a probable miscarriage of justice, viewing the case as a whole. Mack Trucks, Inc., v. Sunde (1963), 19 Wis. (2d) 129, 138, 119 N. W. (2d) 321, and cases cited therein.
If that part of Professor Easton’s testimony based upon the absence of scuff marks is eliminated entirely, there still remains enough evidence to sustain the verdict. The 57 feet of skid marks laid down by the Dewey car in the west traffic lane parallel to the center line of the highway in my opinion completely discredits the testimony of Kuzel and Dewey.
Dewey testified that he first turned left to avoid hitting the Janz car and then right when he saw that Janz was returning to his own side of the road. He further testified, *575“At the time I started to go into the left lane to avoid the accident, I would say we [Dewey and Janz cars] were about 50 to 60 feet apart.”
Kuzel testified as follows: He was reading a paper at the time and looked up when he heard Dewey scream and saw the other car coming into the east traffic lane. “Almost immediately Mr. Dewey wheeled the car to the left to avoid a collision with this oncoming car. He tried to get out of his way to avoid this collision. At that time, the other driver must have had the same idea and wheeled back into his lane and we met in his lane, in the left-hand lane. That is, left hand for us. When I looked up when Dewey screamed and jerked the car into the opposite lane, I would say the other car was about 15 to 20 yards ahead of us.”
The 57 feet of skid marks in the west traffic lane paralleling the center line are wholly inconsistent with a sudden turning of the Dewey car first to the left and then to the right. They are much more consistent with the premise that in rounding the curve the Dewey car had gotten over the center line into the west traffic lane.
In view of the foregoing, I would apply the rule of Wells v. Dairyland Mut. Ins. Co. (1957), 274 Wis. 505, 518, 80 N. W. (2d) 380, quoted in the majority opinion; refuse to exercise our discretionary power to consider an alleged error not brought to the attention of the trial court by the motions after verdict; and affirm the entire judgment.