c29:No. 80-3246

WEICK, Circuit Judge,
dissenting:
This is a diversity case governed entirely by the law of the State of Ohio. The plaintiffs sued a city policeman and the City of Gallipolis, a municipal corporation, for substantial damages for personal injuries, property damages and wrongful death, arising out of a collision with a police car, which with siren and lights engaged was pursuing another automobile which was speeding at a high rate of speed in the downtown business section of the City in the early morning and going through red lights at street intersections, in violation of the statutes of Ohio and municipal ordinances, and the police car collided with plaintiff’s automobile when it came out from behind another vehicle.
The police officer and the City defended on the ground of the exemption from liability provided by Ohio Revised Code § 701.02, which provides “[Pjolicemen shall not be personally liable for damages for injury or loss to persons or property and for death caused while engaged in the operation of a motor vehicle while responding to an emergency call.” The defense also alleged contributory negligence of the plaintiffs in not abiding by the applicable Ohio statute.
The trial judge submitted the factual issues to the jury which returned a verdict in favor of the defendants.
On appeal, the majority has reversed principally for an alleged erroneous instruction given by the trial court to the jury on the subject of what constituted an emergency call to duty. The alleged erroneous instruction was taken by District Judge Kinneary word for word from Agnew v. Porter, 18 Ohio App.2d 128, 133, 247 N.E.2d 487 (1969), aff’d, 23 Ohio St.2d 18, 260 N.E.2d 830 (1970). This was clearly “such a dangerous situation that it would excuse the defendant from being liable for his negligent conduct.” Lingo v. Hoekstra, 176 Ohio St. 417, 421, 200 N.E.2d 325 (1964).
The decision of a state court of appeals alone on an issue of state law is binding on a federal court in a diversity case and it should be followed particularly where the appellate decision as here was affirmed by the Supreme Court of the State.
Evidentiary issues decided by the district court were not reversible as they did not involve abuse of discretion on the part of the trial judge.
Federalism requires federal courts to follow state law which was not done here.
I would affirm the judgment of the district court.

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