Is plaintiff's evidence sufficient to establish contributory negligence as a matter of law?

Since the evidence presented at the first and second trials is substantially the same, plaintiff is correct in contending that it is the law of the case that plaintiff's evidence did not establish decedent's contributory negligence as a matter of law. Wells v. Lloyd, 21 Cal.2d 452, 454-457, 132 P.2d 471. Upon this premise plaintiff argues that the prior decision constituted a determination that the testimony produced by plaintiff was not irreconcilable with the presumption that at the time and place in question the decedent exercised due care for his own safety and protection. Plaintiff argues, in other words, that 'to hold that the decedent's conduct was irreconcilable with the presumption of due care is tantamount to saying that the decedent was guilty of contributory negligence as a matter of law.'