Sinha, J.

1. This is a defendants appeal against the judgment and decree of the First Additional Subordinate Judge of Patna affirming the decree for compensation for damages passed against the appellant.

2. The plaintiffs case is that they are proprietors of a general merchants shop known as S. Bashiruddin and Sons in Murdapur, Patna, and that the Imperial Tobacco Company Ltd. of Muzarfarpur booked a consignment of four cases of cigarettes weighing 5 maunds 13 seers from Muzaffarpur to Mahendru Ghat at Patna as per invoice No. 46 dated the 10th of July, 1945, at railway risk. Another consignment of cigarettes weighing 1 maund 10 seers was booked by the said company at Muzaffarpur to Mahendru Ghat as per invoice No. 73 dated 6-8-1945) at railway risk. In both the cases the railway receipts were endorsed in favour of the plaintiffs. It appears that the goods under invoice No. 46 arrived at Mahendru Ghat on 14-7-1945, and when the plaintiffs went to take delivery of it on 26-7-1945, they found the goods damaged and they wanted open delivery which was refused. On 23-8-1945, the plaintiffs wrote a letter to the Traffic Manager requesting for open delivery. On 27-9-1945, the Traf