## Facts

- Virginia M. Boller, as administratrix, brought a wrongful death action for the death of her husband, Henry Boller, who was killed in an automobile collision while driving with a female passenger.
- Defendants denied liability and alleged Henry’s contributory negligence barred recovery.
- On direct examination, Virginia testified that her marriage to Henry was happy.
- On cross-examination, defense counsel asked whether she knew Henry was having an affair with the female passenger.
- The trial court immediately ruled the question improper as beyond the scope of direct examination, struck it, and instructed the jury to disregard it.
- The jury returned a verdict for defendants based on Henry’s contributory negligence, and the complaint was dismissed.
- After verdict, a juror affidavit suggested the improper question may have influenced jurors by implying an improper relationship.
- Plaintiff sought a new trial based on prejudice from the improper question and also challenged the refusal of a requested instruction asserting that speeding on an arterial highway forfeits right-of-way.

## Issues

1. Whether the improper cross-examination question, though struck and followed by a curative instruction, so prejudiced the jury that plaintiff was denied a fair trial requiring a new trial.
2. Whether the trial court erred in refusing to instruct that a driver on an arterial highway who violates speed regulations forfeits statutory right-of-way.

## Decision

- The Wisconsin Supreme Court affirmed the judgment for defendants.
- The struck question and curative instruction did not warrant a new trial because the trial court promptly corrected the impropriety, the verdict was supported by substantial evidence of contributory negligence, and the juror affidavit was an improper attempt to impeach the verdict by probing jurors’ mental processes.
- The trial court properly refused the requested forfeiture-of-right-of-way instruction because excessive speed does not eliminate a favored driver’s right-of-way, though it may constitute negligence.

## Legal Principles

- A new trial based on improper questioning or counsel conduct requires a showing that the misconduct materially affected substantial rights or produced a verdict driven by prejudice rather than the evidence.
- When a trial court promptly sustains an objection, strikes an improper question, and instructs the jury to disregard it, reviewing courts generally presume the jury followed the instruction absent strong, admissible proof to the contrary.
- Post-verdict juror affidavits are not a proper basis to overturn a verdict when they primarily describe the effect of trial events on jurors’ reasoning or deliberations rather than objective extraneous misconduct.
- In Wisconsin traffic negligence law, speeding on an arterial highway does not cause a favored driver to forfeit statutory right-of-way; speed may still be considered as an element of negligence.

## Conclusion

The court held that a single improper insinuating question, promptly struck with a clear instruction to disregard, did not deprive the plaintiff of a fair trial where the verdict was supported by ample evidence, and it reaffirmed that unlawful speed on an arterial highway does not forfeit right-of-way even though it may support a finding of negligence.


Boller v. Cofrances, 42 Wis. 2d 170, 166 N.W.2d 129 (Wis. 1969)