Judge, dissenting.
I respectfully file this dissent because I do not believe the law of evidence requires the witness in this case to offer an expert opinion on a survey he prepared in order to relieve a hearsay or relevancy attack. Even if hearsay objections about survey results can only be cured by merging that data with other background data as the basis of an expert’s opinion, the plaintiffs cross examination of the defendant’s witness did just that.
Under Calderone v. St. Joseph Light & Power Co., 557 S.W.2d 658, 665 (Mo.App.1977), the voluntary exposure to a known risk bars a recovery to a plaintiff. Here, the survey questions were prepared by the witness, Pflaum, along with a psychologist and an engineer to show a known risk of danger operating power machinery around power lines. Within the area served by the defendant, of 1010 farmer-customers who operated power machinery on their farms where power lines crossed or ran along boundary lines, 350 were randomly interviewed. In this case where lack of notice and knowledge of the persons injured or killed were issues at trial, the survey sought farmers’ awareness of the dangers of power lines, and their activities based on their awareness. Pflaum examined the answers and found approximately 99% were aware of the dangers involved in operating power equipment near and around power lines. One hundred of the interviewees were called back and it was discovered that approximately 97% had been aware of the dangers for four or more years. The survey called for yes or no answers regarding personal awareness and activities. The questions were simple and easily understood by lay persons, so the survey results did not call for an expert opinion. There was extensive cross-examination of the witness on the preparation and methods used in administering the survey.
Liberty Financial Management Corp. v. Beneficial Data Processing Corp., 670 S.W.2d 40 (Mo.App.1984), relied upon by the *9majority, was a suit for breach of contract and misrepresentation by a company which hired the defendant to help set up a new computer system. The plaintiff received a verdict of $1,712,276, but the appeals court reversed on several grounds: 1) because the paragraph in the contract dealing with liability was withdrawn from the jury’s consideration, Id. at 50; and 2) because admission in evidence of the plaintiff’s parent corporation was deemed irrelevant. Id. at 52-3. The survey involved in this case had the purpose of determining how much extra time the plaintiff’s employees spent on computer problems created by the defendant. As such, many employees who worked prior to and after the defendant’s program failed, were interviewed. The witness analyzed the answers to arrive at a conclusion of how much employee time loss resulted from the defendant’s system. Regarding defendant’s point that the survey information was hearsay, the court noted this matter would “arise on retrial,” the matter was then discussed. Id. at 53-55. The Liberty court said hearsay objections did not rule out admissibility of surveys where they were scientifically designed by one with extensive experience in poll-taking. The sample was representative and neither the interviewers nor the interviewees knew, nor had any interest in the outcome. The court also noted the inability to cross-examine. Part of the hearsay rule is diluted when the element of trustworthiness of the declaration is otherwise established. Id. at 54. The court noted, “Given the verity that surveys are accorded in everyday life, we see no reason to exclude them from consideration ...” Id. at 55. The offering witness in Liberty testified regarding the care in drafting the questions, the methodology in taking the survey, and its reliability, “were minutely described by Wynne [the witness] and were targets of cross-examination and fair subjects for argument, and no error was committed.” Id.; State v. McFall, 737 S.W.2d 748, 755 (Mo.App.1987). The facts here differ from cases where the trial court’s discretion was not overturned and the survey was not admitted because all the questions could not be recalled or, whether the same questions were asked of all the respondents. See e.g., Dummit v. Burlington N.R.R. Co., 789 S.W.2d 136, 138 (Mo.App.1990).
In my opinion, Liberty does not stand for the proposition the offeror of the survey must express an opinion on the survey for it ⅜0 be admitted into evidence. In the case at bar, the survey answers were self-explanatory, and having been properly established as being designed and conducted correctly, this made the results no less admissible just because the offeror was not asked to express an opinion on the results. The result reached here penalizes the party offering the survey, because the survey called for devising questions requiring straight-forward answers based on personal knowledge and activity— answers which required no real evaluation, the results spoke for themselves.
If the law does indeed require the survey to be part of the background for an expert to formulate an opinion, then the plaintiff did just that on cross examination:
Q [counsel for plaintiffs/appellants]: And the fact that the 350 people that you talked to and the results that you’ve put together in these various pie charts, that does not indicate, it doesn’t mean that with this knowledge somebody still in the exercise of ordinary care could have an accident around a hazardous location?
A. [Pflaum]: No, it says they’re aware of hazards and they are careful around them; that’s all it says.
Q. Using your statistical expertise, how likely would it have been for three experienced farmers in Atchison-Holt County to have been operating a grain auger on a particular piece of land up in that area and they would not have had knowledge of the items that you have put into that chart?
A. I think it’s the numbers there. It’s about three in 10,000.
Q. What’s the statistical probability of those three people being there that day and not having any knowledge about these things you’ve asked about?
A. Virtually zero.
The survey information covered issues in the case — knowledge as to what was an unknown risk and whether additional notice *10was required. Regarding their knowledge and activity of using power equipment around hanging power lines, 350 out of 1010 farmers in the area gave straight-forward answers.
The trial judge did not commit an abuse of his discretion in admitting the survey. I would affirm the judgment.