(after stating the facts). — We are compelled to reverse the judgment in this case. The instruction as to the measure of damages is erroneous. There was no evidence of any expense incurred or paid out by plaintiff in the employment of others to assist him in his business while suffering from his injuries. There is no evidence of amount paid for medicines or medical attention. There is no evidence of damage by loss of business.

The second instruction, in so far as founded on “The Vigilant Watch” ordinance, should not have been given. The count sounding on that was abandoned. The ordinance is not mentioned in the count on which the case went to the jury. While our courts have held that this ordinance is merely declaratory of the common law, this ruling has always been made in cases in which the ordinance Avas pleaded. In this second instruction the ordinance is distinctly embodied. Septowski v. Railroad, 102 Mo. App. 110, was a case before a justice of the peace, where no pleadings are required. In all cases from Rapp v. Transit Co., 190 Mo. 144, to White v. Railroad, 202 Mo. 539, the ordinance was pleaded in the count on which the case went to the jury. The ordinance given in evidence in this case, was before the jury; they were instructed under it, and yet the count sounding on it had been abandoned. We think this was error to the prejudice of the defendant.

Counsel for respondent move to dismiss the appeal for failure to file the abstract with the clerk of this court at least thirty days before the cause was here *714set for argument, and he invokes rule 12 of our court% Rule 12, as amended July 20, 1909, does not take effect until January 1, 1910 (see 135 Mo. App. XII). Rule 23 of our former rules is in force as to all cases on the October, November and December, 1909, docket. This case was on the October, 1909, docket. Under rule 15 of the rules governing this case (see 134 Mo. App. X) failure to comply with rule 15 is penalized at discretion of the court, by dismissal or continuance and resetting of the cause. We decline to dismiss the appeal, as we consider it meritorious, and we hardly suppose counsel for respondent desires that it be continued or reset. At least he has not asked that and has not only filed full brief and elaborate and careful argument, but argued the case orally when it was reached on the docket. The motion to dismiss the appeal is overruled and .the judgment of the circuit court is reversed and the cause remanded.