ALLEN, J.
This is an action under section 5425, Revised Statutes 1909, for the death of plaintiff’s husband. The deceased was a railway postal clerk employed on one of defendant’s trains running out of the city of St. Louis, and was killed by the train being derailed within the limits of said city and striking and colliding with a building. The cause was tried before the court and a jury, resulting in a verdict for plaintiff in the sum of $7500, and the defendant appeals to this court.
[538]*538It is -unnecessary to review the evidence, for there is no contention that plaintiff did not make a case for the jury. The assignments of error before us pertain to the admitting in evidence of an ordinance of. the city of St. Louis regulating the speed of trains within its limits, and alleged errors in the giving and refusing of instructions.
1. The objection to the introduction of the ordinance in question was upon the ground that the city could not regulate the running of trains devoted solely to the carrying of United States mail. The evidence disclosed that the train upon which deceased was riding at the time that he met his death was not a “passenger train,” but one carrying mail cars only and devoted exclusively to the carriage of the United States mail. Defendant’s contention is, that the entire subject of the handling and transportation of the mails is one exclusively within the control of Congress, and that the latter cannot be hampered in the regulations designed to accomplish this object by mere police regulations of a city with respect to the operation of trains.
That this assignment of error is not well taken is quite apparent, and we shall not enter upon an extended discussion of the question involved. That the State has the power to make and enforce reasonable regulations designed to secure the safety and comfort of passengers, employees, persons crossing railway tracks, etc., in the exercise of the police power of the State is beyond dispute. [See Cleveland, etc., Ry. Co., v. Illinois, 177 U. S. 516; Houston, etc., R. R. Co., v. Mayes, 201 U. S. l. c. 328.] Local laws of this character are undoubtedly valid as affecting the operation of mail or other trains engaged in interstate commerce when they do not directly conflict with regulations prescribed by Congress respecting the movements of such trains. It may be that Congress has the power to pre[539]*539scribe certain regulations with respect to the speed of mail trains, but if so, it does not appear that Congress has attempted to occupy this field; nor is any authority shown us for the proposition that such regulations by Congress would supersede local laws and regulations of the precise character above mentioned.
In this connection, there is some contention made by appellant that the deceased was not a passenger. And on this point we are referred to the cases of Price v. Railroad, 113 U. S. l. c. 218; Martin v. Railroad, 203 U. S. 284. These cases, however, arose in Pennsylvania and were controlled by a statute of that State and the decisions of the Supreme Court of Pennsylvania thereon holding a mail agent not to be a passenger within the terms of the statute. The Supreme Court of the United States held the statute in question to be valid, but that the application thereof presented no Federal question.
The decisions of the Supreme Court of our State are to the effect that a railway mail clerk is a passenger. [See Magoffin v. Mo. Pac. Ry. Co., 102 Mo. 540, 15 S. W. 76; Mellor v. Mo. Pac. Ry. Co., 105 Mo. 455, 16 S. W. 489.]
II. As to the alleged errors in the giving and refusing of instructions, we need to notice only the instructions pertaining to the measure of damages.
At the request of plaintiff, the court instructed the jury that, if they found for the plaintiff, they should return a verdict in a sum of not less than two thousand dollars and not more than ten thousand dollars, in the discretion of the jury. And that, in arriving at their verdict, the jury might take into consideration all the f acts and circumstances in evidence attending the killing of plaintiff’s husband; any pecuiary loss sustained by plaintiff by reason of the loss of the support of her husband and by reason of having to support a minor child of deceased during its minority.
[540]*540The defendant, among other instructions, requested the court to give the following:
“The jury are further instructed that, if you should find the issues for the plaintiff, you should not allow her any sum as a penalty, in excess of the minimum amount fixed by law in case of injuries which result in the death of a person riding on a train, to-wit, the sum of two thousand dollars.”
This instruction the court refused, and the appellant now insists that its refusal constituted reversible error.
This assignment of error is predicated upon the opinion of the Supreme Court, in banc, in Boyd v. Railroad Co., 249 Mo. 110, 155 S. W. 13, on the second appeal of that case. That opinion had not been rendered when this cause was tried below; and a careful examination thereof convinces us that this assignment of error must now be held to be well taken. In construing the statute, as amended in 1905, the Supreme Court pointedly holds that a recovery thereunder is penal up to the sum of two thousand dollars, and compensatory to the extent that the plaintiff may recover above that sum, saying:
“Upon a full consideration of this case in banc, we are convinced that it was the intention of the General Assembly by the amendment of 1905 to leave the provisions of section 5425, supra, penal in their nature, so far as said section fixes the amount of recovery at not less than $2000, but where a plaintiff, as in this case, seeks to recover under said section a larger sum than $2000, the jury or court in preparing itself to exersise a wise and just discretion should receive evidence of the age, condition of health, and earning capacity of the party killed, and the consequent loss to the plaintiff thereby, together with the facts and circumstances attending the billing, for which damages are sought to be recovered.
[541]*541“In other words, a recovery under section 5425, Revised Statutes 1909, is penal up to the sum of $2000, but the extent to which a plaintiff may recover, if at all, in excess of $2000 under that section, is remedial and compensatory. . . . The eases of Young v. Railroad, 227 Mo. 307, 127 S. W. 19, and Boyd v. Railroad, 236 Mo. 54, 139 S. W. 561, in so far as they are in conflict with the foregoing interpretation of said section 5425, supra, are overruled.”
A review of the earlier cases construing this statute would serve here no useful purpose. Under the Constitution, we are bound by the last controlling decision of the Supreme Court. The last decision of that court, to-wit, the opinion in the Boyd case on its second appeal, very clearly holds that the statute, as now in force, is penal only up to $2000. The court there held an instruction proper which authorized the jury to allow the plaintiff not less than $2000 and not more than $10,000, in the discretion of the jury, and that, in determining the amount of the verdict, the jury might take into consideration the facts constituting negligence on the part of the defendant causing the death and the pecuniary loss occasioned to the plaintiff thereby. No such instruction was offered in the case as was here offered by defendant and refused.
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ALLEN, J.
This is an action under section 5425, Revised Statutes 1909, for the death of plaintiff’s husband. The deceased was a railway postal clerk employed on one of defendant’s trains running out of the city of St. Louis, and was killed by the train being derailed within the limits of said city and striking and colliding with a building. The cause was tried before the court and a jury, resulting in a verdict for plaintiff in the sum of $7500, and the defendant appeals to this court.
[538]*538It is -unnecessary to review the evidence, for there is no contention that plaintiff did not make a case for the jury. The assignments of error before us pertain to the admitting in evidence of an ordinance of. the city of St. Louis regulating the speed of trains within its limits, and alleged errors in the giving and refusing of instructions.
1. The objection to the introduction of the ordinance in question was upon the ground that the city could not regulate the running of trains devoted solely to the carrying of United States mail. The evidence disclosed that the train upon which deceased was riding at the time that he met his death was not a “passenger train,” but one carrying mail cars only and devoted exclusively to the carriage of the United States mail. Defendant’s contention is, that the entire subject of the handling and transportation of the mails is one exclusively within the control of Congress, and that the latter cannot be hampered in the regulations designed to accomplish this object by mere police regulations of a city with respect to the operation of trains.
That this assignment of error is not well taken is quite apparent, and we shall not enter upon an extended discussion of the question involved. That the State has the power to make and enforce reasonable regulations designed to secure the safety and comfort of passengers, employees, persons crossing railway tracks, etc., in the exercise of the police power of the State is beyond dispute. [See Cleveland, etc., Ry. Co., v. Illinois, 177 U. S. 516; Houston, etc., R. R. Co., v. Mayes, 201 U. S. l. c. 328.] Local laws of this character are undoubtedly valid as affecting the operation of mail or other trains engaged in interstate commerce when they do not directly conflict with regulations prescribed by Congress respecting the movements of such trains. It may be that Congress has the power to pre[539]*539scribe certain regulations with respect to the speed of mail trains, but if so, it does not appear that Congress has attempted to occupy this field; nor is any authority shown us for the proposition that such regulations by Congress would supersede local laws and regulations of the precise character above mentioned.
In this connection, there is some contention made by appellant that the deceased was not a passenger. And on this point we are referred to the cases of Price v. Railroad, 113 U. S. l. c. 218; Martin v. Railroad, 203 U. S. 284. These cases, however, arose in Pennsylvania and were controlled by a statute of that State and the decisions of the Supreme Court of Pennsylvania thereon holding a mail agent not to be a passenger within the terms of the statute. The Supreme Court of the United States held the statute in question to be valid, but that the application thereof presented no Federal question.
The decisions of the Supreme Court of our State are to the effect that a railway mail clerk is a passenger. [See Magoffin v. Mo. Pac. Ry. Co., 102 Mo. 540, 15 S. W. 76; Mellor v. Mo. Pac. Ry. Co., 105 Mo. 455, 16 S. W. 489.]
II. As to the alleged errors in the giving and refusing of instructions, we need to notice only the instructions pertaining to the measure of damages.
At the request of plaintiff, the court instructed the jury that, if they found for the plaintiff, they should return a verdict in a sum of not less than two thousand dollars and not more than ten thousand dollars, in the discretion of the jury. And that, in arriving at their verdict, the jury might take into consideration all the f acts and circumstances in evidence attending the killing of plaintiff’s husband; any pecuiary loss sustained by plaintiff by reason of the loss of the support of her husband and by reason of having to support a minor child of deceased during its minority.
[540]*540The defendant, among other instructions, requested the court to give the following:
“The jury are further instructed that, if you should find the issues for the plaintiff, you should not allow her any sum as a penalty, in excess of the minimum amount fixed by law in case of injuries which result in the death of a person riding on a train, to-wit, the sum of two thousand dollars.”
This instruction the court refused, and the appellant now insists that its refusal constituted reversible error.
This assignment of error is predicated upon the opinion of the Supreme Court, in banc, in Boyd v. Railroad Co., 249 Mo. 110, 155 S. W. 13, on the second appeal of that case. That opinion had not been rendered when this cause was tried below; and a careful examination thereof convinces us that this assignment of error must now be held to be well taken. In construing the statute, as amended in 1905, the Supreme Court pointedly holds that a recovery thereunder is penal up to the sum of two thousand dollars, and compensatory to the extent that the plaintiff may recover above that sum, saying:
“Upon a full consideration of this case in banc, we are convinced that it was the intention of the General Assembly by the amendment of 1905 to leave the provisions of section 5425, supra, penal in their nature, so far as said section fixes the amount of recovery at not less than $2000, but where a plaintiff, as in this case, seeks to recover under said section a larger sum than $2000, the jury or court in preparing itself to exersise a wise and just discretion should receive evidence of the age, condition of health, and earning capacity of the party killed, and the consequent loss to the plaintiff thereby, together with the facts and circumstances attending the billing, for which damages are sought to be recovered.
[541]*541“In other words, a recovery under section 5425, Revised Statutes 1909, is penal up to the sum of $2000, but the extent to which a plaintiff may recover, if at all, in excess of $2000 under that section, is remedial and compensatory. . . . The eases of Young v. Railroad, 227 Mo. 307, 127 S. W. 19, and Boyd v. Railroad, 236 Mo. 54, 139 S. W. 561, in so far as they are in conflict with the foregoing interpretation of said section 5425, supra, are overruled.”
A review of the earlier cases construing this statute would serve here no useful purpose. Under the Constitution, we are bound by the last controlling decision of the Supreme Court. The last decision of that court, to-wit, the opinion in the Boyd case on its second appeal, very clearly holds that the statute, as now in force, is penal only up to $2000. The court there held an instruction proper which authorized the jury to allow the plaintiff not less than $2000 and not more than $10,000, in the discretion of the jury, and that, in determining the amount of the verdict, the jury might take into consideration the facts constituting negligence on the part of the defendant causing the death and the pecuniary loss occasioned to the plaintiff thereby. No such instruction was offered in the case as was here offered by defendant and refused. Nevertheless, in view of the construction placed upon the act by the Supreme Court, it would appear that the defendant here was entitled to have the instruction in question given.
Learned counsel for respondent urge that this refused instruction, as it stands, would be misleading to the jury, and that the trial court committed no error in refusing it. This may well be true if the instruction stood alone; but the court instructed the jury that if they found for plaintiff they should return a verdict in a sum not less than $2000' and not more than $10,000 in the discretion of the jury, telling the jury what they might take into consideration in arriving at the amount [542]*542thereof. Defendant, by its refused instruction above mentioned, sought to limit the effect of plaintiff’s said instruction by having the jury told that not more than $2000 could be assessed as a penalty for the killing. Under the Boyd case, supra, it would appear that the defendant was entitled to have the jury so instructed. It may be that such instruction would have had no effect whatsoever upon the jury in determining the amount of its verdict. This is a matter of conjecture. Defendant’s right to have the jury so instructed, at its request, would seem to inevitably follow from the ruling of the Supreme Court above referred to.. That ruling is conclusive upon us, and it is not for us to indicate what our views may be as to the'propriety thereof.
Learned counsel for the respondent also insist that the appellant ought not now to be heard to complain of the action of the trial court in refusing the instruction under consideration, for the reason that appellant in its motion for a new trial nowhere complained of the amount of the verdict as being excessive. Or, in other words, respondent’s counsel sa3r that appellant, by failing to complain in its motion for a new trial that the verdict was excessive, admitted that the verdict, however reached, was proper in amount, and that, no matter what elements were considered by the jury in making up the same, the verdict as found is conceded by appellant to be proper in amount, and cannot be here attacked.
It is true that the appellant, in its motion for a new trial, did not assail the verdict as being excessive. However, appellant did move the court to set aside the verdict and judgment and to grant appellant a new trial for ■ error, among other things, in refusing this particular instruction, the refusal of which is now urged upon us as constituting reversible error. We are pointed to no authority for the proposition that an appellant, who has properly saved his exceptions [543]*543to the giving or refusing of instructions on the measure of damages, must, in order to have the ruling of the trial court thereupon reviewed, go further, and complain below that the verdict induced by the giving or refusing of such instructions was excessive in amount; It is true, as respondent says, that the only effect of the refusal of this instruction which could be prejudicial to the appellant would be to enhance the amount of the verdict; and appellant has not, in terms, complained that the. verdict is too large. However, appellant did complain of the action of the trial court in giving and refusing instructions on the measure of damages, which action must be regarded as having induced and influenced the amount of plaintiff’s recovery, and which the appellant here assigns as error; It would therefore clearly appear that the action of the trial court in the premises is properly before us for review.
Aside from the refusal of defendant’s instruction above set out, we perceive no error in the record. In fact, the ease was well tried throughout below, in view of the fact that the last decision of the Supreme Court above referred to had not then been announced. That decision, however, must be regarded as the law of this case; and under it we feel compelled to hold that the trial court erred in refusing defendant’s instruction above quoted. The judgment must, therefore, be reversed and the cause remanded. It is so ordered.
Nortoni, J., concurs. Reynolds, P. J., dissents in a separate opinion, and deeming the decision herein contrary to the decision of the Supreme Court in Boyd v. Mo. Pac. Ey. Co., 249 Mo. 110,155 S. W. 13, asks that the cause be certified to the Supreme Court for final determination; which is accordingly done.