delivered the opinion of the Cotirt:

The first and second assignments of error may be considered together, as they relate to the refusal of the court to submit to the jury the question whether Nubel shipped the trunk, and, if so, Avhether he was the authorized agent of Miss Adams. The only testimony in the record, in which Mr. Nubel is even mentioned, is the testimony of M. Grace Hive that she thought the trunk was sent by Mr. Nubel, but did not ¡enow. Who Mr. Nubel was, and what his relationship to the parties was, does not even appear. It does appear, as previously stated, that “no evidence was offered by either party tending to show that Mr. Nubel had been authorized to attend to the shipping of the trunk, nor that he had shipped it, nor that he was the agent of plaintiff’s intestate.” It also appears that “there was no evidence tending to show that Nubel had delivered the trunk to the defendant.” In view of these concessions, it is difficult for us to perceive upon what theory the defendant framed these two instructions to the jury. It is the jury’s function to pass upon the weight of evidence introduced, and not to speculate upon evidence that might have been introduced. Certainly a court would be derelict in its duty should it submit a question to the jury in a case in which neither party had offered any evidence in respect to such question. The action of the court in refusing to submit these questions to the jury was clearly correct.

The third and last assignment of error involves a misapprehension of the ruling of the court. It states that the court erred “in charging that there was no evidence that the plaintiff’s intestate received said shipping receipt, and that the only question for the jury was the reasonable value of the trunk and its contents.” The court’s charge, taken as a whole, merely advised the jury that it would have been competent for the defendant to have limited its common-law liability by notifying the plaintiff or her agent of its intention so to do “before the acceptance of *256the article” by the defendant. This statement of the law by the •court was unquestionably correct. The court then instructed the jury that there was no evidence that this receipt or bill of lading was received by the shipper, that is, brought to her attention before the trunk had been accepted by the company, and that therefore she was not bound by its terms. In this the court was also correct. It is unnecessary to devote any time to a discussion of the question whether common carriers may, within certain limits, abridge their common-law liability, for that question has long since been settled. It is also well settled that “the burden of proof lies on the carrier, and nothing short of an express stipulation, by parol or in writing, should be permitted to discharge him from duties which the law has annexed to his employment. The exemption from these duties should not depend upon implication or inference, founded on doubtful and conflicting evidence, but should be specific and certain, leaving no room for controversy between the parties.” New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 383, 12 L. ed. 482. In the. case of Cau v. Texas & P. R. Co. 194 U. S. 431, 48 L. ed 1056, 24 Sup. Ct. Rep. 663, Mr. Justice McKenna, speaking for the court, said: “Primarily the carrier’s responsibility is that expressed in the common law, and the shipper may insist upon the responsibility. Rut he may consent to a limitation of it, and this is the ‘option and opportunity’ which is offered to him. What other can be necessary? There can be no limitation of liability without the assent of the shipper. (New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 344, 12 L. ed. 465), and there can.be no stipulation for any exemption by a carrier which is not just and reasonable in the eye of the law (New York C. R. Co. v. Lockwood, 17 Wall. 357, 21 L. ed. 627; Bank of Kentucky v. Adams Exp. Co. 93 U. S. 114, 23 L. ed. 872).”

In the instant case Miss Adams had left Washington before her trunk was shipped. Her friend went to the office of the express company, and requested them to send for the trunk. There is no evidence that any inquiry was made of her concerning the value of the contents of the trunk, and the testimony *257of tbe witness Randolph, who went for the trank, negatives such a conclusion, for he states that he filled in the blanks in the receipt or bill of lading when he went for the trunk; that he did not ask the value; that “more than likely he gave the receipt to one of the ladies” at the hotel; and that immediately thereafter he delivered the trunk to the company’s branch office on F street. It conclusively appears, therefore, that Miss Adams could not have known anything about this attempt of the company, through its agent Randolph, to limit its common-law liability for the safe delivery of her trank and its contents, until a time subsequent to the receipt and loss of the trunk by the company. Under this evidence it is impossible to say that the shipper assented to a limitation of the carrier’s liability, and the action of the learned judge below, in so charging the jfiry, was correct.

In the case of Graves v. Adams Exp. Co. 176 Mass. 280, 57 N. E. 462, relied upon by appellant, the evidence showed that the shipper was familiar with shipping receipts, and accepted the receipt limiting the company’s liability without protest. The court said: “A common carrier may limit its liability in case of loss by stipulations concerning the value of the property it undertakes to convey. * * * The only qualification is that the stipulation shall be brought home to the knowledge of the shipper under such circumstances that his assent to it can fairly be assumed to have been given.”

We have carefully examined the other cases cited by appellant, and have failed to find one in which any other doctrine is announced.

Finding no error in the record, the judgment will be affirmed, with costs, and it is so ordered. Affirmed.