dissenting. Thompson’s affidavit, if believed, establishes a situation which could give rise to a finding of violation of the safety standard pertaining to guarding. However, there was other evidence before the Industrial Commission that refuted Thompson’s affidavit. Scott, the foreman, stated that the power press was equipped with a double sweep guard which was in proper working order and that, after the accident, the press was checked and no defects could be found. Scott further stated that he does not know what could have happened to cause the accident. The maintenance foreman of Aspro investigated the accident and found no evidence of malfunction which could have caused the accident and found that the sweep guards were operating properly. Scott also told the Industrial Commission investigator that, if there had been a failure of the sweep guards, it could not have been a “one time thing” as they would remain defective until mechanically fixed.
It was a factual determination within the purview of the Industrial Commission’s discretion as to whether Aspro was on notice of defects in the operation of the power press prior to assigning Carlton to work on the press. It was also a factual question as to whether the sweep guards or the press malfunctioned any time other than the one time when Carlton was injured. In this regard, the commission did not abuse its discretion.
Accordingly, I would affirm the judgment of the court of appeals.