CENTRAL OF GEORGIA RAILROAD v. Lightsey ( 1988 )

Beasley, Judge.

Central of Georgia Railroad appeals from a judgment entered on a jury verdict awarding Lightsey $196,206.86 on his FELA claim. (Federal Employers’ Liability Act, 45 USCA § 51 et seq.) It enumerates a number of errors, including denial of its pretrial motion to recuse the trial judge and its posttrial motion for new trial.

1. Lightsey, foreman of a track crew, was injured when a pushcart which he was riding on the rails collided with a pickup truck at a crossing. He filed a complaint in 1983 against the railroad.

In January 1985, after having filed several motions concerning which, except for one perfunctory one, Central asked that ruling be delayed until pretrial conference, Central filed a motion to recuse the judge to whom the case had been assigned. The motion contended that the judge was personally biased in favor of plaintiff’s attorneys and against Central, and that the local rules had been circumvented by assigning to this judge all FELA cases in which plaintiff’s attorneys represented the claimants. Plaintiff responded that the motion was untimely and legally insufficient, and the court so ruled.

We have thoroughly reviewed the record and the authorities and conclude that the trial judge erred in not referring to another judge the matter of his possible disqualification under Canon 3 C (1) (a) of the Code of Judicial Conduct. Consequently, as did the Supreme Court in State v. Fleming, 245 Ga. 700, 703 (1) (267 SE2d 207) (1980), we remand this case to the Superior Court of Chatham County for disposition of the motion. It shall be conducted pursuant to the procedure provided in USCR 25.3.

In the event the motion is denied, the judgment entered on the - jury verdict may be reentered and a new appeal taken. In the event the motion is granted, an interlocutory appeal may be sought under OCGA § 5-6-34 (b).

2. The other enumerations of error have been rendered moot at this time, and consequently we decline to rule on them. Fleming, supra at 704 (3).

Judgment reversed and case remanded with direction.

Birdsong, C. J., and Banke, P. J., concur.